versión On-line ISSN 1727-3781
PER vol.16 no.1 Potchefstroom abr. 2013
The enforcement of the payment of lobolo and its impact on children's rights in South Africa*
Nqobizwe Mvelo Ngema. LLB (UNIZUL), LLM (UNISA), Certificate in Post Graduate Supervision (Rhodes). Lecturer, Department of Public Law (University of Zululand). Email: firstname.lastname@example.org
Various communities in South Africa practise the custom of lobolo (payment in kind or cash by a prospective husband or the head of his family to the head of the prospective wife's family in consideration of a customary marriage). These communities may be divided into two groups, those practicing theleka (the withholding of a wife by her father or guardian from her husband to coerce him to pay the outstanding lobolo) and those that do not. In the communities practising theleka the amount of lobolo is not fixed and the father or guardian of the wife may from time to time theleka the wife and demand one to three head of cattle from his son-in-law. The wife and her children, if there are any, may be held by their maternal grandfather until the payment of lobolo has been met.The main issue this article examines is whether the custom of thelekaimpacts on the custody of children or not. It also examines the concept of the best interests of the child and finds that theleka custom in its current form does impact on the custody of the child and conflicts with the child's best interests. The article suggests that theleka custom needs to be developed to conform to the Constitution. It also examines whether or not the custom of theleka constitutes abduction and family violence. The writer submits that it does not constitute abduction and family violence and advocates that theleka custom be allowed to continue.
Keywords: customary law; lobolo; theleka custom; custody; best interest of a child; family violence
The Recognition of Customary Marriages Act1 defines the custom of lobolo as:
Property in cash or in kind, whether known as lobolo, bogadi, bohali, xuma, lumalo, thaka, magadi, amabheka or by any other name, 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.2
Various communities in South Africa practise the custom of lobolo, which people give different names, is shown above. These communities may be divided into two groups, those practicing theleka and those that do not. This article will focus on those communities that practise theleka3 In the communities practising theleka the amount of lobolo is not fixed and the father or guardian of the wife may from time to time theleka the wife (her married daughter) and demand one to three head of cattle from his son-in-law.4 The wife and her children, if there are any, may be held by their maternal grandfather until the payment of lobolo has been met.5
The practice of theleka has an effect on the custody of the child and the relationship of spouses in a customary marriage. The writer draws this conclusion because the wife and her children are held by her guardian or father until the completion of the payment of loboolo. The custom of theleka, which serves as a way of enforcing loboolo amongst Xhosa communities, seems to be in conflict with the best interest of the child as entrenched in the Constitution6 This is because the court has to consider various factors before granting an application7 and it would be unjust if the best interest of the child were to be determined by the payment or non-payment of a certain number of cattle. The South African Law Commission8 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 nonpayment will have no effect on the spouses' relationship or on their rights to any children born of the marriage.9
If this recommendation were to be taken seriously, then the continuation of theleka custom may be considered unconstitutional. Unfortunately there is no judgment in South Africa since 1994 that has ruled on this issue. This first section of this article will discuss the enforcement of lobolo. The second section, dealing with custody in customary marriages, will also draw certain inferences. The third section will analyse the notion of the best interests of the child again draw certain inferences. The fourth section analyses and answers two questions, namely: does the custom of theleka constitute abduction? Does the custom of theleka constitute family violence? And it makes recommendations based on the discussion and analysis about what should be done about theleka custom.
The following section discusses the enforcement of lobolo in customary law.
2 The enforcement of lobolo in customary law
The manner of enforcing loboloagreements in customary law varies among different cultural groups or tribes in South Africa. Some communities have a fixed amount of
lobolo. The lobolo can be fixed either by agreement between the parties or by the accepted custom in that tribe. In tribes that have a fixed amount of lobolo, the delivery of lobolo has to take place before the celebration of the marriage.10
It is also worth noting that some communities have no fixed amount of lobolo cattle to be delivered, the marriage depending on the delivery of a reasonable number of cattle.11 The court has discretion to decide what constitutes a reasonable number of lobolo cattle or amount of money, having regard to what average lobolo has been established in the community concerned, and bearing in mind the social standing of the woman.12 Among various Xhosa communities, the amount of lobolo payable is not limited to a specific amount and constitutes a bond of goodwill between the families of the bride and the bridegroom for the entire life of the bride and even after her death. The prospective bridegroom would be expected to give up one, two or three head of cattle each time his father-in-law turned to him for help.13 Therefore, it is inconceivable that the bridegroom would refuse to give him the cattle if he was in a position to help. Moreover, there is the influence of tradition as well as the religious sanction.14 There is a belief among traditionalists as well as non-traditionalists that a woman for whom lobolo was not delivered will not have children.15 This does not mean that lobolo buys the reproductive capacity of a woman, but that the ancestors will not allow her to procreate.16 The South African Law Commission17 has noted that the payment of lobolo
is the framework that people use to express and to bring about complicated changes in terms of relationships and deep changes in terms of emotional realities, values, attitudes and concepts. It is also the language that the ancestors understand and bless.
