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2023
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[2023] ZAECMHC 42
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Qongqo v Nonjuzana and Another (4693/2021) [2023] ZAECMHC 42 (15 August 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN CAPE
DIVISION, MTHATHA]
CASE NO.: 4693/2021
In
the matter between:
TOMAKAZI
QONGQO
APPLICANT
and
LUMKA
NONJUZANA
1
ST
RESPONDENT
MZWANELE
NONJUZANA
2
ND
RESPONDENT
JUDGMENT
NORMAN J:
Introduction
[1]
It is becoming a regular occurrence that when a head of the household
dies, family members fight
amongst themselves. One of the parties
would resort to court for resolution of the disputes. In certain
instances the rifts are
caused by the fact that when the head of the
family passes on, leaving his wife and children, family members take
it upon themselves
to, in total disregard of the rights of the wife
and children, allocate to themselves certain rights over the
deceased’s
assets. That conduct is unfortunate and does
not afford families sufficient time to grieve the loss of their loved
one, instead
they find themselves moving in and out of court rooms.
Relevant facts
[2]
The parties were referred to trial by way of an order issued by
Griffiths J on 2 June 2022 which
reads as follows:
“
IT
IS ORDERED THAT:
1.
The matter be referred to oral
evidence.
2.
The issue on which such viva voce
evidence shall be led the existence of the customary marriage.”
[3]
The court also made the usual orders relating to conduct of trial
proceedings, namely, calling
of witnesses, discovery of documents and
rule 37 conference. The court further ordered
that
incidence
of costs incurred up to the date of that order shall
be costs in the cause.
[4]
The applicant is Tomakazi Qongqo (Tomakazi) who alleged that she was
married to Mr Xolile Nonjuzana
(Xolile) by customary rights. Xolile
had a twin brother Xolani who is also deceased. Xolile passed away on
17 October 2021.The
first and second respondents are the siblings of
Xolile. They are disputing the fact that the applicant was married to
Xolile.
[5]
After the death of the deceased the applicant approached court,
seeking urgent relief, amongst others,
an order that the respondents
vacate the deceased’s homestead at New Highbury , Mthatha .She
also sought orders,
inter alia
, interdicting the
respondents from intentionally excluding her from making funeral
arrangements for the deceased; denying
her access to the homestead at
New Highbury, interdicting them from selling livestock of the
deceased ; ordering them to return
the livestock they had removed
from the deceased’s homestead and directing them to return the
identity document and death
certificate of the deceased to the
applicant.
[6]
On 26 October 2021, Jolwana J, granted interim relief. The
respondents were served with
the court order. They opposed the
application. They joined issue with the applicant’s
allegations that she was married
to the deceased. That is what led to
the referral of that issue to trial as indicated, above.
[7]
Mr Madubela represented the applicant and Mr Mqokozo represented the
respondents. I shall refer
to the parties as they appear in the
application proceedings.
The issues
[8]
The substantive issue for determination is whether or not there was a
customary marriage between
the deceased, Xolile and the applicant,
Tomakazi. Another issue is whether the rule nisi issued should
be confirmed or discharged.
The issue of who is to bear costs of the
application and the trial will also be decided herein.
Applicant’s case
Mr Dingiso Ntsokolo
[9]
The first witness called by the applicant was Mr Dingiso Ntsokolo. He
testified that: He is the father
of Xolile and the respondents
herein. He knows the applicant as his daughter -in- law. He was
informed by Xolile that he had seen
a lady from the Xaba family that
he intended to wed. That was, according to him, during 2007. He could
not recall clearly the dates.
After that Xolile sent him together
with his family members to visit the home of the applicant at
eNgqeleni.
[10]
They indeed visited the home of the applicant where traditional talks
were held relating to, for instance,
imvula
mlomo
[1]
.
They were informed that their
imvula
mlomo
is a cow. They were given a piece of paper where items that were
required by the Xaba family were recorded. Those were,
inter
alia
,
ikhazi
[2]
and
umothuko
or umnyobo
,
ten sheep, ten goats, one horse and a saddle.
[11]
They left an amount of R1000 in the place of a cow as
imvula
mlomo
. After receiving a list of those items they went home. They
advised the Xaba family of a date when they would return to their
home
to pay lobola for the applicant as they had discussed. There was
an amount R25 000 that was taken to the applicant’s
home
which represented six cows, a horse and a saddle and ten sheep. He
did not form part of the delegation that went back to the
applicant’s
home. His late brother, Mfundelwa, was part of the delegation. He
reported back to him that they were well
received and accepted by the
Xaba family.
[12]
When they went to negotiate
lobola
,
the applicant was at her marital home in Port St. Johns where her
husband and her father in-law resided.
He
testified about the tradition of welcoming
umakoti
[3]
, that
a
goat would be slaughtered for her, she would be dressed in clothes
that showed that she was a wife. She would be given advice
by
elderly women on, amongst others, how to behave as a married woman.
He regarde
d
this process as isiXhosa wedding and it is known as
utsiki
[4]
.
His
brother-in law Dzodzwana Nonjuzana was leading the process of
utsiki.
He
indicated that he could not recall the applicant’s name that
she was given by the elderly women during the
utsiki
process
because he himself called her
MaXaba.
[13]
During 2009 when he retired from work in Johannesburg, the deceased
called him and asked him to go to Mthatha
because he had a place that
he wanted to show him in New Highbury. He took a taxi from home
and they met at the taxi rank.
The deceased was in the company of the
applicant. They all went to look at the place at New Highbury. He was
also shown the sheep’
kraal by Xolile.
[14] After
the death of the deceased he found MaXaba at her place, in New
Highbury, when he arrived. According
to him the applicant and
Xolile were still married. He received a call from the first
respondent, whose nickname is Nomalongwe
who informed him that Xolile
had passed away. He confirmed that during the burial of Xolile, the
applicant was present. He also
confirmed that the respondents did not
attend the funeral. He was saddened by the fact that they did not
attend their brother’s
funeral. His son never informed him that
they were having marital problems with the applicant.
[15]
Under cross - examination it transpired that this witness had two
wives. The first wife was Ms MamThafa Dingiso
who is now deceased. He
regarded the mother of Xolile and the respondents as his wife. He
stated that he fell in love with
Ms Ceziwe Nonjuzana when she was
still young. They were blessed with six children. He testified that
in isiXhosa
ndandizekiwe
nguye
[5]
.
