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[2010] ZAGPJHC 93
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K v P (09/41473) [2010] ZAGPJHC 93 (15 October 2010)
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REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
09/41473
DATE:
15/10/2010
In the matter between:
K,
F
.................................................................
Plaintiff
and
P,
S
T
…..........................................................
Defendant
______________________________________________________________
J U D G M E N T
______________________________________________________________
MOSHIDI, J
:
INTRODUCTION
[1] This matter came before me in the unopposed Motion Court.
[2] The plaintiff has instituted
action against the defendant for general damages under the
actio
iniuriarum
for the
impairment of her dignity and reputation. The defendant failed to
defend the action.
THE PARTICULARS OF CLAIM
[3] For proper context, paras 1 to 17.3 of the particulars of claim
read as follows:
“
1.
The Plaintiff is F K, an unemployed female residing at 1082
Democracy Street, Hospitalview, Tembisa, 1632, who formerly practised
as a traditional healer (‘the Plaintiff’).
The Defendant is T S P, an adult male primary school teacher
residing at 91 Mbele Street, Jiyani Section, Tembisa, 1632 (‘the
Defendant’).
On or about 12 November 2006, at 24 Enxiweni section in Tembisa,
the Plaintiff and the Defendant represented by their respective
families entered into a customary marriage after negotiations were
concluded between the two families, lobola was paid and the
marriage
was celebrated in accordance with customary law, after which the
Plaintiff became the Defendant’s customary law
wife. The
contract concluding the customary marriage was recorded in writing,
a copy of which is annexed hereto marked Annexure
‘A’.
The Plaintiff met the Defendant during September 2006 and the
Defendant at all material times prior to the conclusion of the
customary
marriage professed to be a divorcee.
The parties lived together as husband and wife after entering
into the customary law marriage till 19 January 2009 when the
Defendant
left the matrimonial home.
On 6 February 2009 the Plaintiff approached the Department of
Home Affairs to register her customary marriage to the Defendant in
terms of the
Recognition of Customary Marriages Act 120 of 1998
.
At the Department of Home
Affairs, the Plaintiff discovered that her customary marriage to the
Defendant could not be registered
due to the Defendant having
entered into a civil union with Ms Sarah Mofokeng on 22 November
1991, which marriage still subsists
as is evident from Annexure ‘B’
annexed hereto.
The Defendant by virtue of his civil marriage was prohibited by
the provisions of
section 8(2)
of the
Civil Union Act 17 of 2006
from entering into a customary marriage with the Plaintiff.
Whilst negotiating with the Plaintiff to enter into a customary
marriage, the Defendant had a legal duty to disclose his marital
status but deliberately failed to do so with the intention of
inducing the Plaintiff to marry him.
The Plaintiff was induced
into marrying the Defendant and at all times held the
bona
fide
belief that he was a
divorcee and as such eligible for re-marriage.
The Defendant’s failure to disclose his marital status was
a material misrepresentation. Had the Plaintiff been aware that
the
Defendant was married and which marriage still subsisted, she would
not have consented to entering into the customary marriage
with him.
The Plaintiff acted to her prejudice by entering into the
customary marriage with the Defendant.
In the premises, the
Defendant’s customary marriage to the Plaintiff is
void
ab initio
.
The Defendant’s misrepresentation in addition to
constituting a breach of contract constitutes wrongful conduct with
intent
to injure the Plaintiff.
The Defendant’s
wrongful and intentional conduct caused the Plaintiff to suffer
humiliation, hurt, loss of reputation, insult
to her dignity, loss
of social standing and embarrassment in the eyes of her family and
friends when she discovered her marriage
to be
void ab
initio
.
As a result of the Defendant’s wrongful conduct, the
Plaintiff suffered general damages for the impairment of her dignity
and reputation in the sum of R150 000,00.
WHEREFORE the Plaintiff claims from the Defendant:-
General damages suffered in respect of the impairment of her
dignity and reputation in the amount of R150 000,00;
interest on the aforesaid amount at the rate of 15.5% per annum;
costs of suit;
”
THE EVIDENCE OF THE PLAINTIFF
[4] The plaintiff, a 46 years
old former traditional healer, testified. She is currently
unemployed. She was exceedingly emotional
when she testified, so
much so that her evidence had to be adjourned to the following day.
