|5. ARGUMENTS FOR THE ABOLITION OF ILOBOLO
Some authors view ilobolo as evidence that the culture in which it is practiced objectifies women. As far as these authors are concerned the payment of ilobolo indicates that the worth of a woman is measured in accordance with the sum of money paid for her ilobolo. This has been the perception of outside observers. They viewed it as a purchase and sale of a woman and thus an immoral custom that ought to be abolished.42 Colonisers continued to view ilobolo negatively despite the evidence established or discovered to the contrary. The evidence to the contrary about its practice appears in the words of Howell when he stated: I do not consider that the natives giving 10 cows more or less for a wife should be deemed to constitute slavery in the sense of the word. I have always understood and believed that the cattle are given as a kind of deposit or pledge for the mutual good behavior of man and wife.43 In a similar vein, Peppercome, a magistrate, also testified that an African marriage is by mutual consent and pointed out that ilobolo was not a purchase but rather a pledge or security similar to the custom described in the Biblical book of Ruth.44 This perception of the objectifying of women has been strengthened by the fact that a womans education and status influences the amount of ilobolo in some families during marriage negotiations.45
Another criticism that is levelled against the practice of ilobolo is that it promotes ownership of women. According to the latter view, if a man pays ilobolo he acquires productive rights over her and that the death of the husband does not dissolve the marriage.46
However, the above argument that ilobolo amounts to ownership of a woman is discredited by the view that those who practice it do not perceive ilobolo as a sale transaction. By the same token, on this view, ilobolo does not give the man rights of ownership over his wife. As Bekker47 aptly puts it:
It is fairer, as some writers state, to view the contract in all its aspects, before condemning it as sale. No matter what motive in a father’s mind when he gives his daughter in exchange for a price [...] the main effect of the contract is to transfer the reproductive capacity of the woman and her ability to perform domestic services, from her guardian to her husband; if the matter stopped there, the contract would be a sale, for the plight of the woman would be no better than that of an animal, which ceases to have any relationship with the seller after delivery, and is entirely subject to the will of the new owner. But this is not the case, for the wife’s guardian retains the role of her protector for the remainder of her life.
It is important to note that there are different viewpoints as to what the purpose of ilobolo is. One viewpoint is that ilobolo is transferred in exchange for the reproductive capacity of a woman and the attendant capacity to perform domestic services48. This does not necessarily mean that subsequent inability of a woman to bear children would automatically lead to a marriage being dissolved as the family can resort to other options for procreation of children. Dlamini indicated that it is crucial to take note that ilobolo and marriage reflected two different institutions and the purpose of marriage is procreation of children, and that is not the purpose of ilobolo.49 However, it may be argued that in our new constitutional dispensation procreation of children cannot be regarded as the purpose of marriage in general. The writer takes this view because a childless heterosexual marriage can subsist in spite of the non-production of offspring and same sex couples are allowed to marry even though they cannot reproduce.
If a wife is ill-treated or neglected by her husband she has a right to return to her guardian who is obliged to support her until reconciliation has been reached.50
A mans dignity can be infringed if he is expected to pay an exorbitant amount of ilobolo, which would make it difficult for him to get married.51 Research indicates that in some families more marriage goods are expected for a woman who is educated or a professional such as a teacher, nurse or attorney, or a business woman, medicine woman or a woman of royal descent, than a woman has no no formal school education or who has a matric certificate.52
6. ILOBOLO AND THE ISSUE OF GENDER EQUALITY AND DIGNITY
On the face of it, it may be argued that ilobolo is repressive in nature, violates a woman’s bodily integrity, compromises a woman’s personhood by treating her as a commodity and that it also legalises violence against women53. It is therefore necessary to examine whether or not ilobolo violates the woman’s right to equality and human dignity.
As already indicated, views expressed against ilobolo have not found majority support amongst those practicing the custom. It also does not violate the right of women to equality and dignity. This observation is aptly summed up by Bekker and Boonzaaier54 as follows:
Research that has been done among the different ethnic groups in rural parts of South Africa, has found that the transfer of marriage goods is not a sale transaction and it also does not give the man rights of ownership over his wife. As such [it] does not acquire the right to sell her or to mistreat her. In fact, one of the most important functions of marriage goods is to provide [a] guarantee that the woman will be well treated by her husband and her relatives-in-law.
