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2024
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[2024] ZAFSHC 92
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B.C.G v S.J.M (3818/2022) [2024] ZAFSHC 92 (22 March 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to Magistrates:
YES/NO
Case no:
3818/2022
In
the matter between:
B[...]
C[...] G[...]
PLAINTIFF
and
S[...]
J[...] M[...]
DEFENDANT
CORAM:
MBHELE,
DJP
HEARD
ON:
14,
15, 17 AND 24 NOVEMBER 2023
DELIVERED
ON:
22 MARCH 2024
JUDGMENT
BY:
MBHELE, DJP
[1]
The plaintiff issued summons against the defendant
for divorce. Defendant denies that there was any marriage contract
entered into
between himself and the plaintiff. In his plea the
defendant denies that there was any customary marriage negotiated an
entered
into between himself and the plaintiff. Of importance is that
the existence of the customary marriage is denied on the basis that
there was no lobolo slip (contract) attached to the particulars of
claim.
[2]
I am called upon to adjudicate at this stage only whether the
plaintiff and the defendant
were married to each other in terms of
the customary law as it is alleged in the particulars of claim.
[3]
In addition to her testimony the plaintiff called 4 more witnesses in
support of her case.
B[…] G[…] G[…]’s
(plaintiff) evidence was to the following effect: She is Xhosa
by birth and got
married to the defendant through customary rites.
She comes from a family that is steeped in tradition which would have
prohibited
her from moving in to stay with the defendant without
following traditional and customary processes applicable to a
marriage.
She and the defendant met in 2004 and had a
relationship which lasted for a few months. They reconciled in 2005
and in 2007 she
fell pregnant. Her family reported her pregnancy to
the defendant’s family who confirmed that the child plaintiff
was carrying
is the defendant’s.
[4]
In 2009 plaintiff caught defendant cheating and when she confronted
him the defendant declared
his love and made a promise to marry her.
On 5 December 2009 emissaries from the defendant’s family
arrived at the plaintiff’s
home to negotiate lobolo. The
plaintiff’s family was represented by Plaintiff’s father,
her grandfather Mr. M[…]
and T[…] M[…] who is
plaintiff’s brother. Defendant ‘s family was represented
by F[…] M[…]
and A[…] M[…] who were both
in court during plaintiff’s testimony.
[5]
A[…] G[…], D[…] M[…], N[…] G[…]
and M[…] M[…]
were amongst the people who were in the
house during lobola negotiations. The lobola was charged at 10 cows
calculated at R1000.00
each. She was in a separate room but she could
hear the conversation that was happening in the next room because
their house had
no ceiling making it easy for sound to permeate the
whole house. The defendant’s family paid R4000 and promised to
come back
at a later stage to pay the remaining amount.
[6]
Her father gave a report to her mother in her presence of the lobola
negotiations and handed
over a written agreement to her mother for
safe keeping. The delegation from the defendant’s family came
back around January
2010 to pay another R4000.00. Around February
2010 the defendant’s family wrote a letter to her family asking
them to release
her to join the M[…]’s as their daughter
in law (makoti).
[7]
Around March 2010 she was accompanied to the M[…] family by
her aunt M[…] and her
cousin N[…] M[…]. On her
arrival at the defendant’s parental home she was taken to the
defendant’s grandmother’s
(grandmother) house where her
welcome ceremony was held. She drove from defendant’s parental
home in company of defendant’s
brother M[…] and his
sister D[…]. At the grandmother’s house she was made to
sit behind the door until a sheep
was slaughtered to welcome her into
the family.
[8]
They dressed her up in traditional outfit (Seshweshwe and a blanket),
gave her the name M[…]
with which everybody in the family
started calling her. She was then given a piece of meat from a
specific part of the slaughtered
sheep and told to eat it to initiate
her into complete womanhood. A[…] M[…]’s wife,
M[…], gave a welcome
speech and counseled her on how to
conduct herself as a makoti in the M[…] family in the presence
of the grandmother, defendant’s
mother and aunts. Defendant’s
parents, his aunts, uncles and cousins including his grandmother were
there when all these
rituals were performed. The celebrations and
festivities progressed until around 7 pm and people were dancing and
singing. Traditional
beer, sour milk and other food were served to
the attendees.
