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[2023] ZAKZPHC 24
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Nduli v Minister of Home Affairs and Others (1789/21P) [2023] ZAKZPHC 24 (3 March 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 1789/21P
In
the matter between:
MANDY
MALINDA NDULI
Applicant
and
MINISTER
OF HOME
AFFAIRS
First Respondent
THE
DIRECTOR GENERAL OF THE
DEPARTMENT
OF HOME AFFAIRS
Second Respondent
BERTINA
KHUMALO
Third Respondent
MASTER
OF THE HIGH COURT
PMB
Fourth Respondent
ORDER
1.
It is declared that the customary marriage entered into between the
applicant,
Mandy Malinda Ntuli, with identity number [....]and
the deceased, Thokozani Praise-God Khumalo, with identity number
[....],
on 12 December 2020, is a valid customary marriage in
compliance with the Recognition of Marriages Act 120 of 1998 (the
Act).
2.
The first and second respondents are directed to register such
marriage and to
issue the required certificate in terms of section
4(8) of the Act, confirming such registration.
3.
The third respondent is directed to pay the costs of the application
JUDGMENT
E
Bezuidenhout J
Introduction
[1]
The applicant, Ms Mandy Malinda
Nduli, applies for an order that the customary marriage
entered into
between her and the late Mr Thokozani Praise-God Khumalo with
identity number [....], on 12 December 2020, was
done in
accordance with the prescripts of the Recognition of Marriages Act
120 of 1998 (the Act).
[2]
She also seeks an order
directing the first respondent, the Minister of Home Affairs, and
the
second respondent, the Director General of Home Affairs, to register
the marriage and to issue a certificate confirming such
marriage in
terms of section 4(8) of the Act. These parties played no role in
these proceedings.
Background
[3]
The present application came
before PC Bezuidenhout J who granted the above orders on 7
April
2021. On 12 May 2021 the third respondent, Mrs Bertina Khumalo, the
mother of the late Mr Thokozani Khumalo (the deceased),
brought an
application to rescind the order granted on 7 April 2021. She also
brought an urgent application seeking
inter alia
that pending
the final determination of the rescission application, the relief
granted on 7 April 2021 be stayed. Mr Thalente Hopewell
Khumalo, the
deceased’s eldest son born off his marriage with the late
Sharon Nomthandazo Khumalo, also attested to affidavits
in support of
the applications.
[4]
The order of 7 April 2021 was subsequently rescinded by consent and
the parties filed
further affidavits to complete the main
application. On 15 November 2021 the matter was referred for the
hearing of oral evidence
but such hearing never materialized and the
matter came before me as an opposed motion.
The
applicant’ case
[5]
The applicant alleges that she brings the application on behalf of
the deceased’s three minor children.
[6]
The applicant and the deceased started a love relationship during
2015. Unfortunately,
the deceased passed away on 15 February 2021.
[7]
The applicant alleges that the deceased had always intimated his
intention to marry
her. During March 2020 he introduced her to his
four children, whom were living with him. Thalente Khumalo was the
eldest, born
on 7 April 2000. Senzekesihle Siyamthanda Khumalo was
born 20 February 2008. Ntandoyenkosi Sahluko Khumalo born on 26 June
2011
and Mvelo Sisekelo Khumalo was born on 19 November 2013.
[8]
During October 2020 the deceased asked Mr Thembalihle Andile
Sikhakhane and Prince
Mutwana Mbonise Zulu (known as ‘Abakhongi’)
to act as his emissaries and to negotiate and finalise the payment of
lobolo
with the applicant’s family as well as the immediate
handing over of the wife.
[9]
The applicant alleges that the deceased’s emissaries were not
from his family
as he did not have a relationship with his family or
communicated with them, he had renounced them and lived as if they
did not
exist. The deceased did however have a relationship with his
uncle, Mr Bhekinkosi Khumalo, whom he informed of his intention to
conclude a customary marriage with the applicant.
[10]
The applicant’s father, Dr Kwazi Henry Nduli, was contacted by
the deceased and informed
of the deceased’s intentions. A date
was set for 12 December 2020 for the deceased’s emissaries to
start negotiations.