Prior to agreeing to marry the defendant,
and staying with him, he
told her that he was divorced, a long time ago. After her visit to
the Department of Home Affairs, and
the discovery that the defendant
was still married by civil law to Ms Sarah Mofokeng, she confronted
the defendant. He said it
was not her concern. She felt extremely
hurt and humiliated. Both families were disappointed by the conduct
of the defendant.
As a churchgoer, she felt humiliated when her
fellow-worshipers and friends heard of her failed marriage. She was
also humiliated
by the defendant’s siblings by virtue of the
void marriage. The medical reports in the Court bundle confirm that
both the
plaintiff and the defendant are HIV/AIDS positive. The
plaintiff testified that when her HIV status became known, the
defendant
discriminated against her. He told her that he would never
marry her by way of a civil marriage ceremony because of the stigma
attached to HIV/AIDS persons, in spite of him having initially
promised to conclude a marriage with her. The defendant spread
rumours about her HIV status. As a consequence, she suffered from
prolonged depression and ill-health. She said her good reputation
as a traditional healer has suffered, preventing her from practising
her profession. From her evidence, the plaintiff could not
tell who
of the parties first contracted the HIV illness. At the time of her
evidence, she was still residing in the defendant’s
immovable
property whence he deserted her.
THE PROVISIONS OF THE
RECOGNITION OF CUSTOMARY MARRIAGES ACT 120 OF
1998
[5] The evidence of the
plaintiff established, on a balance of probabilities (see
Webster
v Mitchell
1948 (1) SA
1186
(W), that all the requirements for a valid customary marriage
were satisfied. The preamble to the Recognition of Customary
Marriages
Act 120 of 1998 (“
the
Recognition Act
”),
provides:
“
To
make provision for the recognition of customary marriages; to specify
the requirements for a valid customary marriage; to regulate
the
registration of customary marriages; to provide for the equal status
and capacity of spouses in customary marriages; to regulate
the
proprietary consequences of customary marriages and the capacity of
spouses of such marriages; to regulate the dissolution
of customary
marriages; to provide for the making of regulations; to repeal
certain provisions of certain laws; and to provide
for matters
connected therewith.
”
The Recognition Act defines
“
customary law
”
“
means the custom
and usages traditionally observed among the indigenous African
peoples of South Africa and which form part of the
culture of those
peoples
”. Sec 3
of the Recognition Act provides:
“
(1)
For a customary marriage entered into after the commencement of
this Act to be valid –
the prospective spouses –
must both be above the age of 18 years; and
must both consent to be married to each other under customary
law; and
the marriage must be
negotiated and entered into or celebrated in accordance with
customary law.
(2) Save as provided in
section 10(1), no spouse in a customary marriage shall be competent
to enter into a marriage under the Marriage
Act, 1961 (Act No. 25 of
1961), during the subsistence of such customary marriage.
”
In the event that these
requirements are fulfilled, the customary marriage must be registered
in accordance with the further requirements
prescribed by sec 4 of
the Recognition Act. As stated earlier in this judgment, the
plaintiff has made out a cogent case for a
customary marriage. She
testified that “
lobolo
”
as defined in sec 1 of the Recognition Act was successfully
negotiated by the two families; that there was consent by both
spouses to enter into the marriage; that the traditional ceremonies
whereat her prospective in-laws were accepted, and whereafter
she was
formally handed over to the defendant’s family. In this
regard, the bundle of the photographs was handed up to show
the
ceremony. The single outstanding issue was the registration of the
customary marriage. In terms of the provisions of sec
3 of the
Recognition Act either of the parties may attend to the registration
of the marriage. This is in fact what the plaintiff
attempted to when
she visited the Department of Home Affairs, and discovered to her
horror, that the defendant was still married
civilly to Ms Sarah
Mofokeng on 22 November 1991. The plaintiff’s marriage to the
defendant was therefore void
ab
initio
in terms of the
provisions of sec 10(4) of the Recognition Act which provides that:
“
Despite
subsection (1), no spouse of a marriage entered into under the
Marriage Act, 1961, is, during the subsistence of such marriage,
competent to enter into any other marriage.
”
From this provision, it was therefore not possible or legally
competent for the plaintiff to register her customary marriage.
