Reconciling Lobolo with the Equality Principle: The need to realign official customary law with living customary law of South Africa

SUMMARY Much scrutiny has recently been directed towards African customary law mostly because of its traditionally patriarchal nature, which conflicts with the inalienable constitutional principle of equality. The landmark decision of Mabena v Letsoalo 1998 2 SA 1068 (T) comes to the fore wherein the High Court fostered constitutional values and championed living customary standards in respect of a lobolo dispute. This paper builds on this decision and undertakes desktop research on the potentially unfair discrimination of women in respect of the lobolo practice under official customary law. In this respect, gender validates lobolo under the Recognition of Customary Marriages Act 120 of 1998 (the Recognition Act) in that only the prospective husband or the head of his family has a duty to furnish lobolo while only the bride’s family head may receive the lobolo , at the exclusion of all others. In consideration of this, the paper sets out to evaluate whether the statutory gender requirement can survive constitutional scrutiny because it potentially marginalises women. The overarching aim of this paper is to analyse the obstacle that section 1 of the Recognition Act places on prospective brides by hindering them from furnishing lobolo to the family head of a prospective husband in consideration of a customary marriage. Furthermore, the paper also explores whether this prohibition aligns with the needs of contemporary society and whether the prohibition amounts to unfair discrimination. This being said the paper concludes that the Recognition Act’s lobolo gender requirement is unjustifiable and violates women’s human rights, and law reform is necessary to align official customary law with living customary law and constitutional values.


Introduction
The South African Law Reform Commission has recently taken steps to modernise the fragmented approach to family law in South Africa by proposing the introduction of a consolidated statute regulating marriages. 1Once it comes into operation, the statute will regulate customary marriages, civil marriages, civil unions and religious marriages. 2In respect of the Single Marriage Statute, it provides that lobolo distinguishes customary marriages from civil unions and civil marriages. 3Although lobolo is not the only distinction, it is the only factor outlined therein.This, among others, points to the importance of lobolo to customary marriages and indigenous communities in general.The Recognition Act, which currently regulates customary marriages, refer to lobolo as property in cash or 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. 4It is therefore deductible that gender plays an important role in validating lobolo in that only the prospective husband or his family head has a duty to furnish lobolo while only the prospective wife's family head may, 5 receive the lobolo, at the exclusion of all others.This is hereinafter regarded as a statutory gender requirement of lobolo in that the Recognition Act prescribes a gender requirement that must be followed during the lobolo practice.
This discussion evaluates whether the statutory gender requirement can withstand constitutional scrutiny to the extent that it potentially The proposed introduction of a consolidated statute regulating family law is in line with international trends.Zimbabwe has recently introduced the consolidated Marriages Act [ch 5:15] which commenced on 16 September 2022, which regulates customary marriages and civil marriages, and introduced civil partnerships -a novel feature in Zimbabwe's legal system.3 See Single Marriage Statute 17. 4 See s 1 of the Recognition Act.Lobolo can also be referred to as bogadi,  bohali, xuma, lumalo, thaka, ikhazi, magadi, emabheka or by any other name.5 Acceptance of the lobolo is considered consent for customary marriages.Therefore, if the bride's parents/guardians do not consent to the marriage, they may refuse to accept the lobolo.See Himonga and Nhlapo (eds) African customary law in South Africa: post-apartheid and living law perspectives (2014) 189.
marginalises women in South Africa.This inquiry is guided by the landmark decision of Mabena v Letsoalo, 6 and it answers whether the official customary law permits lobolo to be transferred to a prospective husband or his family head by a prospective bride or her family head in consideration of a customary marriage. 7The Mabena decision is important for this discussion because the court relied on living customary law in a matter relating to lobolo, which forms the subject of this paper.
Because a comprehensive analysis of the Mabena decision has already been undertaken by several scholars, this discussion only focuses on the impact that this decision may have on the statutory gender requirement and makes necessary recommendations. 8This inquiry is important because it is set in the background of an active reform initiative by the Law Commission, which necessitates an overhaul of family law practices to ensure that they are suited to the needs of contemporary society before incorporation into legislation.
