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[2013] ZAGPJHC 87
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ML v KG (15078/12) [2013] ZAGPJHC 87 (8 April 2013)
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IN THE SOUTH GAUTENG HIGH
COURT, JOHANNESBURG
(REPUBLIC OF SOUTH
AFRICA)
CASE NUMBER 15078/12
DATE:08/04/2013
In the
matter between:
MRL
….............................................................................
APPLICANT
AND
KMG
…............................................................................
RESPONDENT
JUDGMENT
THULARE AJ
[1] Love is blind, but
divorce opens your eyes. This is what the respondent seeks the courts
to accept as being a true experience
of his love life. Having
divorced before, he denies a second marriage at all and in particular
a customary marriage, the nature
of which is a marriage in community
of property, to the applicant.
[2] The applicant alleges
that she entered into a customary marriage with the respondent on 21
May 2011 at Pretoria and that the
marriage still subsists. It is
common cause that the respondent has on 27 March 2012 under case
number 11255/12 launched an application
against applicant wherein he
seeks inter alia that it be declared that he is not married to the
applicant. It is also common cause
that the applicant is instituting
action against respondent wherein she claims a decree of divorce, a
division of the joint estate,
maintenance and costs.
The dispute between the
parties is a matrimonial one.
[3] The applicant’s
claim before this court is for maintenance
pende lite
and a
contribution towards the costs of the pending matrimonial action. The
claim for maintenance includes the maintenance of her
two minor
children not born of the respondent.
LIABILITY OF RESPONDENT
TO MAINTAIN APPLICANT
[4] Section 2 (2) of the
Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998)
(hereinafter referred to as RCMA) provides
that a customary marriage
entered into after the commencement date, which is 15 November 2000,
which complies with the requirements
of that Act, is for all purposes
recognized as a marriage.
[5] In Zaphiriou v
Zaphiriou 1967(1) SA 342 (W) Trollip J said at page 345 E-H:
“
There
is, therefore, good authority that in common law, even though the
validity of the marriage was being disputed, nevertheless
the Court
had jurisdiction in preliminary application proceedings to award
maintenance and a contribution towards costs pending
an action to
determine that fundamental dispute. And I have no doubt that that
applies equally, if not a fortiori where, although
the validity of
the marriage is admitted, its continued subsistence is disputed, as
in the present case.
Rule 43 was merely
designed to provide a streamlined and inexpensive procedure for
procuring the same interim relief in matrimonial
actions as was
previously available under the common law in regard to maintenance
and costs, and I think, therefore, that Rule
43 must be construed
accordingly; in other words, that ‘spouse’ in sub-rule
(1) must be interpreted as including not
only a person admitted to be
a spouse but also one who alleges that he or she is a spouse, and
that allegation is denied. In other
words, the Rule also applies
where the validity of the marriage or its subsistence is disputed.
The application under
Rule 43 in the present case can, therefore, be entertained by this
Court.”
[6] I am satisfied that
the applicant has set out facts, which if proved, will sustain a
finding that the parties were customarily
married on 21 May 2011, and
these includes:
(a) The applicant is 48
years of age, and the respondent 62 years of age. That is, both are
above the age of 18 years.
(b) The applicant and the
respondent agreed to be married to each other.
(c) The applicant and the
respondent agreed to marry each other in a customary marriage.
(d)). The elders of the
families of the two parties met and negotiated a customary marriage
for the parties.
(e). There was an amount
paid by the elders of the respondent to the elders of the applicant,
which both parties agree it was lobola.
(f) The elders of
applicant handed her over to the elders of the respondent.
(g) The negotiations and
payment of lobola was followed by a celebration, which both parties
acknowledge.
I am satisfied that all
these facts, if proved, meets the requirements of section 3 of the
RCMA, which are the requirements for
validity of a customary
marriage. Moreover, respondent gave applicant a ring and in
communication with third parties referred to
her as his wife.
[7] In my view, this case
is distinguishable from Baadjies v Matubela
[2002] 2 All SA 623
(Baadjies case). In my view, in the Baadjies case, the applicant did
not set out facts which, if proved, would meet the requirements
for
the validity of a customary marriage as envisaged in section 3 of
RCMA.
