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[2014] ZASCA 49
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M v M and Others (893/12) [2014] ZASCA 49; [2014] 2 All SA 644 (SCA); 2014 (4) SA 575 (SCA) (1 April 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 893/12
Reportable
In
the matter between:
T[…]
M[…] M[…]
………………………………………………………………..
APPELLANT
and
N[…]
C[…] M[…]
……………………………………………………
FIRST
RESPONDENT
MINISTER
OF HOME
AFFAIRS
.................................................
SECOND
RESPONDENT
MASTER
OF HIGH
COURT
...........................................................
THIRD RESPONDENT
Neutral
citation:
Murabi v Murabi
(893/12)
[2014] ZASCA 49
(1 April 2014)
Coram:
Mthiyane DP, Petse, Saldulker JJA and Van Zyl and
Legodi AJJA
Heard:
20 March 2014
Delivered:
1 April 2014
Summary
:
Marriage ─ Validity ─ civil marriage contracted while the
man is a partner in a subsisting customary union with third
party
void ─ falling foul of s 1 of the Marriage and Matrimonial
Property Law Amendment Act 3 of 1988.
ORDER
On
appeal from:
Limpopo High Court,
Thohoyandou (Shaik AJ sitting as court of first instance):
1
The appeal is upheld with costs.
2
The order of the court below is set aside and in its place is
substituted the following:
‘
(a)
The customary marriage between the applicant and the deceased
contracted in 1979 is declared valid.
(b)
The civil marriage contracted between the first respondent and the
deceased on 2 August 1995 is declared null and void.
(c)
The first respondent is ordered to pay the costs of the application.’
JUDGMENT
Petse
JA (
Mthiyane DP, Saldulker JA and
Van Zyl and Legodi AJJA
concurring):
[1]
There are two issues for determination in this appeal. The first is
whether the appellant, Ms T[…] M[…] M[…],
was
lawfully married to the late R[…] R[…] G[…] M[…]
(the deceased) who died on 7 April 2011. The second
is whether the
civil marriage of the first respondent, Ms N[…] C[…]
M[…], to the deceased contracted on 2
August 1995 is valid.
[2]
These issues arise against the following backdrop. The appellant
instituted proceedings in the Limpopo High Court, Thohoyandou
in
which she sought against the respondents an order: (a) that the
‘civil marriage’ contracted between the first respondent
and the deceased on 2 August 1995 be declared null and void
ab
initio
; and (b) that the customary
marriage concluded between the appellant and the deceased on 1
November 1979 be declared valid. By
way of consequential relief she
also sought orders directing the second respondent, the Minister of
Home Affairs, to register her
marriage and concomitantly with that to
expunge the civil marriage of the first respondent to the deceased
from the marriage register.
[3]
The principal protagonists both in this court and the high court are
the appellant and the first respondent. The Minister of
Home Affairs
and the Master of the High Court, Thohoyandou
did
not enter the legal fray and both filed, through the State Attorney,
notices to abide the decision of the court. In addition
the master
filed a report, pursuant to Uniform rule 6(9), explaining how it came
about that the first respondent was appointed
as the executrix of the
deceased’s estate.
[4]
In support of her application, the appellant inter alia stated that
on 1 November 1970 she entered into a customary marriage
with
the deceased after lumalo
[1]
in
the sum of R600 was paid to her parents. In 1975 the deceased married
the first respondent in accordance with Venda custom. Soon
after this
marriage her marriage relationship to the deceased became intolerable
and insupportable for her, forcing her to return
to her maiden home
in 1979.
[5]
In 1983 she and the deceased resumed their marriage relationship when
the deceased obtained a residential site for her. On 31
January 1991
her customary marriage to the deceased was registered with the
magistrate in Thohoyandou and pursuant thereto she
was issued with a
certificate as evidence of the registration of the customary
marriage.
[6]
Subsequent to the death of the deceased on 7 April 2011, the
appellant attended at the offices of the third respondent, to report
the death as contemplated in
s 7(1)
(a)
of the
Administration of Estates Act 66 of 1965
. There she discovered
that the death had already been reported by the first respondent and
that the first respondent had been appointed
as the executrix of the
deceased’s estate. The appellant suspected that the first
respondent had claimed to be the sole surviving
spouse and that she
had married the deceased by civil rites in 1995. The appellant, on
her part, asserted that she was the first
wife by reason of her
marriage having been concluded in 1970, whereas the first
respondent’s marriage was concluded in 1979
with the
consequence that the first respondent became the second wife in
keeping with Venda customary law and tradition.
