When laws governing marriage collide

Black Coffee and Enhle ruling sends a clear message: customary and civil marriages are of equal legal standing

- ANTHONY DIALA

SOUTH AFRICAN actress and businesswoman Enhle Mbali Mlotshwa has won a victory in the Johannesburg High Court.

It ruled that her customary marriage to music star Nkosinathi "Black Coffee" Maphumulo was valid, declaring their later civil marriage and antenuptial contract null and void.

Mlotshwa is now legally entitled to half of the couple's vast estate.

In this article, the author-a scholar of legal pluralism and specialist in customary law marriage-answers a number of questions arising from this case concerning the various pieces of legislation governing marriage in South Africa.

What is customary marriage, and how does it fit into South African law?

A customary marriage is a union between a man and one or more women, which is concluded in terms of African customary law. This means that the marriage must comply with traditional customs and ceremonies like negotiations between families, payment of bride wealth (lobolo), and handing over of the bride to the groom's family.

Although customary marriages are between individuals, the clan is heavily involved. In the rustic societies where indigenous customs arose, marriage was originally between the families of the couple.

A customary law union is recognised as a valid marriage by the Recognition of Customary Marriages Act 1998 (RCMA). It makes a customary marriage automatically in community of property unless the parties exclude it in a contract before the marriage is concluded.

Community of property means that all wealth and liabilities that accrue during the marriage are shared equally between the parties if they divorce. This is the default position for all marriages in South Africa.