The issue of a “living cow” not being delivered in terms of the groom’s lobola obligations towards the bride’s family, came under the spotlight when a widower turned to the courts to declare that he was lawfully married to his late wife.
Chimane Petla applied to the Gauteng High Court, Pretoria, for an order for the department of home affairs to register his marriage to his now deceased wife Anieke Retief.
While he did pay his lobola, the only outstanding issue was the “the living cow” - a matter taken very seriously by the family of the deceased. Since Phetla had not fulfilled this part of the lobola deal, they argued that there was no valid customary marriage.
Phetla told the court that emissaries were sent to his deceased wife's family in March 2014, to negotiate the marriage which was agreed upon by the two families.
The amount of R32 000 was agreed upon as the payment for lobola which also included a living cow. The emissaries paid an amount of R10 000 on the day of the negotiations and left to settle an outstanding balance of R22 000 which was paid later - except for the cow.
According to the applicant, final settlement resulted in the celebration of the marriage with messages of support from family and friends on their new status as husband and wife.
Phetla said he and his deceased wife had since 2010 even before their marriage, shared the common household and upon payment of the lobola, continued to live together as husband and wife until the wife’s death in November 2016.
He said following his wife’s death, he was advised to register his marriage. In pursuance of such advice, he was met by a ‘brick-wall’ to have his marriage registered by home affairs.
Phetla further stated that he had attended the funeral at his wife’s maiden home and made financial contributions towards the funeral expenses.
His mother-in-law was disputing that it was a valid marriage. Her main contention was that Phetla and his family did not comply fully with the terms of the lobola agreement - more specifically regarding the delivery of the cow.
She further contended that there were no celebrations as agreed upon by the two families, that could have served as full compliance with the prescripts of customary law as practised in their area to validate a customary marriage.
Acting Judge N Ntlama-Makhanya said it was common cause that both parties agreed that the living cow was not delivered. The main contention was the interpretation of the custom of the delivery of the cow for the solemnisation of the customary marriage.
The judge said the court acknowledged that customary law shared common values and principles, and the lessons which were also applicable in this case.
“ Ilobola does not necessarily have to be paid in full for the validation of the customary marriage. As in this case, even if the outstanding balance of R22000 was not paid, that would not have invalidated the marriage.”
The judge added that the non-delivery of the cow was an associated practice that could override the main agreement relating to the meeting of the minds of families, and the payment of lobola.
“ The cow is not an essential requirement wherein its non-adherence could invalidate the marriage,” the judge said.
According to her, the delivery of the cow could not be an unqualified criterion for a valid customary marriage. This was because its application was inflexible, formalistic and inconsistent with the aspirations for the promotion of the spirit, purport, and objects of the Constitution.
“The implementation of customary rituals is different from each respective community… In some other communities such as AmaXhosa group, the goat or the sheep is used for the ceremony called ‘utsiki ceremony’ to welcome umakoti even before the final payment of the agreed ilobola amount.”
“Therefore, the marriage cannot be denied its existence because the utsiki ceremony was conducted before the final payment of the ilobola amount, and/or a cow or goat was used instead of the sheep or not done at all as in this case,” Ntlama-Makhanya said.
The judge added that this was indicative of the pluralistic character and the diverse nature of South Africa’s communities, which should not be compromised by the rigid application and adherence to the cow slaughtering over the common intention of the parties, as envisaged in the law.
The court acknowledged that a customary marriage was not an individual affair between the parties but entailed the involvement of the family, and the community under which the said parties share common practices.
“However, it is not for this court to second-guess the intention of the parties and hold them by a ‘tight-loose-end’ of the non-delivery of the cow which might have been affected by other factors that were not before this court.”
The judge concluded that it was clear that Phetla and his now-deceased wife were married in terms of customary law.
Pretoria News