Anthony Diala

African monarchs are important figures in their countries. In South Africa, many Zulu people are strongly tied to the royal family and indigenous laws of dispute resolution, including divorce. Polygamy is accepted and divorce is discouraged, even if a marriage is not working out.

But now AmaZulu king Misuzulu kaZwelithini has been in the headlines because he filed divorce papers against his first wife, Queen Ntokozo kaMayisela, in order to marry a fourth. The queen approached the court to stop the wedding, claiming that their civil marriage in 2021 – shortly after he became king – forbids remarriage without divorce. Her request was denied, but the king has not proceeded with the new marriage.

South Africans are talking about the case because the king is the custodian of Zulu custom. His divorce bid calls into question the changing position of indigenous laws on marriage and divorce. We asked Anthony Diala, a scholar of African customary law, how to make sense of things.

Who are the Zulu royals?

The Zulu royal family is a prominent lineage dating back to the 1500s. They rule the AmaZulu nation, whose estimated 10 million people are the largest ethnic group in South Africa, residing mainly in the KwaZulu-Natal province. They’re part of the Nguni people, sharing broader ancestral and linguistic roots.

Prominent Zulu royals include Shaka kaSenzangakhona, known as Shaka Zulu, who transformed the AmaZulu clan into a powerful empire in the 1800s. He was succeeded by his half-brothers because he had no children. Cetshwayo kaMpande led the Zulu during the colonial-era Anglo-Zulu War.

The AmaZulu royals include the king, his consorts, and their legitimate descendants. They are funded mainly through yearly allocations of about $4.2 million (R77.5 million) from the KwaZulu-Natal provincial government. This is almost matched by the income they earn from tenancy fees through their control of the Ingonyama Trust, which owns about 30% of the land in KwaZulu-Natal.

The current monarch grew up in neighbouring Eswatini, studied in the US, and took the throne in 2021. So, in a sense, he is a new generation king. As a significant cultural authority, it is understandable why his family are in the headlines about a divorce.

How culture deals with divorce?

The king’s move is unprecedented because wives typically remain part of the royal household even if their relationship with the king ends. Generally, the indigenous laws of the AmaZulu discourage divorce.

This is because the clan plays a major role in the marriage contract, its stability, and its dissolution. Due to the close-knit nature of pre-colonial society and the communal nature of income generation, bridewealth (lobola/ilobolo) was raised by the groom’s family mostly through livestock given to the bride’s family. Being heavily invested in the marriage, the families of the couple usually intervened when issues that threatened marriage arose. This made divorce rare.

Before European colonialism, divorce did not need the intervention of a court. Marriage could be nullified only on the grounds of witchcraft, adultery or insanity.

So, as unions between families rather than couples alone, marriage was considered a bond between families. The implication is that a divorced wife in good standing with her husband’s family could continue to live in his family homestead. However, this situation is changing.

Impact of western culture

Western culture reflects socio-economic changes of colonialism and globalisation. These include technology, urbanisation, personal income, formal education, social media and statutory laws. It’s important to contextualise how these changes are influencing divorce.

Indigenous laws emerged in close-knit social settings and were aimed at promoting clan welfare. In contrast, modern conditions promote individualism, urbanisation, personal income, and binary ideas of gender equality. In the past, the groom’s family communally transferred bridewealth. After divorce, bridewealth was returned – fully or partially – to signify divorce. Communal cohesion ensured that the clan promoted marriage stability.

Today, bridewealth is no longer required to validate a customary law marriage. Its role in divorce has diminished, and only state courts can dissolve marriages. In any case, a wide range of customary laws regulate all aspects of marriage.

My research shows that western culture contributes to divorce when Africans adapt their indigenous behaviour to modern conditions. In essence, modernity is altering Zulu indigenous behaviour to conform to western-inspired statutory laws.

Can a balance be found?

Although the Zulu people still cherish the institution of marriage, western culture is changing their attitudes towards divorce. Its influence highlights the struggle between indigenous laws and the legal system imposed by Dutch and British colonisers.

Roman-Dutch law is a fusion of English customary laws, Germanic tribal laws and Roman law forms. It forms the basis of South African common law. Balancing indigenous laws and Roman-Dutch law is difficult precisely because indigenous laws are increasingly subject to western culture.

South Africa’s 1996 constitution mandates the courts to “apply (recognise) customary law when that law is applicable”. But the laws they recognise must not contradict constitutional values and any legislation that regulates customary law.

So, indigenous laws are compelled to conform to constitutional values of equality, non-discrimination and human dignity. Therefore, the regulation of indigenous laws presents western values as superior to indigenous laws. This forces Africans to seek normative validation through western yardsticks.

Balancing indigenous laws and state laws would need policy focus on how Africans adapt their indigenous behaviour to socio-economic changes.

These adaptations create customary laws, which should be understood as the practices that people regard as obligatory. The solution to balancing indigenous and western culture is to recognise and interpret indigenous laws with their own foundational values, instead of using values that represent the legal systems imposed during colonial rule. | The Conversation

Anthony Diala is Professor of African legal pluralism and Director, Centre for Legal Integration in Africa, University of the Western Cape