Precedent, waiver and the constitutional analysis of handing over the bride [discussion of Sengadi v Tsambo 2018 JDR 2151 (GJ)]
Author Fatima Osman
Affiliations: B Bus Sci (Law) LLB LLM PhD, Senior Lecturer, Department of Private Law, University of Cape Town
Source: Stellenbosch Law Review, Volume 31 Issue 1, 2020, p. 80 – 90
The Sengadi v Tsambo (“Sengadi”) judgment was a high-profile case that highlighted the difficulties experienced by courts adjudicating the existence of a customary marriage. The note argues that living customary law should be instructive in the enquiry and courts should ascertain and give effect to the living customary law on the matter. Previous court judgments may be a source of law but should not be used as precedent as it risks distorting and ossifying the law. Furthermore, courts should be cognisant of – and give effect to – the nuanced manners in which people experience customary law, such as the waiver of some requirements of a customary marriage. The note further explores whether ubuntu may be useful in determining whether to recognise a customary-law marriage.