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[2016] ZAGPJHC 163
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N v D (2011/3726) [2016] ZAGPJHC 163 (15 June 2016)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 2011/3726
DATE: 15 JUNE 2016
In the matter
between:
E
X
N
Plaintiff
And
S
R
D
Defendant
JUDGMENT
LAMONT,
J
:
[1] The plaintiff instituted action
against the defendant seeking a decree of divorce and ancillary
relief. The issues were separated
and the only issues which came
before me were whether or not the defendant had consented to be
married and whether or not the ceremony
conducted complied with the
requirements to conclude a customary marriage.
[2] Both parties had previously been
married and divorced. The plaintiff is the mother of a child born of
the previous marriage.
The defendant is the father of two
children born of the previous marriage.
[3] The parties’ previous
marriages were by civil law.
[4] During late 1994 the parties met
each other. They lived together for a period of time. At that
time the plaintiff was
a senior manager for the Johannesburg City
Theatre. The defendant was a director at Eskom. The parties
stayed together for
a number of years. They separated and lived
apart but continued their relationship until it “fizzled out”.
After
some time, the relationship was renewed.
[5] The defendant approached the
plaintiff and stated that he wished to form a new relationship with
her. They went to Dubai where
the defendant proposed marriage to the
plaintiff. She accepted but put a number of conditions in place
which governed that
acceptance. They were:
5.1
the
defendant apologise to
the plaintiff’s mother,
5.2 the parties and their children
attend therapy sessions,
5.3 the defendant to go to the
plaintiff’s home for lobola negotiations,
5.4
the parties conclude a
civil marriage.
[6] The defendant gave the plaintiff
an engagement ring and agreed to the conditions the plaintiff set
out. The ring which the defendant
gave to the plaintiff and which was
to signify their engagement was worn in Dubai for a while. The ring
was kept by the defendant
pending the implementation of everything
which had been agreed. The plaintiff did not wear the ring in South
Africa
[7] The parties attended the therapy
and the defendant resolved the outstanding issues with the
plaintiff’s mother.
The only remaining outstanding issues
were the question of the traditional lobola negotiations and the
civil marriage. The
lobola negotiations were arranged to take
place on 16 March 2003. A wedding venue where a function was to take
place was arranged
for November 2003. According to the plaintiff that
function involved only the blessing of the rings, according to the
defendant
the function was to perform a civil marriage.
[8] The events surrounding the lobola
negotiations are largely common cause. The parties had in Dubai
agreed approximately what
the lobola would be. Each family sent a
delegation of three members to the house of the plaintiff’s
mother on 16 March 2003.
The practices surrounding lobola
negotiations were followed. The plaintiff and defendant were
not permitted to be present
when negotiations took place between the
delegates who had been mandated. Eventually the delegates
reached agreement. There
was a ceremonial placing of blankets and a
scarf on certain of the women. The lobola was paid in full and there
was a celebration.
[9] The first issue between the
parties was not whether or not the lobola negotiations had taken
place in accordance with what was
required by custom. It
concerned what the effect of those lobola negotiations was. The
plaintiff’s evidence was
that once lobola negotiations had been
concluded a customary marriage occurred. Her evidence was that the
parties knew that reference
to lobola negotiations was reference to a
marriage as that is what the customary law is. Her evidence was that
the defendant had
agreed to the marriage and had participated in the
ceremony. Hence he had consented to be and was married.
[10] The defendant’s evidence
was that lobola negotiations form part only of a process of marriage.
The marriage process would
only be completed according to customary
law once the ceremonial handing over and induction of the bride into
the grooms’
family had taken place, hence he had not consented
to be married if the process of 16 March 2003 took place and in any
event that
ceremony by customary law did not result in a marriage.
[11] The parties referred throughout
to the ceremony which was to take place and which did take place on
16 March 2003 as lobola
negotiations, not as a marriage ceremony. The
plaintiff understood the reference to lobola negotiations as a
reference to a marriage
ceremony which would result in the parties
being married. The defendant understood the reference to lobola
negotiations to be a
reference to a part of a marriage ceremony which
would not result in the parties being married until the other parts
had been concluded.
Each of them went to and participated in the
ceremony holding their respective belief.
