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[2022] ZAFSHC 152
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Khambule v Mazibuko and Another (4631/2020) [2022] ZAFSHC 152 (9 June 2022)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case No.: 4631/2020
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to Magistrates:
YES/NO
In the matter between: -
KEFILWE
DORIS KHAMBULE
Plaintiff/Respondent
and
NTSKEISENG
MARIA MAZIBUKO
First Respondent
THE
MINISTER OF HOME AFFAIRS
Second Respondent
CORAM:
N.
M.
MBHELE, AJP
HEARD
ON:
0
2
NOVEMEBR 2021 and 22, 23 and 25 FEBRUARY 2022
DELIVERED
ON:
09 JUNE 2022
[1]
This is an application
that was referred for oral evidence by my
sister Opperman, J. The issue for determination is whether the
applicant did enter into
a valid marriage contract with Letjeba
Samuel Mazibuko (the deceased). The respondents deny that a valid
marriage existed between
the applicant and the deceased. The second
respondent filed a notice to abide the decision of this court.
[2]
The applicant testified in support of her case and called two
witnesses. She testified
to
inter alia
the following effect:
She met the deceased in 2013 and started a relationship with him
while his wife was still alive. In 2015 she
fell pregnant with the
deceased’s child. His wife died in April 2015 while she
was pregnant with the deceased’s
child. The deceased stayed
with the applicant at a house they rented in Phuthaditjhaba. His kids
were at that stage staying in
Tshiame. During the period of mourning
his wife he frequented his family home in Tshiame. In July he
returned to stay permanently
with the applicant. In October 2015 his
family came to pay lobola for her in October 2015. The applicant’s
family demanded
8 cows at a cost of R2000.00 each as lobola price.
There were times when the deceased doubted the paternity of the
applicant’s
child. The DNA tests confirmed that the deceased
was the father. After
lobola
negotiations the applicant was
not handed over to the deceased’s family neither was the
marriage celebrated. The deceased
died in a car accident in 2018 and
was buried by his family at his house in Tshiame. The applicant went
to the deceased’s
home like all other mourners on the date of
the funeral to bury him. She attributes her failure to be part of the
funeral arrangements
to the fact that the deceased’s daughter
hated her and accused her of having killed her mother.
[3]
Matsela Lea Khambule is the applicant’s sister who was
representing the Khambule
family during
lobola
negotiations
between the Mazibuko and Khambule families. She confirmed that the
deceased’s family visited her home to negotiate
lobola for the
applicant. She confirmed the applicant’s testimony on the
amount set as the bride price and that there was
no handing over of
the bride nor was the marriage celebrated. According to her the
Mazibuko family was represented by the
deceased’s aunt and
uncle. After the parties agreed on the bride price the agreement was
reduced into writing by, read to
the delegates and signed by each of
them.
[4]
Maria Pheko is the applicant’s mother. She knew the deceased as
her daughter’s
boyfriend and the father of her granddaughter.
She confirmed that the Mazibuko family came to her family to
ask the applicant’s
hand in marriage. The delegation reported
to her that the Mazibuko’s paid R6000.00 of the R16 000.00
agreed upon and
promised to come back to settle the outstanding
amount. According to her the marriage was not celebrated and her
daughter was not
handed over in terms of the customary law because
the deceased died before matters could reach that stage. When it was
put to her
that the Mazibuko family had come to pay damages for the
deceased’s child with the applicant she responded that at the
time
of their visit the child was not yet born and damages are, in
terms of the culture, paid after the child’s birth. The
applicant
was not involved in arrangements of the deceased’s
funeral. The applicant was accompanied by other family members to the
funeral. She did not attend the funeral and she did not
know the deceased’s mother.
[5]
Paseka Masukela was one of the representatives for
lobola
negotiations between the Mazibuko’s and the Khambule’s.
The parties agreed that the bride price would be 8 cows at
R2000,00
each. The deceased’s family paid R6000,00 which was an
equivalent of 3 cows. All parties that were present at the
negotiations signed Exhibit ‘A’ which is a document
confirming contents of their agreement. He denied that the deceased’s
family had come to pay damages. He emphasized that the purpose of the
meeting between two families was to negotiate lobola for
the
applicant and the deceased. He confirmed that the negotiations were
sealed with a document that all delegates signed.
