adminA RECENT decision by the South African Supreme Court of Appeal to abolish the country’s law that entitled innocent spouses to compensation in adultery cases was a very serious aberration from the course of Bantu cultural justice.
The court upheld an appeal by a man who had been ordered by the High Court to pay R75 000 to the husband of the woman with whom he had had an adulterous affair.
Addressing the Supreme Court on behalf of a three-man judicial panel, Justice Fritz Brand was reported by the media to have said: “In the light of the changing morals of our society, the action based on the adultery of the innocent spouses has become outdated and can no longer be sustained. It is archaic and the time for its abolition has come”.
According to Saturday Chronicle of 4 0ctober 2014 an aggrieved party in a case of adultery can no longer sue for compensation.
We will not be surprised by that Supreme Court’s decision if we remember that South Africa’s legal values seem to have forsaken what most of us in Zimbabwe regard as inherently human social and moral standards.
Take the legalisation of homosexuality, the abolition of the death sentence right across the board and that country’s reported refusal to extradite a wanted Zimbabwean criminal because it suspects that he would be guilty of murder and the Zimbabwean courts would sentence him to death.
These are a few examples of how the South African authorities look at their people’s socio-cultural interests.
Their constitution seems to have some inconsistencies and lacunae that permit the courts to pass some rather questionable verdicts.
The recent acquittal of Oscar Pistorious of his girlfriend’s murder comes into one’s mind. Whatever that country’s constitutional inconsistencies and lacunae, it is quite unusual that a court of law can actually abolish a law just because it thinks that that law has been rendered archaic by the moral degeneration of the nation, that is, if the media interpretation of Justice Fritz Brand is correct.
Whatever is the situation, South Africa is one of the world’s genuinely cosmopolitan nations. Its people are vastly culturally diverse as they comprise Teutonic, Slavic, Aryan, Hellenic, Polynesian, Semitic, Lusitanian, Bantu, Berber, Khoi-khoi and San communities.
In fact, Johannesburg is the most cosmopolitan city in the Southern hemisphere, followed by Melbourne, Perth in Australia and Buenos Aires in Argentina.
The culturally predominant community in South Africa is composed of the Bantu, so-called because their word for “person” is almost the same from the Atlantic Ocean in the west to the Indian Ocean in the east of the African continent, and from the continent’s most southern tip, Cape Agulhas to the southern fringes of the Sahara desert.
That word ranges from “anu, muntu, nhu, munhu, muthu, to ntu and ndru”.
The Bantu matrimonial culture involves the payment in cash or kind by the prospective son-in-law to the parents of his wife-to-be, usually before the couple have been officially declared husband and wife.
Practised virtually right across the cultural board of the Bantu world, the custom is known in Zimbabwe as “malobolo, roora” and “amalobolo”. It has its more or less similar variations in the Khoi-khoi, the San (BaKhwa, BaSarwa) and the Somalis, a Hamitic people now found, albeit in small communities, in South Africa.
The Teutonic, Slavic and other communities have their own custom referred to in English as the “dowry”, by which is meant money or property brought by a bride to her husband.
In the Bantu culture, a man who has committed adultery (ubufebe, chigororo, buphombwe) with a married woman is fined to compensate the woman’s husband because he (the husband) parted with some of his resources (financial or otherwise) for him to be officially called that woman’s husband.
The offending man has got to be punished lest he continues promiscuously disrupting the amorous harmony of many families.
The view that adultery usually occurs in an already unhappy and /or unstable marital environment is true to a certain extent, particularly in polygamous marriages, but in most adulterous situations, it is the man who seduces the woman and not vice- versa.
Instances where married women actually take the first step by approaching men are exceptional whereas those of men seducing married women form the general rule.
Some mischievous, lustful and malicious men seduce married women by means of money. Some married women have a low level of moral stamina and cannot resist the amorous advances of a man who is waving a couple of high denomination dollar or rand bank notes in front of them.
A few men have made quite a fortune by demanding compensation from men who successively committed adultery with their wives. In the 1940s, a Bulilima District woman whose husband was working in South Africa and returned home for only a month over the Christmas period committed adultery four times with four teachers in four years, at the rate of one teacher per year.
The first three incidents the accused teachers were fined an ox or cow each by the local chiefs’ traditional court and the teachers were immediately transferred.
However, on the fourth incident her husband’s father prevailed over his son to divorce her because he said she was a nymphomaniac (una “tjibolobolo” in the tjiKalanga language).
That was a very rare case and the woman was obviously a nymphomaniac indeed and should have been running a brothel instead of ever getting married.
As part of divorce settlement, her deeply disappointed husband was given three heads of cattle out of five he had paid her parents as lobola.
She had had no children during her highly sinful five-year adulterous marriage. That anecdote apart, the Kalanga marital traditional law and practice enabled her husband to get some compensation not only from the four teachers with whom the sex maniacal woman had had adulterous escapades but also from her parents.
If such an incident had occurred in the South Africa of the post-Supreme Court of Appeal verdict, the woman’s husband could not have been compensated in spite of having been so repeatedly hurt and embarrassed, so unfeelingly treated by a successive team of man who could not resist seductive glances of a latter-day Eve.
The abolition of that law defies the basic tenets of natural justice and cries to high heaven for a reviewal or parliamentary intervention to give weight and respect to Bantu tradition, custom and mores.
Lest we forget, the Bantu are the numerical largest cultural community in South Africa. The Supreme Court of Appeal’s verdict did not consider the marital cultural values and norms of the majority, that is to say, the Bantu of South Africa.
Surely (and please repeat the word surely) the Zulus, Vendas, Xhosas, Pedis, Ndebeles, Swazis, Rolongs, Bhacas, Shangaans, Tswanas, Pondos, Lobedus, Kwenas, and scores of other Bantu cultural groups do have each their marital culture some of whose seams have been undone by this verdict.
Mending it without delay would be to defend and preserve the cultural respect and essence of the Bantu who are, in fact, the majority citizens of South Africa.
Saul Gwakuba Ndlovu is a retired Bulawayo based journalist. He can be contacted on cell 0734328136 or through email [email protected]
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