Lecturer, Department of Public Law, University of Zululand
This paper examines whether or not the age-old custom of iloboloconstitutes gender discrimination against women. In doing so, the article gives a brief historical overview of the practice of ilobolo bohadiin South Africa, its importance or justifications for its continued application and contribution to the perpetuation of gender discrimination. The analysis of discrimination is based on the South African Constitutional Court’s equality jurisprudence. It is motivated by the discussions of the Convention on Elimination of Discrimination against Women (CEDAW) where it was concluded that ilobolowas a harmful cultural practice which discriminated against women. Deviating from the CEDAW condemnation, the article concludes by a finding that no justifiable evidence exists that supports the view that iloboloperpetuates discrimination against women. Rather than violate women’s rights to human dignity, the article argues that the practice of ilobologuarantees them dignity. South Africa is unlikely to follow CEDAW’s advocacy for abolition of ilobolo.Perhaps South Africa will allow the practice to die a natural death, as it seems to be the correct trend because the practice of ilobolois widely practised. The writer argues that the abolition of ilobolowill result in paper law that would be largely ignored by the very target community whose behaviour the law makers would be intending to change in the first place.
International community constitutes many countries and diverse cultures. This diversity is extant even in one country. In a country like South Africa a multiplicity of cultures co-exist in diversity. This diversity, which is also acknowledged by the motto which is emblazoned on the Coat of Arms, Unity in Diversity, carries advantages as well as challenges because within a society, because there is a general tendency towards ethnocentrism, whereby one group regards its values and beliefs as superior to others, while the other group holds firmly to indigenous customary law practices which the former group regards as primitive rules for uncivilised barbarians.1 Such prejudice can act as a barrier against social unity. This concern is clearly expressed in the following passage:
South Africa is a country characterized by cultural and religious diversity. For this reason it has been described as a multi-lingual, multi-faith, multi-cultural, and multi-political country. The kaleidoscopic panorama of cultures, religions, and languages is both strength and a weakness. While this cultural and religious pluralism adds to the [diversity] of the country, to enable these cultures, religions, and languages to coexist harmoniously in one geographical territory is not an easy task. The reason for this [skepticism] is that these cultures and religions often clash. Although the differences may not be too great, people tend to exaggerate and accentuate the differences in order to justify preferential treatment for their own particular group. There is a streak in human nature which makes people feel better than others upon whom they look down.2
This situation was a matter of serious concern when the application of customary law became subject to repugnance by the ruling groups. The repugnancy clause provided that customary law would be applicable provided it was not in conflict with the principles of natural justice and public policy. In this way the repugnancy clause subjected African customary law to European values and moral norms often resulted in an attempt to purge customary law of so called undesirable attributes.3
Even today African cultures have not escaped the ubiquitous and perennial threat of perishing under a purported universality of morality that is inimical of cultural diversity. It cannot be denied that there is a need for a move towards a universal culture that will protect all human rights. However, the attempts to completely eliminate diversity that does not infringe on human dignity are uncalled for. The aim of this article is to examine whether or not the custom of iloboloinfringes on the equality right of women. For a start it is appropriate to clarify what ilobolodenotes. There are different names for iloboloin different languages, for example, ikhazi, bogadi, munywalo,bride price, and bride wealth.4 The Recognition of Customary Marriages Act 120 of 1998 (hereafter referred to as the Recognition Act) defines it as the:
property in cash or in kind, whether known as lobolo, bogadi, bohali, xuma, lumalo, thaka, magadi, emabhekaor by any other name, which a prospective husband or the head of his family undertakes to give to the head of the prospective wifes family in consideration of a customary marriage.5
The South African Law Reform Commission (the South African Law Commission)6 noted that the giving of property by a husband or his guardian to the wifes family is probably the mostimportant requirement for a customary marriage7. It posed a great obstacle for the SALC to reach consensus on a suitable term to express this institution. The SALC was reluctant to use any of the terms used in Bantu languages to express the latter institution, fearing that it might be perceived to be favoring a particular Bantu language to the exclusion of others. The SALC adopted the English term bride wealth, a term commonly used in academic literature. However, the adoption of bride wealth never solved the problem because many members of the public objected to the concept of bride wealth. They indicated that it could not do conceptual justice to the institution of ilobolo.There is no English equivalent to the verbal derivation of the noun ilobolo, which is ukuloboba; which is morphologically formed by the prefix uku-(to) and stem -lobola.The SALC was eventually persuaded to abandon bride wealth because it appeared that it signifies the transfer of wealth, whereas ilobolois a blood contract, a mandatory and imperative sine qua non for any marriage in indigenous African communities.8 The term ilobolo eventually gained preference because it is deeply embedded in the mindset and value system of indigenous societies living in Southern Africa and in the morphology of concept formation.
