Tshongweni v Kwankwa (21530/2016) [2021] ZAWCHC 126 (9 July 2021)

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[2021] ZAWCHC 126
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Tshongweni v Kwankwa (21530/2016) [2021] ZAWCHC 126 (9 July 2021)

THE REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No:  21530/2016
In
the matter between:
VUYOKAZI
APHENDULE TSHONGWENI
Plaintiff
and
NQABAYOMZI
SAZISO KWANKWA
Defendant
Coram:
Bozalek J
Heard:
15 – 18 March; 19 – 22; 26 April; 10 & 13 May 2021
Delivered:
This judgment was handed down electronically
by circulation to the parties’ legal representatives by email.
The date and time
for hand-down is deemed to be 10:00 on 9 July 2021.
JUDGMENT
BOZALEK J
[1]
This is a divorce action which commenced in
November 2016 when the plaintiff issued a summons against the
defendant seeking a decree
of divorce and extensive ancillary
proprietary relief. In her particulars of claim the plaintiff averred
that during July 2012
the parties were married to each other in terms
of customary rites and such marriage still subsists. She further
averred that one
minor child, at that stage 9 years old, was born
from the marriage.
[2]
The action was opposed and was only set
down for trial on 15 March 2021. On 1 February 2021
the defendant filed an
amended plea. That portion dealing with the
alleged existence of the marriage read as follows:
‘
[5]
The defendant pleads that towards the end of 2011 and beginning of
2012 he and the plaintiff wished
to marry each other. To this end the
family of the defendant initiated lobola negotiations in 2012. The
lobola negotiations were
never concluded in accordance with the
customary law and rights applicable to the defendant’s family.
[6]
The lobola was negotiated and agreed to and st (sic) at the amount of
R50 000.00.
[7]
It was a condition precedent to taking further steps and to attend to
other formalities –
which are the essential ingredients in the
consummation of a customary marriage – that the defendant would
pay seventy percent
of the lobola.
[8]
Put differently, further steps and other formalities which were
essential to conclude a customary
marriage between the parties were
to be undertaken upon payment by the defendant of seventy percent of
the lobola.
[9]
The defendant made part payment of the lobola in the amount of
R20 000.00. The part payment
of lobola in the amount of
R20 000.00 is a far cry from the seventy percent part-payment of
the lobola agreed to in the lobola
negotiations to pave
(sic)
way for the parties to proceed and
attend to essential formalities to conclude their customary marriage.
[10]
Pursuant thereto, the parties experienced irreconcilable differences
in their relationship which culminated
to a complete breakdown of the
relationship soon thereafter, they lived separate lives.
…
[12]
Instructively, there we
(sic)
no
further steps and other formalities, - which were essential to seal a
customary marriage – undertaken to conclude a marriage
between
the parties.
…
[14]
Accordingly, the defendant denies that there is in existence a
marriage in terms of customary rights between
the parties and that
such a marriage still subsists.
[15]
Further there is no customary marriage of the parties registered in
terms of sec 4(1) and (2) of the Customary
Marriage Act. 120 of
1998.’
[3]
On commencement of the hearing at the
Court’s suggestion the parties agreed that a primary issue
would be separated out and
determined initially, namely ‘
whether
a valid customary marriage was concluded between the parties on or
about July 2012, as alleged in paragraphs 4 and 5 of
the plaintiff’s
particulars of claim read with paragraphs 5 – 9 of the
defendant’s amended plea’
.
[4]
In due course when the defendant testified
he gave a version which was entirely at variance with his pleaded
case, the main differences
being that he testified that there had
been no agreement on the amount of lobola and he had no knowledge of
how much was paid in
part payment of, or towards, lobola.
Notwithstanding the glaring contradictions between the defendant’s
pleaded version and
his evidence, the defendant only sought an
amendment to his pleadings during argument, and then only when the
Court pointed out
that it was untenable for counsel to argue on the
basis of a version at complete variance with the pleadings.
[5]
The defendant also applied for the
withdrawal of three paragraphs of two statements of agreed facts, all
of which applications were
granted. In the first statement of agreed
facts, dated 6 September 2019, paragraphs 7 and 8 read:
‘
7.
Lobola was agreed to be R50 000.00;
8.
R20 000.00 was paid towards the lobola.’
[6]
Paragraph 5 of the statement of agreed
facts dated 15 March 2021 read ‘
an
amount of about R20 000.00 was paid to Mrs Tshongweni’s
family’
. All of these statements
are accordingly no longer agreed facts.
[7]
In terms of
sec 2(2)
of the
Recognition of Customary Marriages Act, 120 of 1998
, a customary
marriage entered into after the commencement of that Act (15 November
2000) is for all purposes recognised as a marriage.
The requirements
for the validity of a customary marriages are set out in
sec 3(1)
which reads as follows:
‘
(a)
the prospective spouses –
(i)
must both be above the age of 18
years; and
(ii)
must both consent to be married to
each other under customary law; and
(b)
the marriage must be negotiated and entered into or celebrated in
direct accordance with customary
law.’
[8]
In the present matter the first requirement
is not disputed leaving an onus on the plaintiff to prove the second
two requirements.
As the evidence unfolded three primary disputes of
facts came to the fore; firstly, whether the lobola negotiations
between the
respective families were successfully concluded;
secondly, what portion of the lobola had been paid and whether the
plaintiff’s
family had agreed to her release and; thirdly,
whether the ceremony in which the bride was handed over to the
defendant’s
family had taken place and if so whether this had
been with the defendant’s consent. It is appropriate then to
commence with
the evidence regarding the lobola negotiations. The
plaintiff testified and called two witnesses in regard to the lobola
negotiations,
Mr Phumzile Tshongweni and Mr Sanele Tshongweni.
Mr Phumzile
Tshongweni
[9]
Mr Tshongweni testified that the plaintiff
was his sister’s daughter and that he had been the leader of
her family’s
delegation in the lobola negotiations at his
sister’s homestead in Engcobo on 30 June 2012. His delegation
had welcomed the
visitors who had advised that they had come to ask
for the plaintiff’s hand in marriage. The defendant’s
delegation
were told that the price of
ubuso
bentombi
i.e. ‘
to
see the
(plaintiff’s)
face’
was one cow, in effect R4500.00. The price of other cows was agreed
at R4000.00. An agreement was reached that plaintiff’s

delegation would accept three cows for the time being (R12 500.00),
let the defendant’s delegation ‘
borrow’
plaintiff and they would discuss the balance of the lobola at a later
stage. Somewhat contradictorily Mr Phumzile Tshongweni testified
that
his delegation also stipulated that until the defendant’s
delegation had paid five cows the plaintiff could not be released
and
even the five cows would not be the full lobola. That effectively
ended negotiations on that day. On the following day the
defendant’s
delegation returned, he was told, but he was not available and thus
not present. The witness testified that his
delegation had received
R12 500.00 in cash on the first day of lobola negotiations as well as
a further amount of R2000.00 being
the balance of the damages which
the defendant was required to pay for impregnating the plaintiff. The
witness confirmed that notes
of the negotiations had been written by
another of his family’s delegates, the plaintiff’s
brother, Mr Sanele Tshongweni.
[10]
Those notes appear in a folio notebook,
Exhibit A, in full. They are written in isiXhosa but an agreed
translation reads as follows:
‘
Visitors
from Ematshaweni
They started with the
payment of impregnation in the amount of R2000.00 which was
outstanding.
The came back and paid
R12500.00.
Those are three cows,
ubuso bentombi cow is R4500.00, together with two other cows as at
R4000.00 each.
They said they will
come back again, because we did not release our daughter as
amaQwathi.
We will release her
when they leave five cows behind.
They took out/paid
their responsibilities which were:
Isazimzi: How
amaTshawe knew the amaQwati home.
Iswazi: Whip that was
used along the way directing the cows.
Ihambidlane: What the
cows ate along the way to emaQwathini.
The Cows wanted by
amaQwati are ten in total.’
[11]
The single page of the folio notebook
contains four names as representing the amaQwati i.e. the plaintiff’s
family, namely,
the witness and Messrs Sanele Tshongweni, Thanduxolo
Jada and Ayeza Mdlunya.  It contains also what appears to be the
signatures
of the three delegates of the defendant’s family: MH
Kwankwa, K Ntoshe and M Ntunze.
[12]
In cross-examination Mr Tshongweni
confirmed that the defendant was not part of the discussions or
negotiations. He stated also
that
ukwenda
i.e. the introduction of the groom to the plaintiff’s family
had not taken place on 30 June 2012. At times the witness’

recollection of events on 30 June 2012 were at odds with the notes
but ultimately he conceded that the notes were more likely to
be
correct because, as he put it, he was old and his memory was not what
it used to be. In cross-examination it was put to the
witness that he
had complained to the defendant sometime after the negotiations that
his authority was being undermined by the
plaintiff’s family
but he denied that this had ever happened. He was insistent that the
plaintiff was a bride of the Kwankwa
family i.e. the defendant’s
family.
[13]
In re-examination the witness confirmed the
essence of his evidence, namely, that the agreement reached between
the families was
that once five cows were paid the bride would be
released. In answer to the Court’s question as to why he
regarded the plaintiff
as the defendant’s bride his answer was
because the defendant’s family had accepted her and she had
undergone the
utsiki
ceremony.  The basis of this latter evidence, however, was what
he had been told by the plaintiff i.e. it was hearsay.
Mr Sanele
Tshongweni
[14]
The witness, 26 years old in 2012,
testified that he was the plaintiff’s younger brother and works
at Old Mutual in Johannesburg.
He identified the notes covering the
two days of the lobola negotiations as having been made by him. The
other members of the amaQwati
delegation on 30 June 2012 were Mr
Phumzile Tshongweni, Mr Ayeza Mdlunya and Mr Thanduxolo Jada. He had
written down the names
of the amaTshawe delegation in the book. He
confirmed that the first issue discussed was the family’s
requirement that the
plaintiff pay R2000.00 further damages in
respect of the plaintiff’s impregnation and this was agreed and
effected. He confirmed
that it was agreed that the price of
ubuso
bentombi
would be R4500.00 and that a
further R8000.00 i.e. two cows, was received making a total of
R12 500.00 (excluding the damages).
That sum was also paid in
cash. It was further agreed that the bride would not be released
until five cows had been paid i.e. a
total lobola of ten cows. The
Tshongweni family were subsequently gathered together and were told
what had happened. The visitors
left but on the understanding that
they would return. Before they left they were invited into the house
where a lunch was prepared
for them. The witness testified that the
defendant was also present at the lunch which was the first occasion
when he had met him.
[15]
Mr Sanele Tshongweni testified that on the
following day, 1 July 2012, the visitors returned to make payment of
the balance of the
five cows agreed upon. He had been present and had
not been surprised to see them. They paid a further R8000.00 making a
total
of R20 500.00 payment of lobola over the two days. On that day
a light lunch was served. Present from the Kwankwa family were two
of
the previous day’s three delegates. The defendant was also
present having been initially seated in a car outside but then
having
come into the house. The amaQwati delegates had been himself and Mr
Thanduxolo Jada who had been in charge. After receipt
of the R8000.00
he had reported this to the family and they had agreed that the
plaintiff could be released to the defendant’s
family.  He
left Engcobo after the negotiations and only heard later that on 16
July 2012 the
utsiki
ceremony had taken place.
[16]
The witness was cross-examined at length.
He denied that there had been no further payments/lobola negotiations
on 1 July 2012 and
maintained that two envoys had paid a further
R8000.00 towards lobola on that day. It was put to him that the
defendant and his
brother, Mr Thulani Kwankwa, were in Engcobo on 1
July 2012 but neither of them attended at the plaintiff’s
homestead; further
that the defendant had used the plaintiff’s
car to bring his delegation from King Williams Town to Engcobo on 30
June 2012
and back again and then had brought the car back to Engcobo
on 1 July 2012.
[17]
In re-examination the witness testified
that it was some three kilometres from the alleged car drop-off point
to his family’s
homestead and involved a walk of at least ten
minutes. The other delegate present on 1 July 2012 for the
plaintiff’s family
was Mr Jada. Inasmuch as some questions had
been put to him based on the customs of the Rharhabe kingdom, the
witness testified
that he and his family were amaQwati falling under
the amaQwati kingdom. He insisted that the defendant’s brother,
Mr Thulani
Kwankwa, was one of two delegates who visited his family’s
homestead on 1 July 2012 and paid the R8000.00. The witness confirmed

