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[2014] ZASCA 76
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Moropane v Southon (755/2012) [2014] ZASCA 76 (29 May 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 755/2012
Not
Reportable
In
the matter between
MOHAU
JACKSON
MOROPANE
................................................................................
APPELLANT
and
ELIZABETH
SOUTHON
.............................................................................................
RESPONDENT
Neutral
citation:
Moropane v Southon
(755/12)
[2014] ZASCA 76
(29 May 2014)
Coram:
Mthiyane DP, Maya, Bosielo and Theron
JJA and Van Zyl AJA
Heard:
03 March 2014
Delivered:
29 May 2014
Summary
:
Customary law –
Recognition of Customary Marriages Act 120 of
1998
– requirements for a valid customary marriage -
Section
3(1)
– whether the requirements for a valid customary marriage
were met.
ORDER
On
appeal from:
The South Gauteng High
Court, Johannesburg (Saldulker J sitting as a court of first
instance):
The
appeal is dismissed with costs.
JUDGMENT
Bosielo
JA (Mthiyane DP, Maya and Theron JJA and Van Zyl AJA concurring):
[1]
At the heart of this appeal is the question, when does a customary
marriage entered into after the commencement of the Recognition
of
Customary Marriages Act 120 of 1998 (the Act) become valid? One would
have thought that the simple answer lies in s 3(1) of
the Act.
However, this case proves that the answer to this question might not
be as easy as it appears.
[2]
The respondent avers that on 17 April 2002, the appellant, Mr Mohau
Jackson Moropane, sent a delegation led by his brother,
Mr Strike
Moropane, (Strike) to the respondent’s, Ms Elizabeth Southon,
parental home in Seshego, Polokwane. Certain negotiations
were
carried out between the two families which culminated in an agreed
amount of R6 000 being paid by the appellant’s
delegation
to her family. What this payment was for is in dispute. The
respondent avers that it was for her lobola, agreed upon
by the
representatives of their respective families. The appellant disputes
this vigorously. He asserts that the payment was merely
a symbolic
gesture for opening negotiations (go bula molomo/go kokota) for the
respondent as his future wife.
[3]
According to the respondent from 17 April 2002 until she left in
November 2009, they lived together in a common home in Johannesburg
as man and wife. The respondent avers that their cohabitation was a
customary marriage whereas the appellant asserts that it was
a mere
cohabitation. This dispute culminated in a case which was heard by
the South Gauteng High Court (Saldulker J) which held
that a valid
customary marriage was concluded. Aggrieved by this finding, the
appellant appeals to this Court, with leave of the
high court.
[4]
For a proper understanding of the dispute in this case it is
necessary to set out in full the background facts. It is common
cause
that the parties met and fell in love during 1995. At that time, the
appellant was still married to his former wife whom
he divorced in
October 2000 after which the respondent moved in with the appellant.
From this date they both lived together at
the appellant’s
house in Morningside Manor, Johannesburg.
[5]
In early 2002, the appellant proposed marriage to the respondent, who
accepted. Although the parties are agreed on the intended
marriage
they differ as to its nature. Were they going to be married according
to customary law or civil rites? The respondent
maintains that it was
to be by customary law whilst the appellant stands firm that it was
to be by civil rites. The determination
of this dispute is pivotal to
the question whether a customary marriage or civil marriage came
about.
[6]
What follows is broadly the respondent’s evidence supported by
three witnesses. She testified that after having lived
together for
some time the appellant proposed to marry her by customary rites
which proposal she accepted. Following this, the
appellant, as
already mentioned, sent his emissaries, comprising of Strike, Jojo,
his sister, his father’s sister, Mmantoa
Moropane, his
brother-in-law, Thipe Seema, and his cousin Billy Moropane to
respondent’s home in Seshego, Polokwane to enter
into
negotiations with her family for purpose of marrying her (go batla
sego sa metsi)
[1]
as it is
custom. Her family was represented by a delegation of some elders led
by her brother, Mameta Gilbert Mamabolo. The
delegation
included her sister, Rethabile Pauline Phashe, her mother’s
cousin, Mmaphefo Francina Malotane, Ragele Rachel
Sefefe, her uncle,
Makgathi Ernest Mamabolo and a family friend Tebedi John Mokomo.
