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[2023] ZAFSHC 451
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M.C.M v B.P.M (2998/2020) [2023] ZAFSHC 451 (15 November 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES /
NO
Circulate
to Judges: YES /
NO
Circulate
to Magistrates: YES /
NO
Circulate
to Regional Magistrates: YES /
NO
Case
no: 2998/2020
In
the matter between:
M[…]
C[…] M[…]1
Plaintiff
and
A
B[…]
P[…] M[…]2
Defendant
JUDGMENT
BY:
MAHLANGU, A J
HEARD
ON:
7, 8 AND 10 MARCH 2023; 14 AND 15 AUGUST 2023
DELIVERED
ON:
15 NOVEMBER 2023
INTRODUCTION
[1]
The Plaintiff instituted a divorce action in
which she seeks a decree of divorce, custody of the minor children,
maintenance for
both herself and the children as well as other
ancillary relief.
[2]
The defendant opposed the divorce action. In terms of the plea filed
on his behalf, the gravamen
of the defence was that no marriage
existed between the plaintiff and the defendant (the parties). The
defendant’s position
was simply that there was no valid
customary marriage between the parties.
[3]
The parties reached an agreement to separate the issues to be
determined by the Court. The parties
agreed that the only issue to be
determined by this court was whether there was a valid customary
marriage between the parties
or not. The parties agreed that the
issues as set out in prayers 2 to 12 of the plaintiff’s
particulars of claim be separated
in terms of Rule 33(4) of the
Uniform Rules of Court. Those issues will become relevant only once
this Court has decided that there
was a valid customary marriage
between the parties. An order in terms of Rule 33(4) was made.
Common
cause facts
[4]
The only common cause fact that this Court could pick up between the
parties was that, there were
two lobola negotiations that were held
by the parties families. There was an agreement that R30 000
would be a reasonable
amount of lobola to be paid by the defendant to
the plaintiff’s family. R15 000 was paid on the first
negotiation meeting
which was held during August 2014 and another
R15 000 was paid on 27 December 2014. That two children were
born after the
lobola was paid.
[5]
Furthermore, annexure ‘H’ attached to the particulars of
claim (annexure ‘H’)
was not disputed by the parties.
Disputed
facts
[6]
The only issue to be determined by this Court as mentioned herein
above, was whether the parties
entered into a valid customary law
marriage or not.
Plaintiff’s
case
[7]
The plaintiff testified and called 2 witnesses, S[…] M[...]1
(Mrs M[...]1) and Mr RA S[...]
(Mr S[...]). Her testimony was that
she met the defendant at high school and they thereafter went to the
same the tertiary institution
where their intimate relationship
started. After school, the defendant got employment at Johannesburg
and she stayed behind in
the Free State Province. During 2014 the
defendant initiated the lobolo negotiations. The plaintiff was
represented by 4 people
and the defendant was represented by five
people. The plaintiff testified that, the lobolo was paid during the
two negotiations
that were held by the parties families. Her family
invited several people to celebrate the final payment of lobolo which
was on
27 December 2014. There were also several family members of
the defendant that were also at her home to celebrate with them. I
pause to mention that, the plaintiff testified that most of the
people who were at her home to celebrate the final payment of lobolo
were wearing their traditional outfits including herself and
the defendant’s mother. The defendant was wearing a blue suit
that matches her outfit.
[8]
Few days prior to the 27 December 2014 negotiations, the plaintiff’s
family slaughtered
a sheep and brewed the traditional beer as it was
their custom when the last lobolo money was going to be paid. They
called it
lobolo cleansing ceremony.
They
invited several members of the family to come celebrate with them.
Mrs M[...]1 testified that, she telephonically informed
Mrs M[...]2,
the defendant’s mother about the ceremony. She even enquired
from Mrs M[...]2 if there was any celebrations
that were going to
take place at her house, the answer was no.