that he had made notes in the folio notebook relating to the events
of 1 July 2012. The agreed translation of the notes reads as
follows:
‘
Visitors
from Ematshaweni
amaTshawe visitors
came back again.
Saying they came back
to add two cows on top of the three cows. Which made a total of five
cows.
amaQwati agreed that
they are releasing their daughter to eMaTshaweni.
But amaTshawe said
they will come back.’
Underneath this note
appears the names of two amaQwati delegates:  Messrs Sanele
Tshongweni and Thanduxolo Jada are written,
as well, in a different
handwriting, of two delegates for the Tshawe’s, namely, Messrs
Mzwebantu Kwankwa and Thulani Kwankwa.
The plaintiff –
Ms Vuyokazi Tshongweni
[18]
The plaintiff works as a manager for a
medical company and has a number of tertiary qualifications. The
defendant and her are married
by customary marriage and he is the
father of her child. They met in 2006 and by October of that year she
was pregnant with her
daughter who was born in July the following
year. She and the defendant began living together in 2010 in the Cape
Town suburb of
Montclair. She moved in with the defendant because he
had resigned from his job as a lecturer and they decided to share a
household.
Marriage was discussed and they both agreed on a
traditional wedding but decided to get married by customary rites
first in order
to save money for a ‘
white
wedding’
. The defendant proposed
marriage to her and threw a surprise engagement party for her. On
that occasion he had rung her mother
and informed her that the two of
them were engaged.
[19]
In June 2012 the two of them drove together
to the Eastern Cape for the purposes of lobola negotiations. At
Graaff-Reinet the defendant
withdrew R20 0000.00 from his Absa
account for this purpose. Her family lived in Engcobo and the
defendant’s family lived
in King Williams Town (hereinafter
‘eQonce’). They drove up in her car and she was dropped
off in Engcobo and the defendant
proceeded in her car to eQonce.
[20]
The following day, 30 June 2012, the
defendant and his delegation arrived at her family’s homestead.
During the day she and
the defendant had communicated with each other
by text message. He messaged her when he arrived saying he was hungry
and she prepared
food and took it to him where he sat in her car
outside the homestead. At the commencement of negotiations she was
called by her
family’s delegates and asked if she knew the
visitors from the amaTshawe, which she confirmed and then went back
to the house
to cook for them. She was not told of the outcome of the
negotiations that day but the defendant called her and told her that
her
family had not agreed to release her. He explained that the cows
(money) which they had brought was too little. She had queried
this
because as far as she was concerned the defendant had enough money.
The defendant had explained that his uncle was trying
to save but
that she should not worry because they would be coming back the
following day since they had not paid for all the cows.
She had been
present when lunch was served to the delegates. Her mother had told
her that she must go and call the defendant into
the homestead so
that the family would know that he was the son in law. Her mother has
since passed away.
[21]
The next day, 1 July 2012, she was told
that the defendant’s delegates had returned and she herself saw
them. The delegation
of 1 July 2012 had comprised the defendant’s
late uncle, Mr Mzwebantu Kwankwa, and Mr Thulani Kwankwa, the
defendant’s
brother. They spoke to Sanele and Mr Jada. She also
made them some light food and something to drink and they sat at a
table in
the homestead. She had only received her vehicle back on the
Monday i.e. 2 July 2012 when the defendant came back to her homestead

and she drove him to the bus station in Engcobo to catch the bus back
to Cape Town. She was then told by her mother that she had
been
released to the defendant’s family.
[22]
The next step in the proceedings was that
she had proceeded to the defendant’s homestead so that the
utsiki
celebrations could be held although this had only taken place on 16
July 2012.
[23]
Much of the cross-examination which the
plaintiff faced sought to demonstrate that the defendant, and hence
his delegates, were
not at her family’s homestead in Engcobo on
1 July 2012. Plaintiff testified that she only got her car back from
the defendant
on the Monday, 2 July 2012, in time for her to drop him
off at the bus station to catch the bus back to Cape Town. She
believed
that he must have arrived in Cape Town only the following
day, 3 July 2012, because it is an 11-hour trip and he called her
from
there. The plaintiff was, however, shown an extract from the
defendant’s bank statement showing that he withdrew or
transacted
for an amount of R200 at the BP Promenade on 2 July 2012
which, the defendant later testified, was a filling station in
Mitchells
Plain, Cape Town. Ultimately, the plaintiff stated that if
the defendant was indeed in Cape Town on 2 July 2012 she would not
deny
it.
[24]
It was put to her that the defendant would
testify that he left Engcobo on Sunday, 1 July 2012 taking the bus to
Cape Town. He would
also state that he was never inside her homestead
that day. He would testify that he arrived in Engcobo on 1 July 2012
accompanied
by his brother and dropped her car at the Transito,
apparently a shopping mall where her mother’s business was
situated.
From there he went to the bus stop together with Thulani to
catch the bus back to Cape Town. This arrangement was disputed by the

plaintiff who asked, rhetorically, why would the defendant not drop
her vehicle at her homestead and how would she have got it
since
doing so would have involved her making a long walk to town and why
would she do that? It was further put to her that the
defendant could
not have brought Mr Mzwebantu Kwankwa back to her house on 1 July
2012 and have taken him back to eQonce and then
only returned to
Engcobo on the Monday. The plaintiff testified that on the Saturday,
30 June 2012 she had recognised the defendant’s
envoys as
Messrs Mzwebantu Kwankwa, Thulani Kwankwa and another two elderly
men. According to her Mr Thulani Kwankwa had not been
‘
stable’
on 30 June 2012 since he had been in and out of the township and had
visited a shebeen. He had been under the influence of alcohol
and had
broken the key to her car’s ignition which led to a hefty
disagreement between the two of them. The plaintiff testified
that
the defendant would have been welcomed with great ceremony into her
family’s homestead that day had all the cows been
paid that
day.
[25]
I deal now with the evidence led by the
defendant dealing with lobola.
Mr Thulani Kwankwa
[26]
The defendant’s brother, Mr Thulani
Kwankwa, testified that the defendant was his aunt’s child and
the plaintiff was
the mother of the defendant’s child. He
recalled the lobola negotiations in respect of the couple in 2012
when his role had
been was that of a runner/messenger between the
defendant and his delegation which travelled to the plaintiff’s
homestead
in Engcobo. The defendant’s delegations were Messrs
Mzwebantu Kwankwa, Mr Khawulezile Ntoshe and Mr Maqetsebani Ntunze.
They
drove on the morning of 30 June 2012 from eQonce to Engcobo in
the plaintiff’s car and dropped the delegates at the gate to

the homestead. He and the defendant remained in the car at a distance
so that they could keep an eye on the gate. The defendant
was not
allowed into the homestead for cultural reasons. When he, the
witness, would see his uncle at the gate he would go there
to find
out what he wanted and to relay messages. He recalled that on the
second such occasion his uncle had told him that their
delegation was
not welcome because they were ‘
limping’
i.e. did not have enough money for lobola. The witness stated that he
had not entered the plaintiff’s homestead that day.
He agreed
that he had been given food and drink but explained that they had not
consumed this on the premises. He conceded too
that he had been under
the influence of alcohol that day and had broken the ignition key to
the plaintiff’s vehicle. Although
unsure, he believed the
delegation left the homestead in the late afternoon for the
three-hour journey back to Middeldrif (outside
eQonce). The following
day (1 July 2012) he and the defendant drove the plaintiff’s
vehicle back to Engcobo and caught the
bus from there to Cape Town.
They left the car at the plaintiff’s mother’s place of
business in town some time before
2pm and they arrived in Cape Town
the following morning on the bus. The witness said that it was untrue
that he and Mr Mzwebantu
Kwankwa had arrived at the plaintiffs’
family homestead on 1 July 2012.
[27]
Under cross-examination Mr Kwankwa conceded
that he did not remember much of 30 June 2012 because of the alcohol
which he had consumed
that day. He stated that he did not know how
much was paid by his brother’s delegation in the lobola
negotiations.
Mr Khawulezile
Ntoshe
[28]
Mr Ntoshe testified that the elder of his
clan, the amaTshawe’s, who was later established to be Mr
Batini Kwankwa, appointed
him as the leader of the amaTshawe
delegation to travel to Engcobo to negotiate lobola after asking for
the plaintiff’s hand
in marriage for the defendant. He and two
other delegates entered the homestead and met the amaTshawe
delegation although he was
not able to name them. He was unable to
remember the plaintiff’s name but said it had been written on a
piece of paper. She
had been called and confirmed that she knew the
amaTshawe delegates. In the negotiations the amaQwati had first said
that they
had to pay R2500.00, being the unpaid portion of the
damages for the defendant having impregnated the plaintiff. His
delegation
duly paid the R2500.00 and the lobola negotiations proper
started. His delegation put down R7500.00 and on being asked by the
amaQwati’s
told them that that was all they had. Their response
had been to tell them that they were ‘
short’
whereupon his delegation undertook to take this back to the amaTshawe
clan in Middeldrif. The translated notes of the first day’s

negotiations were read to him but he disagreed that the impregnation
damages were R2000.00 and also disagreed that his delegation
had paid
a further R12 500.00. Mr Ntoshe testified further that his
delegation had agreed that they were going to come back
but had given
no indication when this would be and he himself had not come back. He
was shown the written notes and his name and
confirmed that it
appeared to be his signature. After the negotiations ended his
delegation was given something to eat and they
left. He testified
that the defendant had not entered the homestead.
[29]
In cross-examination Mr Ntoshe’s
evidence, already far from clear, became even less so. He testified
that his delegation had
been given a copy of the first page of the
notes regarding the negotiations and that he had taken this back to
Mr Batini Kwankwa.
He said the full cash amount given to him before
the delegation left was R10 000.00 and that he had only R2500.00 of
that in his
pocket which he used to pay for the impregnation damages.
He could not recall how much his delegation had paid for
ubuso
bentombi
. He was repeatedly asked by
how much his delegation was short in lobola money and could not give
an answer. He testified that his
delegation had given the defendant
and his brother (Thulani Kwankwa) feedback on the negotiations.
Although it was put to him that
the notes recorded that lobola in the
amount of ten cows had been agreed upon he would not concede that
this was so. When his delegation
returned home they told Mr Batini
Kwankwa only that the amaQwati had not accepted the offer. The
witness then testified that the
amaQwati had said that they needed to
have three cows before they could even hear his delegation but even
at that point they would
not be ready to release the plaintiff. The
witness then immediately changed his evidence and said that the
amaQwati had stated
that when they paid three cows they would release
their daughter.
[30]
At the time of giving evidence Mr Ntoshe
was 63 years of age. He testified that Mr Mzwebantu Kwankwa had died
in the meantime and
that Mr Ntunzi was old and could not walk. At the
time, Mr Thulani Kwankwa was a ‘
child’
and not allowed to take part in the negotiations. Later in his
evidence he said that his delegation was told by how much they were

short but he could not remember how much this was.
[31]
Mr Ntoshe ultimately conceded that he did
not have a good recollection of the events on the day of the
negotiations and it was possible
that they had paid R12 500.00
rather than only R10 000.00. When it was put to him that the
plaintiff’s case was
that agreement was reached that on payment
of five cows the bride would be released the witness’ answer
was that he could
not remember. He conceded that if someone comes to
negotiate lobola for his daughter that person would have to follow
his rules.
In other words, the suitor cannot dictate which rules must
be followed. In keeping with the confused nature of his evidence, in

re-examination the witness reversed this last part of his evidence.
The defendant –
Mr Nqabayomzi Kwankwa
[32]
The defendant testified that he was a
politician and Member of Parliament and the father of six children by
a number of different
women. He confirmed in his testimony that he
had proposed marriage to the plaintiff and that they had travelled
together to the
Eastern Cape in her car in late June 2012. At
Graaff-Reinet he withdrew R20 000.00 for the lobola negotiations
from an ATM
before dropping the plaintiff off at her Engcobo
homestead. He then went through to his village near Middeldrif which
is some distance
from eQonce. The following day he drove his brother,
Thulani, and three delegates from his family to Engcobo for the
lobola negotiations.
He dropped the delegates, Mr Mzwebantu Kwankwa,
Mr Ntoshe and one other at the gate but himself remained outside in
the vehicle.
His delegates appeared and disappeared into the house on
the homestead on a regular basis and emerged to caucus. After some of
these caucuses they called Thulani to the gate who would then keep
him abreast of developments. At a stage he was told that the

amaTshawe’s were complaining that the amount of money his
delegation had brought was not enough. He had responded by saying