In respect of lobolo, it plays an important social role in civil marriages, 9 and it is fundamental in the formulation of customary marriages. 10Over the years, lobolo has survived an onslaught of colonial overreach; however, empirical evidence indicates that it continues to be valued and practised in many indigenous communities across South Africa. 11The continued significance of lobolo was to some extent propelled by the exclusion of lobolo from the repugnancy clause during the predemocratic era. 12It is however noteworthy that some researchers argue that the lobolo practice is insignificant and has no value in modern societies. 13other aspect of contestation regarding lobolo is whether its conclusion is essential in validating customary marriages.To this end, some commentators argue that lobolo negotiations constitute a validity requirement and failure, which invalidates the customary marriage.However, other commentators dispute this assertion and argue that lobolo merely has a social significance and non-conclusion thereof does not affect the validity of the marriage. 15The former is not preferred because it has far-reaching consequences, which is not the intention of the legislature.It is however noteworthy that a perception exists in some indigenous communities that a customary marriage is not valid if lobolo negotiations are not concluded. 16 respect of the main aim of this discussion, it proposes law reform by, inter alia, repealing the potentially unconstitutional statutory provisions of the Recognition Act that result in the differential treatment of women.To this end, the Recognition Act unjustifiably inhibit women from validly transferring lobolo to a prospective husband's family in consideration of a customary marriage, which, as shall be seen below, is a violation of women's human rights.In pursuit of this goal, this discussion is structured as follows.First, an introductory overview is provided in paragraph one.This is followed by a brief discussion of the Mabena decision in paragraph two.This discussion is important because it guides the analysis that follows.Thereafter, an evaluation of the main functions of lobolo is undertaken in paragraph three.This paragraph is fundamental because it highlights the nexus, or lack thereof, between the statutory gender requirement and the functions of lobolo.After this discussion, an evaluation of the impact of constitutional principles is undertaken in paragraph four.Lastly, a conclusion is drawn in paragraph five and a summary of recommendations provided throughout this paper is provided.

Mabena v Letsoalo
The facts of the Mabena case are briefly as follows.The deceased, Mr Joseph Mabena, who passed away on 23 April 1994 had along with his two delegates concluded lobolo negotiations with the respondent; The respondent's mother and the respondent's uncle. 17 negotiations, an amount of R600 was agreed upon as lobolo.The deceased had also in 1988 paid R200 towards "damages" 18 for the pregnancy of the respondent. 19During the time of his death, Mr Mabena lived with the respondent along with their child in the house he had purchased in Mamelodi, a township in Pretoria. 20on the death of Mr Mabena, the magistrate determined, according to the provisions of the Black Administration Act, 21 that a valid customary marriage existed between the respondent and the deceased, Mr Mabena.The deceased's father lodged an appeal against the magistrate's findings on the basis that he had not consented to the customary marriage, therefore the marriage did not satisfy the necessary validity requirements. 22Furthermore, he challenged the lobolo negotiations, which were concluded in the absence of the respondent's father.In respect of the latter issue, the respondent presented before the court that her father had deserted his family.In light of this, she argued that living customary law recognises lobolo negotiations concluded in the absence of a male family head. 23cause the marriage was concluded before the Recognition Act came into force, 24 the marriage should have complied with the requirements that applied before this statute came into operation. 25As a result, consent from the deceased's parents regarding the marriage was essential to validate the marriage. 26In respect of this requirement, the court held that there is no reason to hold that an independent adult man is not entitled to negotiate for the payment of lobolo in respect of his chosen bride.Furthermore, the court held that there is no reason to hold that such an independent man requires the consent of his parents to marry.In respect of the second matter, namely, the absence of the respondent's father during the lobolo negotiations; the court held that the rule that a woman who is head of her family may negotiate for and receive lobolo is not repugnant to the customary law of marriage. 27onsequently, the court determined that it must be accepted that there are instances where mothers negotiate and receive lobolo and consent to the marriage of their daughters. 28As a result, the court dismissed the appeal with costs.The main implication of the Mabena decision, which is of interest in this discussion, is that the court recognised living customary law standards by validating lobolo negotiations concluded by the mother of the bride.This decision is also important because the court developed customary law in accordance with the spirit, purport and objects of the Bill of Rights. 29wever, some commentators have argued that any empirical evidence indicating the actual position under living customary law does not support the living customary law principle applied by the High Court.To this end, Bennett points out that the court recognised the purported living customary law principle because it "was consonant with the requirement of gender equality in section 9 of the Constitution". 30lthough this warrants further discussion, we do not explore this further because this might derail the purpose of this paper.It is nonetheless noteworthy that this decision set an important precedent that the judiciary must recognise and apply living customary law whenever it is called upon to do so and that the judiciary must develop customary law in line with constitutional values.
