Mbungela & another v Mkabi & others

The first respondent, Mr Mkabi, and the late Ms Ntombi Eunice Mbungela were in a long-term relationship from 2007. In April 2010, Mr Mkabi’s family initiated lobola negotiations with the deceased’s family, led by her elder brother. An agreement was reached for lobola of R12 000 and a live cow; R9 000, gifts and the cow were delivered. The deceased thereafter returned to live with Mr Mkabi, and they regarded themselves as married, cohabited, and later had a church wedding. The marriage was never formally registered. After the deceased fell ill and later died in 2014, her family denied that a customary marriage existed, arguing that lobola was not fully paid and that the deceased had never been formally handed over to Mr Mkabi’s family. Mr Mkabi instituted action seeking a declaratory order that a valid customary marriage existed and compelling registration thereof.

The appeal was dismissed with costs, confirming that a valid customary marriage existed between Mr Mkabi and the deceased.

This judgment is a leading authority on the interpretation of s 3(1)(b) of the Recognition of Customary Marriages Act. It affirms the principle of living customary law and clarifies that the handing over of the bride is not an inflexible or indispensable requirement for a valid customary marriage. The case strengthens the protection of vulnerable spouses in customary marriages and promotes a constitutionally aligned, non-formalistic approach to customary law.