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Aantekeninge

THE MODERN SIGNIFICANCE OF LOBOLO

1 Introduction
Lobolo payment denotes the giving of property by a husband or his family head
to his wife's family as part of the process of marrying, and as such, it is a
custom that is today still practised widely. Indicative of the custom's popularity
is that recently in Johannesburg the previous president of South Africa, Mr
Nelson Mandela, and his clan paid 60 prime cattle for Mrs Graca Machel's
hand in marriage. According to tradition, a group of Mr Mandela's uncles
apparently visited Mrs Machel's family in Mozambique many times to negoti-
ate the marriage and the payment of lobolo ("Lobolo: Graca's hand came at a
cost" East Cape Weekend (25-7-1998) 2).
To the African way of thinking, the most important ingredient of a valid
marriage today is the payment of lobolo (Bennett Human Rights and African
Customary Law (1995) 118). Despite the fact that it has long been a subject of
controversy amongst students of African customary law (Prinsloo, Van Nie-
kerk and Vorster "Current research on lobolo by means of a questionnaire"
1997 De Jure 99), the durability of this institution has been remarkable. It has
survived changes in composition, mode of payment and amount. It has also
survived the onslaught of missionaries, colonial governments and courts. In
fact, today the court may not declare the payment of lobolo against the prin-
ciples of public policy in terms of section 1(1) of the Law of Evidence Amend-
ment Act (45 of 1988). However, in order to survive, the custom has had to
adapt and, not surprisingly, its current form and function bear the signs of
modern socio-legal and economic influences.
This article is aimed at examining the functions and form of the lobolo
custom, both from a traditional and a modern viewpoint. The impact of factors
such as the legalisation of the customary marriage, the gradual emancipation
of women, the protection of women's and children's rights, as well as capital-
ism, on the functions and form of the custom will be investigated.

2 Traditionalfunctions of lobolo
By traditional functions of lobolo is meant those functions which existed before
black cultures were noticeably influenced by European cultures (Labuschagne
"Regsakkulturasie, lobolo-funksies en die oorsprong van die huwelik" 1991
THRHR 545). Labuschagne (546-550) distinguishes between the following
(most important) functions:
i lobolo as contract of sale (the so-called economic function);
ii lobolo as counter-performance for the transfer of guardianship over the
wife, her ability to work and her reproductive capacity, as well as to
signify gratitude for her upbringing (another manifestation of the
economic function);

532
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THE MODERN SIGNIFICANCE OF LOBOLO

iii the religious function whereby the giving of lobolo seeks approval from the
ancestral gods;
iv the sociological function of lobolo in enhancing the girl's status and
seeking her family's friendship;
v the legal function of lobolo in legalising the marriage and legitimising the
children; and
vi the function of lobolo to provide stability to the marriage and to ensure
maintenance for the wife after dissolution of the marriage (the so-called
maintenance function of lobolo).
Olivier (Indigenous Law (1995) 33) summarises the functions as follows:
"It serves to legalise the marriage, to legitimate the children born of the woman, to act as a form
of compensation in a general sense, to place the responsibility upon her father to support her if it
should become necessary, to stabilise the marriage, and to ensure the proper treatment of the wife
by the husband and his family. It is clear, however, that the primary function of the lobolo is to
transfer the reproductive capacity of the woman to the family of her husband; in other words,
there is a direct correlation between (a) the transfer of the lobolo, and (b) the reproductive
potential of the woman."

Seen from a customary point of view, it would thus seem that both the legal
and social status of the wife, as well as the legal status of her children, were
determined mainly with reference to the payment of lobolo. Her marriage
would furthermore be regarded as complete only when firstly the woman
had borne a sufficient number of children for the lineage of her husband,
and secondly when the commitment to transfer lobolo had been fully satisfied
(Olivier 33).