He
was residing with both women in the two separate homesteads. He was
maintaining both families financially. He was in good terms
with all
his children. Before his retirement he was working in Welkom.
Initially he used to go home at the end of the year but
then things
changed and he was able to visit home whenever he got leave from
work. He would stay for a month or three weeks at
a time.
[16] He
was born of the Amacothe clan and Amaqhwane was the clan name of
Xolile’s mother. He did not dispute
the fact that because the
deceased was born out of wedlock he was regarded as part of the
Amaqhwane clan. He confirmed that Xolile’s
uncle was one of the
people who were present during
lobola
negotiations. He
confirmed that Xolile’s mother was present when
utsiki
was
done.
[17] He
stayed in the house of the deceased in New Highbury for about two
weeks when it was still under construction.
He was staying
there with the applicant and their young child at the time. He was
attending training in Mthatha and Xolile
left him with his wife and
child. He testified that during that time and in particular in 2011
the second respondent was staying
at uTsolo . He had been to the
second respondent’s home in 2011 when he visited a healer. He
did not know the ages of his
children. He recalled that when the
second respondent was born there was draught and they had built
another rondavel at his mother’s
home.He stated that during
their time there were no celebrations or recognition of birthdays.
[18] He
was asked about the deceased’s house that is at Waterfall. He
stated that he knew of the house where
his son
was staying and that was beyond the Mthatha river. However, at
the time when he went there he was sick. He did not know who owned
the house. He disputed the version of the respondents that the
applicant was not married to the deceased. He also disputed the
version of the respondents that there was no ceremony performed to
welcome the applicant to the family home. He disputed
that
there was no father and son relationship between him and the
deceased. He stated that he and his twin sons Xolile and Xolani
were
doing things together.
[19] He
was accused of not having been present during the upbringing of his
children. It was suggested that he
was a stranger to his children. He
disputed that. It was also put to him that when he came back from
work he would simply go back
to the respondent’s home only to
visit their mother and not the children. He disputed that he
was not involved in their
schooling. He testified that he knew about
the respondents going to stay with the deceased at some point as they
were attending
school because the deceased informed him about that.
He was adamant that the respondents only went to New Highbury for the
purposes
of schooling and not as a permanent move from Port St.
Johns. It was put to him that the respondents left Port St. Johns
because
they were being ill-treated by their uncle. His response was
that their uncle was simply instilling discipline and did not like
girl - children to wander around.
[20] He
confirmed that there was some quarrel between his children and their
uncle. He indicated that his
attitude was that his children
must remain at their home and their uncle should stay at his home. It
was put to him that the first
respondent’s version was that,
she, together with the deceased, acquired the property at New
Highbury with the view to establish
their own home. He disputed that
version and stated that the deceased had a wife and children. He
disputed that they had to establish
a home in New Highbury because
their uncle had his own house which was far from them and their
mother had her own homestead which
was built by him together with
their mother. He disputed the version put to him that the applicant
never stayed at New Highbury.
It was put to him that the applicant
only visited the house of their brother during month end only. He
disputed that and stated
that he had been there during the week and
not on weekends and had found the applicant there.
[21] It
was put to him that the applicant and the deceased’s
relationship ended when the second child was
born. He indicated that
he was never informed of that. It was put to him that the reason for
the breakdown of their relationship
was because the deceased was
disputing the paternity of the second child. This witness stated that
the deceased never told him
that instead he brought the child to
their home. He was sitting next to the kraal when the deceased
brought the child to
his home, the great house. His view was that his
daughter-in-law should stay in her house together with her children.
[22] He
testified that after the death of Xolile, the first respondent, did
not want him to be buried. She insisted
that the deceased’s
body should be wrapped with a blanket and be put in the grave. He
refused. He buried the deceased next
to his twin brother, Xolani. He
went to the Great Place where he gave the applicant, the deceased’s
identity book and the
stock card for sheep. At the time the
deceased had sixty sheep. He took three sheep and slaughtered
them for the burial.
He left fifty-seven sheep at New Highbury.
[23] It
was put to him that all the sheep that belonged to Xolile were
stolen. His response was that no one told
him about that. It was also
put to him that after the sheep were stolen they were recovered and
the second respondent took all
of them to Tsolo. His response was
that he wanted nothing from the second respondent but all he wanted
was that the applicant should
return to her house with her children.
[24] In
re-examination he stated that there was never a quarrel between him
and the respondents in relation to
the sheep or the ownership
thereof. He last visited New Highbury when he was taking the
deceased’s body for burial.
Mr Bongani Mdwayimba
[25]
The next witness was Mr Bongani Mdwayimba. He lives in Port St. Johns
at Ndimakude Location. He is an uncle
to Xolile and the respondents
because their mother is his sister. He testified that during 2008 he
was called by the mother of
the deceased and informed him that the
deceased had brought a lady home. He was tasked with the obligation
to inform her family
that they should not look for her as she was at
the Maqhwane’s homestead. He confirmed that
umendlaliso
[6]
,
was performed for the applicant. He testified that a goat was
slaughtered, bile from the goat was smeared on the applicant.
She
was fed meat from
isiphanga
.
The women dressed her in german prints,
isikhafu,
ityali
and a doek on her head. After that she was welcomed and given a name.
She was also given words of wisdom by the elderly women on
how to
conduct herself as a wife.
[26] He
was staying with the deceased’s mother at their home. He
confirmed that during
umendlaliso
the father of the deceased
was not present. He mentioned that his wife, Nowongile was present.
He confirmed that Mantusi or Lelethu,
the wife of the other twin,
Xolani, was also present. She is one of the people who played a role
in dressing up the applicant.
He recalled that the name that the
applicant was given was Nolusizo. He was informed later on that
lobola
had been paid. That was in 2008. According to him there
was never a stage where the marriage was dissolved. He never received
complaints
that the applicant was not doing what she was supposed to
do as
umakoti
at that homestead.
[27]
He submitted that if
lobola
had
not been paid the family of the bride would have come to fetch her in
terms of the
ukuthelekwa
[7]
custom and that did not happen in this case. He stated that he
is the one who attended to
umendlaliso
but thereafter he left for Johannesburg. His elder brother Silwangani
Kutselo, Dodolo Mjikeni and Zwelihlangene Jomose are all
deceased but
they attended the
lobola
negotiations.
It was put to him that the respondents would say that no such ritual
took place, his response was that they were children
at the time they
may not recall what happened. He denied that he and his sister were
not on good terms.