[7]
The respondent’s aunt Monica Malaza acted as a facilitator or
go-between (Mmaditsela) for the respondent’s family
(the
Mamabolos) whilst Strike played the same role for the appellant’s
family (the Moropanes). Initially the respondent’s
family
demanded R10 000 for lobola. Following some intense negotiations
this amount was ultimately reduced to R6 000
which the
appellant’s family accepted and duly paid. After the lobola was
paid, the two families exchanged gifts in accordance
with the Pedi
custom. The Moropanes gave the Mamabolos two blankets, one for the
respondent and the other one for her mother as
well as knives and
cutlery. In terms of their Pedi culture the Moropanes should also
have brought a present for the respondent’s
father but as they
did not have it, they paid money in its stead.
[8]
In the course of the day’s event, the Mamabolos gave the
Moropanes a sheep which was then slaughtered to signify the new
union
between the two families brought about by the customary marriage
between the appellant and the respondent. The sheep was
shared
between the two families and the remaining portion was cooked and
served to the people who attended the ceremony.
[9]
This was followed by some festivity during which the two families and
the people who had gathered at the Mamabolos’ residence
sang,
danced, ululated and partook in food and drinks in celebration of the
customary union. As it is taboo in their Pedi culture
for the
respondent to be seen by her new in-laws in ordinary clothes Jojo
draped her with the blanket which the Moropanes had bought
for her.
This festivity was captured in a number of photographs which were
tendered and accepted as exhibits by the court below.
All these
events give character to a customary union.
[10]
Later that day a closed meeting was held between the two families
when the appellant’s delegation requested the respondent’s
family to permit the newly wed bride (makoti) to be delivered to
their home. As part of the Pedi custom, the respondent’s
elders
then counselled her (go laiwa) regarding how she was expected to
comport herself at the appellant’s family home as
the bride
(makoti). This cultural ritual as testified to by experts who gave
evidence is essential and deeply embedded in the institution
of
customary marriage. Later on the respondent was driven to the
appellant’s home in Atteridgeville, Pretoria. She was
accompanied
by Ms Malotana, who acted as her envoy and delivered her
to her in-laws. Jojo travelled with them.
[11]
Upon their arrival at the appellant’s home in Atteridgeville,
later that evening, the respondent was received into the
house by the
appellant’s sisters. This was preceded by a celebratory
reception with people singing, ululating and dancing
for the couple
in the street. Later on the appellant’s sisters, Jojo and
Dikeledi welcomed the respondent into their home
as the makoti and
counselled her (go mo laya)
[2]
in accordance with their culture about how they expected her to
behave in their home as the makoti in line with their culture.
[12]
After these customary rituals, the respondent left for the parties’
common home accompanied by Ms Malotana. From this
day, the couple
lived together as man and wife at the appellant’s residence
until their marriage experienced serious problems.
These culminated
in the respondent leaving the appellant permanently and returning to
her home in Polokwane during November 2009.
[13]
It suffices to state that the respondent’s version is confirmed
in all material respects by her witnesses Ms Malotane,
Mameta Gilbert
Mamabolo and Monica Malaza. Essentially, all three of them testified
that a customary marriage was concluded and
celebrated in terms the
customary law on 17 April 2002 between the appellant and the
respondent. Importantly, they testified that
the customary marriage
was sealed officially by the transfer of the respondent from her
family and delivery to her in-laws by Ms
Malotana, acting on behalf
of the respondent’s family that evening in Atteridgeville.
[14]
Contrariwise, the appellant’s version is as follows. In essence
he disputes that a valid customary union was negotiated
and concluded
between him and the respondent as alleged by the respondent. Although
he agrees that he had sent Strike, as his emissary
to the
respondent’s place to begin exploratory discussions with them
about lobola on 17 April 2002, he denies that he had
instructed him
to pay lobola and conclude a customary marriage. According to him his
mandate to Strike was to pay pula molomo/go
kokota,
[3]
being the equivalent of opening negotiations only. He testified that
Strike was alone. He was emphatic that there was no delegation
which
had accompanied Strike to Seshego.
