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[2021] ZAGPJHC 58
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Mgenge v Mokoena and Another (4888/2020) [2021] ZAGPJHC 58 (21 April 2021)
In the
matter between:
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
DIVISION, JOHANNESBURG
CASE NO: 4888/2020
In the matter between:-
MGENGE
MANTSHADI
JEANNETTE
Applicant
and
MOKOENA
MALESHOANE
ROSE
First Respondent
DEPARTMENT
OF HOME
AFFAIRS
Second Respondent
JUDGMENT
ROME, AJ:
INTRODUCTION
1.
This is an application
by the mother of a deceased adult male for the cancellation
of an abridged marriage
certificate (dated 27 November 2019) certifying that the deceased,
the
late
Mr
Siphiwe
Mgenge,
and
Ms
Maleshoane
Rose
Mokoena
were married by
customary marriage.
2.
The respondents are the
abovementioned Ms Mokoena Maleshoane Rose (the first respondent) and
the Department of Home Affairs (which
was cited as the second
respondent). The Department has not entered an appearance in this
matter.
RECOGNITION OF
CUSTOMARY MARRIAGES ACT 120 OF 1998
3.
The application
pertains to the provisions of the Recognition of Customary Marriages
Act 120 of 1998 (“the Act”). Before
turning to the facts
it is helpful to refer to the purpose of the Act and its pertinent
provisions.
4.
The Act came into
effect on 15 November 2000. It is this country’s first piece of
legislation that gives full legal recognition
to customary marriages.
Prior to its enactment customary marriages were in our law treated as
inferior to civil marriages
otherwise
concluded
in
terms
of
the
common
law
and
marriage
legislation.
5.
In terms of section 1
of the Act “
a
customary marriage
”
is defined to mean a marriage concluded in accordance with customary
law. “
Customary
law”
is in
turn
defined
to mean the customs and usages traditionally observed amongst
indigenous African peoples of South Africa and which form
part of the
culture of
those
peoples.
6.
Section 2(2) of the Act
provides for the recognition of customary marriages entered into
after the Act’s commencement.
Marital recognition is
made subject
to
the condition that the relevant marriage complies with the Act’s
requirements.
7.
The requirements for
the conclusion of a valid customary marriage are set out in
section 3. They are the
following: (a) The prospective spouses must both be older
than 18; (b) They must
both consent to be married to each other under customary
law; and (c) The
marriage must be negotiated and entered into (or celebrated) in
accordance with
customary law. If either of the intended spouses is a minor, his
or her parents must
both consent to the marriage. The intended spouses must not be
prohibited from marriage because of a proscribed
relationship by
blood or
affinity,
as determined by customary law.
8.
The requirements appear
capable of easy fulfilment.
[1]
However, the prerequisite
that the marriage must
be negotiated and entered into or celebrated in accordance with
customary law gives rise to some legal complexities.
[2]
This requirement entails examining whether the customs, traditions,
or rituals, that have to be observed in the negotiations and
celebration of customary marriages,
have been complied
with.
[3]
These include the negotiations leading to the agreement on
lobolo,
its actual
provision and the "handing over" of the bride to the
bridegroom's family or the bridegroom himself as well
as any other
tradition, custom or ritual associated with these. If a customary
marriage has not been concluded in accordance with
customary law, it
cannot be regarded as valid even
if all other
requirements are met.
[4]
9.
The requirements for a
valid customary marriage are thus similar to those prescribed for a
civil marriage except that a customary
marriage has to be negotiated
and entered into or celebrated in accordance with customary law. A
clear distinction is still, however,
maintained between these marital
relationships.
10.
As noted above one such
distinguishing feature is the abovementioned provision
that customary
marriages be negotiated, entered into or celebrated in accordance
with customary law. Nonetheless as recently stated
by the SCA (per
Maya P) in
Mbungela
:
[5]
“
no hard and fast rules can
be laid down, this is because ‘customary law is a flexible,
dynamic 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’ …
because of variations in
the practice of
rituals and customs in African society, the legislature left it open
for the various
communities to give content to section 3(1)(b) in accordance with
their lived experiences” (See para17).
