By Thulani Nkosi
The conclusion and dissolution of a customary marriage is a process currently regulated by the Recognition of Customary Marriages Act 120 of 1998 (RCMA). This Act, in the words of Moseneke DCJ in Gumede v President of the Republic of South Africa and Others 2009 (3) SA 152 (CC) at para 16 ‘represents a belated but welcome and ambitious legislative effort to remedy the historical humiliation and exclusion meted out to spouses in marriages which were entered into in accordance with the law and culture of indigenous African people of this country. … [P]ast courts and legislation accorded marriages under indigenous law no more than a scant recognition under the lowly rubric of customary “unions” ’.
As progressive as the RCMA is, it has not been without shortcomings of its own. Moshidi J in K v P (GSJ) (unreported case no 09/41473, 15-10-2010) (Moshidi J) at para 11 opined that: ‘Although the legislature’s intention in enacting the Recognition Act was undoubtedly noble in recognizing customary marriages previously ignored, and in order to put them on [par] with civil marriages, there are however, clearly still problem areas.’
This article focuses on one problem area presented by the RCMA – namely, that of the retention and/or the refund of ilobolo on the dissolution of a customary marriage. Bertelsmann J in Thembisile and Another v Thembisile and Another 2002 (2) SA 209 (T) at para 28 acknowledged the importance of this question when he held:
‘It appears to be well established, however, that “in customary law the central issue in divorce proceedings is refund of bridewealth, an obligation taken so literally that the husband could demand return of the same cattle he had originally given. If they had died in the interim, the defendant could settle the claim with a cash equivalent” ’.
It is worth noting that the RCMA does not specifically make the tendering of ilobolo a requirement for the conclusion of a valid customary marriage. Section 8 is instructive in providing that a customary marriage is to be dissolved by a decree of divorce granted by a competent court. As of necessity, this provision means that a customary marriage is to be dissolved like a civil marriage and that the provisions of the Divorce Act 70 of 1979 will apply. Although an argument can be made that, in omitting the tendering of ilobolo from the general requirements for the validity of a customary marriage, the legislature watered down the role and the significance of ilobolo in the conclusion of a customary marriage.
Academics and courts have interpreted s 3(1)(b) of the RCMA as a tacit requirement that ilobolo must be given in order for the customary marriage to be valid, or at the very least, so goes the argument, there must be negotiations and agreement concerning payment, in part or in full, of ilobolo (see L Mofokeng ‘The lobolo agreement as the “silent” prerequisite for the validity of a customary marriage in terms of the Recognition of Customary Marriages Act’ (2005) 68 THRHR 277 at 278). In Maloba v Dube and Others (GSJ) (unreported case no 08/3077, 23-6-2008) (Mokgoatlheng J) the court held that ‘[t]he agreement to marry in customary law is predicated upon lobolo in its various manifestations. The agreement to pay lobolo underpins the customary marriage’ (at para 26).
Notwithstanding the RCMA’s silence on ilobolo as a requirement for a valid customary marriage, there is clear understanding of the importance of ilobolo from those who practice customary law and the courts. This importance has recently been underlined in Southon v Moropane (GSJ) (unreported case no 14295/10, 18-7-2012) (Saldulker J) where the court held that ‘[t]he traditional principle that there can be no [valid] customary marriage without lobolo being delivered or at least negotiated, still prevails’ (at para 81).
I submit that the delivery of, or the negotiation of ilobolo pursuant to the conclusion of a customary marriage is the most important ingredient that distinguishes a customary marriage from other forms of marriages. It is the ingredient that differentiates a customary marriage from mere cohabitation, popularly known as vat en sit. JC Bekker correctly argues that ‘[l]obolo is therefore the rock on which the customary marriage is founded; there is considerable justification for the view that a lobolo contract has a greater binding force than a marriage at common law’ (JC Bekker Seymour’s Customary Law in Southern Africa 5ed (Cape Town: Juta 1989) at 151).
Function and significance of ilobolo
There are diverse opinions concerning the function and significance of ilobolo, especially among feminists and those who do not practise customary law. At the heart of these divergent views is the misconception of ilobolo as a purchase-and-sale transaction. To some extent many still hold this misconception. This is probably one of the reasons why the legislature decided not to make the tendering and receiving of ilobolo a requirement for the conclusion of a customary marriage.
Adherents of customary law and practices are themselves not united as to the exact function and significance of ilobolo, let alone the retention and/or refund of it on divorce. Some have said that the function and significance of ilobolo properly analysed have to do with the transfer of the reproductive capacity of the woman from her family into that of her husband (NJJ Olivier; JC Bekker; NJJ Olivier (Jnr) and WH Olivier Indigenous Law (Durban: LexisNexis 1995) at 32). Viewed in this way, it can be said that ilobolo plays a legitimising function for the children born of the customary marriage. Some hold a view that ilobolo is a token of appreciation that the groom’s family extend to the bride’s family for rearing the bride and that it is only once ilobolo or part of it has been tendered and received that the bride is welcomed by the ancestors of the groom into the family. In capturing these divergent views on the function and significance of ilobolo, RM Dlamini argues that ilobolo in its proper customary sense has a multiplicity of legal functions (RM Dlamini ‘The transformation of a customary marriage in Zulu Law’ 1983 CILSA 383 at 386).
