Assessing the insurmountable challenge in proving the existence of a customary marriage in terms of section 3(1)(b) of the Recognition of Customary Marriages Act 120 of 1998 and the misplacing of gender inequality

Abstract

The Recognition of Customary Marriages Act 120 of 1998 endeavoured, amongst other things, to alleviate the discriminatory and unequal treatment suffered by women in customary marriages. Women had grounds for celebration when the Recognition of Customary Marriages Act was finally enacted. The onus of proving the existence of a customary marriage still remains an insurmountable challenge and poses a threat of distorting African customs when courts attempt to ascertain the existence of a customary marriage. This challenge is reflected in the cases of Tsambo v Sengadi (244/19) [2020] ZASCA 46 (30 April 2020). Sengadi v Tsambo; In Re: Tsambo (40344/2018) [2018] ZAGPJHC 666; [2019] 1 All SA 569 (GJ) (8 November 2018). On 28 February 2016, Ms Sengadi and Mr Tsambo together with their families celebrated what was assumed to be a customary marriage. The Tsambo family furthermore on the abovementioned day welcomed Ms Sengadi as their bride and this according to the Sengadi family signified a handing over resulting in the conclusion of a valid customary marriage. The Tsambo family has however in the cases of Sengadi v Tsambo, and Tsambo v Sengadi, disputed the existence of a customary marriage and raised the argument that Ms Sengadi was not handed over to the Tsambo family in accordance with Setswana custom. Ms Sengadi now bears the onus to prove the existence of a valid customary marriage and this exposes the insurmountable challenge in establishing and ascertaining applicable contents of African custom. This paper seeks to assess the challenge in ascertaining the existence of a valid customary marriage and how African custom can be misplaced under the guise of gender equality with emphasis on how the handing over of the bride has been misplaced by courts in the Sengadi v Tsambo and Tsambo v Sengadi cases.