11.
Section 4 of the Act
states that spouses married by customary marriage must ensure that
their marriage is registered. The period
within which registration
must take place is three months after the conclusion of the marriage
or within such longer period as
the minister may from time to time
prescribe in a notice in the
Gazette
.
[6]
12.
Although the Act makes
it obligatory to register a customary marriage, section 4(9) provides
that a failure to do so does not affect
the validity of that
marriage. One consequence of failing to register a customary marriage
would be that absent
a
marriage
certificate
it
would
be
difficult
for
either
spouse
in
their
interactions with third
parties and government departments (and similar organisations), to
establish the subsistence of the marriage
and his/her marital status.
In contrast, possession of a marriage certificate constitutes prima
facie proof of the marriage. Section
4(8) provides that “
a
certificate of registration of a
customary
marriage issued under this section… constitutes prima facie
proof of
the
existence of the customary marriage and of the particulars contained
in the certificate.
”
Registration of the customary marriage thus provides for public
certainty about the relevant spouses’ marital status.
13.
In terms of section
4(2) either spouse may register the marriage on behalf of both
spouses. It appears
that the purpose of this section is to ensure that a spouse who is
reluctant to register the marriage does not
frustrate or undermine
the other
spouse’s
wish to have their marriage registered.
14.
In a treatise on the
Act prepared for the Justice College, it is stated (in my respectful
view, correctly) that because marriage
terminates on death, after the
death of one of the spouses the Department will not issue a marriage
certificate
but
will merely provide proof of registration of the marriage.
[7]
15.
If either of the
spouses fail to make the necessary application to register the
marriage, the Act enables an interested party to
apply for its
registration. Section
4(5) of the Act
provides:
“
(a) If for any reason a
customary marriage is not registered, any person
who satisfies a
registering officer that he or she has a sufficient interest in the
matter may apply to the registering officer
in the prescribed manner
to enquire into the existence of the marriage.
(b) If the registering officer is satisfied that a
valid customary marriage exists or existed between the spouses, he or
she must
register the marriage an issue a certificate of registration
as contemplated in subsection (4).”
16.
In terms of section
4(7), a court may, upon application made to that court and upon
investigation instituted by that court, order:
(a)
the registration of any
customary marriage; or
(b)
the
cancellation
or
rectification
of
any
registration
of
a
customary
marriage
effected by a
registering officer.
17.
The Act does not
expressly state who may bring such an application but having
regard to the fact that
the Act enables both of the spouses, and also any person
with a sufficient
interest, to apply in the ordinary course for the registration of a
customary marriage, it appears clear that
both of the spouses and any
person with sufficient interest, would have the necessary standing to
bring an application
under section 4(7).
18.
In the present matter,
the applicant as the mother of the deceased would thus have
sufficient interest to apply to this court, under
section 4(7) of
Act, for the cancellation of the relevant registration. The first
respondent has in any event not
contended otherwise.
19.
Both the notice of
intention to oppose and the answering affidavit were filed late,
the first respondent
sought condonation therefor. She explained in the answering
affidavit that it took
her a while to obtain the necessary documents that her attorneys had
requested her to provide and that the
process of finalising these
documents and her answering affidavits was then further delayed as
result of the
exigencies of the Covid
epidemic and the attendant lock down regulations during
the first half of 2020.
No prejudice was occasioned to the applicant thereby and the
applicant has in any event replied to the answering
affidavit. A
proper case for the late filing of the answering affidavit was
therefore made out.
THE FACTUAL DISPUTE
20.
Turning now to the
particular facts of the matter. The deceased died on 7 November 2019.
The applicant annexed to her founding affidavit
a copy of the
marriage certificate that she seeks to have cancelled.
Ex
facie
the
certificate, the
registration is dated
27 November 2019 and certifies that the marriage took place
at “Boiketlo
QwaQwa” on 17 November 2018.
21.
