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Lobola and Prenuptial Agreements, which comes first?

By Tshego Mashile

African couples wishing to be married out of community of property would have to consider concluding such a marriage prior to Lobola negotiations/ceremony taking place. This is directly opposite to the manner in which marriages typically happen for culturally inclined African couples. Usually the process is initiated by a letter to the bride’s family, followed by lobola negotiations at the bride’s home, followed by celebrations at the bride’s home and thereafter at the grooms home, and then followed by the ‘white’ or Christian wedding.

The modern African couple in a South African context is armed with a wealth of information which many of the generations before them did not have access to or possess. As a result, they are able to glean an understanding of the various marital property regimes and the consequences flowing from each of them. For couples seeking to go the traditional ‘normal’ route, i.e. marriage in community of property this question may be of no relevance, but for those seeking to enter into prenuptial agreements this potentially presents a problem.

Many South Africans who practise the custom of Lobola/Magadi often downplay or misunderstand the legal significance of that process and view it as ‘informal’ or tantamount to an engagement. However, is not the case and is incorrect. The law as well as the courts take a flexible approach where customary marriages are concerned and largely find that where Lobola negotiations have been concluded and celebrated, and where the parties to the marriage are majors and have consented to the marriage, a marriage has been concluded between the parties.[1] Accordingly, after the negotiations have been concluded and celebrated the parties may go to Home Affairs to have their customary marriage registered and will be issued with a marriage certificate just as would be the case if the couple was married according to the civil law in a church or at home affairs.

Thus any understanding or view that Lobola is anything less than a marriage is flawed. This is despite the fact that there may still be monies outstanding for the Lobola and despite any outstanding rituals or ceremonies prescribed by custom which need to be conducted in order for the marriage to be seen to be complete strictly speaking customarily. This is because the courts adopt flexible approach where customary marriage is concerned and recognise customary law as ever evolving and fluid. Accordingly, where the requirements of the Recognition of Customary Marriages Act have been satisfied the court will likely find that the couple is customarily married.

This can be seen in the recent case heard in the Supreme Court of Appeal involving the wife of the late Hip Hop star ‘HHP’ and his family[2]. In this case the dispute centred around the question of whether a customary marriage had been concluded between the deceased and Sengadi prior to his death. The Family of the Rapper contended that although lobola negotiations had been concluded and celebrated the bride had not been handed over ‘go gorosiwa’ as is the Tswana custom to complete marriage. Accordingly, it was their argument that there was thus no marriage concluded between the deceased and Sengadi. The court however found that there was indeed a marriage which had been concluded between the deceased and Sengadi, this is largely because the requirements as set out in the Recognition of Customary Marriages Act had been satisfied and the understanding the customary law is not static or rigid. The parties were at age of majority, they consented to the marriage, the negotiations were concluded and the marriage was celebrated.

Furthermore in the case of Ngwenyama v Mayelane and Another[3] the court highlighted that ‘The Recognition Act does not specify the requirements for the celebration of a customary marriage. In this way, the legislature purposefully defers to the living customary law. Put differently, this requirement is fulfilled when the customary law celebrations are generally in accordance with the customs applicable in those particular circumstances. But once the three requirements have been fulfilled, a customary marriage, whether monogamous or polygamous, comes into existence.’

Therefore where lobola has been concluded and celebrated the law recognises such a couple as married and the default marital property regime, community of property, will be applicable to the couple.

It thus follows that for couples wishing to opt out of community of property and instead enter into a prenuptial agreement, such a couple will have to conclude their marriage out of community of property prior to the lobola negotiations/ceremony taking place. This is because legally lobola is essentially a marriage, and it is a marriage in community of property. Accordingly, parties may not be able to later register a prenuptial agreement because they would already be married in community of property.


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