On 12 December 2020 the lobolo negotiations
commenced with the applicant’s family and an amount of R85 000
together
with 5 live cows were agreed upon as lobolo. The cash amount
was paid on the same date in the presence of the Induna, Mr Alfred
Zamisa, who signed a letter to the effect. The applicant also annexed
a handwritten note setting out the amount of lobola paid
as well as
the 5 live cows to be delivered.
[11]
The applicant stated that after lobolo negotiations, celebrations
took place at her father’s
home. A sheep was slaughtered and
the deceased’s emissaries were given a crate of beer and
whiskey as gifts. People danced
until late in celebration of the
union. The deceased had also bought a cow which was slaughtered at
his home and the meat was cooked
for those who were at his home when
lobolo was being negotiated and also for the hand over celebrations.
[12]
On 13 December 2020 the applicant was taken to the deceased’s
home by her family and she
was handed over to the deceased in the
presence of deceased’s emissaries, his uncle, his aunt, Mrs
Shongane Khumalo, friends
and colleagues. The deceased’s aunt
was involved in the preparation of food and the marriage
preparations.
[13]
After the applicant was handed over by her family, the deceased
performed certain rituals which
included the burning of ‘impepho’
and talking to his ancestors about the customary union. The applicant
was smeared
with cow bile or ‘inyongo’ as part of the
rituals and traditions as part of the deceased’s process to
accept
her as umakoti at his home. He formally introduced her as his
wife to everyone present at the celebrations.
[14]
After the celebrations, the applicant and the deceased commenced
living together as husband and
wife and did so until he passed away.
[15]
The applicant stated that the deceased was content to only have his
aunt and uncle involved in
the process of getting married because of
the strained relations with his family. It was therefore impractical
if not impossible
to take her as his bride to his family home.
[16]
The marriage was concluded with both the applicant and the deceased’s
consent and they
were both over the age of 18 years at the time. They
did not get around to formally registering the marriage with the
Department
of Home Affairs because of the conditions surrounding the
Covid-19 pandemic and in order to avoid exposure to the risk of
contracting
Covid-19. Unfortunately, the deceased nonetheless became
sick and succumbed to the illness on 15 February 2021
[17]
The applicant arranged and attended the deceased’s funeral
which took place on 20 February
2021. The program included an item
where someone from her family would speak.
[18]
The applicant filed confirmatory affidavits by Thembalihle Sikhakane,
her father, Dr Ntuli and Mrs Shongane Khumalo.
The
third respondent’s case
[19]
The third respondent’s opposition to the relief being claimed
centres around the validity
and/or existence of the applicant’s
marriage to the deceased. She alleges inter alia that there was no
celebration of the
customary marriage, there was no delivery of
gifts, referred to as ‘ingqibamasondo’, by the applicant,
no delivery
of gifts by the deceased to the bride’s family,
referred to as ‘izibizo’, and that there was only the
payment
of lobola. There was furthermore no handing over of the
applicant to the deceased’s family.
[20]
The third respondent alleged that according to the applicant she was
handed over to their family
on the 13 December 2020 and that she was
received by Mr Bhekinkosi Khumalo, the deceased’s uncle. This
is however not what
the applicant stated in her affidavit. She stated
that she was handed over to the deceased in his uncle’s
presence as well
as in the presence of his emissaries.
[21]
The third respondent placed reliance on an affidavit made by Mr
Bhekinkosi Khumalo. He stated
inter alia
that on 11 December
2020 the deceased requested to see him. He confirmed that the
deceased had sent a delegation to Estcourt to
negotiate lobolo for
him. He mentioned the names of Prince Mbonisi Zulu and Thulasizwe
Ntenga. He stated that he attended on the
deceased’s home again
on 12 December 2020 and was informed that half of the lobola had been
paid in cash and the balance
would be paid later. He alleges that the
deseased told him that he was not in a hurry to finish lobolo. He
confirmed that from
the document put up by the applicant it is clear
that the live cattle were not delivered. He was clearly mistaken
about the payment
of lobola as it is clear that the full amount was
paid in cash.
[22]
Mr Khumalo denied that the applicant was brought to the deceased’s
house on 13 December
2020. He does not say whether he was there the
whole day into the evening or when he left. He denied that the Nduli
family came
to the funeral and he stated that the Khumalo family has
not met the Nduli family. He denies that there was a handing over
ritual
of the bride and the customary celebration of the customary
union. He also stated that there had not been the delivery of the
gifts
(ukuhambisa kwezibizo) where the family of the bride supply a
list of people who must be given gifts by the bridegroom.