He opined as follows: ‘Its ceremonial transfer from the husband’s to the wife’s group is a public record and expression of the creation of a new matrimonial relationship; it is of probative value and is a validating act by which a customary marriage is concluded; it marks the formal creation of the marital power of the husband over his wife and gives him exclusive access to his wife, thus making it adulterous for another [woman] to have relations with [him]; it also gives the husband parental power over children born of his wife and assures their affiliation to him.’
Whatever the true function and significance of ilobolo is, it is clear that its tender or, at the very least, its negotiation is a bedrock on which a customary marriage rests. So important is ilobolo that some have argued it provides stability to the customary marriage. In the words of Dlamini (op cit 390) the prospect of forfeiture of ilobolo was thought to deter a man from divorcing his wife frivolously, and on the other hand, the possible return of ilobolo by the wife’s father should she misbehave motivated her to behave with due decorum and not to wreck the marriage by her misconduct.
Dissolution of a customary marriage
Section 8 of the RCMA purports to dissolve a customary marriage in the exact terms the Divorce Act dissolves a civil marriage. An anomaly in this is that the very nature of a customary marriage is distinct from a civil marriage. This fact was captured in the Gumede case (at para 18) where it was held: ‘In our pre-colonial past, [customary] marriage was always a bond between families and not individual spouses. Whilst the two parties to the marriage were not unimportant, their marriage relationship had a collective or communal substance. Procreation and survival were important goals of this type of marriage and indispensable for the well-being of a larger group.’
It therefore follows that the provisions of an Act that was enacted to dissolve a marriage that is based on individualistic principles like a civil marriage cannot properly apply to a marriage that has a collective or a ‘communal substance’. A customary marriage is not purely a matter between the bride and the bridegroom, it is also ‘a group concern, legalising a relationship between two groups of relatives’ (see Mabena v Letsoalo 1998 (2) SA 1068 (T) at 1072C – D).
Prior to the RCMA, a customary marriage could be dissolved by the death of the husband provided the woman was not transferred to one of the brothers of the deceased to sire an heir (M Herbst and W du Plessis ‘Customary Law v Common Law Marriages: A Hybrid Approach in South Africa’ vol 12.1 (2008) EJCL at 11) (www.ejcl.org/121/art121-28.pdf, accessed 3-10-2013). This practice, provided the woman accepted, was called ukungenwa. During the lifetime of the husband, owing to ill-treatment or any other valid reason, a woman could return to her father’s household thereby forcing her husband to phuthuma (fetch) her with a fine, failing which, it was accepted that the husband did not want to continue with the marriage (Herbst and Du Plessis op cit at 11). These flexible and practical rules developed over time to constitute grounds for dissolution of a customary marriage, something the RCMA has taken away in insisting that a customary marriage may be dissolved only by a court ordering a decree of divorce.
The established rules in relation to the retention and refund of ilobolo were that ilobolo or a portion of it could be refunded under certain circumstances, including
But where a husband rejected his wife without cause ilobolo could be retained (Bekker op cit at 151).
The RCMA is as silent on the retention and repayment of ilobolo as it is on the necessity of delivering it at the conclusion of a customary marriage. This is notwithstanding the fact that old authorities on the matter are unanimous that ilobolo could be retained and refunded depending on the circumstances leading to the divorce (see Sila v Masuku 1937 NAC (N & T) 121; Matlala v Tompa 1951 NAC (N-E) 404). I submit that at the time when ilobolo carries both a cultural significance and economic value and at the time when divorces are so frequent, it is foreseeable that spouses are going to quarrel over its retention and refund more than ever before. When they do, it is not hard to imagine that courts would once again fashion creative ways within the RCMA and the Divorce Act, which creative ways may very well supplement the apparent shortcomings of the RCMA. After all ‘customary law is a flexible, living system of law, which develops over time to meet the changing needs of the community’ (see Shilubana and Others v Nwamitwa and Others 2008 (9) BCLR 914 (CC) at para 35).
Perhaps one of the creative ways would be for the courts to fashion a solution that looks like a forfeiture of benefits under s 9(1) of the Divorce Act. Should this be the case, courts, when determining whether to order retention or a refund of ilobolo or a part thereof, would be entitled to take into account factors like the duration of the customary marriage, the circumstances giving rise to the breakdown, and any substantial misconduct on the part of either of the parties. In this formulation the principal reason for the retention or a refund of ilobolo will be the undue benefit that may arise if such an order of repayment is not made.
Conclusion
Notwithstanding the muteness of the RCMA on issues pertaining to the tender and retention of ilobolo, the courts are no strangers to these disputes. In Nkambule v Linda 1951 (1) SA 377 (A) at 384D the court held that a woman in a customary marriage is justified to leave a man who has contracted a civil marriage and, in so doing, does not render her guardian liable for a refund of ilobolo. The Nkambule judgment has recently been confirmed by the Supreme Court of Appeal in Netshituka v Netshituka and Others 2011 (5) SA 453 (SCA). It can therefore be concluded that a claim for a refund of ilobolo, despite it not being provided for either in the RCMA or the Divorce Act, remains a competent claim at customary law, which claim could be enforceable against the customary law wife or her guardian or both of them.
Thulani Nkosi BA LLB (Wits) LLM (UJ) is a candidate attorney at the University of the Witwatersrand Law Clinic.
This article was first published in De Rebus in 2013 (Nov) DR 36.