In light of the foundation laid by the High Court in the Mabena decision, this paper evaluates the Recognition Act's gender requirement in the definition of lobolo, which side-lines women in South Africa.To this end, official customary dictates that lobolo may only be statutorily recognised if it is transferred by a prospective husband or his family head to the family head of a prospective bride.This marginalises women in that a prospective bride is inhibited from transferring lobolo to the family of a prospective husband in consideration of a customary marriage even in circumstances where the bride is better positioned than her prospective husband.This includes where the prospective bride is in a better financial position allowing her to furnish the lobolo.This however starkly contrasts the position under living customary law where several cases have been recorded wherein brides or their families have successfully transferred lobolo to families of prospective husbands in consideration of a customary marriage.Because of this differential treatment, there is a glaring lacuna in official customary law and the discussion that follows argues for law reform in respect of the definition of lobolo by the Recognition Act.To achieve this, an analysis of the functions of lobolo is undertaken hereinunder aiming to determine whether gender plays any role in fulfilling these functions.To this end, this discussion highlights the nexus, or lack thereof, between lobolo and the statutory gender requirement.Suppose that this discussion concludes that there is no link between the functions of lobolo and the statutory gender requirement, recommendation is provided, which aims to eradicate the discrimination.This is achieved by proposing a gender-29 Mabena v Letsoalo para 1069.Also see s 39(2) of the Constitution of the Republic of South Africa, 1996.30 Bennett 2009 American Journal of Comparative Law 13. neutral definition of lobolo in section 1 of the Recognition Act.Although a gender-neutral definition is preferred, this should not be read to accommodate same-sex unions because no firm empirical evidence exists regarding the significance of lobolo to such unions. 313 The purpose and function of lobolo Knoetze, correctly summarises the functions of lobolo as mainly: (1) contract of sale; (2) counter-performance for the transfer of guardianship over the wife; (3) seeking approval from the ancestral gods; (4) legalising the marriage and legitimising the children; and (5) providing stability to the marriage and to ensure maintenance for the wife after the dissolution of the marriage. 32Olivier, also provides that lobolo serves to legalise the marriage, to legitimate the children born of the women, to act as a form of compensation in a general sense, to place the responsibility upon her father to support her if it should become necessary, to stabilise the marriage, and to ensure the proper treatment of the wife by the husband and his family.It is clear, however, that the primary function of the lobolo is to transfer the reproductive capacity of the woman to the family of her husband; in other words, there is a direct correlation between (a) the transfer of the lobolo, and (b) the reproductive potential of the woman. 33ese main functions are discussed below.It should be noted at the onset that the discussion that follows aims to position the main focus of this paper in its proper context.This discussion crucially highlights the link, or lack thereof, between the functions of lobolo and the statutory gender requirement.The overarching questions that this discussion answers are as follows: (i) Is the statutory gender requirement important in fulfilling the functions of lobolo?and (ii) Do the traditional functions of lobolo suit the needs of contemporary indigenous communities?
First, this analysis focuses on the economic function of lobolo.In the main, this function holds that lobolo is generally intended to compensate the wife's family head and to place the responsibility of support upon him in case of dissolution of the marriage.It is plausible that the economic function of lobolo is rooted in the traditional socio-economic and political incapacitation of women in indigenous communities.This incapacitation emanates from the patriarchal nature of African Customary law, which only recognised male family heads. 34This was concretised in legislation, which relegated women to perpetual minors. 35s a result, male family heads were obliged to support their immediate and, at times, extended family members.Therefore, lobolo was 31 See Osman and Baase "The recognition of same-sex customary marriages under South African customary law" 2022 South African Journal on Human Rights 13-5 for a discussion of the non-recognition of same-sex marriages and the potential role of lobolo in such unions.32 Knoetze 2000 Journal of South African Law 532-3.33 Olivier, Bekker and Olivier Indigenous Law (1995) 33. important because it transferred the family head's financial responsibility over a female dependent to the prospective husband.Additionally, lobolo compensated the family head for the expenses he incurred while taking care of the bride while under his care.Lastly, lobolo was also security enabling a family head to support the bride if the marriage was dissolved.
