Precedent, Waiver and the Constitutional Analysis of Handing Over the Bride [Discussion of Sengadi v Tsambo 2018 JDR 2151 (GJ)]

• Jurisdiction: South Africa
• Date: 01 June 2020
• Pages: 80-90
• Author: Osman, F.
• Citation: (2020) 31 Stell LR 80
• Published date: 01 June 2020

80

PRECEDENT, WAIVER AND THE

CONSTITUTIONAL ANALYSIS OF HANDING

OVER THE BRIDE [DISCUSSION OF

SENGADIv TSAMBO 2018 JDR 2151 (GJ)]

Fatima Osman

B Bus Sci (Law) LLB LLM PhD

Senior Lecturer, Department of Private Law, University of Cape Town

“Court rules that Lerato Sengadi is HHP’s customary wife, denies interdict to stop funeral”1

1 Introduction

In 2018, Lerato Sengadi found herself embroiled in a bitter d ispute with the

family of her recently deceased pa rtner, hip hop artist Jabula ni “HHP” Tsambo

(“the deceased”), regardi ng the validity of her customary mar riage to the star.

The high-prole case captu red media headlines and was representative of

a line of recent cases in which cou rts have been called upon to de cide the

requirements of a customa ry marr iage and the validity the reof. Moreover,

the case highlighted b roader issues such as whether cou rt pronouncements

on the requirements of a cust omary mar riage create binding p recedent and

whether parties ca n waive some or all of the requirements of a custom ary

marriage. Th is note addresses the is sues through an a nalysis of Sengadi v

Tsam bo (“Sengadi” ).2

2 Facts and findings

Sengadi (“the applicant” ) met the deceased in 2009 whe reafter the par ties

cohabited for three years before the com mencement of marriage negotiations

in 2016.3 Lobolo wa s set at R45 000 and R30 00 0 was paid immediately to the

applicant’s mother.4 The balance was to be paid in two inst alments of R10 000

and R5 000 at fut ure agreed d ates.5 During t he celebrations of the lobolo

negotiations, the deceased don ned formal wedding at tire and the decea sed’s

aunts dressed the a pplicant in her wedding dre ss.6 The applicant claimed

that upon the conclusion of the lobolo negotiations, the pa rties celebrated

their customar y-law marriage at which celebrations she was i ntroduced as

the customary w ife and daughter-in-law.7 Afd avits deposed to by two of

1 K Thakur din & N Msibi “Court Rule s that Lerato Sengadi i s HHP’s Customary Wife, De nies Interdict

to Stop Funera l” (02-11-2018) Times Live z a/tshisa-live/tshisa-live/2018-11-

02-just-in-court-rules-that-lerato-sengadi-is-hhps-customary-wife-denies-interdict-to-stop-funeral/>

(accessed 18-04-2019)

2 Sengadi v Tsambo 2018 JDR 2151 (GJ)

3 Paras 4-5

4 Para 5

5 Para 5

6 Para 6

7 Par a 7

(2020) 31 Stell LR 80

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