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[2016] ZAGPJHC 51
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Mbata v Cape Gate Provident Fund and Others (12/23280) [2016] ZAGPJHC 51 (7 March 2016)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO:
12/23280
DATE:7
MARCH 2016
In
the matter between:
MS.
MBATA
SIBONGILE
..........................................................................................................
Plaintiff
And
CAPE
GATE PROVIDENT
FUND
...............................................................................
First
Defendant
BILLY
NTAOPANE
....................................................................................................
Second
Defendant
DEPARTMENT
OF HOME
AFFAIRS
.......................................................................
Third
Defendant
MASTER
OF THE HIGH
COURT
...........................................................................
Fourth
Defendant
JUDGMENT
MATOJANE
J
[1]
This is an application for absolution from the instance by the
defendant at the end of the plaintiff’s
case.
[2]
The plaintiff is a female teacher by profession. The first defendant
is a Provident Fund established in terms
of the Pension Fund Act 24
of 1956. The second defendant is the brother of the deceased and a
duly appointed representative of
the deceased estate. The fourth
respondent is the the Master of the High Court responsible amongst
other, the administration of
deceased estates.
[3]
The plaintiff instituted an action seeking
inter alia,
an
order declaring the customary marriage she purportedly entered into
with the late Zacharia Kabelo Ntaopane to be a valid customary
marriage. The second defendant denies that the deceased was married
to the applicant.
[4]
The following facts have been admitted by the parties in writing and
are accordingly common cause.
4.1
The correctness of the expert report compiled by Mr. Cecil
Greenfield, a forensic examiner of questioned documents
dated 15 June
2015.
4.2
that second defendant was not present at a meeting allegedly held on
the 14
th
December 2008 when lobola was allegedly paid and
he denies that such meeting took place.
4.3
The family of the deceased, in particular second defendant were not
aware of the meeting purportedly held
on 14 December 2008 when lobola
was allegedly paid.
4.4
That second defendant was appointed a representative of the estate of
the deceased.
4.5
The deceased, Zacharia Kabelo Ntaopane died on the 7 April 2012.
[5]
Before setting out the facts it is pertinent to set out the correct
approach
to an absolution application. Harms JA in
Gordon
Lloyd Page & Associates v Rivera and Another
[1]
set the test as follows:
‘
[2]
The test for absolution to be applied by a trial court at the end of
a plaintiff’s case was formulated in
Claude Neon Lights (SA)
Ltd v Daniel
1976 (4) SA 403
(A) at 409G-H in these terms:
“…
(W)hen
absolution from the instance is sought at the close of plaintiff’s
case, the test to be applied is not whether the
evidence led by
plaintiff establishes what would finally be required to be
established, but whether there is evidence upon which
a Court,
applying its mind reasonably to such evidence, could or might (not
should, nor ought to) find for the plaintiff. (
Gascoyne v Paul and
Hunter
1917 TPD 170
at 173
; Ruto Flour Mills (Pty) Ltd v
Adelson (2)
1958 (4) SA 307
(T).)”
This
implies that a plaintiff has to make out a prima facie case –
in the sense that there is evidence relating to all the
elements of
the claim – to survive absolution because without such evidence
no court could find for the plaintiff (
Marine & Trade
Insurance Co Ltd v Van der Schyff
1972 (1) SA 26
(A) at 37G-38A;
Schmidt
Bewysreg
4
th
ed at 91-2). As far as
inferences from the evidence are concerned, the inference relied upon
by the plaintiff must be a reasonable
one, not the only reasonable
one (Schmidt at 93). The test has from time to time been formulated
in different terms, especially
it has been said that the court must
consider whether there is “evidence upon which a reasonable man
might find for the plaintiff”
(
Gascoyne
(loc cit)) –
a test which had its origin in jury trials when the “reasonable
man” was a reasonable member of
the jury (
Ruto Flour Mills
).
Such a formulation tends to cloud the issue. The court ought not to
be concerned with what someone else might think; it should
rather be
concerned with its own judgment and not that of another “reasonable”
person or court. Having said this, absolution
at the end of a
plaintiff’s case, in the ordinary course of events, will
nevertheless be granted sparingly but when the occasion
arises, a
court should order it in the interests of justice.’