[7]
The allegations made by the appellant in her founding affidavit
elicited the following response from the first respondent. She
disputed that the deceased ever paid lumalo for the appellant and
that the appellant ever married the deceased in 1970 or at all,
contending that both the appellant and the deceased were at that
stage still young. She alleged that when she married the deceased,
the appellant was in fact married to one F[…] R[…] of
T[…] village. Moreover, the first respondent, whilst
alluding
to the possibility of an extra-marital relationship between the
deceased and the appellant, alleged that since the deceased
fell ill
in 1994 until his death on 7 April 2011, the appellant never once
visited him, nor did she attend the deceased’s
funeral.
[8]
In a strange twist, the appellant admitted in her replying affidavit
and supplementary replying affidavit that when the deceased
married
the first respondent she was still married to F[…] R[…].
The appellant further admitted that she had an extra-marital
liaison
with the deceased whilst the latter was married to the first
respondent and that the first respondent ‘was not happy
with
the relationship’. The appellant’s extra-marital
relationship from which two children were born led, the appellant
asserted, to the irretrievable breakdown of the appellant’s
marriage to F[…] R[…].
[9]
On 29 June 2012 the parties concluded a settlement agreement in terms
of which the issues in dispute were circumscribed. The
parties agreed
that the appellant concluded a customary marriage with the deceased
in 1979, the validity of which remained in dispute.
The matter
eventually served before Shaik AJ who found that the appellant failed
to establish the existence of the customary union
asserted by her and
dismissed her application with costs. The learned judge also declared
the first respondent the only surviving
spouse of the deceased. The
appeal to this court is with the leave of the high court.
[10]
In the high court the contentions of the appellant were, in essence,
that: (a) the registration of the appellant’s
customary
marriage with the deceased concluded in 1979 was at the very least
and remained prima facie proof of the existence of
such customary
marriage as contemplated in
s 2(1)
[2]
of
the Recognition of Customary Marriages Act 120 of 1998; (b) s
22(1)
[3]
of
the Black Administration Act 38 of 1927 which provided that a male
person who is a partner in a subsisting customary union cannot
contract a marriage without first making a declaration to a
magistrate or commissioner of the matters dealt with in that section
was unavailing to the first respondent; and (c) that the first
respondent’s marriage to the deceased on 2 August 1995 is
null
and void
ab
initio
because it was hit by the prohibition in s 1
[4]
of
the Marriage and Matrimonial Property Law Amendment Act 3 of 1988 as
the deceased was on that date a partner in a subsisting
customary
union with the appellant. These contentions were summarily dismissed
by the high court.
[11]
The reasons of the high court in rejecting these contentions were in
essence the following. First, the high court, relying
on
Road
Accident Fund v Mongalo
;
Nkabinde
v Road Accident Fund
2003 (3) SA 119
(SCA) para 6, held that as the appellant initially asserted in her
founding affidavit that her customary marriage was concluded
on 1
November 1970, which turned out to be untrue, she could not rely on
the registration certificate issued to her in 1991, for
to allow her
to do so would be assisting her to perpetrate a fraud. Second, that
the appellant had approached the court ‘with
dirty hands’
and withheld ‘material facts in her founding affidavit’.
Third, that having regard to the prescripts
of s 22(1) of the Black
Administration Act the [appellant] had in any event ‘failed to
prove on a balance of probabilities
that the deceased concluded a
valid customary marriage’ with her.
[12]
Before turning to a consideration of counsel’s submissions it
is convenient to make certain preliminary observations
concerning
aspects of the settlement agreement concluded by the parties on 29
June 2012 preceding the hearing of the matter in
the high court. The
settlement agreement obviated the hearing of oral evidence. Most
significantly the first respondent admitted
that the deceased
concluded a customary marriage with the appellant in 1979. Following
the agreement reached between the parties,
only two issues remained
for determination by the court below. The court below was called upon
to decide whether: (a) the appellant’s
customary marriage to
the deceased was valid; and (b) the marriage between the deceased and
the first respondent contracted on
2 August 1995 is valid. The answer
to the first question hinged solely on the construction of the
provisions of s 22(1) of
the Black Administration Act. And the
answer to the latter question hinged on the construction of the
provisions of s 1 of the
Marriage and Matrimonial Property Law
Amendment Act and the status of the appellant’s customary
marriage with the deceased.
