Reconciling lobolo with the equality principle : the need to realign official customary law with living customary law of South Africa

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.