The recent Constitutional Court ruling allowing men to adopt their wives’ last names has ignited a lively and, at times, uncomfortable debate about the practice of lobola – with implications few may have anticipated.
To suggest that this judgment has merely ruffled feathers would be an understatement; it has set the proverbial cat among the pigeons, particularly within black communities where marriage, custom and identity remain deeply interwoven.
Let me explain.
Under South Africa’s Recognition of Customary Marriages Act 120 of 1998 (RCMA), lobola is recognised as a central customary practice that entails the exchange of property between families. While lobola in itself does not constitute marriage, it is an essential prerequisite for a customary marriage to be deemed valid.
In terms of the Act, lobola is defined as “property, whether in cash or in kind, that a prospective husband or the head of his family undertakes to provide to the head of the prospective wife’s family in consideration of a customary marriage”.
In practice, the “deemed value” of the prospective wife – assessed in property terms rather than personhood – determines the quantum of the exchange, often subjectively measured in cattle or, as is common nowadays, in cash. This transactional character, which effectively attaches a negotiable worth to a woman, has long sparked debate: some view it as a meaningful cultural expression that binds families together, while others criticise it as a commodification of women that reduces their agency and reinforces patriarchal norms.
At its core, the practice raises a tension between tradition and modern constitutional values of equality and dignity, a tension that recent legal developments are bringing sharply into focus.
Delivering the landmark judgment, Justice Leona Theron underscored the broader constitutional implications of the case. She held that, when viewed through the lens of substantive equality, the impugned provisions were deeply problematic.
In her words: “Through the lens of substantive equality, it is clear that the impugned provisions rest on patriarchal assumptions about how families should be structured and removes the ability for spouses in heterosexual relationships to make personal and consequential choices for their family.”
Theron’s reasoning is significant for two reasons.
First, it exposes how seemingly neutral legal provisions can, in practice, entrench patriarchal norms by prescribing rigid family roles and undermining autonomy within marriage.
Second, it affirms that equality in the constitutional sense goes beyond formal symmetry; it requires dismantling systemic barriers that prevent individuals – particularly women – from exercising genuine agency in decisions that shape their private and public lives.
By striking down these outdated, unconstitutional provisions in the Marriages Act of 1961, the court not only corrected a legal anomaly but also sent a powerful message about aligning customary practices and statutory frameworks with South Africa’s evolving constitutional democracy.
Yet, the legal anomaly that entrenches patriarchy neither begins nor ends with the issue of surnames.
The underlying hierarchy of power between men and women in marriage is amplified when cultural defaults dictate that women must subordinate themselves to their husbands, evil or not, while the reverse is rarely considered, let alone normalised. This asymmetry reinforces the notion that a woman’s identity is subsumed under her husband’s, thereby diminishing her individuality and autonomy within the union.
Compounding this is the way in which the RCMA has historically framed women in heterosexual marriages: as subjects of exchange, their value determined through lobola negotiations and effectively treated as property.
Such an arrangement not only objectifies women but also entrenches their subordination by codifying a system in which their agency is systematically eroded. In this context, the wife is positioned beneath her husband in the familial hierarchy, with her social and legal status tethered to patriarchal norms rather than to constitutional ideals of dignity and equality.
The system of lobola, as codified in the RCMA, entrenches a framework that is both patriarchal and discriminatory. By conceptualising women as the subject of exchange — their “value” determined through property, whether cattle or cash — the act objectifies women and situates them in a subordinate position within marriage.
This approach undermines the constitutional imperative that marriage be a partnership of equals, reducing women’s agency and dignity to negotiable commodities.
The impugned provisions are not culturally neutral. They perpetuate systemic gender inequality by reinforcing the presumption that men occupy positions of dominance while women remain subordinate. This constitutes discrimination on the prohibited grounds of sex and gender under section 9 of the Constitution.
Such discrimination cannot be justified in an open and democratic society founded on human dignity, equality and freedom. Whatever cultural weight lobola may carry, the state cannot endorse or sustain legal provisions that entrench patriarchal norms at the expense of women’s constitutional rights.
This convergence of law and custom illustrates how subtle legal provisions, when left unchecked, can reproduce power imbalances and legitimise practices that undermine the very rights the Constitution seeks to uphold.
Accordingly, the impugned provisions of the RCMA fail to pass constitutional muster. They must be struck down as inconsistent with the Constitution and declared invalid.
The apex court has now presented Parliament with a singular opportunity to amend the RCMA proactively, thereby addressing its constitutional deficiencies without inviting further costly and protracted litigation. DM