Although Anele Mdoda and her new fiancé/husband Bonelela ‘Buzza’ James insist they aren’t formally married yet, in the eyes of the law and in line with the Recognition of the Customary Marriages Act, they could in-fact already be married.
The radio presenter took to her breakfast show on 947 this week, pronouncing boldly that “firstly let’s just lead with I’m not married”.
She added: “What you have been witnessing on social media was not a wedding, that was the final celebration, the final instalment of lobola being paid to my family from my fiancé’s family”.
“He is my fiancé, he is not my husband yet, we are not married, they just finalised paying lobola,” Mdoda insisted on her radio show.
Her statements have caused much confusion and ire on social media, with many pointing out that the couple had already met the legal threshold to be considered married.
For a couple to conclude a marriage under customary law, they have to be over 18, consent to the marriage, have lobola paid (does not have to be paid in full) and a celebration must take place.
Under customary marriage law, a wedding certificate is not a requirement, unlike with civil unions.
HHP/Lerato Case
A nuanced explanation is required to make an understanding of what Mdoda is saying. In some respect, she is correct in saying that the conclusion of lobola is not in itself a wedding, however, the festivities and celebrations that accompanied the lobola payments, in the eyes of the law, do indeed conclude and meet the minimum requirements of a concluded marriage under customary law.
In the landmark HHP case, the court found that Lerato Sengadi was the rapper Jabulani Tsambo’s spouse, despite the fierce protestations of the Tsambo family who argued unsuccessfully in court that they had yet to accept the bride.
Sengadi, who had separated from HHP, proved in court that she was the former rapper’s legal wife after she was able to prove he had paid lobola for her and produced photographic evidence that a celebration took place.
In terms of Section 3(1) of the Recognition of Customary Marriages Act, in order for a customary marriage to be valid, it has to be entered into by a man and woman over the age of 18, who have the intention of getting married under Customary Law, and the marriage must be negotiated and entered into or celebrated in accordance with Customary Law.
According to Khaya Dlanga, Mdoda’s close friend who leaked the whole affair on social media unknowingly, said what had transpired at the Mdodas was a ceremony called “ukwamkela abakhwenyana” – loosely, a marital ceremony to accept the groom and his family.
“In our isiXhosa custom, lobola is not a once-off payment, even if you can afford to do so. It is supposed to be done in stages and, traditionally, it is never entirely finished or completed. This is deliberate. It ensures that the groom remains present and committed to the union of both families, rather than disappearing once the celebrations are over.
“What happened was the final lobola ceremony and the moment the groom was officially welcomed by Anele’s family. In other words, ooMfene were welcoming ooMadiba.
“The traditional wedding has not yet happened because it takes place at the groom’s family home. So while the couple are referred to as the bride and groom, this was not the traditional wedding itself,” Dlanga explained.
By Dlanga’s own explanation, which has been seconded by Mdoda on air, they acknowledge a marital celebration took place – although they do not call it a wedding ceremony.
It is thus, fair to conclude, that in the eyes of Home Affairs and the law, the couple have already concluded a marriage in the eyes of the law.
Read more on the legal and financial implications of lobola which you need to think about before the process.
Further, in the absence of a stipulated antenuptial contract (ANC) couples are automatically considered married in community of property under customary law, resulting in the equal sharing of assets, such as property and vehicles, as well as liabilities.
Hopewell Sathekge, Director at STBB Attorneys, in a previous article on the same subject told that lobola is widely established in South Africa and each culture has its own set of rules and practices.
The legal expert said that while civil marriages take place in a church or in front of a marriage officer, and require a marriage certificate, customary marriages follow the customs of the community and are far more flexible.
Sathekge said that once the lobola negotiations are concluded, the couple would have the same legal status as civil marriages.
“However, what isn’t as commonly known in customary marriage, is that once lobola negotiations are concluded, couples are married in community of property, meaning that assets like a home or car and liabilities like debt are equally shared,” Sathekge emphasised.
“Therefore, when the time comes to buy a home or split assets, there are several important factors that a couple married in community of property must consider.”