[28] It
was also put to him that he was ill-treating the respondents and
their mother and as a result they sought
and were granted a
protection order against him. He denied that. He stated that the
respondents accused his wife of witchcraft.
He tried to mediate and
called the respondents so as to resolve the issues but without
success. He confirmed that the father of
the deceased had contributed
towards the
lobola
that was paid. He also corroborated his
evidence that he was amongst the people that had attended the
applicant’s home for
negotiations although he could not recall
whether he went on the first or the second occasion. He confirmed
that the applicant
did attend ceremonies when at her marital home. He
could not resolve the issue before this court because of the attitude
of the
respondents. He confirmed that he is commonly known as
Dzodzwana.
Ms Nomalinge Sigijimi
[29]
The next witness was Ms Nomalinge Sigijimi. She is the wife of the
deceased’s twin brother, Xolani.
She resides at Elliotdale at
Emandwaleni. In 2008 she was staying in Port St. Johns. She confirmed
that in 2008 the applicant was
a
makoti
for the Nonjuzana
family. At the time this witness was already married to Xolani, and
the applicant was going to marry Xolile. She
confirmed that a goat
was slaughtered for her then she was dressed like a
makoti
with
iqhiya,
german print and
ixakatho.
She was then
given
isiphanga
to eat, which was cooked and eaten salt free.
She was given a name, Nolusizo, by Nondi’s mother. She
described Nondi as one
of the children of uncle, Mdwayimba. This
witness was the one who was feeding applicant meat with a wooden
stick.
[30] It
was their mother-in-law who suggested that this witness should feed
the applicant as she was marrying
the twin to her husband. She
testified that applicant was doing all the duties of a married woman.
During their mother-in-law’s
funeral applicant arrived wearing
a t-shirt with short sleeves. The first respondent gave her a
long-sleeved t-shirt and
she took the applicant’s t-shirt and
wore it. The reason she gave her a long-sleeved top was that a wife
cannot wear short
sleeves at her marital home. She testified
that at that time the first respondent was recognising the applicant
as a wife.
She testified that things changed after the death of
Xolile because when she arrived at the Maiden Farm, where the first
applicant
was renting, she
was given R2000.
She went to New Highbury as she had been requested to bring
some of the deceased’s clothes.
The respondents did not
attend the funeral. Thereafter they stopped calling each other. She
believed that the reason was that she
was always going along with the
applicant. She testified that the two respondents did not recognise
the applicant as a wife.
[31] It
was put to her under cross-examination that in her statement in
support of the application she had stated
that she is the one who
gave applicant the name Nolusizo. She disputed that by stating
‘
umtshakazi akathiywa ngomnye umtshakazi
’ meaning
as a
makoti
she could not give a name to another
makoti
.
She was directed to certain contradictions between her evidence
contained in her written statement and that which she gave in
court.
Her response was that maybe she did not write correctly. She
testified that it was her late husband who told her about
the
lobola
negotiations in respect of the applicant because she was not
present. She confirmed that when there were family gatherings or
traditional
ceremonies the applicant would attend and they would be
there as sisters -in- law.
[32] In
re-examination she stated that she visited the first defendant where
she was a tenant, at Maiden Farm.
She was asked to bring certain
clothing of the deceased which she got from the deceased’s home
in New Highbury. Upon her
arrival there she found the deceased’s
younger sister and
Thandokazi.
When she
enquired about the applicant she was advised that she had gone to
attend to matters that related to her late husband’s
death.
The applicant arrived later.
Ms Tomakazi Qongqo
[33]
Applicant testified. She was staying at Elujacweni, her maiden
home. Before she went to Elujacweni
she was staying at New
Highbury. She left during October 2021 after the death of her
husband. She met the deceased
Xolile in town in Mthatha during
2007. They fell in love and thereafter the deceased sent his family
members to ask for her hand
in marriage during June 2008. She
was told that they left one cow, brandy and
umothuko
. She
was present on that occasion. She recalled that her uncle, Mancane,
and the deceased’s father attended that first
meeting.
[34]
On the day of
utsiki,
she stayed in a hut with Noluvo.
She was taken out and led to another house. She was made to sit
behind the door on
a grass mat. A goat was brought to the door
of the house and shown to her. She was caused to eat meat with
no salt.
She was fed by Lelethu. She was given the name Nolusizo.
She was made to wear german prints, a scarf on her waist, a black
doek she called
ikhetshemiya
and something on her shoulders.
She was then given advices by elderly women. The ladies told her that
she was welcomed as
a wife in the Amaqhwane family. She,
together with the deceased have two children, a girl born on 24
August 2010 and a boy
born on 6 October 2020. The house on New
Highbury belongs to her husband. They both obtained a site in 2009
from Chief Maphanzela.
They built the house in 2009.
Before they got that site they were staying at Waterfall, in an RDP
house which belonged to
Xolile. The house in New Highbury is a
5 roomed house. They first put on a roof over one room but by the
time the deceased
died the building was complete. The house consists
of three bedrooms, a kitchen and a sitting room.
[35]
Prior to the deceased’s death the first respondent was staying
at the Maiden Farm and the second respondent
was staying at uTsolo.
There was no bad blood between her and the respondents until after
the passing of her husband.
She corroborated the evidence of
Nomalinge about the incident where she was wearing a short sleeve T-
shirt and was made to take
it off by the first respondent. When
her mother in law passed on, she worked there as a makoti. [39] Upon
the death of the
deceased they had 60 sheep. She took one on
the day of the funeral for welcoming the body of the deceased.
The body
of the deceased was taken to New Highbury and thereafter to
Port St. Johns where he was laid to rest. She tried to go to
the house in New Highbury with the police. The house was locked. The
second respondent was phoned by the police and he arrived at
the
house. She told him that she was there to collect her children’s
documents. She also informed him that she wanted
to take the
sheep. There were old men that arrived and told her that she will not
get the sheep. The first respondent left with
the keys and refused to
open for her. She could not take her child to the clinic
because of the documents that were in the
house. She persisted
in her relief that the respondents must vacate the house.
[36]
Under cross – examination she stated that she was scared of the
respondents because she heard from
the shepherd who was at New
Highbury that he overheard the respondents saying they will pay
tsotsis to kill her. She confirmed
that the first witness,
Xolile’s father was present when Xolile’s family went to
ask for her hand in marriage.
