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Lijane v Kekana [2023] ZAGPJHC 5

WILSON J

3 January 2023

FAMILY – Marriage – Customary – Interracial marriages under customary law – Between Black man and Coloured woman – Application of customary law not confined to one racial group – Recognition of Customary Marriages Act 120 of 1998.

Facts: Mr Lijane and Ms Sauls were in a long-term, loving and committed relationship. They were both over the age of 18 in 2016 and intended to marry each other according to customary law. Ms Sauls passed away in 2021.

Application: Mr Lijane seeks a declaration that he entered into a valid customary marriage with Ms Sauls, but this is opposed by Mr Kekana was the Sauls family’s principal representative in the negotiations that led to the marriage and also opposed by Ms Sauls’ two children from a previous relationship.

Discussion: The alleged absence of a handing-over ceremony; the adornment of the bride in traditional costume; the alleged non-payment of lobolo; the contention by the respondents that interracial marriages cannot be contracted under customary law because Mr Lijane is an African man and Ms Sauls was a Coloured woman; and the contention that the Recognition of Customary Marriages Act 120 of 1998 defines “customary law” as the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples.

Findings: The Act makes clear that indigeneity and culture are attributes of customary laws themselves, not the people who choose to be governed by them. The Act has nothing at all to say about whether a Coloured person can contract a marriage under customary law, so long as those laws have their origins in indigenous African cultural practices. The court must also interpret the Act in accordance with the spirit, purport and objects of the Bill of Rights in the Constitution. There could be little more destructive of that spirit than to confine the application of customary law to one racial group.

Order: The customary marriage entered into between Mr Lijane and Ms Sauls is declared valid.

WILSON J

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