[8] In my view, a party
to a disputed customary marriage must set out facts, with sufficient
particularity as to the requirements
for validity of the customary
marriage, and specifically the negotiations and entering into or
celebration in accordance with custom,
of the alleged customary
marriage; which facts if proved at trial, sustain the conclusion that
such a marriage was indeed concluded.
Once a party sets out those
facts with sufficient particularity, such party is entitled to equal
benefit and protection of the
law, which includes that ‘spouse’
in sub-rule (1) of rule 43 must be interpreted as including such a
party to a customary
marriage. Applicant is a spouse as referred to
in sub-rule (1) of Rule 43.
LIABILITY OF RESPONDENT
TO MAINTAIN APPLICANT’S CHILD, KM
[9] Applicant relies on
the concept “
O e gapa le namane
”, as the basis for
the liability of respondent towards her minor children, who are not
the biological children of the respondent.
[10] By the whim and
paradox of history, I am called upon to not only interpret, but also
to be equal to the task of developing
customary law.
[11] Africans generally
allow themselves lessons from nature, which includes from land,
animals, birds and plants. One of the observations
of the Indigenous
peoples, is that it is very difficult to lead a cow away from its
herd or kraal in the absence of its calf. To
avoid the emotional,
psychological and other trauma of both the cow and the calf, which
sometimes affects the whole herd and those
involved or watching, it
is better to lead the cow and allow the calf to automatically join in
in the removal from one herd or
kraal to the other. It is this
experience that led the Sotho speaking nations which includes
Batswana, Bapedi and Basotho to have
this observation as an idiomatic
expression, “
O e gapa le namane”.
Loosely
translated, it says, “
You lead it with its calf”.
Applicant is a Motswana.
[12] It is worth noting
at the outset that reference is to a calf, and not to every other
heifer or cow, bullock or bull which may
be part of the herd born of
that specific mother cow.
[13] Africans have
specific reference names, informed by the developmental stages of a
person. Generally, everyone born of parents
is a child of those
parents, whatever the age of the person. In the Sotho speaking
nations, child is “
ngwana
”. In its generic sense,
everyone is “
ngwana”
to his or her parents.
However, specifically, a child most often refers to a person under
the age of 14. This is because from the
age of 14, a boy-child
graduates from being “
ngwana”
to “
lesogana”
and a girl-child from being “
ngwana”
to
“
lekgarebe”.
In the Nguni speaking nations, the
child is “
umtwana”
and from 14 years a boy-child
is “
Isoka”
and a girl-child is “
Intombi”.
“
Lesogana/Isoka”,
loosely translated, is a suitor;
and “
lekgarebe/intombi”
is a maiden. At 18 years,
you then have “
Monna/Indoda”
loosely translated as
“a man” or “
Mosadi/Umfazi”
loosely
translated as “a woman”.
[14] The concept of “
O
e gapa le namane”,
in the context of a customary marriage,
is premised on the belief that the essence of motherhood is caring
and nurturing children.
Amongst others, it is informed by the
observation that “
ga e latswe namane e se ya yone”,
which, loosely translated, means “
unless it gave birth
to it, it does not lick off its amniotic fluid.”
This is
another observation from animals that it is only the mother, and none
other, that licks off the amniotic fluid from the
skin of a new-born
calf. All these concepts are geared towards striving to understand
the bond between a mother and a new-born
child, and that especially
in early childhood, a child needs and is not to be ordinarily
separated from its mother. The concepts
are meant to protect young
children.
[15] In my view, reliance
on the concept of “
O e gapa le namane”,
applies to
children in the context of indigenous customs, practices and
traditions. In that sense, it means “
Go nyala mosadi ka
ngwana yo o sa mo tsaleng ka madi”.
Loosely translated, it
says “
To take a child born of another man into your marriage
with its mother”.
For all intents and purposes, it is equal
to the customary adoption of a child.
