Topic 7A — Customary law of contract
Prescribed: Himonga & Nhlapo Ch 11 (+ recommended Van Niekerk on orality). Story arc: relational, status-linked transactions → constitutional capacity → living commercial custom (stokvels).
Contract in 60 seconds
A customary contract is an agreement enforceable in a customary tribunal. Any adult may contract (RCMA s 6; Mabena). The lobolo agreement founds the marriage — conclusion counts, not full payment (Tsambo), applied flexibly (Mbungela). Support contracts pair up: small contribution = gift (ukwenzelela), whole lobolo advanced = loan (ukwethula). The Bill of Rights and ubuntu police unfair enforcement (Barkhuizen/Beadica).
1. Is there "contract" in customary law?
The enforceability test
A transaction is any exchange (even of social bonds); a contract is an agreement intended to be legally enforceable — so a customary contract is an agreement enforceable in a tribunal applying customary law. Gluckman's lens: property means duties between persons in respect of things, which is why old custom links contract to status (Maine's "status to contract" debate). Living law pushes back: stokvels and township occupation transfers show arm's-length, non-state contracting alive today.
2. Capacity
From family heads to equality
Old: only male family heads contracted (for the house and its members; members sued jointly with the head, who answered for their contracts and delicts). Now: equality means any adult (18+) may head a household; RCMA s 6 gives a customary wife full status and capacity — acquire, dispose, contract, litigate.
CaseMabena v Letsoalo (1998)
Father absconded; the bride's mother negotiated lobolo; the husband's family attacked the marriage to block inheritance. Court upheld it: official custom silent → living norms + constitutional spirit → a female household head may validly negotiate. (Fieldwork confirms women routinely join lobolo parties today.)
3. Lobolo — the anchor institution
Structure and validity
Parties: prospective husband (or his family head) ↔ bride's family head; property in cash or kind (RCMA s 1: lobolo/bogadi/bohali…) in consideration of the marriage. The RCMA never expressly lists lobolo in s 3 — yet courts treat the lobolo agreement as the rock founding the marriage. LEAA s 1: no court may declare lobolo repugnant to public policy. On divorce, the lobolo-holder refunds (wholly/partly).
Two traps: pre-BAA writers wrongly equated lobolo with a sale — it legalises the marriage, it does not buy the bride. And customary contracts are concluded orally (cf Van Niekerk on orality): validity turns on agreement plus family presence/witnesses, not writing — so most disputes are really proof disputes about who was present and what was agreed.
CaseTsambo + CaseMbungela — the flexibility duet
Tsambo (SCA 2020): validity turns on conclusion of the lobolo agreement, not full payment — a balance outstanding defeats nothing. Mbungela (SCA 2019): no inflexible application of custom; customary law's "inherent flexibility and pragmatism" protects rights and dignity.
Enforcement: ukutheleka / phuthuma
Father/heir takes wife (+children) home to compel arrears (ukutheleka); husband fetches them back (phuthuma). Limits: never for civil marriages; never where children's rights suffer — best interests (s 28(2)) override. Scholars add: extraction tactics corrode the families' agreement and may be official, not living, law.
4. The lobolo-support contracts
| Institution | One-line rule |
|---|---|
| Ukwenzelela | SMALL contribution to another's lobolo — presumed a gift unless agreed a loan; refunded from the recipient's first daughter's lobolo (heir liable if none). |
| Ukwethula | WHOLE/substantial lobolo advanced (or inter-house debt in polygyny) — presumed a loan; repaid from daughters' lobolo; fading through uncertainty (Dlamini). |
| Ukufakwa | Father funds a daughter's coming-of-age rites via a relative, who is "put into" her future lobolo (or seduction damages) — nearer, surer repayment. |
| Isondlo (dikotlo) | Maintenance debt to whoever raised another's child — settle before claiming parental rights/benefits. Debate: Children's Act s 21 ties fathers' rights to paying damages vs best-interests primacy (Hlophe). |
| Mafisa / sisa / nqoma | Keeper gets use + products; ownership + increase stay with the owner (vindicable; safe from keeper's creditors). Duties: care, report loss, account, return on demand. Either side may end it. |
5. Constitution + ubuntu
Africanising contract
All contracts must survive the Bill of Rights (supremacy). The CC's move — CaseBarkhuizen (public policy screens unfair terms) into CaseBeadica (good faith/fairness via ubuntu) — infuses ubuntu into enforcement rather than building a parallel customary contract code. Mqeke's caution: several classical forms may be dying official law; living commerce (stokvels) is where custom now grows.