3 Functions of lobolo revisited- modern perspectives

3.1 Economic function of lobolo
Much of the criticism against the institution of lobolo was based on the fact
that it was regarded as amounting to the purchase of a woman which was in
turn seen as derogating from her status and dignity (Dlamini "The role of
customary law in meeting social needs" 1991 Acta Juridica 78). Dlamini (79)
explains it as follows: "Operating in a money economy, as it does today,
[lobolo] tends to acquire mercenary features which then discredit it because it
takes on the appearance of the purchase of a woman."
Today the idea that lobolo as such buys a bride has been exposed as a fallacy.
The husband does not obtain ownership of his wife, as he may not "sell" her to
another man and may be faced with her leaving him in the event of ill-treat-
ment - actions inconsistent with ownership. (Labuschagne 546; Simons African
Women (1968) 88). As early as 1883 the Government Native Laws and Cus-
toms Commission stated that a woman is not the slave of her husband. She is
not his property and he may not kill, injure or treat her cruelly with impunity.
The abuse of marital authority, and not the contract of lobolo, was thought to
justify the belief that Black women may be treated as property by their hus-
bands. (See Koyana Customary Law in a Changing Society (1980) 4.)
However, according to feminists, lobolo does conduce to the inferior status
of women. It has to be conceded that at a superficial level the payment of an
often substantial number of livestock or amount of cash in exchange for the
reproductive and working capabilities of a bride has all the makings of the sale

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 KNOETZE

of a woman. Men who talk about lobolo as the quidpro quo for acquiring rights
over their wives, do nothing to dispel this image (Bennett 118).

3.2 Legal functions of lobolo

i Lobolo as requirement for a customary marriage
There seems to be disagreement amongst authors whether the payment of
lobolo is an essential requirement for the validity of a customary marriage,
or whether it is a requirement which naturally belongs to a marriage agreement
but which has no effect on the contractual validity of the marriage. Some
regard the payment of lobolo by the bridegroom's father or by the bridegroom
himself to the bride's family as the major essential of a customary marriage
(See Vorster and De Beer "Is huweliksgoed 'n essensile regsvereiste vir 'n
geldige inheemsregtelike verbintenis?" 1988 South African Journalof Ethnology
182). Church ("Lobolo - a critical evaluation" in Sanders (ed) Southern Africa
in Need of Law Reform (1981) 29) quotes Schapera as saying that the essentials
of the "marriage contract among the Tswana are (a) the mutual agreement
between the two families concerned . . ." and "(b) the transfer of certain live-
stock...". As long as the bridewealth is not paid, the union between the man
and the woman, although regular (emphasis supplied by Church), is not con-
sidered to be a complete marriage. In terms of this approach the statement that
"there can be no customary marriage if there are no cattle with the girl's guar-
dian" seems to be correct of customary law (Bekker Seymour's Customary Law
in Southern Africa (1989) 107). However, Church points out that if lobolo is
essential to marriage, the obvious inference to be drawn is that without lobolo
the sexual relations between the man and the woman would be unlawful. That
is, however, not the case. Furthermore, the man would not be able to claim
from a third party on the ground of adultery. Also, this inference lacks truth. It
seems that the relationship is protected against infringement by third parties
and the action for adultery is not made dependent upon the payment of lobolo
(Church 29). Church also points out that should Schapera be correct (Schapera
has subsequently revised earlier statements suggesting that payment of bride-
wealth is essential to the validity of marriage and has concluded that it is not
the decisive criterion in determining whether a couple is legally married or not
- see Church 30), then the children born of the union would legally not belong
to the father's group. "This too seems not to be the case and where the mar-
riage has taken place with the approval of both groups the father's 'claim' to
the children remains undisturbed" (Church 30).
The conflicting viewpoints and the apparent contradiction in statements
such as that marriage without bridewealth though "regular" is "incomplete",
may be resolved by having regard to the opinion of Vorster and De Beer.
According to them a distinction should be drawn between essential require-
ments of a marriage, natural requirements and incidental requirements:
"Although a marital union has specific features, it may also be viewed as a contractual matter in
addition to its ritual and ceremonial features. The elements of the indigenous marriage agreement
may be distinguished as essential requirements, natural requirements, and incidental require-
ments. Essential requirements refer to requirements that should be met beforehand for a juristic
act to be valid. Non-fulfilment of these requirements results in the act being void. These
requirements cannot be altered or excluded by the parties and may be regarded as absolute
requirements [such as a marriage partner from the different sex].

