N D v M M (18404/2018) [2020] ZAGPJHC 113 (12 May 2020)

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[2020] ZAGPJHC 113
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N D v M M (18404/2018) [2020] ZAGPJHC 113 (12 May 2020)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO:
18404/2018
In
the matter between:
D,
N
Plaintiff
and
M
M
Defendant
Customary
marriage in issue in divorce proceedings, absolution ordered.
JUDGMENT
DE VILLIERS, AJ
[1]
The matter came before me as an action for
divorce where the alleged marriage was a customary marriage. The
plaintiff initially
was formally unrepresented, but was clearly
assisted by a lawyer in formulating her claims. The particulars of
claim alleged that
a customary marriage was concluded between the
parties “
during 2011
”
at Steelpoort, South Africa. The material facts relied upon in the
particulars of claim for the conclusion of the customary
marriage
were that:
[1.1]
The
negotiated lobolo was paid on 3 September 2011. In the plaintiff’s
affidavit attached to the summons, she stated that
the defendant’s
family, the M family, went to her family’s place of residence
(in the Kingdom of eSwatini)
[1]
for the “
purposes
of negotiating and subsequently paying lobolo
”.
[2]
She omitted to mention a version that the visit was to attend a
wedding. It was common cause at the end of the matter that only
a
portion of the negotiated lobolo was paid, 15 cows out of an agreed
total of 25;
[1.2]
The
plaintiff was delivered in terms of Bapedi
[3]
custom to the defendant’s family on 4 September 2011 (at
Steelpoort). The plaintiff’s affidavit attached to the summons

stated that on 4 September 2011 the M family took her to their family
home in Steelpoort “
where
they held a welcoming event for my arrival
”.
The evidence that the plaintiff presented focused on a wedding
ceremony in the Kingdom of eSwatini (“eSwatinini”);
and
[1.3]
Both parties consented to the customary
marriage. When and where this happened, was not pleaded.
[2]
The plaintiff’s affidavit attached to
the summons stated that “
subsequent
to the payment of the negotiated lobolo … the two families
celebrated by slaughtering of two cows which is a symbol
of welcoming
and appreciating what the M family has been paid
”.
She omitted to mention a version that the cows were slaughtered to
celebrate a customary marriage. Her evidence later was
that lobolo
and marriage were the same thing.
[3]
The defendant in breach of Uniform Rule
18(4) pleaded a bald denial to the averments in the particulars of
claim in a document in
error called “
Defendant’s
Reply to the Plaintiff’s Plea
”.
No party sought further particulars, whether formally, or at the
pre-trial conference. The defendant’s present attorneys
came on
record in January 2019. The plaintiff’s present attorneys came
on record in January 2020. Both parties were represented
before me.
[4]
When
the matter was called before me, a maintenance order was already in
place regarding the minor children, and their welfare was
not a
pressing issue. The matter was not ripe for hearing as no financial
records had been discovered. It appeared from the pleadings
that one
aspect could be dealt with as a separated issue, namely if the
plaintiff and the defendant were married under customary
law or not.
The matter proceeded on this separated issue. In hindsight, it was a
mistake to have made this determination. It was
unbeknown to me that
when the evidence was completed, this Court’s jurisdiction
would become an issue. At the end of the
matter it seemed to me that,
at best for the plaintiff, a customary marriage was concluded in
eSwatini. Such a finding would raise
the issue of the jurisdiction of
this Court. I can and must raise this to prevent my judgment being a
nullity.
[4]
[5]
The
customs of the community to which a party belongs is the proper
source of customary law.
[5]
The
parties did not plead which community’s customs should be
followed, but it seemed common cause that the amaSwati customs
had to
be applied. Within amaSwati customs there could be further customs of
smaller communities that could have become customary
law. The
evidence before me drew no such distinction. I could ascertain
recorded and recently applied amaSwati customary law, but
the customs
described by the plaintiff and her witnesses differed from those, as
will appear later herein.
[6]
The plaintiff based her case upon section
3(1) of the South African Recognition of Customary Marriages Act 120
of 1998 (“the
Customary Marriages Act” or “the
Act”):
“
3
Requirements for validity of customary
marriages
(1) For a
customary marriage entered into after the commencement of this Act to
be valid-
(a)
the prospective spouses-
(i)
must both be above the age of 18 years; and
(ii) must both
consent to be married to each other under customary law; and
(b)
the marriage must be negotiated and entered into or celebrated in
accordance with customary law
.”
[7]
It
is stated in academic circles that customary law could be defined as
an established system of immemorial rules which had evolved
from the
way of life of people.
[6]
It also could be defined as being practices that a community accepts
as obligatory.
[7]
Such descriptions would distinguish custom and customary law.
LAWSA
[8]
makes the point that no
standard definition exists for customary law, law distinct from
custom (footnotes omitted):
“
No
generally accepted definition of customary law exists. Various South
African authors discuss its contents and distinguish it
from custom
as such without formulating a definition
.
…”
[8]
The lack of a clear definition of customary
law has been carried forward into the Customary Marriages Act. The
Act draws no distinction
between a custom and customary law. As such,
“
customary law
”
is defined in the Act as meaning “
the
customs and usages traditionally observed among the indigenous
African peoples of South Africa and which form part of the culture
of
those peoples
” and “
customary
marriage
” is defined as a
“
marriage concluded in accordance
with customary law
”. I was not
referred to any distinction between a “
custom
”
and a “
usage
”
in language or in customary law, and assume that the two concepts are
intended as one concept in the Act. Please note that
the definition
limits the application of the Act to South African customary law.
[9]
The addition of the words “
or
celebrated
” in section 3(1)(b)
does not assist in giving effect to section 3 of the Customary
Marriages Act. A celebration is not a
requirement for a valid
customary marriage, as will appear below. Notably within section 3 of
the Act are also the omissions of
agreement on lobolo, or the payment
in part or full or in part of lobolo, or the handing-over of the
bride, as requirements for
a valid customary marriage.
[10]
Registration of a customary marriage is
also not a validity requirement for a customary marriage. See section
4(9) of the Act. Both
spouses have a duty to register the marriage in
terms of section 4(1) of the Act, and either may do so in terms of
section 4(2)
of the Act, but the failure to comply with the duty only
has the consequence of the spouses forfeiting the
prima
facie
proof of the marriage that the
certificate would bring in terms of section 4(8) of the Act.
Registration was not a traditional
custom or usage, but off course is
of great benefit to a spouse who regularly may have to submit proof
of a marriage in concluding
transactions in a modern economy.
[11]
The wording of section 3 of the Act
suggests that a customary marriage must be proven by way of proving
compliance of such a marriage
with “
customs
and usages traditionally observed among the indigenous African
peoples of South Africa and which form part of the culture
of those
peoples
”.
[12]
The requirements for a valid customary
marriage have deliberately been kept imprecise in the Customary
Marriages Act (in accordance
with the more informal nature of
customary law). The Act followed on a report on customary marriages
by the South African Law Commission
in August 1998. That report made
inter alia
the following recommendations:
“…
4. In order to
define customary marriage it is recommended that legislative
provision be made for a minimum set of essential requirements,
chief
amongst which should be the consent of the prospective spouses. In
most cases the ‘customary’ nature of a marriage
may be
inferred from the inclusion of certain typical practices, such as a
lobolo agreement, a traditional wedding ceremony or
the involvement
of the spouses’ families. Since these practices differ among
the various systems of customary law in South
Africa, however, it is
recommended that any legislative provision should be flexible enough
to allow for groups to marry according
to their own customary laws.
…
8. Lobolo should
not be deemed essential for the validity of customary marriages. If
parties wish to give lobolo, they should be
free to do so, but
payment or non-payment should have no effect on the spouses'
relationship or on their rights to any children
born of the marriage.
…
10.
Traditional wedding ceremonies and the handing over of the bride
should not be considered essential for the conclusion of a
valid
customary marriage. Together with lobolo, however, these institutions
will serve to identify a union as one celebrated according
to African
rites.
”
[13]
A
court could take judicial notice of customary law in terms of
section
1(1)
of the
Law of Evidence Amendment Act 45 of 1988
where customary
law could “
be
ascertained readily and with sufficient certainty
”.
It seems accepted practice to make some use of textbooks in this
regard.
[9]
In the light of
evolving customary law, this approach becomes increasingly dangerous
if sole use is made of textbooks on recorded
customary law. In cases
of uncertainty, the customary law has to be proven. See
Sigcau
v Sigcau,
[10]
which already included a caution against the use of textbooks that
record past practices.
The
Supreme Court of Appeal
[11]
and the Constitutional Court
[12]
held that the courts must apply living customary law (as distinct to
recorded customary law).
[13]
One
should therefore have regard to actual customs at present, and not
past customs no longer followed. Still, in determining customary
law,
one must inevitably consider past and current customs to evaluate
evidence.
[14]
Expert evidence could assist, but in the final instance, someone with
personal knowledge should testify about current customs/customary

law
[15]
(if different to the
recorded customary law).
[14]
In
summary, the Constitutional Court in and
Shilubana
and Others v Nwamitwa
[16]
makes made the following findings on the approach that this court has
to follow (footnotes omitted):
[14.1]
“
[49] To sum up: where there is a
dispute over the legal position under customary law, a court must
consider both the traditions
and the present practice of the
community. If development happens within the community, the court
must strive to recognise and
give effect to that development, to the
extent consistent with adequately upholding the protection of
rights.  In addition,
the imperative of
section 39(2)
must be
acted on when necessary, and deference should be paid to the
development by a customary community of its own laws and customs