She stated that she was already
living with her husband when her in laws went for the second time to
her home. Her husband
used to visit her home whenever he wanted
to. She recalled that when
utsiki
was conducted the
first respondent was present and she had a baby boy and she saw the
utsiki
ritual. She stayed there for a few days
because her husband did not want her to stay there because of family
issues.
They stayed at Waterfall and then moved to New Highbury after
they built their house. It was put to her that during 2009
there was no structure at New Highbury. She disputed that. She
disputed that she and her husband never stayed at Waterfall.
She testified that after the death of her husband the first
respondent broke into the Waterfall house. She called the street
committees
that called a meeting.
[37]
The first respondent claimed that that house was given to her by her
brother. She was evicted by the residents.
She denied that she
was not present when the deceased died. She denied that she went to
New Highbury only to collect money for
the children. She denied that
the deceased and her were not married. She further denied that the
site in New Highbury was sourced
for the respondents’ home as
they were being ill treated by their uncle. It was put to her
that the first respondent
and Xolile built the house. She
dismissed that as a lie. It was put to her that her husband had
children from his first
wife. She disputed that her husband had
a first wife. She acknowledged that her husband had a girl
child from another
relationship. Applicant closed her case.
Respondents’
case
Ms Lumka Nonjuzana
[38]
The first respondent testified. She is 38 years old. During 2008 she
was 23 years old and she was staying
in the rural areas in Port St.
Johns. She disputed that in 2008 her brother, Xolile, arrived at home
with the applicant. She stated
that her brother was selling
cassettes. The applicant would come to Maiden Farm to visit her
brother when she and her brother were
staying at Maiden Farm in 2010.
[39]
The home in New Highbury was acquired in 2010. She stayed there with
her brother. It was built in 2010 but
the whole structure was
completed during 2017. During 2011 Mzwanele, that is the second
respondent, was staying at New Highbury
whilst her brother, the
deceased was staying at Maiden Farm renting an RDP house there.
During 2021 the deceased was staying in
his house alone. The
applicant was staying at her home. She saw her brother everyday
because they were working together as she
had a hair salon and her
brother was selling cassettes in town.
[40]
Her brother had a cold and had been to Ngangelizwe Clinic and was
given medication. But around October he
went back to the clinic and
he was still not feeling well. She directed her sister Noluvo to go
and visit their brother as he was
not feeling well and she did. She
went to visit her brother and she found that he was very ill. He went
together with the second
respondent.
[41]
She found the deceased with her sister Noluvo. Upon their arrival the
deceased called the second respondent
and told him that he must
please take care of the children. Later, she received a call that her
brother had passed on. Upon arrival
at New Highbury, she found the
applicant, applicant’ s mother, Noluvo and Loli and the
neighbours.
[42]
She stated that her brother had told her that he was going to die and
in the event of his death they must
sell sheep because he did not
have a funeral policy. They sold sheep and Mzwanele did have the
stock card with him. After the body
of the deceased was removed, the
applicant and her mother left. The following morning, the applicant’s
mother arrived at
New Highbury and informed her that all the things
that were there belonged to her because she had given some of her
things to the
deceased for him to keep because she did not want her
child to suffer.
[43]
She wanted them to build flats on the site. This witness was shocked
because she did not understand why such
suggestions were made even
before the burial of the deceased. She then refused to engage further
with the applicant’s mother
and indicated to her that she must
engage elderly people. Applicant’s mother left and indicated
that her child will not go
back there. They remained and stayed there
until the sheriff arrived to serve them with the court papers. She
stated that she never
expelled the applicant at New Highbury. She
never asked her not to participate in the burial arrangements of the
deceased. She
was not in good terms with the applicant because after
her brother’s death they received papers that they must leave
the
house at New Highbury.
[44]
She disputed that she ever threatened the applicant. She denied that
the applicant ever attended any functions
at her home as a wife. She
denied that the applicant ever visited Port St. Johns. She testified
that in 2021 on a Friday the applicant
arrived at Port St. Johns with
the deceased and she enquired about her presence there. Her brother
informed her that he came with
the younger child because he was
denying paternity of the child. When she got there the applicant was
sitting with other people
and she was holding the child. She asked
her about the fact that she was not wearing a jersey.
[45]
She then took off her t-shirt that had sleeves up to the elbows and
gave it to her because she was wearing
a sleeveless top. She never
visited their home again. Her deceased brother did not have a
relationship with the applicant because
most of the time the
applicant was staying at her home.
[46]
During the Covid- 19 lockdown Xolile advised her that the applicant
and her boyfriend had laid charges against
him. Her brother then
informed the police that the applicant was his wife. At that time her
brother had taken the applicant’s
sewing machine and put it in
the salon but he later returned it to one Makhosonke.
[47]
Her brother disputed paternity of the younger child because he told
her he was competing with another man
over the applicant. Her brother
had a relationship with one Andiswa. She believed that if her brother
was still alive, he would
have married Andiswa as his wife. Andiswa
would cook for his brother and she played a huge role even at her
brother’s funeral
because she paid R5000 towards the coffin.
[48]
Under cross-examination when asked about the fact that during the
arrest her brother had indicated the applicant
was his wife, her
response was that his brother was simply saying that because he
wanted to be released by the police. She further
stated that the
tendency of males is to say people are their wives even when they are
not their wives. Later on, she said it was
her brother who told her
that he did not mean that applicant was his wife. She was taken to a
statement where it was indicated
that the applicant was the
deceased’s wife. That was in a statement prepared by the
deceased on 28 September 2016 where he
indicated that he is married
in community of property to the applicant. That document had been
signed by both parties. She disputed
that her brother and the
applicant were married.
[49]
She confirmed that the first witness Mr Dingiso Ntsokolo was her
father. She denied that the witness Nomalinge
Sigijimi was married to
her other brother, Xolani, but she only had a child with her brother,
a boy. She confirmed that Mr Bongani
Jwayimbi was indeed her uncle.
[50]
She confirmed that
ukwendlalela umtshakazi
custom was
practised in her area as a sign of welcoming a new bride. She agreed
that once there are
lobola
negotiations a
makoti
is
recognised. She confirmed that during
umendlaliso
tradition
girls play no part in that tradition. She disputed the fact that the
applicant was given
isiphanga
by the other sister-in-law
because according to her a
makoti
can never feed another
makoti isiphanga
. On the other hand, she conceded that, she
would not know what happened in that room because only the elderly
people and umakoti
were present.
[51]
When asked whether or not his brother was divorced, her response was
that Xolile gave her a stock card and
a book from Waterfall and
indicated to her that she must make sure that when he passed away the
applicant’s mother would
not take his things.
