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[2013] ZASCA 137
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Mbaba v Mbaba and Others (474/2012) [2013] ZASCA 137 (27 September 2013)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case
No: 474/2012
In
the matter between:
NOTHOZAMILE
PUMLA MBABA
...............................................
Appellant
and
NOBELUSI
MBABA
.............................................................
First
Respondent
(born
NDAMASE)
MINISTER
OF HOME AFFAIRS
..................................
Second
Respondent
MASTER
OF HIGH COURT, MTHATHA
.....................
Third
Respondent
FIRST
NATIONAL BANK LTD, MTHATHA
..............
Fourth
Respondent
ABSA
BANK LTD, MTHATHA
.........................................
Fifth
Respondent
NEDBANK
LTD, MTHATHA
............................................
Sixth
Respondent
NOZUKISEKILE
MBABA
.............................................
Seventh
Respondent
Neutral citation:
Mbaba
v Mbaba
(474/12)
[2013] ZASCA 137
(27 September 2013)
Coram:
MAYA, LEACH,
THERON, PETSE AND SALDULKER JJA
Heard: 29 August 2013
Delivered: 27 September 2013
Summary:
Customary
law ─ appellant seeking interdict to preserve estate of the
deceased and the invalidation of a registered customary
marriage
between the deceased and the first respondent – appellant
claiming to be the deceased’s only lawful customary
wife –
subsequently seeking determination of validity of the respective
customary marriages – Practice – notice
of motion
ill-formulated and not suitably amended – requisites for final
interdict not met – appeal dismissed.
___________________________________________________________
ORDER
On appeal from:
Eastern
Cape High Court, Mthatha (Dawood J sitting as court of first
instance):
The appeal is dismissed with
costs.
JUDGMENT
MAYA JA
(LEACH, THERON,
PETSE AND SALDULKER JJA
concurring):
[1] This is an appeal against the
judgment of the Eastern Cape High Court, Mthatha (Dawood J). The high
court dismissed the appellant’s
application which sought
various forms of relief meant to preserve assets belonging to the
estate of the late Mr Ngqele Edwin Mbaba
(the deceased). The
appellant also sought the expungement from the records of the
Department of Home Affairs of the customary marriage
between the
deceased and the first respondent which was registered after the
deceased’s demise. The appeal is with the leave
of this court.
Only the first respondent opposes the appeal and none of the other
respondents have been involved in the proceedings
since inception.
1
[2] The dispute was triggered by
the death of the deceased who died intestate on 6 March 2009. The
real protagonists are the appellant
and the first respondent (the
parties) who both claim to have been married to the deceased, under
customary law, in November 1971
and November 2004, respectively. But
each woman denies the validity of the other’s marriage. In
brief, according to the appellant
(who, admittedly, had long been
estranged from the deceased and resettled in a different province
until his death) the first respondent
was merely his lover with no
rights to his estate. And it is on this basis that the application
was premised. The first respondent,
on the other hand, averred that
the appellant’s relationship with the deceased extended no
further than bearing him a son,
Mr Siyabulela Mbaba, out of wedlock
in 1972. And as far as the first respondent knew, the appellant
subsequently married another
man, Mr Dumalisile Mafuxwana with whom
she had further children, and had no contact with the deceased until
his death. The appellant,
therefore, had no locus standi to bring the
proceedings against her.
[3] Despite the relief sought by
the appellant, in the course of the litigation the dispute between
the parties metamorphosed into
the validity of the two alleged
marriages. This is indeed how the appellant characterised the issue
on appeal before us. But I
will return to this aspect later in the
judgment.
[4] It is necessary for a proper
context to set out the litigation’s meanderings in some detail.
On 1 July 2009, the appellant
approached the court below for a rule
nisi in the following terms:
‘…
1.1 That, the first
respondent be and is hereby directed to forthwith hand over the
letters of executorship that were issued to
her by the third
respondent on or about the 23 April 2009 relating to the winding up
of the Estate Late Ngqele Edwin Mbaba (hereinafter
referred to “the
deceased”) for cancellation.
That, the first
respondent be and is hereby prohibited from continuing representing
the said deceased’s estate in any
manner whatsoever;
forthwith pending the finalization of this matter pending before
court.
That, the fourth,
fifth, sixth and seventh respondents are directed not to pay out
any money that may have been processed as
result of the
applications lodged by the first respondent.
That, the first
respondent be and is hereby ordered to deliver to the applicant,
the deceased’s original Identity Book,
original Death
Certificate and all the deceased’s property including all
motor vehicles to the applicant for safekeeping
pending the
finalization of this matter.
