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[2011] ZAGPPHC 232
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Msutu v Road Accident Fund (18174/14) [2011] ZAGPPHC 232 (10 July 2011)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF
SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
N01
8
1
714/
1
4
In
the matter between:
BONGIWE
MSUTU PLAINTIFF
and
ROAD
ACCIDENT
FUND DEFENDANT
J
U D G M E NT
KUBUSHI,J
INTRODUCTION
[1]
Section 17 (1) of the Road Accident Fund Act 56 of 1996 ("the
Act") enjoins the Road Accident Fund ("the Fund")
to
compensate any person for any loss or damage suffered as a result of
any bodily injury or death caused by or arising from the
negligent
driving of a motor vehicle.
[2]
Bongiwe Msutu, the plaintiff in this matter, is claiming damages
against the Fund for loss of support for herself and her two
minor
children. The claim is pursuant to a motor vehicle collision in which
her alleged husband and father to her two children,
Rola Kholekile
("the deceased") perished.
[3]
A claim
for
maintenance and loss
of support
suffered as
a result of
a
breadwinner's
death
is
recognised
at common
law as
a
'dependants'
action'.
The
object
of
the
remedy
is
to
place
the
dependants
of
the
deceased
in
the
same
position, as regards maintenance, as they would
have been
had the deceased
not
been
killed.
The
remedy
has
been
described
as
'anomalous,
peculiar
and
sui
generis'
because
the
dependants
derive
their
right
not
through
the
deceased's
estate
but
from
the
fact
that
the
dependants
suffered
loss
by
the
death
of
the
deceased for
which the
Fund
is
liable.
But,
only
a
dependant
to
whom
the
deceased,
whilst alive, owed a
l
egally
enforceable duty to maintain
and support
may sue in such action.
Put
differently,
the dependant must have a right, which is
worthy
of the
law's protection, to claim support. If a dependant
institutes
a claim under the Act, as is
the case in
this
instance, she or he
would be
entitled
to
compensation from
the Fund
for her or
his proven loss if she or he establishes this right.
[1]
[4]
The Fund has conceded liability in full and
is prepared to compensate Ms Msutu for
any damages
suffered on condition that Ms Msutu establishes her right and the
children's right to be compensated by the Fund.
[5]
It is not in dispute that the deceased and Ms Msutu have two minor
children, twins. The Fund has as such conceded to the payment
of
damages in the amount of R515 085-96 in respect of the two children.
What, however, the Fund puts in dispute is the marriage
between the
deceased and Ms Msutu, whether customary or otherwise.
[6]
Ms Msutu, in her particulars of claim, is relying on the existence of
a customary law marriage entered into between her and
the deceased to
establish the right to claim for maintenance and/or loss of support
for herself.
[7]
The burden of proof falls on Ms Msutu to prove the existence of the
marriage on a balance of probabilities.
[8]
Ms Msutu led evidence to prove the existence of the customary
marriage between herself and the deceased. The Fund closed its
case
without tendering any evidence.
FACTUAL
BACKGROUND
[9]
The facts of the matter can be gleaned from the
uncontested
viva
voce
evidence of Ms
Msutu.
[10]
The evidence of the plaintiff as tendered by Ms Msutu is that she was
married to the deceased by customary
marriage.
The marriage was concluded on 26 November
2006 when the deceased paid an amount of R15
000 for
lobolo
and handed over a bottle of brandy to Ms Msutu's family. The
negotiations were conducted at her mother's place. The deceased also
paid an amount of R4 000 as damages because at the time the deceased
came to pay
lobolo,
Ms Msutu was pregnant with twins.
These are the children for which Ms Msutu is claiming for loss of
support.
[11]
The
lobolo
negotiations were carried out by her family
and the deceased's family. The deceased's family was represented by
the deceased's friend
and a cousin. Ms Msutu's family was represented
by her mother and two of Ms Msutu's uncles. After the
lobolo
was
paid there was a celebration.
[12]
Ms Msutu stayed with the deceased in Soweto which is a municipality
controlled area. At the time of the deceased's death they
had been
staying together for six years. They did not have a house of their
own but rented out rooms.