[6]
The defendant in its argument in support of the
application for absolution and in its opposing affidavit essentially
relies on three grounds based in turn on three propositions. These
are the following:
6.1
Firstly it is contended that a fraud has been committed
6.2
Secondly, it is contended by second defendant that close family
members of the deceased, in particular, Joseph
Ntaopane, the only
surviving brother of the deceased’s mother would have known of
the alleged customary marriage and would
have taken part in lobola
negotiations if ever there were such negotiations.
6.3
It is contended that the deceased had a long term relationship with
Elizabeth Nkopane from January 2006 until
his death and never
cohabitated with the plaintiff who was his mere girlfriend.
(Elizabeth Nkopane has deposed to a confirmatory
affidavit.)
[7]
The second defendant accordingly submits that the evidence adduced
during the course of the plaintiff’s
case both in chief and in
cross-examination should lead me to conclude that the plaintiff has
failed to make out a
prima
facie
case in that she has not crossed what is referred to as the low
threshold of proof that the law sets when a plaintiff’s case
is
closed but the defendant’s is not. See
De
Klerk v Absa bank limited and others
[2]
Falsity
[7]
Mr
Greenfield is a forensic examiner of questioned documents, he was
asked to examine the signature purportedly belonging to the
deceased
on a handwritten note allegedly recording the lobola agreement and to
express his opinion on its authenticity. He concluded
that the
signature on the note was not consistent with those of the
acknowledged signatures of the deceased. The applicant accepts
the
correctness of this report. In my view, it is reasonable to find that
the note which purportedly is an acknowledgment of receipt
of the sum
of R6 000.00 being part payment of the agreed lobolo of R10 000.00
was obtained by deliberate deceit and was false in
the respect
complained off. The falsity must taint its entire subsequent
existence as the law cannot permit propagation of the
fruits of
dishonesty. See
Murabi
v Murabi
and others
[3]
.
Conclusion
of a customary union
[8]
Applicant testified that during October 2008 the deceased informed
her father in writing that he wanted to
pay lobola for her on the
14
th
December 2008. The deceased gave the letter to her
sister to deliver to her father. This is contradicted by her evidence
in the
founding affidavit where she stated that deceased went to make
an appointment with her father and informed him that he wanted to
pay
lobola on the 14
th
December 2008.
[9]
She testified that she did not know the deceased’s parents. The
deceased informed her that his mother
died when he was 16 years old.
She was not certain of the address of the deceased parental home
which is a walking distance from
her home. She testified that
deceased was not on good terms with his relatives in particular the
second defendant and that is the
reason why the deceased never
informed him of the meeting of the 14 December 2008 where lobola was
negotiated and paid.
[10]
She testified further that the deceased asked his friend, one Ananias
Kharoli, who was his colleague at work to accompany
him to pay
lobola. Her father and her sister represented her at the lobola
negotiations. It was agreed that lobola will be ten
cows and one cow
would be equivalent to one thousand rands. Deceased paid R6000.00 and
the balance was to be paid in due course.
The agreement was reduced
to writing and signed by all present. This is the note in which the
deceased signature was found to be
forged.
[11]
On the same day her father sent her cousin to buy a sheep that was
slaughtered and neighbors came to feast on the sheep,
thereafter her
sister “delivered” her to her house she shared with the
deceased. She contradicts her evidence in her
founding affidavit
where she stated that her sister “delivered” her to her
house the following day. It must be inferred
from her alleged
“delivery” that plaintiff seems to be aware that at
customary law a handing over of the bride to her
in-laws is an
ingredient of a valid customary marriage
[4]
.
She clearly wants to create an impression that a marriage requirement
that she be handed over to her in-laws was complied with
when her
sister walked her to her house. The fact of the matter is that she
was never handed over to her in-laws as on her evidence
her in-laws
were not party to whatever was allegedly agreed upon on the 14
December 2008.
[12]
Plaintiff stated under cross-examination that she could not comment
on the disputed signature of the deceased on the
note as she was not
present when it was written. When asked by the court why a sheep was
only bought and slaughtered after part
of lobola was paid for the
neighbors to feast on, plaintiff mentioned for the first time that
food was prepared for the guests
before the sheep was bought. He
evidence segued from the sheep being eaten by neighbors to the sheep
being cut into half and she
been given half to take home and the
other half eaten by neighbors who came to celebrate. When pressed to
explain whether neighbors
get invited to lobola negotiations she
tried to explain it away by saying that she does not know what
happened to the other half
of the sheep as she had to leave.