[9]
The family then released her and the defendant to go and stay
together at a house he was renting
in Botshabelo. She was given
strict instructions to wear the traditional outfit for six months.
[10]
She was not able to attach the Lobolo slips to the summons because
they were kept by her mother who has since
passed away. The lobolo
slips and all the correspondence between her family and the
defendant’s was kept by her deceased
mother and has since been
lost. She searched diligently in her parents’ house without
success. She stayed together with the
defendant for 10 years and
participated in all activities and rituals performed at the
defendant’s family. She was even asked
to give a welcoming
speech at the wedding of M[…] (defendant’s brother) and
his wife. He was asked by defendant’s
uncle G[…] P[…]
to give counsel to M[…]’s wife in her capacity as the
senior makoti. She at all
material times acted as the
defendant’s wife and even enlisted the defendant as a spouse in
her insurance policy.
[11]
They stayed together as husband and wife for 10 years until 2020 when
they went separate ways and have been
living apart ever since. During
the subsistence of their relationship defendant enlisted plaintiff’s
name as a contact person
to in correspondence with his lawyers for
his motor vehicle accident claim with the Road Accident Fund. There
was a time when they
both visited the Family Advocate’s office
for a dispute relating to access to their minor children. After a
consultation
with a Mr. Holele he gave them a list of possible
laywers to consult for the purpose of filing a divorce action.
[12]
In 2022 plaintiff heard from M[…]’s wife that defendant
was in a process of getting married
to someone else. Aggrieved by the
turn of events she went to her aunt in Botshabelo to share the news
and the latter wrote a letter
to the defendant’s family
requesting the meeting in which the issue of the relationship of
plaintiff (M[…]) and the
defendant would be discussed. A week
later on 26 March 2022 defendant got married to someone else without
informing her.
[13]
The next witness was T[…] G[…] M[…], Plaintiff’s
brother. He confirmed that
he was part of the G[…] delegation
during lobola negotiations of the plaintiff and the defendant. He,
further, confimed
the amount set as lobola price as well as the fact
that in March plaintiff was accompanied and handed over as a bride to
the defendant’s
family. The said contract was reduced to
writing by A[…] M[…]. Thereafter the emissaries from
the defendant’s
family took out two botlles of alcohol, Bells
and Black and White.
[14]
The next witness was M[…] M[…] M[…], plaintiff’s
aunt, who confirmed that she
was present at the plaintiff’s
parental home when the emissaries from the defendant’s family
arrived to negotiate lobolo
for the plaintiff and defendant on 05
December 2009 when they paid R4000 of the R10 000 charged for
lobolo. She remembers
that the M[…]s came back again in
January 2010 to pay another amount. Sometime in 2022 Plaintiff
approached her in Botshabelo
to inform her that she came across a
wedding invitation of defendant and another woman. She immediately
wrote a letter to the M[…]s
inviting them to a meeting
enquiring about the situation between plaintiff and defendant in the
face of the imminent wedding of
defendant and another woman. She
knows that the M[…]s received the letter because she got a
report from the plaintiff that
the letter was delivered and further
that her sister, D[…], informed her that she received an
unpleasant call from defendant
remarking about the letter. She
received no response thereto as the writer. She later learned that
the wedding went ahead
the following week.
[15]
The next witness was D[…] M[…] K[…] M[…],
plaintiff’s aunt. She was informed
that the M[…]s would
be coming to negotiate lobolo for the plaintiff on 5 December 2009.
She could not attend the event
because she was at work. She was there
on 19 January 2020 when they came for the second time and paid R4000.
She was also there
when the plaintiff was handed over to the M[…]s.
She helped to prepare plaintiff for handing over and dressed her in
traditional
attire before her departure. She was accompanied by her
parternal aunt M[…] and her cousin N[…] (N[…]).
