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2024
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[2024] ZAFSHC 45
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Njilo v Minister of Home Affairs and Others (4051/2023) [2024] ZAFSHC 45 (16 February 2024)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case No: 4051/2023
Reportable: NO
Of Interest to other
Judges: NO
Circulate to Magistrates:
NO
In
the matter between:
NTOMBEKHAYA
CORNELIA NJILO
Applicant
and
MINISTER
OF HOME AFFAIRS
1
st
Respondent
MASTER
OF THE HIGH COURT: BLOEMFONTEIN
2
nd
Respondent
TSIE
THEODOSIUS MOKHOBO
3
rd
Respondent
EVELYN
NGWANE NJILO
4
th
Respondent
HEARD
ON:
30 NOVEMBER 2023
JUDGMENT
BY
:
MHLAMBI, J
DELIVERED
ON:
16 FEBRUARY 2024
[1]
The applicant approached this court seeking the following orders:
1.1
That the customary marriage entered into
between the applicant and the late Thembile Njilo in December 1992,
is declared valid and
of effect in terms of the Recognition of the
Customary Marriage Act 120 of 1998.
1.2
That the first respondent is ordered to
register the customary marriage between the applicant and the late
Thembile Njilo and register
it in community of property,
alternatively issue a certificate as proof of the registration of the
said marriage.
1.3
that the respondents are ordered to pay the
costs of this application (only if opposed).
1.4
Further and/or alternative relief.
[2] The
application is opposed only by the 4
th
respondent on the
basis that the applicant and the deceased, the late Tembile Njilo,
were never married and consequently no customary
marriage came into
being.
[3]
The applicant stated that she was married to the late Thembile Njilo,
who died on 25 February 2018,
[1]
in terms of the Isizulu customary law on 28 July 1992.
[2]
Thirteen children, who are at present all majors, were born of the
union
[3]
since their marriage,
they lived in Umzimkhulu until the deceased left for Bloemfontein to
look for work during the year 2000.
The deceased stayed in
Bloemfontein since then, but came home every December holidays to be
with her and the children.
[4]
The marriage was never formally registered but she was advised that
the failure to register the customary marriage did not affect
the
validity thereof.
[5]
[4] At
the time of the marriage, both parties agreed to marry each other in
terms of the customary law, and the
marriage was concluded in terms
of the Isizulu customary procedures in that:
1. Both the parties’
families started the negotiations in February 1992 for the intended
marriage between them.
2. The applicant’s
family was represented by her aunt, Hermina Mbhele, and her elder
brother Bonginkosi Alfred Mbhele, and
the deceased’s family was
represented by the deceased’s elder brothers, Zameyakhe Njilo
and Kholisile Njilo, including
his cousin Nokulunga Njilo. Both their
confirmatory affidavits to the founding affidavit were attached and
marked annexures “F”
and “G”.
3. The agreed lobolo was
sixteen cows or the monetary equivalent of R 25 000.00.
4. The deceased’s
family paid the applicant’s family R 10 000.00 as part of
the agreed lobolo on the same day of
the negotiations.
5. The applicant was then
handed over on 10 June 1992 by her family representatives, Bonginkosi
Alfred Mbhele and Hermina Mbhele,
to the deceased’s family who
accepted her. Both families celebrated the event in terms of the
isiZulu custom.
6. On 28 July 1992, the
deceased’s family paid the remaining lobolo of R 15 000.00
to the applicant’s family and,
on the same day, celebrated the
indlakudla
at the deceased’s family’s household. A
copy of a letter of authority as proof of the customary union was
signed by
an Inkosi (chief) at the Gidikazi Traditional Community
head office at Mfulamhle, UMzimkhulu.
7. The couple continued
with their customary marriage until the deceased passed away on 25
February 2018.
[5]
The 4
th
respondent submitted that she was married to the deceased in a
customary marriage. She attached a lobolo letter and a copy of the
marriage certificate
[6]
to her
opposing affidavit. She admitted the applicant’s
statements contending paragraph 14 of the founding affidavit
that
stated that, though the marriage was never formally registered, the
applicant was advised that the failure to register the
customary
marriage did not affect the validity of the marriage.
