IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
Reportable
Case no: 1808/2023
In the matter between:
ZIFIKILE KUNENE APPLICANT
and
MONALISA BANGAZA FIRST
RESPONDENT
AVBOB FUNERAL SERVICES – MTHATHA SECOND RESPONDENT
ANY MEMBER OF THE SOUTH AFRICAN
POLICE SERVICES THIRD RESPONDENT
Date heard: 8 March 2024
Date delivered: 9 April 2024
JUDGMENT
Notyesi AJ
Introduction
[1] On 4 July 2023, this Court dismissed an application launched by the applicant
against the first respondent , in terms wherein she was challenging the validity of a
customary marriage entered into between her late father and the first respondent. In
that application, the applicant was contending that the marriage between her father
and the first respondent was not compliant with the provisions of section 3(1)(b) of
the Customary Marriages Act, 120 of 1988 (“the Act”). Upon analysis of the evidence
2
and the documents filed, this Court became satisfied that the provisions of section
3(1)(b) were complied with and that the customary marriage was valid.
[2] Unhappy with the findings of the Court, the applicant has launched an
application for leave to appeal the dismissal of the main application. The application
is founded on numerous grounds. Although the application for leave to appeal was
initially set down for hearing on 9 February 2024, it turned out that the notice of
application for leave to appeal was defective and that the applicant needed to file
condonation for the late launch of the application for leave to appeal. This Court
heard the leave to appeal on 8 March 2024 after granting the condonation
application. I have considered all the grounds set out by the applicant in the
application for leave to appeal.
Legal framework
[3] Section 17(1) of the Superior Courts Act 10 of 20131 provides as follows:
‘(1) Leave to appeal may only be given where the judge or judges concerned are of
the opinion that:
(i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration.
(b) the decision sought on appeal does not fall within the ambit of section 16(2)(a);
and
(c) where the decision sought to be appealed does not dispose of all the issues in the
case, the appeal would lead to a just and prompt resolution of the real issues
between the parties.’
[4] Previously, the test applied in an application for leave was whether there were
reasonable prospects that another court may come to a different conclusion. 2 It is
now only granted if a court would come to a different conclusion. This is gleaned
from section 17(1) itself. In The Mont Chevaux Trust v Tina Goosen and 18 Others 3
Bertelsmann J held as follows:
‘It is clear that the threshold for granting leave to appeal a judgment of a High Court
has been raised in the new Act, the former test whether leave to appeal should be
granted was a reasonable prospect that another court might come to a different
1 Superior Courts Act 10 of 2013
2 Commissioner of Inland Revenue v Tuck 1989 (4) 888 (T) at 890B
3 The Mont Chevaux Trust v Tina Goosen and 18 Others [2014] JDR 2325 (LCC) at para 6
3
conclusion, see Van Heerden v Crownwright & Others . 1985 (2) SA 342 (T) at 342H
The use of the word “would” in the new statute indicates a measure of certainty that
another court will differ from the court whose judgment is sought to be appealed
against.’
[5] In Smith v The State Plasket AJA (as he then was) held that the test is now
more stringent. He held as follows:
‘what the test of reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law, that a court of appeal could reasonably
arrive at a conclusion different to that of the trial court. In order to succeed, the
appellant must convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not remote but have a realistic
chance of succeeding. More is required to be established than that there is a mere
possibility of success, that the case is arguable on appeal or that the case cannot be
categorised as hopeless. There must, in other words, be a sound, rational basis for
the conclusion that there are prospects of success of appeal.’
[6] It follows that an applicant now faces a higher and more stringent threshold, in
terms of the Superior Courts Act compared to the provisions of the repealed Superior
Court Act 59 of 1959.
[7] Mr Mapoma, counsel for the applicant, had submitted that there are prospects
of success, alternatively, that there are conflicting judgments regarding the
requirements for a valid customary marriage under section 3(1)(b). He contended
that the appeal should be granted in order to settle the law regarding the form of
handover and celebration of a customary marriage. I disagree. In Mbungela &
Another v Mkabi & Others4, Deputy Chief Justice Maya held –
‘[C]ustomary law is defined in s 1 of the Act as “customs and usages traditionally
observed among the indigenous African peoples of South Africa and which form part
of the culture of those peoples”. But s 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 changing needs of the people
who live by its norms. The system, therefore, requires its content to be determined
4 Mbungela & Another v Mkabi & Others [2019] ZASCA 134; 2020 (1) SA 41 (SCA); [2020] 1 All SA 42
(SCA) at para 17
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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 ambiguities in their local practice because of the pluralistic nature of
African society. Thus the legislature left it open for the various communities to give
content to s 3(1)(b) in accordance with their lived experiences.’
[8] On the basis of the above, it is inconceivable that the Courts would define with
precision the form of handing over of a bride and the celebration of a customary
marriage. In the judgment, this Court had found that both the deceased and the first
respondent were above the age of 18 years and that they agreed to marry in terms
of customary law. In other words, the deceased and the first respondent consented
to their customary marriage. This Court also found that the deceased had asked for
his family members to be his emissaries and that if they refused, he would ask Dr
Nuku and Mr Bovungana to meet with Amajwara family as his emissaries.
