Lobola: Marriage or Engagement?

The nature of customary marriages in South Africa is one that is debated often. At what point is a customary marriage entered into in South Africa and what are the consequences of this distinction?

Customary marriages are governed by the Recognition of Customary Marriages Act 120 of 1998, which came into force on 15 November 2000. Despite the enactment date of the Act, a customary marriage entered into before 15 November 2000 is still valid if it meets the customary law requirements for a valid marriage.

The requirements of the Act are as follows:

1.       Both spouses must be above the age of 18 years. If either spouse is below the age of 18 years, the parents or legal guardian must give their consent for the marriage to be valid.

2.       Both spouses must agree to be married to each other under customary law.

3.       The marriage negotiations, rituals, and celebrations must be according to customary law.

An important thing to note from the above is that lobola is not a requirement for the validity of a customary marriage. This is a point of contention which is raised often and it is ill-advised to focus on this aspect of customary marriages. Customary marriage rites differ across the many cultures of the country and there is no one-size-fits-all approach to concepts such as lobola. Therefore, whether or not lobola is paid or agreed to is irrelevant when considering the validity of the customary marriage.

What, then, is the most important requirement when attempting to identify the point where a customary marriage comes into being? When both spouses are above the age of 18 years and are both in agreement about marrying each other, then the fact most looked at is the meeting of the minds of the families. Often, some day will be agreed upon where the families of both spouses come together to negotiate and celebrate according to custom, and it is most often that day which is considered the date of marriage.

By effect of law, the spouses will then be considered married in community of property for the purposes of their matrimonial property considerations. Of course, this automatic application of community of property is a mechanism which spouses should be aware of before the solemnisation of their marriage. The effects of this will be expanded upon in a later article.

In summation: lobola as it is most commonly understood is an act of marriage, not engagement, which means the nature and seriousness of it is something to be considered before such an agreement is finalised.

Published 10 June 2024

Phethelo Fakude