REPRODUCTIVE HEALTH RIGHTS OF WOMEN IN SOUTH AFRICA
5.3 CULTURAL PRACTICES THAT INFRINGE ON THE REPRODUCTIVE HEALTH RIGHTS OF WOMEN IN SOUTH AFRICA
5.3.5 Levirate and Sororate Unions (Ukungena)
In South Africa, levirate and sororate unions are mainly prevalent in KwaZulu-Natal and the Eastern Cape provinces. A levirate marriage occurs when a widow is compelled to marry a member of her late husband‟s family. The widow is given a few sticks to choose from – with each representing a man in the family. The stick she chooses will determine who her new husband is.100This cultural practice is based on the fact that, in some parts of Africa, marriage represents more than the relationship between husband and wife, and also extends to the spouses‟
families. Thus, the death of a marriage partner does not end the relationship between the partner and his/her spouse‟s family. The widow/widower is regarded as a member of the family, and the customary marriage can only be terminated if the widow‟s family refunds the bride wealth (lobola) paid by the deceased husband and his family.101
In ancient times, this practice was used to ensure the continuation of the dynasty of a particular member of the family. It also ensured that a wife fulfilled her obligation to bear children.102 Consequently, a widow of childbearing age who was childless, or who had no male child, was required to marry a relative of her late husband. The children from the union of the widow and her husband‟s relative were regarded as the children of the deceased. This was referred to as
“raising the seed of the deceased man”.103 However, in contemporary times, the purpose of levirate marriages has changed. Families coerce the widow into such a relationship for economic reasons. If the woman refuses to marry a family member – she ceases to be a member of the family and is dispossessed of her husband‟s property.104
This form of marriage violates women‟s fundamental human rights, particularly their reproductive health rights, for several reasons. First, the marriage lacks consent, which is one of
100 Maluleke, note 13 (above).
101 Mswela, note 64(above) 184.
102 Ibid.
103 A.F. Steyn & C.M. Rip“The changing urban Bantu family” (1968)30(3) Journal of Marriage and Family499,506.
104 Maluleke, note 13 (above).
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the basic requirements of a valid marriage. In most cases, the woman is either coerced into the union due to the threat of economic loss (her husband‟s property) – if she rejects such a marriage. Secondly, a levirate marriage infringes on a woman‟s right to dignity, because she is considered the property of the deceased, to be inherited.
A sororate union is the opposite of a levirate marriage; it is also related to procreation. This type of marriage occurs among some South African cultural groups– except certain Xhosa speaking groups.105Bennett notes that “…traditionally, a woman‟s child-bearing potential was thought to be her most important attribute.”106Sororate unions are regarded as the last resort when the wife is infertile or dies before the birth of a child.107 The wife‟s family will give the husband her sister or one of her relatives to bear the child. The children of this union are regarded as the children of the childless wife.108 Even in cases where the deceased wife had borne children, the husband could bring her sister to help raise the children.109While the first wife‟s consent is desirable, it is not essential. The union is not a new marriage, but an extension of the first marriage; hence, the husband is not required to pay lobola for the subsequent union. Sororate unions are an alternative to the refund of the lobola. If the bride‟s family fails to compensate either for her death or infertility by substituting her sister – the husband can demand that the lobola is refunded.110 This type of marriage cannot be regarded as a valid customary marriage, because the bride price, which is the consideration that must be furnished for a customary marriage to be valid, is absent.
However, it is an infraction on the reproductive health rights of women – particularly the right to privacy, because it extends the decision to reproduce beyond the couple. In the same vein, such an arrangement might affect the right to dignity of the first wife, as she is assistedin performing her role. The new wife‟s right to reproductive autonomy can also be infringed upon as she may not be interested in such a relationship – but may be coerced or unduly influenced by her relatives.
105 Bennett, note 49 (above).
106 Ibid.
107 Steyn &Rip, note 103 (above).
108Ibid
109 Bennett, note 47 (above) 355.
110 Idem355.
164 5.3.6 Bride Price/Bride Wealth
Bride price or bride wealth is the consideration (goods/money) that is given by the groom‟s family to the bride‟s family in a customary marriage. Each of the diverse cultural groups in South Africa has different names for bride wealth. In Zulu, it is known as lobola, while the Xhosa equivalent is ikhazi, the Tswana bogadi, the Southern Sotho bohali, the Tsonga lovono and the Venda thaka.111For this study, the term lobola is employed– because it is morewidely used in South Africa.
