Reconciling Lobolo with the Equality Principle: The need to realign official customary law with living customary law of South Africa

1 Introduction

The South African Law Reform Commission has recently taken steps to modernise the fragmented approach to family law in South Africa by proposing the introduction of a consolidated statute regulating marriages.1 Once it comes into operation, the statute will regulate customary marriages, civil marriages, civil unions and religious marriages.2 In respect of the Single Marriage Statute, it provides that lobolo distinguishes customary marriages from civil unions and civil marriages.3 Although lobolo is not the only distinction, it is the only factor outlined therein. This, among others, points to the importance of lobolo to customary marriages and indigenous communities in general. The Recognition Act, which currently regulates customary marriages, refer to lobolo as property in cash or kind, which a prospective husband or the head of his family undertakes to give to the head of the prospective wife’s family in consideration of a customary marriage.4 It is therefore deductible that gender plays an important role in validating lobolo in that only the prospective husband or his family head has a duty to furnish lobolo while only the prospective wife’s family head may,5 receive the lobolo, at the exclusion of all others. This is hereinafter regarded as a statutory gender requirement of lobolo in that the Recognition Act prescribes a gender requirement that must be followed during the lobolo practice.

This discussion evaluates whether the statutory gender requirement can withstand constitutional scrutiny to the extent that it potentially marginalises women in South Africa. This inquiry is guided by the landmark decision of Mabena v Letsoalo,6 and it answers whether the official customary law permits lobolo to be transferred to a prospective husband or his family head by a prospective bride or her family head in consideration of a customary marriage.7 The Mabena decision is important for this discussion because the court relied on living customary law in a matter relating to lobolo, which forms the subject of this paper. Because a comprehensive analysis of the Mabena decision has already been undertaken by several scholars, this discussion only focuses on the impact that this decision may have on the statutory gender requirement and makes necessary recommendations.8 This inquiry is important because it is set in the background of an active reform initiative by the Law Commission, which necessitates an overhaul of family law practices to ensure that they are suited to the needs of contemporary society before incorporation into legislation.

In respect of lobolo, it plays an important social role in civil marriages,9 and it is fundamental in the formulation of customary marriages.10 Over the years, lobolo has survived an onslaught of colonial overreach; however, empirical evidence indicates that it continues to be valued and practised in many indigenous communities across South Africa.11 The continued significance of lobolo was to some extent propelled by the exclusion of lobolo from the repugnancy clause during the pre-democratic era.12 It is however noteworthy that some researchers argue that the lobolo practice is insignificant and has no value in modern societies.13

Another aspect of contestation regarding lobolo is whether its conclusion is essential in validating customary marriages. To this end, some commentators argue that lobolo negotiations constitute a validity requirement and failure, which invalidates the customary marriage.14 However, other commentators dispute this assertion and argue that lobolo merely has a social significance and non-conclusion thereof does not affect the validity of the marriage.15 The former is not preferred because it has far-reaching consequences, which is not the intention of the legislature. It is however noteworthy that a perception exists in some indigenous communities that a customary marriage is not valid if lobolo negotiations are not concluded.16

In respect of the main aim of this discussion, it proposes law reform by, inter alia, repealing the potentially unconstitutional statutory provisions of the Recognition Act that result in the differential treatment of women. To this end, the Recognition Act unjustifiably inhibit women from validly transferring lobolo to a prospective husband’s family in consideration of a customary marriage, which, as shall be seen below, is a violation of women’s human rights. In pursuit of this goal, this discussion is structured as follows. First, an introductory overview is provided in paragraph one. This is followed by a brief discussion of the Mabena decision in paragraph two. This discussion is important because it guides the analysis that follows. Thereafter, an evaluation of the main functions of lobolo is undertaken in paragraph three. This paragraph is fundamental because it highlights the nexus, or lack thereof, between the statutory gender requirement and the functions of lobolo. After this discussion, an evaluation of the impact of constitutional principles is undertaken in paragraph four. Lastly, a conclusion is drawn in paragraph five and a summary of recommendations provided throughout this paper is provided.

