UNIVERSITY OF SOUTH AFRICA
College of Law
⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄⋄
LCP4804: Advanced Indigenous Law
Assignment 2 | Semester 2, 2026
⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄⋄
LCP4804
Module Code:
Advanced Indigenous Law
Module Name:
Customary Marriage Formation & Tradi-
Essay Topic:
tional Leadership
Assignment 02
Assignment Number:
September 2026
Due Date:
50
Total Marks:
Submitted in partial fulfilment of the require-
ments for Advanced Indigenous Law, UNISA 2026
,UNISA | LCP4804 Customary Marriage & Traditional Leadership
Question 1: Validity of the Customary Marriage between Mokgadi and Matome
The facts raise a single overarching legal question: whether the payment of damages for the
unborn child, followed by lobolo negotiations conducted by Matome’s uncles without his prior
instruction, are sufficient to found a valid customary marriage between Mokgadi and Matome
under the Recognition of Customary Marriages Act 120 of 19981 (RCMA). The RCMA does not
codify a rigid list of rituals; it defers to the customary law and living practice of the families
concerned, and the courts have developed a substantial body of case law interpreting section
3(1) of the Act.2
1.1 The Statutory Requirements under Section 3(1) of the RCMA
Section 3(1) of the RCMA provides that for a customary marriage entered into after the com-
mencement of the Act to be valid, three requirements must be met: both prospective spouses
must be above the age of 18 years and must consent to be married to each other under cus-
tomary law; and the marriage must be negotiated and entered into or celebrated in accor-
dance with customary law.3 The Act deliberately refrains from defining precisely what "negoti-
ated, entered into or celebrated in accordance with customary law" means, because custom-
ary law is living law that differs from community to community and evolves with practice.4
It is this open-textured formulation that the courts have had to give content to on a case-by-
case basis.
The facts disclose that Mokgadi and Matome are both adults who freely chose to build a
life together, so consent and majority are not in dispute. The live issue is whether the events
that in fact occurred, namely the payment of pregnancy damages and the conclusion (but
not yet the payment) of a lobolo agreement negotiated by family delegates, amount to a
marriage "negotiated and entered into...in accordance with customary law" as required by
section 3(1)(b).
1
Recognition of Customary Marriages Act 120 of 1998 (RCMA).
2
J Church, C Schulze and H Strydom Human Rights from a Comparative and International Law Perspective
(Unisa Press 2007) ch 14; C Himonga and T Nhlapo (eds), African Customary Law in South Africa: Post-
Apartheid and Living Law Perspectives (Oxford University Press 2014) 182–190.
3
Recognition of Customary Marriages Act 120 of 1998, s 3(1)(a)–(b).
4
Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC) paras 42–49.
Page 2 of 17
, UNISA | LCP4804 Customary Marriage & Traditional Leadership
1.2 Distinguishing Damages for Pregnancy from Lobolo
Customary law recognises a clear conceptual distinction between damages payable for the
seduction or impregnation of an unmarried woman and lobolo (also called ikhazi, magadi,
bogadi or thaka, depending on ethnic group) payable to conclude a marriage.5 Damages
for pregnancy compensate the woman’s family for the impairment of her marriageability
and the wrong done to the family; they are a delictual-type payment and do not, on their own,
constitute or evidence a marriage. Lobolo, by contrast, is a defining and constitutive feature
of the customary marriage bond and signals the creation of an alliance between families that
underpins the union.6
On the facts, Matome’s uncles paid damages for the pregnancy at the request of Mokgadi’s
family "in accordance with the applicable customary practices". This transaction, standing
alone, settles a wrong and does not conclude a marriage. It was only after the damages
were paid that Mokgadi’s family raised the separate question of whether Matome intended
to marry Mokgadi, confirming that the families themselves treated the damages payment
and the marriage question as analytically distinct matters. The critical events for the validity
enquiry are therefore what happened next: the lobolo negotiations.
1.3 The Lobolo Negotiations and the Requirement of Delegated Authority
Customary marriage negotiations are typically conducted not by the prospective spouses
in person but by family delegates or emissaries acting on behalf of each family, and this is
expressly contemplated as compliant with custom.7 In Mabena v Letsoalo, the court held
that a customary marriage negotiated by the bride’s mother, in the absence of the bride’s
deceased father, was valid, because the identity of the specific negotiator matters less than
whether the family, acting with authority, concluded the negotiations on behalf of the party
concerned.8 Applying this to the facts, Matome expressly delegated his uncles to conduct the
customary and traditional process on his behalf for the damages payment. This delegation
demonstrates that Matome accepted his family’s authority to represent him in customary
dealings with Mokgadi’s family, which strengthens (rather than undermines) the argument
that the subsequent lobolo negotiations, conducted by the same family structure, could bind
5
T Nhlapo, ‘African Customary Law in the Interim Constitution’ in S Liebenberg (ed), The Constitution of South
Africa from a Gender Perspective (Wyner Publishing 1995) 156, 160–162.
6
Mabuza v Mbatha 2003 (4) SA 218 (W) 224–225.
7
Mabena v Letsoalo 1998 (2) SA 1068 (T) 1074–1075.
8
Mabena v Letsoalo 1998 (2) SA 1068 (T) 1077.