Despite
the above precept about
death terminating a marriage, in this matter the
Department did not
simply provide proof of registration of the marriage but, post
the death of the
deceased and on application of the first respondent, issued a
marriage certificate. It is not apparent from the
record if before
issuing the marriage certificate, the registering officer had been
informed of the fact of the deceased’s
death. There is also an
incongruity between the express wording of
the Act and the facts
in this matter in that the application for the registration of the
marriage occurred well outside the prescribed
three-month statutory
period but, nonetheless, the Department still proceeded to issue the
certificate. Moreover, there is a contradiction
between the death
certificate (a copy of which
the applicant annexed
to her founding affidavit) and the marriage certificate. The
death certificate
indicates that the deceased at the time of his death was a divorcee,
whereas the marriage certificate indicates
that the deceased’s
status was the husband of the first respondent. The death certificate
was likewise issued by the Department
but its date precedes the date
of the marriage
certificate by a couple
of weeks.
22.
There are therefore
competing versions of the applicant and the first respondent
about whether the
relationship of the first respondent and the deceased had progressed
to the point of the conclusion of a customary
marriage ceremony (the
first respondent’s
version) or whether it had only reached the point of there being
negotiations to enter
into a marriage, but not the conclusion thereof (the applicant’s
version).
23.
The applicant alleged
that during 2018 the deceased, who was then a divorcee with children,
was of a mind to enter into negotiations
with the first respondent’s
family. These
negotiations if successfully concluded, would have resulted in a
customary marriage.
In
respect of the deceased’s alleged intention, the applicant
annexed to her founding
affidavit a copy of a contemporaneous handwritten document authored
by the deceased (written in Sesotho).
It is unfortunate that neither
party had saw fit to assist this Court by providing a typed version
and translation of this handwritten
document in terms of Rules 61 and
62(2) of the Uniform Rules of Court which together prescribe that
where evidence is given in
any language with which
the Court is not sufficiently conversant that such evidence be
interpreted and that documents filed with
Court be typewritten on A4
standard size.
24.
The applicant alleged
that the contents of the handwritten document indicates an
intention to enter into
marriage negotiations and that it does not evidence the deceased’s
promise to marry the first respondent.
The applicant further alleged
that despite the deceased’s intention to commence marriage
negotiations, the marriage ceremony
never took place. According to
the applicant this was because the deceased was already father to
several children and the first
respondent would “not accept”
them. As a result (so says the applicant) the deceased changed his
mind and decided not
to marry the first respondent. Finally, the
applicant alleged that it was only often after the death of the
deceased
and
in January 2020 that she first learned that a marriage certificate
had been issued and that a customary marriage, as recorded
in the
certificate, ostensibly taken place. According to the applicant she
was not aware of any wedding ceremony and absent her
consent thereto
as “the sole parent” of the deceased and in terms of
customary law there could not have been a valid
marriage.
25.
In her answering
affidavit the first respondent, in amplification of her version that
a customary marriage
had indeed been validly entered into, provided details of her
relationship with the deceased. She stated that
this relationship
commenced
in
2014, and that a son was, during January 2018, born of the
relationship. She further averred that at the time of deposing to
her
affidavit she was pregnant with
their second child.
26.
According
to
the
first
respondent,
during
2018
she
and
the
deceased
had
decided to get married
in accordance with customary law. Thereafter the necessary
negotiations were concluded between her uncles,
the deceased’s
father, and the maternal and paternal uncles of the deceased in
accordance with
customary law. Although
the first respondent and the deceased were present during these
negotiations they did not participate therein.
27.
Upon the successful
conclusion of these negotiations a written lobola agreement
was entered into,
witnessed by the respective uncles of the deceased and the first
respondent; this written agreement is the handwritten
document
annexed (as annexure C) to the applicant’s founding affidavit.
The first respondent alleged
further that the
customary wedding ceremony took place at her paternal home (for
convenience, “the homestead”) and that
the night before
the wedding the applicant had requested the deceased’s uncles
to sleep at her (the applicant’s) home
(in Soweto)) before
travelling to the homestead to attend the wedding celebrations. The
applicant, so the first respondent alleges,
was thus clearly aware of
the intended wedding ceremony.