[12]
The parties are required to consent to a customary union by The
Recognition of the Customary Marriages Act No 121 of 1998.
The
Act provides in S(3)
“
Section 3
(1) For a customary marriage entered into after the commencement of
this Act to be valid-
(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 accordance with
customary law.”
[13] Before dealing with the evidence
I must deal with the fact that the plaintiff is an admitted liar and
perjurer. She made a
number of extra curial statements, some under
oath, which conflicted with her present evidence. She on numerous
occasions stated
after the lobola negotiations had been concluded
that she was unmarried, whereas in this court she stated in evidence
that she
was married. The false statements were made by the plaintiff
on each occasion to achieve an advantage that she otherwise could not
achieve. The plaintiff is prepared to distort the truth to achieve a
purpose she desires. Her evidence must be approached on this
basis.
[14] The plaintiff’s evidence
was that as a matter of custom the lobola negotiations once
successfully concluded result in
a marriage. She said that her
references to lobola negotiations made to the defendant were
references to a marriage by customary
union and were understood by
the defendant to be such. It was submitted by the plaintiff that the
defendant’s agreement to
lobola negotiations taking place; his
compliance with the ceremony provided by custom and the attendance of
the representatives
of the defendant at the ceremony constituted a
consent to that marriage whether or not the defendant had in fact
expressly consented
to a marriage and mandated his representatives to
agree to a marriage.
[15] At the ceremony itself consent
was neither sought from the defendant personally nor was it obtained.
His consent at best for
plaintiff would have been given through the
delegates who represented him at the lobola negotiations.
[16] The ceremony itself contains no
procedure requiring the defendant or his delegates to state that he
consented to be married
by customary union. The plaintiff’s
delegates assumed that defendant consented by his delegates asking
for the hand of the
bride and identifying her. This assumption
is based on their belief that the ceremony constituted marriage
proceedings. Even
if the response to the question of whether the
bride was the person “they had come to marry” was yes
that response
is ambiguous as the defendant was to marry the
plaintiff but not at that ceremony.
[17] The plaintiff relied also on the
evidence of one of her delegates to establish the defendant’s
consent at the lobola
negotiations. One of the negotiators who
negotiated on behalf of the plaintiff, one Edmund Mathabela stated
that when the
defendant’s representatives came to the lobola
negotiations they said they had come for a bride’s hand and
they wanted
the plaintiff to get married. The plaintiff was
physically shown to the delegates who were asked whether she was the
person that
they had come to marry. Their response was that she was
such person. He accepted that the defendant’s delegates
had
come for a marriage ceremony and that the defendant consented to
be married. He said that there was no question of the delegates
having come to effect an engagement as claimed by the defendant. When
he was cross-examined on this issue it became apparent that
the
delegates had asked for the bride’s hand and that he had
inferred from that statement that they were saying that they
had come
to marry. He accepted that at the previous court hearing he had not
said that he had asked whether the bride was the person
that they had
come to marry. He further agreed under cross-examination that the
defendant’s lead negotiator had only spoken
about lobola.
During the celebrations which took place after the payment of lobola
and the announcement that the lobola negotiations
had been concluded
thanks were given in a speech. He assumed these thanks referred
to a marriage not just a payment of lobola.
There was however
on a proper construction of his evidence no statement made by the
defendant or the defendant’s delegates
that the parties were
married or was to be married at the ceremony. This is the only
evidence led by the plaintiff of what had
been said during the lobola
negotiations. On this evidence the words uttered by the defendant’s
delegation did not go as
far as a statement that the delegates were
mandated by the defendant to conclude a marriage and had on his
behalf consented to
a marriage. The asking of the bride’s hand
is ambiguous; it could be for purposes of marriage then and there at
the ceremony
or later.
[18] An expert witness was called by
the plaintiff. His evidence was that once lobola negotiations
had been concluded the
parties were married according to customary
law. Nothing further was required. On his evidence parties who agree
to proceed with
lobola negotiations and who do so have consented to,
intended to and been party to a marriage by custom. This evidence is
of course
evidence on the basis that the defendant knew the ceremony
constituted a marriage and that he consented to it.
