LCP4804 PORTFOLIO EXAMINATION

QUESTION 1 a) In determining the validity of the customary marriage in Maluleke v Minister of Home Affairs Case no 02/24921 [2008] ZAGPHC 129 (9 April 2008) (unreported) the court interpreted the statutory meaning of "entered into" "or celebrated" in section 3(1)(b) of the Recognition of Customary Marriages Act, 120 of 1998 (the Act). The validity of the marriage was confronted on the basis’s that imvume did not take place. The counsel’s agreed that the word ‘negotiated’ refers to negotiations in respect of the marriage, including lobolo, and that these negotiations had been completed. The dispute was based on whether a valid customary marriage had been ‘entered into or celebrated’. The Court turned to Oxford English Dictionary meaning of ‘celebrated’: ‘festivities or performance of a rite or ceremony’. The court was of the opinion that since the RCMA requires the validity of a customary marriage to ‘be negotiated and entered into or celebrated’, the negotiations which culminate in the payment of lobolo ‘seem to be the fundamental stage in the conclusions of customary marriages. The court held once it is clear that the negotiations have taken place, the next inquiry, applying the Act is whether there are any factors that show that the marriage was entered into or celebrated. The Court described ‘entered into’ as it is normally used to denote a contract, and the question is whether the parties to the marriage had agreed that they were married. Such an agreement may either be explicit or implicit. The validity of a customary marriage was questioned on the basis that the traditional imvume ritual, the Zulu variation of ukumekeza (Swazi), for integrating the bride into the groom’s family, had not been observed before the death of the husband. The scrutinised the requirements for a valid customary marriage as laid down in section 3 of the Act. In light of the requirements envisaged in the Act, the judge established that customary marriage has evolved over the yea