[6]
At the close of the applicant’s case four witnesses testified
in support of
respondent’s case. Ntsekiseng Maria Mazibuko is
the- deceased’s mother who testified to the following effect:
she knows
about the applicant and she knew that the applicant had a
child with her son. In her evidence in chief when she was asked
whether
she knows of any marriage between her son and the applicant,
she said that the process was never finalised. In her view
the applicant was not married to the deceased. The visit to the
Khambule family was for payment of damages. She testified
that
she knows Itumeleng Khothatso as her daughter in law because she was
the one staying with her son at Khalanyoni until his
death. She later
on in cross examination said that the deceased did send emissaries in
the form of his aunt and negotiate lobola
on his behalf. She said
that the reason she did not want to take part in anything that had to
do with
lobola
negotiations is because she did not want the
deceased to marry the applicant because she feared that the applicant
would be unkind
to the grandchildren.
[7]
Lina Molise is the deceased’s aunt who was part of one of the
emissaries sent
to the Khambule family. In her view the purpose of
the visit was to pay damages for the deceased getting the applicant
pregnant
outside wedlock. The document that was signed at the end of
the discussion was the confirmation of payment of damages not
lobola
negotiations. She said that she signed a document that was not read
back to her. She, further, said that she cannot write and read
although she signed with her name in full on the document. Mr.
Mvulane Mazibuko who was part of the Mazibuko delegation could write
and read he is the one who reduced the terms of the agreement into
writing.
[8]
Mohau Qwelana is the deceased’s daughter. She testified that
she knows the applicant
whom she met for the first time at Mandela
Park around 2016 /2017 when she asked her to inform her uncle that
her child required
some ritual. According to her the deceased did not
recognise the applicant’s child as his own. The deceased
introduced her
to Puseletso Khothatso as his life partner in August
2015. She denied that the deceased ever stayed at Phuthaditjhaba with
the
applicant. According to her, the deceased was staying with
Puseletso Khothatso whom the family acknowledged as the deceased’s
wife. She denies that the applicant attended the deceased’s
funeral. Her father told her that he did not father the applicant’s
child. In her view, the person recognised as the deceased’s
wife was supposed to wear mourning attire at the funeral which
did
not happen with the applicant who according to her did not even
attend the funeral. Neither did it happen to Khothatso who
according
to her was recognised as the deceased’s wife.
[9]
Puseletso Khothatso testified that she was married to the deceased
with whom
she stayed at Khalanyoni (Tshiame C) since April 2015
until 2018 when he passed on. He stayed with the deceased daily until
2018.
She did not participate in the funeral arrangements of the
deceased nor was she clothed in the cultural mourning attire for
widows.
She did not know the applicant. She only heard that the
applicant was present at the funeral after the burial. After the
deceased
died his mother instructed Khothatso to stay at the place
they were renting until the family came to fetch her for the funeral.
They never came to fetch her. She went to Tshiame A on the day of the
funeral to bury the deceased.
[10]
Maki Khiba Mncedani testified that she is the daughter of the
deceased. She explained the procedures
and rituals involved during
the conclusion of a customary marriage. She is not aware of any
marriage existing between the deceased
and the applicant nor any
lobola paid for the applicant. She is aware that Khothatso was in an
intimate relationship with her father
until his death in 2018.
[11]
I am
faced with two diametrically opposed versions as to whether there was
any
lobola
negotiations or not. When a court is faced with two mutually
destructive versions the approach to follow is the one enunciated
in
National
Employers' General Insurance v Jagers
[1]
where 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, itis 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]
[12]
I have to consider the credibility of witnesses, their reliability
and weigh the probabilities
to determine which version is more
probable. The evidence tendered on behalf of the applicant was
straightforward. The applicant,
her mother, her sister and Masukela
delivered their evidence in a satisfactory manner. The contradictions
in the applicant’s
testimony were immaterial when the evidence
is viewed in its totality.