Page 3 of 17
College of Law
⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄⋄
LCP4804: Advanced Indigenous Law
Assignment 2 | Semester 2, 2026
⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄ ⋄⋄
LCP4804
Module Code:
Advanced Indigenous Law
Module Name:
Customary Marriage Formation & Tradi-
Essay Topic:
tional Leadership
Assignment 02
Assignment Number:
September 2026
Due Date:
50
Total Marks:
Submitted in partial fulfilment of the require-
ments for Advanced Indigenous Law, UNISA 2026
,UNISA | LCP4804 Customary Marriage & Traditional Leadership
Question 1: Validity of the Customary Marriage between Mokgadi and Matome
The facts raise a single overarching legal question: whether the payment of damages for the
unborn child, followed by lobolo negotiations conducted by Matome’s uncles without his prior
instruction, are sufficient to found a valid customary marriage between Mokgadi and Matome
under the Recognition of Customary Marriages Act 120 of 19981 (RCMA). The RCMA does not
codify a rigid list of rituals; it defers to the customary law and living practice of the families
concerned, and the courts have developed a substantial body of case law interpreting section
3(1) of the Act.2
1.1 The Statutory Requirements under Section 3(1) of the RCMA
Section 3(1) of the RCMA provides that for a customary marriage entered into after the com-
mencement of the Act to be valid, three requirements must be met: both prospective spouses
must be above the age of 18 years and must consent to be married to each other under cus-
tomary law; and the marriage must be negotiated and entered into or celebrated in accor-
dance with customary law.3 The Act deliberately refrains from defining precisely what "negoti-
ated, entered into or celebrated in accordance with customary law" means, because custom-
ary law is living law that differs from community to community and evolves with practice.4
It is this open-textured formulation that the courts have had to give content to on a case-by-
case basis.
The facts disclose that Mokgadi and Matome are both adults who freely chose to build a
life together, so consent and majority are not in dispute. The live issue is whether the events
that in fact occurred, namely the payment of pregnancy damages and the conclusion (but
not yet the payment) of a lobolo agreement negotiated by family delegates, amount to a
marriage "negotiated and entered into...in accordance with customary law" as required by
section 3(1)(b).
1
Recognition of Customary Marriages Act 120 of 1998 (RCMA).
2
J Church, C Schulze and H Strydom Human Rights from a Comparative and International Law Perspective
(Unisa Press 2007) ch 14; C Himonga and T Nhlapo (eds), African Customary Law in South Africa: Post-
Apartheid and Living Law Perspectives (Oxford University Press 2014) 182–190.
3
Recognition of Customary Marriages Act 120 of 1998, s 3(1)(a)–(b).
4
Shilubana and Others v Nwamitwa 2008 (9) BCLR 914 (CC) paras 42–49.
Page 2 of 17
, UNISA | LCP4804 Customary Marriage & Traditional Leadership
1.2 Distinguishing Damages for Pregnancy from Lobolo
Customary law recognises a clear conceptual distinction between damages payable for the
seduction or impregnation of an unmarried woman and lobolo (also called ikhazi, magadi,
bogadi or thaka, depending on ethnic group) payable to conclude a marriage.5 Damages
for pregnancy compensate the woman’s family for the impairment of her marriageability
and the wrong done to the family; they are a delictual-type payment and do not, on their own,
constitute or evidence a marriage. Lobolo, by contrast, is a defining and constitutive feature
of the customary marriage bond and signals the creation of an alliance between families that
underpins the union.6
On the facts, Matome’s uncles paid damages for the pregnancy at the request of Mokgadi’s
family "in accordance with the applicable customary practices". This transaction, standing
alone, settles a wrong and does not conclude a marriage. It was only after the damages
were paid that Mokgadi’s family raised the separate question of whether Matome intended
to marry Mokgadi, confirming that the families themselves treated the damages payment
and the marriage question as analytically distinct matters. The critical events for the validity
enquiry are therefore what happened next: the lobolo negotiations.
1.3 The Lobolo Negotiations and the Requirement of Delegated Authority
Customary marriage negotiations are typically conducted not by the prospective spouses
in person but by family delegates or emissaries acting on behalf of each family, and this is
expressly contemplated as compliant with custom.7 In Mabena v Letsoalo, the court held
that a customary marriage negotiated by the bride’s mother, in the absence of the bride’s
deceased father, was valid, because the identity of the specific negotiator matters less than
whether the family, acting with authority, concluded the negotiations on behalf of the party
concerned.8 Applying this to the facts, Matome expressly delegated his uncles to conduct the
customary and traditional process on his behalf for the damages payment. This delegation
demonstrates that Matome accepted his family’s authority to represent him in customary
dealings with Mokgadi’s family, which strengthens (rather than undermines) the argument
that the subsequent lobolo negotiations, conducted by the same family structure, could bind
5
T Nhlapo, ‘African Customary Law in the Interim Constitution’ in S Liebenberg (ed), The Constitution of South
Africa from a Gender Perspective (Wyner Publishing 1995) 156, 160–162.
6
Mabuza v Mbatha 2003 (4) SA 218 (W) 224–225.
7
Mabena v Letsoalo 1998 (2) SA 1068 (T) 1074–1075.
8
Mabena v Letsoalo 1998 (2) SA 1068 (T) 1077.
Page 3 of 17