[23]
Mr Khumalo also pointed out that Mrs Shongane Khumalo was not a blood
relative of the deceased
but merely someone employed by him to look
after his children. Mr Khumalo stated that he had read the
applicant’s founding
affidavit and that from what is stated
relating to the applicant and the handing over of the bride, such
averments are false and
not true. It amounts to a bare denial of the
majority of the allegations made by the applicant.
[24]
The third respondent also placed reliance on an affidavit by Mr
Thulasizwe Ntenga, which was
filed in the urgent application. He
admitted that he attended the lobolo negotiations at the Nduli home.
He stated that the applicant’s
statement that the lobolo was
determined at R85 500.00 was incomplete as there was also five
live cows to be delivered. He
clearly did not read the applicant’s
affidavit properly because she clearly states that lobolo was
determined in the amount
of R85 500.00 and five live cows. He
confirmed however that an amount of R89 500 was paid on 12
December 2020. The cows
were not delivered.
[25]
Mr Ntenga admitted that they were given a crate of beer and three
bottles of cognac. He denied
that there were celebrations ‘in
their presence’ or that a sheep was slaughtered in their
presence. He also denied
that the deceased had brought a cow that was
slaughtered. It was however alleged by the applicant that the
deceased had bought
a cow which was slaughtered at his home. Once
again it appears that Mr Ntenga did not read the applicant’s
affidavit properly.
[26]
Mr Ntenga also states that he was at the deceased’s home on 13
December 2020 and that the
applicant was not brought at all to the
deceased’s house and that no handing over was done. He goes
further to state that
because the five live cows had not been
delivered, no handing over could take place. He stated that the
applicant’s statement
that there was a handing over and a
celebration of a customary union or marriage is false. He did not
state until what time he
was at the deceased’s home.
[27]
The third respondent also stated that her house and deceased’s
house are opposite each
other and that she knows ‘as a fact’
that the applicant was not handed over.
[28]
The third respondent in her specific responses to particular
paragraphs in the applicant’s
founding affidavit responded in
various instances with a bare denial. In paragraphs 14 to 22 of her
affidavit, the applicant set
out in detail the events leading up to
the lobolo negotiations and what followed thereafter, such as that
the applicant and deceased
commenced living together as husband and
wife. The third respondent’s response to all these paragraphs
were simply that save
for admitting the deceased paid R85 500 as
part of lobola, she denied ‘all other averments’.
[29]
In paragraphs 23 to 25, the applicant deals with the deceased’s
illness, the Covid-19 pandemic
and the nonregistration of their
marriage. It also contains the allegations by the applicant that she
arranged the deceased’s
funeral and that there was an item on
the program that someone of her family will speak at the funeral.
These allegations were
similarly met with a bare denial or a
statement that the third respondent did not have knowledge of the
facts.
[29]
It’s difficult to understand how the third respondent would
have no knowledge of who arranged
and attended the deceased’s
funeral unless, of course she was not there. It is even more
concerning that when it comes to
an allegation by the applicant that
she and the deceased commenced living together as husband and wife
after the events of 13 December
2020, that the third respondent chose
not to respond to this important allegation in particular.
[30]
The applicant also stated that the four children of the deceased
‘were staying with us
and we were financially responsible for
their livelihoods’. She attached copies of school accounts
addressed to Mr and Mrs
T Khumalo or to herself. Once again the third
respondent choose not to respond to these crucial allegations,
leaving it unchallenged.
[31]
The deceased eldest son, Thalente Hopewell Khumalo attested to an
affidavit in the urgent application
as the second applicant. He made
much of the fact that he should have been cited as a respondent by
the applicant as he is a major
and as such would have an interest in
the relief being sought. This is so but his non joinder in the
original application is in
my view not fatal as he has ultimately
been able to address the issues and raise all the concerns he had,
and of which I will take
note. It is uncertain why he did not also
file a further affidavit in the main application. The applicant
attached a number of
messages sent by Thalente to her, referring to
her as ‘Ma’, providing payment details for his tuition to
be paid and
also requesting permission from her to ‘dip’
into the ‘rainy day fund’ to pay for electricity and
petrol.