[16] A man who does not
intend to take a child who is under the age of 14, born of another
man into his marriage with the mother
of that child, must express
such intention during the negotiations and the entering into a
customary marriage. The customary concept,
“
O e gapa le
namane”
is assumed, for a child under the age of 14, unless
it is expressly excluded.
[17] I am satisfied that
applicant has set out sufficient facts before me, which if proved at
trial, sustains a conclusion that
Respondent took the child, KM, who
is 11 years of age, into his alleged customary marriage with the
applicant. I am satisfied that
K is “
ngwana”
as
understood in African custom, practices and traditions, and therefore
qualify as “
namane”
as intended in the concept. I
am satisfied that applicant has shown the basis for the concept “
O
e gapa le namane”,
as the basis of the respondent’s
liability to maintain that child
.
LIABILITY OF THE
RESPONDENT TO MAINTAIN APPLICANT’S CHILD, LM
[18] Customs, practices
and traditions deem a person older than 14 years no longer “
ngwana”.
Such child is deemed of such age, maturity and stage of development
as to be able to assume responsibilities within a homestead.
Against
the background of the Children’s Act, 2005, (Act No. 38 of
2005), amongst others, such child, has the right to participate
in an
appropriate way and views expressed by such child must be given due
consideration, as regards his or her being taken into
the marriage of
his or her mother.
[19] Nothing precludes a
man from expressly manifesting a desire, during the negotiations and
the entering into a customary marriage,
to take children above the
age of 14 into his marriage with their mother, and to assume the role
of fatherhood for these children.
This is by agreement. Once there is
such agreement, such children become the children of the spouse
concerned, and the spouse concerned
becomes the father of the
children in full. This fatherhood, amongst others, attracts the
reciprocal duty to maintain each other.
[20] It is common cause
that the child L:
(a) Was disclosed to the
respondent.
(b) Moved from her
maternal home to the respondent’s home
(c) Respondent assumed
responsibility for providing her with shelter, subsistence and
travel, educational and medical needs, and
basically the whole of her
maintenance.
I am satisfied that
applicant has placed sufficient facts before me which, if proved,
sustain the conclusion that the basis of the
liability of the
respondent for the maintenance of her child, L, a child not born of
respondent, is by agreement contemporaneous
with the conclusion of
the customary marriage, if proved.
[21] In my view, the
concept of “
Bo seka bo ja”,
loosely translated as
“
Whilst the issues are being ventilated at the courts,
subsistence must be available”
applies, consequently,
respondent is to continue to maintain that child whilst the nature
and extent of his liability, if any, is
being determined at trial.
THE NEED OF APPLICANT AND
HER CHILDREN
[22] It is common cause
that the applicant has given up her employment as Chief Executive
Officer of the Telkom Foundation and gave
her attention to her new
home. The reasons for such giving up on her employment, where she
earned R55 000 net per month, are in
dispute. The fact is, applicant
has no income of her own currently.
[23] The respondent has
been paying the mortgage bond instalments and levies on the
Morningside property, medical aid premiums and
any excess not covered
by the scheme, full comprehensive motor vehicle insurance, garden
services, applicant’s cellphone
contract, applicant’s gym
and personal trainer fees as well as Redhill School fees. In my view,
these are reasonable expenses
and are easily ascertainable.
[24] As regards
applicant’s current liabilities, which includes amounts owed to
the City of Johannesburg, Eskom, Redhill School
fees, Nedbank
overdraft, FNB overdraft and FNB credit card, in my view, it is only
fair that those amounts that accrued from 21
May 2011, for household
necessaries, be allowed as reasonable expenses. In my view, there is
some work to be done to determine
the exact amounts.
[25] With regard to the
other current monthly expenses, it is my view that some are simply
exaggerated. My point of departure is
that the applicant and her
children are entitled to have what they necessarily require, not
their best selections. R12 000-00 for
grocery for three people per
month is simply too much, under the circumstances. I will allow
R5000-00. In my view, around R700-00
for DsTV is reasonable. R2500
for both applicant and her two children for personal care is
reasonable. R2800 for the domestic worker
is reasonable. R3000-00
petrol per month is in my view reasonable. R2000-00 for both
applicant and the two kids for entertainment
in my view is
reasonable, so is R1000 for both applicant and her children for
clothing is reasonable, and a R1000-00 for both applicant
and her
children for holidays. My view is that R1200 airtime is reasonable.