[13]
In answer to a question from the court, plaintiff explained that a
ritual involving a slaughter of a sheep had to be
performed for her
because as a “prophet” she could not stay with the
deceased who had not been introduced. She explained
that the
slaughter of a sheep was a ritual for “prophets” and
“healers” like her. She further testified
that it was
important to combine the blood of the two family groups by sharing
the sheep but conceded under cross-examination that
she and her
father shared the sheep amongst themselves. She could not explain how
the blood of the two family groups could be combined
if the family of
the deceased was excluded.
[14]
Plaintiff called her father Mr. Zalempi July Mbatha as her witness.
Mr. Mbatha was sitting in court listening to her
evidence as she
testified. His evidence was a repetition her evidence. Like the
plaintiff, he testified that deceased sent him
a letter informing him
that he was coming to pay lobola for the plaintiff, as already
indicated, this is a repetition of the evidence
plaintiff gave which
is contrary to what she said in her founding affidavit. He testified
that according to his custom if more
than half of the requested
lobola is paid a sheep is slaughtered.
[15]
Mr. Mbatha explained that it is only when the balance of lobola is
paid in full that a cow is slaughtered and friends
and family are
invited to the celebration of the marriage and gifts are exchanged.
This was not done in the present case. It must
follow, in my view,
that a customary marriage between the plaintiff and the deceased
cannot be presumed to have taken place under
the circumstances.
[16]
To proof her cohabitation with the deceased plaintiff testified that
she had deceased registered in her medical aid.
It is significant
that while her other beneficiaries on her medical aid were registered
on the 1 November 2007 the deceased was
registered on the 1 March
2012 and he died on the 7 April 2012 a month thereafter. This in my
view, cannot be used as proof that
plaintiff cohabitated with the
deceased.
[17]
Plaintiff also referred to a computer print out of the deceased’s
metropolitan life policy in which she and her
children by another man
are beneficiaries. There is no indication in the print-out of the
date on which the policy taken. This
again cannot constitute proof
that plaintiff and the deceased cohabitated.
[18]
In my view, if indeed Mr. Ananias Kharoli and the plaintiff’s
sister were present at the meeting of the 14 December 2008
when
lobola was negotiated and paid for, plaintiff would have called them
as witnesses to corroborate her evidence, in particular,
the disputed
signature on the note allegedly confirming receipt of part payment of
lobola. This she has failed to do. Plaintiff
also sought to suggest
that the deceased’s sister was aware of the customary marriage
but again failed to lead her evidence.
In the absence of an
explanation for their unavailability, her failure to lead their
evidence gives rise to a natural inference
that their evidence would
be detrimental to her case and an adverse inference is justified
under the circumstances. See
LAWSA
Volume 9 page 343 and the
cases cited there.
[19]
In my view, plaintiff is a very unsatisfactory witness and her
evidence and that of her father was simply not credible
enough to
discharge any onus of proof.
[20]
To return to the test for absolution from the instance at this stage
of the case. The enquiry is whether there is evidence
upon which I
could or might (not should, nor ought to) find for the plaintiff. To
the extend that an inference is relied upon it
must be a reasonable
one. Having considered the evidence before me and the submissions
made I am of the view that plaintiff has
failed to meet the threshold
required in order to avoid absolution from the instance.
Order
[21]
Absolution from the instance at the close of the plaintiff’s
case is therefore granted with costs.
KE
MATOJANE
Hearing
Date: 2 March 2016
Judgment
Date: 7 March 2016
Applicant:
Adv MD Hlatshwayo
Defendant: Adv
MA Mavodze
[1]
2001 (1) SA 88
(SCA) at 92E-93A:
[2]
2003(4)SA 315 SCA at para1
[3]
(893/12)[2014]
ZASCA 49 (1 April 2014) at para 14
[4]
(see TW Bennet
Customary
law in South Africa
(Cape
Town: Juta 2004) at 214-216