Myths and truths about lobola - here's what the law says

• Not all people know that lobola is legally binding and a marriage contract. 
• Attorney Simon Dippenaar says lobola is not expressly mentioned in legislation, but it is prima facie proof that a customary marriage has been negotiated, entered into or celebrated.
• Lobola is an essential custom practised in most customary communities and is fundamental when marrying into an African family. 

Not all people know that lobola is legally binding and a marriage contract. Many have been surprised by the legal implications when they are already in a marriage. 

Attorney Simon Dippenaar says even though lobola is not expressly mentioned in legislation as a requirement for a valid customary marriage, it is prima facie proof that a customary marriage has been negotiated, entered into or celebrated in line with customary law. However, a customary marriage will not necessarily be declared invalid without lobola.

READ MORE | 'I paid my own lobola because my husband couldn't afford it. I'm not the first woman to do it'

Section 1 of the Recognition of Customary Marriages Act (RMCA) 120 of 1998 describes customary law as:

" ...the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form parts of the culture of those people."

According to Section 3 of the RCMA, the requirements for entering into a customary marriage are:

- Both parties must be 18 years or older

- Both must consent to be married to each other under customary law

- The marriage must be negotiated and entered into or celebrated in accordance with customary law. 

-Lobola, as defined by the RCMA, is property in cash or in 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.

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Myths about customary law:

MYTH: You can enter into a civil marriage even if you are married in terms of customary law

No spouse in a civil marriage is competent to enter into another marriage (section 10(4)). The marriage will be declared void. Likewise, no spouse in a customary marriage is competent to conclude a civil marriage during the existence of the customary marriage (section 3(2)).

They may conclude a civil marriage as long as neither spouse is in an existing marriage with another person. Such marriage will be in community of property, profit, and loss unless an antenuptial contract (ANC) is in place detailing other arrangements.

MYTH: Women under the guardianship of a male

Traditionally, married women were considered to be under the guardianship of the husband. However, since the promulgation of the Constitution, a wife in a customary marriage has full status and capacity, including the capacity to acquire assets and to dispose of them, to enter into contracts and to litigate, in addition to any rights and powers that she may have under customary law.

This is based on the constitutional principle of equality with her husband. It is subject to the matrimonial property system governing the marriage, i.e., in community of property or out of community of property, with or without accrual.

MYTH: Failure to register a customary marriage renders it invalid

Failure to register a customary marriage does not affect its validity. However, a marriage certificate is prima facie evidence of the existence of the marriage.

READ MORE | 'My fiancé and his family didn't show up on the day they were supposed to pay my lobola'

MYTH: Women cannot inherit from their late father's estate

The Constitutional Court case, Bhe v Magistrate Khayelitsha and Other (2005), had extensive consequences for intestate succession in customary law. In the Bhe case, two girls challenged the rule that, in the absence of a will from their deceased father, they could not inherit from the intestate property on the grounds that they are female.

The court declared S23 of the Black Administration Act (BAA) unconstitutional because it discriminated on the basis of race, birth, and gender and enforced male primogeniture and denied women the right to inherit.

The court further stated that the Intestate Succession Act (ISA) would govern all intestate estates. This decision allowed for women to inherit from their late father’s or husband’s estates. 

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Truths about customary law

TRUTH: More than one customary marriage may be entered into, i.e., polygamous marriages are permitted

Section 2(4) of the RCMA states that if a person is a spouse in more than one customary marriage, all valid customary marriages entered into before or after the commencement of the Act are, for all purposes, recognised as marriages. 

TRUTH: Customary marriages are governed by legislation

The Recognition of Customary Marriages Act 120 of 1998 governs marriages performed under African customary law.

TRUTH: Lobola is still a fundamental custom in marriages

Lobola is an essential custom practised in most customary communities and is fundamental when marrying into an African family. 

Source: Rautenbach, C. Introduction Legal Pluralism in South Africa. 5th ed 2018 LexisNexis: Durban.