[13]
At the time Ms Msutu met the deceased, the deceased already had a
customary law wife. According to Ms Msutu the deceased introduced
her
to his first wife when she fell pregnant and the first wife consented
to the deceased marrying her (Ms Msutu). The deceased's
first wife
stayed in the Eastern Cape Province (the Eastern Cape) and also had
two children with the deceased. The deceased visited
his first wife
during holidays and would sometimes stay there for a week or two. The
first wife would also sometimes visit them
in Soweto. Ms Msutu and
the deceased's first wife were friends. The deceased's first wife
would always call Ms Msutu whenever she
wanted to come and visit in
Soweto. The first wife took care of the twins when they visited in
the Eastern Cape.
[14]
The relationship between Ms Msutu and the deceased's first wife
changed after the death of the deceased. The deceased was buried
in
the Eastern Cape. The two wives arranged the funeral together. The
first wife even gave Ms Msutu fare money when she returned
from the
Eastern Cape to Soweto, after the deceased's burial. They were both
later called to the deceased work place where the
issue of the
deceased's pension benefits was discussed. When Ms Msutu arrived
there, the first wife denied knowing her and refused
to speak to her.
She does not know why she was like that.
[15]
According to Ms Msutu, all the deceased's family know her. She went
to visit the family immediately after the payment of
lobolo.
She met the deceased father. One of the deceased's sisters was
staying with her and the deceased.
[16]
The deceased supported Ms Msutu and their children during his
lifetime. He gave Ms Msutu R2 000 every month. She used the money
to
pay for household necessities. She paid for the children's school
fees, transport and bought groceries for the household. Ms
Msutu was
not employed then and is still not employed. The deceased took care
of her and provided for her. In return she took care
of the children,
the deceased and the household.
[17]
The deceased also supported his first wife and her children. He gave
an amount of R2500 every month to Ms Msutu to send to
the first wife.
When asked under cross examination, Ms Msutu stated that she does not
know why the deceased's family or the first
wife did not attend the
lobolo
negotiations.
[18]
During cross examination she referred to a letter which was from the
Khiwa Royal Family. The letter did not mention that she
was married
to the deceased but only that she has children with the deceased. The
Fund's counsel asked her to produce the statement
that was written
during the negotiations that would show that the deceased paid an
amount of R15 000 for
lobolo.
The statement which was
discovered by Ms Msutu reflected an amount of R4 000 being for
damages. The plaintiff could not explain
why only R4 000 is
mentioned. Although Ms Msutu was cross examined on the statement of
R4 000, the statement together with the
letter from the Royal Family,
even though discovered, were not properly introduced into evidence
and do not as such form part of
the evidence before me. Ishall as a
result disregard any evidence adduced in respect thereof for purposes
of this judgment.
ANALYSIS
OF EVIDENCE
Life
Partnership
[19]
In his closing argument, Ms Msutu's counsel argued that Ms Msutu by
her evidence has established on a balance of probabilities
that she
was married to the deceased by customary law. He contends further
that even if the marriage was not properly consummated
as the Fund's
counsel is suggesting, I must find that because Ms Msutu and the
deceased lived with each other and cared for each
other, a tacit
reciprocal duty of support had been created between them - which
means that they were life partners. In this regard
counsel referred
me to the Supreme Court of Appeal judgment in
Paixao v Road
Accident Fund
(640/2011)
[2012] ZASCA 130
(26 September 2012).
[20]
I must at this stage pause to indicate that I am not in agreement
with the submission by Ms Msutu's counsel that I should,
if I am not
at one with the customary marriage entered into between Ms Msutu and
the deceased, find in favour of Ms Msutu on the
basis that there was
a tacit reciprocal duty of support between her and the deceased
because they were life partners.
[21]
I say so because, firstly, this is not Ms Msutu's case as set out in
her particulars of claim. In the particulars of claim,
Ms Msutu's
claim for loss of support is premised on the existence of a customary
marriage entered into between her and the deceased.