This shows that people who adhere to the custom of lobolo view it as a significant custom that connects them with their ancestral spirits. Failure to pay it might therefore bring bad luck and the bridegroom may encounter difficulties if he resists the payment of lobolo. These views on lobolo are affirmed by the observation that lobolo is widely practised by most black South Africans, who are not prepared to abandon it despite the difficulties it gives rise to.
If the wife's father or guardian demands a reasonable amount of lobolo, the bridegroom has an obligation to comply with those demands.18 The failure to comply therewith entitles the father or guardian of the wife to theleka her until the demand has been met. This means that the wife, together with her children, can be taken back to the wife's family group and held under theleka until her husband complies with the demand for the payment of lobolo.19 The wife's father or guardian usually resorts to theleka rather than a court action for the enforcement of lobolo, and if the wife's father were to institute a court action without resorting to theleka, his son-in-law could raise the omission to thelekaas a defense.20
South African courts have already ruled that the wife's father or guardian should not be entitled to resort to customary law methods for the enforcement of lobolo in relation to civil or Christian marriages.21 This shows that the guardianship of children born of a civil marriage is governed by common law.22 It is relevant to consider the civil law position in regard to this issue. This point is made here because the payment of lobolo is not essential to the validity of a civil or Christian marriage. In the case of Cheche v Nondabula23 the parties were Hlubis. The father of the bridegroom (the defendant) was involved in the negotiations that preceded his son's marriage. The defendant paid to the plaintiff eight head of cattle and the equivalent of three others in cash as lobolo. The plaintiff sued, among other things, for the payment of fourteen head of cattle and one horse as the balance of lobolo. It was a custom amongst the Hlubis to have a fixed amount of lobolo of twenty-five head of cattle and one horse. The defendant pleaded that he had agreed to pay only twelve head of cattle, but the court rejected his evidence and treated the case as one in which there was a marriage without an express lobolo agreement. The court held that the payment of loboolo is not essential to the validity of a civil or Christian marriage. When it is paid in a civil marriage the lobolo contract is ancillary to the marriage contract and must be subject to a special agreement and cannot be implied. The court held further that the custom of theleka is not consistent with Roman-Dutch law of marriages.
In a similar case of Gomani v Baqwa24 the plaintiff sued for the return of lobolo paid by him to the defendant whose daughter he married according to civil rites. In this case it was alleged that the woman had committed adultery and deserted the plaintiff and thereafter cohabited with Luswazi This marriage was dissolved by the court of the chief magistrate on the ground that the wife committed adultery. The magistrate held that the dissolution of a Christian marriage has nothing to do with the question of the return of lobolo.
The following section deals with custody in customary law and how it is regulated.
3 Custody in customary law
Custody is defined by Bekker as:
the capacity of a person to have actual physical "possession" of the minor, to live with him or her, to take care of him or her and to assist him or her in his or her daily life.25
In communities practicing theleka the wife and her children are held by the guardian or father of the wife until the payment of lobolo is made. This practice has an impact on the custody of the children because the father of the wife gains the possession of her daughter together with her children and lives with them until the payment of further lobolo has been made. To put it differently, the parents-in-law of the husband take custody of his children.
In customary law, the parental rights are determined by the payment of lobolo26 If the husband has complied with his duty to pay lobolo, he and his family group have full parental rights to the children had by the wife during the existence of the marriage. Customary law places more emphasis on deciding to which family a child is linked. This is aptly summed up in Madyibi vNguvê27 as follows:
By nature the progeny of a woman accrue to her father's group and are members of his group and tribe for religious and political purposes ... these rights and duties are transferred by Native law to another group only on contraction of a valid customary union whereby the woman's group receives lobolo from the other group and transfers the natural right to the woman's productive powers and her progeny to the group providing lobolo.