where this is possible, consistent with the continuing effective
operation of the law.
...”;
[14.2]
“
[56]
It follows that the Van Breda test cannot be applied to
customary law, where the development of living law is at
issue.
This is not to say that past practice is not relevant. Past
practice and tradition may well be of considerable
importance in
customary law, but as one important factor to be considered with
other important factors. It is also not to
say that customary
law must in the ordinary course be proven before a court before it
can be relied upon. The time when customary
law had to be proved
as foreign law in its own land is behind us. Where a norm
appears from tradition, and there is no indication
that a
contemporary development had occurred or is occurring, past practice
will be sufficient to establish a rule. But where
the
contemporary practice of the community suggests that change has
occurred, past practice alone is not enough and does not on
its own
establish a right with certainty, as the three-factor test set out
above makes clear.
[17]
Past practice will also not be decisive where the Constitution
requires the development of the customary law in line with
constitutional
values
.”
[15]
In
Mayelane
v Ngwenyama and Another
[18]
the Constitutional Court made it clear that the determination of
customary law is a matter of law, for determination by a court,

despite the possible conflicting evidence by witnesses on living
customary law.
[16]
I
commence by reflecting the recorded customary law on customary
marriages in general (as distinct to those of the amaSwati) as
the
point of departure. First, see LAWSA:
[19]
“
The
normal procedure is that the man or his family take the initiative in
approaching the family of the girl with a view to a formal
betrothal
and marriage. The following steps can be distinguished:
(a) negotiations
between the two family groups, or between the man and her family;
(b) the achieving
of consensus in respect of the proposed marriage, particularly as to
the amount of the lobolo to be paid and other
wedding particulars –
this leads to a formal engagement;
(c) this is
followed by the marriage ceremonies whereby, ceremonially, the girl
takes leave of her family, is transferred to the
groom’s family
and is incorporated into the family of her husband.
The
traditional marriage agreement is therefore primarily an agreement
between the two family groups entered into with the view
to
establishing a customary marriage between the two individuals and
creating a new household and family.
…”
[17]
Similar
summaries of the traditional, essential elements for a customary
marriage appear in Seymour’s Customary Law in South
Africa,
[20]
and in Customary Law in South Africa.
[21]
See too in this division,
Motsoatsoa
v Roro and Others
[22]
with regard to the traditional requirements for a customary marriage:
“
[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
2008 (5) SA 405
(C), CHAKALISA v MMEMO (CACLB 04106)
[2008]
BWCA 11
(30 January 2008).”
[18]
Having looked at general, traditional,
essential elements for a customary marriage, I next have regard to
four judgments from eSwatini.
[19]
The
first judgment is
Thembi
Mhlanga And Alfred Mhlanga & 4 Others
.
[23]
The court on appeal accepted the following requirements for a valid
customary marriage (footnotes omitted):
[24]
“
Professor
Nhlapho further states the formalities of a marriage solemnized in
accordance with Swazi Law and Custom as follows:
“
.
. . three marriage formalities must be observed before a customary
marriage comes into existence:
(i) the bride
must be smeared with libovu (red ochre) during the marriage ceremony
(umtsimba);
(ii) Lobolo
(emabheka) cattle must be delivered in full or guaranteed;
(iii) The
“lugege” and “insulamnyembeti” beasts must be
handed over, and, the “lugege” beast
must be
slaughtered.”
Nathan CJ in Rex
v Fakudze and Another 1970 –
1976 SLR 422
(HC) at 423 had this
to say:
“
There
are a number of ceremonies performed at the wedding, but the legally
significant one is the anointing of the bride with red
ochre
(libovu). Unless and until this has been done, she is not regarded as
having been married
.”
[20]
Earlier
[25]
the court stated:
“ …
It
is well-settled in this country that a marriage in terms of Swazi Law
and Custom involves not only the individuals concerned
but the two
families. Furthermore, where the marriage takes place in a chiefdom,
the chief is informed of such an event so that
he could send a member
of the Chief’s Inner Council to represent him. This is done
partly to provide proof of the marriage
having been solemnised and
partly to ensure that peace prevails during the ceremony
.”
[21]
Please
note the emphasis on red ochre and the role of the chief in amaSwati
customary law. The second judgment, also on appeal,
is
Samuel
Myeni Hlawe v Beatrice Tholakele Seyama and Two Others.
[26]
The court dealt with the question of whether a customary marriage had
been dissolved through customary law. It dealt with
the requirements
for such a dissolution and pointed out that even death does not
necessarily terminate such a marriage.
[27]
With regard to the conclusion of the marriage, the court referred to
the fact that a representative of the chief has a very important
role
at the marriage ceremony. He must witness if the bride is a
consenting party to the smearing with the red ochre.
[28]
The court held:
[29]
“…
Society
cannot be stable where marriage is ‘easy come, easy go’ –
an entirely private affair. It is noted that
section 26 of the
Births, Marriages and Deaths Act, 1983 makes it an offence for a
chief, indvuna or umgijimi who fails to transmit
the information
necessary to register a customary law marriage that has taken place
in the chief’s area. The provision seems
to anticipate the
presence of the chief or indvuna or umgijimi at the marriage
celebration as an official who has a specific role
to play
.”
[22]
The
court concluded:
[30]
“
[33]
Notwithstanding the many apparent shortcomings attending this matter
at the customary level, even if the parties had been in
agreement the
court would have had to be satisfied that there was proper
dissolution of the marriage to avoid it being used to
justify an
irregularity. Evidence on record is that the two families did not
meet as required to deal with the issue of the adultery
by the
respondent. The respondent’s family (and not respondent per se
as appellant seems to believe) did not appear before
the Thunzini
umphakatsi as invited. It is enough that the Thunzini royal kraal
made no determination of the issue. Since the parties
did not agree a
binding determination by the royal kraal was needed. The evidence of
record does not state that lobola has been
returned or otherwise
settled. As Nhlapo says in this regard, respondent could be ‘put
aside’ and built a separate
homestead with the marriage
continuing to subsist. Lastly but
importantly
and critically, the red ochre has not been washed off by any relevant
ritual. Without the red ochre being removed the
marital bond
continues. This is not surprising considering the undisputed account
that the Swazi customary marriage is virtually
indissoluble.
[34]
To the extent that none of the main writers on the subject ventures
into the issue and Dr. Nhlapo also leaves the question
of dissolution
open, I would say that it is customary law and its structures, courts
and councils, that must first provide the
definitive answer to the
question. As it is and what has so far happened, is that we have
inconclusive research and no Swazi court
decided case on the issue of
dissolution. It is true that customary marriages do fall apart now
and again. In that regard these
marriages do go through a process of
dissolution, but whether they completely dissolve remains unanswered.
In my view the effect
of this uncertainty is to sustain the
continuing basic premise and starting point that the Swazi customary
marriage is indissoluble
as a general rule: its
complete
dissolution would be rare and exceptional. The ‘school of
thought which holds that a Swazi customary marriage cannot
be
dissolved at all’ is probably closer to the truth than the
opposite view.”
[23]
Again,
please note the references to red ochre and to the role of the chief,
but more importantly, to a pre-dissolution customary
law process in
amaSwati customary law. The third judgment, a further judgment on
appeal, is
Mduduzi
Masiko Dlamini vs Philile Nonhlanhla Dlamini (nee Ndzinisa).
[31]
The court dealt with a divorce where there was both a customary
marriage and a civil marriage. The customary marriage was not
registered. This failure was considered a:
[32]
”…
breach
of the law which requires that all marriages should be registered
within a specified period. Not having the marriage registered
however
does not mean that such marriage does not exist: it is only that it
is difficult or cumbersome to prove in a court of law
.”
[24]
The
court again referred to the smearing of the bride with red ochre.
[33]
With regard to the requirements for a valid customary marriage, the
court held:
[34]
“…
Of
course, a 'ceremony', in the present context, could in one situation
be a marriage in the strict sense, while in another situation
it
might just be a ceremony resembling but not really a marriage. For
instance, a couple may go through a ceremony in church or
elsewhere
that appears on its face, [with the outward trappings], to be a
marriage. But if the register has not been duly signed
by the couple
and their witnesses the ceremony would not be a marriage in terms of
the Act, but just a ceremony, religious or other.
The same would be
true where lobolo/bayeni or umhlambiso ceremony is performed: the
ceremony would not amount to a Swazi customary
marriage if the red
ochre ritual has not been performed. The signing of the marriage
register and the smearing with red ochre are
critical to the validity
of the respective forms of marriage
.”
[25]
Lastly
in
Jabulani
Mlangeni v Gugu Mlangeni (Nee Mkhabela) and 2 Others
,
[35]
the court held
[36]
that a
court must scrutinise the evidence tendered to determine is an
applicant seeking a dissolution of a customary marriage has
followed
the procedure and requirements for termination of the marriage and
that the alleged customary law termination was by an
authority
competent to give a binding decision, before relief is sought in the
High Court.
[26]
The
traditional, validity requirements for a customary marriage have been
curtailed by our courts. I deal next with the approach
in our courts.
As an illustration of a case dealing with amaSwati customary law, in
Mabuza
v Mbatha
,
[37]
the court dealt with a customary marriage. The common cause facts
were:
[38]
“…
that
the plaintiff and the defendant entered into a relationship in 1989;
that the plaintiff fell pregnant in September 1989; that
in or about
November 1989 the defendant's family approached the plaintiff's
family to start negotiations for the  penalty
(damages) and
ilobolo payments; that the penalty payment related to the fact that
the plaintiff fell pregnant out of wedlock, ie
before the parties got
married; that agreement was reached with regard to the payment of
ilobolo in the amount of R2 500 which
the defendant paid in full;
that plaintiff and defendant lived  and wife since about 1992,
when plaintiff moved into the house
with the defendant; that in 1992
the plaintiff decided not to go back to the University of the North
and spent her time with the
defendant as though they were married as
husband and wife; that in or about June 2000 and after the parties
had relocated to the
Western Cape, the relationship between them
terminated; and that there was no reasonable prospect of their
relationship being normalised.
”
[27]
In
issue was that “ukumekeza” (which means the formal
integration of the bride into the bridegroom's family) did not
take
place. The court held that it could be waived in appropriate
cases. The judgment was somewhat sharply criticised from
a
traditional customary law perspective in “
Requirements
for the Validity of a Customary Marriage
”.
[39]
The author is of the view that “
the
integration of the bride is still the hallmark of an African
marriage
”.
In setting out his argument he refers to a number of requirements of
amaSwati customary law with reference to an
academic work:
“…
Marwick
The Swazi: An ethnographic account of the natives of Swaziland
Protectorate (1966) is even more important in ascertaining
what
ukumekeza is all about. On the basis of the latter's "essentials
of marriage" (123-124), the judge could have formed
a more
considered opinion whether there was in fact a valid customary
marriage. The author's suggested essentials are (in abbreviated

