The Exchange Post

Nature of customary contracts

Customary law recognises enforceable contracts. Unlike common-law contracts (which are between individuals), customary contracts are typically between families or family groups, concluded orally through negotiation among family representatives. No strict formalities of offer and acceptance are required — what matters is consensus between the groups, construed according to customary law.

Lobolo — the paradigm case

Lobolo (bridewealth) is the best-known customary contract: a binding agreement between two families under which the groom's family undertakes to transfer property (traditionally cattle, now often money) to the bride's family. The lobolo agreement is enforceable in court. If the marriage is later dissolved, questions of partial return of lobolo arise, governed by living customary law.

Legal capacity and women

Under old official customary law, women had limited contractual capacity — treated as perpetual minors under male guardianship. This has been reformed: s 9 of the Constitution (equality) and s 6 of the RCMA give spouses in customary marriages equal status and capacity to own property and contract. Living customary law also recognises a woman's right to act as family representative in negotiations (Mabena v Letsoalo).

Nature of customary civil wrongs

In customary law a civil wrong is understood not merely as harm to an individual but as a disturbance of community or family harmony that must be rectified. Compensation typically flows to the family or community rather than solely to the individual wronged. The aim is restoration and reconciliation, not adversarial liability in the Roman-law sense.

Seduction (ukumitha)

Customary seduction (ukumitha) is a recognised civil wrong: where a man causes an unmarried woman to become pregnant, he and/or his family owes damages to her family. The payment compensates the family for loss of dignity, the cost of raising the child, and the disruption of the woman's marriage prospects. This differs in nature from the common-law seduction action, which protects the parent's economic interest.

Other customary wrongs

• Physical injury — compensation in cattle or money owed to the injured person's family
• Damage to property — restitution or compensation to restore the aggrieved family's position
• Adultery — historically a customary wrong; damages payable to the injured spouse's family; constitutional validity debated
• Insult / defamation — harm to family dignity addressed through reconciliatory proceedings

The development obligation

Section 39(2) of the Constitution requires courts, when developing customary law, to promote the spirit, purport and objects of the Bill of Rights. This obligation applies to customary contract and delict rules just as it does to the rules on succession and family law. Development means shaping the living customary rule from within — not replacing it with common-law doctrine.

Equality and dignity

Customary rules that restricted women's contractual capacity, or channelled seduction damages exclusively to the patriarch, must be developed for gender equality (s 9) and human dignity (s 10). Courts have begun to recognise that a woman may herself have a claim for the violation of her dignity through seduction — moving beyond the group-compensation model toward constitutional personhood.

Applying customary law

Section 211(3) obliges courts to apply customary law when it is applicable. The approach is neither to ignore customary contract and delict nor to elevate them above the Constitution: courts apply the living customary rule, develop it where necessary under s 39(2), and strike it down only where development cannot bring it into constitutional conformity.