[9]
At the conclusion of the lobola negotiations, annexure ‘H’
was drawn up in Setswana
which contained the agreement reached during
the negotiation process. The content of the last paragraph on page 9
of the plaintiff’s
particulars of claim reads as follows on
translation: The M[...]1 family accept the intentions of the M[...]2
in finalising the
lobolo: R15 000 that was counted and paid.
Both families agreed that the children will stay together after the
holy matrimony.
The M[...]1 family takes the responsibility of
arranging the church ceremony and thereafter announce the date
arranged. Both families
agreed.
Representatives
from M[...]1 family:
1.
S[...] R A
2.
S[...] M[…]
3.
M[...]1 O[…]
4.
D[…] M[…]
Representatives
from M[...]2’s family:
1.
S[…] M[...]2
2.
J[…] T[…]
3.
T[…] T[…]
4.
(signature)
5.
B[…] S.M.D
[10]
All the representatives from both families signed the lobola letter,
annexure ‘H’. On conclusion
of the lobolo negotiations
and after the full amount was paid, both families sat in a dinning
set up where food and drinks were
provided. The defendant and his
mother joined them during lunch. Several people gave speeches
including the plaintiff and
the defendant. Some members of the family
including the Pastor counselled the parties on how to behave in their
marriage.
[11]
There was singing of traditional songs and ululation when the
plaintiff entered the garage, where food
was served. Everyone in the
garage was joyful as they celebrated what was called cleansing
ceremony of lobolo. After food
was served and the celebration,
the defendant’s family left. The plaintiff stayed behind at her
parental home.
[12]
The plaintiff further testified that, during March and April 2015,
her mother and the defendant’s mother
agreed that she can go
stay with the defendant in Johannesburg. She testified that she could
not move out of her parental home
without her parent’s consent.
That was also confirmed by her mother. The plaintiff moved in with
the defendant. During 2016,
she fell pregnant and had to go back to
her home in Thaba Nchu. She regarded herself as the wife to the
defendant and also the
family of the defendant regarded her as such.
She testified that they had some personal marital problems with the
defendant that
were telephonically solved by their families.
[13]
During 2019 she fell pregnant again, the problems between the parties
escalated until the family meeting
was called where the defendant’s
father was in attendance. She testified that the defendant told
her and her family
that it would be better if they separate. That was
how their relationship ended.
[14]
Mr Moretlwa for the defendant, cross-examined the plaintiff at
length. In cross examination, the plaintiff’s
evidence did not
change in material respects. She stated emphatically that she was
properly married to the defendant in accordance
with customary law.
Mr Moretlwa put it to her that, there was no marriage between the
parties as the ‘holy matrimony’
ceremony mentioned in
annexure ‘H’ was not fulfilled. She answered by stating
that the fact that the ‘holy matrimony’
did not take
place, could not affect the validity of their marriage.
[15]
During cross examination, she was asked about the letter that was
drawn on 27 December 2014. She testified
that she cannot say much
about that letter as she was not part of the negotiations. She was
adamant during cross examination that
her family released her to go
stay with the defendant. That she stayed with the defendant as his
wife and that the defendant’s
family accepted her as their
daughter in law. She stood by her exam in chief.
[16]
The second witness to be called by the plaintiff was the plaintiff’s
mother, Mrs M[...]1. She confirmed
that indeed two negotiation
meetings were held between the two families were it was agreed that,
R30 000 would be the appropriate
amount for lobola. She further
confirmed that, indeed after the lobola was paid and negotiations
concluded, there was a lobola
cleansing ceremony. There were family
members from the M[...]1 family that were invited and the M[...]2
family members were even
present. She testified that there were also
family members of the defendant were from Brandfort, in the Free
State Province.
[17]
She testified that, in preparation for the lobola cleansing, a sheep
was slaughtered and traditional beer
was brewed as part of their
custom. She informed the defendant’s mother that there is going
to be a celebration of the lobola
cleansing. She testified that she
asked the defendant’s mother of if there is going to be any
celebration at her house and
she told her that, they do not
celebrate. After the lobolo celebration, half of the sheep that was
slaughtered was given to the
defendant’s mother, Mrs M[...]2.
