|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
South African Law Commission |
[Database Search] [Name Search] [Previous] [Next] [Download] [Help]
4.1.1 Marriage in pre-colonial Africa, in common with marriage in other pre-industrial societies, had certain typical features that distinguished it from marriage in the modern world. First, customary marriage was a matter of family, rather than individual concern.[0] This feature can be attributed to the basic functions of African marriage: to propagate families, provide domestic labour and establish political and economic alliances.
4.1.2 Secondly, African marriages were private arrangements needing no intervention by an outside authority to be deemed valid.[02] The two families had considerable freedom to agree on terms and conditions that would suit their own needs and the exigencies of the particular situation. Thirdly, African marriage was processual in the sense that it had no precise moment of beginning or end. Instead, the spouses' relationship matured and strengthened over years, gaining definition with the birth of children and payment of bridewealth. Death of a spouse did not necessarily terminate the union, since the families could arrange its continuation through levirate or sororate unions.[03]
4.1.3 The flexibility and ambiguity of customary marriage would not have been regarded as a problem in the close-knit communities of the past. Where people knew one another, proof of marriage was a simple matter. A union could be verified by referring to the evidence of go-betweens and family elders and the public rituals of negotiation and consummation. In modern society, however, married couples are more mobile and families and communities are less involved in their relationship. In these circumstances it is more difficult to establish the existence of a customary marriage and, as the National Human Rights Trust said, there are more occasions when marital status has to be precisely fixed.[0]
4.1.4 Once it is accepted that marriage is relevant not only to the parties and their immediate community but also to society at large, then the marriage relationship must be defined for more general purposes. Hence, although all groups in South Africa should have the freedom to pursue the dictates of their culture or religion, certainty must now be brought to marital status.
4.1.5 Inevitably, the state is involved in defining what is meant by customary marriage. It is therefore bound to impose certain minimum requirements for deciding what will constitute a valid union. As will be apparent below, the Commission had no difficulty in recommending that the spouses' consent should be the sole requirement for determining a customary marriage and that features typical of customary marriages - lobolo, wedding rituals and parental approval - should be optional. Thereafter, however, certain problems became apparent
.
4.1.6 The first problem - raised indirectly by the Women's Lobby - was one of terminology. The Lobby said that the terms `civil' and `Christian' marriage should not be used interchangeably, because a Christian marriage is a religious form of marriage which constitutionally has no greater recognition than Muslim, Jewish or Hindu unions. The Commission agreed. It felt that, because we were working towards a single type of state approved marriage, the formerly privileged status enjoyed by the civil or Christian unions will disappear.
4.1.7 State approved marriages presuppose a set of minimum requirements. Provided that these requirements are fulfilled, the form of the union could be civil, Christian, customary, Muslim, Hindu, etc. Such a fundamental change in the law should perhaps be reflected in a new term that would describe the basic type of marriage. But, without a broader basis of public support, the Commission drew back at the prospect of coining a new term.
4.1.8 The House of Traditional Leaders in the Eastern Cape then raised the problem of how a customary marriage was to be distinguished from any other type of union.[0] If consent is the only requirement for marriage, what would make a particular union `customary'? Although a purely consensual union would be a valid marriage, how should it be characterized as civil, Christian or customary?
4.1.9 This problem could be solved if the spouses themselves were obliged expressly to declare the nature of their union. In practice, however, it would be difficult to decide when and to whom this declaration should be made. (Moreover, declarations coming from interested parties are always suspect.) Alternatively, the nature of a marriage could be inferred from typically African features, such as the existence of a lobolo agreement, a wedding ritual or parental approval, but who would make this inference and when?
4.1.10 The answer might be to require the officer registering the union to decide whether it was a customary marriage (and to note that finding on the registration certificate), but even this is not a perfect solution. In the first place, the duty could be unduly burdensome, since registering officers would be expected to draw conclusions from ambiguous and complex factual situations.
4.1.11 In the second place, the possibility exists that spouses may never encounter a registering officer. The Commission will later be recommending that, even if a customary marriage is not registered, it should still be deemed valid.[0] Purely consensual, culturally indeterminate unions may therefore come about. Would the husband of such a union be entitled to take additional wives or would he be bound to remain monogamous?
4.1.12 Another problem arose from the relationship between informal (or `de facto') unions and purely consensual marriages. If the presumption in favour of marriage is invoked, parties to a cohabitation might find themselves deemed to be married.[0] In this case, how should the nature of their union be determined?
4.1.13 In order to define customary marriage it is recommended that legislative provision be made for a minimum set of essential requirements, chief amongst which should be the consent of the prospective spouses. In most cases the ‘customary’ nature of a marriage may be inferred from the inclusion of certain typical practices, such as a lobolo agreement, a traditional wedding ceremony or the involvement of the spouses’ families. But since these differ among the various systems of customary law in South Africa, it is accordingly recommended that any legislative provision adopted should display a flexibility that allows for groups to marry according to their own customary laws.
4.1.14 Registering officers should be required to explain to prospective spouses the difference between the two forms of marriage (namely, the different consequences and implications), and then endorse the fact that the couple heard and understood the explanation on the marriage certificate.
4.2.1 In all modern legal systems, the most basic requirement for determining marriage is derived from the individual's freedom to decide when and whom to marry. Spousal consent is therefore the central requirement of marriage.
4.2.2 This principle has its origin in eighteenth-century Europe, where marriage came to be considered a consensual union ratified by the Church or state. Colonial courts introduced this idea to Africa. They held that, in so far as a customary marriage was to be recognized, it depended for its validity on the consent of the main parties, namely, the bride, the groom and the bride's guardian.[0]8 Thus Zimande v Sibeko 1948 NAC 21 (C) at 23 held that a marriage procured without the volition of one of the parties was `repugnant to our civilized conscience'. See, too, Zulu v Mdhletshe 1952 NAC 203 (NE) and Mngomezulu v Lukele 1953 NAC 143 (NE).