28.
The first respondent
denied that the deceased had any change of heart. She averred that
the customary wedding ceremony duly took
place on 18 November
2018. She alleged that
at the wedding feast, sheep were slaughtered, fat of the
sheep was rubbed on the
deceased’s head (symbolizing the conclusion of the marriage
under customary law) and that the deceased
made part payment of an
agreed lobola amount
(with the balance to be paid at a later date).
29.
The first respondent
also averred it was only after the death of the deceased that
the applicant first
denied the existence of the marriage. She accordingly then went to
the offices of the Department to have the
customary marriage
registered.
She
alleged that the Department, on the production of two supporting
affidavits from witnesses to the marriage ceremony, then issued
the
marriage certificate. In support of these allegations the first
respondent annexed corroborating affidavits from two of the
uncles
who were at the ceremony. As further evidence of the marriage, the
first respondent referred to and annexed a copy of the
funeral
notice for the
deceased. This notice refers to the first respondent as the
deceased’s “wife”. Apart from denying
the
applicant’s lack of knowledge of the marriage, the first
respondent also denied that the applicant’s consent to
the
marriage was required given that the authorised family of
representatives of the
deceased, his father,
and his uncles, had consented thereto.
30.
In reply the applicant
persisted with her denial that the marriage ceremony had taken place.
She repeated her version that the written
document produced as
annexure C to her founding affidavit, properly translated and
interpreted, indicates nothing more than an
intention to enter into
marriage negotiations. As to the ceremony, she denied having
knowledge that the deceased had gone to the
homestead for the
purposes of being married. She admitted that the deceased and family
members had indeed visited at her home and
that they had
then travelled to the
homestead but, according to the applicant, this was for the
introduction of the deceased to the first respondent’s
family.
She further denies that there was a wedding celebration and alleges
that any slaughtering of sheep
was in the context of a
guest offering not a wedding ceremony.
31.
Whilst the replying
affidavit is somewhat lacking in detail, it repeated the essence
of the applicant’s
version, namely that the handwritten document evidenced an intention
to enter into negotiations (but not
an intention per se to marry).
The applicant further in reply alleged that the reason why the
funeral notice described
the first respondent as
the deceased’s wife was because of a mistranslation by the
undertaker
(presumably
the
funeral
home)
who
prepared
that
document.
According to the applicant the deceased’s family (and she does
not say who on behalf of the deceased’s family did so)
had
given the “undertaker” details in the Sesotho language of
the information that should be in the funeral notice.
The undertaker
had however mistranslated the Sesotho word for partner (“
molekane
”)
as “wife” when he prepared the notice.
32.
The replying affidavit,
as read with the founding affidavit contains what is a potentially
significant inconsistency in the applicant’s
version. In the
founding affidavit the applicant had alleged that she was the sole
parent of the deceased.
Presumably she meant by
this that the deceased’s father Mr. John Solani Mahlangu was
either dead or entirely absent from parental
responsibilities. The
first respondent in answer stated that the deceased’s father
consented to the marriage. In reply the
applicant did not persist
with her claim to be the sole parent
of the deceased and
admitted that the deceased, his father, and the uncles had
travelled to the
homestead. However the applicant, as noted above maintained
that that the purpose
of their meeting was introductory in nature.
33.
The most pertinent of
the replying affidavit reads as follows:
“
I reiterate that when Mr.
John Solani Mahlangu and the messengers were send
[sic] to Mokoena
family, they were going ho kopa sego sa meetse (introducing
the family of
Mahlangu (Mgenge) to that of Mokoena and if welcomed, to find out how
much will be needed for the conclusion of the
marriage. THIS IS NOT
THE MARRIAGE IT
IS INTRODUCTION
.”
[8]
DETERMINATION
34.
