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LOBOLA WAS NOT PAID TO ME - WIFE

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MBABANE – Bhadala Mamba’s wife, Nelisiwe, has told the court that the lobola cattle her husband wants her to return were never given to her.

Nelisiwe was responding to the application that has been filed by Mamba at the High Court in which he is seeking an order directing her to pay back the lobola - a herd of nine cattle. 

The former Central Bank of Eswatini employee, also wants the court to declare their Swazi Law and Custom marriage to have been dissolved. 

Mamba accused her of allegedly deserting her marital homestead and claimed to be married to another man.

In her notice to raise points of law, Nelisiwe told the court that there was no proof that the herd of cattle was paid and/or received by her and on which date.  

She mentioned that Mamba did not describe or give particulars of the cattle in question to the court. She explained that in terms of Swazi Law and Custom, if a herd of cattle was paid as lobola, the bride’s family received them and not the bride personally. 

The veracity of these allegations is yet to be tested in court. Nelisiwe is represented by Thandeka Hlabangana of Hlabangana and Associates. Mamba is represented by Magagula Attorneys.

delivered

Nelisiwe said the alleged cattle could not have been paid or delivered to her. It was for that reason, according to Nelisiwe, that the proposition on which Mamba’s claim was premised was legally and factually unsustainable.

“The herd of cattle, particularly lobola, is conveniently and legally paid to the bride’s family - the father or in his stead, a duly designated senior member of such bride’s family,” said Nelisiwe.

She contended that in so far as the claim for restitution of the bride price was concerned, her husband should have joined her father in the proceedings for the return of the cattle, if any. Nelisiwe said she could not, in terms of customary law, return any lobola paid to her family. 

She further informed the court that Section 252 (2) of the Constitution recognised Eswatini Customary Law as part of the country’s law. Nelisiwe said there was no reason why Swazi Customary Law should not be adhered to and or followed in the present case.  

capacity

In terms of Swazi Customary Law or custom, according to Nelisiwe, in his personal capacity, Mamba could not claim or seek the return of the cattle paid to her family. 

She said the umyeni was authorised or tasked with the duty of lobola or claim thereof. She submitted that there was no reason that Mamba should use Roman-Dutch Law to abrogate the Swazi Customary Law.

Nelisiwe also submitted that the High Court has no original jurisdiction regarding the issue of lobola. She cited Section 151 of the Constitution which states: “Notwithstanding the provisions of Subsection (1), the High Court has no original, but appellant jurisdiction in matters in which a Swazi Court or Court Martial has jurisdiction under any law for the time being in force in Swaziland.”

conferred

She argued that Section 9(b) conferred jurisdiction on Swazi Courts to preside over cases concerning payment and or return or disposal of the bride price. Nelisiwe submitted that the High Court was conferred with review and appellant jurisdiction.

“The High Court is conferred with review and appellant jurisdiction. The High Court does not have original jurisdiction to deliberate on the issue of lobola. The matter is prematurely before the High Court given the fact that the applicant (Mamba) reported the dispute of lobola to Lomfa Royal Kraal on October 14, 2020.

“The applicant is meant to appeal the verdict using the traditional structures thus bringing the present matter within the jurisdiction of the Swazi Courts or alternatively, if approaching the present court by review and or appeal of the verdict of the Lomfa Royal Kraal.”

Further, Nelisiwe informed the court that there were material dispute of facts which Mamba had allegedly been aware of since November 17, 2020. These include contracting any customary law marriage with him, customary rituals being performed such as smearing her with red ochre and others. 

She submitted that Mamba had lodged a similar application on November 27, 2020, at the High Court in which he allegedly attached a bogus marriage certificate. Nelisiwe submitted that Mamba was allegedly made aware of the dispute or issue and he withdrew the application and ‘is now re-lodging the same application, save for the removal of the marriage certificate, two respondents (attorney general and registrar of BMDs) and inserted a new prayer.’

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