As will be shown in chapter four below, ilobolo remains and highly contentious issue even among the insiders. In response to Marwede's Africanist argument, Mamabolo (1945:18) retorts that custom only "justifies its continuance when the purpose it serves is good and big enough to outweigh the inconvenience accompanying its observance." Most of those who express a contrary view to Marwede's (Chigwedere 1982; Masondo 1992; Radebe 1997) bemoan the fact that it remains a cultural symbol unfortunately denuded of the elements of that culture. Thus the cultural argument has severe limitations.
Whereas ilobolo was a mandatory requirement of customary marriage, with the rapid changes from an agricultural economy to the modern industrial state whose influence reaches to the remotest corners of rural settings, the questions being asked now are: how helpful is it to remain with the past? Should we rather not build on foreground now (Mamabolo 1954:30)? This leads us to the recent debate on the status of ilobolo and colonial law, its role in and post- colonial and post-apartheid society.
elsewhere in South Africa, were administered under a dual legal system, namely the Roman Dutch law or the colonial law as well as Customary law.46
Contact and conflict between the two legal systems came into sharp focus by the middle of the nineteenth century. Prior to that the colonists paid scant regard for the legal and social systems of the indigenous peoples of South Africa. Justification for non-recognition of customary laws being the fear by the colonists of subjecting "a section of the population to an inferior brand of justice."47 With regard to the marriage customs of Black persons in the Natal
colony and also in the other provinces, the Government passed Ordinance 3 of 1849 which grudgingly recognised polygamy and ilobolo. It allowed courts the freedom to operate a dual legal system in cases involving Black persons provided that Customary law ** was not repugnant to the general principles of humanity observed throughout the civilised world" (Bennett 1985:70).
However, during the latter part of the nineteenth century, colonialists and missionaries were strongly opposed to customary marriage and the passing of ilobolo on the grounds that such unions amounted to the purchase of women, encouraged polygamy and reduced women to slaves.
It does seem, however, that economic considerations were the real motive behind the colonial government embarking on a systematic attempt to abolish customary marriages. Welsh (1971: 69) notes how a memorandum presented to the Lieutenant -Governor Scott in 1856 by colonists in Durban argued that;
46 Customary marriage law refers to marriage according to African law and practice. In pre-colonial days the minimum requirements were that the families of the spouses agree to the union and, as evidence, secondly, ilobolo in cattle, money or other goods of value in varying combinations, be passed by the groom's family to that of the bride and, finally, and ritual be performed to separate the bride from her lineage both die living and the shades and be incorporated to that of her husband.
""See South African Law Commission Report, 1999:6, herein after to bt referred to simply as Report.
M This evil (polygamy and ilobolo) destroys all love between man and wife- it encourages war as a means of procuring cattle to pay for (wives) and panders to their (i.e. men) lust and idleness; and by fearful destruction of life, brings about an inequality of the sexes...Polygamy thus renders them (men) unquiet subjects of Government, and useless for the purposes of industry — bad citizens and disinclined to labour"
(texts within brackets and italics have been added.)
Seven years later in 1863 another memorandum declared that polygamy;
"...is associated with customs that are peculiarly odious; that are revolting alike to the good sense and the Christian feeling of the entire European population of this settlement; and ...loudly call for the early adoption of judicious measures by the Government to restrain and prohibit them."
Such judicious measures were proposed by Sir Theophilus Shepstone and enacted as marriage law in 1869. The law stipulated the number of cattle to be passed as ilobolo by different categories of people; that the Government appoints its official representative or iphoyisa (policeman) to officiate in African weddings for a fee.48 His function, according to Vilakazi (1962:71), was to buzela or ask the bride three times, on behalf of the state, if she really loved the man who asked for her hand in marriage. The Act exempted Africans from customary stipulations if they wished to marry by Christian rites and in the latter case ilobolo was made optional and iphoyisa dispensed with (Welsh, 1971:103).
