Author: Aviwe Masophi 

Introduction:

South Africa’s legal framework for customary marriages is outlined in the Recognition of Customary Marriages Act 120 of 1998, also known as the RCMA. According to Section 3(1)(a)(ii), a customary marriage cannot be deemed lawful unless both parties consent to be married in accordance with customary law. This article aims to present an unbiased assessment and analysis of whether a legally recognised customary marriage was ever consummated, with a focus on the consent issue in the Mbalentle Mlotshwa v. Nkosinathi Innocent Maphumulo case number 2019/34446 in the Johannesburg, Gauteng Local Division of the High Court of South Africa.

Background:

One of the issues in the divorce proceedings between Nkosinathi Maphumulo (Black Coffee) and Enhle Mbali Mlotshwa centred on whether their conduct and cultural rituals in 2011 constituted a valid customary marriage under the RCMA 120 of 1998. Mlotshwa argued that the completion of dowry negotiations and traditional Zulu rituals evidenced a valid marriage. Since no antenuptial contract was signed at that specific time, she contended the union was in community of property by default. Maphumulo countered that, although cultural events occurred, he lacked the specific intention (or consent) to be legally married at that stage. He argued their later 2017 civil ceremony and antenuptial contract reflected their true marital intent. On the 10th of October 2025, the High Court finalised the divorce between the two spouses, validating their customary marriage and ruling it was in community of property, and that the subsequent civil marriage and antenuptial contract concluded in 2017 were legally ineffective in altering the consequences of the earlier customary marriage. As a result, the court gave relief consistent with a community property marriage and acknowledged the customary marriage as the operative marriage for the divorce.

Maphumulo sought permission to appeal the High Court’s ruling after it was rendered. That application was approved, and the Supreme Court will consider the case. It is anticipated that the appeal would mainly address whether a legally recognised customary marriage was ever consummated, with a focus on the consent problem. Crucially, obtaining leave to appeal does not reverse the High Court’s conclusions; rather, it affirms that the concerns addressed are significant enough legally to merit the SCA’s review.

Requirements for a valid customary marriage under the RCMA:

If both parties are over the age of 18, consent to be married customarily, then negotiate, enter into, or celebrate the marriage in line with the relevant customary law, then the marriage will be considered lawful under South African law. Courts consider the entirety of the evidence, including family involvement, the behaviour of the partners, and whether the customary procedure had progressed to the point where a marriage was seen to have formed, rather than requiring proof of a single defining ceremony. Although it causes difficulties that frequently call for judicial intervention, marriage registration is not a prerequisite for its validity.

If a legitimate customary marriage is consummated after the Recognition of Customary Marriages Act went into effect and no legal antenuptial agreement is signed before the marriage, the marriage is automatically in communal property. A joint estate is established as a result, along with an equal distribution of assets and liabilities and prohibitions on specific transactions without the approval of the spouse. It is crucial to remember that partners cannot unilaterally change this property regime after the fact by subsequently signing an antenuptial agreement; post-nuptial changes often need a judicial ruling. In South Africa, a joint High Court application under Section 21 of the Matrimonial Property Act is required to change the matrimonial property regime from in-community to out-of-community property (or vice versa). The procedure necessitates good cause, complete financial disclosure, notification to the Registrar of Deeds and creditors, and a new post-nuptial agreement that guarantees no harm to third parties.

Judicial Recognition of Tacit Consent in South African Customary Marriages: Interpreting Section 3(1)(a)(ii) of the Recognition of Customary Marriages Act :

In the case of Mbungela & Others v. Khoza & Others, for example, courts have increasingly examined the parties’ purpose. The court frequently assumes consent occurred if the couple lived together and the families negotiated dowry, even if other customary “celebratory” rituals were omitted. It is possible to distinguish between the more particular consent to be married under customary law and the broader consent to marry. As previously mentioned, to be married under customary law, specific consent is required under clause 3(1)(a)(ii). Both parties to the prospective marriage must give their consent. According to the law, such a marriage is impossible without the express approval. One could argue that the ability to give consent is a fundamental human right. The rights to freedom and human dignity are violated if this is not the case. Essentially, the resulting union can be considered a forced union.

Consent can be expressed verbally or physically. Whether the legislature meant explicit or implicit consent is uncertain. The issue will be uncomplicated and unambiguous if the parties verbally agree that they will be married in accordance with customary law. Although crucial, the dowry’s negotiation and delivery do not automatically indicate approval of a traditional marriage. This is because Africans typically give dowries even in situations where the couple solely anticipate a civil marriage. Even though dowries are not necessary for civil marriages, it is customary to deliver them before a civil union.

Conclusion: 

In light of the above and in the case of Mbalentle Mlotshwa v Nkosinathi Maphumulo. since the idea of a civil marriage out of community of property had always been entertained and envisaged by the parties It is submitted that the correct approach was for the court to properly establish proper the facts about whether or not the respondent had consented to be married under customary law rather than simply relying on mere compliance with the cultural aspects. Similar to the case that is being discussed, the court’s response to the respondent’s argument in the LNM v. MMM case was as follows: 

The argument put forth by the respondent engages the question of whether, despite his denial, an intention to conclude a customary marriage can be imputed to him. It is a factual question and a legal question. The respondent claimed that the parties had agreed to conclude a civil marriage subject to an antenuptial contract and that their customary marriage was simply in compliance with the cultural aspects. The Constitutional Court warned in MM v. MN that courts shouldn’t presume that consent will have a universal meaning across all legal sources and that they shouldn’t impose the common law interpretation of consent.