form):
(a) The girl must
be an ingcugce, that is, her hair must have been put up.
(b) The girl must
be smeared with red clay.
(c) The woman
must mekeza, that is, she must sing the prescribed songs in the
cattle kraal of the groom's village.
(d) The
msulanyembethi and lugege animals must be provided at the time of the
marriage and the lobolo must either be provided in
full or it must be
guaranteed.
(e) The consent
of the parties is theoretically necessary. (As indicated above, in
South Africa the consent has all along been a
requirement, albeit
under European influence.)
However,
the case got bogged down on the ukumekeza issue. The judge decreed
that it is "probably practised differently than
it was centuries
ago". Ideally there should have been evidence that it is in fact
practised differently or not at all. But
in the whole debate, the
main point was missed. It was not the ukumekeza as a ritual cast in
stone, but the question whether the
bride was in fact integrated into
her husband's family that was in issue. A global evaluation of the
requirements would have been
a better yardstick than an assumption
that ukumekeza is probably practised differently
.”
[28]
This
article to some degree mirrors the judgments in eSwatini referred to
earlier (but it added the singing of prescribed songs
as a
traditional requirement, which in the cross-cultural case before me
would have been an unlikely requirement). Later herein
I reflect
further academic criticism of Bekker’s views and of
Mabuza.
Ultimately
the Supreme Court of Appeal (“the SCA”) in
Mbungela
and Another v Mkabi and Others
[40]
accepted the approach in
Mabuza
and
quoted extracts from the judgment with approval. In
Mbungela
the
SCA addressed in part the evolving nature of customary law and its
localised application (footnotes omitted):
“
[17]
As pointed out above, the appeal revolves around s 3(1)(b) of the
Act; the jurisdictional factors in s 3(1)(a) are not in issue.

‘[C]ustomary law’ is defined in s 1 of the Act as
‘customs and usages traditionally observed among the indigenous

African peoples of South Africa and which form part of the culture of
those peoples’. But s 3(1)(b) does not stipulate the

requirements of customary law which must be met to validate a
customary marriage. The reason for this is not far to seek. It is

established that customary law is a dynamic, flexible system, which
continuously evolves within the context of its values and norms,

consistently with the Constitution, so as to meet the changing needs
of the people who live by its norms. The system, therefore,
requires
its content to be determined with reference to both the history and
the present practice of the community concerned. As
this Court has
pointed out, although the various African cultures generally observe
the same customs and rituals, it is not unusual
to find variations
and even ambiguities in their local practice because of the
pluralistic nature of African society. Thus, the
legislature left it
open for the various communities to give content to s 3(1)(b) in
accordance with their lived experiences.
[18]
The Constitutional Court has cautioned courts to be cognisant of the
fact that customary law regulates the lives of people
and that the
need for flexibility and the imperative to facilitate its development
must therefore be balanced against the value
of legal certainty,
respect for vested rights and the protection of constitutional
rights. The courts must strive to recognise
and give effect to the
principle of living, actually observed customary law, as this
constitutes a development in accordance with
the ‘spirit,
purport and objects’ of the Constitution within the community,
to the extent consistent with adequately
upholding the protection of
rights
.”
[29]
An
inevitable result of an evolving and flexible customary law, is that
parties will have disputes about their legal positions.
By way of
example, the SCA in
Mbungela
dealt with a case also under amaSwati customary law where the bride
was not handed over, and the lobolo was not paid in full (neither
of
which is a requirement for a customary marriage under the Customary
Marriages Act). Noting a decision that bridal hand-over
is an
unconstitutional practice
[41]
(but not deciding the issue) the SCA then upheld
Mabuza
that the handing-over may be waived.
[42]
[30]
Waiver
in our law is not assumed, and clear proof must be provided.
[43]
The
conduct from which the waiver is inferred, must be unequivocal,
consistent with no other hypothesis
[44]
(such as mere non-compliance with an obligation). Still, it seems
from a perusal of the cases, that waiver of the handing over
is not
uncommon. By way of example, see
Sengadi
v Tsambo; In Re: Tsambo
[45]
para 19 before the learned judge found the requirement
unconstitutional.
[46]
[31]
I
found especially four further academic articles useful regarding the
issues I had to
resolve
in this judgment and the warning lights that I had to heed. The first
such article is titled “
The
essence vindicated? Courts and customary marriages in South
Africa
”.
[47]
Relevant to this case, are the following observations in the article:
[31.1]
It
seems that our courts in several instances make findings on customary
law marriage applying neither “
official
customary law
”
nor “
living
customary law
”;
[48]
and
[31.2]
When
judges
[49]
apply “official
customary law”, “
the
inevitable result has been the invalidation of marriages
”.
[50]
[32]
The
last remark is disturbing, and the author remarks (footnotes
omitted):
[51]
“
The
discussion of cases reveals that there is a disparity in addressing
the injustices of the past when official or living customary
law is
applied in the context of customary marriages. Vulnerable parties are
protected where courts focus on the ‘essence’
of
customary law and apply living customary law. They are also protected
where courts develop living customary laws in line with
the
Constitution and the Bill of Rights. Indeed, the Constitutional Court
observed in Mayelane v Ngwenyama:
This Court has
accepted that the Constitution’s recognition of customary law
as a legal system … requires innovation
in determining its
living content as opposed to the potentially stultified version
contained in … legislation and court
precedent.
However,
as Bennett rightly points out, the challenge with this preference for
living customary law ‘is how this living law
is to be
discovered and how it can be proved’. Indeed, in Mayelane the
Constitutional Court observed these challenges and
cited with
approval the dictum in Bhe case that ‘the difficulty lies not
so much in the acceptance of the notion of
“living”
customary law but in determining its content and testing it …
against the provisions of the Bill of
Rights’
.”
[33]
The
second article that I found useful is titled “
The
Interplay Between Proving Living Customary Law and Upholding the
Constitution
”.
[52]
The article commences with the following observation (footnotes
omitted):
“
Living
customary law is generally unwritten, and proving it in court can be
a difficult task. There is generally a lack of clarity
in courts on
how to distinguish between practices observed as a social habit and
those observed out of a sense of obligation under
customary law.
Courts also sometimes hear contrasting evidence regarding either the
existence or manner in which a practice is
observed, which may be
because of an element of self-interest by a party alleging the
existence of a practice. These are important
considerations in
determining the content of living customary law. Against this
backdrop, this analysis argues that although determining
the content
of living customary law is mired in difficulties, there are important
considerations that the courts should focus on,
which may assist the
courts to make an informed decision. However, courts sometimes either
ignore or fail to provide sufficient
opportunity to address these
considerations. For example, the court does not investigate the
purpose of a practice, or whether
a practice is observed out of a
sense of obligation or merely as a social practice. This analysis
further argues that it is important
to determine if a practice is
observed out of a sense of obligation or merely as a social habit
.
…”
[53]
[34]
In defence of judges, I do not believe that
judges are unwilling to investigate the purpose of a practice, or
whether a practice
is observed out of a sense of obligation, or
merely as a social practice or habit. In an adversarial system, the
line between adjudicating
the case presented for determination, and
entering into the arena, must be respected. In addition, parties
present their cases
within their means, as they identify the issues,
and often they can ill-afford a case that snowballs into something
much bigger
than anticipated.
[35]
Later
in the article, referring to the criticism of Bekker of
Mabuza
(referred to earlier herein), the author remarks (footnotes
omitted):
[54]
“…
Transfer
of the bride can therefore be viewed as an essential requirement for
the validity of a customary marriage. However, courts
should still
recognise the impact of socio-economic changes, such as urbanisation,
on the ability to comply with customary marriage
requirements. The
requirements for the validity of a customary marriage can be waived
or relaxed owing to socio-economic changes.
However, evidence should
be provided in court that a practice has developed or adapted owing
to socio-economic changes. Bekker
argues that transfer of the bride,
as a requirement for the validity of a customary marriage, cannot be
entirely waived, but rituals
for a customary marriage may be waived.
This argument may not seem to appreciate the adaptive nature of
living customary law to
socio-economic changes. The argument may
further seem to subject the validity of a customary marriage to
strict requirements, even
though the conclusion of a customary
marriage is not usually subject to strict requirements
.”
[36]
Also, inter alia with refence to
Mabuza
,
the author states (footnotes omitted):
“…
The
legal status of living customary law cannot merely depend on
consistency with past practice, because there are always variations