The
provisions of the Recognition Act came into operation on 15 November
2000.
[6] By entering the institution
of marriage, the plaintiff sought to enhance her social status, but
however, ended up having her
dignity violated, through the deceptive
and malicious conduct of the defendant. Indeed, the defendant’s
conduct as described
constituted a violation of the plaintiff’s
right to inherent dignity. In this regard sec 10 of the Constitution
of the Republic
South Africa Act, 108 of 1996 provides:
“
Everyone
has the inherent dignity and the right to have their dignity
respected and protected.
”
This right to dignity is
entrenched regardless of the other personal circumstances of the
plaintiff as dealt with later herein.
In addition, on the facts of
this case, the conduct of the defendant also violated the plaintiff’s
rights to equality under
sec 9 of the Constitution. Furthermore, the
Promotion of Equality and Unfair Discrimination Act No 4 of 2000
expressly protects
the plaintiff against discrimination on the
grounds of HIV/AIDS status.
THE ASSESSMENT OF THE PLAINTIFF’S DAMAGES
[7] As will be shown later, the
Recognition Act (No. 120 of 1998) does not
per
se
address the
question of bigamous marriages. The plaintiff’s present claim
based on the
actio
iniuriarum
, is
competently pleaded. In
Amler’s
Precedents of Pleadings
,
6
th
ed. by L T C Harms (2003) at p 190, the following is stated:
“
The
actio iniuriarum grants relief for an impairment of the person,
entity or repetition of the plaintiff, which impairment is committed
wrongfully and animo iniurandi (intentionally)
.”
Furthermore, in Hahlo,
The South African Law of Husband and Wife
5
th
ed at 60 the learned authors say that:
“
…
An action for damages on the ground of breach of promise or fraud
may lie against a person who has induced another by fraudulent
misrepresentations to enter into a void (eg bigamous) marriage with
him.
”
The plaintiff testified that the
defendant told her that he was divorced. She said that she did not
know that he was still married
to Ms Sarah Mofokeng (
cf
Claassen v Van der Watt
1969 (3) SA 68
(T)) where it was held
inter
alia
, that since the
plaintiff knew that the defendant was a married man she was debarred
from bringing an action for breach of promise).
See also
Lloyd
v Mitchell
[2004] 2
All SA 542
(C). More pertinently, in
Snyman
v Snyman
1984 (4) SA
262
(T), the plaintiff applied for an order declaring her marriage to
be null and void on the grounds that her husband was unbeknown
to her
a party to an existing valid marriage. She sued for maintenance of
the minor child of the parties, as well as damages of
R5 000,00 under
the
actio iniuriarum
for the
contumelia
she had suffered arising from the commission of bigamy. At 264D-E of
the judgment, Goldstone J said:
“
That
a claim lies under that cause of action I have no doubt. In
Viljoen
v Viljoen
1944 CPD
137
SUTTON J awarded damages for the
injuria
suffered by a woman
to whom a
promise of
marriage had been made by a man who, unbeknown to her, was married.
…In the present case, there was both
injuria
and
contumelia
attendant upon the
unlawful conduct of the defendant.
”
The defendant in that case was
ordered to pay damages to the plaintiff in the sum of R5 000,00. In
the instant matter, counsel
for the plaintiff, quite correctly in my
view, submitted that Snyman’s case was approved and applied in
Arendse v Roode
[1989]
2 All SA 106
(C). Furthermore, that more recently in
Zulu
v Zulu and Others
[2008] JOL 21484
(D), the Court confirmed the
dictum
laid down in
Snyman
and found that “
the
deceased had married the applicant in a civil marriage at the time
when his marriage to the first respondent still existed.
Marriage to
the applicant was therefore bigamous and unlawful
”.
The Court held that the fact that the applicant was unaware of the
prior marriage of the first respondent did not avail
her, other than
in respect of a claim for damages. In both
Snyman
and
Arendse
the Court took into account essentially, the following factors in
order to determine appropriate damages:
The extent to which the plaintiff had suffered anguish and
humiliation as a result of the defendant’s behaviour;
The plaintiff’s social standing;
The plaintiff’s financial circumstances;
The defendant’s financial circumstances;
The attitude of the defendant and whether he had shown any remorse
or concern for the plaintiff.
