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Lobola in South Africa

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Lobola in South Africa

Lobola in South Africa

Introduction to Lobola in South Africa

A customary law marriage and the payment of Lobolo or ilobola, refers to the “bride price” or “bride wealth”. The practice of Lobolo is not only revered in South Africa but exists in other countries on the African continent such as Zambia, Botswana and the Democratic Republic of Congo. 

This tradition involves the unification of two families through the customs and usages observed by the parties. It involves the transaction of gifts in the form of cattle, cash or kind given by the prospective husband (or his representatives) to the prospective wife, in consideration of the intended marriage.

Legislation, found at section 1 of the Recognition of Customary Marriages Act 120 of 1998 (“RCMA”) defines customary marriage as “a marriage concluded in accordance with customary law”. 

Our legislation has specifically refrained from setting out specific practices and rituals as aids in establishing the validity of a customary marriage as there are different practices within various tribes.  

The RCMA came into operation on 15 November 2000 with the aim of regulating the implementation of customary marriages whilst upholding and preserving the practices of the people within the Republic of South Africa. 

Cultural Significance and Historical Context

The historical overview of customary law comprises of four periods namely: –

Colonialism (1652 – 1909);

Union (1910 – 1947);

Apartheid (1948 – 1990); and

Transitional period (1990 – 1996).

Colonialism (1652 – 1909)

During 1652 – 1909 the British Colonisers employed either direct or indirect rule to over the traditional leaders and the ordinary people residing under colonial rule. 

Direct rule refers to method of assimilation used by the British on the Natives of the Republic under English Common Law. 

Indirect rule refers to colonial policy where the British attempted to legislate and regulate African Customary Law through the establishment of native administrations, the formation of dispute resolution fora such as native courts with the implementation of taxes payable by the citizens for the administration of the relevant tribunals and courts.

The Settlers attempted to apply, regulate, or recognise that Customary Law was at all times driven by the outcomes that would best suit the British Crown’s economic objectives. This objective was reached by subduing native people, and using their indigenous systems, resources, and skills for gain of the British.  

Union (1910 -1947)

Unionisation resulted in the formation of the British Colonies such as the Cape, Natal, Orange River and Transvaal. During this time very little attention was paid to Customary Law and as a result, it was easier to change legislation. 

Due to the migration of Bantu people to urban areas, for employment and land, legislation such as the Natives Land Act 27 of 1913 was instituted to restrict black people from access and ownership of land, with the exception of land in selected scheduled areas.

Thereafter the Black Administration Act 38 of 1927 (“BAA”) was enacted and in terms of this legislation the Governor General was empowered to order the removal of tribes, reshuffle tribes, and confer jurisdiction on any native chief or headman for the purposes of judging and punishing natives for offences committed within said jurisdiction. 

The BAA prescribed State Courts, such as the Native Commissioner’s Court and Native Appeal Court, (who could apply Customary Law), would do so subject to public policy or natural justice. 

Here Customary Law was interpreted through Common Law and the infiltration of western values which ultimately distorted Customary Law.

Apartheid (1948 – 1990)

During this period the use of the indirect rule was implemented by the British. This resulted in the formalisation in legislation promulgated by the ruling party of the day, the National Party(“NP”). 

In the apartheid era, judicial precedent found in Ex parte Minister of Native Affairs: In the case re Yako v Beyi  1984 (1) AD 388 it stated that the standard approach to Customary Law was founded on an analysis that in order for Customary Law to be recognised and applied, the courts would have to consider the matter on a case by basis.

It was decided that exceptional circumstances would have to be prevalent for the implementation of Customary Law. 

Transitional Period (1990 – 1996)

During this period, Customary Law was intensely debated, and questions arose regarding the Constitution and the Bill of Rights, particularly the Equality clause and its effect on the long history of patriarchal rule entrenched in customary law.

Legal Aspects and Framework in South Africa

In South Africa, customary marriages are regulated by the RCMA which provides legal recognition to the indigenous customs and traditions of South African citizens. Legislation sets out the requirements that must be complied with, which shall be expanded on below.