[18]
Mr Moretlwa for the defendant cross-examined Mrs M[...]1 at length.
Mrs M[...]1 testified that on the 27
December 2014, it was raining.
There are two houses in her premises and the other house is a garage
separated from the main house.
She was busy on that day as she was a
host. She testified that, she did not hear any singing nor ululation
from the garage it might
have happened that she was in the other
house and it was raining. She testified that indeed there was food
and alcohol for the
celebration. Everyone was in a jovial mood. The
defendant and his mother joined them for lunch as they were not part
of the negotiations.
She did not testify on the letter mentioned
above as she was not part of the negotiation people. She testified
that, the plaintiff
was given permission to go and reside with the
defendant by her family. She testified that, the plaintiff was
married to the defendant
but they had to give her permission as she
was still residing in their home. She could not just pack her bags
and leave without
them knowing where she was going. She was adamant
that, the plaintiff was still staying with them as she was not taken
to the defendant’s
family on 27 December 2014. The defendant’s
family did not show any intentions of taking the plaintiff with them
on the day
of the lobola celebration.
[19]
Mr S[...] was called as a third witness by the plaintiff. He
testified that he is the uncle to the plaintiff
and that he was the
lead negotiator in the M[...]1’s family. He corroborated the
testimony of both the plaintiff and Mrs
M[...]1 especially on the
lobola negotiations and payment.
[20]
Mr S[...] testified that, he wrote the letter attached as annexure
‘H’. He testified that,
during the first
negotiations, it was explained to the defendant’s family that,
on the day the final lobola payment is going
to be made, they will
have a cleansing ceremony of the lobola. He further stated that, they
further explained to the defendant’s
family that, it is their
custom that the parties should be married at church as it is their
custom whereafter the plaintiff would
be released to the defendant.
He testified that, according to him, the parties got married to each
other after the final lobola
payment was made.
[21]
Mr S[...] testified that, the lobola cleansing ceremony is very
important
culture in the M[...]1 family.
After receiving a letter from the defendant’s family informing
them that they are coming to
make the final payment of the lobola on
27 December 2014, the plaintiff’s family called a meeting to
discuss the letter.
At the meeting the arrangements were made for the
lobola cleansing. Part of the arrangement was to slaughter a sheep
and to brew
traditional beer. It was also agreed that some family
members of the plaintiff would be invited.
[22]
After the lobola payment the defendant’s family requested to
see plaintiff, she was presented in the
negotiation room by her aunt.
Thereafter food and liquor was served and the celebration started.
The plaintiff joined the families
in the garage where food was
served. The plaintiff and the defendant were also presented in the
garage. The plaintiff was counselled
and told how to behave as a
wife. He testified that, there were singing and celebration of
traditional wedding songs and ululation.
The plaintiff did no go with
the M[...]2’s family after the final payment of the lobolo.
[23]
During cross examination, Mr S[...] testified that, it was explained
to the M[...]2’s family that the
parties would be allowed to
stay together after the holy matrimony. He stated that the marriage
between plaintiff and defendant
is valid even if the ‘holy
matrimony’ was not made.
[24]
Mr S[...] testified that he did ask Mr T[...], the uncle to the
defendant if the plaintiff would be handed
over after the final
payment of the lobola. Mr S[...] was told by Mr T[...] not to rush
things and they were further told that
the M[...]2’s family
does not practice that tradition. He further testified that, the
defendant’s family never told
them their traditions during the
negotiation process. He was adamant that there was singing in the
garage and he was one of the
people that sang on that day. He
testified that several people in the garage gave speeches including
the plaintiff and the defendant.
DEFENDANT’S
CASE
[25]
The defendant’s father, S[…] M[...]2, was the first
witness to testify on behalf of the defendant.