It is trite that
litigants are bound by the rules of court, specifically in regards to
what should be averred and canvassed in
pleadings. A party is,
thus, bound by what is addressed in the pleadings. Conversely, a
defendant is entitled to be informed
of what the plaintiff's case is.
It cannot be expected of a defendant to deal in a plea or in evidence
with unsubstantiated averments
without specific facts on which they
are based being stated. This amounts to trial by ambush! Even though
in her evidence in chief
Ms Msutu gave evidence which tended to
indicate such a relationship, that is, that the deceased and her were
life partners, it
was however, not her case and in my view that part
of the evidence should be disregarded for purposes of determining
this matter.
[22]
Secondly, the facts in the Paixao-judgment do not support the
submission by Ms Msutu's counsel that Ms Msutu and the deceased
were
life partners and as such the deceased owed Ms Msutu a reciprocal
duty to maintain her. The
Paixao
judgment is
different from the current matter because in that judgment the
appellant had pertinently claimed on the basis of an
express or tacit
agreement between the appellant and the deceased which created a
binding obligation upon the deceased to maintain
and support the
appellant and her children; and the nature of the relationship which
was akin to a family and as such deserving
of the law's protection.
The Fund was found to be liable in that judgment because the court
concluded that the deceased undertook
a duty to maintain and support
the appellant and her children out of profound, deep and loving sense
of duty.
[23]
What remains to be determined is whether at the time of the demise of
the deceased, a customary marriage existed between Ms
Msutu and the
deceased.
Customary
Marriage
[24]
The contention by the Fund's counsel during closing argument is that
the marriage between Ms Msutu and the deceased was not
valid because
the formalities of a valid customary marriage were not followed.
According to the Fund's counsel, the requirements
of a valid
customary marriage were not complied with in the following manner:
24.1
The first wife of the deceased did not give her consent that the
deceased
and Ms Msutu should marry;
24.2
The negotiations were not carried out properly since the deceased's
family
and his first wife were not part of the negotiations;
24.3
There is no proof that the
lobolo
was paid.
24.4
Ms Msutu could not indicate how the two families (Ms Msutu and the
deceased's
families) celebrated the marriage.
24.5
There was no handing over ceremony.
[25]
It will be recalled that the Fund did not lead any evidence. The
contention by the Fund's counsel was also not raised as a
defence in
the Fund's plea. The defence was raised with Ms Msutu's counsel
shortly before the commencement of the trial and was
raised
specifically during the cross examination of Ms Msutu. As a result,
the Fund's counsel is arguing on the basis of Ms Msutu's
evidence in
chief and on the evidence tendered during his cross examination of Ms
Msutu. Without any real evidence tendered by
the Fund, which can be
subjected to testing through cross examination, I have to determine
this matter on the unchallenged
ipse
dixit
of
Ms Msutu. The question being whether on a balance of probabilities Ms
Msutu's oral evidence proves the existence of the customary
marriage
between her and the deceased.
The
Law
[26]
A customary marriage is defined in the Recognition of Customary
Marriages Act 120 of 1998 ("the Recognition Act")
as a
marriage concluded in accordance with customary law. 'Customary law'
is described in the Recognition Act as the customs and
usages
traditionally observed among the indigenous African peoples of South
Africa and which form part of the culture of those
peoples.
[27]
All customary marriages contracted after the Recognition Act
came into force, in order to be recognized as valid, must
comply with
the provisions of the Recognition Act. And, any customary marriage
contracted after the Recognition Act came into operation,
which does
not comply with the requirements imposed by it, shall not be
recognized.
[28]
The jurisdictional requirements for a valid customary marriage
are stipulated in s 3 (1) of the Recognition Act, which
provides as
follows:
"(
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."
[29]
It has been
held that the Recognition Act does not purport to be
-
and should
not
be
seen
as
-
directly
dealing
with
all
the
necessary
aspects
of
customary
marriages.
Certain
rules and
requirements
are
l
eft
out in the
Recognition
Act
and
are
to
be
determined
by customary law such as the validity requirements referred to
in s 3 (1)
(b)
thereof.