owing to socio-economic changes. Thus, relying on past practice only
to establish a new practice is problematic, since it can stifle

change where change has occurred. If courts do not also determine
what is occurring in living customary law, they may find themselves

rubberstamping practices which are not actually observed by
communities on the ground, which is inconsistent with the spirit of

the Constitution.
However,
this does not mean that courts should merely accept that a practice
has developed, without any evidence to substantiate
such an
assertion. Evidence should be produced to the effect that living
customary law has developed or adapted to meet socio-economic

changes. Furthermore, the party alleging a waiver of a practice
should be able to argue that owing to socio-economic changes such
as
urbanisation, it was not possible to perform a ritual in its
traditional form, hence a ritual or requirements for the validity
of
a customary marriage had to be adapted or waived. It becomes a
problem when the court merely accepts that changes have taken
place,
simply because this conclusion is consistent with the Constitution,
or when courts draw this conclusion by only relying
on evidence
submitted by the parties. An example is Mabuza v Mbatha (“Mabuza”),
where the court accepted that the practice
of ukumemeza, performed
during the integration of the bride into the groom’s family,
has developed to the point that it is
today practised differently.
However, the court had no evidence from living customary law to
support this conclusion, except the
evidence of two witnesses who
contradicted each other
.”
[37]
The
author identifies a danger, namely where courts in effect create
customary law contrary to the actual customs in communities,
their
living law.
[55]
In this regard
the third article, “
The
Consequences of the Statutory Regulation of Customary Law: An
Examination of the South African Customary Law of Succession and

Marriage
”
[56]
warns against a distorted customary law based on the wrong use of
precedent (footnotes omitted):
“
On
the other hand, some courts in determining the existence of a
customary marriage gravitate towards official versions of customary

law. Courts apply a finding from one case with no acknowledgment as
to the differences in the systems of customary law. For example,
in
Matlala v Dlamini, the court applied the finding from Fanti v Boto
which dealt with Xhosa customary law though neither of the
litigants
in the Matlala case were isiXhosa. Consonant with this approach, some
judgments do not even mention the system of customary
law in
question. The result is that the variation among systems is glossed
over and customary law distorted as the practices of
one community
are transposed onto another. Customary law is treated - like the
common law - as a single system of law undermining
the rich nuances
of the law. Thus, despite the Recognition Act anticipating that
individuals would comply with the requirements
of their respective
communities, a standard set of requirements for marriage has emerged;
namely, family participation, the negotiation
of lobolo and handing
over of the bride.
However,
it is problematic where judgments are viewed as binding precedent
rather than sources of law. It would mean that a court's
finding sets
the requirements of a marriage rather than the practices of the
community. The further indiscriminate application
of precedent risks
distorting the law and hindering the recognition of developments in
customary law
. …”
[38]
The
fourth article that I found useful is titled “
Sailing
between Scylla and Charybdis: Mayelane v Ngwenyama
”.
[57]
In the matter before me one aspect addressed in the article is
relevant, “
the
practical difficulties associated with ascertaining living customary
law and problems of identifying legal versus social norms
”.
I merely reflect some observations in the article (footnotes
omitted):
[38.1]
“
More
importantly, and in the light of the disagreements amongst
informants, the court also failed to ask the antecedent question:
if
there is a social normative practice of informing the first wife of
the intention to conclude a further marriage(which does
not look to
be set in stone), then at what point does it become the basis of a
legal norm with dire consequences regarding the
validity of the
subsequent marriage? …
”
[58]
[38.2]
“
If
courts are not alive to the finer distinctions between behavioural
norms, there is a concern that "law" and "customary

law" will lose any distinctive meaning: everything will be
swallowed up to become law. Here the dissenting judgment appears
to
provide further ballast, as it seems that the custom of one community
within a cultural group (ie in rural areas) may not be
echoed by
others belonging to the same clan (eg with more access to urban and
peri-urban areas). As the legal anthropologist Galanter
discusses
extensively in his work, this is highly problematic in the context of
social life which is full of regulation
.”
[59]
[38.3]
“…
As
mentioned by Bekker and Koyana in the context of succession,
"incidents of living customary law cannot without more ado
be
elevated to a general rule of law." In setting out the process
of recognising customary law, they argue that a court must
find that
a fixed line of behaviour is followed by more or less a constant
group of persons for a certain period, and in particular,
"a
custom, in order to be law, must be commonly believed to be
obligatory
".
[60]
[38.4]
“
A
related conclusion is that, while section 3(1) of the RCMA
(the
Customary Marriages Act)
is
laudable in its conception and its attempt to be flexible enough to
adapt to living law, the Mayelane case shows how courts have
had to
enter the law-making arena in the family domain where the current
environment (legislation is but one form) provides inadequate

direction. While we can accept that this does and must happen in a
constitutional democracy operating in a plural system, it is
better
that these matters should be subject to democratic deliberation and
dealt with in a holistic way. We cannot forget that
the courts have
to make decisions ("law") on the narrow facts before them.
…”
[61]
[39]
Legal certainty is difficult to balance
against flexible, evolving, customary law rights, imprecise rights
under the Customary Marriages
Act, and the protection of
Constitutional rights.
[40]
The
question arises in the light of the aforesaid, what facts a court
must find in order to determine that the customary marriage
was
negotiated and entered into in accordance with “
customs
and usages traditionally observed among the indigenous African
peoples of South Africa and which form part of the culture
of those
peoples
”,
as required by section 3 of the Customary Marriages Act. The degree
of compliance with customary law requirements is relevant
in
determining if a customary marriage has been concluded on the facts
of each case. A court necessarily must determine what the
living
customary law is, and to what degree it has been complied with. In
case of non-compliance, it is the duty of the court to
find that a
valid customary marriage had not been concluded. By way of
illustration, the Constitutional Court applied customary
law and
found that a subsequent customary law marriage was invalid for
non-compliance with customary law.
[62]
[41]
I must highlight two matters to consider:
(a) There must be a factual distinction between a co-habitation
arrangement, and a customary
marriage; and (b) all persons are
entitled to equal Constitutional protection.
[42]
We live in a country where tradition,
cultures and modernity grind against each other. Large numbers of
people in modern society
live together, but are not married, and as
such do not live with the legal consequences of marriage. Their
friends and families
may see them as being married for all intents
and purposes, but they are not married. Some people by choice follow
traditional
customs in full, others in part (i.e. only paying lobolo
and not following any other custom), others not at all (i.e. no
family
involvement or other customs). This range of human conduct
also gives effect to freedom of belief and opinion, to equality
before
the law, and to participate in cultural life as chosen, which
are safeguarded in the Bill of Rights and especially in sections 2,

8(1) and 39(3) of the Constitution. The Constitution as such has
wider application in this matter than the constitutionality of

