Widow's customary marriage ruled valid
Fezile Mlamla – whose in-laws contested the legitimacy of her customary marriage to their son after his death – has had her marriage retrospectively confirmed as legal.
A Daily Dispatch report notes a full Bench of the Eastern Cape High Court (Mthatha) has ruled that custom does not require a bride to be physically handed over to the groom ‘like goods that needed to be delivered’.
Mlamla had asked the court to order Home Affairs to retrospectively register and endorse her 2012 customary marriage to Viwe Rubushe and issue her with a marriage certificate. The Master’s Office refused to issue her with a letter of appointment as executrix of Rubushe’s estate without the marriage certificate.
Home Affairs would not issue it as Rubushe’s family refused to provide affidavits confirming the customary marriage.
The Eastern Cape High Court (Mthatha) had found in favour of the Rubushe family, stating that a customary marriage could not be valid unless the bride’s family had ‘handed over’ the bride to the bridegroom’s family.
However, the report notes on appeal, a full Bench disagreed.
Judge Bantubonke Tokota – with Acting Judges Nceba Dukada and MS Dunywa agreeing – ruled that all the necessary processes had been followed for Mlamla’s marriage to Rubushe to be recognised as a customary marriage.
Tokota said as a ‘beginning of the consummation of the marriage’ Mlamla was given the new name, Olulutho, for her in-laws to address her by. ‘She was fed with isiphanga and given bile juice to symbolise that she was welcome by her marital ancestors.’ They then lived as man and wife in their new home.
The Daily Dispatch report says Rubushe had left the marital home to live with another woman in 2016. He died in 2018.
Tokota ruled that the ‘handing over of a bride’ was not a key determining factor of a valid customary marriage.
‘Where the parties have consented to the customary marriage and agreement has been reached at the negotiation stage by the two families for the beginning of such marriage, the handing over of the bride becomes superfluous.’
He ordered Home Affairs to register the marriage and issue Mlamla with the marriage certificate.
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