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2023
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[2023] ZAFSHC 291
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Makhetla v Minister of Home Affairs and Others (6033/2022) [2023] ZAFSHC 291 (26 July 2023)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
CASE
NO: 6033/2022
NOT REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter between:
MOEKETSI
ANDRIES MAKHETLA
Applicant
and
MINISTER
OF HOME AFFAIRS
1
st
Respondent
MASTERS
OF HIGH COURT, BLOEMFONTEIN
2
nd
Respondent
NTSOEU
VICTOR FINGER N.O.
3
rd
Respondent
MUSO
SELOANE
4
th
Respondent
HEARD
ON:
25 May 2023
JUDGMENT
BY:
MHLAMBI, J
DELIVERED
ON:
This judgment was handed down
electronically by circulation to the parties’ legal
representatives by email and released to
SAFLI. The date and time for
hand-down are deemed to be at 14h30 on 26 July 2023
[1]
In this application, the applicant seeks the following orders:
1.1 That the
customary marriage entered into between the applicant and the late
Mateboko Shirley Mamashie in September 2008
be declared valid and of
effect in terms of the
Recognition of Customary Marriages Act 120 of
1998
.
1.2 That the first
respondent be ordered to register the customary marriage between the
applicant and the late Mateboko Shirley
Mamashie, alternatively issue
a certificate as proof of the registration of the 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 fourth respondent.
[3] The applicant and the
late Mateboko Shirley Mamashie, who passed away on 18 July 2020,
stayed together as a couple for 17 years
before her demise. During
2007, the representatives of the two families entered into
negotiations for the payment of lobolo which
was fixed at R 9 500.00.
The applicant’s family paid the lobolo in cash in September
2008 and it was instructed to bring
a knobkierie, coat and a
travelling blanket before the deceased was handed over as a bride.
[4] The applicant was
represented during the negotiations by his uncle and brother while
the deceased family was represented by
her aunts and her uncle who
was a pastor at the St John’s Church. The deceased was formally
handed over and given the clan
name of Mmasechaba during the
traditional celebrations held at the applicant’s home at
Kroonstad in 2008. The couple were
known to be married and a child
was born from the union.
[5] The couple acquired
property that was registered in the deeds office. The couple was
referred to in the title deed as having
been married in community of
property to each other. The deed was executed on 16 October 2013 in
Bloemfontein. On 23 August 2016,
the deceased caused an email to be
forwarded to her bank, FNB, in which she stated that the applicant,
as her spouse, should be
included in one of her policies as a
beneficiary.
[6] The fourth
respondent, the son of the deceased born out of her relationship with
another man, opposed the application on the
basis that no
negotiations took place between the two families and that the parties
were not married to each other in terms of
the Sesotho customary law
in September 2008 or at any time during the life of the deceased.
It is, however, not in dispute
that both the applicant and the
deceased were above the age of 18 in 2008 and that the deceased
passed away on 18
July 2020. Furthermore, the applicant
and the deceased owned a house, had a child and lived together for a
period of about 12 years.
[7] In support of his
claims, the 4
th
respondent attached 4 brief affidavits by
the deceased’s mother, two sisters and a neighbour, Lekhina
Lawrence Mashoene.
The mother briefly stated in her affidavit that
the deceased was never married and she never received any lobolo for
the deceased.
Both the two younger sisters denied that the deceased
was married. It is interesting to note that Lekhina Lawrence
Mashoene, deposed
to two affidavits: one dated 22 February 2023,
attached to the 4
th
respondent’s founding affidavit,
wherein he stated that he was the deceased’s neighbour at
Gamphahlele, Seleteng in
Limpopo. He knew that the deceased was
involved in an open relationship with the father of her daughter
(Keke Makhetla) whom she
knew since 2005. She, the deceased, remained
in that relationship until her date of death. She confirmed that the
deceased was
never married. In an earlier affidavit, dated 19 August
2020, Lawrence confirmed and acknowledged the marriage between
Moeketsi
Makhetla, the applicant, and Shirley Mamashiye, the
deceased. He stated in that affidavit that he was accommodated at the
couple’s
residence at Grasslands, Bloemfontein when he first
arrived there.
[8]
For a customary marriage to be valid, the prospective spouses must
both be above the age of 18 years; should consent to be married
to
each other under customary law and the marriage must be negotiated
and entered into or celebrated in accordance with customary
law.
