Is a customary marriage valid if the payment of lobola occurred?

The matter Mxiki v Mbata is a recent appeal case that was heard in the North Gauteng High Court, Pretoria, by the Honourable Jude Matojane who ruled that the payment of lobola is not the only requirement for the validity of a customary marriage as set forth in Section 3 of the Recognition of the Customary Marriages Act 120 of 1998 (hereinafter referred to as “the Act”).

The Act requires that the marriage must be negotiated and entered into or celebrated in accordance with the customary law.

The customary law of marriage in the true African tradition is not an event but a process that comprises a chain of events. Furthermore it is not about the bride and groom. It involves two families. The basic formalities which lead to a customary marriage are:

  1. Emissaries are sent by the man’s family to the woman’s family to indicate interest in the possible marriage;
  1. A meeting of the parties’ relatives will be convened where lobola is negotiated; and
  1. The negotiated lobola or part thereof is handed over to the woman’s family and the two families will agree on the formalities and date on which the woman will then be handed over to the man’s family which handing over may include but not necessarily be accompanied by celebration.

In light of the aforementioned recent appeal, the handing over of the bride, even if the lobola has not been paid in full, constitutes a valid customary marriage and not the payment of lobola itself. There can therefore be no valid customary marriage until the bride has been formally and officially handed over to her husband’s family.