[15]
Although he admitted that the respondent, accompanied by her aunt,
came to his home in Atteridgeville that night, he maintained
that she
had brought Jojo home and not for her to be delivered as a makoti.
According to the appellant the cohabitation with the
respondent
subsequent to 17 April 2002 was based on the fact that he had paid
R6 000 for her. In his understanding he had
‘ring-fenced’
her which accorded him certain privileges, including treating her as,
and calling her his wife.
[16]
The appellant asserted that he could not have agreed to marry by
customary law as he does not live his life according to African
customs more so as he had been married by civil rites before. His
explanation as to why he agreed to pay lobola which is inarguably
an
African cultural practice is that ‘it is a small part of the
tradition that we take out’ implying that it was meaningless
for him.
[17]
I interpose here to state that there are a number of important events
which took place between 2002 and November 2009 whilst
the parties
lived together in Johannesburg which merit special consideration.
Amongst these are that the appellant bought the respondent
an 18
carat yellow ring which he arranged with a jeweller to redesign as a
wedding ring; he organised a lavish 50
th
birthday for her which was captured on a DVD; he admitted that at
this birthday he freely referred to her as his customary law
wife;
Strike also referred to her as the appellant’s wife at this
party; the appellant further referred to her mother as
his
mother-in-law and Gilbert, as his brother-in-law; when he applied for
her to be a member of the prestigious Johannesburg Country
Club, he
described her as his customary law wife and also when he applied for
a protection order against her at the Randburg Magistrates’
Court, he described her as his customary law wife. Crucially all
these events are not in dispute.
[18]
On being asked why he referred to the respondent as his wife, he
prevaricated. First, he said that it is because as a person
of
advanced age it would have been embarrassing to call her his
girlfriend. Secondly, he asserted that he called her his customary
law wife because he was entitled to call her that as he had
‘ring-fenced’ her.
[19]
Strike then testified for the appellant. He confirmed that he went to
the respondent’s place on 17 April 2002 as per
the appellant’s
instructions. His mandate was not to pay lobola for the respondent
but to open negotiations for lobola (go
kokota/go bula molomo), so he
testified. According to him, he never had instructions from the
appellant to conclude any customary
marriage with the respondent. He
denied that he was with a delegation. His evidence was that he paid
R6 000, not as lobola
but as a customary token to open
negotiations (go kokota/go bula molomo). Concerning the presence of
Jojo at the respondent’s
place, he explained that she was there
because she is friends with the respondent. He denied that Jojo was
part of the delegation.
He also denied having discussed the purpose
of his visit there with Jojo on that day.
[20]
When confronted with photographs which showed members of his family
and the respondent’s family participating in festivity
at the
respondent’s home that day, Strike denied that there was any
celebration for a customary marriage. Similarly, he denied
that there
was a similar celebration at his parental home in Atteridgeville to
welcome the respondent as the makoti later that
night.
[21]
The appellant and Strike were subjected to a searching
cross-examination. They were also confronted with photographs which
were taken on this day as well as the various public utterances
during which the respondent was referred to as the appellant’s
wife. It is not surprising that they did not come out unscathed from
their forensic sparring match with the respondent’s
counsel.
[22]
Strike had serious problems to explain the presence and role played
by Jojo during the ceremony at Seshego on 17 April 2002.
He testified
that she was there on a frolic of her own.
[23]
The falsehood in both Strike and the appellant’s persistent
denial that the latter had sent a delegation was exposed
by the
appellant, who in his answering affidavit suffered a Freudian slip
when he stated that:
‘
A
delegation had been sent as previously stated, headed by my brother
who the Applicant refers to as Strike. I was not present and
do not
know who was part of the delegation.’
It
is noteworthy that Strike, despite his persistent denial that he was
accompanied by a delegation confirms the appellant’s
assertion
as correct in his confirmatory affidavit
[24]
It is clear from the record that Strike was not a reliable witness.
He came across as very arrogant, evasive, longwinded and
argumentative. At some stage when he got himself into a knot, he
sought some refuge in boasting that he has three degrees. The
relevance of this response still evades me.