This ensures that customary law will be able to retain its living
nature and
that communities will be
able to
develop their rules and norms in
the light
of
the
changing
circumstances
and
the
overarching
values
of
the
Constitution.
[2]
[30]
Section 3 (1)
(b)
of the Recognition Act prescribes that the
marriage must be negotiated, entered into or celebrated in accordance
with customary
law. Therefore, in terms of s 3 (1)
(b)
of the
Recognition Act a valid customary marriage is the one that is
negotiated and entered into or celebrated according to any
of the
systems of indigenous African customs and usages that exist in South
Africa.
[31]
The recognition Act does not specifically prescribe the manner in
which negotiations must be undertaken or how the marriage
must be
entered into or celebrated. What is clear is that for a customary
marriage to be valid, it must be negotiated and entered
into or
celebrated. How this is to be done is not specifically set out in the
Recognition Act but de ands on the practices of each
particular
tribe. A court in each specific case must consider the practices of
the tribe of the parties. In fact, a factual determination
must be
made to reach a finding whether the requirement has been complied
with.
[32]
I
t
is,
however,
common
cause that
the
basic
formalities
relating to
a customary
marriage,
like the
meeting of the two families
(the man's
and woman's
families)
where
lobolo
is
negotiated;
the
payment
of the
negotiated
lobolo
or
part
thereof to
the
woman's
family
and
the
agreement
by
the
two
families
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, has
become
trite
and
find
application in
most
of
the
practices.
[3]
Application
of the Law to Facts
Consent
[34]
Section 3
(1)
(a)
of the
Recognition Act even though contained in the section
dealing
with the validity requirements, does not directly prescribe that the
first wife's consent
is a
requirement
for
the
validity
of
her
husband's subsequent
customary
marriages.
[4]
I
t
means, therefore, that a court faced with such a situation would have
to
l
ook
for answers
i
n
the
customary practices of
the
tribe
concerned.
[35]
The
Constitutional
Court,
in
the
Mayelane
v
Ngwenyama-jud
gment
above,
found that
given that marriage is a highly personal and private contract, it
would be
a
blatant
intrusion
on
the
dignity
of
one
partner
to
introduce
a
new
member
to
the
union
without
obtaining
the consent
of
the
other partner.
I
t
concluded, therefore, that the
consent
of
the
first
wife
is
a
necessary
dignity
and
equality
component
of
a further
customary
marriage in
terms of s 3 (1)
(b)
of the
Recognition Act. The court
as
a
result
ordered
that
from
the
time
of
the
judgment,
every
further
customary
marriages
irrespective
of the
practices
of a particular tribe,
must comply
with
that
consent
requirement.
The
court
held
further
that
a
subsequent
marriage
will
be invalid
if
consent
from the
first wife
is
not
obtained.
[5]
[36]
Since the customary marriage in this instance was entered in 2006,
the order applies and for the customary marriage to be valid
the
deceased's first wife must have given her consent to the subsequent
marriage of her husband and Ms Msutu. The underlying issue,
in the
current case, therefore, is whether such required consent was
obtained before the deceased and Ms Msutu entered into the
alleged
customary marriage.
[37]
The uncontested evidence before me is that the consent of the
deceased's first wife was procured before the customary marriage
in
question was concluded. According to the evidence, Ms Msutu was aware
at all material times that the deceased had a first wife.
And, when
Ms Msutu became pregnant, that is, before the conclusion of the
customary marriage, the deceased informed his first wife
about Ms
Msutu and informed her of his intention to marry Ms Msutu. The first
wife gave her consent that the deceased should marry
Ms Msutu.
[38]
The Fund's counsel in closing argument suggested that it is doubtful
that the required consent was granted because of the attitude
the
deceased's first wife displayed towards Ms Msutu when the two were
called by the deceased's employer. There is no evidence
before me
which indicates why the deceased first wife acted in the manner she
did. Ms Msutu, whose evidence it is which revealed
this attitude of
the deceased's first wife could not say why the deceased's first wife
acted in that manner. The suggestion by
the Fund's counsel can
therefore not be admissible as it is based on speculations.