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THE MODERN SIGNIFICANCE OF LOBOLO

Against these absolute requirements there are relative requirements. On the one hand there are
requirements which are naturally part of the agreement but which the parties may alter or exclude
by agreement to fit their particular circumstances. These are the so-called natural requirements.
On the other hand there are requirements which do not form part of the agreement but to which
the parties may agree in addition to the absolute and natural requirements. These requirements
are known as incidental or accidental requirements. Whereas absolute requirements cannot be
altered or excluded, relative requirements are subject to agreement between the parties" (Vorster
and De Beer 186).

After a review of the ethnographic literature, Vorster and De Beer come to

the conclusion that lobolo constitutes a natural requirement of the custom-
ary marriage, and not an essential one. They base their argument on the
variable ways in which bridewealth is to be paid by the different indigenous
tribes:
"[S]ome peoples require that all the marriage goods should be delivered beforehand, although the
parties may agree about the nature, amount and composition of the marriage goods. Other
peoples require that at least a part of the marriage goods should be transferred before the
wedding, while the balance may be delivered afterwards. In some cases the amount is fixed, but in
all cases the nature and composition are subject to agreement. Among the Xhosa-speaking
peoples a first 'instalment', to be transferred before the wedding, is determined by mutual
agreement. After the wedding the wife's people may periodically demand additional cattle from
the husband by impounding the wife in terms of the ukutheleka custom. Among other peoples
again nothing had to be delivered before the wedding on the understanding that marriage goods
should be delivered afterwards, even from marriage goods to be received in the future for a girl
born from such union" (Vorster and De Beer 186-187).

The viewpoint that lobolo is an essential requirement, would prevent some

marital unions from being regarded as invalid until all the marriage goods
have been transferred. Thus lobolo should be regarded as a natural requirement
of a marriage agreement which does not affect the contractual validity of the
customary marriage as such (Vorster and De Beer 187).
The South African law commission is also of the opinion that lobolo is not
necessarily essential to the validity of marriage (Harmonisationof the Common
Law and the Indigenous Law Discussion paper (1997) 74 43). This view seems to
be supported by Dlamini (78) where he states that "[b]ecause ilobolo is not a
legal requirement for a marriage in contemporary customary law, its continued
popularity may be attributed to a number of social reasons". The law com-
mission's report further states that the "official" version of customary law
never finally decided whether lobolo was an essential requirement of the cus-
tomary marriage (43). In this regard the commission could inter alia possibly
have referred to the position in KwaZulu-Natal where section 38(1) of the
KwaZulu and Natal Code is silent about the payment of lobolo as essential
to a marriage. In its evaluation, the commission comes to the conclusion that
"it seems sensible to regard bridewealth as one form of evidence, albeit weighty
evidence, of the parties' intention to contract a marriage. By implication, pay-
ment of bridewealth would be optional. . ." (44).
The Recognition of Customary Marriages Act (120 of 1998) legalises the
customary marriage in that it is "for all purposes recognised as a marriage" (s
2). Section 3(1) regulates the requirements for a valid customary marriage as
follows:
"For a customary marriage entered into after the commencement of this Act to be valid
(a) the prospective spouses

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 KNOETZE

(i) must be above the age of 18 years; and

(ii) must both consent to be married to each other under customary law; and
(b) the marriage must be negotiated and entered into or celebrated in accordance with custom-
ary law."

