UNIVERSITY OF SOUTH AFRICA (UNISA)
College of Law
⋄
ADVANCED INDIGENOUS LAW:
VALIDITY AND RECOGNITION OF
CUSTOMARY MARRIAGES
Assignment 02 – Semester 1, 2026
⋄
Module Code: LCP4804
Module Name: Advanced Indigenous Law
Student Name: [Student Name]
Student Number: [Student Number]
Assignment No.: 02
Unique Number: 326036
Year: 2026 (Semester 1)
Total Marks: 100
Submitted in partial fulfilment of the requirements for Advanced Indigenous Law (LCP4804)
at the University of South Africa.
, UNISA | LCP4804 Advanced Indigenous Law – Assignment 2 (2026)
Question 1.1: Can Abel Validly Have Two Customary Marriages?
The Recognition of Customary Marriages Act 120 of 19981 (RCMA), which came into force on 15
November 2000, provides the governing legislative framework for all customary marriages in
South Africa. The RCMA expressly recognises polygamous customary marriages.2 This means
that a man may lawfully be a spouse in more than one customary marriage simultaneously, pro-
vided the statutory requirements are satisfied for each marriage.
The RCMA sets out the requirements for validity in section 3(1). A customary marriage entered
into after the commencement of the Act is valid only if: the prospective spouses are both above
the age of 18 years and consent to be married to each other under customary law; and the mar-
riage is negotiated and entered into or celebrated in accordance with customary law.3 Where a
husband who is already in a customary marriage wishes to enter into a further customary mar-
riage, section 7(6) additionally requires him to make an application to court for the approval of a
written contract regulating the future matrimonial property system of his marriages.4
Applied to the facts, Abel could in principle have had two valid customary marriages with Beauty
and Pumla. Customary law has always permitted polygyny, and this practice is now fully recog-
nised by statute.5 The mere fact that he was married to Beauty when he contracted his marriage
with Pumla does not automatically make Pumla’s marriage invalid. What must be examined is
whether each marriage, taken independently, satisfied the requirements of section 3(1) of the
RCMA and whether the procedure in section 7(6) was followed.
It must also be noted that the registration of a customary marriage at Home Affairs is not a re-
quirement for validity. Section 4(9) of the RCMA expressly provides that failure to register a cus-
tomary marriage does not affect its validity.6 Pumla’s having first registered her marriage does
not therefore vest superior validity in her marriage over Beauty’s. Both women must establish
validity on the substantive requirements of section 3(1).
Key Distinction
Registration vs Validity: Registration of a customary marriage creates a certificate that serves as
prima facie proof of the marriage’s existence.a It does not create or invalidate the marriage itself. A
marriage that complies with section 3(1) of the RCMA is valid even if never registered. Pumla’s prior
registration therefore confers no inherent advantage over Beauty’s unregistered but potentially valid
marriage.
a RCMA s 4(4)(b).
1 Recognition of Customary Marriages Act 120 of 1998 (hereafter ‘the RCMA’ or ‘the Act’).
2 RCMA s 2(3): “If a person is a spouse in more than one customary marriage, all valid customary marriages entered into
before the commencement of this Act are for all purposes recognised as marriages.” Section 2(4) extends recognition to
post-commencement polygamous marriages that comply with the Act.
3 RCMA s 3(1)(a) and s 3(1)(b).
4 RCMA s 7(6). The Constitutional Court in Mayelane v Ngwenyama [2013] ZACC 14; 2013 (4) SA 415 (CC) para 41 confirmed
that failure to comply with section 7(6) does not invalidate a further customary marriage but has consequences for the
matrimonial property regime.
5 RCMA s 2(4) read with s 2(3).
6 RCMA s 4(9). See also Mbungela and Another v Mkabi and Others [2019] ZASCA 134; 2020 (1) SA 41 (SCA) para 17, confirm-
ing that registration is evidentiary, not constitutive.