In
Arendse
the plaintiff claimed R10 000,00 for impairment of her dignity, and
was awarded the sum of R5 000,00 as damages under the
actio
iniuriarum
.
[8] In the present matter, the
plaintiff has placed on record her personal circumstances and the
circumstances which led to her
claim, as well the
sequelae
of the defendant’s conduct, as sketched above. However, in
determining her damages, each case must be considered on its
own
merits. This much is trite. Furthermore, her evidence that:
Her highest level of education was Std 6;
Although she knew that the defendant was married before, and she
knew the wife, the defendant assured her that he had divorced
his
wife a long time ago;
Although she was never married
before, the plaintiff has two children, born 1980 and 1990,
respectively, sired by two different
fathers. The first child was
born immediately after the plaintiff left school. She separated
from the father. The father
of the second child passed on; this
evidence should militate against any substantial award of damages
in the particular circumstances
of the case (
cf
Snyman v Snyman
(supra)
at 264F).
[9] I am also compelled to
consider that the defendant is employed as a primary school teacher.
His salary advice for the period
31 July 2008, contained in the Court
bundle, shows that his gross salary was R11 222,00, with a nett of R6
066,76. It is however,
reasonably conceivably that the defendant
obtained salary increases since 2008. The Court bundle also reveals
that the defendant
took out a mortgage bond in favour of Nedperm
Bank, in respect of the immovable property situated in Tembisa, in
1990. The bond
amount was R86 385,00. Although the plaintiff
currently occupies the immovable property, the defendant continues to
pay the rates
and taxes to the Ekurhuleni Metropolitan Municipality.
The latest invoice from the latter municipality, dated 2 February
2010,
shows the value of the immovable property to be about R408
000,00.
[10] Based on the above legal
principles, the evidence, and all the information, the crisp issue is
what should be a fair and just
award for general damages for the
impairment of the dignity and reputation of the plaintiff in the
present matter. Counsel for
the plaintiff has urged me, rather
impassionately, to take into account the pattern of awards made in
Snyman v Snyman
(
supra
)
and
Arendse v Roode
(
supra
),
using the Consumer Price Index of 2010. This I shall attempt to do.
I shall also take into account that this is the only claim
the
plaintiff has proved. In a motor vehicle accident related claim, in
Griffiths v Mutual and
Federal Insurance Co
[1993] ZASCA 121
;
1994 (1) SA 535
(A), at 546F, the Court said:
“
In
a case where there is no evidence upon which a mathematical or
actuarially based assessment can be made, the Court will
nevertheless,
once it is clear that pecuniary damage has been
suffered, make an award of an arbitrary, globular amount of what
seems to it to
be fair and reasonable, even though the result may be
no more than an informed guess. (See
Southern
Insurance Association Ltd v Bailey NO
1984
(1) SA 98 (A)
at
113G-114E and the cases there cited.)
”
Having taken into account all the
circumstances of this matter, in my view the amount contained in the
order below is fair and reasonable
compensation for the plaintiff.
The amount of R150 000,00 claimed by the plaintiff in the particulars
of claim is on the excessive
side in the circumstances.
CERTAIN SHORTCOMINGS IN THE
RECOGNITION OF CUSTOMARY MARRIAGES ACT
>
[11] Finally, I deal briefly
with some of the shortcomings in the Recognition Act. Although the
Legislature’s intention in
enacting the Recognition Act was
undoubtedly noble in recognising customary marriages previously
ignored, and in order to put them
on power with civil marriages,
there are however, clearly still problem areas. As stated earlier in
this judgment, the Recognition
Act does not
per
se
address the
question of bigamous marriages or nullity. In T W Bennette
Customary
Law in South Africa
(2004) p 292, the problem is described succinctly as follows:
“
The
absence of a general nullity section, however, is an unfortunate
lacuna in the Act. Although new statutory requirements for
the
creation of a valid customary marriage were specified, the effect of
failing to observe them is uncertain. The terms of the
Act itself
give no clue as to an appropriate response nor does the Law
Commission Report on Customary Marriages.
