LOBOLA REQUIREMENT AND ITS LEGALITY~ A BRIEF DISSCUSSION

By Christine Mazira, Intern

What is Lobola?

This is property in form of livestock or kind, which the intended groom to be or the head of his family undertakes to furnish to the head of a prospective wife’s family in gratitude of allowing the man to marry their daughter. In the case of Hoshi v Hasisi HH-491-15, Tsanga J held that: “For a marriage to qualify as a customary marriage, certain cultural practices which involve the payment of roora | lobola are attendant upon its formation. Payment consists of a lump sum payment of money (called rutsambo among the Shona) as well as cattle though increasingly the money equivalent is paid in today’s society. Its payment is part of the culture for the majority of the citizens who adhere to customary ways of marrying.”

Lobola has been one of the most contentious issues ever since 1963 until this day. In the case of Katekwe v Muchabaiwa S-87-84 the Supreme Court’s declaration that lobola is not a legal requirement which is against the backdrop of the dual legal system in Zimbabwe that recognises both the application of customary law and general law.  In spite of the decision in Katekwe v Muchabaiwa, lobola continues to be paid. A customary marriage officer can only solemnise a customary marriage after being satisfied that the guardian of the woman and the prospective husband have agreed on the marriage consideration and the form of the marriage among other requirements.

“Payment of roora /lobola remains the most cogent, appreciated proof and indicator of a customary union/marriage especially when it has not been registered formally. Its continued existence shows that is a way of life and has a distinct sense of “African” identity. However there has been an increased commotion about the commercialisation of Lobola. It is said that now some families charge very high bride price so as to start some business hence they have turned this cultural practice to raising capital. This in turn affects the woman who is forced to marry a man simply because of his wealthy. Also commercialization of this tradition of lobola has had effects on gender equality and women’s rights. 

The 2020 Marriage Bill

The Minister of Justice, Legal and Parliamentary affairs presented the Marriage Bill to the Senate on the 10^th of June 2020.  The Bill, among other things deals away with the requirement for the payment of a bride price when a couple registers their marriage. This allows two consenting adults to decide on whom they want to marry and the type of marriage they want to contract. In presenting the Bill, the Honourable Minister spoke about lobola.  The Honourable Minister is quoted as having said: “The transfer of marriage consideration (lobola) in our indigenous culture traditionally solidified bonds between families, but a disturbing trend has developed over time to commoditise or monetise the marriage relationship for material gain. Some guardians of brides hold out for the highest possible gain for themselves, while others refuse consent to the formalisation of marriage until the last cent of the marriage consideration is paid. This is why so many of our customary and non-customary marriages are unregistered. To solve this issue, the Bill will no longer require a customary marriage officer to satisfy himself or herself that there has been an agreement in the transfer of marriage consideration.”

This brings one to the question of whether the Bill seeks to ban lobola or not. It is pertinent to note that Section 63 of the Constitution, which is the supreme law, provides that every person has the right to participate in the cultural life of their choice without violating the fundamental human rights and freedoms that are guaranteed in the Constitution. Thus, for lobola to be banned there has to be an amendment to Section 63 of the Constitution. Lobola will not be a legal requirement in that customary marriage officers will be able to solemnise customary marriages whether or not lobola has been paid. However if one wishes to pay lobola then they can do so and such payment will not be unlawful. In-laws can no longer demand lobola unless there has been an undertaking from the prospective husband that he was going to pay.

The marriage reform process is not yet completed and the Marriages Bill is still being amended and debated in Parliament.

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