requirements for a valid customary marriage (a matter I do not have
to decide).
[43]
It
seems to me that a judge must approach the evidence with an eye to
the test for a universal partnership between co-habitees as
set out
by the Supreme Court of Appeal in
Butters
v Mncora.
[63]
This type of matter is instructive as often  the only potential
relief to a life partner, after a breakdown in the relationship,
is
to establish a universal partnership. The minority in the SCA held in
Para 34 (the majority and the minority had no dispute
on the
principle to be applied as appears from para 18):
[64]
“
[34]
This appeal is about an alleged tacit agreement. As in all such cases
the court searches the evidence for manifestations of
conduct by the
parties that are unequivocally consistent with consensus on the issue
that is the crux of the agreement and, per
contram, any indication
which cannot be reconciled with it. At the end of the exercise, if
the party placing reliance on such an
agreement is to succeed, the
court must be satisfied, on a conspectus of all the evidence, that it
is more probable than not that
the parties were in agreement, and
that a contract between them came into being in consequence of their
agreement. Despite the
different formulations of the onus that exist:
see the discussion in Joel Melamed and Hurwitz v Cleveland Estates
(Pty) Ltd
[1984] ZASCA 4
;
1984 (3) SA 155
(A) at 164G-165G;
Christie’s The Law of Contract in South Africa, 6ed 88-89, this
is the essence of the matter
.”
[44]
The
more-probable-than-not approach is the one formulated by Denning J in
Miller
v Minister of Pensions
[65]
as the degree of proof:
“…
That
degree is well settled. It must carry a reasonable degree of
probability, but not so high as is required in a criminal case.
If
the evidence is such that the tribunal can say: “We think it
more probable than not,” the burden is discharged,
but, if the
probabilities are equal, it is not.”
[45]
Although I do not have determine the
existence of a contract as in the case of a universal partnership,
the more-probable-than-not
test is applicable in evaluating the
degree of compliance with customary law. It seems to me that a court
still must be satisfied
that there was substantial compliance with
the material customary law requirements before it could find that a
valid customary
wedding was concluded, unless it finds that it could
overlook any non-compliance based on:
[45.1]
Constitutional grounds (including any
development of customary law);
[45.2]
The non-compliance being immaterial; or
[45.3]
A factual finding of waiver.
[46]
This seems to me the only approach to keep
a court within the limits of its function, to decide matters based on
an application
of established facts to legal principles.
[47]
Against this background, the pleadings
revealed that the plaintiff is an accountant, and the defendant a
project manager. The evidence
revealed that both studied at a
university. Their educational levels and understanding of the legal
requirements for the personal
and patrimonial consequences of
marriage, were not addressed in evidence.
[48]
The plaintiff called three witnesses: She
testified, as well as her father (“Mr D Snr”) and her
uncle (“Mr M D”).
The defendant testified and also called
a close friend to testify (“Mr Madire”). All witnesses
were not independent.
[49]
No evidence was presented of any formal
development of recorded or traditional customary law by the community
concerned. No evidence
really was tendered about principles and
values upon which the customary law in issue is based and could be
developed. As will
appear later herein, evidence was tendered of
customs followed by the plaintiff’s family at least, but it is
unclear how
widespread those customs are given effect to in as far
they reflect living customary law. Little distinction was drawn in
the evidence
between custom and an obligatory custom.
[50]
I first address the plaintiff’s
evidence. A troublesome matter was that most of the evidence was not
contested in cross-examination.
In the exceptional case where
evidence was contested, I reflect it in the summary that follows. The
evidence did not mention red
ochre, any role played by the chief, or
the singing of prescribed songs as elements of the customary
marriage. I have referred
to those requirements addressed in the
eSwatini judgments, and inter alia by Bekker. The plaintiff did not
mention a traditional
ceremony involving bile, or a formal handing
over by her family to the defendant’s family in eSwatini or
indeed in South
Africa. Her father gave some evidence in this regard:
[50.1]
The plaintiff testified that she and the
defendant commenced with a relationship in December 2008. The
plaintiff testified during
cross-examination that she had fallen
pregnant in early April 2011. She did not testify about a decision to
get married to the
defendant, as she should have done;
[50.2]
Mr D Snr testified under cross-examination
that a prior meeting took place when three people visited his home to
arrange a lobolo
meeting. The defendant formed part of the
delegation, and they needed an indication of the lobolo that would be
payable. Mr D Snr
testified under cross-examination that the
delegation also asked about the cultural customs and that these were
explained to them.
The details of this discussion were not explored
in evidence or in cross-examination;
[50.3]
Mr D Snr further testified under
cross-examination that he did not ask for gifts in addition to
lobolo. Such gifts, he testified,
must be brought (in terms of
custom) to show that the two families accept each other. This, the
first meeting, might have taken
place in July 2011;
[50.4]
Mr D Snr testified under cross-examination
that it was agreed during this meeting that the customary marriage
would take place when
the lobolo was paid;
[50.5]
During cross-examination the plaintiff
testified that it was normal for the lobolo negotiations to happen
and the wedding ceremony
to take place at the same time. In
cross-examination Mr D Snr confirmed that there was usually no delay
between payment of lobolo
and the wedding ceremony. The events (for
instance) may happen on successive days. Mr M D testified during
cross- examination that
the ceremony usually immediately follows upon
payment of lobolo;
[50.6]
The plaintiff testified that the M family
arrived on Friday 2 September 2011 at her father’s home in
eSwatini. Mr D Snr testified
that the M delegation had to, and did,
shout from outside the gate that they were there “
to
lobolo
”. The children had to, and
did, take them to the grandmother’s house where the M
delegation slept before starting the
next morning with the lobolo
negotiations. The plaintiff testified that the M delegation consisted
of about ten people;
[50.7]
The plaintiff testified that the purpose of
the visit was “
to pay lobolo
”
(and did not testify that it was for an agreed wedding ceremony).
During cross-examination the plaintiff testified that
the purpose
“
was to pay lobolo which is part
of marriage
” and that the M
family came “
to negotiate and pay
lobolo
” (again she did not
testify that it was for an agreed wedding ceremony). When asked in
cross-examination to explain the omission,
the plaintiff testified-
“…
,
lobolo is marriage in my culture.
So, it cannot be like a civil.  It is not civil where you have
to wear white dresses.
So, the lobolo it is marriage.  So,
he came there to pay lobolo and have a wife.
...”
[50.8]
This evidence seems conflict with the
evidence by her father and uncle, and the authorities I have referred
to. There is more to
a customary marriage than lobolo;
[50.9]
The plaintiff testified that she did not
participate in the lobolo negotiations on Saturday 3 September 2011,
but she testified
that the outcome was the following-
“
So
after they had agreed with the lobolo of which was R50 000,00 and the
D
(family)
were
happy with it, the M’s gave gifts like coats to the men which
were my uncles and they dressed me with a Pedi tradition
to show that
now I am the wife of, I belong to the M family and they gave gifts to
my aunts which were blankets and scarves”;
[50.10]
No evidence was advanced as to why the
plaintiff would be familiar with Bapedi culture. If her evidence was
to convey that the exchanges
sealed the wedding, then (a) the wedding
was concluded in eSwatini and (b) the plaintiff’s evidence is
in conflict with recorded
customary law and the evidence by her
father and uncle. The above quoted evidence addressed three distinct
matters: lobolo, the
handing over of gifts, and the plaintiff being
dressed according to Bapedi tradition-
[50.10.1]
During cross-examination the plaintiff
testified that the whole lobolo need not to be paid to be married. A
large enough portion
needs to be paid. Such a portion of the lobolo
was paid, and therefore a cow was slaughtered and she was dressed
according to Bapedi
culture. Mr D Snr testified that a part of the
agreed lobolo was paid with a cheque for R50 000.00. Mr D Snr
testified under cross-examination
that the payment was ten cows
short, which would have been delivered at a future date. This short
payment did not stand in the
way of the wedding. Mr M D confirmed
this evidence under cross-examination. No one testified that the
balance of the lobolo was
ever demanded (in the light of a wedding
having taken place, one would have expected such a demand);
[50.10.2]
Mr D Snr testified under cross-examination
that the M family and the defendant gave him a coat, two wooden
dishes, and a knobkierie,
and that they gave blankets to the mothers
of the D family. This evidence slightly differed from the evidence of
the plaintiff.
Mr M D inter alia testified that he was given a coat,
that Mr D Snr received one too, and a knobkierie, and the plaintiff’s