Thus the primary
factual dispute that emerged on the papers was whether the meeting
between certain members of the respective families
resulted in the
conclusion of a customary marriage. Both parties rely on the
handwritten document in support of their competing
versions. This
document was however not translated into English for the assistance
of this court. Moreover there appear
to be linguistic
nuances that need to be understood in interpreting the handwritten
document and the document also needs to be interpreted
by reference
to a determined factual context.
35.
Ordinarily a customary
marriage certificate would constitute
prima
facie
proof both of
its contents and the existence of the customary marriage. An
applicant seeking to set aside a customary marriage certificate
in
circumstances where one or both the parties thereto will likely
insist on the validity of the marriage, should anticipate that
disputes of facts are likely to arise. That party would accordingly
in these circumstances be wise to proceed by way of action.
Given
the clear animosity
apparent on the affidavits this matter is an example where the
likelihood of dispute of fact could have been
anticipated.
36.
I am however not minded
to dismiss the application on the basis of there being disputes of
fact which the applicant ought to have
anticipated. The following
considerations have application. The marriage certificate was issued
outside of the prescribed three-month
period. There is nothing in the
record to indicate on what basis the Department issued the
certificate outside of the prescribed
period.
Moreover,
it
appears
strange
that
after
the
death
of
the
deceased,
the Department would
have issued a marriage certificate as opposed to simply having
recorded (proof of) the existence of the marriage.
It may be that at
the time of the application for the certificate, the registering
officer was unaware of the deceased’s
death. If so this would
mean that the Department failed to keep its records updated. Had it
done so, it would have been aware that
it had already
(at the time when
considering the first’s respondents’ application to
register the marriage) issued a death certificate
certifying that the
deceased was a divorcee
(i.e., he was then
unmarried). As the Department did not enter an appearance there was
unfortunately a complete absence of evidence
in the record on the
clear anomaly between the Department’s two certificates.
37.
The apparently
understood from the first respondent’s heads of argument that
the first respondent was requesting a referral
to oral evidence
[9]
.
While the first respondent’s heads of argument do make
reference to the principle that the disputes of fact in this matter
cannot be resolved on affidavit but only through oral evidence, there
is no request therein to refer the matter for oral evidence.
Instead
the first respondent contended in her heads that the application
falls to be dismissed because the necessary facts to ground
the
application had not been established on motion.
38.
Accordingly neither
party had requested a referral to evidence. Nonetheless it is
clear
law
that
a
court
may
in
the
exercise
of
its
discretion
mero
motu
refer
a matter
to
oral
evidence
if
it
is
of
the
view
that
this
would
ensure
'a
just
and
expeditious decision'
as contemplated in Rule 6(5)(g).
[10]
49.
The importance of
determining the deceased’s marital status at the time of his
death as expeditiously is a material consideration
in favour of my
exercise of this
mero
motu
discretion.
The determination of the deceased’s marital status ought
to made by reference to
the complete factual context necessary to evaluate both
the correct meaning of
the handwritten lobola document and the competing versions about
whether the meeting between the families
amounted to a marriage
ceremony or was merely for introductory purposes. A referral to oral
evidence will assist in the circumstance
and in my view assist in
achieving in a just and equitable determination of the dispute.
CONCLUSION
40.
In the summary there is
fa actual dispute as to whether the first respondent and
the deceased were
married under customary law. The parties have both given the essence
of their competing versions under oath. Cross-examination
would
assist in determining the veracity of each version. The dismissal of
the application
would
not resolve, and would instead prolong, the conflict between the
deceased’s mother and the first respondent (who regardless
of
her marital status
was
at the very least his partner and the mother of his child and also of
his as yet
unborn
child, at the time of his death). The fact that the marriage
certificate and the
death
certificate
are
contradictory
of
each
other
is
a
further
consideration
requiring
that
the
dispute
between
the
parties
be
resolved
as
expeditiously
as
possible and that the
best route to do so is through a referral.
41.
In exercising my
discretion to order a referral
mero
motu
, I have of
course carefully considered the admonition of Myburgh J
[11]
to the effect that a referral to
oral evidence
mero
motu
would
constitute an unusually bold step by the presiding
judge. Nonetheless in
the exercise of my discretion, I consider that that this is indeed
such a case. In regard to the costs of
this application these would
be best
determined
after the hearing of the oral evidence.
