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[2010] ZAGPJHC 122
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Motsoatsoa v Roro and Others (46316/09) [2010] ZAGPJHC 122; [2011] 2 All SA 324 (GSJ) (1 November 2010)
SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
CASE NO: 46316/09
REPORTABLE
DATE: 1/11/2010
In the matter between:
BOIKHUTSO
BERNICE MOTSOATSOA
Applicant
and
JOHANNA
RORO
1
st
Respondent
MATTHEWS
RORO
2
nd
Respondent
DEPARTMENT
OF HOME AFFAIRS
3
rd
Respondent
J U D G M E N T
MATLAPENG, AJ:
INTRODUCTION
[1] The applicant approached this
Court for an order in the
following terms:
1.1 that it be declared that a
customary marriage existed between the applicant and the late Sandile
Roro (the deceased); alternatively
1.2
that the third respondent
be directed to register the customary marriage between the applicant
and the late Sandile Roro in terms
of the provisions of s 4(7) of the
Recognition of Customary Marriages Act 120 of 1998 (the Act).
The application is brought against the
parents of the deceased (first and second respondents) and the
Minister of Home Affairs (the
third respondent). The Minister is not
opposing the application and has filed a notice to abide by the
decision of the court. The
parents of the deceased are opposing this
application.
FACTUAL BACKGROUND
[2] It is common cause that the
applicant and the deceased were lovers. In 2005 the deceased bought a
house at Kempton Park where
he resided with the applicant until his
death on 21 July 2009. In 2007, the deceased introduced the
applicant to his parents
and informed them of his intention to marry
her.
[3] Pursuant to his declared
intention to marry the applicant, on 10 August 2008 the deceased
through his parents sent emissaries
to the applicant’s parents
to inform them of their wish to enter into negotiations for lobolo.
A date of 4 October
2008 was agreed upon. On that date and
following upon negotiations an amount of R18 000,00 was agreed upon
as lobolo.
Of this amount the deceased’s emissaries
handed over R5 000, 00 to the applicant’s emissaries and the
balance remaining
was R13 000, 00. Unfortunately the deceased
died on 21 July 2009 before he could pay the outstanding balance.
[4] The applicant approached the
Department of Home Affairs with a request to have the customary
marriage between herself and the
deceased registered posthumously.
She did not succeed. She approached this Court for help.
THE ISSUE
[5] The issue to be decided herein is
whether there existed a valid customary marriage between the
applicant and the deceased.
SUBMISSION BY THE PARTIES
[6] It was submitted on behalf of the
applicant that all the requisites for the coming into existence of
the customary marriage
were met and that there is no reason for the
marriage not to be registered and recognised.
[7] On behalf of the first and second
respondents it was submitted that not all the requirements for the
coming into existence
of a customary marriage were met. The
contention was that one of the crucial prerequisites of a valid
customary marriage
namely, the handing over of the bride to the
bridegroom’s family, is amiss.
THE LEGAL POSITION
[8] It is trite that customary
marriage is an age-old institution deeply respected and embedded in
the social-cultural fabric of
all indigenous people of South Africa.
However, over a long period of time during the apartheid era,
customary marriage became
an object of serious distortions.
Regrettably we have now reached a stage where there is a serious and
all-pervasive confusion
regarding the true nature of customary
marriage. With the advent of our new democracy, the
Recognition
of Customary Marriages Act was
passed in an attempt to clarify the
legal status of customary marriages. The preamble thereof
states the following as the
purpose of the Act:
“
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 ...
”
[9] Section 3(1) of the Act deals
with the requirements for the validity of customary marriages. It
provides as follows:
“
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.
”
[10] Whilst the requirements mentioned
in paragraph (a) subparagraphs (i) and (ii) are self-explanatory and
clear, the requirements
that the marriage must be negotiated and
entered into or celebrated in accordance with customary law is vague
as it does not specify
the actual requirements for a valid customary
marriage. A factual determination still has to be made in order
to reach a
finding as to whether this requirement has been complied
with.
[11] The Act defines customary
marriage as “a marriage concluded in accordance with customary
law” and customary law
as “
the customs
and usages traditionally observed among the indigenous African
peoples of South Africa and which form part of the culture
of those
peoples”
. This statement simple as it may sound
creates serious problems regarding how to ascertain the applicable
customary law.
This is compounded by the fact that some
customary and cultural practices among the indigenous people are not
homogeneous.
This is further exacerbated by the fact that there
are many sources of customary law in existence.