[9] It is common cause that, indeed, when the members of the deceased’s family
refused to be emissaries, Dr Nuku and Mr Bovungana were appointed by the
deceased as his emissaries. The lobola was negotiated betw een the two families
and it was agreed to. A whopping amount of R35 000 in total was paid as lobola by
the deceased, represented by the emissaries, Dr Nuku and Mr Bovungana. The first
respondent was then permitted to go ahead with the marriage to the deceased. In
other words, the undisputed evidence is that the two families agreed about the
customary marriage of the deceased and the first respondent. There are minutes
which evidence the lobola negotiations and the agreements that were reached by the
two families.
[10] The contention that Dr Nuku and Mr Bovungana are not the family members
of the deceased’s family, has been rejected by this Court. The deceased had made it
known that if none of his direct family are available to be his emissaries, then he
would send Dr Nuku and Mr Bovungana as the emissaries. That evidence is
undisputed. More significantly, the objective evidence submitted by the first
respondent in her papers, shows that the family had accepted her as the customary
wife of the deceased. There is a memoria l service programme which states that the
deceased has left behind his wife, Qhayiyalethu, and children. Regarding the
performance of utsiki, all witnesses of the applicant have testified that on 26
November 2022, there was a ceremony at the homestead of the deceased. During
5
that ceremony, the deceased informed all his family members that he was
performing utsiki ritual for his wife, the first respondent.
[11] In my view, the performance of utsiki ritual was not even a requirement for the
validity of the customary marriage. In this case, the performance of the celebration
on 26 November 2022, with utterances of the deceased that he was celebrating the
customary marriage of the deceased, was a further indication of compliance with
S3(1)(b) of the Act.
[12] The criticism in the notice of appeal that this Court has concluded that all
witnesses agreed that on 26 November 2022, there was an utsiki ceremony at the
deceased’s family, where the first respondent was introduced as the wife of the
deceased and given the name of Qhayiyalethu is unfounded. In all confirmatory
affidavits attached to the applicant’s founding affidavit, it is acknowledged that on 26
November 2022, there was a ceremony at the deceased’s home. The first
respondent was introduced as a wife by the deceased is common cause. What I
understand to be the dispute by the applicant’s witnesses, is whether the deceased
was of sound mind when he performed the ritual and paid the lobola for the first
respondent. There was no evidence filed to suggest that the deceased was of
unsound mind. In my view, such medical evidence would have been at odds with the
common cause evidence that the deceased informed his relatives that he wants to
pay lobola for the first respondent and that if they do not avail themselves, he would
appoint Dr Nuku and Mr Bovungana to be his emissaries. In addition to that, the fact
that the date of 26 November 2022 was set by the deceased, and that he announced
to his family members that he is performing utsiki for his new wife, the first
respondent, should put beyond doubt that the deceased knew what he was doing. It
should be borne in mind that the deceased and the first respondent had a
relationship long before the lobola negotiations and performance of the utsiki ritual.
[13] For all the above reasons and given the overwhelming evidence before court,
the proposed leave to appeal has no reasonable prospects of success. I also found
no compelling reasons why the appeal should be heard. The Supreme Court of
Appeal has confirmed, in various court decisions, that Customary Law is a living law
of the people. In Mbungela and Another v Mkabi and Others5 it was held –
5 Mbungela & Another v Mkabi & Others supra
6
‘The importance of the observance of traditional customs and usages that constitute
and define the provenance of African culture cannot be understated. Neither can the
value of the custom of bridal transfer be denied. But it must be also 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, in circumstances such as the present, could yield
untenable results.’
[14] In Tsambo v Sengadi6, it was held –
‘It is evident from the foregoing passage that strict compliance with rituals has, in the
past, been waived. The authorities cited by the respondent, mentioned earlier in the
judgment, also attest to that. Clearly, customs have never been static. They develop
and change along with the society in which they are practised. Given the obligation
imposed on the courts to give effect to the principle of living customary law, i t 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.’
[15] The application for leave to appeal must fail.
Costs
[16] In the main application, the court exercised its discretion and decided that
each party should pay its own costs. This had involved a consideration that the
applicant is the daughter of the deceased who had relied on advices of other family
members as she was not present when the marriage was concluded. During the
hearing of the leave to appeal, Mr Sintwa, counsel for the first respondent,
persuaded me that costs should follow the results. Mr Mapoma, counsel for the
applicant, did not contend otherwise. I agree that this is a case where the general
rule on costs should be followed. There was an application for condonation which I
had granted. In a condonation application, the applicant is seeking indulgence of the
court and is liable for costs. For all the reasons, the costs shall be awarded in favour
of the first respondent.
Conclusion
[17] For all the reasons stated above, the leave to appeal has no prospects of
success and there are no compelling reasons for the grant of the leave to appeal. In
6 Tsambo v Sengadi [2020] ZASCA 46 para 18
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the circumstances, the leave to appeal must fail and the applicant should bear the
costs of the application for leave to appeal and condonation application.
Order
[18] In the result, the following order is made –
(1) Condonation application is granted.
(2) The applicant shall pay costs for condonation.
(3) The application for leave to appeal is dismissed with costs.
M NOTYESI
ACTING JUDGE OF THE HIGH COURT, EASTERN CAPE DIVISION
Counsel for the Applicant : Adv Mapoma SC
Instructed by : Mdledle Malefane & Associates
Mthatha
Counsel for the First Respondent : Adv Sintwa
Instructed by : T Qina & Sons Attorneys
Mthatha