However, our courts are in favour of giving effect to the principle of the best interest of the child whenever the custody of the child is under dispute.28
In the case of Hlophe v Mahlalela,29 the court applied the principle of the best interest of the child when the father of a minor child was seeking custody of his child based on the fact that he had partially paid lobolo. The court was afforded the opportunity to consider the award to a father of the custody of his minor children after the death of his wife. The spouses had been married under Swazi customary law and the payment of lobolo had not yet been settled at the time of death of the wife. Van den Heever AJ held that notwithstanding any general customary law position regarding the custody of children, the basic principles of customary law regulating child custody had been excluded in favour of the common law.30 This meant that the principle of best interest of the child took precedence over the basic principles regulating custody in customary law.31 This case shows that issues relating to the custody of a minor cannot be determined by the mere delivery or non-delivery of lobolo.
The custom of theleka has an impact on the custody of children held in terms of that custom because the children so held might be prevented from attending a school they are used to, or even the quality of the education they receive might be affected. In the light of the constitutional protection of the right to education, it becomes obvious that theleka carries grave implications. The right to education is protected in the Constitution32 and is a universally recognised right. The United Nations Declaration of Human Rights proclaims that "education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms".33 Parents are vested with the prior right to choose the kind of education to be given to their children.34 A similar provision is contained in the International Covenant on Economic, Social and Cultural Rights. This Covenant recognises the right to education and provides that education should be purposive and "directed to the full development of the human personality and the sense of dignity".35 It is submitted here that the right of the child to human dignity and other rights enshrined in the latter international human rights instruments would be violated if he or she were to be prevented from attending school just because of the incomplete payment of lobolo for the mother.
The following section analyses the concept of the best interests of the child.
4 The best interests and wishes of the child
The Convention on the Rights of the Child36 stipulates that the best interests of the child shall be a primary consideration in all actions concerning the child. South Africa is compelled to implement the principle of safeguarding best interests of the child because it is a signatory to the convention. South Africa has gone a further step in promoting the best interest of the child by incorporating the principle in section 28 of the Constitution, which provides that "a child's best interests are of paramount importance in every matter concerning the child". It has been noted that it is not an easy exercise to determine the best interest of the child. Further, the question is exacerbated by the fact that the issue has not been given exhaustive treatment in South African, foreign or international jurisprudence.37 Furthermore, the wording does not prescribe the range of factors that must be considered in determining what constitutes the child's best interests.38 The imprecision that surrounds the concept has led one of the commentators to declare that it is indeterminate and working with it is similar to exercising "Solomonic judgment."39 The other difficulty about the principle is that "what is best for a specific child or children cannot be determined with absolute certainty".40 This is aptly summed up in the Constitutional court judgment in S v M.41 There Sachs J acknowledged the indeterminacy of the notion of "the best interest of the child" and stated that it provides little guidance to those given the task of applying it. The learned Justice held that:
... it is necessary that the standard should be flexible as individual circumstances will determine which factors secure the best interests of a particular child. Furthermore, the list of factors competing for the core of best interests is almost endless and will depend on a particular factual situation.42
Bennett observed that "according to the conventional wisdom in the 1930s, 1940s and 1950s, customary law had no particular concern with the welfare of children.
Instead its emphasis lay on deciding to which family a child should be affiliated".43 It is a pity that even today the best interests of the child and the wishes of the child are not taken into consideration by those communities that practice the custom of theleka as a way of enforcing loboolo agreements.
The failure to consider the best interests of the child and the wishes of the child conflicts with the provisions of the Convention on the Rights of the Child, which emphasises the significance of considering the opinion of a child when determining his or her best interests. The Convention stipulates that:
1 States parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2 For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.44
Similarly, the European Convention on the Exercise of Childdren's Rights45 stipulates that a child:
Considered by internal law as having sufficient understanding shall in judicial proceedings affecting him be granted and be entitled to request the following rights:
a) To receive all the relevant information;
b) To be consulted and express his or her own views;
c) To be informed of the possible consequences of compliance with these views and the possible consequences of any decision.
The African Charter on the Rights and Welfare of the Child46 also protects the best interests of the child47 in similar terms to those provided by the United Nations Convention on the Rights of the Child. It provides that the views of the child have to be taken into consideration in matters affecting the child as follows:
In all judicial or administrative proceedings affecting a child who is capable of communicating his or her own views, [an] opportunity shall be provided for the views of the child to be heard either directly or through an impartial representative as a party to the proceedings, and those views shall be taken into consideration by the relevant authority in accordance with the provisions of appropriate law.48
The provisions of the latter international and regional human rights instruments lead to an inference that the custom of theleka conflicts with them. The consideration of the child's opinion in matters affecting him or her is of crucial importance because it enables the court to be acquainted with the child's needs, problems and aspirations, the kind of relationship he has with each parent, and the child's personality.49 In order for the opinion of a child to be considered, his or her age50 and maturity51 have to be considered too.