Negotiations
[39]
It is indeed so that in the true African context, marriage is not a
bond between the man and the woman but it is a bond between
their
families. Negotiations must therefore be between the two families. Ms
Msutu's evidence is that the two families, that is,
emissaries from
the deceased's family and members of her family met to negotiate the
marriage. The contention by the Fund's counsel
is that the emissaries
did not include the deceased's family members, in particular, the
deceased's aunts and uncles and/or the
deceased's first wife. This
contention is fallacious to say the least. It is normal practice for
the man's family to send as emissaries
people who are not members of
the family. In this instance, taking into account the distance
between the Eastern Cape and Soweto,
it is acceptable that the
deceased's family would have sent emissaries which would not have
included close relatives of the deceased.
In any way, one of the
emissaries was the deceased's cousin.
[40]
It
is
also
not
repugnant
to
the
customary
law
of
marriage
for
Ms
Msutu's
mother
to
have
negotiated
and
received
lobolo
for her
daughter's
marriage.
[6]
Lobolo
[41]
Although
the
handing of
lobolo
is in
terms
of
the
Recognition
Act
not
specifically
listed
as
a
requirement
for
the
coming
into
existence
of
a
customary
marriage
i
t
i
s
still one of the practices that is intrinsically linked with its
existence.
It is one
of the important pillars in
the process
leading
to
the marriage. The payment or
handing
over of
lobolo
to the
bride's family forms
part of the
evidentiary material to prove the conclusion of a customary
marriage.
However,
the payment or handing
over
of
lobolo
is
not
conclusive
proof
of
the
existence
of
a
customary
marriage.
[7]
[42]
The argument by the Fund's counsel is that Ms Msutu was unable to
prove that
Jobolo
was paid in that she could not produce
documentary proof to that effect. Counsel cross examined Ms Msutu on
the basis of a document
which showed an amount of R4 000 contrary to
the amount of R15 000 which is the amount which Ms Msutu alleges was
paid as
lobolo.
According to Ms Msutu the amount of R4
000 was for payment of damages. I have already concluded that this
document even though discovered,
it was, however, not admitted into
evidence as to the truth of its content and for this reason does not
constitute admissible evidence
as to the facts contained in it. Ms
Msutu would be clearly prejudiced should this document be elevated
beyond its limited status.
I have as such not considered it as
admissible for purposes of this judgment.
[43]
It remains, therefore, that the
ipsi dixit
evidence of Ms
Msutu that an amount of R15 000 was paid as
Jobo/o
for
her should prevail mainly because there is no other evidence to
jettison this evidence.
Celebrations
and Handing Over
[44]
One of the crucial elements of a customary marriage is the handing
over of the bride to the family of her new family namely
that of the
groom. In terms of practised or living customary law the bride cannot
hand herself over to the groom's family. She
has to be accompanied by
relatives. That such delivery need not necessarily be
de
manu
in
manum
appears
from the judgment in
Road
Accident Fund
v
Mongalo;
Nkabinde
v
RAF
2003
(3)
SA
119
(SCA).
It is trite that where a woman is living with the
man with the knowledge of the family of the bride it is regarded as
having been
handed over.
[45]
The court
in
the
Mayelane-judgment
above
stated
that
certain
rules
and
requirements
are
l
eft
out in the Recognition Act, so that, customary law will be able to
retain its living nature and that communities will be able
to develop
their rules and norms in the light of the changing circumstances
and the
overarching values of the
Constitution.
[8]
[46]
As
is
the
case
in this
instance,
it has
become
customary
for
couples to
live
together
before
marriage.
I
t
is not in dispute that the deceased and Ms Msutu were staying
together from 2006 until the death of the deceased.
I
t
is also not in dispute that
i
mmediately
after
the
alleged
payment
of
lobolo
the
two
continued
to
live
together
with
the
full
knowledge
of
both
the
deceased's
family
and
Ms
Msutu's
family.