[52]
Later, in her evidence, she stated that she made a mistake when she
said that her brother had said she must
take care of the children
because that was directed at Mzwanele. She did not attend her
brother’s funeral because of the
interdict.
[53] It
was explained to her that in terms of the order that was issued by
the court no order interdicted her
from attending her brother's
funeral. She confirmed that she gave the instruction that the sheep
be sold for the purposes of giving
her brother a decent funeral. She
stated that she had even organised transport to take the children to
the funeral. She did not
know the number of sheep that Mzwanele sold.
Other sheep went missing as they were stolen from the kraal. She
stated that there
was no clothing for the applicant at New Highbury.
She did not see any clinic card or clothing for the children at New
Highbury.
[54]
When asked why they did not leave after they had been ordered by the
court to do so, her response was that
they were shocked because they
did not know the applicant. She stated that she does not stay at New
Highbury but does not want
the applicant to get the house because she
does not want her brother’s children to suffer.
[55]
She testified that the applicant’s mother used to go and sit
next to her brother when her brother was
selling music. Contrary to
what she said earlier, she later confirmed that 15 sheep were sold.
When asked about the incident where
she gave the applicant her T-
shirt, her response was that, she has two children from a certain man
and when she goes to visit
her man’s home, she never enters
that house without covering her arms.
Mr Mzwanele Nonjuzana
[56]
The second respondent, Mzwanele Nonjuzana testified. He is thirty-two
years old. During 2008 he was sixteen
years old. He was schooling in
the rural areas at Qhakama. He knows the applicant as a lady who has
a child with her elder brother.
[57]
His brother was not married before his death. During December 2010 he
left the rural areas and came to Maiden
Farm for holidays but never
went back to the rural areas. His brother was staying there. He
continued to study in Mthatha at Empindweni.
During 2011 he stayed at
New Highbury alone. His brother was staying at the Maiden Farm. He
left New Highbury in 2017. Thereafter
he would only go to New
Highbury from time to time to visit his brother.
[58]
The applicant was staying at her home at Elujecweni in Ngqeleni. When
he received the news of his brother’s
death he was at Ugie
attending a soccer match. He corroborated the evidence of the first
respondent that he received a call from
her suggesting that he must
go and visit their brother because he was not well. He visited him.
His brother told him that he needed
to talk to him but he must
indicate when he would be coming back to visit. Before he could hear
what is it exactly that he wanted
to tell him, he heard that he had
passed on.
[59] He
then went to New Highbury the following day and found her sisters,
Lumka, Noluvo and Phelokazi, alone
in the house. The applicant was
not there. He reported the matter to the Chief’s Great Place at
Kwalindile and was given
a letter to take to the mortuary. There were
fifty-two sheep that belonged to the deceased. They earmarked those
that were going
to be used for the burial. There was seven sheep for
the burial. The deceased girlfriend assisted with paying R5000 for
the coffin
which cost R10 000 and they sold fifteen sheep and
received R17 500. He gave Noluvo and Phelokazi R5000 for
groceries
and gave Phelokazi R1 500. He took R2000 for the
shepherd. He got a truck which was going to take material to build
the gravesite.
He paid R7000 to the mortuary. When he was doing all
this the applicant was not present.
[60] He
saw the applicant when the sheriff came to serve them with papers. He
denied that he prevented the applicant
from coming to the house or
from participating in the funeral preparations. He was staying at New
Highbury together with her sister
Phelokazi. He stated that he woke
up one day and found that all sheep were stolen. He reported the
matter to the police.The sheep
were recovered but were taken to a
pound in uQumbu. He later collected the sheep from uQumbu. He only
found sixteen sheep. He left
them under the care of one Lwazi Zweni ,
at uTsolo.
[61] On
15 June 2023 he was told that people came and stole all the stock
including his sheep from Lwazi Zweni.
Up to the time he was
testifying the sheep had not been recovered. He denied that the
deceased stayed with the applicant. He confirmed
that after being
served with the papers they did not leave the homestead because the
papers were served three days after the death
of their brother. They
did not even know at that stage how they were going to bury him.
[62] He
confirmed the evidence of the first respondent that the applicant
arrived in the company of the deceased’s
father and her mother.
He disputed that the applicant was married to his brother. He also
denied that his other twin brother had
a wife.
[63] He
conceded that if his brother was married he had no right to stay in
that homestead. At some stage when
the applicant had gone with the
police to the house when she wanted her clothing, this witness went
to the house but had left the
keys deliberately at his workplace
because according to him he thought that they wanted to speak to him
and did not want to enter
the house. He also conceded that he had not
complied with the court order. He sold the sheep to prepare for the
funeral otherwise
he would have complied with the order.
[64] He
took the livestock to Tsolo because it was not safe. The house at New
Highbury has three bedrooms, a kitchen
and the lounge. He
described the items that were in each room as follows: that in the
one room that he occupies there is
a bed and a stand. Noluvo and
Phelokazi occupy another room that has a bed, a dresser, a base and a
mattress. In his late brother’s
room there is a bed, and two
wardrobes. In the kitchen there are cupboards, iron, kettle, stove,
microwave, table, dishes, crockery
and a fridge; in the lounge there
are couches, a TV, TV stand, a HiFi music system. His brother was
using a laptop to load music
and Phelokazi was using it but after
some time the screen crashed.
[65] He
confirmed that he did not attend the funeral because he did not think
the homestead would be safe if they
left it. It was explained to him
that there was no order that said they must not go to the funeral and
his response was that it
must have been the person who gave them the
papers who mentioned that. He said when they were doing these
preparations of selling
sheep there was an uncle whose name he did
not know who was assisting them. He denied that he was squandering
the deceased’s
assets. He confirmed that the applicant attended
his mother’s funeral. He conceded that he had no right not to
leave that
house.
[66]
Under re-examination he stated that he knew of no reason why the
applicant would not return to the house.
Mr Mzukisi Mbaxa
[67]
The next witness was Mr Mzukisi Mbaxa. He is 43 years old. He resides
at Port St. Johns at Ndimakude. He
is an uncle to the respondents.
Their home is not very far from his. He denied any knowledge of the
applicant. He heard that Mr
Dingiso Ntsokolo is the father of her
sister’s children. He was not present when
lobola
negotiations were undertaken in respect of the applicant. He knew Mr
Bongani Jwayimbi as his elder brother. He was not present
when
utsiki
was performed for the applicant. He stated that the deceased never
told him that he was married. He never met the applicant at
their
village.