"Welsh (1971:77) notes that one shilling was to be paid to the government in order to register the first marriage of a Zulu couple. For every subsequent marriage, three shillings were to be paid in every pound sterling of the lobolo given or to be given. The hut tax raised from seven to eleven shillings. Both developments were designed to produce substantial revenue for die colonial government while at the same time discouraging
The Act created as many problems as h tried to solve. Problems persisted and the colonial Government codified African law in 1884 and 1887. The codified documents 'were so starkly and sketchily made that administrators of native law continued to enforce their own version of customary law' (Welsh 1971:166) We turn now to other parts of the county to consider the effects of colonial law on African customary marriages. Following the annexation of the Transkei to the Cape Colony between 1877 to 1894, magistrates in the annexed territories were given discretionary powers to apply customary law,
"...provided that such Black law shall not be opposed to the principles of public policy or natural justice; provided further that it shall not be lawful for any court to declare that the custom of lobola or bogadi or similar custom is repugnant to such principles," Bekker (1989:41).
The status quo was upheld with minor modification until 1988.49 The general import of the recognition of customary law was that where there was potential for conflict between customary and colonial laws, the latter was taken as the norm and the court had to decide whether the former was dispensed with.
In the Transvaal Republic, which included the present provinces of Gauteng, Mpumalanga, Northern and parts of the North West provinces, and also in the Cape Province, customary marriages founded on the passing of bogadi (Setswana) were not recognised by the courts until the passing of legislation in 1885 which included the repugnancy clause. Likewise, according to Olivier et al., (1995; 190) customary law was not recognised in the Orange Free State except in Thaba-Nchu and Witsieshoek where the commandant was empowered to hear appeals from the chiefs courts.
49See si of the law of Evidence Amendment Act 45 of 1988
The next major milestone in the development of the dual system was the 1927 Black Administration Act which, while retaining the repugnancy clause, afforded greater recognition to customary laws in South Africa. Bennet (1980:46) avers that the real intent of the Act may have been to avert a growing urban political threat to White hegemony. Consequently the government revived traditional institutions with the hope that they would act as political decoys. Commissioners' courts were given discretionary powers by the Act to apply Customary law:
" Notwithstanding the provisions of any other law, it shall be in the discretion of the Commissioners' Courts in all suits and proceedings between Blacks involving questions of customs followed by Blacks, to decide such questions according to the Black law applying to such customs except in so far as it shall have been repealed or modified:
Provided that such Black law shall not be opposed to the principles of public policy or natural justice: Provided further that it shall not be lawful for any court to declare that the custom of lobola or bogadi or other similar custom is repugnant to such principles,'' Olivier et ai, (1995:199).
This principle remained in force until 1988 when the Law of Evidence Amendment Act extended this application of customary law to all persons other than those of the Black race. Secondly the sphere of application of customary law was extended to all courts in the country (Report, 1999:13).
Following the passing of the 1988 Amendment Act, ilobolo is no longer essential50 in respect of civil marriages among Blacks but it is a legally enforceable contract if promised. Its payment or non-payment does not affect the validity of a marriage. According to Olivier et ai, (1995:93) the husband and the woman's father enter into an ancillary contract in regard to the passing of ilobolo. The relationship or contract is thus governed by customary principle (Report, 1999:53). In view of the many customary systems in South Africa, the Law Commission recommended that the new law 'display a flexibility that allows for groups to marry according to their own customary laws' (Report,
1998:41).
In case of divorce, the action is to be conducted by a competent court of law and the consideration for the return of ilobolo is unlinked to the divorce process because, the ilobolo contract is between the man and his father- in- law whereas the marriage is between the man and his wife if both are over the age of twenty one at the time of marriage (Report, 1998:60-61). The husband, if he is the aggrieved party, is free to claim return of ilobolo subject to the necessary deductions.
50 According to the South African Law Commission's Report (1998:53) that decision came about following and recommendation of and workshop in the (South Region), Adv. N. Cassim, the Women's Lobby, the House of Traditional leaders (Free State), Mr A.M Moleko and die Rural Women's Movement Exception to this recommendation was voiced by the Traditional leaders in the Northern Province and Eastern Cape as well as a Commission's workshop in Mpumalanga.
