Inspired by the dispute over matrimonial rights in the usual marriage, an entrepreneur created a Lobola document that is sold in supermarkets. The legally binding document helps families currently negotiating Lobola ensure that all details are captured. “It`s very important for our culture, that we can`t afford to have sloppy information,” he says. “What was agreed during the Lobola negotiations has legal implications, so it is important that all information is recorded accurately.” “If you look at the kind of chords that recorders write during negotiations, they`re handwritten, they don`t have important details, and sometimes they don`t even have all the details of people who want to get married,” Mahlangu said. He said the method had implications for the dignity of a Lobolo agreement that would connect two people and two families for a lifetime. “For example, if a woman goes to the interior ministries and officials ask her to give them her lobolo consent so that she can win her husband`s estates and get her fair share for herself and her children, the lady can present a constant written agreement in which witnesses (representatives) can be contacted if the case goes to court and they can verify their involvement.” he said. South Africa is a diverse and multicultural country where each culture has its own traditions. As far as Lobolo is concerned, he is no exception and the above information is only intended to highlight the basic legal principles that have developed in recent decades. There are various aspects to consider when it comes to Lobolo, especially taking into account the traditions of different cultures, and it is important to ensure that negotiations are conducted properly to avoid disputes in the future.
A Lobolo agreement can help put families on the same page and write down what was agreed during the negotiations. The agreement includes a standardized document designed as an invitation or wedding program. The law, often seen as one of the most misinterpreted laws in post-democratic South Africa (SA), has recently been in the spotlight of the Supreme Court of Appeal (CSA). Whether or not you believe in lobola culture, the courts still have and struggle with this common practice, and this is often illustrated in cases where litigants ask the courts to make statements about the existence and validity of a marriage. The FCC`s interpretation of paragraph 3(1)(b) of the Act is broad. It is clear that the courts will consider a variety of factors when considering whether a marriage has actually been entered into. The first two requirements of Article 3(1) of the Act are relatively easy to demonstrate, namely that both parties must be over 18 years of age and that both parties must have agreed to enter into marriage. This is the last requirement that “marriage must be negotiated and concluded or solemnized under customary law” that the courts have addressed. This is probably due to the huge cultural regimes in South Africa that require different rituals and practices to conclude a marriage.
Some legal commentators have gone so far as to conclude that the invitation of the delegation of the `groom` to a `lunch` can be regarded as a celebration which satisfies the requirement of Article 3(1)(b). In addition, couples who live together after the conclusion of a successful Lobola negotiation are considered married. The negotiation of Lobola is one of the most important customs in which the family of the bride-to-be receives money and gifts from the bridegroom. An essential condition for the recognition of an ordinary marriage as a valid marriage is that the marriage must be negotiated, concluded or celebrated in accordance with customary law. In addition, the future spouses must be 18 years of age and both future spouses must accept the marriage. Until the recent decision of the Supreme Court of Johannesburg in Sengadi v. Tsambo of November 3, 2018, there was controversy and confusion about what constitutes a valid habitual marriage. In the case of the widow of the famous hip-hop musician Jabulani Tsambo, also known as HHP, it was mainly about her status as a legally recognized habitual woman. In the present case, the family of the deceased refused to recognize Lerato Sengadi as an ordinary wife, on the grounds that there had been no usual “handover ceremony” of the bride to the groom`s family that would meet the requirements of a “celebration” in accordance with customary law, and therefore no customary marriage was or was formed between the deceased and Sengadi.
In examining the evidence, the judge concluded that there was indeed a tacit error in this custom, since after the conclusion of the customary marriage, a “symbolic” handover of the applicant to the Tsambo family had taken place. As the judge said, imagine this: your partner asks for your hand in the marriage, then sends a letter to your family, a date is set, Lobola is negotiated, and the families agree on a number and part of that amount is paid. The delegation is offered lunch and while the mood applauds, the families sing to celebrate the newly formed union. Although the couple may not know it, it can be assumed that they are married within the meaning of customary law. That is the reason. The agreement aims to protect both parties after the conclusion of the negotiations. During the Lobola negotiations, important minutes are recorded and the details of all negotiators are recorded. The agreement also includes columns for the date and place of negotiations, the Lobolo amount to be paid, how and when the remaining amount to be paid, and other terms agreed by the family representatives. Mahlangu, who has a background in accounting and is originally from Sharpeville, south of Johannesburg, came up with the idea after going through various family lobola negotiations. As a rule, his task was to record the minutes of the negotiations.
In a case that can be described as an important step, the judge ruled against the family and declared Sengadi the legitimate wife of the deceased. The dissolution of an ordinary marriage occurs with the death of the husband or wife. However, the marriage could continue if the wife is transferred to a brother of the deceased to have an heir. In the event that the wife returns to her father`s home due to alleged abuse, the husband may have to pay a fine to the father before picking her up (phutuma). .