that he had given his grandfather, Mr Batini Kwankwa, all the money
he had i.e. R20 000.00. At a later stage it appeared that
the
negotiations had broken down for the same reason and he conveyed the
same message through Thulani, namely, that he had given
all the he
had and was not in the position to make any alternative arrangements.
He took the delegation back to his homestead that
afternoon so that
they could report to his grandfather. Forty minutes after leaving
from home he received a phone call from the
plaintiff who wanted to
know by how much the money was short and he told her that he had no
details as he had not been given them.
At no time on the day had he
gone into the plaintiff’s homestead because this was culturally
improper and nor had his brother
Thulani.
[33]
The following week he had received a report
that his envoys had reported back to his grandfather but he had not
been part of that
process. The report he received was that although
the delegation was well received his proposal for marriage was not
accepted because
they had not brought enough money, that they would
have to go back again to the plaintiff’s homestead but that
date was never
set. He had phoned the plaintiff to tell her that they
would have to come back a second time for her to be released.
[34]
Earlier, on the day after the initial
negotiations, 1 July 2012, he and Thulani woke up early and drove the
plaintiff’s car
to Engcobo. They dropped off her car at her
mother’s place of business because they feared they were
running late for the
bus. They rushed to the bus station and got
there timeously because the plaintiff was there. They boarded the bus
and left at about
2pm arriving back in Cape Town at 2am or 3am the
next morning i.e. 2 July 2012. He and Thulani had not been anywhere
near the plaintiff’s
homestead on 1 July 2012. He confirmed
that prior to the lobola negotiations he had already been fined
R5000.00 by the plaintiff’s
family for impregnating her and had
made an initial payment of R2500.00 thereof. Mr Phumzile Tshongweni
was the person who had
phoned him and told him he had to pay those
damages. He denied arriving at the plaintiff’s homestead on
1 July 2012
with Thulani and Mzwebantu Kwankwa. This would
not have been practically possible since he would have to have taken
those two people
back to his village and then returned to Engcobo and
the journey was three hours in one direction. He disputed that the
plaintiff’s
evidence that he had brought her car back on
Monday, 2 July 2012. He identified in his bank statements a
withdrawal of R20 000.00
made on 29 June 2012 in
Graaff-Reinet and a purchase of R200.00, which he said was probably
for fuel, made on 2 July
2012. He denied that he was ever inside the
plaintiff’s homestead on 1 July 2012 when a further R8000.00
was paid allegedly
thereby reaching the fifty percent needed for the
release of the bride by her family. He stated that there was never a
further
lobola meeting to discuss the plaintiff’s release to
his family. He testified to a discussion between himself and the
plaintiff
regarding coming back to the Ciskei in December of that
year to finalise outstanding issues.
[35]
In cross-examination the defendant
presented himself as almost completely excluded from any
communications regarding the lobola
negotiations and uncurious about
them. He could not say by how much money his delegation was short
because he said he had not even
been told how much had been offered.
He had not even told Mr Mzwebantu Kwankwa that he had given Mr Batini
Kwankwa R20 000.00
for lobola because it was ‘
not
his place to do so’
. He agreed
though that it was he who would have to raise more money and in order
to do so he would need to know by how much he
was short. He
maintained nonetheless that he was not told this figure and he did
not ask for it. The repeated assertions in earlier
versions of his
plea and in his
Rule 43
affidavit that he made part payment of lobola
in the amount of R20 000.00 were put to him but he disavowed
them, saying that
all that he could say was that he withdrew
R20 000.00 and gave the money to his grandfather, making no
payments himself. Similarly,
his earlier repeated assertions in
pleadings and other documentation that lobola was negotiated at the
amount of R50 000.00
were put to him but he blamed these
misstatements on a previous attorney. He also sought to explain them
away on the basis that
he got this information from the plaintiff
(herself not a party to the negotiations) who was his only source of
knowledge and on
whom he had to rely. The defendant testified that he
never spoke to his grandfather about re-opening the lobola
negotiations and
never found out by how much he was short in them. By
the time of trial Mr Batini Kwankwa was still alive but aged 93 and
suffering
from dementia. At a later stage in his evidence the
defendant stated that he only understood that R10 000.00 or
thereabouts
was paid in lobola, as was testified by Mr Ntoshe.
[36]
In re-examination the defendant furnished
yet a further explanation for his initial assertions in pleadings and
other legal documentation
that the lobola negotiations had been
successfully concluded and that he had paid R20 000.00 in
part-payment thereof. These
were incorrect assertions, he stated, but
because of the proliferation of litigation in which he had found
himself embroiled with
the plaintiff he had not wished to risk
another opposed application and the consequent legal costs. So
instead he had decided to
leave the pleadings as they were and press
for an early trial to bring the litigation to a conclusion.
[37]
In response to a question from the Court
regarding two withdrawals from his account on the morning of 1 July
2012 in the amount
of R1000.00 and R3000.00 he stated that this was
money he needed for his journey back to Cape Town.
Prince Zolile
Burns-Ncamashe
[38]
The defendant called, as an expert witness
on Xhosa customs, more particularly those of the Rharhabe kingdom,
Prince Zolile Burns-Ncamashe,
a teacher, lecturer, author and senior
traditional leader of the amaQane tribe. The witness has a background
of serving in the
Eastern Cape House of Traditional leaders as well
as the National House of Traditional leaders. The Rharhabe kingdom is
that section
of the Xhosa nation from Kei river to the Gamtoos river
and within it falls eQonce and the village of eMnqaba (where the
defendant’s
homestead is situated). The plaintiff’s clan,
the amaQwati, do not form part of his kingdom, however. According to
the witness
the traditions regarding customary marriage are
homogenous across Xhosa clans. Lobola was a gift of cattle offered to
the bride’s
family from the suitor to build the bonds of
affinity between the families. Nowadays money is generally used as a
substitute for
cattle. According to the witness it is rare for
negotiations to be concluded on the first day of negotiations since a
relationship
is being built which requires astute negotiators. Only
after about six cattle have been offered will there be a level of
comfort
on the part of the bride’s family. The welcoming of the
son-in-law to the brides’ family is part of
ukwenda
and is a general practice. The bridegroom’s family asks that
the bride be released to their family. The daughter is released
once
the lobola is set. If the bride’s father is alive he, together
with the elders, will make the decision to release the
daughter to
the other family but if the bride’s family has no father this
would be role of the leader of the negotiating
team. After every
round of negotiation the mother of the bride and the elderly women
would be given a report. A significant portion
of lobola must be
paid, in the witness’ view at least half, otherwise the bride
is seen as an
ushweshwe
,
a bride of very low value. According to the witness, notes of the
negotiations would be kept by a young man who is himself not
a
negotiator because he is not married and is merely a scribe.
Including the
ubuso bentombi
cow in the total lobola price would be a deviation from the norm but
not significant.
Discussion and the
law
[39]
The
approach to resolving disputes in civil matters where there are
irreconcilable versions was authoritatively set out in
Stellenbosch
Farmers Winery Group and Another v Martell et Cie
[1]
and others as follows:
‘
To
come to a conclusion on the disputed issues a court must make
findings on (a) the credibility of the various factual witnesses;
(b)
their reliability; and (c) the probabilities.  As to (a), the
court’s finding on the credibility of a particular
witness will
depend on its impression about the veracity of the witness.
That in turn will depend on a variety of subsidiary
factors, not
necessarily in order of importance, such as (i) the witness’s
candour and demeanour in the witness-box, (ii)
his bias, latent
and blatant, (iii) internal contradictions in his evidence, (iv)
external contradictions with what was pleaded
or put on his behalf,
or with established fact or with his own extracurial statements or
actions, (v) the probability or improbability
of particular aspects
of his version, (vi) the calibre and cogency of his performance
compared to that of other witnesses testifying
about the same
incident or events.  As to (b), a witness’s reliability
will depend, apart from the factors mentioned
under (a)(ii), (iv) and
(v) above, on (i) the opportunities he had to experience or observe
the event in question and (ii) the
quality, integrity and
independence of his recall thereof.  As to (c), this
necessitates an analysis and evaluation of the
probability or
improbability of each party’s version on each of the disputed
issues.  In the light of its assessment
of (a), (b) and (c) the
court will then, as a final step, determine whether the party
burdened with the onus of proof has succeeded
in discharging it.
The hard case, which will doubtless be the rare one, occurs when a
court’s credibility findings
compel it in one direction and its
evaluation of the general probabilities in another.  The more
convincing the former, the
less convincing will be the latter.
But when all factors are equipoised probabilities prevail.
’
[40]
According
to LAWSA
[2]
one of the main
features of a traditional African marriage is the payment by the
bridegroom of marriage goods or lobola to the
bride’s family.
Lobola is agreed following ‘
negotiations’
between emissaries of the two families and agreement on this and
other wedding particulars leads to a formal engagement which is

followed by the marriage ceremonies whereby the woman takes leave of
her family and is transferred to the groom’s family
and
incorporated into it.
[3]
It is
customary for some of the lobola cattle to be delivered prior to the
marriage.
[4]
There can be no
valid customary marriage without an agreement that lobola cattle will
be delivered. Customs differ amongst the
different communities
regarding the number, time of delivery and so on but the general rule
is that at least one beast has to be
delivered before the wedding
ceremonies.
[5]
[41]
In
Tsambo
v Sengadi
[6]
the Supreme Court of Appeal held, after considering the views of
experts in indigenous law, that ‘
historically,
significance was paid to the conclusion of the lobola agreement, and
not necessarily the full payment of lobola’
.
On that basis the Court dismissed as devoid of merit the contention
that the marriage could not have been concluded because part
of the
lobola price had yet to be paid.
Was a lobola price
negotiated and paid?
[42]
Although it was common cause that lobola
negotiations were held the parties presented divergent accounts of
whether agreement had
been reached and what sum, if any, had been
paid. According to the plaintiff’s case lobola had been agreed
in the amount
of ten cows and half thereof, some R20 500.00
paid. According to the defendant’s case no agreement could be
reached
in the lobola negotiations and an indeterminate part-payment
was made. The plaintiff’s case comprised her evidence, and that

of the lead negotiator Mr Phumzile Tshongweni and another
delegate/scribe, Mr Sanele Tshongweni.
[43]
Mr Tshongweni presented as a somewhat
stubborn man who at times clung to details of his evidence even when
he was not certain thereof.
Nonetheless, he impressed as a credible
witness and the substance of his evidence can be accepted. A feature
of his evidence was
that he was party only to the negotiations on 30
June 2012 and could not speak directly to any resumption or the
conclusion of
the negotiations on the following day. It would also
appear that his memory for detail was not clear but this was not
unexpected
in an elderly man testifying to events which had taken
place some nine years previously. In essence this witness’
evidence
was first that damages of R2000.00 was paid for impregnation
of the plaintiff and thereafter a further R12 500.00 in cash for

the
ubuso bentombi
cow and two further cows. It was agreed further that the bride would
not be released until at least five cows were paid i.e. R20 500.00,

but this would not constitute the full lobola, which would be
negotiated at a later stage.
[44]
Mr Sanele Tshongweni’s
recollection of events was essentially the same of that of his uncle.
He confirmed the payment of R2000.00
damages for the impregnation
plus a further R12 500.00 in respect of three cows including the
ubuso bentombi
price. His evidence went somewhat further however, namely, that the
total lobola price of ten cows was agreed upon. Mr Sanele Tshongweni

made a very good impression as a witness. He had a much clearer
recollection of events than Mr Phumzile Tshongweni and it was he
who
had kept the notes of the negotiations. His evidence was not without
flaws but these are understandable given the lapse of
time. I accept
the substance of his evidence.
[45]
The plaintiff’s evidence could only
lend indirect support for her case since she was not a direct
participant in the negotiations.
Be that as it may her evidence is
entirely congruent with that of the two family members who were her
delegates, namely that insufficient
lobola was paid on day one but
that substantial progress was made in the negotiations.
[46]
To my mind the greatest support for the
plaintiff’s case lies in the contemporaneous notes kept by Mr
Sanele Tshongweni. They
confirm that the amount of R2000.00 was first
paid as damages on 30 June 2012 followed by R12 500.00 being in
respect of three
cows. The notes also confirm that the plaintiff
would be released when five cows were paid and that the total cows
wanted or agreed
were ten and that the amaTshawe emissaries would
return. The notes for the following day, 1 July 2012, confirm
furthermore, that
a further two cows were paid making a total of five
cows, this even though no direct reference to R8000.00 is contained
in the
notes.
[47]
Mr Ntoshe did not directly dispute the
notes and nor could they be disputed by the defendant or his brother,
Mr Thulani Kwankwa.
There was no direct attack on the authenticity of
the notes during cross-examination with the result that when the
defendant’s
counsel asserted during argument that the notes
were a fabrication this not only came as a surprise but was
completely unsubstantiated.
[48]
Further support for the plaintiff’s
version is to be found in the fact that between November 2016 and
some four and a half
years later when he testified, the defendant’s
case, as contained inter alia in his pleadings, was consistently that
lobola
was
negotiated and agreed to (albeit in the total amount of R50 000.00)
and that part payment in the amount of R20 000.00 was
paid. (It
must be noted that R12 500.00 plus R8000.00 comes to
R20 500.00.) Even after the defendant’s plea was
filed
these facts were recorded as agreed facts in a statement of agreed
facts dated 6 September 2019. In a further statement of
agreed facts
dated 15 March 2021 the defendant appeared to back away from the
notion that the lobola negotiations had been successfully
concluded
but continued to assert that an amount, of R20 000, now qualified by
the word ‘
about’
,
was paid to Ms Tshongweni’s family. This is not the end of the
documentation supporting the plaintiff’s account of
the lobola
negotiations, however. In a sworn affidavit made by the defendant on
17 March 2017 in
Rule 43
proceedings he stated as follows:
‘
The
lobola was negotiated, agreed to and set at the amount of R50 000.00
… I made part payment of the lobola in the
amount of
R20 000.00.’
[49]
Against all this is the defendant’s
version that lobola negotiations were never concluded and he is
unable to state what part
payment was made towards lobola. This
version relies also on the evidence of Mr Ntoshe.
[50]
Mr Ntoshe made a poor impression as a
witness although I gained no impression that he was being
deliberately untruthful. In the
first place he appears to have been a
somewhat reluctant emissary and one whose involvement was confined to
what took place on
30 June 2012. His interest in the negotiations as
a whole seemed to be very limited. Mr Ntoshe was an elderly and
unsophisticated
man and gave his evidence very haltingly and
hesitantly. There were often long silences during his testimony as he
tried to remember
what had taken place all the years before. On
various factual aspects his evidence veered from side to side and
ultimately, where
it is not supported by other credible evidence or
documentation, it can certainly not be preferred to that of the
plaintiff’s
witnesses. The bottom line of this witness’
evidence was initially that damages for impregnation were paid and
thereafter
a further R7 500.00. However, in cross-examination he
conceded it was possible that his delegation had left R12 500.00

