The short answer
You could draw up an affidavit that both you and the mother of your child should sign.
The whole question
My fiancée and I have decided not to get married but I already paid lobola. We have a child together and agreed that the money should go to the child as payment of damages, but we lost the lobola agreement letter. How can I make sure the money goes to my child?
The long answer
In a 2019 high court case, damages (or intlawulo or inhlawulo) are described as “an amount paid in money or in kind to a woman’s elders after a man had impregnated her”.
Lobola is described as “an amount paid in money or in kind to a woman’s elders for her hand in a customary marriage”.
So these are two different things, but in your case, you and the mother of your child have agreed to use the lobola money as damages for the support of the child, but you have lost the letter which records that agreement.
I am assuming that although you paid lobola, you and the mother of your child did not actually go through the ceremonies of marriage which would make you officially married under the Recognition of Customary Marriages Act (RCA).
As Acting Judge Thulare remarked in a 2019 high court case reported by de Rebus, “Marriage is not constituted by a single event. A series of negotiations, festivities and rituals officiate it into a marriage.”
The requirements of a customary marriage under the RCA are:
The couple must have agreed to marry;
Both should be 18 years;
The marriage process should be conducted in accordance with cultural traditions.
There have been a number of court cases involving precisely what cultural traditions make a customary marriage legally valid because different communities have different traditions. But the courts have recognised that customary law is a living and evolving thing, and so courts have to go into the particular circumstances of each marriage to decide if there was a valid marriage or not.
If it turns out that you are actually married, a customary marriage can only be dissolved on the grounds of the irretrievable breakdown of the relationship through a divorce order granted by the court. Since the Constitutional Court judgment of 30 November 2019, any customary marriage after the RCA came into force in 2000 is held to be in community of property, unless the couple has taken out an antenuptial contract. That means that if you divorce, the joint estate (all the assets and all the debts) is divided between the couple equally. Only the courts can grant a divorce order, as well as decide how the property of the marriage is divided and who should have the custody of the child, and how the child will be supported financially. And in order to get a divorce, you would need to register the marriage at Home Affairs to get a marriage certificate because the court will not grant a divorce without one.
But assuming that you are not actually married, Section 21 (1) of the Children’s Act provides that the biological father of a child born out of wedlock can acquire full parental rights and responsibilities in respect of his child if he “pays damages (intlawulo) in terms of customary law”.
A news24 article in December 2021 quotes Alexandra Shardlow, a specialist in family and divorce law at Di Siena Attorneys, saying that the following conditions apply for the unmarried father to acquire full parental rights:
At the time of the child's birth, he was living with the mother in a permanent life partnership;
If he consents to be identified or successfully applies in terms of Section 26 to be recognised as a father or pays damages in terms of customary law;
Contributes or has attempted to contribute in good faith to the child's upbringing for a reasonable period;
Contributes or has attempted in good faith to contribute towards expenses in connection with the child's maintenance for a reasonable period.
In a 2020 CSSR Working Paper, Jill Samukimba and Elena Moore describe how intlawulo goes far beyond the payment of a fine: they say it is to do with the ways that men as fathers are regarded as men through showing respect for the elders and doing the right thing. They say that though the maternal grandparents often exercise authority, they can also help to ensure that the father and the child continue to have a relationship when the father and mother of the child are no longer in a relationship. They quote one of the people in their study, Victor, as follows: “… when it comes to the child because, even if we fight with the mother of the child, I can go to the house and see my child because everyone knows that I am the father and they know that I paid the fine. And even when you have problems, you can phone the family and say we have problems like this and maybe they are gonna help you both.”
In the case of the missing agreement letter, you could draw up an affidavit that both you and the mother of your child should sign, saying that you have agreed that the lobola paid (here you would need dates of meetings and payments made and amounts paid) should be accepted as payment of damages (intlawulo), so that you have parental rights. Here you may need some of the mother’s family members who are aware of this agreement to sign that this is true, in order to make your affidavit stronger.
You could also contact Legal Aid for assistance. It is a means-tested organisation that must assist people who cannot a lawyer. You can contact them here:
Legal Aid Advice Line (Toll-free): 0800 110 110
Please-Call-Me number: 079 835 7179
Wishing you the best,
Answered on May 19, 2023, 10:11 a.m.
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