His evidence-in-chief
was that the defendant is not married to the plaintiff because the
lobolo negotiations between the parties
were not finalised. He did
corroborate the plaintiff’s witnesses that the two lobolo
negotiations were held and that R30 000
that was agreed upon was
paid on 27 December 2014. It was his testimony that during the lobola
negotiation meeting that was
held on 27 December 2014, it was
agreed that the parties would only be married after the holy
matrimony that should be held at
Church. He testified that, the holy
matrimony is not his custom but had to compromise as the plaintiff’s
family wanted it.
[26]
He denied that there was a celebration after the final payment of
lobola on 27 December 2016. He admitted
that he called his wife and
the defendant to come join them for lunch but was adamant that, it
was not a celebration. He could
not remember if any speeches were
given by any of the parties not any attire that was worn on that
day. He could not remember
if there was traditional beer or if
there was any part of the sheep given to his family.
[27]
Mr M[...]2 testified that, during the
negotiations, he did not explain his custom to the plaintiff’s
family. He testified that, according to his custom, after the lobolo
has been finalised, there is a celebration called ‘dikapeso’
in which the families will exchange gifts. After ‘dikapeso’
it is then that an arrangement would be made for the plaintiff’s
family to hand the plaintiff over to his home. He testified that both
processes could not be made as they were still waiting for
the ‘holy
matrimony’ ceremony to be finalised at Church.
[28]
During cross examination, Mr M[...]2 testified that they did not
object to the issue of the ‘holy matrimony’
even if it is
not their custom. He further stated that, they signed the letter
dated 27 December 2014 as a compromise to what the
plaintiff’s
family wanted. Despite having paid the R30 000 lobolo money, he
denied that the plaintiff was married to
the defendant, he was
adamant that the plaintiff could not be said to have been married
without the ‘dikapeso’ and
the handing over process.
[29]
Mr M[...]2 during cross examination testified that, he denied that
the parties stayed together as husband
and wife after the payment of
lobolo. According to his knowledge the plaintiff was only visiting
the defendant. I got the firm
impression that Mr M[...]2 was being
economical with the truth. He did not remember what happened on the
27 December 2014 especially
whilst they were having lunch. He could
not remember the singing and he denied that any speeches were given
on that day. He
was visibly being irritated by certain
questions during cross examination and was being untruthful to the
Court in material respects
which have been alluded to above.
[30]
The defendant, Mr B[…] M[...]2, testified on his behalf. He
testified that the plaintiff was his partner
and the mother of his
two kids. He corroborated the evidence before court especially
relating to the lobolo negotiations and its
payment.
[31]
After the negotiations were finalised, the defendant, his mother and
his family that were at his house, went
to the plaintiff’s
place to join them for lunch. His father, Mr M[...]2 informed them
that the negotiations were finalised
and that the plaintiff’s
family has prepared food. On arrival at the M[...]1 family, they
found several people that they
knew from the community.
[32]
He was called into the garage together with some of his family
members to join the M[...]1 family. The other
family members were
seated inside the house. The plaintiff joined her inside the garage
and stood next to the plaintiff. They had
lunch that was served in
the garage. Himself and the plaintiff thereafter went into the house
to meet family members. He testified
that it was a good mood and
everyone was happy.
[33]
He testified that the plaintiff used to visit him in Johannesburg,
they never stayed together. He was adamant
that he is not married to
the plaintiff, that the lobolo process was not finalised. In terms of
his family custom belief, a sheep
could have between slaughtered and
the gifts be exchanged between the families as an indication of the
conclusion of the customary
marriage.
[34]
His main evidence-in-chief was that there is no marriage between
himself and the plaintiff as the ‘holy
matrimony’
celebration was not fulfilled.
[35]
During cross examination, he testified that, he was not married to
plaintiff because all the requirements
of lobolo were not completed
for example, the marriage was not completed as it did not take place
in church as per annexure ‘H’,
they never stayed
together, that the payment of lobolo alone is not marriage and the
plaintiff was not handed over to his family.