These matters were not addressed at all.
[32]
Thalente likewise alleges that the applicant’s claim of a
marriage are predicated on a
falsity, repeating the exact same issues
raised by the third respondent and Mr Bhekinkosi Khumalo, who he
refers to as his grandfather.
[33]
Thalente, as the deceased’s son would have been in the ideal
position to state whether
the applicant and the deceased commenced
living together as husband and wife after the lobolo negotiations and
only ‘part
payment’ by his father. He stated that there
are witnesses who attended the lobolo negotiations who say that
lobola was not
paid in full, that there was no celebration at the
applicant’s home and that the applicant ‘was not brought
to our
home and handed over’ as she claimed. The third
respondent’s influence is clear to see.
[34]
Thalente however does not state whether he was present at the
deceased’s home during this
time. He does not comment on
whether the applicant and the deceased lived together as husband and
wife in what he refers to as
‘our home’. He does not
comment about whether the applicant assumed responsibility for his
siblings. These issues would
have been within his knowledge yet there
is no affidavit by him in the main application and he does not raise
these issues in the
urgent application, where he easily could have
done so.
The
applicant’s reply
[35]
The applicant dealt with the main issue which became apparent from
the third respondent’s
answering affidavit, namely whether
there was delivery of the bride at the deceased’s home where
after they lived as husband
and wife, and not whether there was a
celebration at the deceased’s family home as the third
respondent would have it. The
applicant maintained that she was
delivered to the deceased’s house so as to live as husband and
wife and that they lived
so until the deceased passed away. She also
stated that the third respondent’s house was three houses away
from the deceased’s
house and that she would therefore not have
seen what happened at his house. With reference to a number of the
Zulu customs and
traditions described by the third respondent, she
stated that despite being of Zulu origin, her family did not follow
some of these
practices. She denied that the practices set forth are
formal processes or practices followed by all Zulu people. She also
stated
that parties to a marriage or the families involved can decide
to waive certain practices. In the present instance, the deceased
sought her delivery as his wife to his home.
[36]
The applicant also stated that it was a common cause that the
deceased had paid the lobola but
that the live cows had not yet been
handed over. She stated that the delivery of the cows had been waived
given that her hand over
had taken place subsequent to the payment of
the lobola. A valid marriage could in any event still be concluded
even if lobola
had not been paid in full. The applicant also stated
that with reference to ‘ukulethwa kwezibizo’, the
delivery of
gifts to her family, her mother did not request any gifts
from the deceased. The practice of ingqibamasondo, the gifts to the
groom,
was furthermore unknown to her family and not a custom they
followed. The deceased’s emissaries made no mention of this and
if the deceased wanted to follow this practice he would surely have
instructed his emissaries to ensure that it was followed.
[37]
The applicant dealt with the allegations of Mr Bhekinkosi Khumalo
with reference to the so called
failure to finalise the payment of
lobola by stating that it was clear that the lobolo was paid in full
by the deceased. The live
cows were not delivered but this was
waived.
[38]
The applicant denied the assertions by Mr Bhekinkosi Khumalo that she
was not handed over in
his presence at the deceased’s home
describing it as far-fetched. She persisted that she travelled to the
deceased on that
day and annexed cell phone message exchanges between
her and the deceased on 13 December 2020 as well as a printout
depicting her
cell phone location on the day. She left Estcourt at
around 17h39 and arrived at the deceased’s home at 21h31,
having had
to drop off a few people on the way. She was accompanied
by her family members, one being her cousin, Hlengiwe Mnyanane, who
attested
to a confirmatory affidavit.
[39]
With reference to the deceased’s funeral and her attendance,
which was met with a bare
denial by the third respondent, the
applicant added that she sat in the front row, next to the coffin
with the rest of the family,
as the deceased’s wife. She was
dressed in black as the widow of the deceased and partook in rituals
such as pouring soil
in the grave of the deceased. A video recording
was available, depicting what happened at the funeral.
Discussion
[40]
The Recognition of Customary Marriages Act 120 of 1998 (the Act)
defines a customary marriage
as a marriage concluded in accordance
with customary law. The requirements for a valid customary marriage
are set out in section
3(1) of the Act:
‘
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.’