At first glance it seems that the act is silent on the requirement of lobolo.
However, according to the memorandum which accompanied the Recognition
of Customary Marriages Bill (B 11 OB-98), section 3(1)(b) is stated broadly to
accommodate different systems of customary law, thereby including those in
which lobolo is not a requirement for a valid customary marriage. This would
imply that in terms of the act lobolo is, for example, not an essential to a
marriage in KwaZulu-Natal, but would, for argument's sake, be a natural
requirement in the Cape Nguni tribes like the Xhosa, where a first instalment
of lobolo must be paid before the wedding. It thus seems that the act does leave
room for the accommodation of the legal function of lobolo as a natural
requirement for a customary marriage in terms of its provision in section
3(l)(b). It is submitted that this approach deviates from the original proposal
of the law commission that the payment of lobolo be purely optional.
As far as attitudes towards lobolo are concerned, results of a survey under-
taken by Prinsloo, Van Niekerk and Vorster in Mamelodi and Atteridgeville
on perceptions of the law and current ideas and trends regarding lobolo show
that lobolo is still highly honoured by the respondents. (Apart from their article
referred to earlier, see also their "Knowledge and experience of lobolo in Ma-
melodi and Atteridgeville" 1997 De Jure 314 and "Perceptions of the law
regarding, and attitudes towards, lobolo in Mamelodi and Atteridgeville"
1998 De Jure 72.) 89% of the respondents were of the opinion that a customary
marriage cannot come into existence without lobolo being delivered. This re-
sponse corresponds with the response to the question regarding the time of
delivery of lobolo, where 97% answered that at least some or all of the lobolo
should be handed over before or during the marriage ceremony (Prinsloo, Van
Niekerk and Vorster (1998) 77-78). 90,6% of the respondents were of the
opinion that lobolo should at least be negotiated (albeit not delivered) in re-
spect of a customary marriage (Prinsloo, Van Niekerk and Vorster (1998) 78).
In view of these results, it is interesting to note that although the correct
academic viewpoint seems to be that lobolo is not an absolute essential to a
customary marriage, the traditional perception that there can be no marriage
without lobolo being delivered or at least negotiated, still prevails. This would
probably also explain why lobolo is more often than not also paid in respect of
a civil marriage.

ii Lobolo in determining the wife's status

Lobolo transfers a family head's authority over his daughter to her husband in
the event of marriage. The status of African women is therefore dictated by a
deeply entrenched tradition of patriarchy. The empowerment of men over
women entails a corresponding disempowerment of women, who are thereby
deprived of the capacities necessary to deal with the world at large (Bennett
80). According to feminists lobolo conduces to the inferior status of women.
Although its original purpose was not to humiliate, denigrate or objectify
women, lobolo is often perceived as strengthening the authoritative position
of the husband. By viewing lobolo as the consideration for acquiring rights to a

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THE MODERN SIGNIFICANCE OF LOBOLO

wife, thereby determining her legal status, this negative image is encouraged
(South African Law Commission 41).
This raises the question of whether the custom of lobolo is in contravention
of the right to gender equality in terms of section 9 of the Constitution of the
Republic of South Africa 1996. The law commission was of the opinion that
giving bridewealth does not directly involve discrimination against women
contrary to section 9. "After all[,] men have to pay, not women." Hence,
any argument under section 9 of the constitution of direct discrimination
would fail. With regards to indirect discrimination in terms of section 9(3) of
the constitution, the law commission expressed the view that
"[a]n argument of indirect discrimination . . . is also unlikely to succeed. Indirect discrimination
suggests that, although a practice appears gender-blind, the way in which it operated over time
worked to the detriment of women. Again, however, it would be impossible to demonstrate that
payment of bridewealth was the condition precedent to the unfavourable treatment of wives,
especially in view of the substantial literature claiming that bridewealth functions to benefit
women" (41).