The following section discusses whether theleka custom constitutes abduction or not.
5 Does theleka constitute abduction?
Snyman defines abduction as:
[a] person, either male or female, commits abduction if he or she unlawfully and intentionally removes an unmarried minor, who may likewise be either male or female, from the control of his or her parents or guardian and without the consent of such parents or guardian, intending that he or she or somebody else may marry or have sexual intercourse with the minor.52
The theleka custom does not constitute abduction, because the action of the father or guardian of the wife to resort to theleka custom as a way of enforcing lobolo is not unlawful and it is permitted in those communities practising it. The intention of a person practicing theleka custom is to enforce lobolo agreement and not to marry or have sexual intercourse with the minor. Therefore, the argument that theleka custom constitutes abduction is not persuasive. It is submitted here that theleka custom does not constitute abduction.
The following section will discuss whether the custom of theleka constitutes family violence or not.
6 Does theleka constitute family violence?
The following acts are recognised as domestic violence in the Domestic Violence Act:53 physical abuse; sexual abuse; emotional, verbal and psychological abuse; economic abuse; intimidation; harassment; stalking; damage to property; entry into complainant's residence without consent, where the parties do not share the same residence; any other controlling or abusive behaviour towards a complainant, where such conduct harms, or may cause imminent harm to, the safety, health or wellbeing of the complainant.
In the light of this definition the challenge is that some husbands believe that they are entitled to chastise or assault their wives physically because they paid lobolo for them.54 Assault is a form of physical abuse that constitutes family violence.55 The belief that it is permissible to assault or chastise women is exacerbated by a change in the practices regarding the payment of lobolo. nowadays grooms usually pay lobolo from their own pockets, rather than having their families pay lobolo for their first wives.56 This tendency has led to the limitation of the groom's family's ability and willingness to intervene in the marriage and to end family violence.57 Currie and Bonthuys58 have aptly argued that the vulnerability of women to family violence has increased, as follows:
Because lobolo is paid to wives' fathers and is often spent shortly after being received, wives' families may be reluctant to allow them to return home when they suffer domestic violence because of their inability to return the lobolo to the husband. Thus women's own families may collude with violent husbands to trap them in abusive marriages.59
On the other hand, theleka custom serves as a way of stopping family violence. It is practiced when the husband has ill-treated his wife, especially by seriously assaulting her. The father or guardian of the wife may request a beast as damages from his son-in-law if the latter has assaulted his wife. The beast paid may be in excess of the lobolo originally specified. This purpose of theleka custom is good, because it reduces instances of family violence by demanding that the wrongdoer (the husband) has to pay damages if he has assaulted his wife.
It is noted that, despite its advantages, the custom has weaknesses. This is because the payment of one beast or two as damages for assaulting a wife might not be too difficult a fine for rich men. Thus a rich man could assault his wife repeatedly knowing that he will be able to afford to pay damages. This eventually might expose 416 / 536 rural women to family violence despite the practice of theleka custom, which is otherwise designed to protect them.
The chastisement of a wife by her husband is a family matter that is generally regarded as a private matter and is not meant for the eyes and ears of outsiders, and communities disapprove of women who resort to public forums to deal with domestic violence.60 A wife would therefore approach a traditional court only as a last resort. This is exacerbated by the fact that the Domestic Violence Act, which aims to provide speedy, effective and accessible relief to various complainants,61 seems to be an unfulfilled dream to rural women. This is because it can be enforced only by Magistrate Courts and Family Courts62 and traditional courts have no authority to issue protection orders. This poses problems because there are approximately 1500 traditional courts operating in South Africa.63 It is argued that rural women under the jurisdiction of these traditional authorities might be limited by linguistic and economic reasons from accessing Magistrates' Courts and Family Courts. This weakness is a matter of serious concern "if one considers the fact that almost 32 per cent of South Africa's traditional communities of about 35 million people live in the rural areas and therefore fall under the authority of traditional authorities".64 As a result, it is submitted that there is a need to extend the authority to impose protection orders to traditional courts. At the same time it is also submitted that the custom of theleka does not constitute family violence. The following section discusses what should be done about theleka custom in order for it to accord with the Constitution. As will be seen, it will be argued that the theleka custom ought to be developed.