ORDER
42.
I accordingly make the
following order:
1.
Condonation for the
late filing of the answering affidavit and notice of intention
to oppose is granted.
2.
The
issue
of
whether
a
customary
marriage
was
concluded
between
the
deceased and the first
respondent is referred to oral evidence on a date to be arranged with
the Registrar.
3.
Unless this court
otherwise directs, in relation to the issue referred to oral
evidence:
a.
the applicant and the
first respondent will be entitled to call any witness
who deposed to any
affidavit in the application proceedings;
b.
the applicant and the
first respondent are obliged to make available for cross-examination
such witnesses who deposed to affidavits
in these proceedings to the
extent that such party persists in seeking to place any
reliance on that
person’s evidence in the affidavits;
c.
the applicant and the
first respondent are entitled to call any further witnesses who were
not deponents to affidavits in these
application proceedings;
d.
provided that such
party has at least thirty court days before the date of
the hearing of the oral
evidence served on the other party a statement of the evidence
in-chief to be given by such person;
e.
but subject to the
court, at the hearing of the oral evidence, permitting such further
witnesses to be called notwithstanding that
no such statement has
been served in respect of his or her evidence;
f.
the applicant and the
first respondent may subpoena any witness to give
evidence or to furnish
documents at the hearing, whether such person has consented to
furnish a statement or not in relation to
the issue referred to oral
evidence;
g.
that a party has served
a statement in terms of sub-paragraph 2.3 above
or has subpoenaed a
witness shall not oblige such party to call the witness concerned;
h.
Uniform Rule 35 will be
applicable to the discovery of documents on the
issue referred to oral
evidence.
i.
The incidence of costs,
including any costs arising from the hearing of this application on
26 January 2021, will be determined
after the hearing
of oral evidence.
GB ROME
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
Appearances
For the applicants:
Adv. MJ Letsoalo
Instructed by:
M.J Mphahlele Attorneys
For the respondents:
Adv. WJ Prinsloo Instructed by:
BMH Attorneys Inc
Date of
hearing:
25 January 2021
Date of judgment:
21 April 2021
[1]
See MAITHUFI, Papa IP.
The
requirements for validity and proprietary consequences of
monogamous and
polygynous customary marriages in South Africa: Some observations.
De Jure
(Pretoria)
[online]. 2015,
vol.48, n.2 [cited 2021-04-20], pp.261-279. Available
from:<
http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2225-
71602015000200002&lng=en&nrm=iso>.
ISSN 2225-7160.
http://dx.doi.org/10.17159/2225-
7160/2015/v48n2a1.
[2]
Ibid.
[3]
Moropane v Southon
[2014]
JOL 32172 (SCA).
[4]
Rasello v Chali In re: Chali v Rasello
2013
JOL 30965
(FB);
Fanti
v Boto and Others
2008 (5) SA 405
(C).
[5]
Mbungela and Another v Mkabi and Others
2020
(1) SA 41
(SCA) para 17.
[6]
In terms of GN 51,
GG
[
Government
Gazette
number missing], dated 5
February 2010 the period in which both customary marriage entered
into before the act and a customary
marriage entered into thereafter
was extended up to 31 December 2010. For marriages entered into
subsequent to 31 December 2010
this does not appear to be relevant.
[7]
See justice college paper compiled by MM Meyer in
March 2009 and updated during May 2012, on
Recognition of Customary Marriages (at
page 12 thereof).
[8]
Emphasis in the original.
[9]
And for this reason the applicant filed further
heads of argument contending why what she perceived
as a request to refer the matter, should
be refused. This perception was incorrect.
[10]
Fikre v
Minister of Home Affairs and Others
2012 (4) SA 348
(GSJ) para 25 and the
cases cited
thereat
[11]
Joh-Air (Pty) Ltd v Rudman
1980
(2) SA 420
at 428H-429B.