A recent case, Mashisane v Mhlauli which was moved up to the Supreme Court of Appeal, shed light on the challenges surrounding customary marriages and marital property agreements.
Ms. Mhlauli claimed that she and Mr. Mashisane were in a valid customary marriage, which means they were married according to their cultural traditions and shared their property equally. She argued that their prenuptial agreement (which stated they would keep their property separate) was invalid because it wasn’t registered properly after their customary marriage.
On the other hand, Mr. Mashisane disagreed. He said that participating in traditional customs didn’t mean he agreed to a customary marriage. Instead, he participated out of respect for their cultural traditions. He also pointed out that they both had agreed to keep their property separate to protect their individual assets and debts.
There were two main issues in this case:
- Did they agree to enter into a customary marriage?
- Is their prenuptial agreement valid?
The Supreme Court of Appeals had to carefully consider these issues. The Court reviewed previous cases and emphasised the importance of understanding the specific cultural context of consent in customary marriages. Unfortunately, due to the lack of expert evidence on Tsonga and Xhosa customary traditions, the Court couldn’t fully explore this aspect.
The Court noted that under the Recognition of Customary Marriages Act, both parties need to be over 18, consent to the marriage, and follow customary laws and/or traditions in their marriage celebrations. Simply participating in traditional customs doesn’t necessarily mean there’s consent for a customary marriage.
The case also involved legal technicalities about registering the prenuptial agreement. Ms. Mhlauli admitted in her affidavits that they had originally intended to keep their property separate. This contradiction weakened her case.
The SCA criticised the High Court for granting a declaration without thoroughly examining the disputed facts. They emphasised the importance of a detailed trial to resolve such disputes rather than relying on written statements alone.
In light of this, the SCA decided to overturn the High Court’s decision. They ruled that the High Court should not have granted declaratory relief without a proper trial to examine the disputed issues. This case sets a significant precedent, highlighting that disputes involving customary laws need careful and thorough examination in Court.
The Mashisane v Mhlauli case underscores the complexities involved in customary marriages and the importance of understanding cultural contexts in legal matters. It also stresses the need for thorough judicial examination in resolving disputes, especially when they involve intricate cultural and legal issues.
It is vital, when it comes to customary law, to understand the complexities of customary law matters. One has to properly assess all the facts involved prior to making certain assumptions relating to customary law.
Article by Isabel van den Ende (Senior Associate) and Aaliyah Razak (Candidate Attorney)