Women interviewed by the gender research project, for instance, did not agree
on the effect that lobolo had on their status. Some claimed that it dignified
them, while others felt that they were disgraced by being treated in the same
way as property (South African Law Commission 41). Dlamini (79) states
categorically that "[b]lack women do not regard [lobolo] as a sale or as dero-
gating from their dignity. For the average black person ilobolo is evidence that
he or she is married in the full sense of the word." The research undertaken by
Prinsloo, Van Niekerk and Vorster indicates that 83,7% of the respondents do
not consider lobolo as an insult to them or their brides. This viewpoint is shared
by both male and female respondents. In fact, a higher percentage of female
respondents, namely 85%, indicated that they did not consider lobolo as an
insult to them in contrast to 82,2% of the male respondents. Consequently,
Prinsloo, Van Niekerk and Vorster come to the conclusion that "[i]t seems that
this institution is not considered as an insult by the respondents and that it is
valued equally highly by both men and women" and that "[b]y far the majority
of the respondents do not consider lobolo as an infringement of the dignity of
women" (Prinsloo, Van Niekerk and Vorster (1998) 92). Already in 1968,
Simons (95) wrote that
"[tlhe most that can be said for lobolo nowadays is that it does not detract from a woman's status
in either her parental or her husband's home. When men say that daughters are 'our bank', or
'father's cattle', they mean that women are important and valued, deserving of care and respect.
Feminine dignity and the respect shown to women in the archaic tribe may well have owed much
to lobolo. But men have now better reasons than a material interest to respect their womenfolk
and give them love and consideration."

Should the interpretation of section 3(1) of the Recognition of Customary

Marriages Act be followed that lobolo has no legal function to validate a
customary marriage, the non-payment thereof should also have no effect on
the rights of the spouses towards one another. It follows that lobolo will then
have purely social functions (for example, as a token of appreciation or in
enhancing a woman's social status), or a mark of the cultural attributes of a
marriage entered into to seek approval and fertility from the ancestral gods
(Dlamini 44-45).
This approach seems to be endorsed by the provisions of section 6 of the

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 KNOETZE

Recognition of Customary Marriages Act. Section 6 affords equal status to

married women to their husbands:
"A wife in a customary marriage has, on the basis of equality with her husband and subject to the
matrimonial property system governing the marriage, full status and capacity, including the
capacity to acquire assets and to dispose of them, to enter into contracts and to litigate, in
addition to any rights and powers she might have at customary law."

The marriage would furthermore be one in community of property (provided

that there is no other customary marriage in subsistence), regulated by the
provisions of the Matrimonial Property Act 88 of 1984 (s 7(2) and (3) of the
Recognition of Customary Marriages Act). The operation of section 7(2) is,
however, restricted in that the proprietary consequences of a customary mar-
riage entered into before the commencement of the act will continue to be
governed by customary law, unless otherwise determined in terms of a court
order in terms of section 7(4) of the act. (A discussion of the provisions of s 7(4)
falls outside the scope of this note. Suffice it to say that the court will not grant
an order to change the matrimonial property system if there are no sound
reasons for the proposed change and if any person will be prejudiced by the
proposed change - s 7(4)(a)(i)-(iii).)

iii Lobolo in determining the guardianship and custody of children

In customary law, provided the lobolo obligation has been complied with, the
husband and his family have full parental rights to any children born to a wife
during the marriage. (The research findings of Prinsloo, Van Niekerk and
Vorster (1998) 82-83 endorse this traditional position. 83,4% of the respon-
dents in their survey agreed that the husband is the father and guardian of the
children because lobolo had been transferred and 84,1% indicated that a wo-
man's children belong to her husband's family group.) Therefore, in traditional
customary law the right of a father to the custody of a child was absolute,
hence the phrase "cattle beget children" (Bekker 227). However, the court, as
upper guardian of all children, protects the interests of children, and has tended
to modify traditional customary law in this respect. Thus, when making cus-
tody orders the courts nowadays insist that the best interests of the child
prevail (Bennett 106; Olivier 218-219; Prinsloo, Van Niekerk and Vorster
(1998) 86).
In Hlope v Mahlalela (1998 1 SA 449 (T)) the court unequivocally stated that
issues relating to the custody of a minor child could not be determined by the
mere payment or non-payment of cattle. The interests of the child had to take
precedence and any arrangement that smacked of the sale of, or trafficking in,
children would not be enforced (458E/F-459C). This viewpoint is endorsed by
the principle contained in section 28(2) of the constitution that in all matters
concerning children their best interests shall be paramount.
From the above it is clear that lobolo has lost its traditional legal function in
determining the custody of a child. That is, however, not to say that it is
irrelevant in the court's decision in making a maintenance order at dissolution
of a customary marriage in terms of section 8 of the Recognition of Customary
Marriages Act. In terms of section 8(1) a customary marriage may only be
dissolved by an order of court, and the court may make an order with regard to
the custody or guardianship of any minor child of such marriage (s 8(4)(d)).
When making an order for the payment of maintenance, the court may take