4.2.3 Under pre-colonial customary law, however, where marriage was an agreement between kin groups rather than individuals, consent of the spouses would strictly speaking have been unnecessary. Girls might have been promised as brides, possibly even before they were born.[09] Further, where a kinship system favoured sororal polygyny, a young girl might automatically have followed the path of her older married sister, if the latter were to die young or prove barren.[010] In short, a woman's marital destiny could be determined by lineage politics, kinship amity or simply the need to recoup lobolo that her guardian had already paid over to contract other marriages.[011]
4.2.4 To suggest that a bride's consent was irrelevant in customary law, however, would oversimplify the issue. Forced marriage could never have been common, since the ideal union was the culmination of a youthful romance, sealed by a lobolo contract.[012] Hence, the approved way of negotiating marriage assumed a period of courtship by the prospective spouses. Once they had decided to marry, the boy was supposed to secure his father's approval, and then the girl's family could be approached.[013] When the terms and conditions of lobolo had been settled, the families would be regarded as bound by an affinition agreement, which would be ratified by delivery of one or two beasts as earnest.[014]
4.2.5 Underlying this so-called `regular' form of marriage was a general awareness that unhappy matches led to domestic conflict. The elaborate rituals of courtship, the lengthy marriage negotiations and the wedding ceremony itself gave the bride-to-be many opportunities to voice her doubts and objections.[015] Besides, young people had socially approved methods for getting their own way. If a girl's guardian were unreasonable in insisting on a particular union, she could appeal to her uncles or she could elope to her chosen lover.[016] A determined suitor, on the other hand, could `abduct' his bride (with or without the connivance of her father).[017]
4.2.6 Although consent was highly relevant in customary law, women were still expected to be obedient and to make the best of their circumstances.[018] Thus, by modern standards, it would not be easy to judge whether marriage was voluntarily contracted, since a bride's acquiescence could well mask reluctance or outright refusal. Customs that sanctioned mock abduction as a prelude to marriage, and others, such as the requirement that women should pretend indifference to suitors or that they should ritually `weep' on the wedding day, further obscured the reality of their consent.[019]
4.2.7 Colonial governments paid little attention to these social nuances. They immediately took action to ban forced marriage.[020] In Natal and the Transkeian Territories, forced marriages were made criminal offences,[021] and, where no specific legislation was passed, the courts refused to give effect to such unions on policy grounds.[022] Child betrothals, too, were declared to be contrary to public policy and unenforceable,[0] although in this case, if the deficiency of consent were later cured, the union could become a valid marriage.[0]
4.2.8 Today, no one is likely to dispute the requirement that spouses freely consent to their marriage. This principle rests on the freedom to marry, which is well established in international human rights law,[0] public policy[0] and over a century of precedent and legislation in South Africa.[0]
4.2.9 Now it is more important to consider the implications of insisting on spousal consent as a minimum requirement for all marriages. The first, and the most obvious implication, would be to deem any involuntary union a nullity. Whether any further sanction should be imposed is doubtful. Although the Office on the Status of Women (Northern Province) suggested that marriages arranged for persons under 21 should be constituted criminal offences, wider support for this proposal seems unlikely.
4.2.10 The second implication would be to consider the most appropriate means of ensuring that the spouses give a properly informed consent. Colonial courts and legislatures, for instance, paid no attention to the age at which individuals could be expected to formulate a mature opinion. Ages fixed under the Marriage Act[0] were assumed to apply only to civil or Christian unions.[0] This issue will be considered in detail below.[0]
4.2.11 The third implication is how to determine whether the spouses genuinely consented to their union. Several respondents to the Issue and Discussion Papers dealt with this issue. The Gender Research Project (CALS), for example, said that the process of negotiating marriage demands no more than that a woman acknowledge she knows the man who is proposing. Her consent is then inferred. To overcome this problem the Gender Research Project (and Dr H M de Vetta) suggested that marriage officers (or officials registering marriages) should include in the marriage formula questions about each party's free consent.
4.2.12 Participants in the Law Commission's Provincial Workshops dwelt on a somewhat different problem: the non-consenting groom. They discussed what could be called `acceptable coercion', ie, cases where an individual's consent is either deemed irrelevant or is inferred from the fact of that person's compliance with custom. In the Northern Province, for example, it was stressed that a traditional ruler or his son may have to marry the wife chosen for him by the community; if he refused, he would have to abdicate.
4.2.13 The Northern Province Workshop agreed that it would be futile to try to ensure `pure unfettered' consent by legislation, because there are too many reasons why people act or refrain from acting. This point is taken. Even in common law, what constitutes duress sufficien to invalidate consent is still not settled.[0] The Commission felt that legislation would be most effective in fixing a specific age at which individuals may be presumed mature enough to decide their marital destiny.[0] Although there was no harm in requiring marriage or registering officers to establish consent, such a requirement was less likely to be effective on its own.
4.2.14 A final implication of requiring consent, one adverted to by the National Legal Profession Workshop , was deciding when final consent should be established. If we bear in mind that the marriage negotiations may take several weeks (if not months), then we may have to ask when a potential spouse could withdraw consent and whether consent should refer to all the rituals entailed in the marriage process. The answer to these questions seems to be that, if the marriage is formally registered, the most convenient time for settling the issue of consent would be at the date of registration.
4.2.15 It is recommended that the main requirement for a valid customary marriage should be the consent of the spouses and that registering officers be required to determine the fact of a spouse's consent.
4.3.1.1 The giving of property by a husband or his guardian to the wife's family is probably the most important element of a customary marriage. The Commission had considerable difficulty in finding a word suitable to express this institution. It was reluctant to use terms, such as lobolo, bogadi, bohali, munywalo and ikhazi, partly because they carried particular connotations and partly because selection of one of them would give the impression of favouring a particular African language. The Commission therefore adopted the English word `bridewealth', a term commonly used in scholarly literature.
4.3.1.2 Many members of the public objected to `bridewealth'. Dr A M S Majeke (University of Fort Hare) said that it could not do conceptual justice to the institution of `lobola'. `Bridewealth' signifies a transfer of wealth, whereas `lobola is a blood contract, a mandatory and imperative sine qua non condition for any marriage in indigenous African communities'. The Commission was eventually persuaded to abandon ‘bridewealth’. From the other options available - brideprice, marriage goods, marriage price, etc - the word `lobolo' seemed the best. While not a perfect rendering of isiZulu, isiXhosa, siSwati, isiNdebele or any other Nguni language `lobolo' has the merit of being firmly established in the lingua franca of southern Africa (as far afield as Namibia and Zambia).[0]
4.3.1.3 Although lobolo was synonymous with marriage in all the South African systems of customary law, colonial administrations frowned upon the practice, which they thought represented the purchase of a wife.[0] On this understanding, attempts were made to ban lobolo.[035] The idea that wives were being bought in this crude commercial sense has now been exposed as a fallacy,[0] and in general twentieth-century anthropology has encouraged a much more positive interpretation of lobolo.[0] Admittedly, marxist theory contended that it was a mechanism whereby seniors could preserve their dominance over juniors and women,[0] but anthropologists of the functionalist school showed that lobolo was no more than a consideration for a wife's reproductive potential.[0] As such, it was a quid pro quo that compensated the wife's family for loss of a daughter.[0]
4.3.1.4 According to this more sympathetic view, lobolo worked to stabilize marriage[0] and to protect wives,[0] a view supported by the rule that husbands who mistreated their wives were to be penalized when claiming return of lobolo on divorce. Some writers have gone so far as to say that lobolo was `the Bantu woman's charter of liberty'[0] and that it benefited women by providing a public measure of their worth.[0]
4.3.1.5 Functionalism also stressed the ritual significance of lobolo by showing how it bound families and their relations to the ancestors,[0] a view shared by the Rural Women's Movement and the Law Commission's Workshop in the Western Region. Indeed, R W Skosana said in response to the Issue Paper that abolishing lobolo would be an assault on African religion. This religious dimension is apparent in the practice of segregating property used for marriage from ordinary trade goods. Thus, in some communities, lobolo livestock are withdrawn from the general economy into a closed system of marital transactions.[0]
4.3.1.6 The problem with all these functionalist arguments is deciding how to measure the `success' or viability of a social practice. As Dr H M de Vetta pointed out, `some good things can be found in virtually any bad system. And even then, their goodness may, more often than not, be simply a matter of viewpoint or even of wishful thinking.' This observation is especially relevant when lobolo is considered in historical context. No matter how beneficial the institution may have been in the past, changes in the broader social and economic system have inevitably affected its contemporary practice.[0]
4.3.1.7 In reaction to the introduction of a capitalist economy, for instance, the cattle and other goods formerly reserved for marriage transactions acquired a new value, measurable against cash and consumer goods. Livestock lost its special symbolic quality,[0] and alien imports, because of their rarity and cost, were assimilated to the category of marriage goods. Nearly everyone now gives cash or a combination of cash and livestock as lobolo.
