By Kholofelo Maruma
Lobola, also referred to as bohadi, magadi or bridewealth, is a customary practice deeply embedded in many African societies. In South Africa, it functions as both a cultural marker and, in many communities, the initial formal step towards marriage under customary law. While historically grounded in symbolism and familial connection, lobola has undergone significant transformation, raising questions about its legal, social and economic nature. This discussion considers three key issues: whether lobola can be regarded as a form of trade, whether it should be formalised through written contractual agreements, and whether the validity of a customary marriage depends on the fulfilment of all traditional requirements. These matters are examined in light of the Recognition of Customary Marriages Act 120 of 1998 (RCMA), case law, and constitutional considerations.
Historical and Cultural Context
Traditionally, lobola was a gesture of appreciation from the groom’s family to the bride’s family, acknowledging their role in raising her (Ansell, 2001). In earlier times, the transaction was almost exclusively in cattle, which carried both economic and social value. The practice cemented relationships between the two families and was considered the foundation for a stable marriage. In contemporary society, economic change and urbanisation have altered the practice. Cash payments now frequently replace livestock, and the bride’s family often sets a fixed amount. This shift has led some to argue that lobola has become commercialised, with women effectively being assigned a monetary value (Montle & Moleke, 2021). This raises concerns about whether the practice is drifting away from its cultural roots towards a transactional exchange.
The Statutory Framework
Section 3 of the RCMA outlines the requirements for a valid customary marriage. These include that:
(a) both prospective spouses must be over the age of 18 years;
(b) both must consent to be married under customary law; and
(c) the marriage must be negotiated and entered into or celebrated in accordance with customary law (South Africa, 1998).
The Act does not expressly provide for the payment of lobola or the formal handover of the bride as statutory requirements for the validity of a customary marriage. This omission has left considerable room for judicial interpretation, resulting in divergent approaches across different courts.
In Mabena v Letsoalo 1998 (2) SA 1068 (T), the court took a formalist stance, holding that lobola negotiations and the formal handover of the bride were essential elements for a valid customary marriage. Subsequent decisions have been less rigid. In EXN v SRD (2011/3726) [2016] ZAGPPHC and Mkabe v Minister of Home Affairs and Others (2014/84704) [2016] ZAGPPHC 460, the courts questioned whether full payment or formal handover should be mandatory, noting that such requirements do not always reflect the diversity of contemporary customary practices. The shift culminated in Mbungela and Another v Mkabi and Others (820/2018) [2019] ZASCA 134 (30 September 2019), where the Supreme Court of Appeal held that a marriage may still be valid without full lobola payment or a handover ceremony, provided it was negotiated and celebrated in accordance with the living customary law of the community concerned. The court warned that strict adherence to outdated ritual forms could lead to unjust outcomes.
In the Tlou v Matlala (60676/2019) [2025] ZAGPPHC 15, expert evidence was led by Professor Bekker, who appeared as a witness before the court. He testified that it is not strictly necessary for a family to make payment on the day of the lobola negotiations, provided that the two families reach consensus on the amount. His emphasis was placed on the agreement itself rather than on immediate payment of money. Professor Bekker further opined that where the respective family delegates are unable to reach agreement on lobola, there is little to no possibility of concluding a valid customary marriage. He added that where negotiations have irretrievably broken down, the elders of both families would not permit the parties to cohabit. Strijdom J accepted the Professor Bekker’s testimony, describing him as an honest and reliable witness. The court’s acceptance of his evidence illustrates how expert testimony can bridge the gap between written law and living custom.
In Tsambo v Sengadi (244/19) [2020] ZASCA 46, the Supreme Court of Appeal addressed the requirements for the validity of a customary marriage. The matter arose from a dispute between Lerato Sengadi and the family of her late partner, Robert Tsambo. Sengadi maintained that a valid customary marriage had been concluded following lobola negotiations and a celebratory ceremony. The Tsambo family disputed this, arguing that certain rituals, particularly the formal handing over of the bride, had not taken place and that the marriage was therefore invalid.
The Court recognised that the handing over of the bride has traditionally been regarded as an important aspect of a customary marriage. However, it held that this requirement is not indispensable. The Court stressed that customary law is dynamic and must be applied in line with the practices and values of the community concerned. The absence or adaptation of rituals such as the handing over of the bride does not invalidate a marriage where other essential elements, including spousal consent and lobola negotiations, are present. This decision marked an important development in customary marriage jurisprudence, confirming that the validity of such unions must be assessed against living customary law rather than rigid adherence to formalistic interpretations of tradition.