Thus, if the appellant’s customary
marriage is valid then in that event the first respondent’s
marriage would not survive.
[5]
Counsel
were in agreement that the customary marriage of the first respondent
to the deceased concluded in 1975 was not in issue.
[13]
In this court, the argument advanced on behalf of the appellant was
in essence the following. First, it was argued that the
existence of
the appellant’s customary marriage was borne out by the
certificate of its registration issued to the appellant
in 1991 which
constitutes conclusive proof of such marriage. Accordingly, so it was
contended, such conclusive proof can only be
rendered invalid if
there is countervailing evidence to show that it was obtained by
fraud, whether by the holder or any other
person.
[14]
The proposition advanced by counsel on behalf of the appellant is of
course supported by decisions of this and other courts.
In
Road
Accident Fund v Mongalo
;
Road
Accident Fund v
Nkabinde
[6]
this
court said (paras 6-7):
‘
[6]
The starting point in establishing the meaning of 'conclusive proof'
must be principle. This Court stated the principle in question
in
African and
European Investment Co Ltd v Warren and Others
.
A statute of the Transvaal Republic provided that a surveying diagram
signed by the State President was to be “een wettig
en
onwederlegbaar document” (a lawful and unimpeachable
document). De Villiers JA observed:
“
But
there is no document in law which is wholly unimpeachable. Any
document can be upset on the ground of fraud.”
[7]
Powerful policy reasons underlie this principle. Deliberate deceit in
the procurement of a document must taint its entire subsequent
existence, and the law cannot permit propagation of the fruits
of dishonesty. The intrinsic meaning of “conclusive”
does
not impede this conclusion. “Conclusive” means “decisive,
convincing” (
The
Concise Oxford Dictionary
).
It suggests that the condition or state it qualifies brings something
to a conclusion. It does not mean that the conclusion in
question
must in all circumstances be unimpeachable or unassailable. In
principle, therefore, a statutory provision that a document
constitutes “conclusive proof” of a state of affairs
cannot immunise the document from attack on the basis that it
was procured fraudulently.’
[7]
Counsel
who appeared for the first respondent conceded that no such
countervailing evidence was presented by the first respondent.
Accordingly, the registration certificate issued to the appellant in
1991 constitutes, at the very least, prima facie proof of
the
existence of the appellant’s marriage.
[8]
Thus,
in the absence of countervailing evidence impugning its authenticity,
it establishes the truth of the fact stated therein.
[9]
[15]
Furthermore, counsel representing the appellant sought to meet the
submission advanced on behalf of the first respondent in
relation to
s 22(1) of the Black Administration Act by contending that the
essence of that provision is that no male who is a partner
in a
subsisting customary union with any woman may contract a civil
marriage with another woman without first paying heed to the
prescripts of that provision. In elaboration it was contended that
there is no legal impediment to a man who is a partner in a
subsisting customary union from concluding a second or subsequent
customary union with another woman, and that s 22(1) does not
purport
to proscribe ─ subject to its requirements being satisfied ─
the conclusion of successive customary marriages
in a polygamous
customary marriage context. And what it sought to regulate was the
proprietary consequences of a marriage by civil
rights when the man
is also a partner to a subsisting customary marriage.
[16]
Section 22 (1) does not itself contain an express provision to the
effect that it applies to marriages other than polygamous
customary
marriages. But to my mind there is merit in the contention advanced
on behalf of the appellant that if regard is had
to the overall
scheme of the Black Administration Act and one contrasts subsections
(a) and (b) of s 9
[10]
there
can be no room for any doubt that a material distinction is drawn
between the two subsections. This has to be seen against
the backdrop
that according to the common law it has always been the case, as this
court found in
Nkambula
,
[11]
that
‘in respect of a man or woman bound by a civil marriage the law
cannot recognise the bond of another “association
of a man and
a woman in a conjugal relationship”. . .’ To my mind
Nkambula
puts paid to the contention advanced on behalf of the first
respondent that the word ‘marriage’ in s 22(1) must be
construed to encompass a customary union. That this is not the case
is put beyond doubt by the amendment introduced by s 9
(a)
and
(b)
of Act 9 of 1929.