Where parties seek to register their customary marriage, it is imperative that they do so within three months of entering the customary union. 

Our law permits Polygamous Customary Marriages with the requirement that the requisite consent in terms of section 7(6) is obtained, and an application is brought to the High Court setting out the matrimonial property system of the incumbent marriage.

It is important to note that the legal consequences of all Customary Marriages are by default, a Marriage in Community of Property. 

Should spouses elect to be married out of community of property they will have to execute an Antenuptial Contract prior to the Customary Marriage. 

We advise that couples which seeking to register this contract do so under legal advice of one of our trained professionals.

Current Societal Views and Practices

As previously mentioned, there are different terms ascribed to customary marriages or Lobolo and within communities’ people either practice the concept of Theleka (the withholding of a wife by her father or guardian from her husband to coerce him to pay the outstanding Lobolo) and those that do not

In case law found at Fanti v Boto and Others (16451/2007) [2007] ZAWCHC 78 the term Theleka refers to the practice of the intended wife’s father’s right to “impound” the wife and her children (if there are any,) until the intended husband makes a further payment”. 

This tradition cannot be unilaterally affected and stems from an agreement between parties.

The practice of Theleka, whilst attaining the objective of completion of the Lobolo, places the court with the burden of deciding whether the failure to complete the Lobolo shall ultimately affect the validity of the marriage. 

With reference to the Fanti case, it was settled that parties are permitted to set and make payments within a Customary Law marriage but that the neglect and/or non-payment of Lobolo should not impede the validity of said marriage.  

Challenges and Legal Debates

As previously mentioned, a system of uniform rules as it pertains to Customary Marriages cannot be ascertained as the customs and usages of people vary. This also means that there are communities that practice matrilineal or patrilineal social organisations.

One major debate in Customary Law marriages arose where the court struggled to ascertain the requirements for a valid Customary Marriage – particularly where there a dispute arose between parties as to the fulfilment of the requirements as set out in the RCMA. 

In Lerato Sengadi v Robert Tsambo (244/19) [2020] ZASCA 46 (30 April 2020) the validity of the Customary Marriage was questioned. Section 3(1) sets out the requirements as follows:

(a) The prospective spouses-

i. Must be above the age of 18 years; and

ii. Must both give their consent to be married to each other under Customary Law; and

(b) The marriage must be negotiated and entered into or celebrated in accordance with Customary Law.

Firstly, it was decided that Customary Law must be interpreted with the “spirit and purport and objects of the Constitution, furthermore it is entrenched in the Constitution that the courts must apply Customary Law when dealing with Customary Law disputes. 

There exists another legal debate – that of the requirement that it be compulsory to register Customary Marriages. 

It was argued that only registered Customary Marriages should be afforded protection and recognition. 

The South African Law Commission (“SALC”) referred to this in its issue paper and found that the enforcement of registration of Customary Marriages would diminish the rights of those who had entered into an unregistered union.  

Furthermore, the court cases of Kambule v The Master (85) [2007] ZAECHC 2; [2007] 4 ALLSA 898 (E) (8 February) and MG v BM (10/37362) [2011] ZAGPJHC 173; 2012 (2) SA 253 (GSJ) (22 November 2011) confirmed that Customary Marriages satisfying the requirements for validity in terms of the RCMA will not be invalidated due to lack of formal registration.

Conclusion

The Customary Law of marriages, as seen throughout the ages, has been significantly marginalised, denying many South African indigenous people the right to practice, develop and collate the laws with regard to the changing of the times.

Customary Law, particularly as it pertains to marriages, is of great importance to indigenous people. It not only connects people from various tribes and tongues but also connects people to their ancestors and the land which they inhabit and own. 

Ultimately, it sets the tone for the prosperity of their lineage – both now and in the future.

Read More:

What Are the Requirements for a Valid Customary Marriage?

Balancing Customary and Civil Marriages in South African Divorce and Family Law

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