4.3.1.8 With changes in the composition of lobolo came changes in function.[0] No doubt people at first resisted commercialization of the institution, but the general economy had an irrevocable influence. Hence, the amounts paid in lobolo increased enormously.[0] People say that the bride's family must be compensated for their expenditure on her education.[0] It is probably true that a feeling of reciprocity was inherent lobolo - that it should be used by the bride's family to buy gifts and to host the wedding[0] - but families had a strong temptation to profiteer. The danger of this tendency was to encourage men, who cannot afford the sums asked, to enter into informal unions, which in turn undermined the entire institution of marriage (and rendered offspring illegitimate).[0]
4.3.1.9 Moreover, people charge lobolo for their daughters simply because they themselves had to pay it for their own marriages, and, of course, to settle inherited marriage debts.[0] Guardians have a plausible reason for satisfying their immediate economic needs and husbands can justify their refusal to pay maintenance for wives and children on breakup of marriage.[0] The property received by the bride's parents, especially when it is cash rather than cattle, is no longer being kept as financial security for the divorced or widowed wife. Instead, it is being spent on day-to-day living expenses.[0]
4.3.1.10 The Gender Research Project (CALS), for example, found that most of the cash is used by parents to pay for the education of other siblings or to improve their households by acquiring new furniture. Lobolo is therefore not available to support a wife and her children if the marriage breaks down.[0] Thus, while people interviewed by the Gender Project were aware that lobolo could be returned, none of them had actually seen this happening.
4.3.1.11 In communities that are desperately poor, lobolo seems a profligate practice.[0] Nevertheless, research by the Gender Research Project (CALS) confirmed that needy families still feel obliged to persist in the practice. No actual transfer of property need take place, which seems to suggest that lobolo is important primarily to give a sense of validity to the marriage and to incorporate parents and kin groups into marriage negotiations.[0]
4.3.1.12 These views were confirmed by the Department of Welfare and Population Development, which said that lobolo still gives a sense of linking the married couple to the ancestors of their families and legitimating children.[0] What is more, through the laborious process of exchanges needed to arrange the terms and conditions, lobolo binds cross-tribal marriages. Similarly, through the two families' slow process of negotiation, lobolo safeguards against impulsive behaviour. The Department therefore felt that the institution warranted a significant role in the validation of marriage.
4.3.2.1 Lobolo currently enjoys a specially protected status in South African law. Unlike other customary institutions, the courts may not declare it contrary to natural justice or public policy.[0] This dispensation, which dates from the 1927 Black Administration Act,[0] gave effect to the more tolerant views put forward by functionalist anthropology. Now it could be said to reflect the constitutional guarantee of freedom of culture.
4.3.2.2 None the less, it is commonly argued today that lobolo leads to the subordination of women.[0] Thus paying lobolo is said to be tantamount to buying wives (a charge reminiscent of colonial times).[0] That lobolo seems to function as the purchase price for a wife is largely due to its commercialization.[0] Dr H M de Vetta, for instance, said that it should be regarded as a sale rather than a `token of appreciation' when parties haggled over the amount or when the amount to be paid was fixed in advance. Similarly, Adv J Y de Koker noted that, although the original purpose of lobolo was not to humiliate, denigrate or objectify women, it now serves to strengthen the authoritative position of husbands.[0]
4.3.2.3 In view of the many objections to lobolo, should the state now intervene to prohibit or at least control the practice?
4.3.2.4 Paying lobolo does not directly involve discrimination against women, in such a way as would constitute an infringement of s 9 of the Constitution. After all men have to pay, not women. Hence, any contention of direct discrimination would fail. An argument of indirect discrimination (which is prohibited by s 9(3) of the Constitution) is also unlikely to succeed. Indirect discrimination suggests that, although a practice appears gender-blind, the way in which it operated over time worked to the detriment of women.[0] Again, however, it would be impossible to demonstrate that payment of lobolo was the condition precedent to the unfavourable treatment of wives, especially in view of the substantial literature claiming that lobolo functions to benefit women.
4.3.2.5 Instead, it seems that the current objections to lobolo go to matters of symbolism and interpretation. As R W Skosana remarked, when a husband gives his wife a ring, is he buying her? Lobolo has a concrete effect on women's rights and freedoms only in the way that it may bind them to unwanted marriages. If a wife seeks a divorce, her family is theoretically obliged to return lobolo, and, rather than do so, they may force her to put up with an unhappy relationship.[0] The objection of undue pressure cannot be remedied by legislation, however. Women have the freedom to end their marriages when they wish, and the law cannot control all economic and social circumstances that might compel them to remain married.[0]
4.3.2.6 In summary, opinion on the value of lobolo in modern society seems to be divided. Women interviewed by the Gender Research Project (CALS), for instance, could not agree on the effect that lobolo had on their status. Some claimed that it dignified them; others said that they were disgraced by being treated in the same way as property. We must also appreciate that, notwithstanding economic and social abuses, few people would want to see lobolo abolished. (Only the Rural Women's Movement and S S Nkosi suggested restricting the amount.)
4.3.2.7 Lobolo is a remarkably durable institution that has strong appeal as a symbol of African cultural identity.
`Lobola ... is the framework that people use to express and to bring about complicated changes in terms of relationships and deep changes in terms of emotional realities, values, attitudes and concepts. It is also the language that the ancestors understand and bless.'[0]
Several studies indicate that people remain deeply attached to the practice whatever its drawbacks.[0] This is a situation where the legislator would be advised to refrain from interfering. Any attempt at regulation would be almost impossible to enforce. Past efforts to prohibit the giving of lobolo or to restrict the amount payable proved easy to circumvent:[0] it was simply paid in forms other than cattle or cash and pre-marriage gifts were deliberately inflated.[0]
4.3.2.8 The giving of lobolo should not be prohibited nor should any restrictions be imposed on the amount payable.
4.3.3.1 Certain traditional leaders who responded to the Discussion Paper (the Houses of Traditional Leaders in the Northern Province and Eastern Cape) together with the Law Commission's Workshop in Mpumalanga felt that lobolo should be treated as an essential requirement for the validity of customary marriages.[0] They reflect the view of most Africans, that marriage and lobolo are inseparable.
4.3.3.2 Nevertheless, actual payment of lobolo is seldom considered essential to the validity of marriage. Sotho-Tswana law may regard delivery of lobolo as the crux of a marriage, but other systems do not.[0] Besides, in practice, payment is often deferred and in appropriate circumstances it may even be waived.
4.3.3.3 Because of these ambiguities, the `official' version of customary law never finally decided whether lobolo should be deemed an essential ingredient of marriage. The courts' decisions were contradictory. On the one hand, certain judgments held that lobolo was `the rock on which the customary marriage is founded'[0] and that `there can be no marriage if there are no dowry cattle in the kraal of the woman's father'.[0] Other judgments treated lobolo as an ancillary (and optional) contract.[0]
4.3.3.4 Even in cases where lobolo was considered essential, the courts did not specify whether the goods had to be physically delivered or whether a mere agreement sufficed. In practice, it proved impossible to insist on delivery, for the husband's ability to pay had to be taken into account (together with the ever-escalating cost of lobolo relative to average income). Hence, in Transkei, the courts did not require actual delivery of the full amount of lobolo,[0] and the Natal and KwaZulu Codes state that neither payment nor agreement is essential to marriage.[0]
4.3.3.5 In any event, transfer of property is an equivocal act,[0] since mere payment of cash or livestock may signify not only an instalment of lobolo but also a pre-marriage gift or damages for seduction. The social context of a payment can, of course, clear up any uncertainty. Thus goods handed over prior to cohabitation can usually be assumed to be lobolo,[0] but, if cohabitation preceded delivery, the context itself offers no clue as to the purpose of payment.[0]
4.3.3.6 In the circumstances, it seems sensible to regard the legal effect of giving lobolo as a form of evidence, albeit weighty evidence, of the parties' intention to contract a customary form of marriage. It will, in other words, mark the cultural attributes of a marriage.[0] By implication, payment of lobolo should be optional, analogous to the solemnization of marriages by religious rites.[0] As the Law Commission's Workshop in the Central Region suggested, the practice may still continue to perform a social function of indicating a husband's appreciation.