Page 1 of 8
College of Law
⋄
ADVANCED INDIGENOUS LAW:
VALIDITY AND RECOGNITION OF
CUSTOMARY MARRIAGES
Assignment 02 – Semester 1, 2026
⋄
Module Code: LCP4804
Module Name: Advanced Indigenous Law
Student Name: [Student Name]
Student Number: [Student Number]
Assignment No.: 02
Unique Number: 326036
Year: 2026 (Semester 1)
Total Marks: 100
Submitted in partial fulfilment of the requirements for Advanced Indigenous Law (LCP4804)
at the University of South Africa.
, UNISA | LCP4804 Advanced Indigenous Law – Assignment 2 (2026)
Question 1.1: Can Abel Validly Have Two Customary Marriages?
The Recognition of Customary Marriages Act 120 of 19981 (RCMA), which came into force on 15
November 2000, provides the governing legislative framework for all customary marriages in
South Africa. The RCMA expressly recognises polygamous customary marriages.2 This means
that a man may lawfully be a spouse in more than one customary marriage simultaneously, pro-
vided the statutory requirements are satisfied for each marriage.
The RCMA sets out the requirements for validity in section 3(1). A customary marriage entered
into after the commencement of the Act is valid only if: the prospective spouses are both above
the age of 18 years and consent to be married to each other under customary law; and the mar-
riage is negotiated and entered into or celebrated in accordance with customary law.3 Where a
husband who is already in a customary marriage wishes to enter into a further customary mar-
riage, section 7(6) additionally requires him to make an application to court for the approval of a
written contract regulating the future matrimonial property system of his marriages.4
Applied to the facts, Abel could in principle have had two valid customary marriages with Beauty
and Pumla. Customary law has always permitted polygyny, and this practice is now fully recog-
nised by statute.5 The mere fact that he was married to Beauty when he contracted his marriage
with Pumla does not automatically make Pumla’s marriage invalid. What must be examined is
whether each marriage, taken independently, satisfied the requirements of section 3(1) of the
RCMA and whether the procedure in section 7(6) was followed.
It must also be noted that the registration of a customary marriage at Home Affairs is not a re-
quirement for validity. Section 4(9) of the RCMA expressly provides that failure to register a cus-
tomary marriage does not affect its validity.6 Pumla’s having first registered her marriage does
not therefore vest superior validity in her marriage over Beauty’s. Both women must establish
validity on the substantive requirements of section 3(1).
Key Distinction
Registration vs Validity: Registration of a customary marriage creates a certificate that serves as
prima facie proof of the marriage’s existence.a It does not create or invalidate the marriage itself. A
marriage that complies with section 3(1) of the RCMA is valid even if never registered. Pumla’s prior
registration therefore confers no inherent advantage over Beauty’s unregistered but potentially valid
marriage.
a RCMA s 4(4)(b).
1 Recognition of Customary Marriages Act 120 of 1998 (hereafter ‘the RCMA’ or ‘the Act’).
2 RCMA s 2(3): “If a person is a spouse in more than one customary marriage, all valid customary marriages entered into
before the commencement of this Act are for all purposes recognised as marriages.” Section 2(4) extends recognition to
post-commencement polygamous marriages that comply with the Act.
3 RCMA s 3(1)(a) and s 3(1)(b).
4 RCMA s 7(6). The Constitutional Court in Mayelane v Ngwenyama [2013] ZACC 14; 2013 (4) SA 415 (CC) para 41 confirmed
that failure to comply with section 7(6) does not invalidate a further customary marriage but has consequences for the
matrimonial property regime.
5 RCMA s 2(4) read with s 2(3).
6 RCMA s 4(9). See also Mbungela and Another v Mkabi and Others [2019] ZASCA 134; 2020 (1) SA 41 (SCA) para 17, confirm-
ing that registration is evidentiary, not constitutive.
Page 1 of 8