[68] He
denied that he ever saw u
makoti
at her sister’s place.
He could not recall when the deceased passed on because he said since
2016 he had been staying in
Port St Johns. He was never invited to
any ceremony indicating that there was a ceremony relating to u
makoti
for the deceased. He said no one was sitting on the mattress as a
wife when the deceased passed on.
[69]
Under cross-examination he conceded that he did not really know much
about the deceased. It also came
out under cross-examination
that he was not a sibling to the deceased mother. He confirmed that
the deceased once brought to the
rural area his daughter. The
respondents closed their case.
[70] At
the conclusion of the hearing both parties requested a period of two
weeks each within which to submit
written arguments. It was also
agreed that it would not be necessary for the court to hold a sitting
thereafter.
Applicant’s
legal submissions
[71]
Mr Madubela submitted that the court should find in favour of the
applicant because all the evidence demonstrates
that the applicant
was indeed married to the deceased. He submitted that the
requirements for a valid customary marriage as envisaged
in section 3
of the Recognition of Customary Marriages Act 120 of 1998 (the Act),
were met. He further relied on
M.M
v RAN
[8]
,
for
the submission that if the validity of the customary marriage can be
presumed based on cohabitation, this court must find that
the
applicant, in all probabilities, has proved that a customary marriage
existed where there is, evidence of lobola negotiations,
evidence of
umendlaliso
ceremony or ut
siki
and
payment of lobola. In the
M.M
case
at para 16 relied upon by the applicant the court stated:
“
[16]
Cohabitation naturally presumes
the consent of the spouses. Proof of long cohabitation
in itself
raise a presumption that customary marriages exist. When existence of
customary marriage is in dispute, the circumstances
must be such that
there no longer appears to be other evidence available of the further
essential of the customary marriage or
of the lack of such
essentials, before the court will presume the existence of the
customary marriage from cohabitation alone.”
[72]
He submitted that the respondents failed to comply with the order of
this court where they were ordered
to vacate the property at New
Highbury and to return the sheep of the deceased. In this regard he
submitted that there is no adequate
remedy available to the applicant
other than confirmation of the rule nisi. He further submitted that
the respondents must be ordered
to pay costs jointly and severally,
the one paying the other to be absolved.
Respondents’
legal submissions
[73]
Mr Mqokozo on the other hand, submitted that the court must dismiss
the application with costs because no
customary marriage took place
between the applicant and the deceased. He submitted that the
applicant’s alleged marriage
did not meet any of the
requirements provided for in the Act. He further submitted that
all the witnesses that were led by
the applicant were not truthful
and had misled this court in their evidence. He regarded the
application as an abuse of court process.
He submitted that the
deceased had other children who have a right to benefit from the
deceased’s estate as heirs and beneficiaries
of his estate.
He further submitted that the estate of the deceased ought to be
reported to the Master of the High Court
who will deal therewith in
terms of the law.
[74]
He criticised the fact that lobola negotiations were conducted in the
absence of the applicant. He submitted
that customarily before
families start the lobola proceedings, the family would call its
daughters and ask the groom’s family
to point out the
prospective bride, thereafter the prospective bride would confirm
that she knows such family. In this case, he
contended, none of that
was done.
[75]
He submitted that the mother of the applicant was not called to
support her daughter as the person who received
lobola. He further
submitted that the applicant was not able to even produce a photo of
her with the deceased and the children.
[76]
He further submitted that the groom was never introduced to the
applicant’s family and that was the
reason there was no member
of the applicant’s family who testified at the trial. He
submitted that this court must find that
the applicant was the
girlfriend of the deceased. The applicant did not mourn the deceased
by wearing dark clothes and no cleansing
ceremony was done by the
family.
[77]
He urged the court to dismiss the application and discharge the
rule
nisi
with costs.
Onus
[78]
In resolving the factual dispute of whether or not there was a
valid customary marriage between the applicant
and the deceased, this
court must adopt the measure
of
proof, being, a preponderance of probabilities. The applicant must
convince the court that the evidence in support of her case
outweighs
the evidence offered by the respondents
in
opposing it.
[9]
When
the two competing versions intersect the question of credibility
comes into play.
Analysis of the
evidence
[79]
The applicant’s witnesses corroborated one another. Mr Dingiso
Ntsokolo , the father of the deceased,
Xolile, gave very reliable
evidence because his evidence was corroborated by the evidence of the
deceased’s uncle. He did
not exaggerate and place himself at
all times at the
lobola
negotiations and/or
umendlaliso
traditional ceremony. He was frank enough to state that he was
only present on the first day when they went to ask for the
applicant’s
hand in marriage. It appeared from the evidence of
the second respondent that after the death of the deceased their
father was
in the company of the applicant when they arrived at New
Highbury at some point. As the father of the deceased, he would be
the
first person to know if his son was married or not. The only
thing he did not recall in his evidence were the real names of the
first respondent, the name given to the applicant, the exact years
and his children’s birth dates. The explanation he gave
for
that was reasonable.
[80] He
stated that he called the first respondent “Nomalongwe”
and that was not disputed. He further
explained that during their
time they never celebrated birthdays. He explained that he called the
applicant MaXaba and that was
not refuted. His evidence was not
challenged in so far as it related to ,
inter alia,
the first
meeting between the applicant’s family and his family; the
lobola amount and the delegation he sent to represent
him; the
umendlaliso
tradition which was conducted by his brother –
in law , Mr Mdwayimba; how he was shown the site at New Highbury by
Xolile
in the company of the applicant, his visits there and the
decisions he took relating to the burial of his son and the fact that
at all times he regarded the applicant as the deceased’s wife.
He was not shaken under cross – examination at all instead
the
respondents were determined to show him as an absent father who never
supported them financially. That, unfortunately, was
not the purpose
of the trial. I am satisfied that if I take into account all
the evidence, he was a truthful witness and
he gave reliable
evidence. I accordingly accept his evidence.
[81]
The evidence of the deceased’s uncle, Mr Bongani
Mdwayimba,
corroborated that of the father of the deceased to a large
extent. In the African culture the most important union, that is
regarded
as a marriage, because it links the bride with the
ancestors, is
utsiki
or
umendlaliso
custom. This
witness was in charge of that traditional custom. This witness was
not swayed under cross-examination instead cross-examination
was used
by the respondents to deal with their own personal issues with this
witness which had nothing to do with the issues before
court. I found
him to have been truthful in his evidence. I accordingly accept
his evidence as reliable.