[12] This problem was identified in
BHE AND OTHERS v MAGISTRATE, KHAYELITSHA, AND
OTHERS (COMMISSION FOR GENDER EQUALITY AS
AMICUS
CURIAE
); SHIBI v SITHOLE AND
OTHERS; SOUTH AFRICAN HUMAN RIGHTS COMMISSION AND ANOTHER v PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA AND
ANOTHER
(1)
SA 580 (CC) where Ngcobo J (as he then was) in a dissenting judgment
indentified three ways in which customary law can be established.
This is by (i) taking judicial notice of it where it can readily be
ascertained with sufficient certainty, (ii) where it cannot
be
readily ascertained expert evidence may be adduced to establish it
and (iii) by having recourse to text books and case law.
See
par [150] of the report.
[13] As Ngcobo J correctly remarked
in
BHE
, in ascertaining customary law, caution should be
exercised when relying on case law and text books. The same
cautious approach
was spelled out as follows in
ALEXKOR
LTD AND ANOTHER v THE RICHTERSVELD COMMUNITY AND OTHERS
[2003] ZACC 18
;
2004
(5) SA 460
(CC) par [51] footnote 51:
“
Although
a number of textbooks exist and there is a considerable body of
precedent, courts today have to bear in mind the extent
to which
indigenous law in the pre-democratic period was influenced by the
political, administrative and judicial context in which
it was
applied. Bennett points out that, although customary law is supposed
to develop spontaneously in a given rural community,
during the
colonial and apartheid era it became alienated from its community
origins. The result was that the term 'customary law'
emerged with
three quite different meanings: the official body of law employed in
the courts and by the administration (which,
he points out, diverges
most markedly from actual social practice); the law used by academics
for teaching purposes; and the law
actually lived by the people
.”
See too the
BHE
case.
[14] It is regrettable that over the
years, serious divergence has emerged between the living customary
law (customs as practised
by the people in their communities) and
customary law as written by academics and also that which is
contained in case law.
As traditional customary law is not
written, the tendency was to make it subservient to the one written
in statutes, by academics
or in case law. The reality is that
in most instances the customary law embodied in statutes, academic
writings and case
law does not reflect the correct and genuine
customary law. The institution of customary marriage is a
perfect example of
this distortion as I will demonstrate hereunder.
It also has to be realised that customary law is not static but
vibrant
and dynamic in the communities practising it. Despite
years of neglect and suppression, it has developed on its own and
adapted
itself to the changing needs of the communities as they
evolved and developed. This phenomenon is admirably captured by
Ncgobo
J in the
BHE
-case at par
[152] where he stated:
“
It is now
generally accepted that there are three forms of indigenous law: (a)
That practised in the community; (b) that found in
statutes, case law
or textbooks on indigenous law (official); and (c) academic law that
is used for teaching purposes. All
of them differ. This makes
it difficult to identify the true indigenous law. The evolving nature
of indigenous law only compounds
the difficulty of identifying
indigenous law
.”
[15] Ascertaining customary law from
text books and case law does not present problems. The
difficulty lies in determining
the current customary law as practised
in the communities. This is stated as follows at par [
154]
in the
BHE
-case:
“
The
evolving nature of indigenous law and the fact that it is unwritten
have resulted in the difficulty of ascertaining the true
indigenous
law as practised in the community. This law is sometimes referred to
as living indigenous law. Statutes, textbooks and
case law, as a
result, may no longer reflect the living law. What is more, abuses of
indigenous law are at times construed as a
true reflection of
indigenous law, and these abuses tend to distort the law and
undermine its value. The difficulty is one of identifying
the living
indigenous law and separating it from its distorted version
.”
Therefore true customary law as
currently practised in the communities has to be separated from the
distorted version. One
also has to be alive to the changes
brought about by the Act.
[16] Proving the existence of a
customary marriage should not present many problems as the
formalities for the coming into existence
of marriage have
crystallised over the years. The reasons for these are not hard to
find. The institution of customary marriage
is an age-old and
well respected one, deeply embedded in social fabric of Africans.
The formalities relating thereto are
well known and find application
even in the marriages of the majority of Africans who marry by civil
rites as the two marriages
are celebrated side by side. Any
distortions and deviations to the formalities can easily be
identified, particularly by those
who are well-versed with the real
and true customary law.
[17] As described by the authors
Maithufi I.P. and Bekker J.C.,
Recognition of Customary Marriages
Act 1998
and its Impact on Family Law in South Africa
CILSA 182
(2002) a customary marriage in true African tradition is not an event
but a process that comprises a chain of events.