The above observation affirms the argument that ilobolo does not infringe the rights of women to equality and dignity. In furthering this argument it would be necessary to make an analysis of the equality provision. The equality clause provides that:55
9 (1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons or categories of persons, disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.
The reading of the equality clause indicates clearly that the Constitution does not necessarily prohibit all forms of differentiation or discrimination but it prohibits merely unfair discrimination. The prohibition of unfair discrimination is divided into two ways, that is, the prohibition of discrimination on listed grounds56 and the prohibition of discrimination on unlisted grounds. The equality clause does not explicitly refer to unlisted grounds but in the case of Prinsloo it was held that unlisted or analogous grounds also exist.57
The question is whether the custom of ilobolo constitutes an infringement of the right of women to equality. It would infringe the right to equality if it unfairly discriminated against women. However, ilobolo does not infringe the right of women to equality because women are not treated as a commodity as may be argued by some writers and observers. In fact women are not treated as their husbands’ property and according to the law have equal rights alongside their husbands.58
The Constitutional Court held that discrimination in South Africa means treating people differently in a way which impairs their fundamental dignity as human beings.59 The custom of ilobolo constitutes a differentiation on a specified ground of discrimination (i.e. discrimination based on sex and gender) because ilobolo is only paid for the bride to be and not the groom. This raises the question whether South African equality jurisprudence is based on the liberal perception of equality that is based on sameness and similar treatment. In discarding that perception, Goldstone J stated that although a society which affords each human being equal treatment on the basis of equal worth and freedom is our goal, we cannot achieve that goal by insisting on identical treatment in all circumstances before the goal is achieved.60 The court held that there must be an examination of an impact of an alleged infringement of the right to equality in relation to the prevailing economic, cultural and social circumstances in the country.61
As already mentioned, although ilobolo constitutes a differentiation on one of the specified grounds of discrimination, this shows that discrimination has been established.62 However, this form of discrimination ensuing from the practice of ilobolo is not unfair because it does not infringe human dignity of women.
The argument of indirect discrimination, which is prohibited by section 9 (3) of the Constitution, is also unlikely to succeed.63 Indirect discrimination suggests that, although a practice seemed to be neutral, the way it is operated over time worked to the detriment of women. It would not be justified to demonstrate that the payment of ilobolo was the condition precedent to the unfavorable treatment of wives, especially in view of the substantial literature claiming that ilobolo functions to benefit women.64
Therefore if the discrimination is on a specified ground, then it will be presumed to be unfair.65 The onus of proof rests upon the respondent to rebut this presumption of unfairness. It is argued in this article that even though ilobolo constitute discrimination on a specified ground, it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. However, if it is on an unlisted ground, the onus will be on the complainant to prove unfairness. The Harksens case66 provided some guidelines of assessing what constitutes unfair discrimination. The court held that the impact of discrimination on the complainant or the victim is a determining factor. Goldstone J held that in assessing the impact of the discrimination on the complainant, the following factors must be considered:
a) The position of the complainant in the society and whether they have suffered from past patterns of discrimination;
b) The nature of the provision or power and purpose sought to be achieved by it. An important consideration would be whether the primary purpose is to achieve a worthy and important societal goal and an attendant consequence of that was an infringement of the applicant’s rights; and
c) The context to which the rights of the complainant have been impaired and whether there has been an impairment of his or her fundamental dignity.
It has been argued that ilobolo does not violate the right to human dignity of women because women do not treat ilobolo as such but as a practice that enhances their dignity.
The above equality test in Harksens case shows that the South African equality jurisprudence is centered on the value of human dignity and this appears in some constitutional provisions67 and other decisions of the Constitutional Court.68 In the case of S v Makwanyone69 the Court, through ORegan J, held that:
The importance of dignity as a founding value of the new Constitution cannot be overemphasized. Recognising a right to dignity is an acknowledgement of the intrinsic worth of human beings: human beings are entitled to be treated as worthy of respect and concern. The right is therefore a foundation of many of the other rights that are specifically entrenched in chapter 3.
