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[2010] ZAGPPHC 277
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Matlala v Dlamini and Another (35611/2008) [2010] ZAGPPHC 277 (3 June 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
GAUTENG. PRETORIA)
Case
No: 35611/2008
Date
heard: 25/05/2010
Date
of judgment: 03/06/2010
In
the matter between:
Matlala
Gertrude
......................................................................................................
APPLICANT
and
Dlamini
Patricia Bikwaphi
…....................................................................
FIRST
RESPONDENT
The
Minister of
Finance
.....................................................................
SECOND RESPONDENT
JUDGMENT
DU
PLESSIS J:
The
applicant is the mother and the sole surviving parent of the late Mr
Lefi Montsejane Matlala. I shall refer to the late Mr Matlala
as "the
deceased". The applicant seeks two declaratory orders. First,
she seeks an order that no valid customary marriage
existed between
the deceased and the first respondent. In the second place the
applicant seeks an order to the effect that the
first respondent is
not entitled to any benefit from the estate or the pension fund of
the deceased. The applicant also sought
an order to the effect that
the second respondent, a pension fund, be directed to pay to the
applicant the pension benefits standing
to the credit of the
deceased's estate. Mr Makondo who appeared for the applicant informed
me that the applicant does not persist
in seeking such an order
because the relevant pension credit has already been paid to the
first respondent.
The
first respondent, contending that a valid customary marriage existed
between her and the deceased, opposes the application.
It
is necessary to remark on the state of the papers before the court.
When the matter was called for hearing, the court file was
empty.
Counsel informed me that, as happens too often, the entire contents
of the court file went missing in the registrar's office.
The
parties' legal representatives, working together, prepared an agreed
duplicate set of papers. They also handed to me an agreed
copy of
annexure PBD6 to the answering affidavit. They could not agree on
which of two documents is the correct annexure PBD3 to
the answering
affidavit. Those interested will therefore find in the papers two
documents marked PBD3. In my view nothing turns
on the difference
between the two documents. It will also be noted that the sequence of
annexures to the answering affidavit does
not correspond with the
sequence of the pagination. The reason is that when I prepared this
judgment, I noticed that the annexures
were
not properly marked and that they were bound out of sequence. I
marked them and put them in what I trust is the correct sequence.
As
to the central question whether a customary marriage existed or not,
there are disputes of fact on the papers. The applicant,
however, did
not seek to have the matter referred to trial or for the hearing of
oral evidence. What now follows is a summary of
the facts as I find
them by application of the general rule set out in Plascon Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(AD).
At
some stage prior to November 2000 the respective families of the
deceased and the first respondent ("the couple") entered
into marriage negotiations. They agreed on the proposed marriage and
on payment of R10 000 as lobolo. The father of the deceased
and the
guardian of the first respondent, her elder brother, accepted the
agreement. On 11 November 2000 the deceased paid an amount
of R5000.
The first respondent's family issued a receipt in the following
terms: "An amount of R6000 was given to Dhlamini's
family by
Matlala's family for a lobolo and Dhlamini family took it and keep it
for further discussion". After the payment
of the R5000, and on
the same day, the bride was handed over to the groom and she formally
left her parent's house to move in with
the deceased. To the
knowledge of both families the couple thereafter lived together as
husband and wife until the death of the
deceased on 13 December 2006.
The
first respondent's eldest brother, who is the head and traditional
leader of the family, saw that the deceased was properly
taking care
of the first respondent and that the couple were happy. He decided
not to insist on payment of the balance of the lobolo.
The evidence
does not show, however, that the Dhlamini family waived the right to
payment of the balance of the lobolo.
The
Dhlamini family regarded the couple as lawfully married in accordance
with their (siSwati) customs. As for the Matlala family,
the
applicant contends that in accordance with their (baPedi) customs,
the couple were not lawfully married. The applicant, however,
visited
the couple at their communal home. After the death of the deceased,
the Matlala family recognised the first respondent,
in accordance
with baPedi custom, as the mourning wife. Customs and rites in that
regard were followed before, at and after the
funeral.