[1]
Lobolo, on the other hand, is defined in the Act as property in cash
or kind which a prospective husband or the head of his family
undertakes to give to the head of the prospective wife’s family
in consideration of a customary marriage.
Section 4(7)
of the Act
empowers the court to order the registration of any customary
marriage upon application made to it and upon investigation
instituted by that court.
[9] In
Mbungela
and another v Nkabi and others,
[2]
it was stated that the ritual of handing over a bride is simply a
means of introducing a bride to her new family and signified
the
start of the marital consortium. Cohabitation alone may raise a
presumption that a marriage exists, especially where the bride’s
family has raised no objection nor showed disapproval. It is an
important but not necessarily a key determinant of a valid customary
marriage.
T
he
value of the custom of bridal transfer cannot be denied but an
inflexible rule that there is no valid customary marriage if just
this one ritual has not been observed, even if the other requirements
of
s 3(1)
of the Act, especially spousal consent, have been met, in
circumstances such as the present ones, could yield untenable
results.
[10]
In
Tsambo v Sengadi,
[3]
it was
stated that:
“
Given
the obligation imposed on the courts to give effect to the principle
of living customary law, it follows ineluctably
that the failure
to strictly comply with all rituals and ceremonies that were
historically observed cannot invalidate a marriage
that has otherwise
been negotiated, concluded or celebrated in accordance with customary
law.
”
[11] The thrust of the
fourth respondent’s argument is that no customary marriage came
into being as the requirements of the
Act were not complied with by
the applicant. The fourth respondent contended that the applicant,
instead of relying on a written
document to prove the agreement
between the parties, failed to do so. Moreover, the applicant’s
representatives did not negotiate
with the deceased’s family or
her family’s representatives. The fourth respondent, it was
contended, as the deceased’s
son, laid a sound basis for
disputing the veracity of the applicant’s averments.
[12]
It was contended on behalf of the applicant that none of the fourth
respondent’s witnesses were present during
the lobolo
negotiations or took part in the handing over of the bride or the
wedding celebrations. Furthermore, neither the fourth
respondent nor
his witnesses alleged in their affidavits that they should have been
part of the marriage negotiations and celebrations.
The alleged
disputes by the fourth respondent were based on bare denials and the
court should adopt a robust approach in considering
the disputes.
[4]
I agree. In his replying affidavit, the applicant stated that
although records were kept of the negotiations, he did not have a
copy in his possession.
[13] I agree with
the fourth respondent’s legal representative’s
submissions that it was not necessary to refer
the matter to oral
evidence. I am persuaded that the applicant provided sufficient
evidence that the marriage was negotiated, entered
into and
celebrated in accordance with customary law. The parties were adults
who consented to their marriage, lobolo was negotiated
and paid for
in cash. Gifts were provided to the deceased’s family. The
deceased, as the bride, was handed over to the applicant’s
family in September 2008 and given a new name of Masechaba. The
applicant and the deceased cohabited for a long period, had a child
and acquired movable and immovable property together, the latter
having been registered in the Deeds Office. The applicant is
mentioned as a spouse on the transfer deed. In the parties’
world, they were known as husband and wife.
[14] I am
therefore satisfied that the applicant succeeded in making out a case
for the relief sought. On the other hand,
the fourth respondent
presented a weak case which was founded on no merit.
[15] Consequently, I make
the following order:
ORDER:
1. The customary marriage
entered into between the applicant and the late Mateboko Shirley
Mamashie in September 2008, is declared
valid and of effect in terms
of the
Recognition of Customary Marriages Act 120 of 1998
;
2. The first respondent
is ordered to register the customary marriage between the applicant
and the late Mateboko Shirley Mamashie,
alternatively, issue a
certificate as proof of the registration of the marriage;
3. The fourth respondent
is ordered to pay the costs of this application.
MHLAMBI,
J
On
behalf of applicant:
Adv.
A Swanepoel
Instructed
by:
Rossouws
Attorneys
119
President Reitz Ave
Westdene
Bloemfontein
On
behalf of the fourth respondent:
Mr
H. Rapapali
Instructed
by:
Holomo
Rapapali Attorneys
17627
Hillside View
Bloemanda
Bloemfontein
[1]
Section 3(1)(a)
and (b) of the
Recognition of Customary Marriages
Act 120 of 1998
.
[2]
2020 (1) SA 41 (SCA).
[3]
Tsambo
v Sengadi (244/19) [2020] ZASCA 46 (30 April 2020).
[4]
Tsoeute v Yawa and Others [2020] JOL 46804 (FB).