4.3.3.7 This approach to lobolo is already implicit in the courts' judgments.[0] It is endorsed both by the KwaZulu and Natal Codes[0] and by a general reluctance in customary law to call the status of a union into doubt when payment is not forthcoming. Most important, this proposal was supported by many respondents to the Discussion Paper: the Department of Justice, the Law Commission's Provincial Workshops, the Office on the Status of Women (Northern Province), the Women's Lobby, the Commission on Gender Equality, the Law Association of Zambia and the House of Traditional Leaders (Free State).
4.3.3.8 If lobolo is not necessary to the formation of a customary marriage, then non-payment will have no effect on the rights of the spouses towards one another or their children (a proposal made by certain respondents to the Issue and Discussion Papers).[0] While the Commission had sympathy with a view put foward by the National Legal Profession Workshop, that breaking the link between lobolo and rights to children may be too drastic,[0] it felt that the human rights issues involved superseded any argument to the contrary.
4.3.3.9 Dr H M de Vetta raised the difficult question whether legislation affecting lobolo should apply retrospectively. In general, of course, statutes are deemed to apply prospectively, so as not to upset acquired rights. Special circumstances, such as a possible violation of the Bill of Rights, on the other hand, might demand retrospective application. In the case of rights already acquired to children by payment of lobolo, customary law will have to give way to the overriding principle that the child's best interests are the paramount consideration.
4.3.3.10 A proposal that lobolo should not affect the spouses' rights inter se or rights to their children has direct implications for enforcement of the agreement. Customary law did not normally allow an action in court to compel delivery of lobolo.[0] The main long-term inducement to pay was the threat of losing parental rights to any children born of the marriage. A child's fate can no longer depend on payment or non-payment of lobolo, however, since the child's interests are now of paramount importance.[0]
4.3.3.11 An alternative enforcement mechanism was the practice of ukutheleka (the Xhosa term), whereby the wife's guardian could put pressure on the husband to pay by `impounding' the wife, sometimes with her children.[0] If it was apparent that the husband had the means, but still did not pay, action could then be taken to dissolve the marriage.[0] This practice, too, must fall away, since it obviously does not accord with the spouses' right to an undisturbed marital consortium.[0]
4.3.3.12 Although customary means of ensuring payment of lobolo are no longer permissible, enforcement methods used for ordinary contractual debts are still available (as noted by the House of Traditional Leaders (Free State).[0] A suit for enforcement should nevertheless be subject to the conditions and circumstances relevant in customary law. Moreover, according to customary principles, the court granting a divorce would usually make an order about lobolo. S S Nkosi therefore proposed that divorce courts should have the power to order return of lobolo (less the usual deductions customary law allowed the wife's guardian).
4.3.3.13 A further question was whether divorce decrees should now operate to end any lobolo agreement attached to the marriage.[0] (The answer to this question has implications, as the Gender Research Project (CALS) pointed out, for joining the recipient of lobolo as a party to divorce proceedings.) Because lobolo and marriage are now separate issues, however, it would seem preferable to require the husband to institute a specific suit for return of lobolo if he wishes to reclaim it.
4.3.3.14 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.
4.3.3.15 The existence of a lobolo agreement may be used to determine whether a union should be considered a customary marriage.
4.3.3.16 Because the giving of lobolo will have no effect on the validity of marriage, it may be enforced only by the usual judicial processes. Courts granting divorces should have jurisdiction to order return of lobolo subject to the deductions permitted in customary law.
4.4.1 Courts in both South Africa and other parts of Africa have long grappled with the problem of how to define a customary marriage. Payment of lobolo could, of course, distinguish marriage from mere cohabitation, but as we have seen payment might be deferred or the reason for handing over livestock might be ambiguous. To cure the uncertainty of these situations, courts would then ask whether the bride had been transferred to her future husband's home or whether the relevant wedding rituals had been observed.
4.4.2 According to all the systems of customary law in South Africa, marriage is patri- or virilocal, which means that a bride has physically to leave her natal family and go to live with her husband (either at his own or his father's homestead).[0] This occasion would normally be accompanied by the performance a traditional wedding ceremony. In fact, some degree of ritual attends marriage in any culture,[0] for ritual has the general function of separating the socially significant from the mundane.
4.4.3 In certain South African communities, a particular ritual may be decisive in distinguishing marriage from mere cohabitation. With the Swazi, for instance, the ritual is kugcobisa libovu (smearing of red ochre on the bride's face),[0] with the Sotho it is tlhabiso (the slaughtering of an ox)[0] and with the Xhosa it is ukutyis' amasi (drinking sour milk).[0]
4.4.4 In order to define a customary marriage should the transfer of the bride and/or the observance of a traditional African wedding ceremony be considered essential to the creation of a valid union?
4.4.5 As the Commission proposed above, the most fundamental requirement of a valid marriage should be the consent of the spouses.[0] Consent, however, is an abstract factor that normally has to be inferred from concrete acts.
4.4.6 Initially the courts attached great significance to a bride moving from one homestead to another, since this was an obvious physical act from which consent to marriage could be inferred. But, as a requirement essential to the creation of a valid union, it could not be enforced in all cases and the courts soon had to admit many exceptions.[0] Amongst the Tswana, for example, a wife goes to live with her husband only after lobolo has been paid and she has given birth to a child.[0] In cases of mock abduction, the woman is already at her husband's homestead when the lobolo negotiations start.[0] More important is the fact that exigencies of employment or accommodation may prevent the parties from complying with the rule of virilocality.
4.4.7 The courts experienced similar problems when they tried to insist on the performance of certain wedding rituals. Customary law always tends to be flexible and pragmatic.[0] Ceremonies may be abbreviated as circumstances dictate, and, especially in urban areas, they may be ignored altogether. Even within a close-knit community, opinions may vary on how essential a ritual is and how it should be performed. Finally, many people have discarded traditional ceremonies or have combined them with western and Christian rituals.[0]
4.4.8 For these reasons, the courts were compelled to treat customary rituals as optional, no matter how deeply rooted they were in tradition.[0] Ceremony came to be regarded as `the religious element of the proceedings', of no more importance than `prayer, music, singing or a wedding reception in a European marriage'.[0]
4.4.9 The Commission therefore concluded (and its view was supported by the Northern Province Office on the Status of Women) that neither transfer of the bride nor compliance with a particular ceremony should have any effect on the validity of a marriage.[0] Like lobolo, these elements of marriage must be considered discretionary, the equivalent of celebrating a union in a church, mosque or synagogue. It does not follow that ceremonies and transfer have no significance at all, however, because in combination with lobolo they will help to establish whether a marriage should be deemed `customary'.[0]
4.4.10 Traditional wedding ceremonies and the handing over of the bride should be considered optional. Together with lobolo, however, these institutions will serve to identify a union as one celebrated according to African rites.