CEDAW, in some of its concluding observations, inferred that the bride price ought to be abolished because it is one of the harmful cultural practices that perpetuate discrimination against women.9 It is surprising that CEDAW does not mention in its concluding observation with regard to South Africa that it is also a harmful cultural practice that perpetuates discrimination against women.10 It is not clear why CEDAW perceives the payment of a bride price as a harmful cultural practice that violates womens rights to equality in Uganda and Kenya but not in South Africa. Perhaps this ambivalence could be ascribed to poor understanding, among non-Africans, of the significance of the custom of ilobolo.In spite of vilification over a number of decades, its popularity and widespread social acceptance has persisted. Perhaps this contributed to the concluding observations of CEDAW, or it may be a strategic stance taken by South Africa by not expressly providing for iloboloas a requirement of a customary marriage in the Recognition Act.
However, the fact that ilobolois not expressly mentioned does not mean that it is not recognised as a requirement for a valid customary marriage. The custom of ilobolois widely socially accepted and practised. Therefore its legal abolition might lead to paper law that will have no practical consequence and effectiveness.11 It is not the intension of this article to contribute to the continuing debate12 about whether ilobolois or is not an essential requirement of customary marriage.
As already indicated the aim of this article is to examine whether ilobolobreaches the right to equality. To this effect, the article will pay attention to the equality jurisprudence of the Constitutional Court of South Africa. As it will be argued, the impact of the concluding observations of CEDAW on the issue of the bride price is unlikely to change the current recognition of iloboloin South Africa. Perhaps South Africa will choose to allow it to die a natural death as it seems to be the direction and the main rationale for not expressly mentioning it as a requirement in the Recognition Act.
The following section discusses the historical background of the recognition of ilobolo.
2. HISTORICAL BACKGROUND OF THE RECOGNITION OFILOBOLOIN SOUTH AFRICA WITH REFERENCE TO THE REQUIREMENTS FOR CUSTOMARY MARRIAGES CONCLUDED BEFORE THE RECOGNITION ACT13
This discussion of the requirements will differentiate between the requirements that were applicable only in Kwazulu-Natal and those that were applicable outside the provice. The distinction arises because customary law was partly codified in Kwazulu-Natal under the Natal Code of Zulu Law14 and the Kwazulu Act on the Code of Zulu Law.15 The three requirements for customary marriages contained in both the Natal Code and the Kwazulu Act were as follows:16
Firstly the consent of the brides father or guardian was needed if the bride was still a minor. The Act stipulated that the consent could not be withheld unreasonably;
Secondly the consent of the bridegrooms father or family head was also needed, if the bridegroom was still a minor. Interestingly, in the case of the bridegroom the Act made no stipulation that the consent could not be withheld unreasonably; and
Lastly a public declaration by the bride to the official witness was needed to the effect that the union took place with her voluntary consent.
It must be noted that the Natal Code and the Kwazulu Act also did not expressly provide for the payment of ilobolo.As a result a customary marriage could be a valid marriage even if ilobolo was not delivered, more the civil marriage, which did not require payment of iloboloat all.
According to Bekker17 , the requirements outside Kwazulu Natal are:
Consent of the brides guardian;
Consent of the bride;
Consent of the bridegroom;
Payment of ilobolo, bogadi or ikhazi to the brides family group; and
Non-existence of a civil marriage. This means that each of the parties must declare that they are not a party to a subsisting civil marriage.
An analysis of the above requirements listed by Olivier shows important changes regarding the requirements for a valid customary marriage even before the enactment of the Recognition Act. The consent of the father of the bridegroom was no longer necessary more specifically if the bridegroom would manage to pay ilobolohimself. Consent would however, still be required if the prospective bridegroom was a minor.19 It appears that in terms of the official version of customary law women were not allowed to negotiate ilobolo.However, according to the living version of customary law women are able to do so.20 The decision of the court in Mabe net'scase, which allowed women to negotiate iloboloought to be congratulated as it demonstrated that women enjoyed equal status with men. The consent of the bride and the bridegroom is still required just as it was prior to the Recognition Act. The handing over of the wife is still an essential requirement of a customary marriage even though it may be waived according to siSwaticustomary law21. An agreement that ilobolowill be delivered remains one of the components of a customary marriage.22
3. REQUIREMENTS OF A CUSTOMARY MARRIAGE AFTER 15 NOVEMBER 2000
For a customary marriage concluded after the commencement of the Recognition Act to be valid the following requirements have to be complied with:
The prospective spouses:
- Must both be above 18 years of age; and
- Must both consent to be married to each other under customary law; and
The marriage must be negotiated and entered into or celebrated in accordance with customary law.
