LOBOLO, CONSENT AS REQUIREMENTS FOR THE VALIDITY OF A CUSTOMARY MARRIAGE AND THE PROPRIETARY CONSEQUENCES OF A CUSTOMARY MARRIAGE: N v D (2011/3726) [2016] ZAGPJHC 163

Abstract

Section 3(1)(b) of the Recognition of Customary Marriages Act 120 of 1998 provides that a customary marriage must be negotiated and celebrated in terms of customary law. In Moropane v Southon ([2014] ZASCA 76), the SCA concluded that “a fact-intensive inquiry” is necessary to determine the meaning of “negotiated and celebrated in terms of customary marriage”. Although negotiations under customary law can often include complex dynamics, delivery of lobolo (bride price) and transfer of the bride were deemed essential for the conclusion of a customary marriage. The SCA argued that section 3(1)(b) of the Recognition Act is clear and unambiguous. Prior to the Act, the requirements for conclusion of a customary marriage were explicit: delivery of lobolo, transfer of the bride, consent of the bride’s father or guardian, consent of the groom’s father or guardian. Section 3(1)(a–b) does not make it clear, lobolo for example, is still a requirement for the validity of a customary marriage. According to Bennett, the omission of lobolo in section 3 indicates that lobolo “is now a contractual accessory to marriage”.
The meaning of “negotiated and celebrated” in terms of customary marriage is not the only requirement that has attracted the attention of the Courts. Section 3(1)(a) provides that a customary marriage should be consented to by both parties. It appears that the consent of the families is not required in terms of the Recognition Act. This, however, does not reflect the position of living customary law. Families still play a crucial role in the conclusion of a customary marriage, a role that may affect the validity of a customary marriage. As a result, it is argued that the consent of the parties to a customary marriage should reflect consent in living customary law. A number of questions may arise in relation to the consent requirement. For example, should the proprietary consequences of a marriage be taken into account when determining whether or not a party consented to a customary marriage? Furthermore, can consent of the parties be construed as including the consent of the families to conclude a customary marriage? This note will attempt to answer these questions in light of N v D.