Does the Return/Refund and Retention of Lobolo Violate the Reproductive Rights of Women in South Africa?

Abstract

One of the main functions of lobolo is to create a marriage relationship between the bride’s kindred and the groom’s family. Lobolo, which must be practised subject to the Constitution, still plays a significant role in the lives of many South Africans today. However, we concede that there are some instances in which lobolo has been abused to infringe women’s reproductive rights. The apprehension that lobolo may be refunded puts unnecessary pressure on women, thereby infringing and violating their right to freely decide on reproductive issues free of discrimination and pressure. The practice of lobolo is evolving, but approaches to its return or refund are not homogenous. Some families may insist that lobolo be returned while others will not. In South Africa, the solemnisation, and the legal process for terminating a customary marriage is now regulated by the Recognition of Customary Marriages Act 1998 (Recognition Act). Lobolo is not explicitly mentioned as a requirement for the validity of a customary marriage. Additionally, the Act does not contemplate refunding or retention of lobolo during the termination of a customary marriage through divorce. Section 8 of the Recognition Act makes it possible for a customary marriage to be terminated by a decree of divorce, approved by a competent court, thus making it possible to dissolve a customary marriage like its civil counterpart. In this article, we interrogate whether the claim for a lobolo refund violates the reproductive rights of South African women. We use feminism as the theoretical lens through which we view and answer the question and draw some modest lessons from Eswatini and Zimbabwe, and to some limited extent, Uganda.