behind on that day i.e. paid that sum over rather than just R7500.00
or R10 000.00. This would, of course, accord with the

plaintiff’s version of events.
[51]
As mentioned, the evidence of Mr Thulani
Kwankwa does not take the defendant’s version of what took
place on 30 June 2012
much further since his role was limited to that
of a go-between between the defendant and the defendant’s
delegation. All
that he confirms is that a sufficient part-payment
i.e. an amount necessary for the release of the bride, was not paid
on the day
in question. Mr Thulani Kwankwa definitely did not come
across as a reliable or impressive witness. By his own account he was
drunk
or under the influence of alcohol for much of the day.
[52]
The principal feature of the defendant’s
evidence was its vagueness. All that he could essentially say was
that he had drawn
R20 000.00 and given it to his grandfather for
lobola. There were other unsatisfactory features to the defendant’s
evidence,
chief of which was his claim that he had not known by how
much his delegation was short in the lobola negotiations. The
defendant
was the source of the lobola monies and, judging by his
evidence and demeanour, he is very much a self-confident, assertive
and
intelligent individual. I find that it highly unlikely that he
was a mere cypher in the negotiations, passively waiting to be told

of the course of the negotiations, by how much he was short, whether
agreement had been reached and how much money had been paid.
What
further strains credulity is that this passive ignorance on the
defendant’s part was not limited to the events of 30
June 2012,
but on his version appeared to endure indefinitely inasmuch as he
claims never to have received any further or more
substantial reports
even after his delegation returned to eMnqaba village and reported to
his grandfather.
[53]
This version of the defendant’s
stands in glaring contrast to that which was pleaded on his behalf,
obviously on his instructions,
and to which he deposed to in his
Rule
43
opposing affidavit. What is more, the only difference between his
initial and long-standing pleaded version and the plaintiff’s

version was the amount at which lobola was negotiated. Whereas on the
plaintiff’s version this was a total of ten cows (presumably

some R40 000.00), on the defendant’s version this was the
sum of R50 000.00. This figure of R50 000.00 was
neither
explained nor mentioned by the defendant in evidence. Also
unexplained was his pleaded and sworn version of having to initially

pay a minimum of seventy percent of the total lobola price. Again,
the defendant did not even mention this in evidence, raising
the
likelihood that it was merely a percentage in excess of fifty percent
which he seized upon in order to assert that, not having
paid it, the
condition precedent which he averred, namely, that the further steps
and formalities essential to conclude a customary
marriage could only
be undertaken once such percentage was paid, had not been fulfilled.
[54]
Finally, it must be mentioned that there
was further documentary evidence placed before Court in the form of
affidavits by Messrs
Phumzile and Sanele Tshongweni apparently made
to the South African Police in Engcobo in September 2018. For reasons
known only
to the parties’ legal representatives little use was
made of these affidavits in evidence or in cross examination. In the

agreed translation of the affidavits both deponents confirmed the
following elements of the plaintiff’s version:
·
impregnation damages in the amount of
R2000.00;
·
ubuso bentombi
in
the amount of R4500.00;
·
agreement that the total of lobola price
would be ten cows and that one cow was worth R4000.00;
·
that the plaintiff would be released on
payment of five cows;
·
that on the first day R12 500.00 was
paid; and
·
that on the second day the defendant’s
delegates returned to pay three cows whereafter the plaintiff was
released.
[55]
These affidavits align with the viva voce
account of the plaintiff’s witnesses of the lobola negotiations
save in one respect
viz
that on day two a further
three
cows were paid. In their viva voce evidence the
ubuso
bentombi
cow was counted as part of the
lobola price but seemingly not in the affidavits. On that basis when
the defendant’s delegation
returned they paid for three cows
i.e. R12 000.00 and not R8000.00, although these figures are
never mentioned in any of the
documentation. It is quite possible
that, given the elapse of six years between the negotiations and the
making of the affidavits,
both Tshongweni’s could have erred in
their recollection of whether two or three cows were paid on Sunday,
1 July 2012.
[56]
The second issue regarding the lobola
negotiations is whether the plaintiff succeeded in proving that fifty
percent of the lobola
price was paid. This largely turns around the
question of whether the defendant’s envoys supplemented the
lobola payments
they made on 30 June 2012 when, it was common cause,
they were found to be short or ‘
limping’
.
Mr Sanele Tshongweni testified that Messrs Mzwebantu and Thulani
Kwankwa arrived on the Sunday, with the defendant in the wings,
and
payment in respect of the balance of half of the lobola was made. The
plaintiff confirmed her brother’s evidence when
she testified
she saw the defendant’s two delegates, Messrs Mzwebantu and
Thulani Kwankwa, that day and that they engaged
with Messrs Sanele
Tshongweni and Thanduxolo Jada. She confirmed also that the defendant
was in the vicinity and that she prepared
food and drink for them.
Mr Jada was never called as a witness.
[57]
The plaintiff’s version of events in
this regard is confirmed by contemporaneous or semi-contemporaneous
notes kept by Mr
Sanele Tshongweni which were not attacked in
evidence. As mentioned above, the notes make no reference to the sum
of R8000.00 being
paid but refers only to two cows being added on top
of the three cows. The affidavits by the Tshongweni’s refers
however
to three cows being added. Notwithstanding this difference
the key point is that the notes, together with the evidence of Mr
Sanele
Tshongweni and the plaintiff, indicated that half of the full
price of the lobola i.e. five cows was settled by the Sunday. On the

other hand is the version of the defendant to the effect that no
further negotiations were held or payments made after 30 June
2012.
The defendant’s version is that he and his brother in
Engcobo on Sunday, 1 July 2012, to return the plaintiff’s
car
and to catch a bus to Cape Town and also includes a denial that his
delegate, Mr Mzwebantu Kwankwa, was or could have been
in Engcobo on
1 July 2012. This, testified the defendant, would have entailed him
driving to and from his village on that day which,
the evidence
established, was some 270km from Engcobo. The plaintiff’s
version is that the defendant’s delegation did
arrive in
Engcobo on 1 July 2012, that the defendant travelled back to his
village that day and only returned the plaintiff’s
vehicle and
caught the bus to Cape Town the following day, 2 July 2012. Seen in
perspective, the difference between the two versions
amounts to
whether any payments were made on 1 July 2012, whether Mr Mzwebantu
Kwankwa was present and whether the defendant caught
a bus to Cape
Town that day or the following day.
[58]
There are two pieces of objective or
documentary evidence in regard to the dispute concerning the events
of 1 July 2012. The first
is the folio notebook containing Mr Sanele
Tshongweni’s contemporaneous or semi-contemporaneous notes.
These indicate the
defendant’s delegates did return on 1 July
2012 and they were Messrs Mzwebantu and Thulani Kwankwa. The former
did not testify
and the latter agreed that he travelled with the
defendant to Engcobo that day but testified there was no visit to the
homestead.
As mentioned previously Mr Thulani Kwankwa was a poor
witness. The other piece of objective evidence is an extract from the
defendant’s
bank records which suggests he made a withdrawal of
R200.00 in Cape Town on 2 July 2012. This piece of evidence is
however not
dispositive since he could have left Engcobo on 2 July
2012 any time between 12 or 2pm which, if the bus journey was more or
less
11 hours, would have allowed him to make the relevant
transaction in Cape Town late on that same day.
[59]
Determining the events of Sunday 1 July
2012 question requires an evaluation of the evidence and the
probabilities. A key point
which weighs against the defendant’s
evidence that no further payments were made after 30 June 2012 are
the assertions in
his plea, in his amended plea, in statements of
agreed facts and in an affidavit, that R20 000.00 or ‘
about’
R20000.00 was paid in lobola. These statements were only withdrawn or
amended at the eleventh hour i.e. during argument. Even on
the
plaintiff’s version at most R12 500.00 was paid towards lobola
on 30 June 2012 so any balance had to have been paid later.
What is
more, the defendant’s account of how he returned plaintiff’s
car is contradictory and improbable. According
to him he and his
brother simply drove to Engcobo and left the car at the plaintiff’s
mother’s place of business in
town because they were so pressed
for time. However, he also testified that they caught the bus in time
because the plaintiff was
there (and presumably drove him to the bus
station). But it had been put to the plaintiff only that her vehicle
had been at her
mother’s place of business and
not
that she had been present or had driven the defendant and his brother
to the bus station. The plaintiff had testified earlier that
it would
be a substantial walk for her to get to town and collect her vehicle
and that this had not happened. Notwithstanding all
this earlier
evidence the defendant never made clear how the plaintiff obtained
her vehicle that day. Taking all this evidence
into account the
probabilities are that the defendant did in fact travel to the
plaintiff’s homestead on 1 July 2012 and
that this is how it
came about that she was able to drive him (and possibly Thulani
Kwankwa) to the bus stop. The defendant’s
insistence that he
never was at the homestead on 1 July 2012 is improbable but is
understandable since admitting that he and his
brother were there
offers support to the plaintiff’s version that his delegates
were there and made a further payment towards
the lobola price.
[60]
There remains the dispute as to whether the
defendant caught a bus to Cape Town on 1 July 2012, as he testified,
or returned to
eQonce that day only to return the following day to
return the plaintiff’s car and catch the bus. Having regard to
the evidence
as a whole I consider that the probabilities favour the
defendant’s version. Firstly, one piece of objective evidence,
the
plaintiff’s bank statement apparently showing a card
transaction in Cape Town on 2 July 2012, although not dispositive,
points
in the direction of him having left for Cape Town on the
Sunday. In this regard it was common cause that, unlike the
plaintiff,
the defendant was not on leave and had to get back to his
employment as soon as possible. Returning to eQonce on the Sunday
only
to drive back again on the Monday would have made little sense.
The plaintiff used this point to bolster his evidence that Mr
Mzwebantu
Kwankwa was not with him on Sunday 1 July 2012 thereby
casting doubt on the plaintiff’s case that Mzwebantu Kwankwa,
together
with Thulani Kwankwa, were at the plaintiff’s
homestead that day to pay the balance of fifty percent of the agreed
lobola
price. In my view, however, this does not follow. What
happened to Mr Mzwebantu Kwankwa is unclear and, in a sense, not
strictly
material. He was not called to testify and it is quite
possible that he simply made his own way back to Middeldrif.
[61]
At the conclusion of her evidence the
plaintiff was no longer insistent that the defendant could not have
been in Cape Town on 2
July, testifying that if he was in Cape Town
on that day she accepted that. I understood her evidence in this
regard to be an implied
admission that she could be mistaken that the
defendant caught the bus back to Cape Town on Monday, 2 July 2012. In
my view, on
the evidence as whole and on the probabilities, the
plaintiff’s memory failed her in that all the events described
took place
on the Sunday and not over two days. This does not
materially affect the issue of whether the balance of half of the
lobola price
was paid that day or not.
[62]
One further factor which bears mentioning
with regard to the events of Sunday, 1 July 2012, is the large sum of
money that the defendant
withdrew in East London that morning, a
total of R4000.00. This he ascribed to monies he needed for the
journey back to Cape Town
by bus but without providing any detail. It
is noteworthy however that on top of the initial R20 000.00
which the defendant
withdrew, this would amount to R24 000.00
withdrawn by him at the time of the lobola negotiations. Accepting
that a sum of
R14 500.00 for impregnation damages and lobola was paid
on 30 June 2012, the defendant would have had sufficient funds to pay
a
further R8000.00 on 1 July 2012, thereby paying half of an agreed
lobola price of ten cows
(R2000.00 plus
R12 500.00 plus R8000.00 totalling R22 500.00
),
and still have R1500.00 for travel purposes.
[63]
Applying the principles in
Stellenbosch
Farmers Winery
and
Tsambo
and having regard to the evidence as a
whole I consider that the plaintiff has succeeded in proving, on a
balance of probabilities,
that the lobola negotiations concluded in
an agreement that the total lobola price would be ten cows; further,
that half of this
amount i.e. five cows, including the
ubuso
bentombi
cow, was paid thereby
fulfilling the condition that upon payment of fifty percent of the
total lobola the plaintiff would be released,
or became available for
release, to the defendant’s family for marriage. The plaintiff
has proved furthermore to my satisfaction
that five cows (in fact the
monetary equivalent thereof) was duly paid.
Was the plaintiff
released to the defendant’s family, were the marriage
ceremonies celebrated and did the defendant consent
to the marriage?
[64]
This
brings me to the second leg of the plaintiff’s case viz proof
of her release and the marriage ceremonies and, given the
defendant’s
denial thereof, proof of his consent to the marriage. In LAWSA the
question of whether the marriage ceremonies
are essential elements of
the marriage contract is discussed.
[7]
The conclusion reached by the authors is that, important as these
ceremonies may be from a ceremonial and ritual point of view,
they
cannot be regarded as essential legal requirements. The authors
continue:
‘
The
absence of the ceremonies, if the essential requirements have been
met, does not affect the validity of the marriage –
although,
of course, they have probative significance in the sense that a prima
facie presumption could be drawn from them that
a valid marriage was
concluded and that all the essential legal requirements were
satisfied. Not all marriages take place with
full ceremonial; the
economic situation of the parties is no doubt an important factor’.
[65]
This approach was endorsed in
Tsambo
when the Court stated:
‘
[15]
When dealing with customary law, it should always be borne in mind
that it is a dynamic system of law.  In
Ngwenyama v Mayelane and
Another this Court stated as follows:
“
The
Recognition Act does not specify the requirements for the celebration
of a customary marriage. In this way, the legislature
purposefully
defers to the living customary law. Put differently, this requirement
is fulfilled when the customary law celebrations
are generally in
accordance with the customs applicable in those particular
circumstances. But once the three requirements have
been fulfilled, a
customary marriage, whether monogamous or polygamous, comes into
existence.”
…
[17]
The appellant’s contentions pertaining to the rituals observed
during the handing over of the bride
ceremony fail to take into
account that customary law is by its nature, a constantly evolving
system.  That customary law
has always evolved is evident from
the following observation made by Professor Bennett almost three
decades ago and approved in
many judgments:
“
In
contrast, customary law was always flexible and pragmatic. Strict
adherence to ritual formulae was never absolutely essential
in
close-knit, rural communities, where certainty was neither a
necessity nor a value…”
[18]
It is evident from the foregoing passage that strict compliance with
rituals has, in the past, been waived.
The authorities cited by the
respondent, mentioned earlier in the judgment, also attest to that.
Clearly, customs have never been
static. They develop and change
along with the society in which they are practised.  Given the
obligation imposed on the courts
to give effect to the principle of
living customary law, it follows ineluctably that the failure to
strictly comply with all rituals
and ceremonies that were
historically observed cannot invalidate a marriage that has otherwise
been negotiated, concluded or celebrated
in accordance with customary
law.’
[66]
I turn now to the evidence relating to the
remaining issues, the first of which is whether, lobola having been
negotiated, agreed
and fifty percent thereof paid, the bride was
released to the bridegroom’s family and whether the various
ceremonies which
can formalise a customary marriage and which denote
the acceptance of the bridegroom by the bride’s family and the
acceptance
of the bride by the bridegroom’s family, were
performed. It is necessary to review the evidence of both parties
regarding
this matter.
The plaintiff
[67]
As previously mentioned the plaintiff
testified that on 30 June 2012, although in a low-key fashion, the
defendant had come into
her family’s homestead and joined the
delegates in a lunch after the lobola negotiations had been
concluded. According to
her this had been her mother’s idea so
that her family would know that he was the son-in-law. Once the
balance of the fifty
percent of the lobola price was paid the
following day she was duly released by her family and was told this
by her mother. The
next step for her was going to the defendant’s
homestead so that the
utsiki
celebrations could be held. She did not go immediately because she
was waiting for the defendant who in turn was waiting for his
payday
so that he could buy the sheep, the slaughtering of a sheep for the
bride being a key part of the
utsiki
ceremony. She left in her car on 16 July 2012 from Engcobo with a Mrs
Mdlunya and a Mrs Sondlo, the former being a family member
and the
latter being a member of the community and close to her mother. With
them also was the plaintiff’s young daughter.
In eQonce they
contacted and picked up the defendant’s aunt, Ms Lulama Kwankwa
(‘Ms L Kwankwa’ or ‘Lulama’),
for the
necessary directions and then travelled together to the defendant’s
family homestead where the plaintiff was duly
welcomed. She had
brought with her the clothes necessary for the ceremony, having been
guided by Ms L Kwankwa. The defendant had
told her that there was a
further ceremony,
uphindindlela
,
and he had told her that to save costs the two ceremonies i.e.
utsiki
and
uphindindlela
should be held together. The latter ceremony or ritual involved her
bringing everything she needed for a kitchen i.e. cutlery,
crockery
etc. which items remain at the groom’s household for use when
she was there. Upon arrival at the defendant’s
homestead she
was told to remain in the vehicle until called and was eventually
called by the defendant’s mother, Mrs Funeka
Kwankwa (‘Ms F
Kwankwa’ or ‘the defendant’s mother’). She
was taken to a separate building and
told to undress and put on the
makoti
attire. These clothes are called ‘
amadaki’
and comprise a black doek, scarf, a long-sleeved shirt and on top, a
towel and blanket. The defendant’s mother helped dress
her in
those clothes. She was then taken to another house/rondavel and asked
to sit on a traditional mat and wait. She was then
‘
guided’
by older women in the defendant’s extended family. A sheep was
brought into the rondavel and she was introduced to the women
as a
bride of the amaTshawe. She was told that a sheep was to be
slaughtered and that she must confirm that she had seen the sheep.