[19] The defendant gave evidence that
finalization of lobola negotiations would not result in a marriage by
custom; that he had
neither consented to nor intended to be married
by custom in consequence of those proceedings. He believed that the
proceedings
were but a step in a process of marriage. Hence he had
not agreed to neither had he mandated any one of his delegates to
agree
to a marriage on 16 March 2003.
[20] The defendant’s mind-set
appears to me to have been governed by two overriding beliefs:
20.1
the custom of lobola negotiations resulted in a step in a process of
a marriage being concluded, not in a marriage,
20.2 the plaintiff and he were
to be married by a civil marriage ceremony.
[21] In order to find that the
defendant consented to a marriage I need to find that his evidence is
improbable and untrue, as he
denies having consented. The starting
point seems to me to consider: -
21.1 whether he knew that the lobola
negotiations would result in a marriage, if he did not it would be a
probability in his favour;
21.2 whether he authorised the
delegation representing him at the lobola negotiations to conclude a
marriage, if he did not his
conduct prior to the marriage was
consonant with an intention not to participate in a ceremony
resulting in marriage and not to
consent to marriage.
[22] The defendant’s evidence
was that his understanding of the law was that lobola negotiations
did not result in a marriage.
He did not intend to marry by
concluding the lobola negotiations. He would become married once the
civil marriage had been concluded
and after the conclusion of an
appropriate ante-nuptial contract.
[23] An expert who was called to give
evidence on the defendant’s behalf, that expert, Prof Bakker,
stated that a customary
marriage is concluded only once the two
families have been fused and that this takes place only once the
bride has been handed
over at the defendant’s family residence.
The lobola negotiations alone do not result in a marriage. The
ceremony concluded
on 16 March 2003 would not result in the parties
being married. His evidence is in line with the defendant’s
belief that
by participating in the ceremony he was not participating
in a marriage ceremony.
[24] There is support for the
defendant’s belief that the finalization of lobola negotiations
does not result in a contract
of marriage in the evidence of the
expert who was called to give evidence on the defendant’s
behalf. That expert, Prof
Bakker, stated that the customary
marriage is concluded only once the two families have become fused
and that this takes place
only once the bride has been handed over at
the defendant’s family residence. The lobola negotiations
alone do not
result in a marriage. His evidence is in line with the
defendant’s belief that by participating in the ceremony he was
not
participating in a marriage ceremony.
[25] The fact that there is room for
Prof Bakker’s view (even although it was not accepted as being
a true statement of the
law by the plaintiff’s expert) lends
credence to the defendant’s statement that he believed that
lobola negotiations
would only result in an engagement.
[26] The witnesses who were called by
the defendant concerning the events at the lobola negotiations stated
that the defendant had
mandated them only to conclude an engagement
not to conclude a marriage. They stated further that, they did
not attend the
ceremony with a view to consenting to a marriage and
also that; in line with the mandate given they had not consented to a
marriage.
The evidence of the delegates is cogent, not
improbable and cannot be rejected.
[27] It is patent from the defendant’s
evidence and the evidence of his delegates that he neither intended
to conclude a marriage
nor agreed to conclude a marriage.
[28] The defendant’s evidence is
credible, is supported by the probabilities and I am unable to reject
it.
[29] There are additional
probabilities in favour of the defendant’s evidence which
support the findings on credibility.
[30] On both the plaintiff and the
defendant’s evidence they intended to conclude a civil
marriage. The plaintiff went so
far as to state that it was agreed
that it was a condition for the marriage that the civil marriage took
place. At best for her
on that evidence the finalization of lobola
negotiations was but a step on the road to being married by the civil
law. This probability
favours the defendant’s evidence.
[31] On the parties return from Dubai
arrangements were made for a civil marriage to take place. A wedding
venue was booked and
a pastor (a marriage officer) was found to
conduct the marriage. These arrangements represented the
implementation of the agreement
that they would be married civilly.
If the venue was to be used only to bless rings as was stated by the
plaintiff, then a marriage
officer would not be required.
[32] No arrangements were made on the
parties return from Dubai for any other place or time for a civil
marriage to take place.
This favours the finding that the
arrangements made were the arrangement for a wedding.
[33] The defendant wished to be
married according to as he put it “
a Christian marriage
”.
This involved a priest officiating at the marriage. Steps were taken
to achieve this result.