[82]
The evidence of the wife to the deceased’s twin brother,
Xolani, Ms Nomalinge Sigijimi,
was straightforward and
related specifically to two issues, the one issue being what
transpired at the home of the deceased when
the applicant was brought
to the deceased’s home for the umendlaliso or utsiki and
secondly, what happened after the
death of the deceased. It is
uncontested evidence that after the death of the deceased this is the
witness that was asked to go
and collect clothing of the deceased
from New Highbury. Upon her arrival the
applicant
was not present
because Noluvo advised her that the applicant
had gone to attend to matters relating to her husband’s death
and the applicant
arrived later. That evidence was not challenged.
The other evidence related to what happened during
umendlaliso
traditional ceremony. This witness had given evidence that
was not challenged that she is the one that was asked to feed the
applicant with
isiphanga
on the instruction of their
mother-in-law because their husbands were twins. She dealt with the
issue where in the affidavit it
was stated that she gave her the name
and she corrected that she could not have given her the name because
she, too, was a
makoti
in the homestead.
[83]
This witness’s evidence that she was married to Xolani was not
challenged. However, when the two respondents
testified, they
disputed that she was married to their brother. The discrepancy
in her evidence and the statements was explained
by this witness and
I accept her explanation. In any event those discrepancies were
immaterial. The evidence of who gave the applicant
her marital name
was confirmed by Mr Mdwayimba , who was in charge of the ceremony. I
accordingly find that this witness was frank
in her testimony. She
corrected what was recorded in the statement where she was of the
view that the information given in
the statement was inaccurate. I
accordingly accept her evidence.
[84]
Coming to the applicant’s evidence. In her evidence it is
apparent that no one verbally told her to
vacate her home. However,
the respondents, by their conduct or actions instilled fear in her to
such an extent that she did not
feel safe in her home. Her evidence
was consistent with the evidence of Ms Nomalinge Sgijimi, Mr Dingiso
Ntsokolo and Mr Mdwayimba.
There is documentary evidence such as an
application for a housing subsidy where the deceased recorded that he
was married to the
applicant and furnished all their personal details
in there including those of their one child at the time. Those
documents were
completed way back in
2016.
The
applicant did not embellish her evidence in
any
manner. The people that confirmed her customary marriage to the
deceased are the elderly men of the deceased’s family
from both
his paternal and maternal side. I find that she gave reliable
evidence.
[85]
The evidence of the first respondent was contradictory. She
vacillated in her evidence. She went to
great lengths in trying
to dispute the existence of the marriage by even disregarding the
deceased’s stance that the applicant
was his wife. Towards the
end of her evidence, it became evident that her motive was to prevent
the applicant from benefitting
anything from his brother’s
estate under the guise that she wanted her brother’s children
to benefit. Her evidence
that the deceased asked the second
respondent to look after the children was not even corroborated by
the second respondent.
She disputed the
utsiki
custom
although she did not dispute the applicant’s evidence that she
had a baby boy at the time and was present. The evidence
of the
applicant was not only corroborated by her father-in-law and her
uncle-in-law but it was also corroborated by the first
respondent as
well because, according to her, her brother at some point when
they had a problem with the police who were
trying to resolve a
squabble between him and the applicant, told the police that the
applicant was his wife .
[86]
The first respondent had instructed Mr Mqokozo to put to the
witnesses that she, together, with the
deceased built the house
in New Highbury. However, when she testified, she said nothing about
that. It was clearly a falsehood.
When pressed for the reason why
they did not comply with the court order, she stated that they were
shocked because they did not
know the applicant. This was said
by the same person who had acknowledged that the deceased and the
applicant had a child.
Looking at the evidence as a whole I find that
the first respondent was an untruthful witness whose evidence was
misleading.
I also find that she, together with the second
respondent, made it difficult for the applicant to have access to her
home.
[87]
The second respondent, on his own version, moved into the deceased’s
home without permission
from the applicant. He disposed of the
livestock as he testified. The applicant had testified that she
had received information
from the shepherd that they were threatening
to have her killed. When one has regard to all the evidence in the
manner in which
the two respondents testified and how they did
things, it is clearly evident that they were intent on making sure
that the applicant
did not get a chance to play the role that she was
supposed to play as a wife of the deceased. They sold sheep without
her consent.
The second respondent stated that he deliberately left
the keys at work when he knew that the police and the applicant were
at
the house. He, despite the existence of a court order removed the
sheep to uTsolo. Most importantly, on his version, he was
not
staying at New Highbury before the death of the deceased but did so
with his siblings after his death. I find that the
second
respondent’s denial of the customary marriage of the applicant
was self- serving. I find that he was an untruthful
witness.
[88] In so
far as the evidence of Mr Mbaxa is concerned, his concession that he
did not know much about his nephew was
well made. Nothing more needs
to be said about his evidence as it did not add any value to the
issue for determination by this
court.
[89]
Having taken the evidence in its totality, I reject the evidence of
the first and second respondents as being
improbable in the light of
all the evidence tendered before this court. I also find that
the applicant was justified in approaching
this court for interim
relief. In fact, she did the right thing because she avoided
confrontation and did not want to take the
law into her hands. The
conduct of the respondents of not complying with the interim relief
calls for this court to confirm
the rule nisi in favour of the
applicant.
The Law
[90]
The Act provides for the requirements for validity of customary
marriages. It provides in section 3 (1) thereof
as follows:
“
3.
(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.”
Those are the only
requirements in terms of the law.
[91]
Both the applicant and the deceased were above 18 years of age.
They consented to the marriage because
a request for the applicant’s
hand in marriage was made and it was accepted. Lobola negotiations
ensued and lobola was paid.
Umendlaliso
or
utsiki
ceremony was performed. On those facts the jurisdictional factors
provided for in section 3 (1) (a) of the Act, were met.
[92]
In
Fezile
Mlamla v Nomathamsanqa Rubushe & others
[10]
,
Tokota J, writing for the Full Court, on appeal stated:
“
[36]
Where there is an agreement at the lobola
negotiation stage, for the acceptance of the proposed customary
marriage, a contract of marriage relationship is entered into between
the two families. In some communities this is signified by
the
slaughtering of lamb to welcome the new in- laws (abakhozi) after a
certain number of lobola cattle agreed upon have been delivered
or in
the case of money after a certain amount of money has been paid. The
celebration thereof is optional. In any event the slaughtering
of
utsiki lamb at the bridegroom’s homestead is in itself a
celebration of the marriage. In this way the requirements of
section
3 (1)(b) of the Act are satisfied.”
