Lobolo

A customary marriage cannot occur if the necessary customs are not performed The RCMA does not specify lobolo to be a requirement for validity of a marriage but rather s3(1)(b) states The Marriage must be negotiated into in accordance with Customary Law Payment of lobolo is a main feature of cust law and a key factor that distinguishes civil marriage from customary marriage. Meaning of Lobolo

Lobolo is not an agreement to purchase or sale Lobolo is defined as property in cash or kind which a prospective husband or head of his family undertakes to give the head of a prospective wifes family in consideration of a customary marriage

Lobolo could consist of cattle, other animals or any other property as agreed to by the parties. In modern times cash is the preferred Lobolo.

The validity of the marriage is based on the agreement to pay lobolo. It is not necessary to pay lobolo prior to a marriage but it may be paid during the existence of a marriage.

Conditions A) Must be given in property (or equivalent in monetary value) B) Delivered in respect of marriage as opposed to payment for the wife C) Not necessarily given by husband; normally given on husbands behalf by his family group

D) The wife is not the recipient, but rather the family group Lobolo is not a brideprice or bridewealth (a distortion of the true meaning of the custom)

It is not a commercial transaction and the husband does not buy the wife The RMCA does not make a distinction between Lobola contract and Lobolo property and thus the definition may be problematic.

Should there be a distinction? Lobola Agreement is separate from the marriage agreement. Mpati AJA in the case of Mthembu held that there must be a marriage (customary union) and not merely a payment of bride wealth or part of it for the child to be transferred into the fathers family. It follows that, although part of the bride wealth was paid, without a customary union between parents, Thembi was not legitimized.

Ngwenya J in the Bhe case held that there is a misconception on the part of the third applicant which requires correction. She averred that had it not been the inability of the deceased to pay lobolo for her, they would have been married before he died. It has never been a prerequisite under African Customary law to pay lobolo before marriage is consummated. There must be an agreement, however, as regards to lobolo. It may be deferred as long as circumstances do permit payment. It is not uncommon that lobolo be paid upon the couples eldest daughter being loboloed. Payment of lobolo alone, does not mean that parties are married.

Purpose

creation of a contractual relationship A) Creates alliance between family groups- lobolo is the foundation of this alliance

B) Contract implying rights and duties, such as delivery of cattle Contribution towards wedding expenses Lobolo recipient a mediator A) Note dissolution based on lobolo agreement

B) Return of lobolo depends on who is at fault C) The RCMA s8(4) divorce court has powers contemplated under s7, 8, 9 and 10 of Divorce Act and s24 (1) of MPA but nothing in that section may be construed as limiting the role, recognised in cust law, of any person, including any traditional leader, in mediation, in accordance with cust law, of any dispute arising prior to dissolution of a cust marriage by court

D) Recipient of lobolo is required at dissolution to attempt to reconcile the parties

Lobolo recipients duty to provide protection and asylum A) A tendency to recognise the duty to protect a women whose lobolo one has received

B) Duty activated by dispute or desertion of the wife (RCMA s 8(4)) C) Lobolo recipient has general duty to help stabilise the marriage Guardianship and custody of children A) Lobolo vests guardianship on husbands family B) When marriage is dissolved, lobolo determines custody and guardianship of children.