The sheep was then taken to slaughter and various members of the
community guided her i.e. told her what she must do as a
makoti
,
such as obeying her husband and advising her that the marriage would
not be an easy journey. The defendant’s aunt, Mrs Nonceba

Kwankwa (‘Ms N Kwankwa’ or’ Nonceba’), played
a leading role in this aspect. When the sheep had been cooked
she was
brought a special piece by the defendant’s mother and she duly
ate some and was then told that the ancestors now
knew her.
[68]
The defendant was not present during this
ceremony, having returned to Cape Town to work two weeks previously.
According to the
plaintiff however, he phoned his mother that night
and when told that the plaintiff’s new name was Nomtha told his
mother
he did not like this name and he wanted it changed to
Phumzile. The plaintiff heard the defendant’s mother’s
side of
the conversation as she sat nearby. The next day the
community was told that her name had been changed to Phumzile. It was
the
makoti
,
the married women, who told her of her new name. After the
utsiki
ceremony i.e. on the preceding day, the plaintiff had been told to
start performing various domestic tasks which she duly did and
also
went into town, eQonce, to buy groceries whereafter she prepared
dinner for those present. She then washed and swept up the
hut or
rondavel which was allocated to her. She performed all these
household routines, serving and cooking for the family as a
new
bride, for the next five days under the supervision of Mrs Funeka
Kwankwa until she left the homestead on the Friday going
back first
to Engcobo and then to Cape Town. In Engcobo she had a photograph
taken of herself in her traditional
makoti
clothes. This photograph is Exhibit C, and it was not disputed on
behalf of the defendant. As a new bride the plaintiff dressed
in that
attire for three months, even back home in Cape Town. When she
arrived back in Cape Town the defendant had been excited
to see her
dressed in these traditional clothes. At that stage he was employed
at Parliament and he invited her to come and see
him at work where he
introduced her to his secretary, a UDM employee, and to an IFP member
as ‘
Mrs Kwankwa’
.
[69]
In cross-examination the plaintiff’s
version of this ceremony and its aftermath was only superficially
dealt with, the defendant’s
version being simply that no such
ceremony ever took place although it was conceded that the plaintiff
had met Ms L Kwankwa in
eQonce on the day in question. It was put to
her that Ms L Kwankwa would testify she was only contacted by the
plaintiff for directions
and never travelled with her in her car to
the defendant’s homestead. It was further put that at the
homestead the plaintiff
had been told to turn around and go back home
with all the goods she had come with. It was also put to her she had
arrived with
a sheep. This latter proposition was met with amused
disbelief on the part of the plaintiff who asked where she would have
put
a sheep in her car at which point it was then put to her that she
had been towing a trailer. She met this with the same reaction,

stating there was not even a tow bar on her vehicle.
Messrs Phumzile
Tshongweni and Sanele Tshongweni
[70]
Mr Phumzile Tshongweni testified that he
regarded the plaintiff as the defendant’s bride inter alia
because she underwent
the
utsiki
ceremony but, as he conceded, he was not present. In his view it was
not necessary for the groom to be present at the
utsiki
ceremony. He also agreed that the defendant was never formally
introduced to the
amaqwabati
(elders) of the Tshongweni family.
[71]
Mr Sanele Tshongweni testified that after
receipt of the balance of fifty percent of the lobola price he
reported this to his family
and they agreed that the plaintiff could
be released as a bride to the defendant’s family. Following
that there was a light
lunch and present thereat were the two Kwankwa
family delegates and the defendant who also came into the homestead.
The witness
testified that the plaintiff was duly released by the
family. He himself left Engcobo that day after the negotiations and
had only
heard that his sister had gone through with the
utsiki
celebrations, travelling to eQonce on
16 July 2012.
Mrs Mamu Nokwanda
Mdlunya
[72]
Mrs Mdlunya was a 71-year-old woman from
Engcobo who testified she had known the plaintiff from when she was a
baby. She was a sister
of the plaintiffs’ grandmother. She
testified that she took the plaintiff to her in-laws near eQonce when
the
uphindindlela
and
utsiki
ceremonies were held together. She and a Mrs Sondlo, also known as Ma
Mandungwani, since deceased, travelled with the plaintiff
and her
child in the plaintiff’s car. They took with them all the
clothes which the plaintiff had to change into as well
as cups, pots,
pans and other items of kitchen equipment and it was a big load. They
first went to eQonce where they met a woman,
whose name she does not
remember, in order to get directions. This woman (it was common cause
that it was Ms L Kwankwa) climbed
into the car and accompanied them,
directing them to the homestead. There they were met by a man and the
defendant’s mother
who was the owner of the house but Mrs
Mdlunya was not able to remember their names. Again it was common
cause the latter was Mrs
Funeka Kwankwa. Mrs Mdlunya testified,
however, that she had met Mrs Funeka Kwankwa previously in Engcobo at
the plaintiff’s
homestead when the latter was accompanied by a
mentally ill child and the purpose of their visit was to consult a
healer from Swaziland,
evidence later confirmed in part by Mrs Funeka
Kwankwa.
[73]
At the Kwankwa homestead the plaintiff had
remained behind in the car for an interval and then was allowed in
and dressed in traditional
attire. A sheep was brought out for
slaughter and after it was cooked a piece of meat was given to the
plaintiff to taste. This
was a part of the shoulder cut and is called
umshwamo
.
Mrs Mdlunya testified that this signified that the bride was now a
married woman and as such was welcomed at the bridegroom’s

homestead. After the ceremony the plaintiff had taken her and Mrs
Sondlo back to eQonce in her car together with Ms L Kwankwa.
The two
women were left there and made their own way back to Engcobo taking
with them an uncooked leg of lamb from the slaughtered
sheep.
According to her its purpose was to show the plaintiff’s family
back home that they had not gone ‘
just
around the corner’
. They had
arrived back home late that day and advised the plaintiff’s
mother that the
utsiki
ceremony had been completed.
[74]
In cross-examination Mrs Mdlunya explained
that the
uphindindlela
ceremony normally involves the unmarried bride staying with her
in-laws for a couple of months and then going back to her homestead.