2 Mabena v Letsoalo

The facts of the Mabena case are briefly as follows. The deceased, Mr Joseph Mabena, who passed away on 23 April 1994 had along with his two delegates concluded lobolo negotiations with the respondent; The respondent’s mother and the respondent’s uncle.17 During the negotiations, an amount of R600 was agreed upon as lobolo. The deceased had also in 1988 paid R200 towards “damages”18 for the pregnancy of the respondent.19 During the time of his death, Mr Mabena lived with the respondent along with their child in the house he had purchased in Mamelodi, a township in Pretoria.20

Upon the death of Mr Mabena, the magistrate determined, according to the provisions of the Black Administration Act,21 that a valid customary marriage existed between the respondent and the deceased, Mr Mabena. The deceased’s father lodged an appeal against the magistrate’s findings on the basis that he had not consented to the customary marriage, therefore the marriage did not satisfy the necessary validity requirements.22 Furthermore, he challenged the lobolo negotiations, which were concluded in the absence of the respondent’s father. In respect of the latter issue, the respondent presented before the court that her father had deserted his family. In light of this, she argued that living customary law recognises lobolo negotiations concluded in the absence of a male family head.23

Because the marriage was concluded before the Recognition Act came into force,24 the marriage should have complied with the requirements that applied before this statute came into operation.25 As a result, consent from the deceased’s parents regarding the marriage was essential to validate the marriage.26 In respect of this requirement, the court held that there is no reason to hold that an independent adult man is not entitled to negotiate for the payment of lobolo in respect of his chosen bride. Furthermore, the court held that there is no reason to hold that such an independent man requires the consent of his parents to marry. In respect of the second matter, namely, the absence of the respondent’s father during the lobolo negotiations; the court held that the rule that a woman who is head of her family may negotiate for and receive lobolo is not repugnant to the customary law of marriage.27 Consequently, the court determined that it must be accepted that there are instances where mothers negotiate and receive lobolo and consent to the marriage of their daughters.28 As a result, the court dismissed the appeal with costs.

The main implication of the Mabena decision, which is of interest in this discussion, is that the court recognised living customary law standards by validating lobolo negotiations concluded by the mother of the bride. This decision is also important because the court developed customary law in accordance with the spirit, purport and objects of the Bill of Rights.29

However, some commentators have argued that any empirical evidence indicating the actual position under living customary law does not support the living customary law principle applied by the High Court. To this end, Bennett points out that the court recognised the purported living customary law principle because it “was consonant with the requirement of gender equality in section 9 of the Constitution”.30 Although this warrants further discussion, we do not explore this further because this might derail the purpose of this paper. It is nonetheless noteworthy that this decision set an important precedent that the judiciary must recognise and apply living customary law whenever it is called upon to do so and that the judiciary must develop customary law in line with constitutional values.

In light of the foundation laid by the High Court in the Mabena decision, this paper evaluates the Recognition Act’s gender requirement in the definition of lobolo, which side-lines women in South Africa. To this end, official customary dictates that lobolo may only be statutorily recognised if it is transferred by a prospective husband or his family head to the family head of a prospective bride. This marginalises women in that a prospective bride is inhibited from transferring lobolo to the family of a prospective husband in consideration of a customary marriage even in circumstances where the bride is better positioned than her prospective husband. This includes where the prospective bride is in a better financial position allowing her to furnish the lobolo.

This however starkly contrasts the position under living customary law where several cases have been recorded wherein brides or their families have successfully transferred lobolo to families of prospective husbands in consideration of a customary marriage. Because of this differential treatment, there is a glaring lacuna in official customary law and the discussion that follows argues for law reform in respect of the definition of lobolo by the Recognition Act. To achieve this, an analysis of the functions of lobolo is undertaken hereinunder aiming to determine whether gender plays any role in fulfilling these functions. To this end, this discussion highlights the nexus, or lack thereof, between lobolo and the statutory gender requirement. Suppose that this discussion concludes that there is no link between the functions of lobolo and the statutory gender requirement, recommendation is provided, which aims to eradicate the discrimination. This is achieved by proposing a gender-neutral definition of lobolo in section 1 of the Recognition Act. Although a gender-neutral definition is preferred, this should not be read to accommodate same-sex unions because no firm empirical evidence exists regarding the significance of lobolo to such unions.31

3 The purpose and function of lobolo

Knoetze, correctly summarises the functions of lobolo as mainly: (1) contract of sale; (2) counter-performance for the transfer of guardianship over the wife; (3) seeking approval from the ancestral gods; (4) legalising the marriage and legitimising the children; and (5) providing stability to the marriage and to ensure maintenance for the wife after the dissolution of the marriage.32 Olivier, also provides that lobolo serves to

legalise the marriage, to legitimate the children born of the women, to act as a form of compensation in a general sense, to place the responsibility upon her father to support her if it should become necessary, to stabilise the marriage, and to ensure the proper treatment of the wife by the husband and his family. It is clear, however, that the primary function of the lobolo is to transfer the reproductive capacity of the woman to the family of her husband; in other words, there is a direct correlation between (a) the transfer of the lobolo, and (b) the reproductive potential of the woman.33

These main functions are discussed below. It should be noted at the onset that the discussion that follows aims to position the main focus of this paper in its proper context. This discussion crucially highlights the link, or lack thereof, between the functions of lobolo and the statutory gender requirement. The overarching questions that this discussion answers are as follows: (i) Is the statutory gender requirement important in fulfilling the functions of lobolo? and (ii) Do the traditional functions of lobolo suit the needs of contemporary indigenous communities?