After
the death of the deceased, probably at the request of the first
respondent, the department of home affairs issued a marriage
certificate certifying that the couple were married. The existence of
the marriage certificate does not assist in the determination
of the
issue between the parties. In terms of section 4(8) of the
Recognition of Customary Marriages Act, 120 of 1998 ("the
Act")
the certificate constitutes prima facie proof of the marriage. It is
open to the applicant, who bears the onus in any
event, to prove that
the marriage did not exist. According to the first respondent, the
marriage was performed on 11 November 2000.
That is four days before
the Act came into operation on 15 November 2000. Section 2(1) of the
Act provides that a "marriage
which is a valid marriage at
customary law and existing at the commencement of this Act is for all
purposes recognised as a marriage."
The question therefore is
whether, according to the applicable customary law
1
,
the couple had entered into a valid marriage.
The
Matlala and Dhlamini families are respectively baPedi and siSwati. In
the authorities that I have consulted, I did not find
a relevant
difference between baPedi and siSwait customs. For the sake of
completeness I point out that the applicant avers that
the families
agreed that the couple's proposed marriage was to be regulated by the
baPedi law. The first respondent denies that.
Section 1(3)
of the
Law
of Evidence Amendment Act, 45 of 1988
provides:
"In
any suit or proceedings between Blacks who do not belong to the same
tribe, the court shall not in the absence of any agreement
between
them with regard to the particular system of indigenous law to be
applied in such suit or proceedings, apply any system
of indigenous
law other than that which is in operation at the place where the
defendant or respondent resides or carries on business
or is
employed, or if two or more different systems are in operation at
that place (not being within a tribal area), the court
shall not
apply any such system unless it is the law of the tribe (if any) to
which the defendant or respondent belongs."
Applying
section
1(3)
to this case, siSwati law must be applied.
The
requirements for a valid customary union entered into before the
commencement of the Act may be gathered from authorities such
as
Fanti v Boto and Others 2008 (5) SA405 (C) at paragraphs 19 and 20,
Olivier, Die Privaatreg van die Suid Afrikaanse Bantoetaalsprekendes
(3rd ed. p. 19), Jansen in Inleiding tot Regspluralisme in Suid
Afrika edited by Bekker, Rautenbach and Goolam (2nd ed. p. 36).
It is
unnecessary for purposes of this judgment to attempt an exhaustive
definition of a siSwati customary marriage. Mr Makondo
for the
applicant submitted that in this case there is no valid marriage
because the bride was not formally handed over to the
family of the
groom. The submission loses sight of the first respondent's explicit
statement that she was "officially handed
over" to her
husband. In Fanti v Boto and Others (supra at para. 22) Dlodlo J
pointed out that the handing over of the bride
could be to the groom
or to his family. (See also Jansen op. cit. at p. 37 .) In this case
the evidence shows that the bride was
formally handed over to the
groom and accepted into his family .
It
is common cause that the amount of lobolo was agreed upon but that
payment of the outstanding R5000 was left for further discussion.
I
assume that an agreement between the families as to the amount of
lobolo to be paid (where the lobolo consists of money) is essential.
Payment of the full amount, however, is not a prerequisite for a
valid customary marriage. In the Fanti-case at para. 23 it is
stated
that the requirement is that "lobolo has been paid and/or the
arrangements regarding the payment of lobolo have been
made...”.
See again Jnasen op.cit. at pages 34, 37, 38 and Olivier op. tit.
pages 54, 78 and 79.
For
the applicant it was also submitted that further factors, such as
that the first respondent did not adopt the surname of her
husband,
are indicative of the absence of a customary marriage. In my view the
facts as I have summarised them all point to the
existence of a
customary marriage.
It
is concluded that the first respondent and the deceased were parties
to a valid customary marriage. The application must therefore
be
dismissed and costs must follow the event.
The
following order is made:
The
application is dismissed with costs.
B.R.
Du Plessis
Judge
of the High Court
On
behalf of the Applicant: Mahlaola Incorporated
209
Olivetti House Cnr Pretorius & Shubart Pretoria
Adv.
Z.P. Makondo
On
behalf of the Respondent: G.F. Botha and Van Dyk Inc.
C/O
Couzyn, Hertzog and Horak
321
Middel Street
Brooklyn
Pretoria
Adv.
M. Kruger
1
See section
211
(3)
of the
Constitution
of the Republic of South Africa, 1996.