Thereafter, the family buys pots and pans, bakes bread, and gets tea,
sugar etc. which is all put in a basket and the bride returns
to her
in-laws. In the present instance this ceremony and the
utsiki
ceremony had been combined. She herself was married in 1967 and had
gone through these ceremonies. As far as she could recall the

plaintiff had received the special piece of meat,
umshwamo
,
from a male member of the Kwankwa clan. She did not recall the
plaintiff being guided or receiving her new name. The defendant’s

version that no ceremony had ever taken place that day was roundly
rejected by the witness. When it was put to her on behalf of
the
defendant that it was bizarre that the plaintiff had entered the
homestead that day but left again to drive her and Mrs Sondlo
back to
eQonce, the witness explained that this was so because no one else
could drive the car to eQonce and back. In answer to
the Courts’
question she advised that she had attended five or six
uphindindlela
and
utsiki
ceremonies.
[75]
Earlier in her evidence in chief Mrs
Mdlunya testified that all the goods which the plaintiff had brought
along had been unloaded
from the car at the Kwankwa homestead and
left in a room/rondavel. She also stated in chief that it was not
necessary for the groom
to be present during the
utsiki
ceremony and that it was the in-laws who she supplied and paid for
the sheep.
[76]
Mrs Mdlunya impressed as a good witness who
gave clear evidence despite her advanced age. She stood up to
cross-examination without
any difficulty.
The defendant’s
case
[77]
The defendant’s case in regard
to the
utsiki
and
uphindindlela
ceremonies involves, as I have already indicated, a denial that they
ever took place. The defendant’s evidence, insofar as
it goes,
is relevant and was supplemented by that of Mrs Nonceba Kwankwa and
Ms Lulama Kwankwa.
Ms Lulama Kwankwa
[78]
Ms L Kwankwa testified that the defendant
was her nephew i.e. her sister’s child and that she had known
the plaintiff since
she was introduced to her by the defendant in
Cape Town in 2011. The next occasion she saw her was in July 2012
when the plaintiff
arrived in eQonce wanting directions to the
defendants’ homestead which is also her homestead. She had
received a phone call
from the plaintiff that day and arranged to
meet her at her workplace. Almost her first question to the plaintiff
was why she had
so much luggage and she described the plaintiff’s
vehicle as looking as if it was about to cross over Beitbridge to a
foreign
country. The plaintiff’s response had been that this
was because she was on her holiday that was almost ending. The
plaintiff
had also explained that she was going to do ‘
this
thing’
at the defendant’s
homestead and in response thereto the witness asked where the
defendant was. She had also asked the plaintiff
what was this ‘
thing’
but the plaintiff had never answered. The witness then decided to
give her the necessary directions and said that she was going
to
follow her when she had finished work. She gave directions to the
plaintiff to the Kwankwa homestead and after work went to
the taxi
rank and took a taxi to her village because she had promised to go
there.
[79]
When she got there she noticed the
plaintiff’s vehicle was already inside the homestead but all
the luggage was still in the
car. She met with her sisters, Funeka
(the defendant’s mother) and Nonceba and her brother,
Mzwebantu. The visitors were
also there. She was told by her siblings
that the plaintiff was bringing their daughter (her child) to them
and she then asked
Funeka whether she had spoken to her son, the
defendant, and had he explained this to her. Funeka then said that
the defendant
had not told her that there were people coming to the
house and that she was not going to let this happen because she had
heard
nothing from her son. Pressed to explain, the witness stated
that this exchange took place after the visitors had explained that

they were bringing the plaintiff to come and do the
ukwenda
/acceptance
ceremony. She herself could not explain the ceremony however because
she had never gone to one and had never been married.
She had told
Funeka that she must lead her siblings in this response as she was
the mother of the defendant. The witness then regarded
her job as
done and her promise to come to the homestead as kept and so she left
and went back to where she stayed which is a distance
of about 75km
away i.e. at Keiskammahoek. She left sometime after 5pm. Ms L Kwankwa
denied that she ever accompanied the plaintiff
in her vehicle and in
so doing directing her to eMnqaba village. She denied that the
plaintiff had earlier called her and asked
her what she was supposed
to bring with her to the Kwankwa homestead. She denied that
uphindindlela
or
utsiki
ceremonies took place. After a few days when she again spoke to
Funeka the latter had told her that nothing further had happened

after she left.
[80]
During lengthy cross-examination Ms L
Kwanka said that she was unable to describe what the luggage in the
plaintiff’s vehicle
comprised and insisted that the plaintiff
had just said she was going to do ‘
this
thing’
at the homestead without
explaining what ‘
this thing’
was. She had been unable to identify the people in the car when she
first saw them but according to the voices there were four
of them in
total.  It was
not
her evidence that the plaintiff also brought a sheep in the car. The
journey from her work to the homestead lasts approximately
an hour.
It starts off on a tar road then branches off onto a gravel road
which one has to go along and pass three villages until
you reach her
village. Asked how someone who had not been to her village would find
it, her answer was that she gave directions
to the plaintiff who
never called back to say that she was lost. She denied also that she
got a lift back to eQonce with the plaintiff
that evening. Ms L
Kwankwa eventually conceded that at the homestead she was told that
the visitors had brought the plaintiff there
so that she could get
married traditionally i.e. for
ukwenda
.
In the same breath however she stated that she didn’t know what
ukwenda
was and that her siblings did not tell her.  When the Court
asked her about the initial lack of curiosity as to the purpose
of
the plaintiff’s mission to the defendant’s homestead, her
answer was that her siblings were older than her and that
was their
concern. She testified that the plaintiff had been pulling a trailer
as well, evidence which had not emerged in chief.
[81]
Ms Kwankwa was an extremely cagey witness
with a distinct tendency to give evasive answers. She did not create
a good impression
as a witness and her evidence contained many
contradictions and improbabilities. She was, in addition, very vague
concerning the
details of much of her evidence, such as the
directions to the homestead.
Mrs Funeka Kwankwa
[82]
Mrs Funeka Kwankwa is the mother of the
defendant who has lived at James Mama village in eMnqaba
location/village at Debbenek, Middledrif
which is near eQonce. It
takes an hour to get from her home to eQonce. She testified that
after turning off the tar road there
are four villages which must be
passed before getting to her village which is the fifth. She knows
the plaintiff, who had a child
with her son and who had been involved
in a romantic relationship with him. She herself is married in a
Christian marriage and
she does not believe in the ancestors. She
first met the plaintiff in 2011 when her son brought her to Cape Town
to see his house
in Montclair. She next saw the plaintiff at a church
service in Engcobo in 2011 and then on a third occasion when the
plaintiff
arrived unannounced at her homestead in eMnqaba village on
16 July 2012. When the witness heard and saw the car she and her two

siblings first gathered to have a discussion for about ten minutes.
Her siblings, Nonceba and Mzwebantu, then sent her to the visitors

where she found that the driver was the plaintiff and who was
accompanied by her daughter and two women together with much luggage

in the car. Mrs Kwankwa greeted them and called them inside the house
where all seven persons met. She asked the visitors the reason
for
their visit and was ‘
shocked’
when the plaintiff said she had come to become a
makoti
because her vacation was ending and she had been sent by her mother.
The witness had been aware that there had been lobola negotiations

some weeks previously but, as a woman, had not been told what the
outcome was. She told the plaintiff that it was not going to
happen
in her house and was backed up in this by her siblings. Lulama then
arrived and together with her siblings they had another
discussion in
which Lulama agreed with the decision to send the plaintiff away.
Lulama lived at Keiskammahoek and had asked to
be excused and left.
The remaining three siblings went to the visitors to ‘
excuse’
them and they duly left. Mrs Kwankwa denied that any marriage
ceremony took place, that she dressed the plaintiff in her
makoti
attire, that a sheep was slaughtered, that the plaintiff was given a
new name and then sent to the elders to be guided by them
in the
process known as
ukuyalwa
.
[83]
Under cross-examination the witness
distanced herself from the lobola negotiations stating that these
were led by her uncle Mr Batini
Kwankwa. She stated that it was
incorrect that the outcome of the lobola negotiations would be
reported to her since this was an
issue only for men. On 16 July 2012
when they first saw the plaintiff’s car the first thing the
siblings did was to hold
a discussion. This they did even though they
did not yet know the reason for the plaintiff’s visit. Asked
what was discussed
she replied that it was to caucus to ask the
visitors why they were there – even though they did not know
who they were.
When asked to explain the logic of this answer her
reply was ‘
that is how we do
things’
.
[84]
In cross-examination Mrs Kwankwa also said
that the plaintiff was towing a trailer. She could not identify the
luggage the plaintiff
had which, she said, was in big black plastic
bags. Cross-examined over differences between her and Lulama in the
directions to
her village, she said that Lulama could be mistaken
because she stays at Keiskammahoek. When it was put to her that it
would be
difficult for a first time visitor to get to her village
based only on verbal directions, her answer was that one could
enquire
at the police station. She stated also that her son, the
defendant, was ‘
famous’
in the area in which he lives and everyone would know where he lives.
Asked if the plaintiff had brought a sheep in the car or
in a trailer
she stated she did not know. Late in her evidence she testified that
Mzwebantu, her brother, had come to her the day
after the lobola
negotiations and told her that they were ‘
limping’
i.e. not well equipped moneywise. She denied that she was
contradicting her earlier evidence that she had been given no report

on the outcome of the negotiations. Significantly, in regard to Mrs
Mdlunya’s evidence of knowing her from before, she confirmed

that she had gone to Engcobo the previous year to attend a funeral
and had been accompanied by her son who indeed suffered from
a mental
illness. In answer to the Court’s question the witness stated
that she had not telephoned the defendant when the
plaintiff arrived
unannounced for the marriage ceremonies.
[85]
At this point in her evidence the witness
had a remarkable outburst. Up to this stage Mrs Kwankwa had been
quiet and self-possessed
but she suddenly lost control and,
unprompted, began loudly wailing about the injustice of the case
against her son who had suffered
so much and whose money was being
stolen by the plaintiff. This went on for some time until the witness
calmed down and apologised.
An adjournment was necessary for the
witness to compose herself. The outburst was, however, revealing in
indicating the depths
of the witness’ antipathy for the
plaintiff and how fiercely protective she was of her son, the
defendant. After the witness
resumed her evidence she answered
further questions from the Court. She testified that her siblings
Nonceba and Mzwebantu had passed
away in the meantime and that the
plaintiff had left with her companions for Engcobo sometime after 6pm
on 16 July 2012. Although
she had not spoken to her son that day, her
brother had phoned him on the same day after the plaintiff had left.
Evaluation
[86]
As mentioned, Mrs Kwankwa initially
presented as a quiet and subdued person but this impression was
belied by her outburst. She
too was a guarded witness and in many
instances answers had to be prised out of her. Her evidence also
contained many improbabilities
and contradictions. A prime example of
such an improbability was the caucus with her brother and sister even
before ascertaining
who the visitors were and the purpose of their
visit. Another is that she did not immediately contact her son, nor
even on that
same day, to find out what was going on. An area of
confusion and contradiction was the question of what the directions
to her
house were and how a first time visitor would get there
unaided without getting lost. Her directions differed from those
given
by Ms L Kwankwa who came from the same homestead. Her
evidence was contradictory in other respects as well such as that
her
son was famous and everyone in the district would know how to reach
her homestead. The evidence was that her son’s public
role and
profile had been very limited in 2012 and Mrs Kwankwa was attributing
his later prominence to an earlier time. It is clear
is that Mrs
Kwankwa was extremely proud and protective of her son, the defendant,
and harboured great feelings of antipathy towards
the plaintiff.
Prince Zolile
Burns-Ncamashe
[87]
In his expert evidence Prince
Burns-Ncamashe testified that after the lobola negotiations are
concluded a sheep is slaughtered at
the suitor’s homestead. The
bride arrives with a group assisting her but the gate is closed. She
must offer gifts to have
the gates opened. There is a similar
ceremony for the welcoming of the bridegroom who arrives at the
bride’s homestead and
must be dressed formally and after being
admitted, sleeps over. Reverting to the ceremony involving the
bridegroom, one sacred
element thereof is
ukukisa
amasa
where part of the meat of the
slaughtered sheep, a special cut from the leg, is put in sour milk
and then handed to the bride on
an olive branch. The bride has to eat
or at least taste that piece of meat. Another name for this ceremony
is
utsiki
which is something usually done by those who are not as economically
well off. It involves the same ceremony but not quite as elaborate.

According to the witness the bride has to be there when the
bridegroom enters her household and vice versa because this is part

of the process of building affinity between the families. The bride
and the bridegroom are respectively told by the elders how
to conduct
themselves as the new wife and husband. The witness seemed to
indicate that the bridegroom would be present when the
bride went
through her welcoming ceremony. The
utsiki
ceremony is the last ritual and seals the solemnity of the marriage.
Asked about the
uphindindlela
ceremony the witness explained that this is when the bride comes to
the homestead of the suitor and is a maternal ritual to be
observed.
The witness testified further that he had not been apprised of the
details of the alleged marriage the present matter
but was asked
merely to give general evidence about customary law and traditions as
they relate to customary marriage. He accepted
that in evaluating
whether a customary marriage had taken place the intention of the
parties was critical.
[88]
Prince Burns-Ncamashe impressed as an
intelligent and sophisticated man who gave erudite and clear
evidence. He is obviously someone
who is knowledgeable about, and
closely wedded to, the system of traditional rituals, rights and
customs and a strong proponent
thereof. He appeared to be impartial
and did not try to push one side’s case above the other and I
have no hesitation in
accepting his evidence in broad terms. However,
his evidence was general in nature since he had not acquainted
himself with the
facts of the present matter and nor did he express
an opinion on the validity of the customary marriage allegedly
contracted by
the parties. This detracted in no small measure from
the weight of his evidence. Another reservation I have regarding
Prince Burns-Ncamashe’s
evidence is that he is clearly a purist
as far as traditional customs and rituals are concerned and several
of his statements regarding
the necessary elements of a customary
marriage were somewhat dogmatic and lacking an appreciation of the
flexibility with which
the Courts have decreed customary law must be
applied. He thus cannot be considered as the final authority on all
points of customary
law.
The defendant –
Mr Nqabayomzi Kwankwa
[89]
The defendant’s case was that no
utsiki
or
uphindindlela
ceremonies
had taken place on 16 July 2012. However, at that time he was in Cape
Town working and so his evidence on that what place
took place that
day is almost wholly hearsay. In chief, his evidence was that
sometime between 1 and 16 July 2012 he had a telephone
conversation
with Mr Phumzile Tshongweni who told him he was upset because the
plaintiff and her mother were undermining his authority
as head of
the household and lead negotiator by attempting to hand the plaintiff
over to the bridegroom’s family. It will
be recalled that Mr
Phumzile Tshongweni had denied any such communication. The defendant
also testified that he received a phone
call from the plaintiff a day
after 16 July 2012 telling him that she and her mother had decided
that she would be handed over
to his family. He responded by telling
the plaintiff that it was not her decision to take nor was it his
place to enter into discussions
about such matters. She had told him
that it was important and urgent that she do so because her leave was
coming to an end and
her mother wanted to ensure that the handing
over of the bride process was completed by the time she (the
plaintiff) went back
to Cape Town. He had then reminded the plaintiff
that the lobola negotiations were not concluded, that she had not
been released
by her family and that the matter would have to
referred back to the elders. The plaintiff had not been happy with
his response
and that was the end of the conversation. It was put to
the defendant that the plaintiff’s evidence had been that they
had
both decided that she should do the
uphindindlela
and
utsiki
ceremonies at the same time. He denied this stating that what they
had discussed were that they would come back to the Ciskei in