First, this analysis focuses on the economic function of lobolo. In the main, this function holds that lobolo is generally intended to compensate the wife’s family head and to place the responsibility of support upon him in case of dissolution of the marriage. It is plausible that the economic function of lobolo is rooted in the traditional socio-economic and political incapacitation of women in indigenous communities. This incapacitation emanates from the patriarchal nature of African Customary law, which only recognised male family heads.34 This was concretised in legislation, which relegated women to perpetual minors.35 As a result, male family heads were obliged to support their immediate and, at times, extended family members. Therefore, lobolo was important because it transferred the family head’s financial responsibility over a female dependent to the prospective husband. Additionally, lobolo compensated the family head for the expenses he incurred while taking care of the bride while under his care. Lastly, lobolo was also security enabling a family head to support the bride if the marriage was dissolved.

In light of the above, it may be surmised that the statutory gender requirement of lobolo was justifiable because of the nexus between lobolo and gender. In summary, lobolo facilitated the protection of women’s interests by ensuring their sustenance during the existence of the customary marriage as well as after its dissolution.36 However, it is debatable whether this function applies in contemporary societies because of the recent shift in the socio-economic and political status of women in South Africa.

The recent effort towards financial literacy has been pivotal in emancipating women.37 Although the socio-economic and political inequality between men and women continues to exist in some indigenous communities, it is noteworthy that women are presently better positioned in some respects.38 This is also set to improve further because of measures such as affirmative action, which promotes the interests of women and other previously disadvantaged groups.39 Because of the shift in respect of the socio-economic and political status of women, we argue that the economic function of lobolo has thus become obsolete. Women are no longer dependent on their male counterparts; therefore, the economic function of lobolo that justified the statutory gender requirement no longer aligns with the needs of a changed society.

Secondly, it is widely held that lobolo serves a legal function. Many debates have arisen regarding this function with some commentators arguing that lobolo constitutes an essential feature of customary marriages, which validates the marriage.40 However, other commentators reject this assertion and argue that lobolo does not affect the validity of customary marriages.41 The divergence of views is largely fuelled by the legislature’s silence on this matter along with the seemingly contradictory decisions by the judiciary regarding this area of indigenous law. Much of the debate regarding the legal function of lobolo is developed from the open-ended requirement that customary marriages must be “negotiated and entered into or celebrated in accordance with customary law”.42 In respect of this debate, the Law Commission has recommended that

Lobolo should not be deemed essential for the validity of customary marriages. If parties wish to give lobolo, [they] should be free to do so, but payment or non-payment will have no effect on the spouses’ relationship or on their rights to any children born of the marriage.43

Thirdly, lobolo also serves a spiritual function. To this end, it is put forward that lobolo facilitates approval from ancestors in the marriage process and unites the two kinship groups. Customary marriages starkly contrast civil unions and civil marriages in that customary marriages involve two kinship groups from the period of formation until the dissolution of the marriage.44 Lobolo unites the living and dead members of the two kinship groups. This also gives rise to the belief in the indissoluble nature of customary marriages either through death or divorce.45

Lastly, it is also held that one of the main functions of lobolo is in relation to reproduction. To this end, it is argued that lobolo transfers the reproductive capability of the bride to the family of her husband.46 However, as pointed out above, the recent socio-economic and political reforms have freed women from societal expectations that relegated them to childbearing and child-rearing roles.47 This has led to a growing number of young adults opting not to reproduce.48 Because of these developments in society, the paper then questions the current applicability of the reproductive function of lobolo in contemporary society. In this regard, we inquire whether the reproductive function applies where the bride and/or her husband do not desire to procreate or where either (or both) of the prospective spouses is barren. In such instances, the paper thus posits that the archaic reproductive function of lobolo no longer applies in a contemporary society where reproduction no longer constitutes the main aim of marriage.

In summary, it has been highlighted that traditionally there was a rational link between lobolo and gender. This link was most pronounced in the reproductive and economic functions of lobolo; the latter of which ensured the protection of women’s interests. However, of late society has undergone seismic change, which has culminated in the elevation of the socio-economic and political status of women in indigenous communities. This change in status no longer warrants the specific protection of women through practices such as lobolo. In some instances, women are now better positioned than men and in a certain respect, some women have acquired the family head role.