4.5.1 The difficulty of defining marriage with any precision in customary law suggests that the validity of a couple's relationship may well be open to doubt. (Disputes are most likely to arise when an inheritance is in question.) A critical factor, therefore, is whether the spouses' union should be given a greater degree of certainty by being formally solemnized before state authorities and then registered.
4.5.2 In 1985, the Law Commission proposed the following as essential elements of customary marriage:
(a) competence of the parties at customary law to marry one another;
(b) consent of the husband, the wife and legal guardian of either of them if they were below the age of 21; and
(c) solemnization by a marriage officer and registration.[0]
These proposals were broadly in line with existing statutory regimes in KwaZulu/Natal[0] and Transkei.[0]
4.5.3 Outside KwaZulu/Natal and Transkei, however, South Africa has never insisted on formal solemnization of customary marriages.[0] Instead, an optional registration procedure was made available to allow the parties to obtain official proof of their union.[0] Under the current law, therefore, registration is merely compellable at the instance of the husband, the wife or the wife's guardian.[0] Failure to register does not affect the validity of a customary marriage. Rather, a certificate of registration provides prima facie evidence of the union,[0] and those who did not register their marriages may advance other forms proof (assisted by the courts' presumption in favour of marriage).
4.5.4 Historically, the requirement that marriage be officially solemnized indicated the involvement of central authorities in what had previously been a private arrangement.[0] The main purpose of demanding that all marriages comply with formalities laid down by the Church or state was to bring certainty to status, but observance of certain formalities had the additional function of ensuring that spouses did in fact consent.
4.5.5 In most legal systems, solemnization according to prescribed formalities and registration went hand-in-hand.[0] Once spouses had had their union solemnized, it would immediately be registered in a central marriage registry. Both the spouses and the state would then have readily ascertainable proof of the existence of a valid union.
4.5.6 In its Issue Paper the Commission noted a persistently low level of compliance with the registration requirement and a considerable body of evidence showing that the imposition of any formal requirement on customary marriages has had the effect of depriving existing unions of whatever limited validity they might otherwise have enjoyed. Accordingly, the Commission argued that registration of a marriage should not be compulsory. To allow registration at the instance of one of the parties would sensibly acknowledge the fact that this formality has no intrinsic merit: it is a pragmatic means of proving marriage if and when the spouses find it necessary to do so. The Commission therefore recommended retention of the existing law. A certificate of registration `shall on its mere production in any court or in any other proceedings be prima facie proof of its contents'.[0]
4.5.7 From this proposal, it followed that, if spouses did not have their marriage registered, they could prove its existence by other means. The Gender Research Project (CALS) would support this position on the ground that cohabitation and general repute are useful criteria for proving marriage. The National Legal Profession Workshop and a Law Commission Workshop in KwaZulu/Natal added that the current presumption that cohabitants may be deemed married would assist in establishing the existence of a valid union.
4.5.8 The time has come, however, to rethink the recommendations on solemnization and registration. An astonishing number of the respondents to the Issue and Discussion Papers were in favour of registration, if not a full ceremony of solemnization.[0] The Registrar of Deeds went so far as to say that even marriages contracted before the proposed Act should be registered to ensure proof of the marital status of parties to documents registered in Deeds Offices.
4.5.9 Research findings of the Gender Research Project (CALS) indicated that women in particular want their marriages to be registered under the civil law so that they can secure full legal protection. The National Human Rights Trust, too, felt that a marriage certificate would give greater security to marriage relationships by setting boundaries with intrinsic (legal) merit.
4.5.10 A further important consideration is South Africa's duty to fulfil international treaty obligations. In the interests of bringing certainty to marital status, the Convention on Elimination of Discrimination against Women (CEDAW), the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages [0] and the African Charter on the Rights and Welfare of the Child (which South Africa is also considering ratifying) require, inter alia, that signatories shall make registration of all marriages in an official registry compulsory.
4.5.11 If registration is now to be made compulsory, the Law Commission's Provincial Workshops asked what type of customary unions would have to be registered. If there is no actual wedding, as in the case of ukungena and ukuvusa unions, should the parties seek registration? The Workshops' point is that registration assumes both a wedding ceremony and a living bride and groom (who can be asked whether they consented). The answer to this problem is to treat these unions as continuations of existing marriages (not as new marriages). If need be, the introduction of a new spouse may be endorsed on to the registration certificate.
4.5.12 Another problem to arise from insisting on registration is the strong likelihood that state-imposed formalities will not be observed.[0] People who regard family approval and lobolo as the critical elements of a valid union would see no point in having any additional formalities; nor can we expect the cooperation of people in rural areas if registering officers are located only in towns. Various respondents had suggestions for encouraging compliance with the law. The National Religious Leaders and Organised Labour Workshops recommended extending an existing practice in KwaZulu/Natal - that lobolo be certified - to registration. The Religious Leaders suggested the creation of a central registry with computer facilities.
4.5.13 Organised Labour suggested that the bureaucracy be tightened up so that the registration network would become wide, accessible and efficient. To make the administrative framework of registration more accessible the Commission had already recommended that traditional authorities be constituted registering officers. This proposal received warm support from the public.[0] As for the problem that urban areas and certain rural areas lacked traditional rulers, the Traditional Leaders, the Legal Profession Workshop and House of Traditional Leaders (Eastern Cape) felt that traditional representatives in the townships should be established and employed to register marriages.[0]
4.5.14 If solemnization and registration were made obligatory, what penalties would be imposed for failure to comply? Although some penalty is clearly necessary, the law should not be allowed to degenerate into meaningless technicality. (We already have the unhappy precedent of the requirement of certification in claims for damages for death of a breadwinner being exploited in order to nullify perfectly valid customary marriages.)[0] Invalidity of a union is an obvious answer, but invalidity could have unduly harsh results, especially for widows who may later seek to lodge claims against deceased estates.[0] What is more, this penalty would have the effect of depriving many customary unions (which hover on the verge of being or becoming full marriages) of whatever limited validity they might otherwise enjoy.[0] The only other possible sanction is a criminal punishment, but fines seem pointless where there is no victim other than the perpetrator of the offence.[0]
4.5.15 Respondents were generally sympathetic to the Commission's dilemma about finding an appropriate sanction. A Law Commission Workshop in KwaZulu/Natal and the Gender Research Project (CALS) felt that unregistered customary marriages could be treated as valid unions if they were linked to the more general issue of recognizing de facto unions.[0] While there is obvious merit in this proposal, legal recognition of informal unions fell outside the Commission's brief, and it would be a pity to delay the cause of customary marriage in order to investigate this complex problem.
4.5.16 Participants at the discussion hosted by the University of Fort Hare at Bisho also appreciated the Commission's reluctance to penalize non-registration. They noted, however, that continuing to regard unregistered unions as valid would result in an obvious inconsistency. None the less, to deem unregistered marriages as invalid would also result in an inconsistency, for a mere cohabitation would then have better legal status than an unregistered marriage.
4.5.17 Customary marriages should be registered to ensure that marital status is made more certain and easier to prove.
4.5.18 Although registration should be compulsory, no obvious penalty exists to induce compliance. To rule that unregistered unions are void would work great hardship for the spouses and would deprive many existing unions of potential validity. Hence, where a marriage has not been registered, the parties should be permitted to allege other forms of proof of its existence.