December 2012 to finalise outstanding issues.
[90]
According to the defendant what happened
next was that on 16 July 2012 whilst at work he had received a phone
call from Mrs Nonceba
Kwankwa saying that the plaintiff had arrived
at their homestead and that he must speak to Mzwebantu. He then told
his uncle that
he had not been aware that the plaintiff was coming to
hand herself over but told him of his two prior telephone
conversations
with her. His uncle said that this could not be allowed
and the defendant’s (somewhat indifferent) response had been
that
it was up to the elders to decide. Mzwebantu had asked him to
repeat all this to Nonceba Kwankwa which he had done and he then
continued with his work. Later that evening he had phoned Nonceba to
find out what had happened and she had told him that no handover

process had taken place and that the visitors has been sent back to
where they came from, including the plaintiff.
[91]
A great difficulty with much of the
defendant’s evidence regarding telephonic discussions he had
with the plaintiff regarding
her intention to hand herself over to
his family and the events of 16 July 2012, is that none of it was
foreshadowed in his counsel’s
cross-examination of the
plaintiff nor substantiated by any of his witnesses. The plaintiff
accordingly had no opportunity to deal
with these allegations
including that there had been phone calls with the defendant where
she had insisted that she was going to
go ahead with the marriage
ceremonies notwithstanding his opposition thereto. Nor was another
important element of his evidence
ever put to her, namely that they
would return to the Ciskei in December to resume lobola negotiations
and the like.
[92]
Under cross-examination the defendant gave
vague evidence about the plaintiff’s car not having a tow-bar
but of an attachment
that could be inserted so that it could tow a
trailer. This evidence was likewise never put to the plaintiff. He
testified that
he and the plaintiff had not taken any trailer up to
the Ciskei in June 2012 and ventured no evidence as to where she
would have
obtained a trailer. He denied that he had known before 16
July 2012 that the marriage ceremonies at his homestead would go
ahead
in his absence. He denied calling his mother for an update that
evening and expressing his dislike for the name Nomtha. At a late

stage in his evidence the defendant testified that there had been a
huge argument between him and the plaintiff concerning the
events of
16 July 2012. He testified that they had fought about it a great deal
because he ‘
hated’
the fact that the plaintiff had attempted to hand herself over to his
family without his knowledge or consent. Again this evidence
had not
been put to the plaintiff. He denied that upon the plaintiff’s
return to Cape Town he had asked her to visit him
at work, stating
that they were not even on speaking terms then.
[93]
According to the defendant upon the
plaintiff’s return to Cape Town they bickered for a month or
two over this issue in the
same way as their families were fighting
over the issue. The couple were together just for a short while.
According to him the
plaintiff’s family had been very upset
that the plaintiff had been sent back on 16 July 2012 from his
homestead with her
delegation. For his family’s part they felt
undermined by the fact that she had been sent to them without ‘
due
process’
being followed. The
defendant argued that why the plaintiff did not call him on 16 July
2012 or the following days is because she
knew she did not have his
permission to go to the family’s homestead. Again none of this
evidence was put to the plaintiff
in cross-examination for her
comment even where it directly contradicted her evidence. In answer
to the Court’s questions,
the defendant confirmed that the
plaintiff was wearing her
makoti
clothes
when she came back from the Eastern Cape, but said this was only for
a day or two. He testified further that the couple
were only together
till the end of 2012.
Discussion
[94]
Before analysing the evidence of the
parties and witnesses regarding the marriage ceremonies it is
necessary to evaluate them as
witnesses. The plaintiff was an
outstanding witness. She gave her evidence clearly and was untroubled
by cross-examination save
in regard to her evidence as to the exact
day when the defendant caught the bus back to Cape Town. Where
appropriate the plaintiff
made concessions, largely based on her not
having personally witnessed certain events. Importantly, she gave
detailed evidence
of the
utsiki
and
uphindindlela
ceremonies. Her evidence was no mere broad assertion that she had
gone through these ceremonies at the defendant’s homestead
but
dealt in considerable detail with her meeting Ms L Kwankwa, how she
was dressed in
makoti
attire, the eating of the
umshwamo
,
being guided by the elders, the new name she was given, staying on in
the homestead for five days doing household chores at the
behest of
the defendant’s mother and many other topics. As I have
mentioned, much of the evidence from the defendant purporting
to
contradict her account was not put to her.
[95]
Mrs Mdlunya impressed as a sincere and
credible witness. She did not have the same recollection of detail
that the plaintiff had
but this was understandable since she was
there at the defendant’s homestead for only a few hours.
Nonetheless, her evidence
also contained some telling detail, namely,
that she and her companion, Mrs Sondlo, had left bearing a leg of the
sheep given to
them by the defendant’s family and which also
served as proof that they not simply taken the plaintiff ‘
around
the corner’
as she colourfully
put it. Mrs Mdlunya’s evidence was not dented at all in
cross-examination.
[96]
As previously discussed the defendant’s
first witness, his aunt Mrs Lulama Kwankwa, created a very poor
impression as a witness.
She was both cagey and evasive in her
answers and her overdramatised evidence about the plaintiff’s
car looking as if it
was about to cross Beitbridge i.e. so full of
luggage, appeared, even in chief, to be contrived and
over-dramatized. Over and above
this her evidence was replete with
contradictions and improbabilities. Her testimony amounted to her
being at one and the same
time extremely curious as to the reason for
the plaintiff’s proposed visit to the family homestead but at
the same time not
pressing the plaintiff as to what ‘
this
thing’
was that she had come to
do. Similarly, her evidence that she ‘
promised’
to go to the defendant’s homestead makes no sense. This
purported to be a promise to the plaintiff to whom, on her own
evidence,
she owed no such obligation. Having decided that she would
go to the homestead it is improbable that Ms L Kwankwa would do so
under
her own steam i.e. an hour’s journey by taxi when by
leaving work an hour earlier she could have gone with the plaintiff
in her car and at the same time given her directions to the far-flung
eMnqaba village. Further improbability lies in her arriving
at the
homestead and only then being apprised that the plaintiff was there
unannounced and uninvited to conclude the marriage ceremonies.
Then,
having satisfied herself that her sister, Funeka, would not allow
this she turns around and makes her own way back to Keiskammahoek

75km away when it would appear she could have had the benefit of a
lift all the way to eQonce with the plaintiff. It is very difficult

to escape the impression that Ms L Kwankwa was
endeavouring, through such evidence, to distance herself from having
lent any assistance to the plaintiff in preparing for and concluding
the wedding ceremonies.
[97]
As previously discussed Mrs Funeka Kwankwa
initially created a better impression when she presented as a quiet
and almost detached
witness, but her subsequent outburst strongly
suggests that this was merely a guise and that in truth she was
deeply invested in
the defendant’s case, fiercely protective of
him and very hostile towards the plaintiff. She too experienced
considerable
problems with contradictions and improbabilities in her
evidence. She could not explain why she and her siblings would caucus
for
some time before approaching the plaintiff when she first arrived
at the homestead. Nor could she give an adequate explanation as
to
why she did not do the obvious thing and immediately phone her son in
Cape Town to find out what was going on. Later evidence
from the
defendant that he had spoken at the time to her brother, Mzwebantu,
and to Nonceba, was nowhere to be found in her evidence
when one
would expect that she would obviously have been made aware of this at
the time. Mrs Kwankwa also ran into considerable
difficulties
concerning the exact directions to her homestead. What became clear
was that a first-time visitor to her homestead
would struggle to find
it unaided and that in 2012 her son’s political or public
profile was certainly not such that ‘
everyone’
in the district would know where his homestead was and thus could
guide first-time visitors to it.
[98]
The defendant is clearly an intelligent and
highly articulate person, as borne out by his post as the
spokesperson for the political
party of which he is a leading member.
He gave his evidence in chief in a polished and confident manner,
although much less so
in cross-examination, and was never short for
words when in comfortable territory. A major difficulty I have with
his evidence
was that many crucial aspects involving the plaintiff
were never put to her. Quite apart from this shortcoming the
plaintiff’s
evidence threw up many contradictions and
improbabilities. A further serious difficulty with the defendant’s
evidence, one
which was not simply cured by the last minute amendment
of his plea and his retraction of agreed facts, was his clinging
steadfastly
to the case that the lobola negotiations has been
successfully concluded and that he had paid R20 000.00 in part
payment of the
lobola price. I find the defendant’s reason and
explanation for clinging to this case unsatisfactory and
unconvincing. What
is more, this version was deposed to him under
oath in the Rule 43 proceedings. Someone as intelligent, self-assured
and articulate
as the defendant is unlikely to have continuously
asserted a version of events to which he could not personally
testify, and furthermore
deposed to this version, when in reality, as
far as he was concerned, the lobola negotiations had never reached
conclusion and
he had no idea as to what was paid as part payment
towards the lobola price.
[99]
When the evidence is looked at as a whole
the plaintiff presented a strong case that the rituals or ceremonies
traditionally associated
with a customary marriage were duly observed
by both families. She gave detailed and credible evidence that she
had been released
by her family and had then travelled to the
defendant’s homestead where, over a period of five days, all
the necessary rituals
were observed. Her evidence was supported
directly by that of Mrs Mdlunya and indirectly by Messrs Phumzile and
Sanele Tshongweni
whose evidence was unequivocal that they regarded
the plaintiff as the defendant’s bride. Against this there is
the defendant’s
version that no such ceremonies were completed.
However the defendant was not present at his home village over the
period in question,
it being common cause that he was in Cape Town.
His case relied on the evidence of his mother, Mrs Funeka Kwankwa and
his aunt,
Ms Lulama Kwankwa. I have already indicated that both these
witnesses were far from satisfactory, in particular Ms Lulama
Kwankwa,
who was an evasive and cagey in her evidence. Ms L Kwankwa
had the difficult task of credibly explaining her interaction with
the
plaintiff in eQonce and her presence at the defendant’s
homestead, a feat which in my view she did not accomplish. Similarly,

the defendant’s mother’s evidence was beset with
difficulties and improbabilities.
[100]
Key to an assessment of the opposing
parties’ versions is an evaluation of the probabilities. On the
defendant’s version
the plaintiff unilaterally decided that,
uninvited and unheralded, she would drive to the defendant’s
homestead and insist
on going through with the marriage rituals even
though the lobola negotiations were at an inconclusive stage and in
the face of
the defendant’s strong opposition. On the
defendant’s version she would moreover have gone to the lengths
of buying
all the equipment necessary for the
uphindindlela
ceremony and taken two members of her community or her family and her
child 200 or 300km to the defendant’s village in the
hope of
forcing her plan through. To my mind this is a most improbable
scenario which could or would have been brought to a grinding
halt
when the defendant’s mother or an elder simply telephoned the
defendant in Cape Town to ascertain whether all this was
with his
knowledge and consent. Apparently recognising this, the defendant
testified that in the days preceding 16 July 2012 there
had been
telephone conversations between him and the plaintiff in which she
evinced her intention of pursuing this plan and in
which he expressed
his strong disagreement. The difficulty is that none of this evidence
was put to the plaintiff when it should
have been one of the
cornerstones of her cross-examination.
[101]
In my view it is far more likely that the
plaintiff proceeded to the defendant’s homestead with the
knowledge and consent
of not only the defendant but the defendant’s
family because, as she testified, the lobola negotiations were
successfully
concluded and she and the defendant had agreed that they
would compress the two traditional wedding ceremonies into one in
order
to expedite the customary marriage. The customary marriage
itself, according to her testimony, was the result of the fact that
both wished to get married but did not have the money to indulge in a
full ‘
white wedding’
.
They therefore agreed to be married by customary rites first and
thereafter save for the full white wedding. The compression of
the
ceremonies and the short period over which the entire lobola
negotiations and marriage ceremonies were conducted was done because