Because
the G[…] and M[…]s’ homes are adjacent
each other she watched from her sister’s house when the
plaintiff
arrived at the M[…]s being welcomed by defendant’s
mother at the gate. After D[…] wrote the letter to the M[…]s
requesting a meeting she received a call from the defendant who was
very rude and told her they were busy and that there would
be no
meeting between the two families.
[16]
The last witness for the plaintiff was N[…] N[…]
M[…] (nee G[…]). She is plaintiff’s
cousin.
She was part of a delegation that accompanied plaintiff to the M[…]
family for hand over. It happened in March 2010.
She was with her
mother, M[…], who has since passed on. On their arrival at the
M[…]s they were welcomed by the defendant’s
mother who
took them into some room and changed the plaintiff into a new set of
traditional outfit. She reiterated that the plaintiff
and defendant
are married through customary rites.
[17]
Defendant denies ever sending emissaries to the plaintiff’s
family to negotiate lobolo on his behalf.
He admits that he stayed
together with the plaintiff for 10 years although there were times in
which he moved out to stay with
other women. When asked how the
plaintiff acquired the name M[…] he was at pains to explain
that it flows from a pet name
he gave her, Afoso. The elders in
the family started calling her M[…] in tune with the nickname.
He later on denied
that there were people in his family who called
plaintiff M[…]. When asked why the plaintiff was asked to give
counsel to
his brother’s wife at his brother’s
traditional wedding he denied that she executed that assignment in
her capacity
as his wife. He then said actually plaintiff was never
asked to counsel his brother’s wife, it was him that was asked
to
speak and he waived that right in favour of plaintiff because he
is a shy person. In essence he denied everything that
the
plaintiff said in her testimony about their traditional wedding for
the first time when he took a witness stand. He added,
further, that
the plaintiff filed for divorce for a non-existing marriage because
she is after the money he received as compensation
from the Road
Accident Fund.
[18]
The next witness was A[…] M[…], defendant’s
cousin. His testimony was shortly to the
effect that he was never a
part of any delegation that went to the plaintiff’s family to
negotiate lobolo. He in short says
he does not know where the
plaintiff’s home is nor does he know any of the plaintiff’s
witnesses that pointed him in
court. He saw the plaintiff for the
first time after 2020 when he met the defendant and he pointed at
plaintiff who was a distance
away and said that was the mother of his
children.
[19]
I am faced with two diametrically opposed versions as to whether
there was any
lobolo
negotiations or not.
It is well established that when faced with two diametrically opposed
versions, the Court has to resolve the factual disputes by
making
findings on the credibility of the various factual witnesses, their
reliability and probabilities. In
National
Employers' General Insurance v Jagers
[1]
the following was said:
"It
seems to me, with respect, that in any civil case, as in any criminal
case, the onus can ordinarily only be discharged
by adducing credible
evidence to support the case of the party on whom the onus rests. In
a civil case the onus is obviously not
as heavy as it is in criminal
cases, but nevertheless where the onus rests on the Plaintiff as in
the present case, and where there
are two mutually destructive
stories, he can only succeed if he satisfies the Court on a
preponderance of probabilities that his
version is true and accurate
and therefore acceptable, and that the other version advanced by the
Defendant is therefore false
or mistaken and falls to be rejected. In
deciding whether that evidence is true or not the Court will weigh up
and test the Plaintiff's
allegations against the general
probabilities. The estimate of the credibility of a witness will
therefore be inextricably bound
up with a consideration of the
probabilities of the case and, if the balance of probabilities
favours the Plaintiff, then the Court
will accept his version as
being probably true. If, however the probabilities are evenly
balanced in the sense that they do not
favour the Plaintiff's case
any more than they do the Defendant’s, the Plaintiff can only
succeed if the Court nevertheless
believes him and is satisfied that
his evidence is true and that the Defendant's version is false.
This
view seems to me to be in general accordance with the views expressed
by Coetzee J in Koster KO-operatiewe Landboumaatskappy
Bpk v
Suid-Afrikaanse Spoorwee en Hawens (supra) and African Eagle
Assurance Co Ltd v Cainer (
Supra
). I would merely stress
however that when in such circumstances one talks about a Plaintiff
having discharged the onus which rested
upon him on a balance of
probabilities that means that he was telling the truth and that his
version was therefore acceptable.