4.5.19 To encourage more people to register their marriages, the traditional authorities should be constituted registering officers.
1 Cf the western concept of marriage: Women and Law in Southern Africa (WLSA) Uncovering Reality 5. For useful anthropological accounts of customary marriage in southern Africa, see: Mönnig 193-4, Holleman 128-45, Van Tromp 4[0]ff, Schapera Handbook 130-8, Hammond-Tooke Bhaca Society 102-5, Reader 174-84 and Whooley in Verryn Church and Marriage in Modern Africa 245ff.[]
2 Molokomme in Women and Law in Southern Africa (WLSA) The Legal Situation of Women in Southern Africa 14-15, for instance, found that in Botswana a marriage would be deemed to exist if the families were in agreement and lobolo had been transferred[.]
3 See generally Phillips Survey of African Marriage and Family Life xi-xvii[.]
4 Such as claiming insurance benefits and city council housing.
[0] 5 The issue was also referred to by the Legal Profession Workshop, which felt that `customary marriage' needs to be defined in the Bill to make it clear that religious marriages are not included.
6 See par 4.5.18 below[.]
7 Under the common law, cohabitation and repute create a rebuttable presumption in favour of marriage (although not for purposes of proving marriage in divorce actions): Sinclair The Law of Marriage 365[.]
9 Matthews (194[0]) 13 Africa 19ff.
[10] Schapera Handbook 155. See further Kuper in Radcliffe-Brown & Forde African Systems of Kinship 99 and Marwick 136ff.
11 As Ashton 63 noted, the following demand could be put: `Cousin (paternal uncle's child) marry me, [in order] that the cattle return to the kraal'[.]
12 Cf Nhlapo in WLSA (n2) 1[0]9-10, Nhlapo Marriage and Divorce in Swazi Law and Custom 47 and Burman in Hirschon Women and Property/Women as Property 120.
13 See Reader 179-84 and, further, Mönnig 13[0]ff, Raum & De Jager Transition and Change in a Rural Community 43, Schapera Handbook 129, Holleman 99ff and Krige Zulu 126-8.
14 Customary law took no cognizance of a private engagement between a boy and girl, because they had no authority to negotiate marriage. Only an affinition agreement between the guardians of the prospective spouses had legal consequence[.]
15 See Simelane v Sugazie 1935 NAC (N&T) 45[.]
16 As a last resort, she might even ask a traditional ruler to intervene. See Schapera Handbook 129, Simons African Women 1[0]2-3 and the account given by the court in Nomatusi v Nompetu 3 NAC 165 (1915).
17 See Van Tromp 63ff, Ashton 65 and Hunter 187-8 and 531-2. This preliminary to marriage was a way of forcing the girl's father to give his consent, avoiding the expense of a wedding, hastening matters where the girl was pregnant or persuading her to marry. Mock abduction is still popular: Manona in Mayer Black Villagers in an Industrial Society 189-93 and Whooley in Verryn (n1) 295ff[.]
18 Simons 1958 AJ 328-9[.]
19 See Matthews (n9) 7ff and Nhlapo (n12) 53-6. Moreover, a duty to be modest on all occasions discouraged women from displaying great enthusiasm for a suitor. See Wilson in Krige & Comaroff Essays on African Marriage in Southern Africa 136[.]
[20] See Peart 1982 AJ 110-12. The courts were more than suspicious of mock abduction, since technically it could amount to kidnapping. See Labuschagne (1988) 13 TRW 33ff, Mkupeni v Nomungunya 1936 NAC (C&O) 77 and s 101 of the KwaZulu/Natal Codes.
21 Sections 3[0] of Procs 110 and 112 of 1897 and s 29 of Proc 140 of 1885 for Transkei and s 116(1)(b) of the KwaZulu/Natal Codes.
22 Mbanga v Sikolake 1939 NAC (C&O) 31, Gidja v Yingwane 1944 NAC (N&T) 4, Gebeleiseni v Sakumani 1947 NAC (C&O) 1[0]5 and Zimande v Sibeko 1948 NAC 21 (C) at 23.
[023] Sibeko v Malaza 1938 NAC (N&T) 117 and Butelezi v Ndhlela 1938 NAC (N&T) 175.
[024] When the person concerned reached a marriageable age. Until then, on the basis of the pari delicto rule, anything paid over in consequence of the agreement could not be recovered: Zulu v Mdhletshe 1952 NAC 203 (NE), Mngomezulu v Lukele 1953 NAC 143 (NE).
[025] See art 16(2) of the Universal Declaration of Human Rights, art 23(3) of the Covenant on Civil and Political Rights, art 10(1) of the Covenant on Economic, Social and Cultural Rights, art 1 of the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages and art 16(1)(b) of the Convention on Elimination of Discrimination against Women (CEDAW).
[026] See, for example, Barclays Bank DC&O NO v Anderson 1959 (2) SA 478 (T).
[027] Moreover, none of the respondents to the Issue Paper challenged the principle that an individual should be free to marry the spouse of his or her choice, or, conversely, should be allowed to refuse an unwanted union.
[028] Section 26 of Act 25 of 1961.
[029] See, for example, Law Commission Investigation into the Advancement of the Age of Majority para 11.1.
[030] See par 5.1.14 et seq.
[031] Under the common law, only a reasonably held fear of force (or threat of force) of such a degree as to vitiate consent suffices. (According to Sinclair (n7) 359, the test is both subjective and objective.) Metus reverentialis, the fear of offending a parent or superior, which would be particularly apposite to the situation of African women, is not enough.
[032] See below in Chapter 5.
[033] Both the Nguni and the Sotho/Tswana groups of languages have varying usages, depending on whether the singular or the plural form is used - eg, bogadi/magadi; ilobolo/amalobolo.
[034] See Chigwedere Lobola - the Pros and Cons and Dlamini Juridical Analysis of Ilobolo 90-3.
[035] As, for example, under s 24 of Law 3 of 1876 of the Transvaal. See Kaba v Ntela 1910 TPD 964 at 967.
[036] Since the wife is not treated as a slave or chattel: Dlamini (n34) 169. See further Murray & Lye Transformations on the Highveld 112ff, Hunter 192 and Simons (n16) 88.
[037] An account of the functions of lobolo is given by Dlamini 1984 De Jure 150-5.
[038] See Terray Marxism and `Primitive' Societies 163ff and Meillassoux (1960) 4 Cahiers d'Etudes Africaines 38ff.
[039] Holleman 148-9 and Evans-Pritchard (1947) 6 Afr Studies 187. This interpretation was endorsed by the principle that parental rights should be determined by full payment of lobolo. See Reuter Native Marriages in South Africa 218-22, Mathewson (1959) 10 J Racial Affairs 72, Jeffreys (1951) 10 African Studies 145ff and Brandel (1958) 17 Afr Studies 34ff.
[040] Preston-Whyte in Hammond-Tooke The Bantu-speaking Peoples of Southern Africa 187-8.
[041] Namely, high levels of lobolo discouraged divorce: Gluckman in Radcliffe-Brown & Forde (n10) 182ff. This hypothesis (which is further examined below) was later revised in light of research indicating that high marriage payments depended on the stability of marriage, rather than the other way round: Gluckman Ideas and Procedures in African Customary Law 62-3. Nevertheless, the arguments seem inconclusive: Simons (n16) 95 and Dlamini (n34) 171.