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THE MODERN SIGNIFICANCE OF LOBOLO

into account any provision or arrangement made in accordance with custom-

ary law (s 8(4)(e)), such as the delivery or non-delivery of lobolo. This provision
brings about an equitable position where a father who has paid lobolo in
exchange for the reproductive capacity of his wife would by court order be
deprived of custody and in addition saddled with a liability for maintenance.

3.3 Evaluation
It seems that the institution of lobolo has lost its legal function of determining
the status of the wife and children of a customary marriage, as well as its purely
commercial function of purchasing a wife, in favour of a more tolerant per-
spective. Firstly, it is perceived by the peoples themselves to be a requirement
for marriage. Secondly, it operates as a social consideration for a wife and her
reproductive potential. From this viewpoint lobolo works to stabilise marriage
and to protect wives by providing a public measure of their worth (South
African Law Commission 37-38). Thirdly, the cultural significance of lobolo
should not be underestimated. The idea has been expressed that the abolition
of this institution would be an assault on African religion (South African Law
Commission 38). For many its appeal lies in its power as a cultural symbol: "In
a world of rapidly changing conditions, it is not surprising that Blacks do cling
to anything which can give them their distinctive cultural identity" (Bennett
204).
People remain deeply attached to the practice and therefore, clothed in its
social robe, it should not be abolished. That is, however, not to say that the
form of the institution of lobolo has remained, and can remain, unchanged, in a
modern society.

4 Form of payment
In traditional customary law most tribes used cattle for lobolo, but when horses
and small stock were introduced into the country, they were used to supple-
ment it. With the introduction of money into traditional life as a means of
exchange, Blacks began to use it in furnishing lobolo. It now happens fre-
quently that lobolo will consist of both livestock and money and sometimes,
especially in urban areas, only money (Bekker 151-152). The research of Prin-
sloo, Van Niekerk and Vorster indicates that money was used as bridewealth
payment in 34,4% of marriages of the respondents in Mamelodi and Atter-
idgeville. The largest percentage of respondents who are married, widowed or
divorced indicated that money or a combination of property was used for
lobolo in their marriages (Prinsloo, Van Niekerk and Vorster (1997) 325-
326). Thus, in response to the profound influences of capitalism, cattle as a
form of lobolo payment acquired a new value, measurable against cash and
consumer goods. Hence lobolo has lost its special symbolic qualities (South
African Law Commission 38).
The amount of lobolo payable varies with different tribes (Bekker 154) and
there is no uniformity regarding the size and manner in which it is to be
determined (Olivier 26).
The changed composition of lobolo inevitably led to the overemphasised
economic colour thereof (Labuschagne 550). At first people resisted the com-
mercialisation of the custom, but economic conditions had an irrevocable
influence, and the amounts paid are said to have increased enormously (South

