The legal consequences of ilobola in African customary marriages in South Africa

Abstract

South Africa has a hybrid legal system which comprises of among others, common law and customary law. Customary marriages are officially recognised under the Recognition of Customary Marriages Act 120 of 1998, however, unwritten living customary law plays a pivotal role in the validation of such marriages. The enactment of the Recognition of Customary Marriages Act ensured that customary marriages received equal status like other legally protected marriages in South Africa. However, section 3(1)(b) of this statute which outlines the validity requirements of a customary marriage has had the unintended consequences of creating an inconclusive locus in respect of what a valid customary marriage entails. This provision requires that a marriage be “negotiated” and “entered into” or “celebrated” in accordance with customary law. In terms of living customary law, ilobolo must be followed by the handing over of the bride in order to conclude a customary marriage. This comprises of various events and rituals depending on the ethnic groups involved. In essence these two practices are mandatory for the valid conclusion of a customary marriage. The position is however unclear within the prism of official customary law. This is elaborate in the dissensus within the judiciary in respect of the customary marriage practices that confirm the valid conclusion of a customary marriage. Due to the contestation centred around proving the existence of a valid customary, there are growing debates as a result of the judiciary’s inconsistent and at times misinterpretation on the provisions of section 3(1)(b). In light of this background, this research explores this debate and aims to provide clarity regarding the essential requirements for the valid conclusion of customary marriages in South Africa. In summary, this research investigates the legal consequences that the practice of ilobola paired with the custom of handing over the bride as an integral part of the marriage, have in the validation of a customary marriage. In doing so, the research considers official and living customary law by analysing various conflicting judgments on this debate. The study makes recommendations on how to resolve the inconsistencies, misinterpretations, and discord of what validates a customary marriage.