In my view, around R1000-00 for Telkom landline and
Wi-fi is
reasonable. It must be remembered that these expenses are monthly
expenses. I am not satisfied that a proper case has
been made out for
a body guard and that amount is disallowed. The other expenses as set
out in the amended paragraph 22 and 44
are allowed. In my view, under
this heading, a reasonable appropriate amount is R40 000-00.
THE MEANS OF THE
RESPONDENT
[26] I accept that the
average monthly income of the respondent from his practice as an
Advocate and Senior Counsel is about R395
775-00.
[27] In my view, R4616-00
per month as telephone expenses for his former wife and children is
simply too much, against the background
of it being used as a reason
why he could not avail more for the maintenance of the applicant and
her children. So is an amount
of R8917-00 explained as “Pat &
Children other expenses”, against the background of Pat and the
children receiving
another deduction of R20 000 for maintenance. A
monthly payment of R11016-00 for a motor mechanic is also too close
for comfort,
so is R3123 for DsTV. This court cannot allow a man to
amass properties at the expense of his obligations to maintain his
wife
and children. Respondent does not need three properties, if that
is at the expense of his obligations to maintain. A deduction for
one
property, in the context of a maintenance dispute is sufficient under
the circumstances. He does not need to spend R11 248-00
on alcohol
and entertainment, if that means he cannot maintain his family.
Respondent cannot be allowed to spend R41 510-00 on
his clothing,
which includes travelling and restaurants. On that expense, only
reasonable costs for clothing and grocery can be
allowed. However,
R7609-00 groceries for a single man, is simply too much, if that is
the reason he cannot maintain his wife and
children. Furniture and
Interior Décor of R8862 per month is a lot for a man who
claims poverty as an answer to a maintenance
claim. So are donations
to friends and family at R10199-00. The rest of the expenses which
respondent set out in Annexure MK1 of
his substituted answering
affidavit are accepted as reasonable expenses. In my view, almost
R100 000-00 are expenses that are not
necessarily required by the
respondent at least, or at most cannot be used to ward off
maintenance obligations. I agree with the
applicant that the
lifestyle led by the respondent is extravagant. I accept that the
respondent has sufficient means to meet the
needs of the applicant
and her two minor children.
REASONABLE AND
APPROPRIATE AMOUNT
[28] I am not expected to
make a meticulously mathematically correct sum of money for purposes
of maintenance. I am expected to
strive to the best of my ability to
make a reasonable and appropriate amount as an order.
[29] In my view, the
following represents a fair, just, informed, reasonable and
appropriate order under the circumstances:
Respondent is ordered to
pay the following monthly
The mortgage bond
instalments of the Morningside property at R17400-00.
The levies of the
Morningside property at R1000-00.
Rates, taxes, water and
electricity bills of the Morningside property
Garden Services at the
Morningside property.
The medical aid premiums
for applicant and any excess medical expenses.
Full comprehensive motor
insurance
Applicant’s
cellphone contract to the maximum of R1200-00.
Applicant’s gym
and personal trainer fees
The Redhill school fees
for both minor children.
Respondent is further
ordered to pay applicant’s current liabilities, the
indebtedness of which accrued from 21 May 2011
to date, on her
accounts with:
City of Johannesburg
Eskom
Redhill School fees
Nedbank overdraft
FNB overdraft
FNB credit card
Applicant’s
attorney is directed to submit statements of such accounts to
respondent’s attorneys within 30 days of this
order.
Respondent is further
ordered to pay to applicant an amount of R40 000-00 per month from 1
May 2013 for the maintenance of herself
and her two minor children.
The amounts are payable on or before the 7
th
of each
succeeding month.
Respondent is further
ordered to contribute an amount of R30 000-00 towards the legal
costs of the matrimonial dispute.
Costs of this
application are to be costs in the main action.
------------------------------------------
DM THULARE
ACTING JUDGE OF THE HIGH
COURT