Submitted to the Faculty of Arts in fulfilment of the requirements for the Degree of Master of Arts in the Department of African Languages at the University of Zululand, South Africa, 2012. / Lona ngumsebenzi wocwaningo oluhlelwe ngokwezahluko eziyisihlanu. Ucwaningo olwenzelwe kulo msebenzi lumayelana nokubaluleka kwelobolo njengesiko lamaZulu. Isahluko sokuqala sethula ucwaningo jikelele ngokucwaningisisa izinjongo zocwaningo, intshisekelo yocwaningo, indlela yokuqhuba ucwaningo, imidiyo yocwaningo, abazohlomula kulolu cwaningo kanye nezingqinamba ucwaningo olungahle luhlangabezane nazo. Isahluko sesibili sethula ngokugcwele ukubaluleka kwesiko lokulobola, kwethulwa imibono yongoti abehlukene ngaleli siko nokubaluleka kwalo. Kubuye kwethulwa ngokuqhathanisa isiko lokulobola emandulo kanye nasesikhathini samanje. Kubuye kwabhekwa ngokujulile ukuthi ubani olobolayo nokuthi umuntu onjani olotsholwayo. Kuso lesi sahluko kubuye kwabhekwa ukuthi amanye ama-Afrika wona analo yini leli siko kanye nezizwe zaphesheya kwezilwandle. Isahluko sesithathu sethula imithetho yokuqhuba isiko lokulobola nezindlela okumele zilandelwe kuleli siko. Kuqalwe ngokuba kuchazwe ngokugcwele ukuthi kulotsholwa ngani. Kubuye kwavezwa ukuthi kulotsholwa kanjani. Zonke izinto eziphathelene nokulobola zichazwe ngokugcwele. Ngasekugcineni kwesahluko kuveziwe ukuthi umuntu ulotsholwa kangaki? Kuphi? Izithombe nazo ziveziwe ukucacisa ezinye izinto. Isahluko sesine sethula amanye amasiko ancikene nesiko lokulobola nezinto ezingaba nomthelela ongemuhle ongagcina ulifiphazile leli siko. Athintwe onke amasiko ancikene nesiko lokulobola. Ziveziwe nezinto eziyimikhuba uma kuqhutshwa leli siko. Ziveziwe izinto ezingalikhuthaza nalezo ezingalifiphaza leli siko. Isahluko sesihlanu simayelana nokuhlaziya nokuphothulwa kocwaningo. Siphethe izincomo nokusonga jikelele kocwaningo. Lesi sahluko sibophe saqinisa onke amafindo abesele elenga ocwaningweni sawabopha athula du.

ABSTRACT The orally transmitted tradition of Lobolo is a common and widely practiced cultural tradition and an established marriage institution within African societies in Southern Africa, differing only in terms and minor variations of practice. Lobolo therefore has the status of being an intangible heritage and is acknowledged as such by South Africa’s National Heritage Resource Act of 1999. Its role in society today on the one hand and its oral way of transmission on the other has placed it in the center of an ongoing post-colonial discourse, particularly around the standing of the African intangible heritage in post-1994 South Africa. The Heritage Transformation Charter, following its mandate by the National Heritage Council, intended to attend to and correct existing imbalances in the Heritage sector and its institutions. It also aimed to identify and establish ways for the preservation and continuation of African heritage. The study reviews the literature on Lobolo, highlighting the ways in which it has been described as a multifaceted cultural and social institution. In consideration of these findings it critically engages in a discussion of the Draft Heritage Transformation Charter, to assess its acknowledgement of the characteristics of living heritage. In doing so the study probes the ability of a policy guiding document such as the Heritage Transformation Charter, to accommodate and guide the survival of oral traditions such as Lobolo, as part of the intangible heritage of South Africa.

The study sought to determine, first, what the rules of the Hananwa family law were and, second, whether those rules were compatible with the Constitution. First, it documented the rules of the official family law. The problem that the study countenanced is that customary law is "corrupted, inauthentic and lacking authority".1 Second, it established and documented the rules of the Hananwa family law. The problem that the study countenanced in respect of Hananwa law was that it was difficult to ascertain the content of the rules of the "living" Hananwa law in order to determine their compatibility with the provisions of the Bill of Rights. Moreover, the traditional Hananwa community is inegalitarian and patriarchal. Section 9 of the Constitution provides that everyone is equal before the law and enjoys equal and full protection and benefit of the law. The study found that the Hananwas still observe their system of customary law. However, there are visible changes. For instance, nowadays the spousal consent is a validity requirement for all customary marriages. A parent or legal guardian must consent to a customary marriage of a minor. The individual spouses, not their families, are parties to their own customary marriages. African women enjoy equal status. This development is consistent with section 9 of the Constitution read with section 6 of the Recognition of Customary Marriages Act 120 of 1998. According to the Constitutional Court, in MM v MN and Another 2013 4 SA 415 (CC), the first wife must consent to her husband's customary marriage to another woman in addition to her customary marriage to him. However, some rules of the Hananwa law do not comply with the provisions of the Bill of Rights. For instance, according to the Hananwa law, extramarital children do not enjoy equal inheritance rights and maintenance rights yet. This discrimination is inconsistent with the constitutional right to equality and the provisions of the Reform of Customary Laws of Succession and Regulations of Related Matters Act 11 of 2009.The Constitution puts common law and customary law on a par. However, the courts have often replaced customary law dispute resolution rules with the common law rules. For instance, the Constitutional Court in Bhe and Others v Magistrate, Khayelitsha and Others; Shibi v Sithole and South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 1 SA 580 (CC) and the High Court in Maluleke v Minister of Home Affairs 2008 JDR 0426 (W) substituted the rules of common law for those of customary law in order to resolve customary law disputes. The legislature could not be outdone. A meticulous study of the Recognition of Customary Marriages Act 120 of 1998 and the Reform of Customary Laws of Succession and Regulations of Related Matters Act 11 of 2009 reveals that their provisions almost appropriately reflect the common law marriage and intestate succession rules respectively. The Recognition of Customary Marriages Act has, furthermore, adopted the provisions of the Divorce Act of 1979. Section 28 of the Constitution read with the Children's Act 38 of 2005 has generally substituted the fundamental human rights for the unequal rights provided by the customary law of parent and child. The Maintenance Act 99 of 1998 has substituted the communal form of maintenance under customary law. / Public, Constitutional, & International Law / LLD (International and Constitutional Law)