[25]
The appellant himself did not perform better during his
cross-examination. He, too, was evasive and unconvincing with his
responses. He also came across as being unnecessarily argumentative
and longwinded. He offered no plausible response to the damning
photographs taken at Seshego on that day
save
to allege that this was a cleansing ceremony which had been arranged
for the respondent by her family, which Strike and her
sister
attended. However he asserted that he was not present. He also had
serious difficulties to explain why on more than one
occasion he
referred to the respondent as his wife.
[26]
On the other hand, the record showed the respondent to have been an
honest and candid witness. She was never evasive or hesitant
in her
responses. She gave a clear and coherent account of the events. The
same can be said about all her witnesses. Crucially,
they
corroborated the respondent’s version in all its material
respects.
[27]
The appellant’s counsel launched a two-pronged attack against
the judgment of the court below. In the main,
he
submitted that there is no evidence that the parties had ever agreed
to conclude a customary marriage, thus suggesting that the
requirement in s 3(1)(
b
)
of the Act was not met; second, that the appellant would not have
married by custom as neither of the parties lived their lives
in
accordance with customary law or culture. Although he could not
dispute that the two families met and had negotiations, he contended
that all that happened on 17 April 2012 was meant to be preliminary
or exploratory discussions about lobola (go kokota or go bula
molomo)
and not to conclude a customary marriage.
[28]
However, the appellant’s counsel had serious difficulty
explaining why the appellant would pay R6 000 to open
negotiations
for lobola (go kokota/go bula molomo) which is
admittedly an important cultural practice integral to a customary
marriage if he
does not live his life according to African culture.
He contended further that as there was no common intention between
the parties
to marry by customary rites, there could never have been
a valid customary marriage.
[29]
Respondent’s counsel countered this contention by submitting
that the evidence as a whole points overwhelmingly to no
other
conclusion than to the existence of a valid customary marriage. He
submitted that it is clear from what occurred on 17 April
2002, that
all the legal requirements of a customary marriage as set out in s
3(1) of the Act were met.
[30]
Respondent’s counsel submitted further that as a final step to
validate a customary marriage, the respondent was later
that evening
taken to Atteridgeville at the appellant’s home accompanied by
an envoy Mrs Malotana, her uncle’s wife,
for her to be formally
handed over to the Moropanes, her in-laws. Further, that upon her
arrival at Atteridgeville, she was welcomed
by the appellant’s
sisters, who after some festivity accompanied by singing, ululating
and dancing also counselled (laya)
her in terms of their culture,
this being the official seal of a customary marriage.
[31]
He also contended that as further proof of the customary marriage,
both the appellant and the respondent drove to the appellant’s
home in Morningside late that evening, where they cohabited as man
and wife until on 16 November 2009, when she left as their marriage
had broken down irretrievably.
[32]
In conclusion, he contended that the appellant’s utterances and
behaviour towards the respondent after 17 April 2002
as fully set out
above are irrefutable testimony that the parties were married
according to customary law and, importantly, that
he publicly
acknowledged her as such.
[33]
Ultimately the resolution of the dispute between the parties comes
down to the question whether the high court erred in finding,
on a
conspectus of the evidence, that a valid customary marriage was
concluded between the parties on 17 April 2002. To my mind,
the
answer to this question lies in s 3(1) of the Act which provides
that:
‘
For
a customary marriage entered into after the commencement of the 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’.
[34]
It is clear from the above section that these are the only three
basic statutory requirements for the validity of a customary
marriage, the so-called jurisdictional requirements.
[35]
The requirement in s 3(1)(
b
)
that ‘the marriage must be negotiated and entered into or
celebrated in accordance with customary law’ is clear and
unambiguous. Even the Legislature did not consider it necessary to
define it. This is understandable as customary law is as diverse
as
the number of different ethnic groups we have in this beautiful
country. Although Africans in general share the majority of
customs,
rituals and cultures, there are some subtle differences which, for
example, pertain exclusively to the Ngunis, Basotho,
Bapedi, VhaVenda
and the Vatsonga. This is due to the pluralistic nature of African
societies.
[36]
Furthermore, African law and its customs are not static but
dynamic.
[4]
They develop and
change along with the society in which they are practised. This
capacity to change requires the court to investigate
the customs,
cultures, rituals and usages of a particular ethnic group to
determine whether their marriage was negotiated and concluded
in
terms of their customary law at the particular time of their
evolution. This is so particularly as the Act defines ‘customary
law’ as the customs and usages traditionally observed among the
indigenous African peoples of South Africa and which form
part of the
cultures of those people.