In a similar vein, O’Regan J held that:
The value of dignity in our constitutional framework cannot therefore be doubted. The Constitution asserts dignity to contradict our past in which human dignity for black South Africans was routinely and cruelly denied. It asserts it to inform the future, to invest in our democracy respect for the intrinsic worth of all human beings. Human dignity therefore informs constitutional adjudications and interpretations at a range of levels. It is a value that informs the interpretation of many, possibly all other rights. The court lias acknowledged the importance of the constitutional value of human dignity in interpreting rights such as the right to equality, the right not to be punished in a cruel, inhuman and degrading way, and the right to life.70
The significance of human dignity also appears in the words of the former Chief Justice of the Constitutional Court, Arthur Chaskalson. When delivering the third Bram Fischer Memorial Lecture71 he asserted that:
As an abstract value, common to the core values of our Constitution, dignity informs the content of all the concrete rights and plays a role in the balancing process necessary to bring different rights and values into harmony. It too, however, must find its place in the constitutional order. Nowhere is this more apparent than in the application of the social and economic rights entrenched in the Constitution. These rights are rooted in respect for human dignity, for how can there be dignity in a life lived without access to housing, health care, food, water or in the case of persons unable to support themselves, without appropriate assistance. In the light of our history the recognition and realization of the evolving demands of human dignity in our society- a society under transformation - is of particular importance for the type of society we have in the future.
The above excerpt supports the Constitutional Court’s equality jurisprudence which views equality as a right that should be informed by another value and that it does not stand independently as a value. If equality stands alone it is not easy to explain exactly what it is that we seek to protect or achieve72. It appears that so far the court’s response is that we seek to protect human dignity73.
The response to CEDAW’s position and argument is that the custom of ilobolo does not perpetuate discrimination against women because it does not infringe the right of women to human dignity. It is important that we allow necessary diversity and tolerance to permeate and flourish in our modem society so that we can attain peace and live in harmony74. If there is tolerance and promotion of human dignity for all, then it will not be difficult to achieve the value of equality that “seeks to promote a democratic society that recognizes and promotes difference and individual as well as group diversity and thereby exhibits a commitment to ensuring that all within society enjoy the means and conditions to participate significantly as citizens”75
The aim of this article was to explore whether or not the custom of ilobolo perpetuates discrimination against women. It has been argued that ilobolo does not perpetuate unfair discrimination against women as the South African legal system proscribes merely unfair discrimination where it tempers with the right to human dignity. The article argued that the concluding observations of CEDAWs advocay for abolition of the custom of ilobolo have no justifiable grounds. This is because even international human rights instruments regard human dignity as inherent to the rights of individuals and groups.76 Therefore even at international level it appears that the right to equality is not interpreted or applied in a vacuum and it is informed by the value of human dignity and it must be noted that when protecting other rights we seek to achieve the protection of human dignity.
From the sources that were studied there is no justifiable argument that shows ilobolo as a custom that perpetuates unfair discrimination against women or as a custom that violates the dignity of women. In summary therefore, perceptions and argument of CEDAW are unlikely to change the current recognition and popularity of ilobolo in South Africa. On the contrary the abolition of ilobolo is most likely to result in a paper law that the public will largely ignore.
* LLB (UZ), LLM (UNISA), Certificate in Postgraduate Supervision (Rhodes). This is a revised version of the paper that I presented in the Law Teachers Conference 2012 July (Nelson Mandela Metropolitan University). I remain highly indebted to my colleague Dr. WJ Ndaba for his insightful comments and encouragement during the drafting of this paper.
1 Pieterse Its a black thing: Upholding Culture and Customary Law in a Society Founded on Non-Racialism 2001 SAJHR 364 at 366.
2 CRM Dlamini Culture, Education, and Religion in Van Wyk et al (eds) Rights and Constitutionalism: The New South African Legal Order (1994) Juta & Co, Ltd at 573.
3 CRM Dlamini “The Future of African Customary Law” in Sanders (eds) The Internal Conflict of Laws in South Africa (1990) Butterworths at 2.
4 Angeline, Shenje-Peyton Balancing Gender, Equality, and Cultural Identity: Marriage Payments in Post Colonial Zimbabwe 1996 (9) Harvard Human Rights Journal at 105.
5 S 1 (iv) of the Recognition of Customary Marriages Act 120 of 1998.
6 (Hereinafter referred to as the SALC).
7 South African Law Commission 1998 Project 90 The Harmonization of the common law and the indigenous law chapter 4 (hereinafter referred to as The SALC).
8 The SALC (Chapter 4).
9 Kenya, CEDAW/C/KEN/CO/7 (2011) para 17 and 18; Uganda, CEDAW/C/UGA/CO/C (2010) para 19 and 20.
10 South Africa, CEDAW/C/ZAF/CO/4 (2011) para 17 and 18.
11 Dlamini (n 3) at 3.