In light of the above, it may be surmised that the statutory gender requirement of lobolo was justifiable because of the nexus between lobolo and gender.In summary, lobolo facilitated the protection of women's interests by ensuring their sustenance during the existence of the customary marriage as well as after its dissolution. 36However, it is debatable whether this function applies in contemporary societies because of the recent shift in the socio-economic and political status of women in South Africa.
The recent effort towards financial literacy has been pivotal in emancipating women. 37Although the socio-economic and political inequality between men and women continues to exist in some indigenous communities, it is noteworthy that women are presently better positioned in some respects. 38This is also set to improve further because of measures such as affirmative action, which promotes the interests of women and other previously disadvantaged groups. 39ecause of the shift in respect of the socio-economic and political status of women, we argue that the economic function of lobolo has thus become obsolete.Women are no longer dependent on their male counterparts; therefore, the economic function of lobolo that justified the statutory gender requirement no longer aligns with the needs of a changed society.
Secondly, it is widely held that lobolo serves a legal function.Many debates have arisen regarding this function with some commentators arguing that lobolo constitutes an essential feature of customary marriages, which validates the marriage. 40 commentators reject this assertion and argue that lobolo does not affect the validity of customary marriages. 41The divergence of views is largely fuelled by the legislature's silence on this matter along with the seemingly contradictory decisions by the judiciary regarding this area of indigenous law.Much of the debate regarding the legal function of lobolo is developed from the open-ended requirement that customary marriages must be "negotiated and entered into or celebrated in accordance with customary law". 42In respect of this debate, the Law Commission has recommended that 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. 43irdly, lobolo also serves a spiritual function.To this end, it is put forward that lobolo facilitates approval from ancestors in the marriage process and unites the two kinship groups.Customary marriages starkly contrast civil unions and civil marriages in that customary marriages involve two kinship groups from the period of formation until the dissolution of the marriage. 44Lobolo unites the living and dead members of the two kinship groups.This also gives rise to the belief in the indissoluble nature of customary marriages either through death or divorce. 45stly, it is also held that one of the main functions of lobolo is in relation to reproduction.To this end, it is argued that lobolo transfers the reproductive capability of the bride to the family of her husband. 46owever, as pointed out above, the recent socio-economic and political reforms have freed women from societal expectations that relegated them to childbearing and child-rearing roles. 47This has led to a growing number of young adults opting not to reproduce. 48 developments in society, the paper then questions the current applicability of the reproductive function of lobolo in contemporary society.In this regard, we inquire whether the reproductive function applies where the bride and/or her husband do not desire to procreate or where either (or both) of the prospective spouses is barren.In such instances, the paper thus posits that the archaic reproductive function of lobolo no longer applies in a contemporary society where reproduction no longer constitutes the main aim of marriage.
In summary, it has been highlighted that traditionally there was a rational link between lobolo and gender.This link was most pronounced in the reproductive and economic functions of lobolo; the latter of which ensured the protection of women's interests.However, of late society has undergone seismic change, which has culminated in the elevation of the socio-economic and political status of women in indigenous communities.This change in status no longer warrants the specific protection of women through practices such as lobolo.In some instances, women are now better positioned than men and in a certain respect, some women have acquired the family head role.
Despite the reforms in indigenous communities, empirical evidence indicates that lobolo continues to be sacrosanct in most indigenous communities.To this end, a belief exists in some communities that marriage is not valid if lobolo negotiations are not concluded.Some researchers postulate that lobolo no longer serves the traditional functions and it continues to be practised because it is regarded as an essential feature of the culture of indigenous people across Southern Africa.It is in this context that the paper now questions the barrier imposed by the definition of lobolo by the Recognition Act on women and the impact of the inhibition on the right to practice one's culture.

