Juridical analysis and critical evaluation of ilobolo in a changing Zulu society
Date
1983
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Abstract
Four years ago I had the rare honour of being requested to
be an umkhongi in three separate marriage negotiations. In
the course of these negotiations I was particularly struck
by the zeal with which ilobolo was demanded and by the
disparity in the amounts demanded. Although I was no
stranger to ilobolo, this set me thinking as to what is the
significance of ilobolo in both the traditional and modern
Zulu society. Here was sown the seeds that gave rise to
the present research. It is a modest attempt at examining
the position of ilobolo today in its historical perspective
and in a society that 1s in transition. Although various
contributions on ilobolo have been made by eminent authors,
it is a contribution from one who has not only studied the
institution but who is also part of the community that
practices it. It is hoped that it will add another dimension
to the existing literature on this eminent institution. The
approach followed here is eminently jural and comparative
although recourse is also had to the popular views owing to
the limitations of the jural approach.
To deviate a little: there are two mistaken assumptions
which are often held in relation to a person who shows
interest in the scientific study of customary law: one is
that customary law is either dead or should be allowed to die
natural death. Concern with it is regarded as merely an
academic Exercise of little or no value; the other
assumption is that interest in the systematic study of
customary law lends inadvertent support to the government's
policy of entrenching tribalism and of wanting the "Natives"
to live according to "Native law".
In answer to this the words of Ramolefe (AMR Ramolefe
"Sesotho marriage, guardianship and the customary heir" in
M Gluckman (ed) Ideas and procedures in African customary
law (1969) 197) are particularly appropriate;
"Customary law is now my devoted study, not because I
willed it so, nor because I am one with those who
bleat: 'Let the natives develop along their own lines;
but because up in the Maluti Mountains, and in several
pockets of lowland-dwellers custom is very much still
~ law and no amount of contempt for it by others can
alter this fact".
Customary law is still very much alive. Even blacks who are
westernized are in varying degrees subject to customary law.
The institution of ilobolo is ample evidence of this. Even
if a black marries by civil rights that marriage will not in
all respects produce consequences similar to those for a
marriage of a white person. On all these blacks need legal
advice. History has proved that a legal system of a people
does not become extinguished by acculturation. Although
many institutions may die and decay, others are resilient and
the society can only build its legal system on them. The
present Roman-Dutch law which is the common~ law of South
Africa is a classic example. It is a synthesis of two legal
systems: Roman law and Germanic customary law. Their
synthesis was precipitated by the hard labours of the
jurists of the Middle Ages, the Glossators and Post-Glossators.
It is the duty of lawyers to facilitate a new legal
dispensation for Southern Africa. What is more, customary
law is changing. It is the duty of the lawyers to give
effect in the law to these changes by giving decisions that
will update customary law and by drafting legislation to
modify the existing law. This obviously requires a scientific
study of customary law. It was in this spirit that the
present research was undertaken.
Description
A thesis submitted to the Faculty of Law in partial fulfillment of the requirements of the degree of Doctor Legum in the Department of Zulu Law at the University of Zululand, 1983.
Keywords
Zulu (African people)--Social life and customs., Zulu (African people)--Marriage customs and rites., Ilobolo