2. That, the second
respondent be and is hereby directed to expunge from his registers
the purported customary marriage entered
into between the first
respondent and the deceased on the 12 May 2009 (but the marriage
certificate showed the 5 November 2004)
even though the deceased died
on 6 March 2009.
3. That, paragraphs
1.1, 1.2, 1.3 and 1.4 above shall operate as an interim interdict,
pending the finalization of this application.
…’
[5] The appellant’s
application was supported by her son, Siyabulela, and one of the
deceased’s brothers, Mr Ntshukumo
Pleasure Mbaba. The latter
claimed to have been one of the deceased’s emissaries when the
appellant’s marriage was
negotiated. According to the
appellant’s founding affidavit, she was the deceased’s
only lawful wife with whom he sired
Siyabulela. All the rituals
essential to formalize a customary marriage in the deceased’s
culture – payment of
lobola
,
the
tsiki
ceremony
by which a bride is welcomed into her new family, being given a new
marital name and
ukwendisa
,
the handing over of the bride by her maiden family to the husband’s
family – were performed on her behalf. The deceased’s
headman also allocated her a piece of land in her capacity as the
deceased’s wife. She alleged to have left the marital home,
in
Lady Frere, in 2005 as a result of the deceased’s philandering.
She moved to Cape Town but maintained contact with the
deceased. She
declined his pleas for her return because he did not follow the
relevant custom and they remained estranged until
his death.
According to the appellant, the marriage was never dissolved, either
under custom or the law,
2
and the deceased never sought her
permission to marry another wife in accordance with custom and the
law.
[6] The matter was heard in the
unopposed court on 6 July 2009. The first respondent opposed the
grant of interim relief. It transpired
that no one had yet been
appointed as executor of the deceased’s estate. Thus, the
relief sought in paragraph 1.1 of the
notice of motion was
incompetent. The parties then took a consent order which, inter alia,
extended the rule nisi to a further
date and granted the following
interim relief:
‘ …
3.1 That, any
dealings with the Estate of Edwin Ngqele Mbaba (deceased) is
[frozen], subject to the following conditions:
3.1.1 That, the
first respondent releases one of the deceased’s motor vehicles
and the deceased’s Death Certificate
to the [appellant];
3.2.2 That, the
first respondent hands over the deceased’s Identity book to the
Master of the High Court for safekeeping;
3.2.2 That, the
appointment of the Executor of the estate in question be held in
abeyance pending the determination of who the deceased’s
lawful
surviving spouse is.’
[7] Thereafter, the first
respondent filed an answering affidavit which was supported by those
of the deceased’s sister, Mrs
Noshumi Malothe, and the seventh
respondent who was married to another brother of the deceased, Mr
Solomzi Mbaba. The first respondent
explained that she and the
deceased always intended to register their marriage but
procrastinated until he died. However, she did
so after his death, on
12 May 2009. She was assisted at the registration which was
officiated at the Home Affairs department by
Mr Thulani Mbaba, whose
father, Solomzi, had represented the deceased at her marriage
negotiations, and the deceased’s headman
who was aware of the
marriage. Siyabulela and the seventh respondent were also present.
The thrust of the confirmatory affidavits
was that the appellant
never married the deceased and was last seen at his home in the
mid-1970s. Noshumi said she saw the appellant
again in 1996 nursing
an infant to whose father she claimed to be married. In response to
the appellant’s query of her surprising
description in the
deceased’s death notice as the deceased’s divorced wife,
as this did not tie in with the first respondent’s
version that
the appellant was never married to the deceased, the first respondent
said she heard that from the deceased.
[8] Obviously prompted by the
factual disputes relating to their relationship with the deceased,
the parties obtained a consent
order which referred the matter for
the hearing of oral evidence on the following issues:
‘
1.1
Whether the [appellant] is the wife of the [deceased];
1.2 Whether the
first respondent was married to the deceased;
1.3 Whether the
[appellant] was married to one Dumalisile Mafuxwana.’
[9] All the individuals who
previously deposed to affidavits, except Ntshukumo who had since
died, gave
viva voce
evidence at the hearing. The appellant’s
oral version did not quite tally with the allegations in her
affidavit in a number
of material respects. For example, it emerged
from her evidence that, contrary to her statement in her affidavit
that she had one
child with the deceased, she did bear a son,
Siphiwo, with Mafuxwana in 1983. The fact and timing of this birth in
relation to
a continuing marriage to the deceased is unclear. She
later gave birth to two daughters in 1992 and 1996. She and
Siyabulela claimed
that the girls were fathered by the deceased. The
appellant then narrated certain events that were not mentioned in her
affidavits.