Constitutional consideration
The Constitution is the supreme law of South Africa and every law, including customary law, inconsistent with it is invalid. 49One of the principles that it safeguards is the right to equality and nondiscrimination. 50Discrimination is also prohibited by the Promotion of Equality and Prevention of Unfair Discrimination Act, 51 which was enacted to give effect to the Constitution's prohibition of unfair discrimination.Although this statute has been instrumental in ensuring the protection of human rights for all South Africans, challenges have been experienced concerning customary law, which the judiciary has on several occasions been called to pronounce.It should be pointed out that customary law is distinguished between living and official customary law.Living customary law is preferred over official customary law because it represents the lived experiences of indigenous people. 53On the one hand, living customary law constantly evolves to meet the needs of the respective community, which it regulates.On the other hand, official customary law, which is the written customary law found in textbooks, statutes and other sources, is divorced from the needs of indigenous people and it requires a drawnout legislative process to reform. 54Therefore, when interpreting and applying the rigid rules of official customary law, it is important to take note of the political, judiciary and administrative context in which it was developed and applied. 55 respect of the differences between living and official customary law, the Mabena decision was instrumental in pronouncing the need to rely on living customary law in so far as it reflects the lived experiences of indigenous people. 56This decision is important for this discussion because of the glaring lacuna in official customary law.It has been highlighted that the Recognition Act inhibit a bride or her family from transferring lobolo to the family of a prospective husband in consideration of a customary marriage.This starkly contrasts the position under living customary law where several instances have been publicised where women have validly transferred lobolo to the families of prospective husbands in consideration of customary marriages. 57e widely publicised case of Zodwa "Zodwa Wabantu" Libram, is an example. 58In this case, Libram paid lobolo to the family of her ex-fiancé Ntobeko Linda in 2019 in consideration of a customary marriage.Although the parties did not end up concluding the customary marriage, the lobolo negotiations were widely reported as reflecting the reform of living customary law that has substantially evolved to meet the needs of a changed society. 59e aforementioned example is not an isolated phenomenon, it represents a wider shift in perception towards lobolo in indigenous communities in South Africa and across various other Southern African countries. 60This shift is propelled by, among others, the changed perception of lobolo by customary law practitioners who have pointed out that lobolo is patriarchal, 61 and it perpetuates gender-based violence among married couples. 62These challenges regarding lobolo may be 53 See Himonga and Nhlapo (2014)  eradicated by aligning official customary with living customary law, which represents a forward-looking position that balances culture and the socioeconomic and political demands of the prevailing society.

1 The right to equality and culture
Because of the changes in living customary law relating to the lobolo practice, we argue that law reform is necessary to ensure that official customary law reflects the lived experiences in indigenous communities and the constitutional prescripts that guide law in South Africa.However, like the Mabena decision, one might argue that the purported reforms under living customary law do not reflect the position in most indigenous communities; therefore, an inaccurate representation of living customary law.Although further analysis may reveal that this assertion may largely be true; we hold that the definition of lobolo under section 1 of the Recognition Act is inconsistent with the Constitution, thus null and void.As a result, the extent of application of the purported living customary law practice is moot because of the inconsistency of the official customary law position with the Constitution.The definition of lobolo in section 1 of the Recognition Act is inconsistent with the Constitution in that it maintains the differential treatment between men and women in respect of lobolo.
In relation to this discussion, the Constitution guarantees equal protection and equal benefit of the law for all persons who find themselves in the same or similar positions.Section 9 of the Constitution provides that: (1) Everyone is equal before the law and has the right to equal protection and benefit of the law.(2) Equality includes the full and equal enjoyment of all rights and freedoms.
To (5) Discrimination on one or more of the grounds listed in subsection ( 3) is unfair unless it is established that the discrimination is fair.
As indicated above, the Recognition Act only recognises lobolo transferred by a prospective husband or his family head to the family head of a prospective bride.Therefore, gender is important in validating lobolo because of this statutory gender requirement.This has the unintended consequence of differentiating between men and women who are currently generally similarly positioned, which starkly contrasts living customary law and contradicts the values of the Constitution.