7 Development of theleka custom
It is noted that the Constitution65 protects the right to culture in numerous provisions which refer to the cultural diversity of the South African population. The preamble to the Constitution, for instance, clearly refers to the diversity of the South African population. The Constitution66prohibits unfair discrimination on the grounds inter alia of culture. In addition the Constitution67 provides for the protection and the promotion of the rights of traditional, religious, cultural and linguistic communities. It also provides for the establishment of a Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities68 and chapter 12 deals with the recognition and role of traditional leaders. It is crucial to note that all of the constitutional provisions dealing with the promotion and protection of the right to culture and religion are subject to the values that underlie the Constitution. In order for the latter rights to have meaning and true protection there is a necessity to start by developing a customary rule in accordance with the Constitution whenever possible, and to use abolition only as a last resort.
Section 39 of the Constitution provides that:
1 When interpreting the Bill of Rights, a court, tribunal or forum-
(a) Must promote the values that underlie an open and democratic society based on human dignity, equality and freedom; (b)Must consider international law; and (c) May consider foreign law
2 When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and object of the Bill of Rights.
3 The Bill of Rights does not deny the existence of any other right and freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.
The court's obligation as provided in the above section is emphasized in the case of Carmichele v Minister of Safety and Security69 where the Constitutional Court held that:
The obligation of courts to develop common law in the context of the section 39 objectives is not purely discretionary. On the contrary, it is implicit in section 39(2) read with section 173 that where the common law as it stands is deficient in promoting the section 39(2) objectives, the courts are under a general obligation to develop it appropriately.
The Carmichele case applies equally to the development of customary law. When a customary law rule deviates from the spirit, purport and object of the Bill of Rights, courts have an obligation to develop it so as to remove such deviation.70 The development of customary law is important because "once a rule is struck down, that is the end of that particular rule, yet there may be many people who observe the rule".71 Theleka custom is still practised in some communities72 and it serves a twofold purpose, namely the enforcement of lobolo and the prevention of violence directed against married females.
Despite the good intentions underlying the theleka custom, it violates the best interests of the child because the voice of the child is not heard when the child is held under theleka, particularly in that it may interfere with the educational rights of the child.
As has been argued above, the rights of a child are still severely affected and not taken into consideration in those communities that practice the custom of theleka. It is submitted in this article that the custom of theleka as it is practised at present impacts on the custody of children and clashes with the provisions of the United Nations Convention on the Rights of the Child,73 the African Charter on the Rights and Welfare of the Child,74 the European Convention on the Exercise of Children's Rights 75 and the Constitution of South Africa. 76 This conclusion is made here because the best interests of a child and the opinion of the child are not taken into consideration when practicing theleka custom, while the international instruments mentioned above emphasise that the views of a child have to be considered in matters affecting him or her. It is submitted that theleka custom needs to be developed to consider the opinion and wishes of the child in order for it to be in line with the Constitution. This article has drawn an inference that theleka custom neither constitutes abduction nor family violence and that the practice should be allowed to continue.
