Customary marriages are as easy to get out of as traffic offences
If recent divorces – pardon me, “separation”– cases are anything to go by, there seem to be a lot of holes in the law of lobola and customary marriages.
The two are inseparable. According to TW Bennett, in Customary Law in South Africa, lobola is still “the rock on which customary marriage is founded”.
A new phenomenon arising in court is to question the validity of a customary marriage where lobola was negotiated as the basis of the union.
Nkosi Patekile Holomisa, the leader of the Congress of Traditional Leaders of SA, said Africans should take a leaf out of the book of those who observe their traditions and have respect for them.
He said when people of the various religious persuasions have problems, they go to their respective spiritual leaders for help.
Equally, Africans should solve their issues using the proper traditional structures.
If African people are married under customary law, the same principles should apply when that marriage is dissolved. It should be done according to African customs.
Nonhlanhla Dlamini-Ndwandwe, a senior lecturer in indigenous law at Unisa, cautions that “legislation requires the parties to formally approach divorce courts rather than the family exclusively”.
But customary marriage is concluded in terms of custom. The method of delivering, paying for and accepting lobola might differ slightly, but the principle is the same: lobola forms the foundation of the negotiations and thus the marriage.
In the past, these marriages were not accorded the same status as civil marriages. Arguably they are still not.
Women married according to customary law will be left wanting, for instance, during the winding up of the estate on the death of the husband.
The Recognition of Customary Marriages Act of 1998 was intended to protect women, especially those who had been wed according to custom before the recognition of customary marriages.
As Nkosi Holomisa says, if you were married civilly to another woman, you could not get rid of the wife left behind in the village.
In terms of the act, couples may change from a customary marriage to a civil one, but not the other way round.
One of the reasons for this is that there is better protection for wives in a monogamous, civil marriage than in a customary one.
But not long after the act was promulgated, we have all sorts of dramas playing out in the media and courts about the validity of customary marriages and lobola.
In 2007, a high-powered couple, Mr D and Ms N, who had a long standing relationship, parted. Ms N alleged Mr D had paid lobola to her family and so they were married in customary law, because lobola is both a way of asking for a woman’s hand in marriage and securing that union.
She said she was entitled to be maintained as his ex-wife. Mr D denied marrying Ms N, claiming the lobola he paid was not lobola, but a gift made to her mother.
In another case, Mr M was meant to have paid lobola for his “wife”, Ms S, whom he proudly and openly showered with adoration as a good wife and mother to his children.
When things went sour, Mr M declared he was not married to Ms S, as he had not really “paid lobola” but had only “ring fenced” her.
There is no mention of lobola as a requirement for customary marriage in the act. According to Bennett, the Constitution authorised Parliament to pass legislation recognising “marriages concluded under any tradition or system of personal or family law”.
This was done in order to promote diversity in tradition, culture and religion, and afford people freedom of choice to follow their culture.
The act is meant to protect wives in customary marriages “from ill treatment by their husbands and to afford them the dignity, respect and recognition afforded their sisters married in civil marriages”.
The Constitution compels courts, tribunals and forums to treat customary law according to the “spirit, purport and objects” of the Bill of Rights.
It is worth noting that the South African Law Commission’s Project Committee on Customary Law, when faced with the difficult task of choosing to enforce civil and customary marriages, gave precedence to only one form.
Civil marriage was deemed to have the “merits of certainty and continuity”, especially because it required monogamy.
International human rights dictate that women deserve to fully enjoy civil, economic, social and cultural rights.
Practices like lobola lend themselves to abuse and should be deemed unconstitutional.
The same goes for customary marriage, especially when there is an alternative form of marriage in which women can find certainty and protection.
» Ribane is an actress, author, fashion and beauty editor, and former model
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