In relation to the inequality inquiry at hand, the first test to determine a violation of section 9 of the Constitution is to establish whether a rule differentiates between people or groups of people. 63Differential treatment has already been established above; therefore, the inquiry then shifts to establish whether there is a rational connection between the differentiation and whether a legitimate government purpose is achieved by the differentiation. 64 respect of the issue under consideration, the differential treatment by the Recognition Act is a violation of the human rights of women and this arguably amounts to unfair discrimination.To this end, it must be noted at the onset that the Constitution permits fair discrimination while unfair discrimination is impermissible.Regarding this distinction, unfairness is presumed if the discrimination is on a specified ground. 65 relation to lobolo, section 1 of the Recognition Act differentiates on the listed ground of gender; therefore, it is presumed that the discrimination is unfair.The court in Prinsloo v Van der Linde defined unfair discrimination as "treating persons differently in a way which impairs their fundamental dignity as human beings, who are inherently equal in dignity". 66We hold that the differential treatment between women and men under the official customary law outlined above is unfair and it serves no government purpose because this reflects the patriarchal nature of customary law, which impairs the fundamental dignity of women.
Lastly, it is also noteworthy that the Constitution also guarantees the right to culture. 67This entails the right of individuals to enjoy their culture, practise their religion, use their language, and form and maintain cultural, religious and linguistic associations. 68 culture of the people in those communities.Therefore, official customary law is inconsistent with the Constitution to the extent that section 1 of the Recognition Act unjustly inhibits women's right to practice the culture of their choice.This differential treatment between men and women further necessitates law reform, which this paper proposes, without compromising culture and belief.

Recommendations and conclusion
The article has highlighted the shift in the socio-economic and political position of women in indigenous communities in South Africa and select Southern African countries.This shift has led to law reform in respect of living customary law specifically in respect of the lobolo practice to accommodate the changed circumstances of women.In this regard, living customary law has on several occasions validated lobolo transferred by a bride to the family of a prospective husband in consideration of a customary marriage.This change has however not been reflected by official customary law where the Recognition Act prescribes a gender requirement, which entails that a prospective husband's family has a duty to transfer lobolo while the prospective bride's family may receive the lobolo, at the exclusion of all others.This position under official customary law does not reflect the needs of a changed society and has been argued to amount to unfair discrimination of women because of the differential treatment.To remedy this discrimination, the paper proposes that the legislature amend section 1 of the Recognition Act by introducing a gender-neutral definition of lobolo, which will align official customary law with living customary law and meet the constitutional muster.
Because of the unique position of customary law, a distinction exists between living and official customary law.On the one hand, living customary law is always undergoing development because it continually changes to suit the changing needs of society.On the other hand, official customary law reflects ossified rigid rules of law that are detached from the realities of indigenous people.Regarding the latter, law reform requires, in most instances, a long-drawn-out legislative process.In light of this, the paper proposes that the legislature amend the definition of lobolo in section 1 of the Recognition Act to read as follows: Lobolo means the property in cash or kind, whether known as lobolo, bogadi, bohadi,  xuma, lumalo, thaka, ikhazi, magadi, emabheka or by any other name, which a prospective spouse or the head of his or her family undertakes to give to the head of his or her prospective spouse's family in consideration of a customary marriage.This reform exercise must be finalised before the consolidation proposal by the Law Commission is incorporated into law.
It has been pointed out above that the continued significance of lobolo in Southern African countries generally emanates from the belief that lobolo forms part of the 63 Harksen v Lane 1997 ZACC 12 para 52(a).64 As above.Also see Currie and De Waal The bill of rights handbook (2013) 216.65 Harksen v Lane para 52; De Vos and Freedman South African constitutional law in context (2014) 450.66 1997 3 SA 1012 (CC) 1026 para 33.67 See ss 30 and 31 of the Constitution.68 As above.

1
See, in general, South African Law Reform Commission -Project 144 Single Marriage Statute Issue Paper 35 (hereinafter the Single Marriage Statute).The South African Law Reform Commission was previously referred to as the South African Law Commission and its main objective is to do research concerning all branches of the law to make recommendations to the government for the development, improvement, modernisation or reform of the law (hereinafter the Law Commission).At present three different pieces of legislation regulate family law in South Africa.Customary marriages are regulated by the Recognition of Customary Marriages Act 120 of 1998, (the Recognition Act), while civil marriages and civil unions are respectively regulated by the Marriages Act 25 of 1961 and the Civil Unions Act 17 of 2006.See Bwanya v Master of the High Court, Cape Town 2021 ZACC 51 regarding permanent life partnerships.2