Lobola is defined as “cattle or other property which, in consideration of an intended customary or civil marriage, the intended husband, his parent or guardian or other person agrees to deliver to the parent or guardian of the intended wife.”112Lobola has also been described as “property in cash or kind … which a prospective husband or the head of his family undertakes to give the head of the prospective wife‟s family in consideration for a customary marriage.”113
Thus, lobola consists of a significant gift in the form of money or cattle from the groom and his family – to the father of the bride.114Lobola need not be paid in full as long as there is agreement that lobola will be paid.115 In Maloba v Dube the court held that “It is trite African customary law that there is no rigid custom governing the time stipulation within which lobola has to be fully paid. What is sacrosanct is the undertaking to pay the agreed lobola…”116The bride‟s family reciprocates this gesture with feasting and a show of great hospitality (umaho). Because customary marriage transcends the relationship between the husband and the wife, the two families are always involved in the marriage negotiations. The prospective groom‟s parents, particularly his father/guardian, negotiate with the prospective wife‟s parents/guardian. The bride‟s father has the authority to prevent or delay the marriage by refusing the bridewealth – or he may accept a more attractive bridewealth from another suitor.117 The negotiations between the
111 Bennett, note 49 (above) 220-242.
112 Section 1(1) of the Codes of Zulu Law.
113 Section 1(iv) of the Recognition of Customary Marriages Act 120 of 1998.
114 A. Meyer-Weitz et al.“The socio-cultural contexts of sexually transmitted diseases in South Africa: Implications for education programmes” (1998) 10(2)AIDS Care: Psychological and Socio-Medical Aspects of AIDS/HIV35, 41.
115Southon v Moropane(14295/10) (2012) ZAWCHC 31 Para 82
116Maloba v Dube (2008) ZAGHPHC 434 at Para 24
117 T.W. Bennett Human rights and African customary law (1999) 116.
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parents of the prospective couple culminate in their consent to the marriage. Customarily, a woman is regarded as a „perpetual minor‟ – and hence is not permitted to interfere in marriage arrangements.118
However, in Mabena v Letsoalo, it was held that an independent adult bridegroom does not require his parents‟ consent to a customary marriage.119 He can negotiate and pay lobola and conclude marriage arrangements. The court held that although it is customarily the bride‟s father/guardian‟s duty to negotiate and receive lobola and consent to the customary marriage, there are instances where mothers can perform this role;120there are many instances where a mother is the head of the family. In such a situation, she can act as the bride‟s guardian and negotiate and receive lobola as evidence of her consent to the marriage.121
The effect of lobola on the marriage contract is that the husband and his family take ownership of the bride, and any offspring of the marriage.122This is because payment of lobola can be interpreted by men as a licence to take authority over the bride‟s body.123 The payment of lobola is regarded as a neutral medium in which a woman‟s reproductive ability is exchanged.124 Consequently, she does not have a say as to the number of children she will have during the marriage.125Thus, payment of lobola represents a consideration in anticipation of what the wife is going to produce, and the value (regarding the number of children) she is going to add to the family.126
Payment of lobola is a well-recognised customary practice among black South Africans – and one of the requirements of a valid customary marriage. Children whose fathers have not paid lobola are regarded as illegitimate. Consequently, couples still abide by the practice, even if they have contracted civil marriages.127 Black South African men consider the payment of lobola as their “cultural duty”; it gives them a sense of pride, as it proves that they can financially support
118 Bennett mote 117 (above)
119 (1998) 2 SA 1068 (T).
120 Ibid.
121 Mabena v Letsoalo, note 114 (above).
122 Ibid.
123 Abertyn, note 78(above).
124 Bennett, note 49 (above) 222.
125 Meyer, note 114(above).
126 Gustafsson &Worku, note 76(above).
127 Gustafsson &Worku, note 76(above).
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their new home. However, current trends relating to lobola have made it an obstacle to marriage.
Some scholars have disputed that lobola amounts to a bride price.128In traditional black South African society, lobola was paid in cattle that symbolised reproduction. Furthermore, the payment of cattle created a bond between the two families. This is evident in the fact that lobola was paid in instalments – with the first installment expected to be paid before the marriage and the rest after the birth of a child.129It is believed that this would create a relationship between the two families which transcends the death of either partner to the marriage.
Payment of lobola also helps to stabilise the marriage, as the husband may lose his lobola if he ill-treats his wife. In the same vein, the bride considers the payment of lobola by her husband as a sign of commitment and love. It proves her worth, and gives her a sense of pride – both within her immediate family and the community at large. The status of the bride‟s father in the community determines the number of cattle to be paid by the prospective groom. The bride‟s personal virtue (her virginity) and her educational status also determine the amount to be paid.130 However, in contemporary South Africa, lobola has been commercialised. Cattle have been replaced with money and gifts.131 Cattle have acquired a new value that is measurable in cash and imported goods. Furthermore, due to its economic value, there is a constant increase of lobola.132It is now regarded as a form of compensation to the bride‟s family, for what they spent on their daughter before marriage. This may suggest that the parents are selling their daughter – thereby violating her reproductive health rights.133The woman‟s right to dignity may also be violated, as the husband may consider the wife to be a commodity that he purchased, and which must yield interest through procreation. In this type of situation, it may be difficult for the woman to exercise reproductive autonomy.