Lobola and the Question of Trade
While South African law treats lobola as part of the marriage process under customary law, rather than a commercial contract, the monetisation of the practice in urban settings has led some to argue that it now resembles a financial transaction (Bennett, 2004). The concern is most acute where non-payment results in the non-recognition of a marriage, leaving parties often women without legal protection. Formalising lobola negotiations through written agreements has been proposed as a way to reduce disputes. Such contracts could set out the agreed terms, including the form of lobola, the amount, and payment arrangements. This approach could assist in preventing litigation, protecting expectations, and facilitating registration under the RCMA. However, formalisation also risks removing the cultural fluidity that allows lobola to adapt to different community norms (Diala, 2019). If not carefully implemented, it could further entrench the perception of lobola as a purely commercial exchange.
Conclusion
Lobola continues to hold deep cultural significance in South Africa, yet its legal regulation remains fraught with uncertainty. While the courts have increasingly adopted a flexible approach to interpreting its requirements, the absence of clear legislative guidance has fuelled ongoing disputes. In practice, imaginative arguments advanced by legal practitioners have led courts in certain divisions to develop customary law in accordance with constitutional values, particularly where the Act is silent on the role of lobola. Legal evolution is both inevitable and necessary, but it must be accompanied by legislative precision. The RCMA should be amended to state unequivocally the manner in which lobola may be negotiated and paid. Whether in full, in part, or in accordance with any agreement reached by the respective delegates, including situations where the lobola amount is agreed upon but payment is deferred. While clarifying the implications of such arrangements for the validity of a customary marriage. The law should also provide for an optional framework to record lobola agreements in writing, without making such contracts compulsory. Furthermore, the law already ensures that the death of a spouse does not retroactively invalidate a validly concluded customary marriage. Without such reforms, the tension between custom and statutory law will persist, leaving couples vulnerable to avoidable legal and financial hardship. It being a human factor that lead to all this evolution of the law, I can only conclude that like all things in our earthly life, to wit, the best of all times and the worst of all times, parties should consider mediation rather than litigation.
References:
- Legislation
- Republic of South Africa. (1998) Recognition of Customary Marriages Act 120 of 1998. Pretoria: Government Printer.
- Republic of South Africa. (1961) Marriage Act 25 of 1961. Pretoria: Government Printer.
- Republic of South Africa. (1996) Constitution of the Republic of South Africa, 1996. Pretoria: Government Printer.
- Case Law
- Mabena v Letsoalo 1998 (2) SA 1068 (T)
- EXN v SRD (2011/3726) [2016] ZAGPPHC.
- Mkabe v Minister of Home Affairs and Others (2014/84704) [2016] ZAGPPHC 460.
- Mbungela and Another v Mkabi and Others (820/2018) [2019] ZASCA 134 (30 September 2019).
- Tlou v Matlala (60676/2019) [2025] ZAGPPHC 15 (16 January 2025).
- Secondary Sources
- Albertyn, C. and Mbatha, L. (2004) ‘Customary law, gender equality and the Constitution: South Africa’s evolving jurisprudence’, South African Journal on Human Rights, 20(4), pp. 645–676.
- Ansell, N. (2001) ‘“Because it’s our culture!” (Re) negotiating the meaning of lobola in Southern African secondary schools’, Journal of Southern African Studies, 27(4), pp. 697–716.
- Kaime T. T. W. Bennett, Customary Law in South Africa, Lansdowne: Juta and Company Ltd., ISBN 0-7021-6361-9, 462 pp. Journal of African Law. 2004;48(2):271-273. doi:10.1017/S0021855304210014.
- Diala, A.C. (2019) ‘The concept of living customary law: A critique’, Journal of Legal Pluralism and Unofficial Law, 51(3), pp. 356–373.
- Malesela Edward Montle, Heritage Moleke. Exploring The Commercialisation of Lobola in South Africa Palarch’s Journal of Archaeology of Egypt/Egyptology 18(17), 587-606. ISSN 1567-214x
About author: Kholofelo Maruma is a law student at the University of South Africa (UNISA), a member of the International Forum of Researchers and Lecturers. He is also a member of and a mentee of the Afrikan Peer Growth Network (APGroN). He writes in his personal capacity.