UNIVERSITY OF SOUTH AFRICA
College of Law
⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄⋄
LCP4804: Advanced Indigenous Law
Assignment 2 — Semester 1, 2026 — Unique No. 326036
⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄⋄
c
Module Code: LCP4804
Module Name: Advanced Indigenous Law
Examiners: Dr. Maropeng Mpya; Ms. NF Dlamini-Ndwandwe
Assignment: Assignment 2 (100 Marks)
Unique Number: 326036
Semester: Semester 1, 2026
Submitted in partial fulfilment of the requirements for LCP4804 — UNISA 2026
, UNISA | LCP4804 Advanced Indigenous Law — Assignment 2
Question 1.1: Whether Abel Could Have Had Two Valid Customary Marriages
The Recognition of Customary Marriages Act 120 of 1998 (RCMA) expressly permits polygynous cus-
tomary marriages.1 Section 2(3) of the RCMA provides that an existing valid customary marriage does
not bar the husband from entering into a further customary marriage, subject to the requirements
of the Act. This represents a fundamental departure from civil marriage law, which requires strict
monogamy.2
Abel could therefore, in principle, have contracted two valid customary marriages with both Beauty
and Pumla simultaneously. For each marriage to be valid under the RCMA, the following requirements
set out in section 3(1) must be satisfied: the prospective spouses must both be above the age of 18
or have parental or guardian consent if under 18; they must both consent to the marriage; and the
marriage must be negotiated and entered into or celebrated in accordance with customary law.3
Where the husband is already a spouse in a subsisting customary marriage and wishes to enter into a
further one after the commencement of the RCMA (15 November 2000), section 7(6) requires him to
make an application to court to approve a written contract regulating the matrimonial property conse-
quences of the subsequent marriage.4 The Constitutional Court confirmed in Mayelane v Ngwenyama
that non-compliance with section 7(6) does not render the subsequent marriage void, but the marriage
will be regarded as being out of community of property.5
Crucially, section 4(9) of the RCMA provides that failure to register a customary marriage does not
affect the validity of that marriage.6 The fact that Pumla registered her marriage with the Home Affairs
Department first, while Beauty had not yet done so, says nothing about the validity of either union.
Registration confers only prima facie proof; it does not create the marriage.7
The conclusion is that Abel could indeed have had two simultaneously valid customary marriages, pro-
vided both met the substantive requirements of section 3(1) of the RCMA and, where applicable, the
section 7(6) court process was followed for the later marriage. Beauty’s failure to register her marriage
first does not extinguish her rights as a spouse. She may approach a court for an order registering her
marriage in terms of section 4(7) of the RCMA.
Critical Consideration
Registration versus validity: Section 4(9) of the RCMA makes clear that the validity of a customary
marriage is independent of its registration. Pumla’s prior registration is evidentially useful but not determi-
native. Beauty may apply to court under section 4(7) to have her marriage registered even posthumously,
and courts have routinely granted such orders where the existence of the marriage is proved on a balance
of probabilities.
1
Recognition of Customary Marriages Act 120 of 1998 (RCMA), s 2(3).
2
Marriage Act 25 of 1961, s 22.
3
RCMA, s 3(1)(a) and (b).
4
RCMA, s 7(6).
5
Mayelane v Ngwenyama and Another [2013] ZACC 14; 2013 (4) SA 415 (CC); 2013 (8) BCLR 918 (CC) para 83.
6
RCMA, s 4(9).
7
RCMA, s 4(8).
Page 2 of 7
College of Law
⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄⋄
LCP4804: Advanced Indigenous Law
Assignment 2 — Semester 1, 2026 — Unique No. 326036
⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄⋄
c
Module Code: LCP4804
Module Name: Advanced Indigenous Law
Examiners: Dr. Maropeng Mpya; Ms. NF Dlamini-Ndwandwe
Assignment: Assignment 2 (100 Marks)
Unique Number: 326036
Semester: Semester 1, 2026
Submitted in partial fulfilment of the requirements for LCP4804 — UNISA 2026
, UNISA | LCP4804 Advanced Indigenous Law — Assignment 2
Question 1.1: Whether Abel Could Have Had Two Valid Customary Marriages
The Recognition of Customary Marriages Act 120 of 1998 (RCMA) expressly permits polygynous cus-
tomary marriages.1 Section 2(3) of the RCMA provides that an existing valid customary marriage does
not bar the husband from entering into a further customary marriage, subject to the requirements
of the Act. This represents a fundamental departure from civil marriage law, which requires strict
monogamy.2
Abel could therefore, in principle, have contracted two valid customary marriages with both Beauty
and Pumla simultaneously. For each marriage to be valid under the RCMA, the following requirements
set out in section 3(1) must be satisfied: the prospective spouses must both be above the age of 18
or have parental or guardian consent if under 18; they must both consent to the marriage; and the
marriage must be negotiated and entered into or celebrated in accordance with customary law.3
Where the husband is already a spouse in a subsisting customary marriage and wishes to enter into a
further one after the commencement of the RCMA (15 November 2000), section 7(6) requires him to
make an application to court to approve a written contract regulating the matrimonial property conse-
quences of the subsequent marriage.4 The Constitutional Court confirmed in Mayelane v Ngwenyama
that non-compliance with section 7(6) does not render the subsequent marriage void, but the marriage
will be regarded as being out of community of property.5
Crucially, section 4(9) of the RCMA provides that failure to register a customary marriage does not
affect the validity of that marriage.6 The fact that Pumla registered her marriage with the Home Affairs
Department first, while Beauty had not yet done so, says nothing about the validity of either union.
Registration confers only prima facie proof; it does not create the marriage.7
The conclusion is that Abel could indeed have had two simultaneously valid customary marriages, pro-
vided both met the substantive requirements of section 3(1) of the RCMA and, where applicable, the
section 7(6) court process was followed for the later marriage. Beauty’s failure to register her marriage
first does not extinguish her rights as a spouse. She may approach a court for an order registering her
marriage in terms of section 4(7) of the RCMA.
Critical Consideration
Registration versus validity: Section 4(9) of the RCMA makes clear that the validity of a customary
marriage is independent of its registration. Pumla’s prior registration is evidentially useful but not determi-
native. Beauty may apply to court under section 4(7) to have her marriage registered even posthumously,
and courts have routinely granted such orders where the existence of the marriage is proved on a balance
of probabilities.
1
Recognition of Customary Marriages Act 120 of 1998 (RCMA), s 2(3).
2
Marriage Act 25 of 1961, s 22.
3
RCMA, s 3(1)(a) and (b).
4
RCMA, s 7(6).
5
Mayelane v Ngwenyama and Another [2013] ZACC 14; 2013 (4) SA 415 (CC); 2013 (8) BCLR 918 (CC) para 83.
6
RCMA, s 4(9).
7
RCMA, s 4(8).
Page 2 of 7
