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Unpacking the lobola refund issue

30 Apr 2021 at 06:16hrs | Views
Zimbabweans were highly active on social media discussing an underreported 2015 court ruling which made a ruling 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 splashed in a domestic embarrassed 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 then "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. His wife did not waste the human furry cake she was blessed with. After learning of this free for all distribution of his cherished fruit  and breach of the marriage vows and contract, Machodo sent his wife back to her parents. This did not go down well with the generous wife's father Chikudza Fanuel Mangwende, who immediately  sued his former son-in-law at the Magistrate's Court demanding the outstanding balance for the lobola.

She confessed that she had indeed carried out numerous leg spreading escapades with Machodo's brothers, nephew and herd boy. She was indeed a busy body during that time.

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 has 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.  Judge 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 makes  a good law or a bad law. What is lobola?Known to many as a "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 freewill 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 star MisRed tweeted: "Help me understand. Is lobola a purchase that requires a refund? What happens if the opposite is the situation?" Her Twitt 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 mater. Marylyn Mavaza a Housing specialist quipped " if lobola is refundable will the man out back all the children into their mother's womb. If that can not happen then there should be no rend".

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," he says.

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 bridewealth 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, prices 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 judgement 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 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 judgement some ignorant thick headed 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, he suggests that 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.

 Sitting as an appeal court, the High Court did, in 2015, rule that "under customary law, a man who would have paid lobola is entitled to a refund if the wife engages in adultery." Customary law is the collection of traditionally accepted legal rights and duties of black Zimbabweans who live a traditional way of life. Customary law is generally unwritten. Often, the courts require customs to be certain, reasonable and to have attained the recognition of formal law.
The High Court has held that a lobola refund can be demanded in circumstances where a woman cheats on her husband. 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 the ladies. The law is wrong in objectifying the laddies. Society is aware that lobola is a uniting factor. It must never be used as the means of objectifying  women. In a very suttle  way the judgement  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 it is incorrectly viewed it can be torturous, and divide rather than unite families. One example of this, the negotiations are usually handled by the extended male family members of the respective families, to the absolute exclusion of any females 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 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, is an entrenched part of marriage in  Zimbabwe. So a gift can not be returned when relations are sour.

We should then conclude that at this time and age the process of lobola payments must be  abolished. Men should not hold their wives at ransom because of the amount paid. Shonas have a saying which says Muroora hakupere meaning the 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.

Source - Dr Masimba Mavaza
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