Court rules widow’s customary marriage was valid
A widow whose in-laws contested the legitimacy of her customary marriage to their son after his death has had her marriage retrospectively confirmed as legal.
A full bench of the Mthatha high court has ruled that custom does not require a bride to be physically handed over to the groom “like goods that needed to be delivered”.
Fezile Mlamla had asked the Mthatha high court to order home affairs to retrospectively register and endorse her 2012 customary marriage to Viwe Rubushe and issue her with a marriage certificate.
Mlamla resorted to court for the certificate after she found herself torn between two bureaucracies and the Rubushe family, who refused to acknowledge that she had been married to Viwe.
The master’s office refused to issue her with a letter of appointment as executrix of Rubushe’s estate without the marriage certificate.
Home affairs would not issue it as Rubushe’s family refused to provide affidavits confirming the customary marriage.
When she sought to claim Rubushe’s municipal pension fund, she was informed that his mother, Nomathamsanqa Rubushe, had already lodged a claim, having stated in support of the claim that he was unmarried at the time of his death.
The Mthatha high court had found in favour of the Rubushe family, stating that a customary marriage could not be valid unless the bride’s family had “handed over” the bride to the bridegroom’s family.
It ruled that in Mlamla’s case this had never happened.
But, on appeal, a full bench of the court disagreed.
Judge Bantubonke Tokota, with acting judges Nceba Dukada and MS Dunywa agreeing, found that all the necessary processes had been followed for Mlamla’s marriage to Rubushe to be recognised as a customary marriage.
Both had been over 18.
Rubushe’s family had sought consent and negotiated lobola, which had then been paid.
A welcoming ceremony, or Utsiki, had been performed at Rubushe’s home, welcoming Mlamla into her new family.
Tokota said as a “beginning of the consummation of the marriage” Mlamla was given the new name, Olulutho, for her in-laws to address her by.
She was fed with isiphanga and given bile juice to symbolise that she was welcome by her marital ancestors
“She was fed with isiphanga and given bile juice to symbolise that she was welcome by her marital ancestors.”
They then lived as man and wife in their new home. When the marriage hit tough times, his family had stepped in to try to assist them to resolve their problems.
Rubushe had left the marital home to live with another woman in 2016. He died in 2018.
Tokota ruled that the “handing over of a bride” was not a key determining factor of a valid customary marriage.
“Where the parties have consented to the customary marriage and agreement has been reached at the negotiation stage by the two families for the beginning of such marriage, the handing over of the bride becomes superfluous.
“A bride is not like goods that need to be delivered to the marital home.”
He ordered home affairs to register the marriage and issue Mlamla with the marriage certificate.