Pretoria - Coloured people do not count as either indigenous or African, therefore customary law does not apply to them.
This was one of the arguments in a legal wrangle regarding a customary marriage involving a black husband and his coloured wife.
However, a judge sitting in the South Gauteng High Court in Johannesburg dismissed this argument.
Judge Stuart Wilson concluded that all the requirements for a customary marriage to be declared lawful were met in this case and he was not going to deal with the issue regarding race.
George Lijane turned to court for an order to force Home Affairs to declare his marriage to Gracious Sauls as lawful. The couple married in 2016 and she died in June 2021.
Sauls’s two children from a previous marriage, as well as another family member opposed the application.
The Recognition of Customary Marriages Act states that a customary marriage is “valid” if the prospective spouses are both older than 18, if they have both consented “to be married to each other under customary law”, and if the marriage is “negotiated and entered into or celebrated in accordance with customary law”.
There is no dispute between the parties that Lijane and Sauls were in a long-term, loving and committed relationship. Nor is there any dispute that they were both older than 18 when they married. The dispute concerns whether the marriage was in fact “negotiated and entered into or celebrated in accordance with customary law”.
According to the Sauls camp, the Basotho tradition of “go-shobedisa” – the “handing-over” of the bride to the groom’s family – wasn’t performed.
The judge said there was no dispute that there was a meeting between the families during which some customary marriage rites were performed. He noted that in terms of the law, the “handing-over” could no longer be considered a pre-requisite for the validity of a customary marriage.
The second contention relates to whether Sauls was dressed in Basotho traditional clothing by Lijane’s family, or whether she dressed herself.
The judge said he was not referred to any authority for the proposition that it makes any difference to the validity of a marriage by Basotho custom who dresses the bride.
The non-payment of lobola was also raised. A written agreement between the Lijane and Sauls families were, however, presented. In terms of the agreement, Lijane would compensate the Sauls family with R10 000 for the marriage. There is no evidence that the amount was paid, but that there was an agreement to pay could scarcely be disputed, the judge said.
“It seems, at worst for Mr Lijane, that a payment was agreed, but that the Sauls family did not accept the money as lobola, but as some form of dowry or contribution to the costs of the wedding,” the judge remarked. He turned down this objection.
The last point raised was that interracial marriages didn’t form part of customary marriages.
The judge said that this was a “far-reaching proposition” and that the Sauls’s lawyer offered a “creative argument” based on statutory interpretation in this regard.
It was, among others, argued that because customary law must involve customs forming part of the culture of indigenous African people, coloured people, not being “indigenous Africans”, are not people to whom customary law applies.
“The basic flaw in this argument is that the act makes clear that indigeneity and culture are attributes of customary laws themselves, not the people who choose to be governed by them. The act has nothing at all to say about whether a coloured person can contract a marriage under customary law, so long as those laws have their origins in indigenous African cultural practices,” the judge said.
He said he must interpret the act in accordance with the spirit, purport and objects of the Bill of Rights of the Constitution.
“There could be little more destructive of that spirit than to confine the application of customary law to one racial group,” the judge said.
He concluded that the marriage was valid and ordered Home Affairs to recognise it as such.
Pretoria News