The weight which customary marriages carry was once again illustrated during a legal wrangle by two widows. A Cape Times report says both ‘wives’ claimed that they were legally married to Steve Sibanyoni, who died in December 2020.

The first wife said she married Sibanyoni in 1991 in terms of customary law.

The second said she was the ‘true wife’ as she had married Sibanyoni in 2007 in terms of civil proceedings.

Both wives told the Gauteng High Court (Pretoria) that they were entitled to Sibanyoni’s estate, and each asked the court to declare her marriage as being valid.

Sibanyoni had no idea that his marriage to the second wife was in fact not valid because in terms of the court's verdict after his death, he was in fact still married to wife number one.

Judge Cassim Sardiwalla said marriage in terms of customary law gave rise to some legal complexities.

According to the Cape Times report, Sardiwalla said it must be examined whether the customs, traditions or rituals that have to be observed in the negotiations and celebration of customary marriages have been complied with. These include the negotiations leading to the agreement on lobola, as well as any other tradition, custom or ritual associated with these.

If a customary marriage has not been concluded in accordance with customary law, it cannot be regarded as valid.

The court found that the requirements for a valid customary marriage are thus similar to those prescribed for a civil marriage, except that a customary marriage had to be negotiated and entered into or celebrated in accordance with customary law.

The judge referred to an earlier court judgment on this subject, in which it was said: ‘No hard and fast rules can be laid down because customary law is a flexible, dynamic system, which continuously evolves within the context of its values and norms.’

Although the Customary Marriages Act makes it obligatory to register such a marriage, it does provide that a failure to do so does not affect the validity of that marriage.

Sardiwalla ruled the customary marriage be declared valid and the civil marriage be declared null and void.

Full Cape Times report