mother received a blanket and a headscarf. This evidence slightly
differed from the evidence of the plaintiff and of Mr D Snr;
[50.10.3]
Referring to photographs taken on Saturday
3 September 2011, the plaintiff stated that she was dressed in
traditional, colourful
Bapedi clothes. She was given these by the M
family to show that she had become part of their family. This, she
testified, happened
after the lobolo was agreed upon. If so, one
would have expected the dressing in Bapedi clothes to have taken
place after the customary
wedding was concluded, which is how I
understood her initial evidence;
[50.10.4]
Mr D Snr testified under cross-examination
that by giving him the two wooden dishes and the knobkierie, the
defendant showed that
he was happy and that he had accepted that he
has married the plaintiff;
[50.10.5]
Mr D Snr testified under cross-examination
that he gave the defendant a goat as a blessing. Mr M D testified
that Mr D Snr gave
a goat to the defendant to show that he was
accepted as a son-in-law;
[50.11]
The slaughtering of cattle, a traditional
ceremony involving bile, and the handing over of the bride played
further important roles
in the evidence on behalf of the plaintiff.
The plaintiff testified only in part about the slaughtering of cattle
and testified
that-
“
Then
after that there was
(slaughtering of
the cows)
of which the other is called
Lugeke
(Lugege)
and
there was another cow just for the people who were around which is
part of the celebration of the ceremony. The Lugeke means
if you
slaughter that cow it means now we welcome the M’s to the D
family.  The following day, on the same day the M’s
ask
that they will go with me as part of their culture to introduce me to
the M family as Makoti or a bride.  So, on a Sunday
on the
fourth
(of September 2011 that)
I
left with the Ms to Steelpoort.
”
[50.12]
The plaintiff testified under
cross-examination that the parties must agree on lobolo and celebrate
the marriage. She testified
that the slaughtering of the cows was the
celebration, which continued in Steelpoort with half of the meat.
According to her, the
bride needs to be handed over to the groom’s
family. This according to her happened as follows-
“
To
me it is a symbol.  The fact that I was dressed in Pedi and they
asked that I go with them, and then my family agreed on
that and I
went with them to Steelpoort
”
;
[50.13]
Her evidence contradicts the evidence by
her father. Despite several questions under cross-examination, the
plaintiff was unable
to volunteer information about a symbolic
hand-over in cross-examination;
[50.14]
Mr D Snr described that three cows were
involved. The one cow, the “
Geke
”
had to be slaughtered and its slaughter connected the two families.
This confirmed the plaintiff’s version of the
purpose of the
slaughtering and confirms a wedding concluded in eSwatini. Another
cow, was given to the plaintiff’s mother.
This was confirmed by
Mr M D but did not form part of the plaintiff’s evidence. Both
these cows were purchased from Mr D
Snr as part of the lobolo
negotiations, and had to be “
on
the hoof”.
A third cow was
slaughtered, which was to welcome the wedding guests and had to be
eaten. There were about 200 guests. Half of
this cow was to be given
to the M family who had to take it home to “
show
their families that they had been accepted by our family, and to show
the other family members their wife
”.
This then happened, but reflects a concluded marriage ceremony;
[50.15]
In confirmation of a concluded wedding, Mr
D Snr testified that as the father of plaintiff, he handed over his
child to the M family
and he told them that she is “
now
their bride
”. The plaintiff had
not mentioned this ceremonial hand-over, and neither did Mr M D;
[50.16]
During cross-examination Mr D Snr testified
that for a valid customary marriage the “
Geke
”
(Lugege) must be slaughtered, traditional beer must be available,
lobolo must be paid, bile most be poured on the couple,
and the bride
must be handed over by him saying: “
Here
is your bride.  I am giving her to you
.”
The other family then take the bride with them when they leave, i.e.
a concluded wedding. He did not testify about any
further integration
of the bride into the groom’s family, or any customs pertaining
thereto;
[50.17]
It was put to the plaintiff during
cross-examination that “a
request
by the defendant’s family to take
(the plaintiff)
to
(the defendant’s)
family in
Steelpoort to introduce
(her)
there
was obviously granted
”, and she
agreed. It is what she had testified too. During cross-examination Mr
D Snr testified that the request was made
after the lobolo was paid.
Why was the request made if she was married? Mr M D during
cross-examination had the following to say
about the handing-over of
the bride-
“
MR
CRONJE:  Alright and then what do you have to say about handing
over of the bride?
MR
M D:  If the bile had been poured and there was slaughtering, we
are finished and they can take the bride.  The bride
belongs to
them and the groom will have received a goat.  According to our
culture, we are finished and the bride belongs
to that family
”
;
[50.18]
Despite several questions, Mr M D did not
testify about any actual handing-over of the bride. He testified in
cross-examination
that the father does not hold the bride with his
hands “
and tell them, here is your
bride
”. This evidence contradicts
the evidence of his brother;
[50.19]
The ceremony pertaining to the pouring of
bile played an important role according to two witnesses for the
plaintiff (but was not
mentioned by the plaintiff)-
[50.19.1]
Mr D Snr testified that Mr M D poured the
bile of the Lugege, in the mouths of the bridal couple and on their
wrists. Thereafter
the M family dressed the bride with cultural
attire that they had brought along to show that she is “
now
their bride
”. This evidence
differed from the evidence of the plaintiff on the timing of her
being dressed in Bapedi clothes. Mr D Snr
testified under
cross-examination that his daughter was dressed in cultural attire
before the ceremony involving the bile. Mr D
Snr further testified
that the taking of photographs of the bile ceremony was culturally
forbidden;
[50.19.2]
Mr M D testified that he poured the bile
over the couple to combine them in marriage, and that two cows were
slaughtered to combine
the two families. His evidence differed from
that of Mr D Snr in that he said that the bile was poured in the
mouths of the couple,
on their heads and on their joints (top of the
wrists, on the knees, and on the ankles);
[50.20]
The plaintiff testified that when they
arrived in Steelpoort, the plaintiff was dressed in a white
traditional Bapedi outfit, given
a traditional small blanket with
tassels to show that she was the bride. During re-examination the
plaintiff contradicted her earlier
evidence about the dress she wore
when arriving at Steelpoort. She testified that it was the same dress
she wore the previous day;
[50.21]
The plaintiff testified that when they
arrived in Steelpoort there was singing, she was introduced as the
bride and they had a meal.
During cross-examination the plaintiff
testified that she was welcomed with ululation, which is done (
inter
alia
) when a bride is welcomed. At the
defendant’s house during this introduction were his mother, the
delegation who travelled
to eSwatini and other relatives;
[50.22]
During cross-examination the plaintiff
testified that a child was born from the relationship between the
parties on 28 December
2011. The child was registered under the M
surname, against the wishes of the plaintiff (and seemingly against
her evidence). Her
seemingly contradictory testimony was -
“…
I
wanted us to register the customary marriage.  Even after the
child was born.  Immediately.  Then as I said put
the name
as D.  He fought for it.  He said he has paid lobolo.
This child must be called M.  But because I
did not want to
fight with him, then that is how the kids got the surname.
”
[50.23]
The plaintiff testified that she was living
in Midrand at the time of the marriage and the defendant in Lephalale
(where he worked).
Before the marriage the parties saw each other
once a month, and every second week after the marriage. The plaintiff
testified
that the parties started living together from 2012 in a
property rented by the defendant;
[50.24]
During 2013 the defendant purchased an
immovable property. The suggestion in the evidence was that he did so
in his own name (and
not in the joint names of the parties), and had
a mortgage bond registered against it;
[50.25]
The plaintiff testified that the parties
had a second child during December 2017, also bearing the M surname;
[50.26]
During cross-examination the plaintiff
testified that the parties had agreed that they would not have a
so-called white wedding,
it would have been too expensive. They also
never discussed getting married in court. This version was contested
in cross-examination;
[50.27]
The plaintiff spent some time in her
evidence-in-chief to explain WhatsApp messages she sent to the
defendant. She stated in these
messages that the parties were “
not
legally married
”, or “
not
even married
”. She explained that
she was referring to the fact that the parties had not registered
their marriage;
[50.28]
The plaintiff also spent some time in her
evidence-in-chief regarding e-mails where the defendant referred to
her as his “
lovely wife
”,
and as his “
beautiful wife
”.
The plaintiff testified that these references to her being the
defendant’s wife only started after the wedding;
[50.29]
The plaintiff also in her
evidence-in-chief, referred to correspondence with a cellular phone
provider wherein the defendant referred
to her as his wife, and he
applied to have her registered on his medical aid as his spouse. They
had a joint investment in which
the defendant referred to her as his
wife; and
[50.30]
The plaintiff in her evidence-in-chief
referred to a WhatsApp message to her in 2016 by the defendant’s
mother: “
Happy birthday my
beautiful daughter in law
.”
[51]
During cross-examination the plaintiff was
told that the defendant would testify that:
[51.1]
Usually the lobolo negotiations is one
event, and then there is another (later) event for the (marriage)
ceremony. It is unusual
for the lobolo (payment) and the (marriage)
ceremony to happen at the same time. She disputed the version;
[51.2]
The defendant suggested a marriage in a
court, but the plaintiff refused. She wanted a white wedding. As a
Christian, she wanted
a pastor to bless the marriage. The defendant
informed the plaintiff that if she wanted a white wedding, he would
have to save.
He needed to complete the lobolo payment first, then
save money for a white wedding.  In the end he “
applied
to increase his bond on the house
”
to raise the money, but the parties then decided to use the money to
purchase a motor vehicle for the plaintiff (and never
got married).
The plaintiff denied that she had insisted on a white wedding;
[51.3]
The plaintiff reminded the defendant almost
every day that they were not yet married. This matter led to strife
between them. She
disputed the version;
[51.4]
There were several meetings with the
plaintiff’s father. Her father also discussed this issue of not
finalising this marriage
with the defendant. He suggested a marriage
in court. She disputed the version.
[52]
During cross-examination Mr D Snr
inter
alia
was told that the defendant would
testify that:
[52.1]
The prior meeting took place on 30 July
2011 when he and three other gentlemen met Mr D Snr. As reflected
earlier, Mr D Snr did
not dispute the version; and
[52.2]
He met Mr D Snr at the eSwatini border on
29 December 2017 to collect his son who had been visiting the D
family. At this meeting
Mr D Snr instructed the defendant to finalise
the marriage with the plaintiff. Mr D Snr denied that such a meeting
took place.
[53]
The
defendant failed to plead a version. In fact, the defendant had a
completely different version. In hindsight, obviously that
version
was the motivation for some questions put in cross-examination, but
the defendant’s lawyer stopped short of putting
a contradictory
version to witnesses for their comment. If evidence on an aspect is
left unchallenged during cross-examination,
the other party is
entitled to assume that the unchallenged testimony is accepted as
correct.
[66]
In addition, a witness is entitled to a fair opportunity to refute a
later suggestion in argument that he or she had lied about
an event.
The witness must be told that it will be argued that she or he should
be disbelieved, including how the evidence in issue
will be
challenged. He or she must have an opportunity to refute such an
argument, including to be told how the evidence is to
be
challenged.
[67]
[54]
The plaintiff did not close its case after
the evidence by the plaintiff was left unchallenged. Instead the
plaintiff led two more
witnesses. Their evidence was led in full, as
if all matters were in dispute. In addition, the plaintiff also did
not object to
the evidence on behalf of the defendant on the basis
that such evidence had not been pleaded or put to witnesses for
comment. In
order to ensure a just outcome in this matter, I cannot
simply ignore the defendant’s evidence as if it was not heard.
As
a result, I cannot see any prejudice caused to the plaintiff by
the omission to put the defendant’s version to the plaintiff

