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Dr Masimba Mavaza
Zimbabweans were highly active on social media discussing an under-reported 2015 court ruling which made a case that a man can sue his in-laws to recover lobola if his wife cheated on him.
The ruling has been sprung back to life after another socialite was thrust into an embarrassing situation after her husband was told that the child he was raising was not his. So, this issue pushed people from all walks of life to react to the ruling, giving the right to the husband of cheating wife to reclaim lobola.
Reports suggest that the socialite’s friends told the husband during a confession game after consuming some hot stuff that the child was not his and the claim was confirmed by a DNA test.
In the case which was before the magistrate court in 2015, Liberty Machodo discovered that his wife had cheated on him on multiple occasions with multiple people who included his elder and younger brothers, a nephew and a herd boy.
After learning of this breach of marriage vows and contract, Machodo sent his wife back to her parents.
This did not go down well with the wife’s father Chikudza Fanuel Mangwende, who sued Machodo at the Magistrate’s Court demanding the outstanding balance for lobola.
Upon considering all the evidence, the magistrate ruled that Machodo’s wife had broken the marriage relationship by cheating on her husband.
The magistrate ruled that due to this breach, her father was not entitled to any outstanding balance of the lobola payment.
The magistrate went on to rule that under customary law, a man who would have paid lobola is entitled to a full refund if the wife engages in adultery.
The court found that there was material breach of the very tenants of marriage. The court concluded that the appellant was not entitled to payment of the balance of lobola because his daughter who was married to the respondent committed adultery with multiple partners ranging from the respondent’s brothers, nephews and the herd boy.
The court also found that customarily, a husband is allowed to divorce an adulterous wife and then if he paid lobola in full he is entitled to a refund of the lobola from the in-laws.
The father-in-law was aggrieved by this ruling and filed an appeal at the High Court.
Justice Mwayera and Justice Uchena dismissed Mangwende’s appeal with costs. Justice Mwayera ruled: “In coming up with the disposition of the matter whereby the court a quo dismissed the claim for the balance of lobola the trial magistrate properly exercised his discretion and we find no fault in his findings.
“Accordingly, the appeal lacks merit and must fail. It is ordered that the appeal be and is hereby dismissed with costs.”
The issue to consider is whether the ruling is good law or a bad law.
What is lobola?
It is known to some as “bride-price” or bride-worth” and to some extent as a “down payment” or “dowry”, but in the African culture, it is a ritual that brings two families together.
According to the English usage, ‘dowry’ is the gift of money, goods or both, offered by the bride or bride’s family towards establishment of her household, whereas a bride-price is a marriage payment made by a prospective husband or more often, by his family to the family of the bride. Over the years, there have been conflicting debates about what lobola is and why this cultural practice should still be acknowledged.
Perhaps it is the democratic and evolving society that has given people free will to do things differently and to question how things were previously done. As a result, this has led to having a rebellious view that questions and discredits this sacred old practice.
Miffed by the ruling, ZiFM presenter MisRed tweeted: “Help me understand. Is lobola a purchase that requires a refund? What happens if the opposite is the situation?”
Her tweet was responded by a social activist Lorraine Pilime: “This lobola refund case really highlights that lobola should be scrapped. Lobola reinforces women being treated as property that must give a return on investment. Meanwhile women have been cheated on since the dawn of mankind and have no recompense for their investment.”
Many women have raised questions in this matter.
Marylyn Mavaza a housing specialist quipped: “If lobola is refundable, will the man put back all the children into their mother’s womb? If that cannot happen, then there should be no refund.”
While family elders may insist on cultural and traditional ways, some people are becoming resistant to the idea of lobola, often questioning why the process should happen in the first place.
Couples move in together and assume the roles of ‘husband and wife’ without going through the family-driven process of lobola, especially when lobola is being taken as purchase price.
It is unfortunate that lobola has in some instances been reduced to some sort of transaction without really interrogating what is indeed at the core of lobola in the first place.
The judges make the whole process look like a transaction and a woman being reduced to a mere commodity.
The court also found that customarily a husband is allowed to divorce an adulterous wife and then if he has paid lobola in full he is entitled to a refund of the lobola from the in-laws.
The court concluded that the appellant’s daughter engaged in an adulterous relationship with multiple partners and that she by so doing breached the marriage relationship.
The court has given lobola a different meaning.
Medical practitioner and metaphysical scientist, Zulu Mathabo, says this important cultural practice is often misinterpreted, misunderstood and overlooked.