[7]
However, the fourth respondent failed to address the contents of
paragraph 18 to 25 of the applicant’s founding affidavit
which
dealt specifically with the applicant and the deceased’s
compliance with the requirements of a valid customary marriage,
the
consent and the Isizulu customary procedures which they followed .
The validity and the existence of the applicant’s
customary
marriage was not put in issue. It was only in oral argument and that
4
th
respondent’s written heads of argument that the customary
proceedings which gave rise to the customary marriage were put
in
issue.
[6]
Section 4(7)
of the
Recognition of Customary Marriages Act 120 of
1998
provides that a court may, upon application made to that court
and upon investigation instituted by that court, order the
registration
of any customary marriage or the cancellation or
rectification of any registration of a customary marriage effected by
a registering
officer. A certificate of registration of a customary
marriage issued under this section or any other law providing for the
registration
of customary marriages constitutes
prima
facie
proof
of the existence of the customary marriage and of the particulars
contained in the certificate.
[8]
Section 4(9)
provides that failure to register a customary marriage
does not affect the validity of that marriage.
[7]
In
Wightman
t/a JW Construction v Headfour (Pty) Ltd and another
[9]
“
the
court held that a real, genuine and bona fide dispute of fact can
exist only where the court is satisfied that the party who
purports
to raise the dispute has in his affidavit seriously and unambiguously
addressed the fact said to be disputed”
The
4
th
respondent failed to grapple with the factual allegations contained
in the affidavit and her opposition is based on a bare denial.
There
was therefore no irresoluble disputes of fact.
[8]
The central issue for adjudication, according to the respondent, is
whether the applicant was married to the deceased
and whether such
marriage meets the requirements of a customary marriage in terms of
section 3
of the Recognition of Customary Marriages Act 120 of 1998.
The respondent contended further that, for a customary marriage
concluded
before the commencement of the Act, the applicant bore the
onus of satisfying the court that the marriage was solemnised in
terms
of the Zulu customs, which the applicant neglected to do. As
indicated earlier, the respondent failed to grapple with the relevant
factual allegations in the applicant’s founding affidavit and
only raised this issue in her written heads of argument. The
evidence
shows that the families met and concluded the marriage in accordance
with Zulu custom.
[9]
Customary law is defined in the 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 and a
customary marriage means a marriage concluded
in accordance with
customary law. Section 2(1) of the Act provides that the 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. Section 3(1) provides that for a customary
marriage entered
into after the commencement of the Act to be valid, the prospective
spouses must both be above the age of 18 years;
and both must consent
to be married to each other under the customary law and the marriage
must be negotiated and entered into
or celebrated in accordance with
customary law.
[10]
I am satisfied that a customary marriage was concluded between the
applicant and the deceased in accordance with customary
law. The
applicant consented to the customary marriage, followed by the
payment of lobolo, whereafter she cohabited, built a home
with the
deceased and bore him children with the full knowledge of his
family.
[10]
[11]
Consequently, I make the following order:
Order:
1.
The customary marriage entered into
between the applicant and the late Thembile Njilo in December 1992 is
declared valid and of
effect in terms of the Recognition of the
Customary Marriage Act 120 of 1998.
2.
The first respondent is ordered to
register the customary marriage between the applicant and the late
Thembile Njilo and issue a
certificate of registration of that
customary marriage.
3.
The 4
th
respondent is ordered to pay the costs of this application.
MHLAMBI, J
On
behalf of the applicant:
Mr
H Rapapali
Instructed
by:
Rapapali
Attorneys
17627
Hillside View
Bloemanda
Bloemfontein
On
behalf of the respondent:
Adv.
Nyezi
Instructed
by:
Matee
Attorneys
Prospes-House
Building No:3
58
Victoria Road,
Willows
Bloemfontein
[1]
Paragraph 4 of the Founding Affidavit.
[2]
Paragraph 12 of the Founding Affidavit.
[3]
Paragraph 13 of the Founding Affidavit.
[4]
Paragraph 15 of the Founding Affidavit.
[5]
Paragraph 14 of the Founding Affidavit.
[6]
Paragraph 6 of the Answering Affidavit.
[7]
Paragraph 8 of Answering Affidavit.
[8]
Section 4(8) of the Act.
[9]
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA)
[10]
Mbungela and Another v Mkabi and Others
2020 (1) All SA 42
(SCA).