Ilobolo for the Oldies? A Critical Discussion of Peter v Master of the High Court: Bisho [2022] ZAECBHC 22

Abstract

After reading the decision in Peter v Master of the High Court: Bisho (2022] ZAECBHC 22, the words of Matlapeng AJ in Motsoatsoa v Roro [2011] 2 All SA 324 (GSJ) come to mind:

“It is trite that [a] customary marriage is an age-old institution deeply respected and embedded in the social-cultural fabric of all indigenous people of South Africa. However, over a long period of time during the apartheid era, [a] customary marriage became an object of serious distortions. Regrettably we have now reached a stage where there is a serious and all pervasive confusion regarding the true nature of [a] customary marriage”

At the time of delivering the judgment in Motsoatsoa v Roro, Matlapeng AJ was addressing perversion coming from litigants in an adversarial system. In this system, each party must make their case before the court. In Motsoatsoa v Roro, the court intervened to address the perversion of the law relating to customary marriages and corrected the record. Slightly more than a decade later, this perversion emanated from the court in Peter v Master of the High Court: Bisho. In this decision, the court downplayed the significance of several issues in customary marriages. These include the requirements of a valid customary marriage, the significance of ilobolo in the conclusion of a customary marriage by an elderly couple and the role of the family in the conclusion of customary marriages. According to the court, since one of the functions of ilobolo was the transfer of a woman’s reproductive capacity, the corollary was that ilobolo was not necessary for a customary marriage whereby procreation was no longer possible as a result of age. The court went on to insinuate that ilobolo was one of the practices that may be waived in a customary marriage.
This case note is a critical discussion of the decision in Peter v Master of the High Court: Bisho. At the outset, it must be indicated that this note does not intend to second guess the correctness of the court’s decision but rather to engage in a discussion of some of the thought-provoking aspects of the judgment.