[13]
Respondent’s evidence was full of material contradictions and
improbabilities. The first
respondent acknowledged in her answering
affidavit that the deceased did stay with the applicant at
Phuthaditjhaba from April 2015
to November 2015 when he moved out to
stay with his new girlfriend in Tshiame B (Khothatso). She denied any
knowledge of the R6000.00
paid to the applicant’s family in her
answering affidavit. When giving oral evidence she admitted at first
that the deceased
did approach his aunt and sent her as one of the
emissaries to Khambule family to negotiate lobola. She further
testified that
the reason she did not want the deceased to marry the
applicant was her fear that the applicant would not be kind to her
grandchildren.
She later on somersaulted and said that the money paid
to the Khambule family was for damages for the child born outside
wedlock.
[14]
Mamohau testified that the deceased denied paternity of the
applicant’s child but reiterated
that the deceased, who
confided in her, told her that he paid damages to the Khambule
family. It makes no sense why the deceased
would not acknowledge the
applicant’s child as his own but pay damages for impregnating
the applicant outside wedlock. She
was not frank with the
court.
[15]
Lina Modise confirmed the first respondent’s
answering affidavit which denied that a delegation from
the Mazibuko
family paid R6000,00 to the Khambule family. She later on confirmed
that she signed some paper which was not explained
to her when
confronted with the contents of exhibit “A”. She further
tried to distance herself from the exhibit “A”
by denying
that she is able to read and write although she signed the document
with her names in full showing that she can write.
She was evasive
and did not make a good impression at all.
[16]
The evidence of the applicant’s mother that
the Mazibuko’s could not have come to her family
to pay damages
because the child was not born yet and that damages are paid after a
child is born was not disputed.
[17]
On analysis of the evidence and weighing up of all
probabilities I find that the applicant’s version
is to be
preferred over that of the first respondent on whether there were
lobola
negotiations concluded between the parties.
[18]
Having found that there were
lobola
negotiations held between the parties I turn to deal with whether the
lobola
negotiations marked the commencement of the
marriage between the deceased and the applicant and signified
the conclusion
of a valid marriage between the applicant and the
deceased.
[19]
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.”
[20]
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."
[21]
It is common cause that there was no handing over of the bride in
terms of the traditions observed
by both families. The applicant’s
mother admitted that ordinarily after
lobola
negotiations the
marriage should have been celebrated which did not happen with the
applicant and the deceased. She had no explanation
why the marriage
was not celebrated.
[22]
Mr. Tsoeu, on behalf of the applicant, contended that customary law
is a constantly evolving
system and that failure to observe the
rituals pertaining to the hand over of the bride should not stand in
the way of a marriage
that has been negotiated in accordance with
customary law. Mr. Tsoeu finds support from
Tsambo
v Sengadi
[3]
where Molemela JA remarked as follows:
“
[17]
The appellant’s contentions pertaining to the rituals observed
during the handing over of the bride ceremony
fail to take into
account that customary law is by its nature, a constantly evolving
system. That customary law has always evolved
is evident from the
following observation made by Professor Bennett almost three decades
ago and approved in many judgments:
‘
In
contrast, customary law was always flexible and pragmatic. Strict
adherence to ritual formulae was never absolutely essential
in
close-knit, rural communities, where certainty was neither a
necessity nor a value. So, for instance, the ceremony to celebrate
a
man’s second marriage would normally be simplified; similarly,
the wedding might be abbreviated by reason of poverty or
the need to
expedite matters. Aside from this, the indigenous rituals might be
supplanted by exotic ones: a wedding ring may now
be used in place of
the traditional gall bladder of a slaughtered beast and for many a
church ceremony has become indispensable.’
[18]
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, it
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.”
[23]
In
Mbungela
v Mkabi Mbungela and Another v Mkabi and Others
[4]
Maya, P remarked as follows when dealing with the validity of a
customary marriage where the ritual of the handing over of the
bride
was not performed:
“
[30]
To sum up: The purpose of the ceremony of the handing over of a bride
is to mark the beginning of a couple's customary
marriage and
introduce the bride to the groom's family. It is not an important but
not necessarily a key determinant of a valid
customary marriage.