and her witnesses, if I apply two cautions: (a) evidence about what
the witnesses told the defendant (and not put to them), should
be
disregarded, and (b) I should not make a finding that the plaintiff
and her witnesses were untruthful where fairness required
notice to
them.
[55]
The first witness called by the defendant
was a childhood and university friend, Mr Madire, who was part of the
M delegation in
September 2011. He knows the plaintiff as the
“
partner
”
of the defendant. In conflict with the evidence by the plaintiff’s
witnesses he testified that they arrived on the
Saturday morning and
not the Friday evening. The lobolo negotiations were only concluded
by about 15H00 or 16H00 and as a result
they had to change their
plans to return to South Africa the same day. Lobolo was agreed to as
payment for 25 cows, but only 15
were paid. A cow called “Geke”
(Lugege) was slaughtered, and that they were fed. He further
confirmed in his evidence-in-chief
that they had brought gifts for
the D family. He denied that a wedding ceremony had taken place. The
next day they requested to
return to South Africa with the plaintiff,
which request was granted. They arrived at Steelpoort in the
afternoon. He later in
2014 tried to assist the parties to resolve
their differences. During this interaction the plaintiff made it
clear that they would
only be married in a ceremony officiated by a
priest or a pastor. Cross-examination did not reveal any inherent
difficulties in
the evidence.
[56]
The defendant testified. His version
contradicted the version of the plaintiff and her witnesses:
[56.1]
He met the plaintiff in 2006 at university.
The plaintiff visited him in Durban in December 2008 and a
relationship commenced. The
plaintiff fell pregnant in April 2011. In
order to avoid the payment of damages, they agreed to get married and
the he would pay
lobolo;
[56.2]
Their cultures were different and his
family did not know what they had to do. As a result, he was part of
a delegation that went
to eSwatini on 30 July 2011 to enquire about
the customs. During that visit the D family gave them a stick marked
with 27 cows
and a list of gifts that they need to bring. These gifts
were indeed requirements and had to be brought when lobolo is
negotiated.
Only lobolo would be negotiated at the next meeting;
[56.3]
The M delegation arrived on Saturday 3
September 2011 only to negotiate lobolo. He and the plaintiff had no
intention to get married
that day. The lobolo was fixed late on that
day at 25 cows, he paid for 15. They had to change their plans to
return to South Africa
the same day due to the long negotiations;
[56.4]
Two cows were slaughtered, and guests
arrived and were fed. Under cross-examination he testified that they
were celebrating (or
he believed that they were celebrating) the
conclusion of lobolo negotiations. During cross-examination he
testified that the M
delegation was given some cooked meat, not half
of a cow, not even a quarter of a cow;
[56.5]
On the Sunday they requested that the
plaintiff return with them via Steelpoort to Johannesburg. This would
give them the opportunity
to introduce the plaintiff to the people at
Steelpoort as the person they went to pay lobola for and whom they
want to make the
defendant’s bride. His parents could then also
meet the plaintiff. The request was granted. Mr D Snr told the
defendant’s
uncle that the rest of the lobolo must be paid and
that the parties must get married soon;
[56.6]
Without specifying who made the statement,
the defendant testified as to the events on 3 September 2011-
“
The
purpose of that day was to negotiate lobola and then which took
place.  They were happy with what we gave them, hence they
said
you are now, you can go ahead and get married.  We are giving
our blessings.  We are happy with what you gave us,
but the
marriage did not take place on that day.  I heard the mentioned
the rituals.  I have never heard of that and
myself and the
plaintiff, we do not actually even believe in rituals.  So it is
not something that would have happened.
So I have also heard
that they gave me a goat, which I have no idea where was the goat
given to me when and where is the goat.
What did I do with the
goat?  So I have not heard of that story before and in our
culture as well, those rituals, like the
way they were explaining, it
was like they were marrying me, because we have been to Swaziland and
that they have done the rituals
everything in Swaziland without my
parents being there and then the marriage was concluded and one thing
which I also did not understand,
if they say rituals were done, hand
over was done, I do not understand why we had to request for a
permission to come with us so
that we can introduce to those who
could not manage to come to Swaziland so they can see the person we
willing to make her a wife.
She is this one, because they did
say rituals, everything was
completed.  The wife was our wife,
but at the same time in their letter they are saying, we did request
to go with her and
when they hand over makoti, they hand makoti over
at the man’s place.  Not at the women’s place.
So which,
it did not happen.  Even when she came with us, she
was just alone.  None of her family member came with us to
Steelpoort.”
[56.7]
Referring to the photographs taken on 3
September 2011, the defendant testified that he would not have been
dressed in sneakers
and jeans if traditional wedding was performed on
that day. The dress that the plaintiff wore, is not a bridal one, but
the same
one as the one worn by his sister in the photographs. There
was no cultural significance to the dress given to the plaintiff, it

was a gift that showed that they were Bapedi people;
[56.8]
He always intended to marry the plaintiff.
Problems started soon after the 3 September 2011. The plaintiff
wanted a white wedding
and believed that the defendant would be able
to afford one. She was not prepared to go to court or to the
Department of Home Affairs
to register the marriage, and then later
have a white wedding;
[56.9]
During cross-examination he testified that
he bought an immovable property in Kempton Park in 2013. In 2014 or
2015 he borrowed
against the mortgage bond for a white wedding, but
the plaintiff was doing articles and needed a motor vehicle. They
agreed to
use the money to buy the vehicle and the wedding did not
take place;
[56.10]
On the advice of a pastor the plaintiff
left the common home at some stage, as she was not married. The
plaintiff refused the defendant
sexual intercourse as she believed
she was not legally married. According to her Christian beliefs, the
payment of lobolo is not
the same as being married. She was
committing a sin by having sex without being married;
[56.11]
On 29 December 2017 he went to fetch his
son at the Oshoek border post from Mr D Snr. They had a quick
meeting. Mr D Snr told him
that the D family felt that it has been a
long time and that it is about time for the parties to get married.
Mr D Snr told
him that his daughter was frustrated and insecure. She
did not know where she stood, and that it would be better to go to
court
or to the Department of Home Affairs and get married;
[56.12]
The same day the defendant discussed the
issue with the plaintiff leading to her WhatsApp message the
following day (30 December
2017) that she would never get married to
him in community of property (the normal consequence of a customary
marriage);
[56.13]
On the same date that he received the
divorce summons, he travelled to Soweto to the house of the
plaintiff’s uncle, He showed
him the summons, because he was
surprised. As far as he knew, he was not married;
[56.14]
He addressed the plaintiff as his wife in
e-mails, as she wanted to be addressed as such. The same explanation
was given in respect
of the complaint to the cellular phone provider.
He had to reflect her as his spouse to have her registered on his
medical aid
scheme. Old Mutual, in error, referred to the plaintiff
as M. She never took his surname as they were not married; and
[56.15]
It was never discussed the customary
marriage must be registered, as the parties were not married. They
discussed getting married
at the Department of Home Affairs.
[57]
The defendant’s evidence was not
inherently contradictory, and the cross-examination did not reveal
any clear false versions.
Assuming that this court does have
jurisdiction and that the customary law had been established, I was
faced with two irreconcilable
versions on the facts of the events in
question:
[57.1]
The plaintiff avers that a customary
marriage had taken place, including a traditional ceremony and the
handing-over of the bride;
and
[57.2]
The defendant avers that only lobolo had
been negotiated, agreed upon, and paid in part, but that no customary
wedding had taken
place, as there was no traditional ceremony or a
handing-over of the bride.
[58]
If
the one version is true, the other must be false or mistaken. The
approach to irreconcilable versions has been fully set out
in
National
Employers' General Insurance Co Ltd v Jagers
[68]
and in
Stellenbosch
Farmers' Winery Group Ltd and Another v Martell et Cie and
Others.
[69]
The onus is on the plaintiff to establish on a balance of
probabilities, having regard to the credibility and reliability of
the
witnesses, that the evidence on her behalf is true and accurate,
and that the evidence on behalf of the defence is false or mistaken,

and accordingly falls to be rejected.
[59]
The assessment of the evidence of a witness
is inextricably bound up to a consideration of the probabilities of
the case. If the
probabilities are evenly balanced (in the sense that
they do not favour the plaintiff's case any more than they favour the
defendant's
case), the plaintiff can only succeed if the court
believes her and is satisfied that her evidence is true and that the
defendant's
version is false or mistaken. There are probabilities in
favour of both versions as the summary of the evidence would have
reflected.
The outcome of this case would make a further analysis at
this stage, undesirable. Similarly, it would be undesirable to make
comments
on the impression that witnesses made on me, witnesses who
may have to testify again before a different judge.
[60]
Having regard to all of the aforesaid:
[60.1]
I believe that managed to establish the
recorded and recently applied customary law of the amaSwati. I cannot
make a finding what
the living customary law in this case was, if
different. Neither the evidence, nor the cross-examination, addressed
that aspect
sufficiently. The evidence by the plaintiff and her
witnesses differed on the alleged customs followed (including in that
the plaintiff
omitted to testify about the role of bile), and that
evidence differed from what is recorded in recent judgments in
eSwatini (especially
with regard to the important role red ochre
plays). As will appear below, I have decided in this case not to call
for further evidence
on the law at this stage;
[60.2]
Even assuming that the plaintiff’s
evidence is to be accepted on living customary law, I also cannot
make a finding that I
have jurisdiction to hear this matter. The
plaintiff’s evidence suggests that the customary wedding was
concluded in eSwatini:
[60.2.1]
In
our law, the validity requirements for such a marriage would be
determined by
lex
loci celebrationis
,
the law of eSwatini where the wedding was celebrated.
[70]
I have dealt with the requirements in that country that were not
followed in the present case, especially with regard to red ochre.