“The fundamental symbol of lobola is a cow. The life of a cow is the most important part of this process,” he says.
“In the ancient times, lobola was offered with a cow because of how people lived, but today the offering is in the form of money. Words such as payment should not be used, lobola is an offering.
“Essentially, the woman is getting married to the ancestral family of the man. It is a spiritual affair. It is not based on material or the ring but rather, the spirituality side of things.”
Professor Kadembo shares the same sentiment, adding that there is a lot of misinterpretation that happens when coming to lobola.
“Lobola has nothing to do with buying. No one is being bought. Lobola has a particular cultural significance,” Prof Kadembo says.
According to Kennedy Mupomba a social scientist: “The most important reason for lobola is to make sure that families come together as one. People should look at lobola in its purest form, which is making sure that the families come together without it being misconstrued.”
While the core reason for lobola is to bring families together, the issue of money is also another biggest factor.
Payment of bride wealth or lobola is a significant element of marriage among the Shona of Zimbabwe. However, the functions and meanings attached to the practice are constantly changing.
As a link between two families, lobola negotiation is a tradition that was implemented in the old days where a man pays the family of his fiancé for her hand in marriage.
Although it is practised differently today, in historical times a man would pay much more for a virgin and less for a woman who had a child out of wedlock.
Today, charges are set according to how well-mannered and educated the bride-to-be is. The more educated she is, the more expensive the lobola will be.
Other factors also include the relative wealth and status of the family the prospective groom wishes to marry into, i.e. a young woman who is well educated would be much pricier than that of little or no education.
Some families will not accept a woman of a different religion in their family. Traditionally, lobola usually amounted to eight heads of cattle, but today the value of each cattle head forms part of the overall negotiation.
So, if lobola is a sign of uniting families, it should not be tied to faithfulness of either party. The issue of lobola is a complex one in that different cultures have different ways of doing things.
But in our Zimbabwean cultures, for instance, in the Shona culture, women aren’t at the forefront of the negotiations.
The judgment by the learned judges exposes the whole system to abuse. There are people who will still consider it as sacred, but others will abuse it because they don’t understand it, and the judgement is not helping.
There is beauty in seeing two families become one through a spiritual connection that is conducted through the practice of paying lobola.
Lobola was never meant to oppress women, but to give the value due to them. There is a clear distinction between abuse and the practice of lobola.
Some men might use it as a way of ownership by mentioning things like ‘don’t forget I paid for you’, aided by this judgment. Some men will think lobola is a payment and sign of ownership. Individuals in marriages should be able to distinguish when they are being abused, the ruling by the two honourable judges corrupts the law.
In an ever-changing society, there needs to be continuous re-iteration and proper education of the process of lobola.
It is important to have traditional leaders, cultural experts and academic institutions teaching the society about the true beautiful meaning of lobola.
Customary law is the collection of traditionally accepted legal rights and duties of black Zimbabweans who live a traditional way of life. It is generally unwritten.
Often, the courts require customs to be certain, reasonable and to have attained the recognition of formal law.
The other side of the same coin is that where a husband is found cheating, and the wife initiates divorce proceedings, the husband is not entitled to a lobola refund.
But this is not fair to women.
The law is wrong in objectifying women. Society is aware that lobola is a uniting factor. It must never be used as the means of objectifying women. In a very subtle way, the judgment is a serious attack on our culture.
The primary purpose of lobola is to build relations between the respective families, as marriage is seen to be more than just a union between two individuals.
The relationship is seen as life-long and in some cases, even after the death of the groom. The widow then, in a way, is bound to the groom’s family forever, especially if there were children that are born to the marriage.
Unfortunately, there is a downside brought by the high court.
The judgement has exposed the process to abuse and if incorrectly viewed it can be torturous, and divide rather than unite families.
Lobola is a token of appreciation to the bride’s parents for raising a woman for the groom and should not be seen as a chance to make a quick buck. If the bride makes a mistake in the marriage, it must not revert back to the bride price.
Lobola is the provision of gifts to the parents of a bride, usually in the form of cash or livestock and is an entrenched part of marriage in Zimbabwe. So a gift cannot be returned when relations are sour.
We should then conclude that at this time and age, the process of lobola payments must be abolished, as long as it is abused by men who hold their wives at ransom because of the amount paid.
In Shona there is a saying: “Kuroora hakupere”, which meansthe payment of lobola does not end. This is to show you that there will never be a price in full and final settlement where lobola is concerned.
Our culture is so beautiful and must not be tainted by anger or emotional grieving.
Bongani Ndlovu
Online Reporter