Thus, it cannot be placed above the couple's clear volition and
intent where, as happened in this case, their
families, who come from
different ethnic groups, were involved in, and acknowledged the
formalisation of their marital partnership
and did not specify that
the marriage would be validated only upon bridal transfer.”
[24]
It is well accepted that culture adapts and
evolves along with the society’s needs, wants and
opportunities.
It is through culture that members of a particular
group and society define themselves, conform to society’s
shared values
and contribute meaningfully to society. The question to
ask is to what extent does the culture evolve. In each and every case
one
would have to examine this question in line with facts at hand.
When evolution is complete the final product must not be so removed
from the culture that you cannot recognise the culture in it. TW
Bennet remarked as follows in
Customary Law in South
Africa
page 217:
“
Nevertheless,
observance of traditional procedure and ceremonies is not
unimportant, because it helps to define the cultural provenance
of a
union. Hence, when the
Recognition of Customary Marriages Act
provides
that, in order to qualify as customary, a marriage must be
‘negotiated and entered into or celebrated in accordance with
customary law’, the form of negotiations, the handing over of
the bride and the wedding are all relevant to giving the union
the
character of a customary marriage. It may then be
distinguished, on the one hand, from an informal partnership and, on
the other, from a marriage according to other cultural or religious
traditions.”
“………
Customary
marriage is not completed by the performance of a single act nor does
it need the approval of a public authority.
Instead, it can
best be described as a (potentially lengthy) process that affects
only the spouses and their families.”
[25]
I must hasten to point out that the facts in
Tsambo
and
Mbungela
supra
are distinguishable from the facts
in
casu
. In
Tsambo
the court found that the marriage was
celebrated in terms of the custom immediately after the
lobola
negotiations when the groom’s aunts dressed the bride in the
outfit matching that of the deceased, introduced her to all
persons
in attendance as their makoti and welcomed her into the family. In
Mbungela
the two families exchanged gifts immediately after
the negotiations and the bride and groom celebrated their marriage at
church
and were accepted as husband and wife by both families and
people in their circles. It is clear from the aforementioned
authorities
that after
lobola
negotiations it is necessary to
have some form of a ritual marking the commencement of the customary
marriage.
[26]
In the current matter none of the above occurred. The evidence shows
that after the payment of
R6000,00 deposit the deceased’s
family left and promised to come back again in the future. The
deceased was not present at
the applicant’s home on the date of
negotiations. The deceased’s mother did not even know the
applicant, she had never
met her. The applicant’s mother did
not even know the deceased’s mother, she did not even accompany
her daughter to
the funeral of someone who is supposed to be
considered her son in law. No ceremony of whatever nature was held to
recognise her
as the wife of the deceased. No evidence shows that the
need to comply with other requirements for a valid customary law was
waived
by the parties. In view of the above I am unable to find that
there was a valid customary marriage entered into between the
deceased
and the applicant. The application must fail.
[27]
Costs are in the discretion of the court. I am of the view that the
circumstances surrounding
this case call for each party to pay her
own costs.
[28]
I, therefore make the following order:
1.
The application is dismissed.
2.
Each party to pay her own costs.
N.M. MBHELE, AJP
Appearances:
For the
Applicant:
Adv.
T. E. Tsoeu
Instructed
by Moletsane Attorneys
Bloemfontein
For the 1
st
Respondent:
Adv.
D. C. Hattingh
I
nstructed
by Phatsoane Henney Inc.
Bloemfontein
[1]
1984
(4) SA 437
(ECO) at 440D - 441A.
[2]
2003
(1) SA 11
(SCA) at par [5].
[3]
Tsambo v Sengadi
[2020] JOL 47138
(SCA) and
(244/19)
[2020] ZASCA (46) delivered on 30 April 2020 at paragraphs 17-18.
[4]
[2019] ZASCA 134
;
2020 (1) SA 41
(SCA);
[2020] 1 All SA 42
(SCA).