Such foreign law has to be proven by the party relying on it;
[60.2.2]
I also would have been unable to grant the
relief that the plaintiff seeks under the Customary Marriages Act,
the cause of action
the plaintiff relied upon as the Customary
Marriages Act do not apply (a) as it is a marriage in a foreign
country and (b) due
to the definition of customary law in the
Customary Marriages Act limited to South African customary law;
[60.2.3]
If the proper law pertaining to the
marriage is eSwatini law, I also may have no jurisdiction to order a
divorce in the case of
a customary marriage concluded in eSwatini
(dependent on its status in that country as an official marriage), or
may not have such
jurisdiction before a customary law dissolution has
taken place. The authorities that I referred to suggest that a
customary marriage
concluded in eSwatini could only be dissolved in a
civil court in that country after following the customary law (and
then it is
a dissolution and not a divorce that serves before the
High Court in that country);
[60.3]
Even assuming that the plaintiff’s
evidence is to be accepted on customary law
and
that this court has jurisdiction, I also cannot make a finding that
it is more probable than not that a customary marriage was
concluded
with regard to the compliance with living customary law, and
especially with regard to the requirement that the defendant
had to
consent to such a marriage in terms of section 3(1)(a)(ii) of the
Customary Marriages Act.
[61]
Under
these circumstances, an order of absolution from the instance would
be the appropriate order and not a dismissal of the action.
[71]
The main issues that were dealt with in this judgment were not
addressed adequately or at all in the pleadings or in the evidence.

The matter before me was always but one step in the litigation. The
parties intended to return to court.
It
is possible that the plaintiff could plead and lead evidence to
address the shortcomings in her case.
Although
my judgment favours the defendant, his failure to plead and put his
version to the plaintiff played an important role in
my decision why
absolution is ordered (and not a dismissal of the action). I
therefore do not follow the normal rule
[72]
and find that each party should pay its own costs.
[62]
The outcome of this matter will be
unsatisfactory for all persons who were involved in the matter. It is
for me too. The parties
still do not know if they are married or not.
The attempt to make progress in the matter through the separation of
an issue, failed.
I make the following order:
1.
Absolution from the instance is ordered on
the separated issue of whether the plaintiff and the defendant are
married under customary
law.
2.
Each party is to pay its own costs,
including all reserved costs.
_____________
DP
de Villiers AJ
Heard
on:

11 to 13 March 2020
Delivered
on:

12 May 2020 electronically, by e-mail
On
behalf of the Plaintiff:
Adv M Mthombeni
Instructed
by:

ES & Associates
On
behalf of the Respondents:
Mr AL Cronje
Instructed
by:

McKenzie Van der Merwe and Willemse Inc
[1]
The
witnesses in this matter usually referred to “Swaziland”
and “Swazi” in their testimonies. I made
enquiries from
a witness in the matter, as well as afterwards. Upon reflection, I
will use “amaSwati”, “eSwatini”
and
“siSwati”, as the reader may not have been present at
the hearing.
[2]
I
too use the spelling “lobolo” in this judgment.
[3]
The
witnesses in this matter usually referred to “Pedi” in
their testimonies. Again, upon refection I will use the
term
“Bapedi”.
[4]
See
Communication
Workers Union and Another v Telkom SA Ltd and Another
1999 (2) SA 586
(T) at 593G-J
and
the cases summarised therein.
[5]
See
Shilubana
and Others v Nwamitwa
2009 (2) SA 66
(CC) para 42-49 and para 56-57.
[6]
Seymour’s
Customary Law in South Africa, prof. JC Bekker, 5
th
edition at P11.
[7]
Customary
Law in South Africa, prof. TW Bennett, 1
st
edition, P1.
[8]
Vol.
32, 2
nd
edition, Indigenous Law, by NJJ Olivier, J Church, RB Mqeke, JC
Bekker, L Mwambene, C Rautenbach and W Du Plessis, para 1.
[9]
See
Hlophe
v Mahlalela and Another
1998 (1) SA 449
(T) at 458D-E
[10]
Sigcau
v Sigcau
1944 AD 67
at 76.
[11]
Moropane
v Southon
[2014]
ZASCA 76
para 36.
[12]
MM
v MN and Another
2013
(4) SA 415
(CC) para 48.
[13]
Gumede
v President of Republic of South Africa and Others
2009 (3) SA 152
(CC) para 29-30.
[14]
See
Shilubana
para 44, 46 and 49.
[15]
See
Mbungela
para 18.
[16]
Shilubana
and Others v Nwamitwa 2009 (2) SA 66 (CC)
[17]
(a)
The traditions of the community in the past, (b) the right of
communities to develop their own law, and (c) the current practice

in the community.
[18]
Mayelane
v Ngwenyama and Another
2013 (4) SA 415
(CC) para 47-48 and 61.
[19]
Volume
32, Second Edition Indigenous Law, para 89.
[20]
5
th
edition at P105.
[21]
1
st
edition, P199-217.
[22]
[2011]
2 All SA 324 (GSJ)
[23]
Thembi
Mhlanga And Alfred Mhlanga & 4 Others
(16/2014) [2014] SZSC51 (3 December 2014), a judgment by MCB
Maphalala JA (MM Ramodibedi CJ and P Levinsohn JA concurring).
[24]
Para
17.
[25]
Para
14.
[26]
Samuel
Myeni Hlawe v Beatrice Tholakele Seyama and Two Others
(56/2016) [2017] SZSC 41 (9 October 2017), a judgment by MJ Dlamini
JA, (RJ Cloete JA and JP Annandale JA concurring).
[27]
Para
14.
[28]
Para
11.
[29]
Para
12.
[30]
Para
33-34.
[31]
(
Mduduzi
Masiko Dlamini vs Philile Nonhlanhla Dlamini (nee Ndzinisa)
33/2017)
[2017] SZSC 58 (10 November 2017), a judgment by MJ Dlamini JA (Dr
BJ Odoki JA and RJ Cloete JA concurring).
[32]
Para
5.
[33]
Para
4.
[34]
Para
22.
[35]
(536/2018)
[2018] SZHC 43
(7 March 2019).
[36]
Para
4.
[37]
Mabuza
v Mbatha
2003 (4) SA 218 (C).
[38]
Para
4.
[39]
2004
(67) THRHR
by
JC Bekker.
[40]
Mbungela
and Another v Mkabi and Others
2020 (1) SA 41
(SCA) para 7.
[41]
LS
v RL
2019 (4) SA 50
(GJ).
[42]
Para
21.
[43]
Road
Accident Fund v Mothupi
2000 (4) SA 38
(SCA) para 15-19.
[44]
Mothupi
para
19.
[45]
Sengadi
v Tsambo; In Re: Tsambo
[2018] ZAGPJHC 666
[46]
Para
35-38.
[47]
(2017)
17 AHRLJ 35, by prof. Lea Mwambene.
[48]
P50-51.
[49]
The
article earlier refers the following judgments in Gauteng:
Ndlovu
v Mokoena and Others
2009 (5) SA 400
(GNP),
Motsoatsoa
v Roro and Others
[
[2011] 2 All SA 324
(GSJ), and to
Mxiki
v Mbata, In Re: Mbata v Department of Home Affairs and Others
[2014] ZAGPPHC 825, the last mentioned is a judgment by three
judges.
[50]
P52-53.
[51]
P53-54
[52]
(2019)
30 Stell LR 464 by TA Manthwa.
[53]
Later
at P470 the same point is made as follows:
“
For
a court to have a clear picture, it should investigate the purpose
of a practice and determine whether the practice is observed
as a
social practice or out of a sense of obligation. As stated earlier,
if a practice is a social practice, then it binds no
one and should
not be developed. If, however, a practice is observed out of a sense
of obligation, then it may mean that it is
a norm that cannot be
deviated from without consequences. The task of the court would then
be to test the norm against the Constitution
for consistency
.”
[54]
P467.
[55]
P470-471.
[56]
By
F Osman, PER/PELJ 2019 (22) 1.
[57]
By
H Kruuse and J Sloth-Nielsen, PER / PELJ 2014 (17) 4 1710.
[58]
P1721.
[59]
P1721.
[60]
P1722.
[61]
P1732.
[62]
Mayelane
para 61 and 87.
[63]
Butters
v Mncora
2012 (4) SA 1 (SCA).
[64]
“
[18]
In this light our courts appear to be supported by good authority
when they held, either expressly or by clear implication
that:
(a) …
(d) Where the
conduct of the parties is capable of more than one inference, the
test for when a tacit universal partnership can
be held to exist is
whether it is more probable than not that a tacit agreement had been
reached.
…”
[65]
[1947]
2 All ER 372
(KB) at 373.
[66]
See
Small
v Smith
1954
(3) SA 434
(SWA) at 438E-H
[67]
See
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000 (1) SA 1
(CC) para 61-65.
[68]
National
Employers' General Insurance Co Ltd v Jagers
1984
(4) SA 437
(E) at 440D-H.
[69]
Stellenbosch
Farmers' Winery Group Ltd and Another v Martell et Cie and Others
2003 (1) SA 11
(SCA) para 5.
[70]
Ngqobela
v Sihele
(1893) 10 SC 346
at 352-353;
Seedat's
Executors v The Master (Natal)
1917 AD 302
at 307;
Pretorius
v Pretorius
1948 (4) SA 144
(O at 147-149.
[71]
Corbridge
v Welch
(1891-1892)
9 SC 277
at 279.
[72]
General
Wholesale Suppliers (Pvt) Ltd v Aims Distributors
1975 (1) SA 600
(RA) at 601 A-B.