According
to Ms Msutu's evidence after celebrating the
lobolo
payment
she
l
eft
together with the deceased returning to their common home. This, in
my view, is the
living
law
referred to
in the
Mayelane-judgment
which
should
be applied
by the
courts.
[9]
CONCLUSION
[47]
The evidence before me does establish the existence of a customary
marriage between Ms Msutu and the deceased. There is evidence
that
the deceased's family knew Ms Msutu. Ms Msutu say she was friends
with and in constant contact with the deceased's first wife
prior to
the deceased's burial. She visited the deceased's family in the
Eastern Cape where she met with the deceased's father.
The deceased's
other sister stayed with Ms Msutu and the deceased in Soweto. The
deceased's cousin was one of the people sent to
negotiate with Ms
Msuto's family.
[48]
Ms Msuto came across as a satisfactory and reliable witness and her
evidence, in the absence of any other evidence to gainsay
it, should
be accepted.
[49]
I have therefore to conclude that Ms Msutu has succeeded on a balance
of probabilities to prove that a customary marriage existed
between
her and the deceased and as such established her right to be
compensated for her loss of support.
[50]
Although Ms Msutu had in her papers claimed an amount of R711 501 as
damages for her loss of support, the parties were agreed
that the
amount of compensation she should be awarded must equal that awarded
the deceased's first wife, which is R848 060-74.
ORDER
[51
I accordingly, make the following order:
1.
The defendant is held fully liable to the plaintiff.
2.
The defendant is ordered to pay to the plaintiff
the
amount of R1 363 146-70 (One Million Three
Hundred and Sixty Three Thousand One Hundred and Forty Six Rand
Seventy
Cent).
3.
The defendant shall pay the plaintiff'; agreed or taxed costs between
party and
party on the High Court scale on the appropriate tariff,
which costs shall include the costs of the actuary for the actuarial
calculations
and revised calculations, if any.
4.
Such agreed or taxed costs shall become payable 14 court days after
such agreement
or taxation.
5.
The plaintiff shall, in the event tha . costs are not agreed, serve
the notice
of taxation on the defendant's attorney of record.
6.
The payment referred to in paragraphs 2 and 3 above shall be made
into the plaintiff's
attorneys' trust banking account, the details of
which are as follows:
ACCOUNT
HOLDER
: LUNDELL & HASSAN-LUNDELL
(TRUST ACCOUNT)
ACCOUNT
NUMBER [……….]
BANK
: ABSA
BRANCH
: VON WEILLIGH STREET
BRANCH
CODE
: 51 47 05
ACCOUNT
TYPE
: CURRENT
____________________
EM
KUBUSHI
JUDGE
OP THE HIGH COURT
APPEARANCES
HEARD
ON
:10 JUNE 2011
JUDGMENT
ON
: 10 JULY 2011
PLAINTIFF'
S COUNSEL
: C DE AGRILLA
PLAINTIFF'
S ATTORNEY
:LUNDELL A HASSAN-LUNDELL
DEPENDANT'
S COUNSEL
: M L MAGAU
DEFENDANT'
S AnORNEY :
T M CHAUKI INCORPORATED
[1]
See Kewana
v SANTAM
Insurance
Co Ltd
1
993
(4)
SA
771
(TkAD)
and Paixao
v Road
Accident
Fund
(640/2011)
[2012] ZASCA 130
(26
September
2012) para 130.
[2]
See Mayelane
v
Ngwenyama &
Others
2013 (4) SA 415
(CC} para 32.
[3]
See Fanti V Boto and Others 2008 (5) SA 405 (C).
[4]
See Meyelane v Ngwenyama & Others above para 36.
[5]
See Meyelane v
Ngwenyama
&
Others above para 85 and 86.
[6]
See Mabena v Letsoalo
1
998
(2) SA 1068
at 1074 F-G.
[7]
See Motsoatsoa v Roro and Others
[2011] 2 ALL SA 324
(GSJ) para 18.
[8]
See Mayelane v Ngwenyama &
Others
2013 (8) BCLR 918
(CC) para 32.
[9]
See also Mabena v
Letsoalo
above at
1
074
H-J.