She recounted that she once left the marital home in 1979
but returned in 1981 after she was fetched by Ntshukumo. She said
that
she left again in 2005 but returned in 2008 but left within a
week because the deceased had not mended his errant ways. She denied
that the deceased occasionally visited her in Cape Town, contrary to
her allegations in her affidavits. She gave different accounts
about
the period she spent at the deceased’s home and the capacity in
which she attended his funeral.
[10] Interestingly, according to
Siyabulela, the appellant left the marital home for good in 1998. He
disputed his mother’s
elaborate version that she worked in Cape
Town in 2009 and had to seek leave from her employer to attend the
deceased’s funeral.
He said that she had not been employed
since 2008 and had actually returned from Cape Town permanently
(although obviously not
to the deceased) during that year. But he was
adamant that the first respondent had been merely his father’s
girlfriend,
since 2008. He said he was lured to attend the first
respondent’s marriage registration on the pretext that the
deceased’s
estate was going to be transferred into his name.
[11] The first respondent’s
application for absolution from the instance, motivated by the
unsatisfactory quality of the appellant’s
version, was refused.
The court below considered that it was inappropriate to make
credibility findings at that stage and that
the first respondent
still had to discharge her onus of proving the appellant’s
alleged marriage to Mafuxwana and explain
the circumstances
surrounding the issue of her marriage certificate. The first
respondent and her witnesses, Noshumi and the seventh
respondent then
testified. Their version was also not without blemish. The first
respondent said that she and the deceased had
been married in 2004
whereas it was put to the appellant and Siyabulela that she married
the deceased in 2005. She did not challenge
Siyabulela’s
evidence that she commenced a love affair with his father only in
2008 and that they lived apart. It appeared
that she had no
first-hand information about the appellant’s alleged marriage
to Mafuxwana.
[12] The evidence of her
witnesses deviated materially from their affidavits. The seventh
respondent denied even deposing to hers
in which she said she last
saw the appellant when she ‘deserted’ the deceased
between 1974 and 1975. This conflicted
with her oral evidence that
she saw the appellant only in 1976 when she brought Siyabulela to the
deceased’s home because
he was sick. And this version had not
been put to the appellant. Noshumi, on the other hand, denied the
allegations in her affidavit
that she found the appellant at her home
and was informed that she had been brought by the deceased whom she
subsequently deserted
before the
utsiki
ceremony could be
performed for her. Interestingly, her version now matched the seventh
respondent’s; that the appellant only
brought her sick child to
the family home. She denied that any marriage ceremony was planned
although damages for the pregnancy
had been paid to the appellant’s
family.
[13] The court below found the
appellant to be an unsatisfactory witness and her version fraught
with inconsistencies. The court
also rejected Ntshukumo’s
affidavit. It transpired that he was not the deceased’s eldest
brother as his affidavit proclaimed
and this, in the court’s
view, tainted his credibility. The court below made adverse
credibility findings against both Noshumi
and the seventh respondent
in light of the discrepancies in their evidence, which it accordingly
rejected. Only the first respondent
found favour with the court even
though it found no real flaw in Siyabulela’s evidence. The
court considered her a ‘better
witness’ than the
appellant and was impressed by her marriage certificate which, it
found, was properly issued upon production
of proof of her marriage
to the deceased. The court made further findings that it viewed as
supporting the first respondent’s
version which, however, were
not borne out by the record: for example, that her marriage was not
challenged vigorously and was
confirmed by the affidavits of the
headman and Solomzi and that her uncle confirmed payment of her
lobola
. The court below concluded that the appellant had
failed either to prove her marriage or disprove the first
respondent’s
marriage to the deceased and had not made out a
case for the grant of a final interdict.
[14] The appeal was founded
mainly on the grounds that the court below misdirected itself by: (a)
accepting the first respondent’s
marriage certificate as valid
and sufficient proof of her marriage to the deceased despite its
issue after his death; (b) not giving
due weight to Ntshukumo’s
affidavit; and (c) not deciding who was the wife of the deceased.
Before us, counsel for the appellant
contended that the dispute
between the parties had ‘narrowed to an issue who the lawful
spouse of the deceased is’.