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 KNOETZE

African Law Commission 38-39). In a community which is already often des-

perately poor, the continued practice of lobolo could seem irrational and self-
destructive. A survey undertaken in Lesotho indicates, for example, that in
almost one-fifth of households, annual bridewealth transfers (in or out of
the household) represented approximately a third of the median household
income (see Bennett 202).
In the modern world it thus seems that the economic attributes of lobolo play
an important role in shaping the form of payment. In this respect, female
emancipation has had a marked effect on the amount payable. According to
Labuschagne (551), lobolo for graduated women is often so excessive that they
fear that they may never marry. (To the contrary, in her research De Haas ("Is
there anything more to say about lobolo?" 1987 African Studies 36) discovered
that lobolo demand does not necessarily increase with the rising educational
level of the bride, although it seems that compensation may be sought for
education not completed due to either the marriage or pregnancy. The amount
of lobolo paid is also not consistent as some fathers of well-educated women
require only a nominal amount of lobolo, while other fathers whose daughters
received minimal education demand fairly large sums. It thus appears that
lobolo demands are related to the bargaining powers and personalities of those
involved as well as the economic circumstances of the parties and the qualities
of the bride.) From the research of Prinsloo, Van Niekerk and Vorster it is
evident that the amount of lobolo payable for certain professional women,
namely teachers, nurses, attorneys, business women and medicine women, is
higher than the lobolo for a professionally unqualified woman (Prinsloo, Van
Niekerk and Vorster (1997) 330). The ratio behind such amounts (and poten-
tial danger thereof) is explained by the law commission as follows:
"People say that the bride's family must be compensated for their expenditure on her education.
it is probably true that a feeling of reciprocity is inherent [to] bridewealth - that it should be used
by the bride's family to buy gifts and to host the wedding - but families have a strong temptation
to profiteer. The danger of this tendency is to encourage men, who cannot afford the sums asked,
to enter into informal unions, which in turn undermine the entire institution of marriage and
render offspring illegitimate" (South African Law Commission 39 - see also Labuschagne 550;
Dlamini 79).

Another problem is that property received by the bride's family, especially

when it is in the form of money, is no longer being kept as security for the
divorced or widowed wife. Instead, the cash is spent on day-to-day living
expenses (South African Law Commission 39), or alternatively, on items such
as a kitchen suite and bathroom suite for the young couple (Burman "Capi-
talising on African strengths: women, welfare and the law" 1991 SAJHR 220).
Thus, if the marriage ends and the wife returns to her family, there is no ready-
made source of food and clothing to support her and her children (Burman
220). This practice threatens the maintenance function of lobolo in providing
security for the wife.
The following reforms in the payment of lobolo are suggested. Firstly, Bur-
man (221) is of the opinion that this potential problem may be rectified by the
establishment of "bridewealth fund" contributions in the form of either a lump
sum or regular monthly or annual amounts over a few years to the fund by the
groom or his family. Certificates would then be issued to him, the bride and the
bride's parents, detailing the payments. This fund would be constituted in a
manner similar to a retirement fund annuity or as a trust fund, regulated by

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THE MODERN SIGNIFICANCE OF LOBOLO

trustees with powers of investment and disbursement of money. However,

Burman (220) warns that "[f]or any new structure to work ... community
acceptance would be essential, as well as legislative change, and this would
require considerable national discussion, as people are likely to resist forfeiting
the cash bonanza bridewealth currently represents to a woman's parents".
Secondly, a maintenance order by the court at the dissolution of a customary
marriage in terms of section 8(4)(e) of the Recognition of Customary Mar-
riages Act could alleviate the problem of the lack of security for a divorced wife
due to spent lobolo. This provision does not necessitate the creation of a new
structure, the acceptance of which will have to be negotiated by all role players,
but would require an improvement in the enforcement of maintenance orders
against fathers. (Burman 217 claims that the system of obtaining maintenance
from fathers is patently not working and that it makes more sense to abolish
it.) The legal order should, however, not neglect the interests of the husband in
demanding the payment of maintenance for an ex-wife merely because her
family has squandered the lobolo received for her. This would mean that the
traditional maintenance function of lobolo would be preserved.
Simons (96) is of the opinion that it would be a progressive step to transform
the "bride price" into a genuine dowry. This change would enable a young
couple to use their savings for their own needs, discourage parents from over-
spending on their daughters' weddings, and promote the growth of a free and
voluntary marriage relationship.