[37]
It follows that it would be well-nigh impossible and undesirable to
attempt an exhaustive and all-inclusive definition of a
phrase which
is susceptible to variations depending on which particular ethnic
group it relates to. The most salutary approach
to ascertaining the
real meaning of this requirement is by examining the current cultural
practices and customary law of that particular
ethnic group as the
Constitutional Court did in
MM
v MN
.
[5]
When confronted with the problem concerning the role which the
consent of the first wife plays in relation to the validity of her
husband’s subsequent polygamous customary marriage of the
Vatsonga in terms of Xitsonga customary law the Constitutional
Court
stated as follows at para 48:
‘
It
is incumbent on our courts to take steps to satisfy themselves as to
the content of customary law and, where necessary, to evaluate
local
custom in order to ascertain the content of the relevant rule’.
Importantly the
Constitutional Court expressed a salutary warning at para 51 as
follows:
‘
It
should also be borne in mind that customary law is not uniform’.
[38]
How then does a court determine what the current customary law,
called ‘the living customary law’, applicable to
a
particular case is? This question has proved to be problematic for
our courts. Whilst grappling with this polemic, the Constitutional
Court lit the dark pathway in
Bhe v Magistrate, Khayelitsha
above
at para [150] where it stated:
‘
How
to ascertain indigenous law?
[150]
There are at least three ways in which indigenous law may be
established. In the first place, a court may take judicial notice
of
it. This can only happen where it can readily be ascertained with
sufficient certainty. Section 1(1) of the Law Evidence Amendment
Act
45 of 1988 says so. Where it cannot be readily ascertained, expert
evidence may be adduced to establish it. Finally, a court
may consult
text books and case law.
[151]
Caution, however, must be exercised in relying on case law and text
books. In
Alexkor
we emphasised the need for caution and said:
“
(not
clear where this quote ends) Although a number of text books 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.
[152]
It is now generally accepted that there are three forms of indigenous
law: (a ) That practiced 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.
The
evolving nature of indigenous law
[153]
Indigenous law is dynamic system of law which is continually evolving
to meet the changing circumstances of the community
in which it
operates. It is not a fixed body of classified rules. As we pointed
out in
Alexkor
:
“
In
applying indigenous law, it is important to bear in mind that, unlike
common law, indigenous law is not written. It is a system
of law that
was known to the community, practised and passed on from generation
to generation. It is a system of law that has its
own values and
norms. Throughout its history it has evolved and developed to meet
the changing needs of the community. And it will
continue to evolve
within the context of its values and norms consistently with the
Constitution”.’
[39]
Two expert witnesses, Mr Sekhukhune for the appellant and Professor
Mokgatswane for the respondent, were called to testify
on Pedi
customary marriages in an attempt to assist the court to determine
whether the marriage between the parties was ‘negotiated
and
entered into or celebrated in accordance with customary law’ of
the Bapedi people. This is in line with the authority
of
Masenya
v Seleka Tribal Authority & another,
[6]
and
Hlophe
v Mahlalela & another.
[7]
Except for minor and inconsequential differences on cultural rituals,
both experts were agreed that the current customary requirements
for
a valid customary marriage amongst the Bapedi people include amongst
others, negotiations between the families in respect of
lobola; a
token for opening the negotiations (go kokota or pula molomo);
followed by asking for the bride (go kopa sego sa metsi);
an
agreement on the number of beast payable as lobola (in modern times
this is replaced by money); payment of the agreed lobola;
the
exchange of gifts between the families; the slaughtering of beasts; a
feast and counselling (go laiwa) of the makoti followed
by the formal
handing over of the makoti to her in-laws by her elders.
[40]
Importantly, the two experts agreed that the handing over of the
makoti to her in-laws is the most crucial part of a customary
marriage. This is so as it is through this symbolic customary
practice that the makoti is finally welcomed and integrated into
the
groom’s family which henceforth becomes her new family. See
Motsotsoa
v Roro & another
[8]
and The Current Legal Status of Customary Marriages in South Africa,
I. P. Maithufi and GBM Moloi, Journal of SA Law, 2002, p599,
and
Bennett (above) at p217.