Bekker JC Seymour's Customary Law in Southern Africa 5th ed (Juta Cape Town 1989) [ Links ]
Bekker JC "Commentary on the Impact of the Children's Act on Selected Aspects of the Custody and Care of African Children in South Africa" 2008 Obiter 395-405 [ Links ]
Bekker JC and Van Zyl GJ "Custody of Black Children on Divorce" 2002 Obiter 116-131 [ Links ]
Bennett TW "The Best Interests of the Child in an African Context" 1999 Obiter 145-157 [ Links ]
Bennett TW Customary Law in South Africa (Juta Cape Town 2004) [ Links ]
Curran E and Bonthuys E "Customary Law and Domestic Violence in Rural South African Communities" 2005 SAJHR 607-635 [ Links ]
Dlamini CRM Juridical Analysis and a Critical Evaluation of Lobolo in a Changing Zulu Society (LLD-thesis UZ 1983) [ Links ]
Grossman CP and Scherman IA "Argentina: Criteria for Child Custody Decision-making upon Separation and Divorce" 2005 Fam L Q 543-562 [ Links ]
Heaton J "Some General Remarks on the Concept: Best Interests of the Child" 1990 THRHR 95-99 [ Links ]
Kaime T The African Charter on the Rights and Welfare of the Child: A Socio-Legal Perspective (PULP Pretoria 2009) [ Links ]
Knoetze E "Custody of a Black Child" 1999 Obiter 207-214 [ Links ]
Koyana DS Customary Law in a Changing Society (Juta Cape Town 1980) [ Links ]
Labuschagne JMT "International Parental Abduction of Children: Remarks on the Overriding Status of the Best Interests of the Child in International Law" 2000 CILSA 333-347 [ Links ]
Lempert LB "Shelters: For Abused Women, or Abusive Men? As Aids to Survival, or as Rehabilitation Sites?" 2003 Agenda 89-100 [ Links ]
Maithufi IP "The Best Interests of the Child and African Customary Law" in Davel CJ (ed) Introduction to Child Law in South Africa (Juta Cape Town 2000) 137-149 [ Links ]
Mahlobogwane FM "Determining the Best Interests of the Child in Custody Battles: Should a Child's Voice be Considered?" 2010 Obiter 232-246 [ Links ]
Malinowski B Crime and Custom in Savage Society (Kegan Paul Trench & Trubner London 1961) [ Links ]
Mnookin RH "Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy" 1975 LCP 226-230 [ Links ]
Olivier NJJ et al Indigenous Law (Butterworths Durban 1995) [ Links ]
Peart A Consideration of Certain Aspects of Customary Law (LLM-dissertation UCT 1981) [ Links ]
Rautenbach C "Therapeutic Jurisprudence in the Customary Courts of South Africa: Traditional Authority Courts as Therapeutic Agents" 2005 SAJHR 323335 [ Links ]
Rautenbach C, Bekker JC and Goolam NMI Introduction to Legal Pluralism in South Afrcca 3rd ed (Juta Cape Town 2010) [ Links ]
South African Law Reform Commission The Harmonisation of the Common Law and the Indigenous Law (Project 90) (SALRC Pretoria 1998) [ Links ]
Soga JH The ama-Xosa: Life and Customs (Lovedale Press Lovedale 1931) [ Links ]
Snyman CR Criminal Law 5th ed (LexisNexis Durban 2008) [ Links ]
Register of cases
Baleni v Sidlo 4 NAC 344
Bhe v Magistrate Khayelitsha; Shibi v Sithole; SA Human Rights Commission v President of RSA 2005 1 BCLR 1 (CC)
Carmichele v Minister of Safety and Security 2001 4 SA 938 (CC)
Cheche v Nondabula 1962 NAC 23 (S)
Gomani v Baqwa 3 NAC 71 (1917)
Greenshields v Wyllie 1989 4 SA 898 (W)
Hlophe v Mahlalela 1998 1 SA 449 (TPD)
Mathews v Mathews 1983 4 SA 136 (SE)
Martens v Martens 1991 4 SA 287 (TPD)
Mbuli v Mehlomakhulu 1961 BAC 66 (S)
McCall v McCall 1994 3 SA 201 (C)
Meyer v Gerber 1999 3 SA 550 (O)
Mkohlwa v Mangaliso 1 NAC 202 (1908)
Menzi v Matiwane 1964 NAC (S)
Minister of Welfare and Population Development v Fitzpatrick 2000 3 SA 422 (CC)
Mkhize 1951 NAC 336 (NE)
Monghayelana v Msongelwa 3 NAC 292 (1913)
Msomi v Msomi 1968 BAC (N-E)
Mvunyiswa v Mayile 1964 BAC (S)
Ngxabalaza v Njovane 1939 NAC (C&O)
Ntlekwini v Maqokolo 4 NAC 345
Oppel v Oppel 1973 3 SA 675 (T)
S v M 2008 1 SA 232 (CC)
Skweyiya v Sixakwe 1941 NAC (C& O)
Ttyeka v Feja4 NAC 343
Register of legislation
Constitution of the Republic of South Africa, 1996
Chlddren's Act 38 of 2005
Domestic Violence Act 116 of 1998
Recognition of Customary Marriages Act 120 of 1998
Register of international agreements
African Charter on the Rights and Weffare of the Child (1990)
European Convention on the Exercise of Children's Rights (1996)
International Covenant on Economic, Social and Cultural Rights (1966)
Untted Nations Convention on the Rights of the Child (1989)
Untted Nations Universal Declaration of Human Rights (1948)
List of abbreviations
CILSA Comparative and International Law Journal of Southern Africa
Fam L Q Family Law Quarterly
LCP Law and Contemporary Problems
SAJHR South African Journal on Human Rights
SALJ South African Law Journal
SALRC South African Law Reform Commission
THRHR Tydskrif vir Hedendaagse Romeins-Hollandse Reg / Journal for Contemporary Roman-Dutch Law
* I am highly indebted to my colleague, WJ Ndaba, for reading this paper. However, the mistakes, interpretations and conclusions expressed in this paper are entirely mine
