By Shani van Niekerk and Sikelela Masumpa
South African customary law consists of various customs, traditions and practices that are carried out, including during the process of getting married. It forms part of the observations of culture and traditions that date back decade upon decade. However, unfortunately, with time the most sacred traditions are being opened up to abuse.
In many South African customs a man may ask for his partner’s hand in marriage. This is customarily followed by sending a letter of intent to her family for lobola negotiations to commence. On the day of the negotiations the families agree on a set figure, which is not necessarily only a monetary amount but may include livestock, clothing and other items such as blankets. This is seen as a form of gratitude that a prospective husband affords to the prospective bride’s family. A portion of this agreed-upon arrangement is paid upfront. The families celebrate the newly found union and the wedding date for the customary marriage is set. To the groom and bride, the joy of tying the knot and having the dream wedding overshadows the realities they may soon face.
Although not a requirement of a valid customary marriage, in the eyes of the law, lobola is one of the most common practices.
In terms of section 3 of the Recognition of Customary Marriages Act, the requirements for a valid customary marriage are that both parties must be above the age of 18, both parties must consent to the marriage and the marriage must be negotiated, entered into and celebrated. There is an assumption that after lobola has been paid the couple can start living as husband and wife; however, often various other traditions and practices still need to take place.
One such tradition that has become abused over the last few years is that of uMembeso or izibizo. This is a Zulu tradition that involves the giving of gifts to the bride’s family. These gifts traditionally included blankets, pinafores, head scarves, clothes, food and straw mats, among others.
However, over the years these gift requests by the bride’s family have become increasingly costly branded items and gadgets. The young grooms are forced to incur debt to make these gift requests a reality. Some customary marriages have thus seen a change over the years, as izibizo has been used to fund such luxuries at the groom’s expense. This, as a result, is discouraging young couples from getting married, as they are unable to afford this sort of practice.
According to StatsSA, the registration of customary marriages decreased by 11,7% from 2018 to 2019.
A customary marriage is, by default, an “in community of property” marriage, except where the parties have entered into an antenuptial contract. The result is that after the big celebrations and the dust has settled, the young couple are straddled with settling debts that arise from these lavish gifts.
The questions we are faced with are whether this once sacred practice has lost its true meaning and whether “culture” is being misused for hidden agendas that fall outside the customary marriage rituals and practices.
Are we now living in a world where we incur years of debt by abusing customary marriage practices? Or worse still, have customary marriages rather become a sad situation of “who can afford to get married”? It unfortunately seems as if we are entering an era that will see expensive shoes, bags and cars being the standard of izibizo and financial affordability the measure in getting married.
Shani van Niekerk is a senior associate and a matrimonial disputes and family law attorney and Sikelela Masumpa is an associate at Adams and Adams Attorneys.
This article appeared in the 3rd-quarter 2021 edition of Personal Finance quarterly magazine. To access digital copies of past and current magazines, go to Zinio.