Analyzing the Case of Sikhosana v Kabini: Determining the Validity of a Customary Marriage

Introduction Examining the case Sikhosana v Kabini.

The question in this matter is whether the events after the lobolo negotiations amounted to an agreed marriage celebration or not.

In this case, the applicant, Sikhosana applied for an order declaring that a valid customary marriage was concluded between himself and Ms Kabini n or about 21 March 2021. She passed away on 12 July 2021) due to COVID 19 related complications. He also sought an order against the Minister of Home Affairs for an order that the marriage be registered in terms of the Recognition of Customary Marriages Act, Act 120 of 1998 (“RCMA”).

To succeed, the applicant had to show that the alleged marriage was entered into in accordance with the provisions of the RCMA.

In terms of the RCMA a “customary marriage” is defined as a marriage concluded in terms of customary law, and “customary law” means the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those people.

“Lobolo” is defined as means the property in cash or in kind, whether known as lobolo or by any other name, which a prospective husband or the head of his family undertakes to give to the head of the prospective wife’s family in consideration of a customary marriage.

Background

The lobolo negotiations were successful and were recorded in writing and signed by the parties. Following the negotiations some festivities took place, during which the deceased wore a traditional dress and the parties exchanged rings. The parties lived together at Ms Kabini’s residence until she passed away. The applicant’s version was that the successful negotiations on 21 March 2021 had the purpose of lobolo negotiations and the conclusion of the marriage. The respondent drew a distinction between the two and stated that in accordance with Ndebele tradition a lobolo meeting serves as an introduction of the families and negotiation of lobolo. The respondent stated that a marriage is never concluded during lobolo negotiations and that negotiations are followed up by another meeting when the marriage is celebrated and when the bride is handed over.

Court’s findings

The court found that on a balance of probabilities, the parties did intend the celebrations to include a marriage celebration and that a marriage was indeed concluded and/or celebrated on the day in question. It declared that a valid customary marriage was concluded and celebrated between the applicant and deceased and ordered the Minister of Home Affairs to register the customary marriage.

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