[41]
From the papers it has emerged that the third respondent in essence
disputes the validity of
the marriage on two fronts namely that the
lobolo was not paid in full and that there was not a handing over of
the bride to the
deceased’s family. The author of
Seymour’s
Customary Law in Southern Africa
[1]
listed the essentials of a customary marriage as follows:
‘
(i)
The consent of the bride’s guardian.
(ii)
The consent of the bride.
(iii)
The consent of the bridegroom.
(iv)
The payment of lobolo . . .
(v)
The handing over of the bride to the bridegroom.’
[42]
Despite lobolo not being mentioned in the section 3(1) of the Act,
lobolo is regarded as ‘the
rock on which the customary marriage
is founded’.
[2]
The type
of property given as lobolo may be determined by agreement between
the parties. Traditionally livestock was the preferred
commodity but
in modern times payment of lobolo in cash has become acceptable with
a portion to be paid in livestock, if so agreed.
[3]
This is also borne out by the definition of lobolo in the Act where
it is defined as ‘property in cash or in kind’.
[43]
Bennett
[4]
discusses whether the
payment of lobolo is a legal or essential requirement for a marriage:
‘
In practice,
however, the courts can hardly insist on full and immediate payment
of lobolo . . . The Natal and KwaZulu codes went
even further. In the
section governing essentials of customary marriage, no mention is
made of lobolo . . . When the Law Commissions’
Special Project
Committee on Customary Law came to consider the essential
requirements for a valid marriage, the role of lobolo
in constituting
marriage was over shadowed by a debate about its effect on the status
of women . . . The Committee noted that the
great majority of people
– both men and women – were strongly attached to lobolo
as an institution. Nevertheless, central
though lobolo may be . . .
full payment is seldom necessary’. (footnotes omitted)
[44]
In
Southon
v Morapane
[5]
Saldulker J held, with reference to authorities that part payment of
lobolo is sufficient to constitute a customary marriage and
need not
be paid in full, as long as there is an agreement that lobolo will be
paid.
[45]
In
Mankayi
v Minister of Home Affairs and others
[6]
Mngadi J held that some traditional communities, after an agreement
on lobolo and part payment thereof, slaughter a beast celebrating
the
event, ‘which effectively recognises the bride and bridegroom
as husband and wife’. The other customs and rituals
relating to
the customary marriage including its celebration may remain
outstanding.
[46]
As far as the handing over of the bride is concerned, Mngadi J held
further that an agreement
on lobolo and staying together of the bride
and the bridegroom as husband and wife ‘with knowledge of her
people’ means
the existence of a customary marriage. The
failure to formally hand over the bride or to celebrate the union
‘are of no consequence’.
[7]
[47]
In
LS v
RL
[8]
Mokgoathleng J dealt with the question as to whether the handing over
of the bride to the bridegroom’s family was ‘the
most
crucial part’ of a customary law marriage, without which, no
valid customary marriage came into existence. It was held
that
‘
African customary
law is a living law because its practices, customs and usages have
evolved over the centuries. The handing-over
custom as practised in
the precolonial era has also evolved and adapted to the changed
socioeconomic and cultural norms practised
in the modern era’.
[48]
After referring to a number of authorities and considering whether
the custom of handing over
passes constitutional muster, the judge
held that a customary law wife has no freedom of opinion, autonomy or
control over her
marital life if her customary husband’s family
insists that her family should hand her over in order to validate the
existence
of her marriage, in spite of the fact that she and her
customary law husband have complied with section 3(1) of the Act.
[9]
The judge concludes that the custom of handing over the bride to the
bridegroom’s family cannot pass constitutional muster
inter
alia
because
it infringes on the female spouse’s freedom of opinion and
control over her marital status.
[10]
The judge proceeded to make an order declaring that the customary law
custom of handing over the bride was not an essential prerequisite
or
requirement for the existence of a lawful marriage in terms of the
Act. Although on appeal the Supreme Court of Appeal in
Tsambo
v Sengadi
,
[11]
as per Molemela JA, criticized the finding of unconstitutionality, it
did not interfere with the declaratory relief granted.
