Is it the end of the road for the integration of the bride as requirement for a customary marriage? M.B.M v J.P.M (63162/2020)[2022]

Disputing the validity of a customary marriage is a commonly litigated matter in customary law. The dispute can be motivated by various factors, which include trying to deprive one spouse and their family of the patrimonial consequence of a marriage (Osman and Baase "The recognition of same-sex customary marriages under South African customary law" 2022 SAJHR 2). The requirements for validity of a customary marriage in terms of section 3(1)(a) of the Recognition of Customary Marriages Act 120 of 1998 (Recognition Act) are that both parties must consent to the marriage and be 18 years of age. Section 3(1)(b) further provides that the marriage must be negotiated and celebrated in terms of customary law. It has been accepted that this entails that lobolo and integration of the bride are part of the conclusion of a customary marriage (Maithufi "The requirements for validity and proprietary consequences of monogamous and polygynous customary marriages in South Africa: Some observations" 2015 De Jure 262). Section 3(1)(b) is, however, causing interpretive challenges in courts. It should be noted that some rituals can be waived by the two families or parties concluding a customary marriage (Bakker "Integration of the bride as a requirement for validity of a customary marriage: Mkabe v Minister of Home Affairs [2016] ZAGPPHC 4601" 2018 PELJ 6). The Constitutional Court has also confirmed that customary law is flexible and adaptable, and must be developed to be in line with the spirit, purport and objects of the Bill of Rights (Shilubana and Others v Nwamitwa 2008 9 BCLR 914 (CC) para 43; Bhe v Magistrate, Khayelitsha; Shibi v Sithole and Others; South African Human Rights Commission and Another v President of the Republic of South Africa 2005 1 SA 580 (CC) para 41). The problem, however, is that courts merely accept that parties can waive integration of the bride without looking at the cultural group concerned and, more specifically, without asking whether that group allows for waiver of integration entirely.