[93]
Mr Mqokozo criticised the fact that lobola
negotiations were conducted in the absence of the applicant.
He
submitted that:
“
customarily
before families start the lobola proceedings, the family would call
its daughters and ask the groom’s family to
point the intended
bride, thereafter the pointed bride would confirm that she knows such
family. In this case, he contended, none
of that was done.”
This custom was only raised in argument
and was not put to the witnesses.
[94]
In
Mbungela
& another v Mkabi & Others
[11]
,
writing for the Supreme Court of Appeal, Maya P (as she then was), at
para 27 stated:
“
[27]
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 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
requirement of s 3(1) of the Act, especially spousal consent, have
been met, in circumstances such as the present
ones, could yield
untenable results.”
[95]
If the pointing out was crucial or was part of customs to this
family, I have no doubt that, the respondents
would have mentioned it
and so would the deceased’s father and uncle. There is no merit
in that submission.
[96] I
found that the respondents prevented the applicant from accessing her
home. That finding is fortified
by the provisions of section 6
of the Act which provides:
“
Equal
status and capacity of spouses
6.
A wife in a customary marriage has, on the basis of equality with
her
husband and subject to the matrimonial property system governing the
marriage, full status and capacity, including the capacity
to acquire
assets and to dispose of them, to enter into contracts and to
litigate, in addition to any rights and powers that she
might have at
customary law.”
[97]
This is an answer to the submission by the
respondents that the applicant has no right to the house and
to deal
with the deceased’s estate. A customary marriage concluded
after the commencement of the Act is a marriage in community
of
property and profit and loss between the spouses unless these
consequences are excluded by the spouses in an antenuptial
contract.
[12]
[98] I
accordingly find that a valid customary marriage existed between the
deceased, Xolile Nonjuzana and the
applicant, Tomokazi Qongqo as
envisaged in
section 3
(1) (a) of the
Recognition of Customary
Marriages Act 120 of 1998
. It follows that the applicant must
succeed.
Rule Nisi
[99] As
indicated above, the applicant has established a clear right to the
house which is being occupied by the
respondents or through them. It
is clear from the conduct of the respondents that this court cannot
accept their say so that the
applicant must return to her home in
circumstances where they have failed to comply with an existing court
order. She has
also discharged the onus resting on her that she
was in a valid customary marriage with the deceased. She has made out
a case that
this court must protect her rights by confirming the Rule
Nisi.
[100] In
evidence, when asked by the court how much time the respondents would
require in the event that they were ordered
to vacate the homestead
of the deceased, the second respondent indicated that he and his
sisters would require a period of a month
within which to vacate the
property. This court finds that the respondents do have alternative
accommodation, the first respondent
testified that she rents a place
at the Maiden Farm. The second respondent testified that he has a
place at uTsolo. The father
of the respondents testified that he had
built a home for them in Port St. Johns. On these facts none of the
respondents are homeless,
therefore a period of a month is adequate
to afford them an opportunity to vacate the homestead.
Costs
[101] I am
satisfied that there is no reason to depart from the normal rule that
costs should follow the result.
[102]
I
accordingly issue the following Order:
1.
It is hereby declared that a valid
customary marriage existed between Xolile Nonjuzana , who died on 17
October 2021, and the applicant
,Tomakazi Qongqo , as envisaged in
section 3
(1) (a) of the
Recognition of Customary Marriages Act
120 of 1998
.
2.
A Rule Nisi issued by Jolwana J on
26 October 2021, be and is hereby confirmed subject to the following
amendment to paragraph 2.2
thereof to read as follows:
“
2.2
Directing that the first and second respondents or any of their
siblings or relatives or persons occupying
the deceased’s
homestead at New Highbury, through them or with their permission are
directed to vacate the homestead within
thirty (30) days hereof.”
3.
The first and second respondents are
directed to pay the applicant’s costs of the application and
the hearing of oral evidence,
jointly and severally, the one paying
the other to be absolved.
T.V. NORMAN
JUDGE OF THE HIGH
COURT
Judgment
Reserved on:
22
June 2023
Written
submission by the applicant:
6
July 2023
Written
submission by the respondents:
4
August 2023
Judgment
Delivered on :
15
August 2023
APPEARANCES:
For
the APPLICANT:
ADV
MADUBELA
Instructed
by:
MSOTYANA
INC. ATTORNEYS
Unit
4 Glencombe
45
Leeds Road
MTHATHA
TEL:
047 532 2757
EMAIL:
msotyanaz@gmail.com
For
the RESPONDENTS:
ADV
MQOKOZO
Instructed
by:
NGOLOMA
ATTORNEYS
1
st
Floor Suite 150 ECDC Building
Cnr
York & Elliot Streets
MTHATHA
TEL:
063 361 8150
EMAIL:
ngolomaattorneys@gmail.com
[1]
Imvula
mlomo: something that they had to show before lobola negotiations
began.
[2]
Ikhazi:
meaning the number of cows.
[3]
Umakoti: a young bride.
[4]
Utsiki:
a traditional ceremony for welcoming a bride into the marital home.
[5]
Ndandizekiwe
nguye: meaning that he built a home with the mother of her children
at her maiden home.
[6]
Umendlaliso:
is
the same as utsiki
in
isiXhosa.
[7]
Ukuthelekwa:
a custom where the family of the bride fetches her from the marital
home because lobola had not been paid.
[8]
M.M
v R.A.N, judgment of AML Phatudi J with Semenya J;
Limpopo Local Division, Thohoyandou; delivered on 03 March
2023 (
A07/2022) [2023] ZALMPTHC 2 ( 3 March 2023) para 16.
[9]
Pillay
v Krishna
1946 AD 946
at 952-953.
[10]
Fezile
Mlamla v Nomathamsanqa Rubushe & others, case no: CA 04/2020 and
Case No. 6254/2018, at page 19 para 36.
[11]
Mbungela
& another v Mkabi & Others (820/2018)
[2019] ZASCA 134
(30
September 2019).
[12]
Gumede( born Shange) v President of the Republic of South Africa and
Others ( CCT 50/08) [2008]; ZACC 23;
2009 (3) BCLR 243
( CC) ; 2009
(3) SA 152 ( CC) ( 8 December 2008) at para 33.