[49]
In
Mbungela
v Mkabi
,
[12]
which preceeded
Tsambo
,
supra, Maya P considered whether the handing over of the bride was a
requirement for a valid marriage. She held as follows:
‘
[27] The
importance of the observance of traditional customs and usages . . .
cannot be understated. Neither can the value of the
custom of bridal
transfer be denied. But it must also be recognised that 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 . . .
could yield untenable results.
[28] Thus, for example, a
woman could consent to a customary marriage, followed by payment of
lobola, after which she cohabited,
built a home with her suitor, and
bore him children, with the full knowledge of his family. When the
man died, she and those children
could be rejected and disinherited
by his family simply on the basis she was not handed over or properly
introduced to his family
and was therefore not his lawful wife . . .
Needless to say, that consequence would be incongruous with customary
law's inherent
flexibility and pragmatism’.
[50]
Bennett, supra, stated that when the Law Commissions’ Special
Project Committee on Customary
Law considered the effect of wedding
ceremonies and transferring of the bride, ‘it found that
variations in local practice
and ambiguities inherent in them
suggested that neither should be deemed essential for the creation of
a customary marriage’.
[13]
[51]
Returning to the present application, it is common cause that lobolo
was paid by the deceased,
although the third respondent tried to make
something out of the failure to deliver the live cattle. It is clear
that both the
applicant and the deceased consented to the marriage
and were over the age of 18 years.
[52]
The third respondent denied that there were celebrations at the
applicant’s home and that
the applicant was brought to the
deceased’s home, relying on the affidavits by Bhekinkosi
Khumalo and Thulasizwe Ntenga.
Neither of these two gentlemen however
state until what time they were at the deceased’s home or at
the applicant’s
home, for that matter.
[53]
It is further clear from the papers the neither the third respondent
nor any of the deponents
who attested to affidavits in support of her
case, dealt with the applicant’s allegation that she and the
deceased commenced
living together as husband and wife after she
arrived at his home on 13 December 2020. The third respondent’s
bare denial
does not suffice as it has been held that a respondent
cannot contend himself in his answering affidavit with bare or
unsubstantiated
denials.
[14]
[54]
The allegation that the applicant attended the deceased’s
funeral as his widow was likewise
met with a bare denial.
[55]
Counsel for the applicant, Mr K Nondwangu, in his heads of argument
referred to
Wightman
t/a JW Construction v Headfour (Pty) Ltd
[15]
where it was 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.’
A duty
is furthermore imposed to engage with the facts disputed and reflect
such disputes fully and accurately in the answering
affidavit. In my
view this was clearly not done in the present matter.
[56]
Even if I only consider the version of the third respondent and the
basis upon which she claimed
that there was no valid customary
marriage, namely that there was no handing over of the applicant to
the deceased’s family
or to the deceased himself for that
matter, bearing in mind the authorities referred to above, it is
difficult to find that a valid
customary union was not concluded.
[57]
Counsel for third respondent, Mr M N Xulu, valiantly tried to
persuade me to consider the disputes
of fact and the contradictions
between the version of the applicant and that of Mr Bhekinkosi
Khumalo and Mr Thulasizwe Ntenga.
It is clear that the applicant on
her version arrived at the deceased’s home late in the evening.
It is off course possible
that by that time neither Mr Khumalo nor Mr
Ntenga were still present at the deceased’s home. It was
submitted on behalf
of the third respondent that if the applicant
lied about this issue, she could also have lied about the ‘living
together’
portion of her evidence. This is not borne out by the
papers and does not explain the third respondent’s failure to
deal
with this issue, which was readily conceded.
[58]
In the end the only relevant fact in my view is that after the
payment of lobolo, on the applicant’s
version, she commenced
living with the deceased as husband and wife from 13 December 2020
until his death. Neither the third respondent
nor Mr Khumalo or Mr
Ntenga or the deceased’s eldest son dealt with this crucial
aspect where they could easily have done
so.
[59]
Not surprisingly, applicant’s counsel relied on
Mankayi
and
Mbungela
as authority in support of the applicant’s
case. Counsel for the third respondent could not offer any
authorities relevant
to the matter at hand which offered a different
view.
[60]
I can find no reason to differ from what was held in
Mankayi
and I
agree that the fact that a bride was not formally handed over to the
bridegroom’s family or to the bridegroom himself
for that
matter,
[16]
is not an
impediment to a valid customary marriage and further that by living
together as husband and wife, the applicant and deceased
had clearly
concluded their customary marriage. This also takes into account the
evolving nature of customary law and how certain
elements are
influenced by changing social and economic conditions.