”
See also Wille’s
Principles
of South African Law
9
th
ed, at p 305. In fact, sec 7(6) of the Recognition Act provides that
a husband in a customary marriage who wishes to enter into
a further
customary marriage with another woman after the commencement of the
Act must make an application to the Court to approve
a written
contract which will regulate the future matrimonial property system
of his marriages. The point made is that in spite
of the intention
to place customary marriages on the same level as civil marriages
entered into in terms of the
Civil Union Act 17 of 2006
, more than
one customary marriage remain permissible. In the context of the
present matter, in the current South African law,
the plaintiff, due
to her marriage to the defendant being void
ab
initio
, has no
recourse in terms of the provisions of sec 8 of the Recognition Act.
The latter section provides that a customary marriage
may only be
dissolved by a decree of divorce on the ground of irretrievable
breakdown of the marriage. This indeed, accords with
the provisions
of
sec 4
of the
Divorce Act 70 of 1979
. In this case, the plaintiff
is denied the order usually accompanying a decree of divorce
concerning the proprietary consequences
and personal consequences.
In the event of the plaintiff seeking to claim a division of property
or maintenance by virtue of her
void marriage, she would have to
formulate a claim based on a breach of contract or based on the
dissolution of a universal partnership.
In such event, the plaintiff
is obliged to join Ms Mofokeng as an interested party considering
that the joint estate between Mrs
Mofokeng and the defendant still
subsists. Ms Mofokeng still holds an undivided half-share in the
joint estate. In this regard,
sec 7(4)(b) of the Recognition Act
provides that in the case of a husband who is a spouse in more than
one customary marriage,
all persons having a sufficient interest in
the matter, and in particular the applicant’s existing spouse
or spouses, must
be joined in the proceedings. The plight of spouses
who end up with customary marriages which are later declared void,
was well-illustrated
in
Kwitsane
v Magalela and Another
1999 (4) SA 610
(Tk). In that case the applicant sought an order
declaring that the customary marriage entered into by and between the
deceased
and the first respondent during 1996 was unlawful and of no
force or effect. The applicant also sought an order that the first
respondent was not entitled to inherit from the deceased estate. The
marriage was governed by the Transkei Marriage Act 21 of
1978. In
declaring the customary marriage as unlawful and of no force or
effect, Kruger AJ also ordered that the first respondent
was not
entitled to inherit from the deceased estate by virtue of the alleged
marriage. In
Wormald NO
and Others v Kambule
[2005] 4 All SA 629
(SCA), the appellants sought the eviction of the
respondent in terms of the Prevention of Illegal Eviction From and
Unlawful Occupation
of Land Act 19 of 1998 (“
PIE
”),
and that the customary marriage that subsisted between the respondent
and her deceased husband to be declared null and
void. The Court held
that although customary law recognises that a husband has a duty to
maintain his wife and provide her with
residential and agricultural
land, she does not however, acquire any real rights in such land. The
ownership vests in the husband’s
estate upon his death.
Further, customary law does not make provision in instances where a
widow is laying claim to property belonging
to a third party, which
is bonded. The Court pointed out that there was no indication on the
papers that the second appellant
was entitled for the purpose of
providing support to the respondent. The Court held that in the
absence of such evidence, the
court
a
quo
had erred in its
finding that the respondent had accrued a right to occupy the
property as a result of the alleged customary marriage.
The
respondent’s occupation of the property was therefore unlawful.
As a result of the shortcomings in the Recognition Act,
particularly
in not regulating the position around void customary marriages, the
present damages claim brought by the plaintiff
is clearly her only
remedy to seek redress against defendant for the hurt, humiliation,
and anguish caused to her person. This
makes the award of equitable
damages more difficult.
[12] There are indeed other
shortcomings and
lacunae
in the provisions of the Recognition Act, such as the jurisdiction
issue, and the registration of customary marriages issue, which
are
unnecessary to deal with in this judgment.
ORDER
[13] For all the above reasons,
the following order is made:
The customary marriage between the parties be and is hereby declared
null and void.
The defendant is ordered to pay damages to the plaintiff in the sum
of R45 000,00.
The defendant is ordered to pay the costs of the action.
_____________________________
D
S S MOSHIDI
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
COUNSEL FOR THE PLAINTIFF MS A THAKOR
INSTRUCTED BY WEBBER WENTZEL
COUNSEL FOR THE DEFENDANT NO APPEARANCE
DATE OF HEARING
…........
29
SEPTEMBER 2010
DATE OF JUDGMENT 15 OCTOBER 2010