The study sought to determine, first, what the rules of the Hananwa family law were and, second, whether those rules were compatible with the Constitution. First, it documented the rules of the official family law. The problem that the study countenanced is that customary law is "corrupted, inauthentic and lacking authority".1 Second, it established and documented the rules of the Hananwa family law. The problem that the study countenanced in respect of Hananwa law was that it was difficult to ascertain the content of the rules of the "living" Hananwa law in order to determine their compatibility with the provisions of the Bill of Rights. Moreover, the traditional Hananwa community is inegalitarian and patriarchal. Section 9 of the Constitution provides that everyone is equal before the law and enjoys equal and full protection and benefit of the law. The study found that the Hananwas still observe their system of customary law. However, there are visible changes. For instance, nowadays the spousal consent is a validity requirement for all customary marriages. A parent or legal guardian must consent to a customary marriage of a minor. The individual spouses, not their families, are parties to their own customary marriages. African women enjoy equal status. This development is consistent with section 9 of the Constitution read with section 6 of the Recognition of Customary Marriages Act 120 of 1998. According to the Constitutional Court, in MM v MN and Another 2013 4 SA 415 (CC), the first wife must consent to her husband's customary marriage to another woman in addition to her customary marriage to him. However, some rules of the Hananwa law do not comply with the provisions of the Bill of Rights. For instance, according to the Hananwa law, extramarital children do not enjoy equal inheritance rights and maintenance rights yet. This discrimination is inconsistent with the constitutional right to equality and the provisions of the Reform of Customary Laws of Succession and Regulations of Related Matters Act 11 of 2009.The Constitution puts common law and customary law on a par. However, the courts have often replaced customary law dispute resolution rules with the common law rules. For instance, the Constitutional Court in Bhe and Others v Magistrate, Khayelitsha and Others; Shibi v Sithole and South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 1 SA 580 (CC) and the High Court in Maluleke v Minister of Home Affairs 2008 JDR 0426 (W) substituted the rules of common law for those of customary law in order to resolve customary law disputes. The legislature could not be outdone. A meticulous study of the Recognition of Customary Marriages Act 120 of 1998 and the Reform of Customary Laws of Succession and Regulations of Related Matters Act 11 of 2009 reveals that their provisions almost appropriately reflect the common law marriage and intestate succession rules respectively. The Recognition of Customary Marriages Act has, furthermore, adopted the provisions of the Divorce Act of 1979. Section 28 of the Constitution read with the Children's Act 38 of 2005 has generally substituted the fundamental human rights for the unequal rights provided by the customary law of parent and child. The Maintenance Act 99 of 1998 has substituted the communal form of maintenance under customary law. / Public, Constitutional, and International Law / LLD (International and Constitutional Law)

This study aimed to explore how gender is constructed, negotiated and enacted in the customary practice of lobolo. Lobolo, sometimes incorrectly referred to as bridewealth or dowry is a practice that centres around the transference of wealth from the groom or a groom’s family to the bride’s family towards the formalisation of marriage. Framed within an African-centred feminist approach I analyse, through narrative discursive analysis, how 27 men and women ages 27 -71, from Johannesburg and Cape Town account for gender and power dynamics in their narratives of participating in lobolo. The African-centred feminist approach I employ critically engages with historical as well as present-day reproductions of patriarchy, capitalism, heteronormativity and other mechanisms of exclusion that are perpetuated through the cultural practice of lobolo. I show how masculinities and femininities are constituted, negotiated and disputed in the narratives of men and women who have participated in lobolo. By employing an African-centered feminist approach I show how gendered dynamics within the practice are shaped by historical and contemporary social, political and economic factors which enable and constrain the exercise of power in various ways. By exploring lobolo through an African-centered feminist narrative approach I demonstrate how the process is more than simply a transference of wealth but rather a complex practice that is used as an apparatus to exercise and expand power in the different stages of the lobolo process. Within this African-centered feminist approach, I argue that lobolo functions to legitimise particular gender positions that can be adopted through marriage; but it can also be used to challenge and contest these roles. The findings of this study suggested that the different stages and process of lobolo reflect a gendered script, which determines the position that men and women are able to adopt, and that this script sets the parameters for the ways in which these roles may be enacted. I find also that the meanings and descriptions of lobolo are embedded within, and reproduce gendered identities but that these identities are not fixed but rather are constantly renegotiated. I conclude that lobolo is not only a custom for formalising marriages but also a tool used by men and women to perform a range of sometimes contradictory functions, including at times establishing and strengthening hegemonic masculinities and femininities but at other times challenging and dismantling these. / Psychology / Ph. D. (Psychology)