[17]
[61]
The issue of costs was not addressed in particular. I see no reason
to deviate from the general
rule that costs should follow the result.
[62]
I grant the following order:
1.
It is declared that the customary marriage entered into between the
applicant,
Mandy Malinda Ntuli, with identity number [....],
and the deceased, Thokozani Praise-God Khumalo, with identity number
[....],
on 12 December 2020, is a valid customary marriage in
compliance with the Recognition of Marriages Act 120 of 1998 (the
Act).
2.
The first and second respondents are directed to register such
marriage and to
issue the required certificate in terms of section
4(8) of the Act, confirming such registration.
3.
The third respondent is directed to pay the costs of the application.
E.
Bezuidenhout J
Date
reserved:
26 October 2022
Date
delivered:
3 March 2023
Appearances:
For
the applicant:
Mr K Nondwangu
Instructed
by:
Messers Yenziwe Cele Attorneys
REF: K21/05/CIV
Tel: 081 267
0846
For
the third respondent:
Mr MN Xulu
Instructed
by:
Messers T J Mphela Attorneys
c/o Yashica Chetty
Attorneys
ref: MS Y CHETTY/M993
tel: 033
3949818/0670117827
[1]
JC
Bekker
Seymour’s
Customary Law in Southern Africa
5ed (1989) at 105 – 109. See also C Himonga and E Moore
Reform
of Customary Marriage, Divorce and Succession in South Africa
(2015) at 59.
[2]
Mbanga
v Sikolake
1939 NAC (C & O) 31, and
JC
Bekker
Seymour’s
Customary Law in Southern Africa
5ed (1989) at 151. See also C Himonga and E Moore
Reform
of Customary Marriage, Divorce and Succession in South Africa
(2015) at 89 – 92.
[3]
TW
Bennet
Customary
Law in South Africa
(2004) at 224ffg.
[4]
TW
Bennet
Customary
Law in South Africa
(2004) at 234 – 235. See also
C
Himonga and E Moore
Reform
of Customary Marriage, Divorce and Succession in South Africa
(2015) at 60 and 89 – 92.
[5]
Southon
v Moropane
[2012] ZAGPJHC 146 para 82. The Supreme Court of Appeal agreed with
the court a quo’s conclusion in
Moropane
v Southon
[2014] ZASCA 76.
See also
Tsambo
v Sengadi
[2020] ZASCA 46
para 13.
[6]
Mankayi
v Minister of Home Affairs and others
[2021] ZAKZPHC 43 para 28.
[7]
Mankayi
v Minister of Home Affairs and others
[2021] ZAKZPHC 43 para 28. See also C Himonga and E Moore
Reform
of Customary Marriage, Divorce and Succession in South Africa
(2015) at 92 – 93.
[8]
LS
v RL
[2018] ZAGPJHC 666;
2019 (4) SA 50
(GJ);
[2019] 1 All SA 569
(GJ)
para 20, also referred to as
Sengadi
v Tsambo: In re: Tsambo
.
[9]
LS
v RL
[2018] ZAGPJHC 666;
2019 (4) SA 50
(GJ);
[2019] 1 All SA 569
(GJ)
para 33.
[10]
LS
v RL
2019 (4) SA 50
(GJ) para 35.
[11]
Tsambo
v Sengadi
[2020] ZASCA 46
[12]
Mbungela
and another v Mkabi and others
[2019] ZASCA 134; 2020 (1) SA 41 (SCA); [2020] 1 All SA 42 (SCA).
[13]
TW
Bennet
Customary
Law in South Africa
(2004) at 216.
[14]
Plasco
–Evans Paints Ltd v van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634I-635A.
[15]
Wightman
t/a JW Construction v Headfour (Pty) Ltd and another
[2008] ZASCA 6
;
2008
(3) SA 371
(SCA) para 13.
[16]
JC
Bekker
Seymour’s
Customary Law in Southern Africa
5ed (1989) at 108: ‘the handing over need not be a formal
ceremony’.
[17]
C
Himonga and E Moore
Reform
of Customary Marriage, Divorce and Succession in South Africa
(2015) at 73.