Despite the reforms in indigenous communities, empirical evidence indicates that lobolo continues to be sacrosanct in most indigenous communities. To this end, a belief exists in some communities that marriage is not valid if lobolo negotiations are not concluded. Some researchers postulate that lobolo no longer serves the traditional functions and it continues to be practised because it is regarded as an essential feature of the culture of indigenous people across Southern Africa. It is in this context that the paper now questions the barrier imposed by the definition of lobolo by the Recognition Act on women and the impact of the inhibition on the right to practice one’s culture.

4 Constitutional consideration

The Constitution is the supreme law of South Africa and every law, including customary law, inconsistent with it is invalid.49 One of the principles that it safeguards is the right to equality and non-discrimination.50 Discrimination is also prohibited by the Promotion of Equality and Prevention of Unfair Discrimination Act,51 which was enacted to give effect to the Constitution’s prohibition of unfair discrimination. Although this statute has been instrumental in ensuring the protection of human rights for all South Africans, challenges have been experienced concerning customary law, which the judiciary has on several occasions been called to pronounce.52

It should be pointed out that customary law is distinguished between living and official customary law. Living customary law is preferred over official customary law because it represents the lived experiences of indigenous people.53 On the one hand, living customary law constantly evolves to meet the needs of the respective community, which it regulates. On the other hand, official customary law, which is the written customary law found in textbooks, statutes and other sources, is divorced from the needs of indigenous people and it requires a drawn-out legislative process to reform.54 Therefore, when interpreting and applying the rigid rules of official customary law, it is important to take note of the political, judiciary and administrative context in which it was developed and applied.55

In respect of the differences between living and official customary law, the Mabena decision was instrumental in pronouncing the need to rely on living customary law in so far as it reflects the lived experiences of indigenous people.56 This decision is important for this discussion because of the glaring lacuna in official customary law. It has been highlighted that the Recognition Act inhibit a bride or her family from transferring lobolo to the family of a prospective husband in consideration of a customary marriage. This starkly contrasts the position under living customary law where several instances have been publicised where women have validly transferred lobolo to the families of prospective husbands in consideration of customary marriages.57

The widely publicised case of Zodwa “Zodwa Wabantu” Libram, is an example.58 In this case, Libram paid lobolo to the family of her ex-fiancé Ntobeko Linda in 2019 in consideration of a customary marriage. Although the parties did not end up concluding the customary marriage, the lobolo negotiations were widely reported as reflecting the reform of living customary law that has substantially evolved to meet the needs of a changed society.59

The aforementioned example is not an isolated phenomenon, it represents a wider shift in perception towards lobolo in indigenous communities in South Africa and across various other Southern African countries.60 This shift is propelled by, among others, the changed perception of lobolo by customary law practitioners who have pointed out that lobolo is patriarchal,61 and it perpetuates gender-based violence among married couples.62 These challenges regarding lobolo may be eradicated by aligning official customary with living customary law, which represents a forward-looking position that balances culture and the socioeconomic and political demands of the prevailing society.

5 Recommendations and conclusion

The article has highlighted the shift in the socio-economic and political position of women in indigenous communities in South Africa and select Southern African countries. This shift has led to law reform in respect of living customary law specifically in respect of the lobolo practice to accommodate the changed circumstances of women. In this regard, living customary law has on several occasions validated lobolo transferred by a bride to the family of a prospective husband in consideration of a customary marriage. This change has however not been reflected by official customary law where the Recognition Act prescribes a gender requirement, which entails that a prospective husband’s family has a duty to transfer lobolo while the prospective bride’s family may receive the lobolo, at the exclusion of all others.

This position under official customary law does not reflect the needs of a changed society and has been argued to amount to unfair discrimination of women because of the differential treatment. To remedy this discrimination, the paper proposes that the legislature amend section 1 of the Recognition Act by introducing a gender-neutral definition of lobolo, which will align official customary law with living customary law and meet the constitutional muster.

Because of the unique position of customary law, a distinction exists between living and official customary law. On the one hand, living customary law is always undergoing development because it continually changes to suit the changing needs of society. On the other hand, official customary law reflects ossified rigid rules of law that are detached from the realities of indigenous people. Regarding the latter, law reform requires, in most instances, a long-drawn-out legislative process. In light of this, the paper proposes that the legislature amend the definition of lobolo in section 1 of the Recognition Act to read as follows: Lobolo means the property in cash or kind, whether known as lobolo, bogadi, bohadi, xuma, lumalo, thaka, ikhazi, magadi, emabheka or by any other name, which a prospective spouse or the head of his or her family undertakes to give to the head of his or her prospective spouse’s family in consideration of a customary marriage. This reform exercise must be finalised before the consolidation proposal by the Law Commission is incorporated into law.