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The question of when a woman in customary marriage negotiations becomes a wife was under the spotlight in a judgment in the Pretoria High Court on Friday when a judge found the lobola process had to be finalised before the woman could be legally recognised as a wife.
A family dispute over who should be the executor of an estate sparked the application, as Home Affairs refused to appoint the “widow”, Raisiba Mathaba, as the executor of her late “husband’s” estate. The couple had been living together as partners, but Tsokolo Malinga passed away shortly before all the lobola money was paid and wedding gifts had been delivered.
Mathaba asked the court to compel Home Affairs to register a customary marriage between her and Malinga and to issue her with a marriage certificate.
She also instituted the application against Malinga’s daughter, Rebecca, who was named as executor of her father’s estate.
Lobola negotiations between the two families took place in May 2010 and payment of R12 000 and the delivery of certain goods was agreed upon. A payment of R10 000 was made and it was agreed that the balance would be paid at a later stage. But then Malinga died.
Mathaba told the court that as the bulk of the lobola was paid, she had entered into a customary marriage and all cultural rites necessary to conclude it were completed.
Home Affairs and Maringa refused to accept this. According to them, there was never a handing over of the bride, as this would only happen once all the lobola was paid and the gifts handed over.
According to Maringa, her father died before the customary marriage existed.
Mathaba said the fact that she lived with Malinga before his death proved her family had given her over to his family. The handing over did not need to be physical.
Judge NV Khumalo said recent authorities on the subject advocated the notion that the conclusion of a customary marriage is signified by a celebration when the bride is handed over to the groom’s family.
“I agree that handing over the bride is one of the important happenings… but disagree that it forms the substance and ultimate decider that determines if the marriage exists or not.”
The judge referred to the 1998 report by the South African Law Commission which proposed that the handing over of the bride is not essential. He concluded that the lobola proceedings between the two families in this case were not finalised and the marriage not concluded.