[042] The 1883 Cape Commission Report on Native Laws and Customs 70.
[043] Soga Ama-Xosa 274-5.
[044] See Dlamini (n37) 151-2, Hunter 190 and Chinyenze (1983-4) 1-2 Zimbabwe LR 241.
[045] Krige (1939) 12 Africa 403, Van Tromp 49 and Dlamini (n34) 191.
[046] See Sansom in Kapferer Transaction and Meaning 143ff.
[047] Mathewson (n39) 72-6 and Holleman (1960) 11 J Racial Affairs 106-9.
[048] Simons (n16) 95. See, too, Lugg (1945) 4 Afr Studies 26-7.
[049] See generally Dlamini (n34) 179-81, (n37) 150ff and (1985) 18 CILSA 365.
[050] This trend was matched, although overshadowed, by a tendency for the cost of pre-marriage gifts and wedding festivities to rise too.
[051] See Brandel (n39) 34.
[052] Which was pointed out by Judge S S Ngcobo.
[053] Hlophe (1984) 17 CILSA 168-70 and Dlamini (n37) 158.
[054] Hlophe op cit 169.
[055] Burman & Berger (1988) 4 SAJHR 340.
[056] Cf Dlamini (n49) 362.
[057] In any event, to say that lobolo gave women financial or social security was misleading, since the property accrued to a wife's guardian, not to the woman herself.
[058] Although it still functions to redistribute wealth from the more economically active junior generation to the senior generation: Murray (1977) 21 JAL 80 and (1976) 35 Afr Studies 99ff. See further Murray & Lye (n36) 114, Koyana Customary Law in a Changing Society 2ff and Brandel (n39) 34ff.
[059] And most respondents, such as those at the Law Commission's Workshop (Western Region), felt that parents ought to play a part in the process of marriage.
[060] The Rural Women's Movement contested this point. It felt that lobolo has little to do with a child's legitimacy, since a stronger determinant of this issue would be the general treatment of the family unit by both sets of parents and society at large. If a marriage is approved and if the spouses' relationship is harmonious, many parents will forgo lobolo but still consider the children legitimate.
[061] Section 1(1) of the Law of Evidence Amendment Act 45 of 1988 provides that: `it shall not be lawful for any court to declare that the custom of lobola or bogadi or other similar custom is repugnant to (public policy or natural justice).'
[062] Section 11(1) of Act 38 of 1927.
[063] See Chinyenze (n44) 229.
[064] See Meesadoosa v Links 1915 TPD 357 at 359.
[065] Mathewson (n39) 75. Commercialization of lobolo is widely deplored, as noted by the Law Commission's Workshop (Eastern Cape); but it is impossible to control the manner in which people will perceive and manipulate such institutions to their immediate advantage.
[066] And, because lobolo and parental rights are linked, a father may retain his children, even if they would be better off with their mother.
[067] See Albertyn & Kentridge (1994) 10 SAJHR 164-7. The inquiry accordingly shifts from a specific act of prejudice to the long-term effect of a practice upon women as a group.
[068] Armstrong et al (1993) 17 Int J of Law & Family 340.
[069] Thus Welch & Sachs (1987) 15 Int J Sociology of Law 390 recommended education and persuasion as the appropriate methods of combatting the negative aspects of lobolo.
[070] Whooley in Verryn (n1) 313. See too Dlamini (n34) 198.
[071] Durand Swartman, Stad en Toekoms 39 established that 95 per cent of the people they questioned were in favour of retaining lobolo, and, in their brief survey in KwaZulu/Natal, the National Human Rights Trust established that more than 80 per cent of the men and women questioned were of the same view. See further Dlamini (n49) 363, Chigwedere (n34) 52ff, Brandel (n39) 49 and De Haas (1987) 46 Afr Studies 41-2.
[072] See Welch & Sachs (n69) 388 and Uzodike (1990) 2 Afr J Int & Comp L 290. Under s 61(1) of the KwaZulu/Natal Codes, however, the amount of lobolo is limited to ten head for the daughter of a commoner and fifteen head for the daughter of a headman, the son, brother or uncle of a chief. No limit is specified for marriage to chiefs' daughters.
[073] Dlamini (n34) 232.
[074] Other important traditional ceremonies were ubulawu (the negotiations), the delivery of the bride (ukwendisa) and the ceremony of the spear.
[075] Notably the Nguni legal systems, which regard transfer of the bride as more important. See Kuper Wives for Cattle 127.
[076] Mbanga v Sikolake 1939 NAC (C&O) 31 and Bekker Seymour's Customary Law in Southern Africa 151.
[077] Sipoxo & another v Rwexwana 4 NAC 205 (1919) at 206.
[078] Blaine P 1927 NAC (N&T) 4. See, too, Jeffreys (n39) 150ff and Comaroff Meaning of Marriage Payments 17-18.
[079] Maxayi v Tukani 1 NAC 99 (1905) and Ntobole a/b Ceza v Mzanywa & another 3 NAC 190 (1914).
[080] Section 38(1). See Dhlamini 1967 BAC 7 (NE). Adv N Cassim, however, claimed that mere agreement on lobolo is not enough; there must be physical delivery of the entire amount.
[081] If the parties had no common intention in giving and receiving property, the purpose of a payment becomes uncertain, especially since livestock can function both as marriage goods and as commercial commodities.
[082] Matholo v Moquena 1946 NAC (C&O) 17 and Nyembe v Mafu 1979 AC 186 (NE).
[083] The attitude of the woman's guardian is then all important: did he receive the consideration as lobolo or seduction damages? See Mpanza v Qonono 1978 AC 136 (C) and Jama v Sikosana 1972 BAC 21 (S).
[084] As was suggested by the Gender Research Project (CALS). The Gender Project's view that lobolo cannot be optional if it determines the nature of a marriage can be answered by noting that lobolo is only one indication that a union is customary.
[085] This echoes an early view in s 84(b) of the 1883 Cape Commission on Native Laws and Customs that lobolo be treated as a contractual accessory to marriage.
[086] Simons (n18) 327-8. Moreover, for civil or Christian marriages, lobolo has never been considered essential to the validity of the union. See Tobiea v Mohatla 1949 NAC 91 (S), Ntsimango 1949 NAC 143 (S) and Ntabeni v Mlobeli & another 1949 NAC 158 (S).
[087] See s 38(1).
[088] The Law Commission's Workshop (Southern Region), Adv N Cassim, the Women's Lobby, the House of Traditional Leaders (Free State) and A M Moleko. The Rural Women's Movement, too, felt that the need to agree on lobolo should not be allowed to inhibit the spouses' marriage.
[089] The Legal Profession Workshop felt that the best interests of the child could well be interpreted to support lobolo and the environment of acceptance by two families it creates for children.
[090] A husband's neglect to pay might mean that he was dissatisfied with his wife or that he simply lacked the means. If the father-in-law were allowed to bring an action, an otherwise happy union might be disrupted.
[091] See par 7.5.15 below.
[092] If the wife's guardian were to institute an action for lobolo, the husband could raise the failure to invoke the custom of ukutheleka as a defence: Skweyiya v Sixakwe 1941 NAC (C&O) 126, Tonya v Matomane 1949 NAC 138 (S) and Menzi v Matiwane 1964 NAC 58 (S).
[093] Zenzile v Roto 1 NAC 223 (1909).
[094] Or the right in s 18 of the Constitution to freedom of association.