It does not seem to me to be
desirable for a Court first to consider the question of the
credibility of the witnesses as the trial
Judge did in the present
case, and then having concluded that enquiry, to consider the
probabilities of the case, as though the
two aspects constitutes
separate fields of enquiry. In fact, as I have pointed out, it is
only where a consideration of the probabilities
fails to indicate
where the truth probably lies, that recourse is had, to an estimate
of relative credibility apart from the probabilities."
See
also
Stellenbosch
Farmers' Winery Group Ltd and Another v Martell ET CIE and Others
.
[2]
[20]
We heard for the first time during defendant’s case that there
was never a handover ceremony held to
welcome plaintiff as a bride
and that A[…] M[…] saw plaintiff once in his lifetime
when defendant pointed her at
a distance telling him she was his
children’s mother. He did not deny that he and his wife M[…]
were at the plaintiff’s
welcome ceremony and that his wife gave
word of counsel to plaintiff on how to conduct herself as a
makoti
in the M[…] family. The essential parts of plaintiff’s
testimony and that of her witnesses were not challenged under
cross
examination.
[21]
In
President of the Republic of South Africa v SARFU 2000 (1
)
SA 1 (CC)
the
Constitutional Court held as follows at paras [61] to
[63]:
“
[61] As a general
rule it is essential, when it is intended to suggest that a witness
is not speaking the truth on a particular
point, to direct the
witness’s attention to the fact by questions put in
cross-examination, showing that the imputation is
intended to be made
and to afford the witness an opportunity, whilst still in the
witness-box of giving any explanation open to
the witness and of
defending his or her character. If a point in dispute is left
unchallenged in cross-examination, the party calling
the witness is
entitled to assume that the unchallenged witness’s evidence is
accepted as correct. This rule was enunciated
by the House of Lords
in Browne v Dunn and has been adopted and consistently followed by
our courts.
[62] The rule in Browne v
Dunn is not merely one of professional practice but “is
essential to fair play and fair dealing
with witnesses”. It is
still current in England and has been adopted and followed in
substantially the same form in the Commonwealth
jurisdictions.
[63] The precise nature
of the imputation should be made clear to the witness so that it can
be met and destroyed, particularly
where the imputation relies upon
inferences to be drawn from other evidence in the proceedings. It
should be made clear not only
that the evidence is to be challenged
but also how it is to be challenged. This is so because the witness
must be given an opportunity
to deny the challenge, to call
corroborative evidence, to qualify the evidence given by the witness
or others and to explain contradictions
on which reliance is to be
placed.”
[22]
Cross examination is an essential process of any trial. It is an
important ingredient in the process of ensuring
a right to a fair
trial for all parties involved. It affords the opposing party an
opportunity to test the evidence of a witness
and for such witness to
explain and defend their testimony while in the witness box. Failure
to challenge disputed evidence during
cross examination is a risky
exercise because it leaves the court with an uncontroverted version
which is difficult to reject.
[23]
I have to consider credibility of witnesses, their reliability and
weigh the probabilities to determine which
version is more probable.
I must also consider whether the incidents testified about are
logically possible, true and what the
witnesses personally
experienced. P
laintiff’s
account of events stood unchallenged.
The
evidence tendered on behalf of the plaintiff was straightforward and
supported by external material like photos of events where
she played
a role as defendant’s wife. Plaintiff, her aunts, brother and
cousin delivered their evidence in a satisfactory
manner and gave a
clear account of what happened from the time plaintiff fell pregnant
until she was officially handed over to
M[…] family.
[24]
Defendant’s testimony was a bare denial. The evidence presented
by plaintiff and her witnesses called
for explanation which was not
proffered by defendant and his witness. His evidence was
characterised with a huge number of inconsistent
unsubstantiated
explanations on pertinent issues. Defendant and his witness had
a dismissive attitude and seemed inconvenience
about being in court.
The defendant was argumentative, evasive and his explanations were
made up to suit as and when he was confronted.