[41]
However, the two experts had some differences of opinion on certain
cultural practices of the Bapedi concerning customary marriages.
They
filed a joint minute recording their differences. To my mind, these
are insignificant variations which do not detract from
the validity
of a customary marriage. These relate to amongst others, whether
money can be used as lobola in the place of cattle;
whether it was in
accordance with Pedi culture to slaughter a sheep instead of a cow;
whether the ribs (letlhakore) was given to
the tribal Chief; whether
the groom’s people were given the front limb (letsogo); whether
a calabash of African beer was
given to the groom’s people.
[42]
Mr Sekhukhune testified to a large extent about the Bapedi customary
marriage as it is practised and observed in rural areas,
in other
words a traditional Pedi customary marriage which has not been
influenced by modern developments like urbanisation, western
culture
and the all-pervasive Christianity. He conceded, however, that the
position in urban areas is different as the people there
are ‘sort
of cosmopolitan type of African people’.
[43]
On the other hand, the testimony of Professor Mokgatswane, was more
about current customary practices which apply in ‘modern
cosmopolitan times in the cities’. Essentially, his evidence
was that traditional customary practices have evolved over time
as
Africans left rural villages and migrated to urban areas and became
exposed to other cultures.
[44]
Some brief comments on the Act are apposite. It has great
significance for the African people in general. As its Preamble
clearly specifies, its primary objective is to give customary
marriages recognition which was not the case under the past odious
apartheid regime. It aspires to rid customary marriage of the
pariah-status and stigma attached to it by the apartheid regime and
accord it dignity and legal validity. As the Constitutional Court
remarked rather poignantly in
Gumede
v President of Republic of South Africa & others:
[9]
‘…
it
[the Recognition Act] represents a belated but welcome and ambitious
legislative effort to remedy the historical humiliation
and exclusion
meted out to spouses in marriages which were entered into in
accordance with the law and culture of the indigenous
African people
of this country’.
[45]
That customary law and it various institutions, including marriage is
the subject of an evolutionary process and continues
to be so, to
which factors such as urbanisation, exposure to western culture and
other religious practices contributed, is correct.
This important
characteristic of African law as a living law is widely acknowledged
by our courts and some academic writers like
T. W. Bennett: A
Sourcebook of African Customary Law of Southern Africa at p204-223;
Mabena v Letswalo
1998 (2) SA 1068
T(PD) at p1074H-J and the Constitutional Court in
Bhe v Magistrate, Khayelitsha
(above)
para [154].
[46]
I can only hope that this unashamedly aspirational piece of
legislation will serve the laudable purpose of freeing people from
the shackles of colonial tendencies which sought to relegate
marriages negotiated, concluded and celebrated in accordance with
customary law to a status less than that of marriages concluded and
solemnised by civil rites. African customary marriages deserve
to be
put on the same pedestal as civil marriages. These same sentiments
were echoed by the Constitutional Court in
Gumede
(above) at
para [22] as follows:
‘…
Secondly,
the adaptation would salvage and free customary law from its stunted
and deprived post. And lastly, it would fulfil and
reaffirm the
historically plural character of our legal system, which now sits
under the umbrella of one controlling law –
the Constitution.
In this regard we must remain mindful that an important objective of
our constitutional enterprise is to be united
in our diversity. In
its desire to find social cohesion, our Constitution protects and
celebrates difference…’
[47]
To sum up, it is not in dispute that both parties are above the age
of 18 years. The only two issues which are seriously contested
are
lack of consent by the appellant to marry by customary law (s
3(1)(
a
)(
ii
)
of the Act) and, whether the marriage was negotiated and entered into
in accordance with customary law (s 3(1)(
b
)
of the Act).
[48]
How then does one resolve these two contentious issues which the
appellant placed in dispute? Sufficient evidence was adduced
by both
parties regarding amongst others, their relationship, the
circumstances and events which took place on 17 April 2002, and
importantly, the behaviour of the parties after this day. In addition
some photographs recording the events of 17 April 2002 and
a video
cassette showing a celebration of respondent’s 50
th
birthday were accepted as exhibits.
