Abstract:
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.
