Lobola doesn’t always mean married

Garry Hertzberg

By Garry Hertzberg, practising attorney at Dewey Hertzberg Levy and Host of the Laws of Life with Garry Hertzberg on Cliffcentral.com writes:

A man, Mr M, marries a young woman named Lina in a traditional ceremony with all of the negotiations and family custom.

Lina and Mr M’s families had a big handing-over celebration, cows were slaughtered and Lina’s family handed her over to Mr M’s family according to custom. Four children were born to the marriage. This all happened in a rural area far from the city. Some years later, Mr M left Lina and the children with his mother to seek employment in Johannesburg.

Unbeknown to Lina, Mr M met another woman, Lillian, while living in Johannesburg. Mr M decides to marry Lillian too. Lillian and Mr M register their civil marriage at Home Affairs with no problems, and later enter into a customary marriage with a negotiated lobola to be paid to Lillian’s family, a portion of which was paid. Sadly, Mr M passed away. After the funeral and all the other necessary bits, Mr M’s bereaved wife of 10 years, Lillian, started to wind up his estate.

Out of the blue appeared Mr M’s first wife Lina, claiming that Mr M had married her in a customary union long before he even met Lillian.

Lillian had no idea that Mr M was previously married because the first marriage was never registered at Home Affairs as required by the Customary Marriages Act.

Lillian thought that she would get the whole estate, but Lina had other ideas. She approached the High Court to declare that Lillian’s marriage to Mr M was null and void and to have the record at Home Affairs expunged.

The court looked to the Recognition of Customary Marriages Act for answers. The court recognised Lina’s marriage as valid because it complied with all the elements of a customary marriage.

Not only that, but the Act says that the failure to register a customary marriage does not affect the validity of that marriage.

So there it was: Lina’s marriage was declared valid and she was therefore entitled to inherit his estate. Lillian, on the other hand, was left high and dry, as she was not recognised in law as a wife as Mr M was not allowed to legally enter into a civil marriage with Lillian as he was already married.

What about Lillian’s customary marriage? Court experts agreed that when a man wants to enter into a second customary marriage, he must have the first wife’s approval and consent. Without approval, the marriage is null and void.

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