Furthermore it
is not about the bride and the groom. It involves the two
families. The basic formalities which lead
to a customary
marriage are: emissaries are sent by the man’s family to the
woman’s family to indicate interest in
the possible marriage
(this of course presupposes that the two parties man and woman have
agreed to marry each other); a meeting
of the parties’
relatives will be convened where lobolo is negotiated and the
negotiated lobolo or part thereof is handed
over to the woman’s
family and the two families will then agree on the formalities and
date on which the woman will then
be handed over to the man’s
family which handing over may include but not necessarily be
accompanied by celebration (wedding).
See also
FANTI
v BOTO AND OTHERS
(5) SA 405 (C)
,
CHAKALISA v MMEMO
(CACLB 04106)
[2008]
BWCA 11
(30 January 2008).
[18] Reverting to the facts of the
matter at hand, the applicant put much reliance on the handing over
of lobolo to her family
by the respondent’s emissaries.
Although the handing over of lobolo is in terms of the Act not listed
as a requirement
for the coming into existence of a customary
marriage, it is intrinsically linked with its existence. It is
one of the pillars
and an important one in the concatenations of
processes leading to marriage. It is difficult to imagine a
customary marriage
existing in the true African context where any
lobolo or part thereof has not been handed over to the bride’s
family.
Thus lobolo or handing over thereof to the bride’s
family will form part of the evidentiary material to prove the
existence
of marriage. However, the mere fact that lobolo was
handed over to the applicant’s family, significant as it is, is
not conclusive proof of the existence of a valid customary marriage.
[19] One of the crucial elements of a
customary marriage is the handing over of the bride by her family to
her new family namely
that of the groom. As the man’s
family gained a daughter through the marriage, from her family, the
bride is invariably
handed over to him at his family’s
residence. Handing over of the bride (
go gorosa ngwetsi
(Tswana)/ ukusiwa ko makoti e mzini e hamba noduli (Xhosa)
) is
not only about celebration with the attendant feast and rituals.
It encompasses the most important aspect associated
with married
state namely
go laya/ukuyala/ukulaya
in vernacular.
There is no English equivalent of this word or process but loosely
translated it implies “coaching”
which includes the
education and counselling both the bride and the groom by the elders
of their rights, duties and obligations
which a married state imposes
on them. This is the most important and final step in the chain
of events happens in the presence
of both the bride and the groom’s
families. One can even describe this as the official seal in
the African context,
of the customary marriage.
[20] The handing over of the bride is
what distinguishes mere cohabitation from marriage. Until the
bride has formally and
officially handed over to the groom’s
people there can be no valid customary marriage. T.W. Bennett,
Customary Law in South Africa 18th Edition
states at 217
that:
“
Hence, when the
Recognition
of Customary Marriages Act provides
that, in order to qualify as
customary, a marriage must be ‘negotiated and entered into or
celebrated in accordance with
customary law’, the form of
negotiations, the handing over of a bride and the wedding are all
relevant to giving the union
the character of a customary marriage.
It may then be distinguished, on the one hand, from an informal
partnership and, on the
other, from a marriage according to other
cultural or religious traditions
.”
In terms of practised or living
customary law the bride cannot hand herself over to the groom’s
family. She has to be
accompanied by relatives.
[21]
The applicant is putting much emphasis on the fact that the two were
residing together after lobolo was handed over.
She states
further that the deceased’s family acquiesced in this
arrangement. This is denied by the deceased’s
family.
The mere fact that the deceased and applicant stayed together does
not transform their cohabitation into a valid
customary marriage.
She is also silent on the question of handing over with its attendant
responsibilities and who handed
her over to the deceased’s
family.
[22] It is also crucial to accord
proper weight in the consideration of this matter to the averments by
first and second respondents
that the applicant’s guardian
insisted that the handing over of the bride will only take place once
the whole lobolo as agreed
upon during negotiations has been handed
over. In my judgment even if the deceased’s parents
acquiesced to the living
arrangement between the applicant and the
deceased, that in itself could not have transformed what was
primarily a mere cohabitation
into a valid customary marriage.
This would be an unfortunate perversion of customary law.
[23] I am satisfied that on the fact
placed before me, no customary marriage was shown to have existed
between the applicant and
the deceased.
ORDER
[24] In the circumstances I make the
following order:
The
application is dismissed with costs.
D.I.MATLAPENG
ACTING JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG