AN APPRAISAL OF THE ROLE OF RITUALS AND THEIR WAIVER IN THE CONCLUSION OF A CUSTOMARY MARRIAGE

Abstract

The validity of customary marriages remains a topical issue in South Africa and the most litigated aspect of customary law. The problem is that courts often do not pay attention to the role that rituals play in the validity of a customary marriage. Courts do not always investigate the relevant living law to determine if indeed the traditional group involved allows for waiver of a ritual in conclusion of a customary marriage. Living law refers to the day-to-day norms of communities that base their lives on customary law. Living law is affected by different factors such as acculturation and urbanisation.1 The focus of this article is on some of the different traditional groups in South Africa and looks at case law in South Africa in terms of how traditional groups deal with the role of rituals in determining the conclusion of a customary marriage. The article argues that what is happening is problematic because customary law is not given the recognition it is afforded by the Constitution. The article argues that understanding rituals can play an important role in helping courts to determine whether a customary marriage has been concluded in a particular case. Rituals are also observed to integrate a bride into the groom’s family; however, there are rituals that may be waived without affecting the validity of a customary marriage. Integration of the bride is a broader term requiring scrutiny because this process includes different and varying rituals that are observed in the conclusion of a customary marriage. In customary law, rituals are significant because they are associated with legitimising certain occurrences, such as the change of a surname and the coronation of a king. This article argues that courts should appreciate the significance of rituals in the conclusion of a customary marriage. In addition, courts should understand which rituals are so important that they cannot be waived.