[095] The courts have already held that, if the parties agreed to pay a specific amount or if the amount was fixed in accordance with a conventional scale, the wife's guardian may sue for payment: Ngalimkulu v Mndayi 1947 NAC (C&O) 65 and Mavuma v Mbebe 1948 NAC (C&O) 16. Under s 66(1) the KwaZulu/Natal Codes a court action is also permitted.
[096] Professor A J Kerr's question in this regard was answered by the Law Commission's report on Marriages and Customary Unions of Black Persons para 11.8.9. In practice, however, where lobolo was immediately spent on receipt, the courts may find, as the National Human Rights Trust pointed out, that compulsory return of lobolo on divorce is not possible. In any event, Adv N Cassim felt that lobolo should not be returned to the husband (depending on the length of duration of the marriage).
[097] With Nguni peoples especially, this is one of the principal determinants of marriage: Preston-Whyte in Hammond-Tooke (n40) 179 and Ngubane in Krige & Comaroff (n19).
[098] See Tiersma (1988) 9 J Legal History 15-17 generally, and Krige and Ngubane in Krige & Comaroff (n19) 185 and 84, respectively.
[099] Nhlapo in WLSA (n2) 113 and Nhlapo (n12) 44ff.
[0100] Poulter Family Law and Litigation in Basotho Society 118-22, Murray Families Divided 121-2 and Maqutu Contemporary Family Law of Lesotho 76. Cf Lebenya v Mosola 1947 NAC (C&O) 58.
[0101] Van Tromp 77-9 and Manona in Mayer (n17) 189.
[0102] Their competence to formulate a proper consent belongs to the issue of capacity, and so too does the requirement of their guardians' consent. These topics are dealt with in Chapter 5 below.
[0103] See Mothombeni v Matlou 1945 NAC (N&T) 123, Ntabenkomo v Jente & another 1946 NAC (C&O) 59 and Sefolokele v Thekiso 1951 NAC 25 (C).
[0104] See Matthews (n9) 21-3 and Schapera Handbook 134ff.
[0105] Dlomo v Mahodi 1946 NAC (C&O) 61 and Ngcongolo v Parkes 1953 NAC 103 (S) had to overcome these particular difficulties by allowing what they called `constructive' delivery.
[0106] So, for example, the ceremony might be simplified or abridged, because the man was marrying for a second time (Schapera Married Life in an African Tribe 71), by reason of poverty (Schapera op cit 72 and Van Tromp 57-8) or because pregnancy or an elopement called for a quick marriage (Marwick 121). See further Nhlapo (n12) 65-6.
[0107] For example, a wedding ring may now be used in place of the traditional gall bladder of a slaughtered beast: Ashton 68. And, for many, a church ceremony has become essential: Ashton 70-1, Schapera (n106) 65ff and Pauw The Second Generation; a Study of the Family among Urbanised Bantu in East London 94.
[0108] Ntenze v Ntsolo 1930 NAC (C&O) 30, Sila & another v Masuku 1937 NAC (N&T) 121 and Sibiya v Mtembu 1946 NAC (N&T) 90.
[0109] Sila's case supra at 123. See further Simons (n18) 322-5.
[0110] Ngcongolo v Parkes 1953 NAC 103 (S).
[0111] See par 4.4.1 et seq above. Adv N Cassim gave broad support for payment of lobolo and handing over of the bride as essential requirements. She added that competence of parties at customary law to marry one another, consent of the parties and of their legal guardians if either was below the age of 21.
[0112] Marriages and Customary Unions of Black Persons 194.
[0113] Section 38(1) of the Codes. Certain differences are apparent, however. The Codes stipulate a declaration in public by the intended wife to an official witness at the celebration of the union that the union is of her own free will and consent. Section 45 requires registration of marriages within a month of celebration.
[0114] Section 31 of the Marriage Act 21 of 1978 provided that ceremonies and procedures (if any) `shall be in accordance with the customary law applicable to the male party', and that each party (or, if under the age of 21, his or her guardian) consents. Sections 33 and 34 also require registration of the union.
[0115] At the time of annexation, an attempt was made in the Transkeian territories (by Procs 110 and 112 of 1879 and 140 of 1885) to encourage people to register their marriages by providing that, if they did so, the registered union would have the same effect as a civil marriage. This measure was abandoned by Proc 142 of 1910.
[0116] See generally on the question of registration Janisch (1941) 15 Bantu Studies 11, Lewin (1941) 15 Bantu Studies 23, Shropshire Primitive Marriage ch 3 and Simons (n18) 340-1.
[0117] Regs 7 and 16 of GN R1970 of 25 October 1968, promulgated under s 22bis of the Black Administration Act 38 of 1927.
[0118] Regulation 8(4). Conversely, under s 45(3) of the KwaZulu/Natal Codes and ss 33 and 34 of the Transkei Marriage Act 21 of 1978, registration is conclusive evidence of marriage.
[0119] And, at the same time, the juridification of religious or customary rituals: Glendon State, Law and Family 51.
[0120] Thus, in English law (the system inherited by South Africa), marriages are registered after solemnization in a general public registry of birth, marriages and deaths: Glendon op cit 52-4.
[0121] Regulation 8(4).
[0122] The Law Commission's Provincial Workshops (especially in the Eastern Cape), the Department of Justice, J Borias, R W Skosana, A M Moleko, the House of Traditional Leaders (Eastern Cape), the Commission on Gender Equality, Council of SA Banks and the Legal Profession. The Rural Women's Movement considered a massive and countrywide education campaign necessary to stress that customary marriage had changed and would now offer the same rights as civil marriage.
[0123] Articles 16(2) and 3, respectively.
[0124] As observed by Prof J C Bekker in his response to the Issue Paper and Simons (n18) 341.
[0125] T S B Jali, the Department of Justice, the Law Commission Workshops (Central and Western Regions), the Gender Research Project (CALS), Department of Land Affairs Workshop held at Wonder Waters Conference (assisted by Gender Research Project CALS), the Rural Women's Movement, Dr H M de Vetta, Adv N Cassim and, of course, the Traditional Leaders. The latter felt that, instead of criticizing the shortcomings of traditional authorities, they should be strengthened to perform the task by training and appropriate infrastructural support.
[0126] Participants at the discussion sponsored by the University of Fort Hare at Bisho and the Organised Labour Workshop suggested in addition that official witnesses or the chief's envoys be used as registrars. They noted, however, that not all marital unions take the form of a wedding ceremony at which these officials might participate.
[0127] W du Plessis and C Rautenbach (Potchefstroom University) noted that s 31 of the Black Laws Amendment Act 76 of 1963 must also be amended to bring it into line with the proposed Bill.
[0128] Cf the Zimbabwe case, Zimnat Insurance Co Ltd v Chawanda 1991 (2) SA 825 (ZSC), where the court held that the wife of a customary marriage would claim damages for the death of her spouse, even though her union had not been registered as required under statute. See case note by Francis & Freemantle (1992) 109 SALJ 197. Ghana, on the other hand, has an uncompromising attitude: s 15 of the Customary Marriage and Divorce (Registration Act) 1985 requires a registered marriage before a spouse can claim any benefits under the Intestate Succession Law.
[0129] See Parker (1987) 1 Int J L & Family 133ff.
[0130] Supported by W du Plessis and C Rautenbach (Potchefstroom University).
[0131] And if the presumption in favour of marriage (see n7 above) were invoked.
SAFLII:
|
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/za/other/zalc/report/1998/4/1998_4-CHAPTER-4.html