[36]
He testified during cross examination that, his family was not ready
to welcome the plaintiff as a new bride
but a date was to be set on
which he was to be handed over and celebrate her coming. He was
referred to his plea and he testified
that he was not aware that the
defence of handing over the plaintiff was not mentioned in the plea.
[37]
He testified that, both their families were aware that the plaintiff
is visiting her. Counsel for the plaintiff
put it to him that he was
customarily married to the plaintiff which was denied by the
defendant. He admitted that he fathered
two children with the
plaintiff after the lobolo was paid.
[38]
The gist of the defendant’s evidence was
that for the customary marriage to be valid, the ‘holy
matrimony’ celebration had to be fulfilled. The other
requirements such as payment of lobolo and consent to parties were
not so material according to the defendant. Upon being asked
about why he says there is no in customary marriage between
himself
and the plaintiff, his answer was that because there is no ‘holy
matrimony’ according to annexure ‘H’.
THE
LAW
[39]
Section 3(1) of the Recognition of Customary Marriages Act 120 of
1998 (the Act) provides as follows:
“
Requirements
for validity of customary marriages
(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
.”
[40]
The parties were both over 18 and both consented to be married to
each other under customary law, which culminated
in the two lobola
negotiations where lobola was finally paid on 27 December 2014. The
point of departure is the defendant’s
contention that the
marriage was not celebrated according to custom and that the
plaintiff was not handed over to his family.
[41]
I pause to mention that the Act does not mention ‘holy
matrimony’ as a requirement for the existence
of the customary
marriage.
[42]
The plaintiff referred the court to the case of
Mbungela and
another v Mkabi and others 2020(1) SA 41 (SCA) (Mbungela)
in
which the following was said regarding section 3(1)(b):
“
But section
3(1)(b) does not stipulate the requirements of customary law which
must be met to validate a customary marriage. The
reason for this is
not far to seek. It is established that customary law is a dynamic,
flexible system, which continuously evolves
within the context of its
values and norms, consistently with the Constitution, so as to meet
the changes and needs of the people
who live by its norms. The
system, therefore, requires its content to be determined with
reference to both the history and the
present practice of the
community concerned. As this court has pointed out, although the
various African Cultures generally observe
the same customs and
rituals, it is not unusual to find variations and even unambiguous in
their local practice because of the
blue realistic nature of the
African society. Thus, the legislation left it open for the various
communities to give content to
section 3(1)(b) in accordance with
their leaved experiences
”.
[43]
The interpretation of section 3(1)(b) of the Act in the
Mbungela
matter is wide. It is evident that various factors are to be taken
into consideration in determining whether a marriage has been
validly
concluded or not. The first two requirements of section 3 of the Act
are fairly easy to prove, namely that the parties
must be over
18 and that the parties must consent to enter into the customary
marriage. Section 3(1)(b) is always faced with the
controversy which
the courts always grabble with. The main controversy in this matter
is what is stated in annexure ‘H’
that, the ‘holy
matrimony’ is not fulfilled.
[44]
In his plea, the defendant raised only one defence which was that, a
valid customary marriage was not concluded
because the request by the
plaintiff’s family that there be a ‘holy matrimony’
was never fulfilled. He never
pleaded that the customary marriage was
not concluded because there was no bridal transfer. I got a firm
impression that the defendant
was not being truthful to the Court in
so far as he based his defence on the fulfilment of the ‘holy
matrimony’.
[45]
In my judgement, there was a valid customary marriage entered into
between the parties in terms of the Act.
It is therefore my view
that, the defendant’s contention that there was no such
marriage between the parties is entirely
without substance.
EVALUATION
[46]
I am therefore satisfied that the requirements of section 3(1)(a) of
the Act have been complied with. Section
3(1)(b) does not
specifically mention lobola but it is trite that the payment of
lobola is an essential requirement to customary
marriage. It is
therefore my judgement that the marriage between the plaintiff and
the defendant has been negotiated and entered
into in accordance with
section 3(1)(b) of the Act.