1 Section 1(4) Recognition of Customary Marriages Act 120 of 1998.
2 Section 1(4) Recognition of Customary Marriages Act 120 of 1998.
3 The custom of theleka takes place when a wife visits her home and after the expiry of the normal visiting time she continues to stay at her home and does not return to her husband's home. Her husband then sends messengers to fetch her and they are informed of why she is being held. Theleka is the withholding of a wife by her father or guardian from her husband to coerce him to pay the outstanding lobolo. The/eka can also be practised when the husband has ill-treated his wife, especially by seriously assaulting her. The father of the wife may demand a beast that serves as damages if the husband has ill-treated his wife. The beast paid may be in excess of the lobolo originally specified. See Koyana Customary 12-16.
4 Rautenbach, Bekker and Goolam Introduction to Legal Pluralism 57.
5 Rautenbach, Bekker and Goolam Introduction to LegalPuuralssm 57.
6 Constitution of the Republic of South Africa, 1996 (hereafter "the Constitution").
7 McCal v McCall 1994 3 SA 201 (C).
8 SALRC Harmonisation of the Common Law ch 4.
9 SALRC Harmonisation of the Common Law ch para 22.214.171.124 at 61.
10 Dlamini Juridical Analysis 322.
11 Dlamini Juridical Analysis 322.
12 Bekker Seymour's Customary Law 163.
13 Dlamini Juridical Analysis 322.
14 Malinowski Crime and Custom 52.
15 Malinowski Crime and Custom 52.
16 Dlamini Juridical Analysis 322.
17 SALRC Harmonisation of the Common Law ch 4.
18 Bekker Seymour's Customary Law 163; Olivier et al Indigenous Law 28; Soga The ama-Xosa 263 et seq; Skweyiya vSixakwe 1941 NAC (C& O) 126; Ngxabalaza v Njovane 1939 NAC (C&O) 96.
19 Bekker Seymour's Customary Law 164; see also the following cases cited by Bekker, namely: Mkhohlwa v Mangaiiso 1 NAC 202; Tiyeka v Feja 4 NAC 343; Baleni v Sidlo 4 NAC 344; Nt/ekwini v Maqokolo 4 NAC 345.
20 Mkohlwa v Mangaliso 1 NAC 202 (1908); Menzi v Matiwane 1964 NAC 58 (S); Monghaye/ana v Msongelwa 3 NAC 292 (1913); Skweyiya v Sixakwe 1941 NAC (C&O) 126.
21 Cheche v Nondabu/a 1962 NAC 23 (S) 28; Menzi v Matiwane 1964 NAC 58 (S); Monghaye/ana v Msongelwa 3 NAC 292 (1913); Skweyiya v Sixakwe 1941 NAC (C&O) 126; Peart Consideration of Certain Aspects of Customary Law 56.
22 Mbui v Mehlomakhuuu 1961 BAC (S) 66; Msomi v Msomi 1968 BAC (N-E) 29; Mvunysswa v Mayile 1964 BAC (S) 25.
23 Cheche vNondabuaa 1962 NAC 23 (S).
24 Gomani v Baqwa 3 NAC 71 (1917).
25 Bekker and Van Zyl 2002 Obtter 128.
26 Bennett Customary Law 285.
27 Madyibi v Nguva 4 NAC 40 as quoted by Bekker 2008 Obtter 403.
28 Mkhize 1951 NAC 336 (NE). There is a great deal of literature on the best interests of the child, but it has not been argued that the principle of the best interest ought to be extended even during the application of theleka custom. See Bennett 1999 Obiter 145; Knoetze 1999 Obiter 207-214; Labuschagne 2000 CILSA 333-336; Maithufi "Best Interests of the Child" 137-149.