the parties were resident and working in Cape Town. The plaintiff was
able to take leave for several weeks but for work reasons
the
defendant could only spare two or three days. It was for this reason
that he was not able to be present but must have consented
to the
welcoming of the bride ceremony etc taking place in his absence.
Apart from the plaintiff’s version making complete
sense, there
are telling details such as the phone call that evening from the
defendant from his mother to find out how things
had gone and his
insistence that her new name be changed from Nomtha to Phumzile. In
this same regard it is improbable, if not
farfetched, to imagine that
the plaintiff would go to a photographer in Engcobo and have herself
photographed in
makoti
dress with the intention of one day using it in legal proceedings
where she would seek to enforce a non-existent customary marriage
to
the defendant.
[102]
The aftermath of the events of late June
and early July 2012 are also telling. When the plaintiff testified,
little evidence was
led from her concerning her and the defendant’s
life when she returned to Cape Town after the marriage ceremony.
There was
no indication from her that her marriage or relationship
with the defendant was all but over. The only detail she did give,
once
again telling, was of how she wore her
makoti
attire for a considerable time and of
being introduced by the defendant as Mrs Kwankwa. An entirely
different picture emerged when
the defendant testified. According to
him the plaintiff’s unsuccessful attempt to force through the
marriage ceremonies unilaterally
became a huge bone of contention
between them and their respective families and they bickered and
quarrelled from then on and were
only together until the end of 2012.
Yet again, however, this version of events was not put to the
plaintiff when she was cross-examined.
Moreover, the defendant’s
Rule 43 affidavit was put to him and in particular paragraph 5. It
follows immediately after the
defendant’s statement under oath
that he made part payment of the lobola in the amount of R20 000.00
but that he had not
paid seventy percent thereof, a condition
precedent to taking further steps and attending to other necessary
customary marriage
formalities. It reads:
‘
Subsequent
to part payment of the lobola the applicant and I experienced
irreconcilable differences in our relationship. The differences
that
we experienced in our relationship, which culminated to the ultimate
break down of the relationship,
were
solely caused by the applicant’s repulsive and indifferent
attitude towards my other children and my family’
.
[my underlining]
[103]
Inexplicably no mention is made of the
plaintiff’s alleged unilateral attempt to force through the
marriage ceremonies as
the immediate cause of the breakdown. The
affidavit continues:
‘
Our
relationship disintegrated and ended before the finalisation of the
payment of the lobola and before the commencement of other

formalities which are essential …
7.
In
January 2015
when it became
clear that the differences we experienced in our relationship would
not be reconcilable I moved out of my house,
which until then, I
shared with the applicant and my daughter …’
[my
underlining]
[104]
This version is wholly at odds with the
defendant’s viva voce evidence that the parties were only
together till the end of
2012. Confronted with this contradictory
material during his evidence the defendant’s answer was that he
had moved out of
the house at the end of 2012 but had only formally
(whatever that means) moved out in 2015. In my view this latter
evidence on
the part of the plaintiff was yet a further indication of
the defendant’s habit of adjusting his case and his evidence to

suit the exigencies of the situation in which he found himself. The
best example of this tendency lies in the defendant’s

abandonment of his earlier version that lobola negotiations were
concluded and he paid R20 000.00 in part payment but this did
not
reach the condition precedent level of seventy percent. Of this
seventy percent condition precedent not a word came from the

defendant in evidence which leads me to conclude that this was a
fabrication, having no basis in fact or in custom. Also left
unexplained was why the defendant and the plaintiff would remain
living together as husband and wife for another two and a half
years
with the lobola negotiations half concluded. It is noteworthy
furthermore that notwithstanding the payment by the defendant
of a
sum somewhere between R12 500.00 and R20 000.00, and a
relationship which he alleged broke down in July 2012, there
was no
evidence of any attempt on the defendant’s part to recover
these monies.
[105]
On behalf of the defendant it was contended
that the plaintiff’s case should be rejected in toto, firstly
on the basis that
the lobola negotiations had never been concluded.
Counsel’s argument in this regard was based largely on what I
consider
were minor discrepancies in the factual accounts by Messrs
Phumzile and Sanele Tshongweni. The argument failed to grapple with
the probabilities and took, in my judgment, a myopic rather than a
holistic view of the evidence. In this regard, during argument
the
defendant’s counsel was invited on several occasions to make
submissions on the probabilities in respect of the conflicting

factual versions put up the parties. Counsel for the defendant
steadfastly declined to do so on the basis that the plaintiff’s

version was ‘
false’
.
Needless to say this approach was unhelpful both for the Court and
for the defendant’s case.
[106]
What remains is the argument on behalf of
the defendant that he was never properly received as a bridegroom
into the bride’s
household or family and another argument, more
technical in nature, that the plaintiff could not have been properly
received into
his family as his bride in his absence.
[107]
In regard to the wedding ceremonies the
defendant’s counsel set great score by the fact that defendant
had not been properly
welcomed into the plaintiff’s family in
accordance with custom following the conclusion of the lobola
negotiations, and,
thereafter, in his not being present during the
wedding ceremonies. As far as the defendant not being welcomed into
the bride’s
family, I accept the plaintiff’s evidence
that on both the Saturday and the Sunday he was invited into the
homestead to partake
in the lunch meals on those days. It is correct
that his presence on the Saturday was a low-key affair but this was
quite understandable
since the negotiations had not been concluded by
payment of fifty percent of the lobola price. On the Sunday, the
evidence reveals
the defendant to have been in a tearing hurry to
catch the bus to Cape Town. In the circumstances and bearing in mind
the flexibility
of customary law, this deviation from usual customary
practices, can in no way serve to invalidate any subsequent marriage.
[108]
As far as the defendant’s absence
from the wedding ceremonies on 16 July 2012 are concerned, I have
already pointed out that
in terms of customary law the presence of
the bridegroom is not necessary. In the present matter, accepting the
plaintiff’s
version of events, the defendant was absent by
choice. He had to work in Cape Town and it was with his full
agreement, and in fact
on his initiative, that the two ceremonies
were compressed into one and proceeded in his absence.
[109]
Section 15(3) of the Bill of Rights
recognises legislation sanctioning marriages concluded ‘
under
any tradition’
, whilst sections
30 and 31 thereof recognise a person’s right to participate in
the cultural life of their choice and to
enjoy their culture provided
that their rights are not exercised in a manner inconsistent with any
provisions of the Bill of Rights.
[110]
In
Mbungela
v Mkabi
[8]
the issue before the Supreme Court of Appeal was whether a couple had
concluded a valid customary marriage in circumstances where
the
deceased’s family did not hand her over to the first
respondent’s family in terms of custom. It was held that
customary law was a dynamic, continuously evolving, flexible and
pragmatic system of law and that the ceremony of handing over of
the
bride is not necessarily a key determinant of a valid customary
marriage. The Court held further that the waiver of that ceremony
or
requirement was permissible and thus did not invalidate a customary
marriage.  The Court, per Maya P, stated as follows
[9]
:
‘
[17]
As pointed out above, the appeal revolves around s 3(1)(b) of the
Act; the jurisdictional factors in s 3(1)(a)
are not in issue.
‘[C]ustomary law’ is defined in s 1 of the Act as
“customs and usages traditionally observed
among the indigenous
African peoples of South Africa and which form part of the culture of
those peoples”. But s 3(1)(b)
does not stipulate the
requirements of customary law which must be met to validate a
customary marriage. The reason for this is
not far to seek. It is
established that customary law is a dynamic, flexible system, which
continuously evolves within the context
of its values and norms,
consistently with the Constitution, so as to meet the changing needs
of the people who live by its norms.
The system, therefore,
requires its content to be determined with reference to both the
history and the present practice of the
community concerned.  As
this Court has pointed out, although the various African cultures
generally observe the same customs
and rituals, it is not unusual to
find variations and even ambiguities in their local practice because
of the pluralistic nature
of African society.  Thus, the
legislature left it open for the various communities to give content
to s 3(1)(b) in accordance
with their lived experiences.
[18]
The Constitutional Court has cautioned courts to be cognisant of the
fact that customary law regulates the
lives of people and that the
need for flexibility and the imperative to facilitate its development
must therefore be balanced against
the value of legal certainty,
respect for vested rights and the protection of constitutional
rights.  The courts must strive
to recognise and give effect to
the principle of living, actually observed customary law, as this
constitutes a development in
accordance with the “spirit,
purport and objects” of the Constitution within the community,
to the extent consistent
with adequately upholding the protection of
rights.’
[111]
In
my view the arguments that the deviation from the custom of welcoming
the groom into the bride’s homestead after conclusion
of the
lobola negotiations and that the groom’s absence from the
utsiki
ceremony,
invalidated any customary marriage are without any merit. The
evidence of the defendant’s own expert witness, Prince

Burns-Ncamashe as well as established case law makes it clear that
the ceremonies and procedures involved in a customary marriage
are
part of a flexible system, elements of which can be compressed or
even left out depending on the circumstances of the matter
and the
exigencies of the situations in which the parties find themselves. In
LAWSA the authors note that the son does not necessarily
have to be
present at the formal wedding ceremony and may be represented.
Regarding the groom’s consent, this, given either
explicitly or
otherwise (for example by acquiescence), is essential.
[10]
[112]
In my view, having regard to the evidence
as a whole and the credibility of the parties and the witnesses, the
probabilities are
overwhelming that the plaintiff’s version
that a customary marriage was indeed contracted is what in fact took
place. It
follows from what I have said that, in relation to those
issues where there is a dispute between the versions of the plaintiff
and the defendant (save for the question of on which day the
defendant caught the bus to Cape Town), I prefer and accept that
evidence
of the plaintiff.
[113]
On the plaintiff’s version, which I
accept, there were full lobola negotiations and agreement on a lobola
price was reached,
namely, ten cows. There was further agreement that
the bride would be released upon payment of half this amount and that
duly occurred.
There was evidence that the Tshongweni family, or the
elders of their greater family, agreed to the release of the
plaintiff. The
parties then went through with both the
utsiki
ceremony and the
uphindindlela
ceremonies, albeit compressing these two together into the five-day
stay which the plaintiff spent at the defendant’s homestead.

There she was accompanied, as is customary, by a female family member
and another older woman from her community and arrived with
all the
necessary gifts and household utensils. When she arrived she was
welcomed and received into the homestead. She was dressed
in
makoti
attire and a sheep, which could only have been produced by the
defendant’s family, was slaughtered and cooked. Thereafter
the
plaintiff ate or tasted the special part of the sheep,
umshwamo
,
and received guidance from the female elders of the amaTshawe clan
into how she must behave or conduct herself as a wife. The
plaintiff
then demonstrated her commitment to her new family by spending five
days in the homestead performing household tasks
and ministering to
the needs of the defendant’s family at the behest of his
mother, Mrs Funeka Kwankwa. She returned home
to Cape Town dressed in
makoti
attire which she wore for a substantial period.
[114]
Both in terms of the customary marriage
ceremonies described by Prince Burns-Ncamashe and in terms of the
case law as determined
by the Supreme Court of Appeal in
Mbungela
and
Ngwenyama
,
the parties fulfilled all the necessary elements of a customary
marriage. The fact that the defendant was not present when his
bride
was welcomed into his family’s homestead does not, to my mind,
operate as an impediment to the marriage and nor does
any shortcoming
as regards the defendant not being formally welcomed into the
plaintiff’s family or homestead on the weekend
of the lobola
negotiations. On the plaintiff’s version the defendant had full
knowledge of the wedding ceremonies on 16 July
2012 and was absent by
choice albeit through circumstances beyond his control. By clear
implication he consented to the proceedings
going ahead in his
absence and it is farfetched to suggest that he was somehow married
without his consent in breach of his constitutional
rights. Having
regard to all these factors, I consider that there is no room for the
argument made on behalf of the defendant that
his (voluntary) absence
from the wedding ceremonies was a breach of his constitutional right
in terms of sec 9(3) of the Bill of
Rights not to be discriminated
against on the basis of his gender.
[115]
For these reasons I find that the plaintiff
has succeeded in proving her case that during July 2012 a valid
customary marriage was
concluded between the plaintiff and the
defendant. It follows that the plaintiff is entitled to the costs of
this action.
[116]
Accordingly, the following order is made:
(a)
It is declared that the plaintiff and the
defendant entered into a valid customary marriage at eMnqaba village,
Middeldrif on 16
July 2012;
(b)
The defendant is to pay the plaintiff’s
costs.
BOZALEK
J
For the Plaintiff

:           Adv S Dzakwa
As
Instructed by

Mphahlwa Ndlamhlaba Inc
For the Defendant

:           Adv L
Dzai
As instructed
by

:           N
Potelwa Attorneys
[1]
2003
(1) SA 11
(SCA) at para 5.
[2]
Vol
32 (Indigenous Law) para 86.
[3]
Ibid
para 89.
[4]
Para
91.
[5]
Para
101.
[6]
244/19)
[2020] ZASCA 46
(30 April 2020).
[7]
Ibid
Para
104.
[8]
820/2018
[2019] ZASCA 134
(30 September 2019).
[9]
At
para 17 – 19.
[10]
Ibid,
para 98.