[47]
It is my view that on 27 December 2014, lobola was paid in full,
there was a celebration at the plaintiff’s
home after the
payment was paid, the plaintiff was presented to the defendant’s
family by her aunt and some members of the
two families including the
parties, gave speeches inside the garage where lunch was served and
there was singing and ululation
during the celebration.
[48]
The defendant was adamant in his testimony that, he is not married to
the plaintiff as the ‘holy matrimony’
mentioned in
annexure ‘H’ was not fulfilled. He further testified
that, he never cohabitated with the plaintiff, the
plaintiff would
only visit him at his house.
[49]
I got a firm impression that the plaintiff was honest and reliable
witness. She was truthful in her evidence
and testified in a
remarkably straightforward manner. She was not evasive at all. She
answered questions fairly and honestly. I
am satisfied that her
evidence maybe safely relied on. The plaintiff’s mother and her
uncle had impressed me as good reliable
witnesses. They corroborated
each other notwithstanding the lengthy and excruciating
cross-examination their versions remained
unaffected. They
corroborated one another in every material respect and further their
versions are corroborated by neutral facts.
[50]
Unfortunately same cannot be said about the defendant and his
witness. They are adamant that the plaintiff
and the defendant are
not married in terms of the Act. The defendant was adamant that a
valid customary marriage was not concluded
because the request by the
plaintiff’s family that there be ‘a holy matrimony’
was never fulfilled. The defendant’s
father, Mr M[...]2,
testified that, the request of a ‘holy matrimony’
by the plaintiff’s family was not
an important issue because
even if that ceremony had happened, there would still be no marriage
between the parties until such
time as the plaintiff was handed over
to the defendant’s family and sprinkled with or smeared with
bile. He further testified
that, even if the parties had signed
at Home Affairs to conclude a civil marriage, the plaintiff would
still not be recognised
as the defendant’s wife until she is
handed over and some rituals be observed. The defendant was an
evasive witness who contradicted
himself in various aspects.
[51]
I pause to mention that the defendant did not plead that there was no
customary marriage between himself
and the plaintiff because the
plaintiff was not handed over by his family. The issue of the handing
over of the bride was just
an afterthought on the part of the
defendant on realising that he has no defence and that there is a
customary marriage between
himself and the plaintiff. I am of a view
that, even if the issue of the handing over of the plaintiff was
pleaded, by the defendant,
it is clear from the authorities that
non-observance of that custom does not lead to the conclusion that
there is no valid customary
marriage.
Conclusion
[52]
As indicated earlier, the compliance with section 3(1)(a) and (b) is
not an issue, the main contention in
this matter is the fulfilment of
the ‘holy matrimony’ as per annexure ‘H’ of
the particulars of claim.
I am of a view that ‘holy matrimony’
is not an essential requirement of a customary marriage. Section
3(1)(b) provides
that:
“
The marriage
must be negotiated and entered into or celebrated in accordance with
customary law
.”
[53]
Thus for example, a woman could consent to a customary marriage,
followed by the payment of lobola after
which she cohabitate or
stayed with her husband with the knowledge of her parents, bore
children for the husband with the full
knowledge of both their
parents.
[54]
It is therefore my view that this ‘holy matrimony’ is not
part of customary law and as indicated
earlier, non-compliance with
it would not vitiate a customary marriage.
There
is therefore a valid customary marriage that has been entered into
between the parties. It follows that, the defendant’s
contention that there was no customary marriage between the parties
is without substance.
[55]
In the circumstances, I therefore make the following order:
(i)
The customary marriage entered into between the
parties on 27 December 2014 is declared to be valid and of effect in
terms of the
Recognition of Customary Marriages Act 120 of 1998
;
(ii)
The defendant is ordered to pay costs.
M.
E Mahlangu, AJ
On
behalf of Plaintiff:
Adv
M.S Mazibuko
Instructed
by:
Honey
attorneys
Bloemfontein
On
behalf of Defendant:
Adv T
Moretlwe
Instructed
by:
C/O
Phatshoane Henney Attorneys
Bloemfontein