He, very feebly I might add, argued
that the appellant had proved that she was the deceased’s
lawful wife. He urged that
even if it were accepted that the first
respondent was also married to the deceased the appellant’s
marriage should take
precedence because she did not consent to that
marriage.
[15] It seems to me that the
appeal may be disposed of shortly. The inept manner in which the
appellant’s case was framed
and conducted up to appeal stage
was deplorable. Quite clearly, in addition to the interdictory relief
the appellant wished for,
a declarator that she was the deceased’s
lawful wife as a likely precursor to the appointment of an executor
in the deceased’s
estate. This is patent from the
parties’
Uniform rule 37 pre-trial minute which clumsily recorded that they –
‘
agree
that the issues that fall to be decided by the court at the hearing
are as follows
Whether the alleged
desertion by the [appellant] did amount to the dissolution of her
customary marriage or not?
Whether the first
respondent was a customary wife of the deceased?
To
declare whether the [appellant] or the first respondent is the
surviving spouse of the deceased or both
.’
(Emphasis added.)
[16] But, in the view I take of
this ill-fated matter, it is neither necessary nor even proper to
decide the validity of either
of the alleged marriages.
3
The appellant is bound by the
poor manner in which the relief she seeks was formulated in the
notice of motion. That remains in
its original form and makes no
mention of declaratory relief. Significantly, both in her affidavit
filed in opposition of the grant
of interim relief and in the main
answering affidavit, the first respondent pertinently pointed out
that the appellant had brought
a wrong application and that the
notice of motion should be amended. However, the appellant
persistently contended otherwise and
obstinately pursued the matter
in this flawed form.
[17] Furthermore, as her counsel
was ultimately constrained to concede, the appellant has not made out
a case for any of the relief
requested in her notice of motion. Even
assuming that she proved that she was the deceased’s wife, she
would still face an
insurmountable hurdle. First, as indicated, the
relief sought in paragraph 1.1 is incompetent because the first
respondent was
never appointed as the executor of the deceased’s
estate and had no ‘letters of executorship’ to
relinquish.
This is something that, with a modicum of diligence,
could have been easily verified with the third respondent’s
office.
Second, no evidence was adduced that the first respondent
held herself out as the representative of the deceased’s
estate.
Thus, the relief set out in paragraph 1.2, has no basis.
Third, the deceased’s banking accounts were all frozen on his
death.
There is, therefore, no need for the relief sought in
paragraph 1.3 as the deceased’s bankers would not be able to
disburse
any funds from such accounts. And the inclusion of the
seventh respondent, a housewife, in this class of respondents and the
refusal
to remove her when this was pointed out is just another
example of the slovenly manner in which the application was
conducted.
Fourth, the items mentioned in paragraph 1.4 were
surrendered to the third respondent for safe keeping. Accordingly, it
is impossible
for the first respondent to deliver them to the
appellant. Fifth, there is no evidence of a customary marriage that
was ‘solemnized’
by the deceased posthumously as
suggested in paragraph 2. It became common cause quite early in the
proceedings that the first
respondent sought to register a marriage
that she alleged existed before the deceased’s death. Yet, no
attempt was made to
amend this prayer as well.
[18] The requisites for the grant
of a final interdict are trite: a clear right on the part of the
applicant; an injury actually
committed which continues or is
reasonably apprehended and the absence of any other satisfactory
remedy available to the applicant.
Not even the slightest attempt was
made to establish them on the appellant’s papers. It follows
that the appeal cannot succeed.
[19] In the result, the appeal
fails. The following order is made:
The appeal is dismissed with
costs.
________________________
MML Maya
Judge of Appeal
APPEARANCES
FOR APPELLANT: V Notshe SC
Instructed by:
AF Noxaka & Company, Mthatha
Symington & De Kok,
Bloemfontein
FOR IST RESPONDENT: E Crouse
Instructed by:
Port Elizabeth Justice Centre
Bloemfontein Justice Centre
1
The
second and third respondents filed notices to abide the decision of
the high court. The second and sixth respondents have
filed notices
to abide this court’s decision.
2
In
terms of s 47 of the Transkei Marriage Act 120 of 1978 or
s 8
of the
Recognition of Customary Marriages Act 120 of 1998
.
3
T
hus,
the representations on the customary law rules applicable to the
deceased on the necessity of a customary wife’s consent
to her
husband to marry another wife and the requirements of a valid
customary marriage and its dissolution, which we directed
the
parties to file,
ex
abundante cautela
, in
light of the Constitutional Court judgment in
MM
v MN & another
2013
(4) SA 415
(CC) 14, are irrelevant
.