[12]
[17]
I turn now to a consideration of the question whether, in the light
of the conclusion that the appellant’s customary
union is
valid, the civil marriage of the first respondent contracted on 2
August 1995 can survive. The answer to this question
lies squarely in
s 1(1) and (2)
[13]
of
the Marriage and Matrimonial Property Law Amendment Act which came
into operation on 2 December 1988. Dealing with the provisions
of s
1(1) and (2), this court said the following in
Netshituka
(paras
14-15):
[14]
‘
[14]
The next question is whether it was competent for the deceased to
contract a civil marriage with the first respondent during
the
subsistence of the customary unions with Tshinakaho and Diana
Netshituka. Section 22 of the Act [Black Administration Act]
was
amended by the Marriage and Matrimonial Property Law Amendment Act,
which came into operation on 2 December 1988. After the
amendment ss
(1) and (2) provided:
“
(1)
A man and a woman between whom a customary union subsists are
competent to contract a marriage with each other if the man is
not also a partner in a subsisting customary union with another
woman.
(2)
Subject to subsection (1), no person who is a partner in a customary
union shall be competent to contract a marriage during
the
subsistence of that union.”
Subsection
(3) barred a marriage officer from solemnising the marriage of
an African “unless he has first taken from
him a declaration to
the effect that he is not a partner in a customary union with any
woman other than the one he intends marrying”.
And in terms of
the amended ss (5) a man who made a false declaration with regard to
the existence or otherwise of a customary
union between him and any
woman made himself guilty of an offence. A marriage officer could
thus not solemnise a marriage where
a man intended to marry a woman
other than the one with whom he was a partner in an existing
customary union. That, in my view,
was the clear intention of the
legislature when it amended s 22 of the Act.
[15]
Subsections (1) – (5) of s 22 of the Act, as amended, were in
force as at the date on which the civil marriage between
the deceased
and the first respondent was contracted. (The subsections were
repealed by the
Recognition of Customary Marriages Act, which
came
into operation on 15 November 2000.) In
Thembisile v Thembisile
Bertelsmann J held that a civil marriage contracted while the man
was a partner in an existing customary union with another
woman
was a nullity. It was not argued in this court that
Thembisile
was wrongly decided. It follows that the civil marriage between the
deceased and the first respondent, having been contracted while
the
deceased was a partner in existing customary unions with Tshinakaho
and Diana, was a nullity.’ (Citations omitted.)
Accordingly,
it goes without saying that the marriage of the first respondent to
the deceased contracted on 2 August 1995 must ineluctably
suffer the
same fate. It follows that it was not legally competent for the
deceased to contract a civil marriage with the first
respondent
during the subsistence of the customary marriage between the deceased
and the appellant. The effect of this conclusion
is that both the
appellant and the first respondent are the deceased’s surviving
spouses in terms of customary law.
[18]
Before concluding there is one other aspect that requires mention. In
this case the record comprises documents that are illegible.
These
documents were annexed to the appellant’s founding papers and
are critical to her case. All of the documents were intended
to
substantiate the appellant’s case that her customary marriage
to the deceased preceded the conclusion of the first respondent’s
civil marriage which she sought to impugn. In addition the appellant
filed a document in support of her case that the deceased
obtained a
residential site on which he built a home for her and the children
born of their customary marriage. Not only is this
document barely
legible it is also in manuscript. A typed version of this document
could easily have been prepared. Unsurprisingly
counsel for the
appellant could offer no explanation for this shortcoming. It is
evident that no consideration was given in the
preparation of the
record to the fact that the foresaid documents could not, in their
condition, serve the purpose for which they
were intended.
[19]
This court has on various occasions in the past expressed its utmost
displeasure at the state of some of the records filed.
In some cases
it has warned that failure to file records that are satisfactory may
lead to an adverse costs order whilst in others
it has made punitive
costs orders or deprive the party responsible for such infraction of
part of its costs. Accordingly, it must
be said without equivocation
that this court views non-compliance with its rules in an extremely
serious light. Thus it will not
hesitate in more serious cases, if
transgressions of this kind persist in the future, to mark its
displeasure by making an appropriate
costs order.
[15]
[20]
In the result the following order is made:
1
The appeal is upheld with costs.
2
The order of the court below is set aside and in its place is
substituted the following:
‘
(a)
The customary marriage between the applicant and the deceased
contracted in 1979 is declared valid.