[34] The plaintiff’s evidence on
the issue of when and where the civil marriage would take place is
unreliable. It is probable
that the parties who were eager to be
married would (as they in fact did) do all things necessary to
achieve fulfilment of the
four conditions the plaintiff required to
be met. It is probable that the steps taken originally to organize a
wedding venue and
a priest were for the purpose of celebrating a
civil marriage. The plaintiff stated the parties would go to Home
Affairs at some
point. This was never arranged when it probably could
and should have been if this was the parties’ intention.
[35] The plaintiff did not explain
what would happen if there was a customary marriage and then no civil
marriage. She assumed that
if there was no civil marriage the parties
would be married in any event as the customary marriage had been
concluded. This assumption
is not in line with the parties’
express intention to marry by civil law. It is improbable that
without more the defendant
would agree to be married by customary
union thereby:
35.1 negating the need for a
civil marriage,
35.2 determining the property
regime,
35.3 creating bonds which could
only be undone by divorce.
[36] The parties never discussed
financial matters and they are both skilled people who have assets
and have undergone divorces
pursuant to their previous civil
marriages. The defendant stated that he would have wanted to have
concluded an ante-nuptial contract
to regulate the proprietary
relationship between the plaintiff and the defendant.
[37] If the parties were to be married
by customary union the immediate consequence would be that the
parties would be married in
community of property. Once the
property regime was determined it would be impossible (absent
plaintiff’s consent)
for the defendant to agree a different
regime and if that agreement could not be reached to decline to be
married. At that stage
on the plaintiff’s evidence he would be
bound as he was already married and the proprietary consequences had
taken place.
In my view it is improbable that the defendant would
agree to be placed in that invidious position comprising the need to
obtain
a divorce and the inability to regularize his financial
affairs by concluding an anti-nuptial contract. It is particularly
improbable
that he would allow this to happen without any discussion
concerning financial matters.
[38] It is probable had the defendant
consented to be married he would have invited his family to the
ceremony. It is common cause
that the defendant’s parents and
daughter did not attend the lobola negotiations. There is no dispute
the daughter would
have attended the marriage. The defendant’s
evidence is that his parents would have attended a marriage. The
plaintiff’s
evidence is that their attendance was not
necessary. I accept that the defendant would have wanted his family
to attend.
[39] It is not uncommon for persons to
enter into lobola negotiations which are successful and also to have
a civil marriage. The
indication is that the parties intend the civil
marriage to be the time when they are married not the lobola
negotiations.
[40] It is probable that the parties
did not intend for lobola negotiations to result in a position which
would impact in any way
upon their right to conclude a civil marriage
on whatever basis they chose. The plaintiff contemplated the
civil marriage
as condition for marriage. This in my view means
that she intended only to be married at that time and also that, that
was
the defendant’s intention, they both having agreed to the
condition. This being so whatever the status of the lobola
negotiations
the parties did not intend to become married on the
finalization of the lobola negotiations.
[41] The conduct of the parties
subsequent to the marriage indicates that they both held themselves
out as being single and did
not take steps in any way to discuss or
fuse their financial affairs.
[42] I accordingly find that the
defendant did not consent to be married by customary union.
[43] As the defendant did not consent
to be married and hence did not become married it is unnecessary to
decide what effect of
the ceremony of lobola negotiations is.
[44] The parties are agreed that if I
find the defendant did not consent the appropriate order is that I
dismiss the plaintiff’s
claim. I make the following order.
[45]
1. The plaintiff’s claim is
dismissed.
2. The plaintiff is to pay the costs
of the action including the costs consequent upon the employ of
senior counsel and the qualifying
fees of Professor Bakker.
__________________________________________
C G LAMONT
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR PLAINTIFF:
ADV. I. MOTLOUNG
PLAINTIFF’S’
ATTORNEYS:
MALULKE SERITI MAKUME
MATLALA INC
COUNSEL
FOR DEFENDANT: ADV.
J A WOODWARD SC
DEFENDANT’S
ATTORNEYS:
BILLY GUNDELFINGER ATTORNEYS
DATE
OF HEARING:
23
MAY
to
6
JUNE 2016
DATE OF
JUDGMENT:
15 JUNE 2016