Landmark lobola ruling in Pretoria high court
Pretoria - Customary law had evolved over the years and lobola did not have to be paid in full before a valid customary marriage could be entered into by parties.
This was according to a judge in the high court in Pretoria when he declared a Mpumalanga man officially married to a woman who has since died.
Ntombi Mbungela died in 2014 and now her daughter, Tubile Mkhonza, who is executor of her estate, is disputing that Madala Mkabe was her mother’s husband.
Mkabe is not her biological father.
Mkhonza said the fact that Mkabe still owed R3 000 of the R12 000 lobola which was negotiated for her mother’s hand in marriage, meant that they were not legally married in terms of customary law. She argued her mother had not yet been officially handed over to the man.
But Acting Judge Mpostoli Twala said there was no need for lobola to be paid in full.
“Suitable arrangements can be made for the payment of lobola.
If the other requirements of customary marriage have been met, a valid customary marriage can be entered into by the parties.”
In this case, Mkabe had already paid R9 000 of the R12 000 asked by the bride’s family in 2010 and delivered certain gifts to the bride’s family to unify the two families.
The judge also found that the handing over of a bride to the husband’s family was not vital to determine that a customary marriage existed. He said the handover of the bride was usually accompanied by extensive rituals and ceremonies involving both families.
“These rituals and ceremonies come at a huge cost. Thus, due to financial constraints, parties at times postpone these ceremonies.”
The judge said it was clear in this case that the bride moved in with her groom a few days after the R9 000 lobola instalment was paid.
Mkabe told the court that the families held lobola negotiations in April 2011 and apart from paying R9 000, he also, among others, gave the family a live cow, a suit, hat and shoes to the father, snuff and a crate of beers.
His bride moved in with him and they considered themselves a married couple.
He said no one informed him of any further rituals or customary deeds that needed to be attended to after the lobola negotiations, nor did any of the family demand the outstanding R3 000.
When she fell ill, he at first took her to a traditional healer and later to hospital.
He visited her there a few times, until her brother told him not to go to the hospital again.
Mkabe said he had no idea why he was treated in that manner.
He only heard of her death from a stranger a day after she had died.
The family said the two were never married, as the outstanding R3 000 was not paid and the bride was not handed over to him. They said once lobola was paid in full, the plan was to go to the tribal authority to obtain a letter confirming the marriage.
The daughter said she could not wind up her mother’s estate, before these issues were cleared up.
She admitted that she would be the sole heir if Mkabe was found not to be married to her mother.
She said she knew he had paid lobola for her mother, but did not know how much, as “it is not in their culture for her to pry on this”.
The judge confirmed that the pair had entered into a customary marriage in 2010 and ordered Home Affairs to register the marriage.
He said the legal costs for this application had to be paid from the woman’s estate.