Unpaid lobola, no ceremony prompts judge to refuse application for customary marriage to be registered

unpaid lobola, no ceremony prompts judge to refuse application for customary marriage to be registered

Unpaid lobola, no ceremony prompts judge to refuse application for customary marriage to be registered

Pretoria – Written negotiation notes torn from a diary, unpaid lobola and the fact the marriage ceremony was not concluded, have prompted a court to refuse an application a man and the woman he claimed to be his wife had entered into a valid customary marriage.

Makhosina Selome approached the Gauteng High Court, Johannesburg, for an order to have what he regarded as the traditional marriage to the late Makgaka Bella Sebethi registered by Home Affairs.

Sebethi died in a car accident three years ago and left no will. But, to be recognised as an heir, Selome had to prove they were legally married.

Their alleged marriage in terms of customary law was never registered.

Also at play is a Road Accident Fund claim which was instituted following the woman’s death.

The dad, Lesiba Makgakga denied his daughter was legally married although the couple did have a child.

Selome claimed he married the Sebethi in 2009, but since her death there had been a dispute between Selome and her family about the legality of the ceremony.

According to him, they began a relationship in 2003. In November 2009, he, together with a delegation from his family, went to the home of her father to discuss his marriage proposal.

According to tradition, his family had to pay a door fee or the equivalent of an engagement to the family, of R1 000, which he did.

In Selome’s version, negotiations commenced on the same day and culminated in a document – pages torn from a diary – on which the terms of the negotiations were recorded.

The Makgakga family set the fee at R20 000 for the bride, of which the Selomes paid R2 000. The outstanding R18 000 was never paid.

Selome also said he and “his wife” stayed together until her death.

Makgakga argued the pages on which the terms of the lobola were recorded meant nothing. He said apart from the lobola never being paid in full, there were deficiencies in following proper custom.

He said the delegation from the Selome family had arrived “uninvited” and “without prior arrangement” at his house.

“I informed them that I had no capacity to welcome and negotiate with them, except to explain the process and requirements.

“I explained that my custom and culture dictates that a specific uncle and aunt must head the delegation, while my wife and I join other elders for the final decision,” he explained.

He also said there was non-compliance with the cultural practice as there was no wedding celebration afterwards.

While Selome claimed there was a celebration at the home of one of his relatives, he admitted the bride’s parents were not there.

Judge Norman Manoim referred to a similar case in which another court said: “In African customary law there is no rigid custom governing the time stipulation within which lobola has to be fully paid.

What is sacrosanct is the undertaking to pay the agreed lobola.”

He said although the terms of a customary marriage had evolved over the years as things became more modern, certain traditions still had to be adhered to.

This included whether or not the marriage was entered into or celebrated in accordance with customary law.

In this case, Judge Manoim said, there was no indication Selome planned to ever pay the full lobola amount.

It was also clear the customs regarding the celebrations were not adhered to, and the court could not find the couple lived together all these years, as claimed Selome.

He subsequently turned down the application to force Home Affairs to register the marriage.

Pretoria News

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