(b) The civil
marriage contracted between the first respondent and the deceased on
2 August 1995 is declared null and void.
(c) The first
respondent is ordered to pay the costs of the application.’
X M PETSE
JUDGE OF APPEAL
APPEARANCES:
For
the Appellant: A D Ramagalela
Instructed
by:
Mathivha
Attorneys, Thohoyandou
Molefi
Thoabalala Attorneys, Bloemfontein
For
the First Respondent: M S Sikhwari
Instructed
by:
Wisani
Baloyi Attorneys, Makhado
Matsepes
Incorporated, Bloemfontein
[1]
Lumalo
is the Venda equivalent of lobola or ikhazi amongst the Nguni
tribes. See also:
Section 1
of the
Recognition of Customary
Marriages Act 120 of 1998
which defines ‘lobolo’ as:
‘the property in cash or in kind, whether known as lobolo,
bogadi, bohali, xuma,
lumalo, thaka, ikhazi, magadi, emabheka or any
other name, which a prospective husband or the head of his family
undertakes to
give to the head of the prospective wife’s
family in consideration of a customary marriage’.
[2]
Section
2(1)
provides that ‘a marriage which is a valid marriage at
customary law and existing at the commencement of this Act is for
all purposes recognised as a marriage’. The Act came into
operation on 15 November 2000.
[3]
Section
22(1) provides:
‘
No
male [African] shall, during the subsistence of any customary union
between him and any woman, contract a marriage with any
other woman
unless he has first declared upon oath, before the magistrate or
native commissioner of the district in which he
is domiciled, the
name of every such first-mentioned woman; the name of every child of
any such customary union; the nature and
amount of the movable
property (if any) allotted by him to each such woman or house under
native custom; and such other information
relating to any such union
as the said official may require.’ Section 22(1) to (5) since
repealed by the
Recognition of Customary Marriages Act 120 of 1998
.
[4]
Section
1
reads:
‘
(a)
(1)
A man and a woman between whom a customary union subsists are
competent to contract a marriage with each other if the man
is not
also a partner in a subsisting customary union with another woman.
(b)
(2)
Subject to subsection (1), no person who is a partner in a customary
union shall be competent to contract a marriage during
the
subsistence of that union.’
[5]
See
eg
Thembisile
& another v Thembisile & another
2002
(2) SA 209
(T) para 32.
Thembisile
was cited with approval in
Netshituka
v Netshituka & others
2011
(5) SA 453
(SCA) para 15.
[6]
Road
Accident Fund v Mongalo
;
Nkabinde
v Road Accident Fund
2003
(3) SA 119
(SCA) paras 6-7.
[7]
See
also
Registrar
of Asiatics v Salajee
1925 TPD 71
at 72 and 76.
[8]
See
in this regard
s 4(8)
of the
Recognition of Customary Marriages Act
120 of 1998
which reads:
‘
A
certificate of registration of a customary marriage issued under
this section or
any other law
providing for the registration of customary marriages constitutes
prima facie proof of the existence of the customary marriage
and of
the particulars contained in the certificate.’ (My emphasis.)
[9]
Ex
Parte The Minister of Justice: In re R v Jacobson and Levy
1931
(AD) 472 at 474 in which this court said:
‘
Prima
facie proof, in the absence of rebuttal, therefore means clear proof
leaving no doubt.’ See also
Salmons
v Jacoby
1939 (AD) 588 at 593 and the
cases there cited.
[10]
Section
35 of the Black Administration Act which contained a definition of
‘customary union’ was amended in terms
of s 9(a) and (b)
of Act 9 of 1929 which substituted the following definitions:
‘
(a)
''Customary union”
means the association of a man and a woman in a conjugal
relationship according to native law and custom,
where neither the
man nor the woman is a party to a subsisting marriage.
(b)
“
Marriage” means the union of one man
with one woman in accordance with any law for the time being in
force in any Province
governing marriages, but does not include any
union contracted under native law and custom or any union recognised
as a marriage
in native law.’
[11]
Nkambula
v Linda
1951 (1) SA 377
(A) at 381A-D.
[12]
Fn
10 above.
[13]
Fn
3 above.
[14]
Fn
5 above.
[15]
Compare:
Hushon
SA (Pty) Ltd v Pictech (Pty) Ltd & others
1997
(4) SA 399
(SCA) at 415H-J;
Minister
of Health & another v Maliszewski & others
2000 (3) SA 1062
(SCA) paras 33-37.