5 Conclusion
The question may be asked whether lobolo should be abolished because of the
statutory legalisation of the customary marriage, because of the abuse of
claiming excessive amounts in a market economy or because it suppresses
women.
According to Dlamini, the answer lies not in complete abolition of the
custom, but in moderation of payment demands. Moderation seems to be in
accordance with the traditional spirit and practice of lobolo. Abolition would
be dysfunctional and would lead to the creation of "paper law" (Dlamini 79),
in part because of the important role it plays in maintaining the African cul-
tural tradition and in part because of the difficulty of enforcing a prohibition
(South African Law Commission 36). Church (33), for example, points out that
where payment of bridewealth was suspended and even abolished among cer-
tain of the Tswana tribes in the nineteenth century, it had little or no effect on
the practice of the people. Therefore, "the legal factor in a changing Africa is in
the last resort a human factor" (Phillips, as quoted by Church 33).
Payment or non-payment of lobolo should in future also not affect the wife's
marital status. Equal status and capacity of spouses is legally created in terms
of the newly promulgated Recognition of Customary Marriages Act. The con-
cern of Labuschagne (553) that this disadvantage of the custom, namely that it
undermines the dignity and autonomy of the wife, will eventually lead to its
demise, thus seems unfounded.
In the modern world new needs are satisfied by the furnishing of lobolo, and
with the new ideas, values and sentiments, the custom has taken on a new
socio-cultural function. The custom, for its survival, is not dependant on its
legal function, and therefore abolition will not reflect the true social practice.
(See, for example, Church 34. The results of the surveys of Prinsloo, Van

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 KNOETZE

Niekerk and Vorster indicate that the handing over of lobolo is still alive and
well in the two target areas of Mamelodi and Atteridgeville. Not only did a
large majority of the respondents have personal experience of lobolo being
handed over for their marriages, but also for the marriages of close family
members. See Prinsloo, Van Niekerk and Vorster (1997) 324-325.) This ap-
proach will furthermore be consistent with the provisions of section 30 of the
constitution which recognises that every person is entitled to practise the cul-
ture of his or her choice, unless it is in a manner inconsistent with any provi-
sions of the bill of rights. It has already been indicated above that an argument
that lobolo induces direct or indirect discrimination against women, seems
unlikely to succeed. Moreover,
"[tlhe interpretation of the Bill of Rights is subject to section 39, which provides guidelines for
such interpretation. It provides that a court, tribunal or forum must promote the values that
underlie an open and democratic society based on human dignity, equality and freedom. In terms
of section 9(2), equality includes the full enjoyment of all rights and freedoms. Thus, in con-
sidering any cultural practice, for instance lobolo, the courts must promote these values. Dis-
regard of a community's culture, and especially substituting a cultural practice with one from
another culture, or abolishing a cultural practice without due regard to its social context and
cultural consequences, may amount to cultural domination which is nothing less than discrimi-
nation on cultural grounds. Such disregard may also constitute a violation [oil the dignity of a
cultural community. Moreover, if the cormnunity whose practices are at stake, has not been
consulted, this may be in conflict with the values underlying an open and democratic society"
(Prinsloo, Van Niekerk and Vorster (1997) 315).

In fact, as seen earlier, the subordinate position of women in customary mar-

riages has been remedied by the Recognition of Customary Marriages Act.
What remains to be seen is whether the equal legal status of women will be
transferred into the social practices of the people. While, on the one hand,
customary law is characterised by the legitimising ideology of immutability,
it is on the other hand a reflection of the way in which people live. The African
way of life, too, has always been a changing one, and the laws, therefore, also
change (Koyana 91). It is an advantage of unwritten laws that their change is
not consciously perceived as a departure from pre-existing, binding rules; it has
a certain manner of flexibility (Koyana 92). What, however, is true, is that
attempts to codify customary law in statutory law (like the Recognition of
Customary Marriages Act) may distort and fundamentally alter the nature
of the very system it attempts to preserve.
ELMARIE KNOETZE
University of Port Elizabeth

SECURED CLAIMS IN INSOLVENCY AND THE ORDER OF

PREFERENCE AMONG CREDITORS SECURED BY THE SAME
PROPERTY
I Introduction
A secured claim against an estate under sequestration is one in respect of which
the creditor holds security. Such a claim may be a preferential claim to prop-

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