[49]
Contrary to the evidence by both the appellant and his brother
Strike, that there was no delegation, it is clear from the evidence
and photographs which were admitted as exhibits that there was a
strong delegation of the appellant’s family which travelled
from Atteridgeville to the respondent’s home in Seshego on 17
April 2002. Furthermore, it is not in dispute that there were
negotiations between the two families as a consequence of which an
amount of R6 000 was paid by the Moropanes to the Mamabolos.
Crucially, photographs show the appellant’s sister, Jojo
draping the bride with a blanket and clear evidence of celebration.
[50]
It is clear that the versions of the appellant and the respondent are
incompatible. In order to resolve this impasse, the trial
judge had
to consider and weigh the probabilities to determine which version is
more probable than the other. She also had to consider
the
credibility and reliability of the various witnesses. The test to be
applied in such a case was enunciated lucidly as follows
in
National
Employers’ General Insurance v Jagers:
[10]
‘
It
seems to me, with respect, that in any civil case, as in any criminal
case, the onus can ordinarily only be discharged by adducing
credible
evidence to support the case of the party on whom the onus rests. In
a civil case the onus is obviously not as heavy as
it is in a
criminal case, but nevertheless where the onus rests on the plaintiff
as in the present case, and where there are two
mutually destructive
stories, he can only succeed if he satisfies the court on a
preponderance of probabilities that his version
is true and accurate
and therefore acceptable, and that the other version advanced by the
defendant is therefore false or mistaken
and falls to be rejected. In
deciding whether that evidence is true or not the court will weigh up
and test the plaintiff’s
allegations against the general
probabilities. The estimate of the credibility of a witness will
therefore be inextricably bound
up with a consideration of the
probabilities of the case and, if the balance of probabilities
favours the plaintiff, then the court
will accept his version as
being probably true. If however the probabilities are evenly balanced
in the sense that they do not
favour the plaintiff’s case any
more than they do the defendant’s, the plaintiff can only
succeed if the court nevertheless
believes him and is satisfied that
his evidence is true and that the defendant’s version is false.
This
view seems to me to be in general accordance with the views expressed
by Coetzee J in
Koster Ko-operatiewe
Landboumaatskappy Bpk v Suid-Afrikaanse Spoorwee en Hawens
(supra) and
African Eagle Assurance Co
Ltd v Cainer
(supra). I would merely
stress however that when in such circumstances one talks about a
plaintiff having discharged the onus which
rested upon him on a
balance of probabilities that means that he was telling the truth and
that his version was therefore acceptable.
It does not seem to me to
be desirable for a court first to consider the question of the
credibility of the witnesses as the trial
Judge did in the present
case, and then having concluded that enquiry, to consider the
probabilities of the case., as though the
two aspects constitutes
separate fields of enquiry. In fact, as I have pointed out, it is
only where a consideration of the probabilities
fails to indicate
where the truth probably lies, that recourse is had to an estimate of
relative credibility apart from the probabilities.
[51]
Having regard to the above dictum, the finding by the trial judge of
serious improbabilities in the appellant’s version
was correct.
For instance, as indicated above, a series of photographs proved
without doubt that there were some people at the
respondent’s
home on this day; Jojo, the appellant’s sister is depicted
draping the respondent with a blanket; some
photographs showed clear
evidence of some celebration at the respondent’s home on that
day. Importantly, it is common cause
that an amount of R6 000
was paid to the Mamabolos by the Moropanes on that day. The
appellant’s version that this was
a mere token to open
negotiations is discredited by the combined version of the two
experts, Mr Sekhukhune and Professor Mokgatswane
to the effect that
only a nominal amount is normally paid go kokota/go bula molomo.
[52]
The following questions remain unanswered if the appellant’s
version is to be believed: why was there such a big delegation
of the
appellant at the respondent’s place on the day; If this was not
a customary marriage why did the families exchange
gifts; why did
Jojo drape the respondent in a blanket; why was a sheep slaughtered;
why was the respondent counselled (go laiwa)
that night; why was the
respondent delivered to the appellant’s home that night; why
would the respondent cohabit with the
appellant as husband and wife
for almost 8 years; why would the appellant, on his own, on diverse
occasions and in public refer
to the respondent as his customary law
wife; why would the appellant buy the respondent a wedding ring
valued at R91 850 if
he did not regard her as his customary law
wife and, finally, why did the appellant organise such a lavish 50
th
birthday party for her where he referred to her in public as his
customary law wife? It is not surprising that the appellant could
not
proffer any satisfactory or credible answer to these questions.
