Why is the customary marriage act at odds with actual customs?
I have to say I was somewhat surprised by the HHP judgment (specifically Lerato Sengadi vs Robert Tsambo) . The #HHP judgment is not what I understand the practice of lobola (dowry) to be or to signify.
Ilobolo is the agreed to bride amount as negotiated between two families. To lobola somebody basically means to get officially engaged in the traditional way and to have it recognized as such by both families. Once the lobola is completed you are the ingoduso (or fiancée).
The couple would still have to go through ukumbeswa nomabo (exchange of gifts and wed traditionally) and have the act of inyongo (goat bile) on the bride so that the ancestors know who she is before the couple is considered officially married in traditional culture.
Until the ancestors have been brought in to the proceedings to recognize that they have a new member of the family and to treat them as such through protection and helping them in the world it is in custom not yet a marriage.
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It is also important that both families have at every step of the process been involved and done their respective parts.
If my partner dies and we have only done the lobola part of the marriage rites then I am his fiancée. I do not have any claim to anything of his traditionally, of course it is possible he could have put me in his will but that’s seperate. In terms of tradition I am a lovely lady who was going to be part of the family but isn’t yet. His family might like me and involve me in the preparations of his funeral etc to recognize that they knew he loved me but traditionally I do not have any actual rights. Even when I am in the yard of his family homestead the ancestors will consider me another lovely guest there to mourn with the families because they do not know me, they have not been introduced to me.
I do not doubt that many people get abused or sidelined because often nowadays for various reasons people do the lobola and then co-habitate and it seems like they are married but traditionally as per custom they are not. It is important I think that when embarking on the route to marriage in order to avoid the confusion, hurt and anger that comes with disputes that a couple decide to do things when they are able to do it all. It does not have to be fancy extravaganzas and big parties can be done at a later stage but at the very least try to conclude what you as the couple have started in terms of custom.
Another way to put it is that if somebody begins the process to lobola me and before the lobola is finished or even if we break up after the lobola but before the rites that introduce me as the makoti (bride) to his ancestors then I am still free to be engaged or have lobola done by another person. It would be up to each family what happens to the lobola that has already been paid. It is akin to an engagement being broken off.
I understand that the Customary Marriage Act does not require the same criteria to be met to consider people customarily married and I have no doubt that is because of our very complex past in this country and the diversity of what constitutes a customary marriage in our various cultures that a common ground needed to be found but in terms of Zulu custom ordinarily this judgment wouldn’t hold water.
Of course going to the Department of Home Affairs and getting married according to the law would provide legal rights to the couple.
Similar processes also pertain to having a child out of wedlock to have it customarily recognized by the families of both the mother and father.
I for example have to along with my partner do a number of customary things to acknowledge that our child is born out of wedlock and to ensure that both families accept this ‘naughtiness’ from us and welcome the child and have it introduced to both sets of ancestors. That’s a different process and for another post but suffice to say if a couple begins a process in a customary way until it is concluded it is possible they will not be afforded the rights or legitimacy in terms of custom.
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* Mbali Ntuli is the DA's head of campaigns and strategy in KwaZulu-Natal.
* * The views expressed are not necessarilly those of Independent Media