B[…] C[…] B[…] v M[…] J[…] S[…]
High Court of South Africa, Limpopo Division, Polokwane
Case No. 3018/2024 — judgment delivered 06 August 2025
This judgment is reportable because it clarifies the requirements for the validity of a customary marriage under section 3 of the Recognition of Customary Marriages Act 120 of 1998. It confirms, with reference to recent Supreme Court of Appeal authority, that the traditional “handing-over” of the bride is not an indispensable element where the evidence otherwise demonstrates acceptance of the bride into the groom’s family. The decision is therefore significant to practitioners and judges dealing with disputes on the existence of customary marriages and the consequent matrimonial consequences, including divorce proceedings.
N C M v M J M and Others (799/2023) [2025] ZASCA 10 (10 February 2025)
Sengadi v Tsambo (40344/2018) [2018] ZAGPJHC 613; 2019 (4) SA 50 (GJ) (3 November 2018)
Tsambo v Sengadi (244/19) [2020] ZASCA 46 (30 April 2020)
Recognition of Customary Marriages Act 120 of 1998
The judgment does not expressly cite any rule of court.
The plaintiff instituted divorce proceedings claiming that a valid customary marriage had been concluded between herself and the defendant on 30 April 2016. The defendant, while conceding the occurrence of lobola negotiations and partial payment, denied that a valid marriage had been “celebrated in accordance with customary law”. The court was therefore required, as a preliminary issue, to decide whether a customary marriage existed.
After hearing evidence from both parties and their family representatives, the court found that the essential requirements set out in section 3 of the Recognition of Customary Marriages Act were met. The families had negotiated lobola, partial payment of R10 000 had been made towards an agreed total of R25 000, and the plaintiff had been accepted and referred to as the defendant’s ngwetši / makoti.
The court relied on recent appellate authority confirming that the physical “handing-over” of the bride is not an indispensable requirement if the parties and their families have otherwise treated the union as a completed marriage. Accordingly, the court declared the customary marriage valid, paving the way for the divorce action to proceed.
Whether the requirements in section 3(1)(b) of the Recognition of Customary Marriages Act had been satisfied, particularly the celebration of the marriage “in accordance with customary law”.
Whether the absence of a formal, ceremonial handing-over of the bride invalidated the purported marriage.
The evidential weight to be afforded to subsequent conduct, including a church blessing and the exchange of wedding rings.
The court held that a valid customary marriage existed between the parties. The negotiation and partial payment of lobola, the families’ mutual consent, the plaintiff’s acceptance into the defendant’s family and the later religious blessing collectively satisfied the statutory and customary requirements.
The traditional handing-over of the bride, while an important custom, is not an indispensable sacrosanct essentialia of a customary marriage when other evidence proves the families’ acceptance and recognition of the union.
The divorce action may therefore proceed on the footing that the parties are legally married.
The parties commenced a romantic relationship in December 2013. On 26 April 2016 the defendant sent a formal letter to the plaintiff’s family expressing his intention to open lobola negotiations. Although the defendant later questioned the authenticity of the letter, both sides agreed that negotiations took place.
On 30 April 2016 the defendant’s emissaries attended at Sekgapaneng Village, Mokopane, where R10 000 was paid towards an agreed lobola of R25 000. Gifts of two blankets, two cloths and a tobacco container were also presented. After discussions the plaintiff accompanied the defendant’s family when they departed, and she was thereafter referred to as their makoti.
On 2 October 2016 the parties attended church with family representatives where their union was blessed, and they exchanged wedding bands. The couple have one child, born later in 2016, who bears the defendant’s surname.
First, the court had to determine whether a customary marriage had come into existence despite the defendant’s denial of compliance with customary celebrations.
Secondly, it needed to decide whether the absence of a formalised handing-over ceremony constituted a fatal defect under customary law as read with section 3 of the Recognition of Customary Marriages Act.
Finally, the court was required to consider what weight to give to subsequent events—the church blessing, the exchange of rings and the families’ conduct—in establishing the legal status of the relationship.
Acting Judge Makoti began by setting out the statutory requirements under section 3 of the Recognition of Customary Marriages Act. Consent and age were uncontested, leaving the core enquiry whether the marriage had been “negotiated and entered into or celebrated in accordance with customary law”.
The court examined authoritative precedent, particularly the Supreme Court of Appeal’s decisions in N C M v M J M and Tsambo v Sengadi, which emphasise that while handing-over remains an important indicator, it is not indispensable if other objective manifestations of a completed marriage are present. The court noted that the defendant’s family’s own witness referred to the plaintiff as ngwetši, evidencing her acceptance.
On the facts, the negotiated lobola, the portion paid, the presentation of customary gifts, the plaintiff’s departure with the defendant’s family, and the later church blessing collectively satisfied customary norms. The court rejected the defendant’s reliance on the absence of a formal handing-over ritual, finding that the families’ conduct unequivocally demonstrated completion of the marriage process.
The court issued a declaratory order confirming the existence of a valid customary marriage between the parties. This order removes any uncertainty about the marital status of the parties and their child.
Consequently, the plaintiff’s divorce action is permitted to proceed on the footing that a valid marriage subsists, with all attendant proprietary and parental consequences to be decided in the ensuing divorce proceedings.
A customary marriage concluded after 15 November 2000 is valid if the parties are over eighteen, consent to the marriage, and the marriage is negotiated and celebrated in accordance with customary law (Recognition of Customary Marriages Act 120 of 1998, s 3).
The handing-over of the bride, while a customary practice, is not an indispensable essentialia; what is required is credible evidence that the families recognised and accepted the union as a marriage (Tsambo v Sengadi; Sengadi v Tsambo).
Subsequent conduct—such as acceptance of the bride into the groom’s household, usage of marital titles, partial payment of lobola and religious blessings—may collectively establish that a valid customary marriage exists even absent a formal handing-over ceremony.