The former TBVC states and the six self-governing territories51 were given greater powers to legislate with respect of marriage laws. Consequently in Transkei customary and civil marriages were placed on an equal footing. The couple was free to choose which form they were going to follow after the registering officers had fully explained the differences. The marriage would thus be governed by the rules applying to their choice at the time. This means, for instance, that if customary rites were followed, polygamy would be permissible (Olivier et ai, 1995:96). The South African Marriage Act of 1980 and the Black Administration Act of 1927 which were in force before 1988 governed the citizens of Bophuthatswana. Similarly, Venda and Ciskei did not pass their own marriage laws.
In terms of section 229 of the Constitution of South Africa, laws that were in force in the TBVC states and the six self- governing territories were to remain in force until repealed or amended. When clashes emerged as a result of upholding legal pluralism in South Africa, the three options to be followed were that first; procedural norms for the conflict of laws were to be applied, secondly, the two systems would have to be eventually integrated and finally, it was conceivable that one of the systems would have to be abolished (Olivier et ai, 1995:219). The stutus quo in South Africa is that under the new marriages Act, known as the Recognition of Customary marriages Act of 1998, both customary and civil or Christian marriages are on par and the couple is free to choose either option (Report, 1999:53).
51 The TBVC states refers to the former semi autonomous 'states' or Black homeJands within the Republic of South Africa. These included Transkei, Bophuthatswana, Venda and Ciskei. The six self governing territories were even less autonomous and these were Gazankula, Lebowa, Kwa-NdebeJe, Kwa-Zulu and Qwa-qwa and
3.10 Recognition of Customary Marriages Act52.
The Act was assented to on 20 November 1998 and commenced on 15 November 2000. First, it legalised all marriages that were entered into following customary rites before the date of enactment and it covered all subsequent marriages from that time onwards. However, following the commencement of the Act, additional requirement were that prospective spouses must both be above 18 (eighteen) years in age; they must consent to be married under customary law provided that at least one of the participants should be following the customs of his or her community as applicable in South Africa.
Secondly, either spouse of a customary marriage entered into before the 15 November is required to register such a marriage before 14 November 2002.
All other customary marriages are to be registered three months after the conclusion of the ceremony or even longer as the Minister may prescribe. In registering the marriage, article 4(a) states:
" A registering officer, if satisfied that the spouses concluded a valid customary marriage, must register the marriage by recording the identity of the spouses, the date of the marriage, any lobolo agreed to and any other particulars prescribed."
A certificate of registration has to be issued. However, failure to register a customary marriage does not affect its validity. Once married, either of the spouses has full status and capacity to acquire and dispose of assets. Thirdly, polygamy is allowed if entered into following customary rites and the interests of all parties are sufficiently safeguarded. Finally, provision for divorce is made
52 Statutes of the Republic of South Africa - Husband and Wife, see Recognition of Customary Marriages Act, No. 120 of 1998; Issues 33 and 36 - Supplementary, p 671-683.
in that a court of law may grant a divorce decree if it is on the grounds of irretrievable breakdown of the marriage.
3.11 Conclusion
In this chapter we have shown that ilobolo is an essential element of customary marriage not only in Southern Africa but also throughout most parts of the African continent. That contrary to the widespread view that the custom has had an economic import as its main focus, according to the view that is widely accepted among its practitioners, its aim was to establish new relationships between the living lineages and the respective shades or the living dead. The various positions that have been advanced to account for its origin and purpose have been evaluated in the light of Scripture.
At present, it must however be admitted that the economistic motif tends to occupy centre stage thus problematising the practice in its modern application.
That notwithstanding, all the problems raised by ilobolo especially the gender imbalance does not seem to bring the practice to an end. Its tenacity could be due to its religious connotations. The validity of that theory will have to be tested in chapter four below. Of immediate concern in the next chapter will be to determine whether ilobolo is gaining popularity or is it about to outlive its usefulness. If so, why and if not, why not?
CHAPTER FOUR
ASSESSMENT OF CONTEMPORARY PEOPLE'S ATTITUDES TOWARDS 1LOBOLO