29 Hlophe v Mahaaeaa 1998 1 SA 449 (TPD).
30 Hlophe v Mahaaeeaa 1998 1 SA 449 (TPD) 458F-G.
31 Hlophe v Mahaaeeaa 1998 1 SA 449 (TPD) 458G-459C.
32 Section 29 of the Constitution.
33 Article 26 Untted Nations Universal Declaration of Human Rights (1948).
34 Article 26(3) United Nations Universal Declaration of Human Rights (1948).
35 Article 13(1) International Covenant on Economic, Social and Cuttural Rights (1966).
36 Article 3(1) Untted Nations Convention on the Rights of the Ch/ld (1989).
37 Minister of Welfare and Popu/ation Development v Fttzpatrcck 2000 3 SA 422 (CC).
38 Kaime African Charter 110.
39 Mnookin 1975 LCP 226.
40 Mahlobogwane 2010 Obtter 233; Heaton 1990 THRHR 96-97.
41 S v M 2008 1 SA 232 (CC) para 24.
42 S v M 2008 1 SA 232 (CC) para 24.
43 Bennett 1999 Obtter 146.
44 Articles 12(1) and (2) Untted Nations Convention on the Rights of the Child (1989). The provisions of the latter article have been incorporated in s 10 of the Chi/ddren's Act 38 of 2005, which provides that: "every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has a right to participate in an appropriate way and views expressed by the child must be given due consideration". In a similar vein, section 31 deals with major decisions involving the child and stipulates that: (i)(a) Before a person holding parental responsibilities and rights in respect of a child takes any decision contemplated in paragraph (b), that person must give due consideration to any views and wishes expressed by the child, bearing in mind the child's age, maturity and stage of development.
45 Article 3 European Convention on the Exercise of Chtidren's Rights (1996) (South Africa is a signatory of the Convention).
46 Adopted in Addis Ababa, Ethiopia on 11 July 1990 and entered into force on 29 November 1999.
47 Article 4(1) African Charter on the Rights and Weffare of the Ch/dd (1990).
48 Article 4(2) 4(1) African Charter on the Rights and Weffare of the Ch/dd (1990); see also a 19(1) which provides that "... no child shall be separated from his parents against his will, except when a judicial authority determines in accordance with the appropriate law, that such separation is in the best interest of the child".
49 Grossman and Scherman 2005 Fam L Q 557.
50 Greenshiedds v Wyllie 1989 4 SA 898 (W); Oppel v Oppel 1973 3 SA 675 (T); Mathews v Mathews 1983 4 SA 136 (SE). In these cases the courts were inclined to consider the age of the child rather than the maturity.
51 McCall v McCall 1994 3 SA 201 (C); Martens v Martens 1991 4 SA 287 (TPD); Meyer v Gerber 1999 3 SA 550 (O). In these cases the courts decided to consider the maturity of the child rather than the age.
52 Snyman Criminal Law 403.
53 Section 1(viii) Domestic Violence Act 116 of 1998 (hereafter "the Domestic Violence Act").
54 Bennett Customary Law 251.
55 See also s 1(xvi) of the Domestic Violence Act.
56 Bennett Customary Law 228, 230.
57 Curran and Bonthuys 2005 SAJHR 616-617.
58 Curran and Bonthuys 2005 SAJHR 616-617.
59 Curran and Bonthuys 2005 SAJHR 616-617.
60 Lempert 2003 Agenda 89-100.
61 See the preamble of the Domestic Violence Act.
62 See the definition of a court in s 1 of the Domestic Violence Act.
63 Bennett Customary Law 141; clause 16(1) of Schedule 6 of the Constitution.
64 Rautenbach 2005 SAJHR 334.
65 Sections 30, 31, 211 and 212 of the Constitution.
66 Section 9(3) of the Constitution.
67 Sections 15, 30 and 31 of the Constitution.
68 Sections 185 and 186 of the Constitution.
69 Carmichele v Minister of Safety and Security 2001 4 SA 938 (CC) para 39.
70 Bhe v Magistrate, Khayelttsha; Shbbi v Stthole; SA Human Rights Commsssion v President of RSA 2005 1 BCLR 1 (CC) para 215.
71 Bhe v Magistrate, Khayelttsha; Shbbi v Stthole; SA Human Rights Commsssion v President of RSA 2005 1 BCLR 1 (CC) para 215.
72 Rautenbach, Bekker ans Goolam Introduction to LegalPlurattsm 57.
73 Article 12(1) and (2) United Nations Convention on the Rights of the Child (1989).
74 Articles 4(2) and 19(1) African Charter on the Rights and Weffare of the Chldd (1990) (South Africa is a signatory).
75 Article 3 European Convention on the Exercise of Chiddren's Rights (1996).
76 Section 28(2) of the Constttution.