Bregman Moodley Attorneys Blog

Am I Married Under Customary Law?”

Tsambo v Sengadi shows that you may be legally married under customary law even if some traditional rituals were not performed in the traditional manner.

In Tsambo v Sengadi (244/19) ZASCA 46, the Supreme Court of Appeal (“SCA”) gave important guidance on when a South African customary marriage will be regarded as valid, even if not every traditional ritual was performed in the classic way. The judgment is best known as the “HHP case”, because it concerned the late musician Jabulani “HHP/Jabba” Tsambo and his partner, Lerato Sengadi.

The central dispute was whether a valid customary marriage existed between HHP and Sengadi. His father argued that they were not married because a separate, formal “handing over of the bride” ceremony, with slaughtering of an animal and bile rituals (“go gorosiwa”), had never taken place. At most, he said, the parties had reached lobola agreement and held a celebration – but marriage, in the full customary sense, was still to come. Sengadi, on the other hand, argued that their lobola negotiations, the way she was treated on the day, and their life together afterwards all pointed to a completed customary marriage.

The SCA took a modern, realistic view of customary law. It emphasised that the Recognition of Customary Marriages Act 120 of 1998 requires three things for a post‑Act marriage: both parties over 18, both consenting to be married under customary law, and a marriage that is “negotiated and entered into or celebrated in accordance with customary law”. The Act deliberately does not spell out every ritual, because it defers to living customary law – how a particular community actually practices its customs today, not how they are described in old textbooks or case law.

On the facts, the couple’s story strongly supported a marriage. HHP proposed in Amsterdam; both families agreed to follow African custom; lobola was formally negotiated at Sengadi’s family home; a written agreement was signed; and HHP paid more than the required deposit immediately thereafter. During the celebrations, his aunts dressed Sengadi in what they expressly called her “wedding dress”, matching HHP’s attire, introduced her publicly as his wife and welcomed her into the Tsambo family. His father hugged and congratulated her as his son’s wife. Thereafter, the couple lived together as husband and wife, and she even registered him as her “spouse” on her medical aid.

The father tried to resist this by relying on earlier cases that treated the physical “handing over of the bride” at the groom’s homestead as a decisive requirement for validity. The SCA rejected such a rigid approach. Building on its earlier decision in Mbungela v Mkabi, the court reaffirmed that the handing over is important in many communities, but it is not always a strict, make‑or‑break element. Customary law is dynamic and evolving. In practice, families may abbreviate or adapt rituals due to cost, time pressures, or personal choices, and that flexibility has always existed in customary law.

What the court looked at was the overall picture: did the families and the couple themselves behave in a way that shows they intended and understood a customary marriage to have been concluded? In this case, the answer was yes. The dressing of the bride by the groom’s aunts, her formal introduction and acceptance as a wife, the father’s congratulations, the joint celebration, and subsequent cohabitation all pointed to a completed marriage, not an incomplete lobola process with a marriage still pending.

An important procedural aspect was that the matter came before the High Court on motion (affidavits), and the father argued there were factual disputes requiring oral evidence. The SCA applied the Plascon‑Evans rule and found there was, in truth, no genuine dispute of fact. Sengadi’s version was detailed and supported by affidavits and video; the father responded largely with bare denials, and failed to file confirmatory affidavits from the very people (such as the aunts) who could have supported his account. In such circumstances, courts are entitled to accept the applicant’s version and decide the case on paper.

The SCA upheld the High Court’s core outcome – that a valid customary marriage existed and that Sengadi was HHP’s lawful customary wife – but corrected one overreach. The High Court had gone on to declare the “handing over” custom unconstitutional, even though no one had pleaded or argued that issue. The SCA stressed that courts may not casually strike down customs or laws on their own motion; constitutional issues must be properly raised, necessary to decide, and fully argued by the parties.

For clients and practitioners, the practical messages are clear:

• A customary marriage will not fail just because a particular ritual (such as a formal handover ceremony) did not happen exactly as described in older precedent.
• Courts will look at intention, conduct and community practice: were lobola negotiations concluded, did the families celebrate the union as a marriage, and did the couple live as spouses with family acceptance?
• Registration at Home Affairs is important for record‑keeping, but non‑registration does not automatically invalidate an otherwise valid customary marriage.

In short, if your families and community treated you as married, a court may well agree – with major consequences for inheritance, maintenance, and funeral and decision‑making rights.