His witness was
obstructive, rude and tried everything to conceal information from
the court. Their account of events was
untrue and cannot be relied
upon.
[25]
In terms of
section 3
of the
Recognition
of Customary Marriages Act 120 of 1998
,
a
customary marriage entered into after the commencement of the Act
will be valid if:
(i)
the
prospective spouses are both above the age of 18 years;
(ii)
both consent
to be married to each other under customary law; and
(iii)
the marriage
must be negotiated and entered into or celebrated in accordance with
customary law.
[26]
The Supreme Court of Appeal dealt with the essential requirements of
a valid customary marriage in the matter
of
Moropane v Southon
(755/12)
[2014] ZASCA 76
(29 May 2014)
wherein Bosielo JA said
the following:
"[39]
Except for minor and inconsequential differences on cultural rituals,
both experts were agreed that the current customary
requirements for
a valid customary marriage among the Bapedi people include amongst
others, negotiations between the families in
respect of lobola; a
token for opening the negotiations (go kokota or pula molomo);
followed by asking for the bride (go kopa sego
sa metsi); an
agreement on the number of beast payable as lobola (in modem times
this is replaced by money); payment of the agreed
lobola; the
exchange of gifts between the families; the slaughtering of beasts; a
feast and counselling (go laiwa) of the makoti
followed by the formal
handing over of the makoti to her in-laws by her elders.
[40]
Importantly, the two experts agreed that the handing over of the
makoti to her in-laws is the most crucial part of a customary
marriage. This is so as it is through this symbolic customary
practice that the makoti is finally welcomed and integrated into
the
groom's family which henceforth becomes her new family. See Motsotsoa
v Rora & Another and The Current Legal Status of
Customary
Marriages in South Africa, IP Maithufi and GBM Moloi, Journal of SA
Law, 2002, p 599 and Bennett (above) at p217."
[27]]
The uncontested evidence of the plaintiff and her witnesses show that
there were lobolo negotiations in which
a bride price was agreed
upon. Negotiations were followed by celebrations at defendant’s
grandmother’s house where
plaintiff (bride) was handed over to
his family. During the handing over ceremony a sheep was slaughtered
and both plaintiff and
defendant were given a particular part from
the slaughtered sheep as recognition that they are husband and wife
and to seal their
union. At the defendant’s grandmother’s
house, plaintiff was adorned in traditional clothing and given the
name M[…]
which symbolised the beginning of married life for
her. According to her and her witnesses a new name was
given to
her as a bride to signify that she is defendant’s wife
and no longer single. She would be called with her new
name by her in-laws and everybody who knew that she was married to
defendant.
[28]
At the centre of the defendant’s case was initially that there
was no lobolo slip attached to plaintiff’s
summons to show that
there was indeed lobolo negotiations held. A written lobolo contract
is not a sine qua non to a valid customary
marriage. Besides,
plaintiff gave a clear account of why the contract cannot be traced
despite diligent search. With defendant
failing to challenge
plaintiff’s testimony or confronting her and her witnesses with
a version contrary to theirs I find
no reason to reject the
plaintiff’s version. Defendant was not even able to explain why
plaintiff acquired a new name, M[…].
I am satisfied that the
essential requirements of a valid customary marriage were satisfied
and that plaintiff and defendant are
indeed married in terms of
customary rites with all obligations that fall from such marriage. I
see no reason why costs should
not follow the event.
[29]
I accordingly make the following order:
Order
1.
Defendant’s special plea is dismissed with costs.
N.M. MBHELE, DJP
Appearances:
For
the Plaintiff
Adv.
HJ VAN DER MERWE
McINTYRE
VAN DER POST
Bloemfontein
For
the Defendant:
Mr.
H RAPAPALI
HOLOMO
RAPAPALI ATTORNEYS
Bloemfontein
[1]
1984
(4) SA 437
(ECO) at 440D - 441A.
[2]
Stellenbosch
Farmers’Winery Group Ltd and Another v Martell ET CIE and
Others 2003 (
1) SA 11
(SCA) par. 5