It appears that an agreement to pay iloboloseems to be retained as a requirement of a customary marriage in South Africa even though it is not expressly stipulated in the Recognition Act. The Recognition Act refers to it directly by defining it as:
Property in cash or in kind, whether known as [i]lobolo, bogacli, bohali, xuma, lumalo, thaka, magadi, amabhekaor by any other name, which a prospective husband or the head of his family undertakes to give to the head of the prospective wifes family in consideration of a customary marriage.23
The Recognition Act further refers directly to iloboloby providing that:
A registering officer must, if satisfied that the spouses concluded a valid customary marriage, register the marriage by recording the identity of the spouses, the date of the marriage, any [i]loboloagreed to and any other particulars prescribed.24
The Recognition Act also refers to iloboloindirectly by stipulating that the marriage must be negotiated and entered into or celebrated in accordance with customary law.25 This direct and indirect reference mentioned above led Van Rensburg to conclude that iloboloit was still retained as a requirement for a valid customary marriage.26 Yet Dlamini27 is of the differing opinion that ilobolois not a requirement of a customary marriage because it is not expressly stipulated in the Recognition Act.
4. THE IMPORTANCE OFILOBOLO
Various reasons can be given that signify the importance of iloboloand the need for its continuation despite numerous attempts made to eliminate it28. Dlamini’s29 discussion of ilobolo, was comprehensive and included its historical background, its advantages and disadvantages. It has been argued that blacks in general are unable to recognise a relationship as a valid marriage if there was no agreement that iloboloor part of it will be delivered.
Ilobolotherefore holds a considerable appeal as a symbol of African cultural identity and religion30. It “is the framework that people use to express and to bring about complicated changes in terms of relationships and deep changes in terms of emotional realities, values, attitudes and concepts. It also embodies the language that the ancestors understand and bless.”31
The manner in which the process of negotiations of marriage is conducted makes it difficult to evade the payment of iloboloeven if a person may want to. During marriage negotiations it is usually not possible to determine whether a prospective marriage will be a civil or customary marriage because the agreement to pay ilobolois a norm in negotiations of both civil and customary marriages.32
It has also been argued that payment of ilobologuarantees good treatment of the wife by her husband and contributes to a positive psychological feeling on both the husband and wife that they have concluded a true and valid marriage.33 However, it must be noted that it is not necessarily true that the payment of ilobolowill automatically ensure good treatment of the wife by her husband. At the very least what can be said for it is that it may serve as evidence that the husband really loves and values his wife.34
According to Dlamini Ilobolois viewed as compensation of the girls parents for the loss of their daughter, her earning capacity, her childrens iloboloand the money spent on her education and upbringing35. However Dlamini concedes that it is impossible to adequately compensate the parents for the loss of their daughters earning capacity and all the expenses incurred by them in raising their daughter. At best therefore the compensation is merely psychological.36
The preponderance of learned opinion is that the payment of ilobolois a way of determining the honesty and seriousness of the intentions of the bridegroom and his commitment to become a financial provider in the prospective marriage.37
Ilobolosymbolises that the parties truly love each other.38 As a result the idea that a woman should feel that ilobololowers her human dignity, is a European impression, which does not reflect the views of the blacks themselves.39 In fact ilobolois the opposite of CEDAWs position on payment of ilobolo, already referred to earlier. The writers central argument is that ilobolo does not violate the right of women to human dignity. To the contrary, it places premium on a womans value and dignity, by tacit acknowledgement that it is only symbolic of but not equivalent to the dignity of the woman. Moreover, it is in the popular moral conviction of the majority of African people that failure to pay it is tantamount to degrading the woman.40
In the following section the writer examines whether the custom of iloboloinfringes the right of women to equality before the law and at the same time to reply to some of the concluding observations of CEDAW that labelled the custom of iloboloas a harmful cultural practice that ought to be abolished.41