[53]
The trial judge made positive findings on the credibility of the
respondent and her witnesses. On the contrary, she found the
evidence
of the appellant and his witnesses unreliable and not credible. The
trial judge had the advantage of observing the various
witnesses
whilst they testified before her. This gave her an advantage which
this Court, sitting as a court of appeal, does not
have. As the
saying goes, she was steeped in the atmosphere of the trial. Absent
any evidence of a misdirection, I am therefore
not at large to
interfere with her findings even more so that I cannot find any fault
with her assessment and evaluation of the
evidence in its totality.
[54]
I have already pointed out serious contradictions and improbabilities
in the version of the appellant and Strike as dealt with
by the trial
judge. These contradictions go to the heart of this matter. Another
telling blow is the letter dated 21 December 2007
which the appellant
wrote to the respondent which is replete with expressions like ‘to
my darling wife’; ‘my
beautiful and ever looking your
wife’; ‘my lovely wife’; ‘our wedding ring’.
This letter refers to
the ring which the appellant admitted he had
instructed a jeweller to restyle as a wedding ring. To my mind, this
is the proverbial
nail in the appellant’s coffin. It suffices
to state that the appellant’s mendacity was exposed by his
various references
in various places and the video recording of her
50
th
birthday party to the respondent as his wife.
[55]
Against this backdrop, I am satisfied that the essential requirements
for a valid customary marriage according to the customary
law of the
Bapedi people have been met. To my mind, this is in line with the
requirements in s 3(1) of the Act.
[56]
To sum up, having analysed the evidence carefully, I find the
respondent’s version, as fully corroborated by her witnesses,
the independent and objective evidence of photographs and the
behaviour of the parties from 17 April 2002 until she left in
November
2009, and importantly the evidence of the two expert
witnesses, to be consistent with the existence of a valid customary
marriage.
[57]
Consequently, I find the respondent’s version not only more
probable but reliable and credible and that of the appellant
to be so
seriously improbable to be false. I agree with the conclusion reached
by the judge a quo. It follows that the appeal is
without merit.
[58]
A brief comment about the status of the appeal record is necessary.
Portions of the record represented a reconstruction of
the evidence.
At the hearing of the appeal this was raised with counsel for the
respective parties. They both assured us that they
were satisfied
with the record as is and that it can be accepted as correctly
reflecting the evidence placed before the trial court.
[59]
In the result, the appeal is dismissed with costs.
_________________
L.O.
BOSIELO
JUDGE
OF APPEAL
Appearances:
For
Appellant : M Khoza SC (with him Z Gumede)
Instructed by:
Routledge Modise
Inc; Johannesburg
Lovius
Block Attorneys, Bloemfontein
For
Respondent : FJ Nalane
Instructed
by:
Maesela
Incorporated; Johannesburg
NW
Phalatsi & Partners; Bloemfontein
[1]
The
literal meaning whereof is to request to marry a would be bride (my
translation).
[2]
The
literal translation is to counsel or give advice on how to behave at
her in-laws (own translation).
[3]
The
literal translation is to open negotiations for lobala (my
translation).
[4]
Bhe
v Magistrate, Khayelitsha
2005
(1) SA 580 (CC).
[5]
MM
v MN
2013
(4) SA 415
(CC) para 48.
[6]
Masenya
v Seleka Tribal Authority & another
1981
(1) SA 522
(TPD) at 524;
[7]
Hlophe
v Mahlalela & another
1998 (1) SA 449
(TPD) at 457E-F.
[8]
Motsotsoa
v Roro & another
[2011]
All SA 324 (GSJ).
[9]
Gumede
v President of Republic of South Africa & others
2009 (3) SA 152
(CC) at 160B.
[10]
National
Employers’ General Insurance v Jagers
1984 (4) SA 437
(ECD) at 440D-441A.