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[2022] ZAECBHC 22
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Peter and Others v Master of the High Court: Bisho and Another (547/2020) [2022] ZAECBHC 22 (2 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, BHISHO
CASE
NO. 547/2020
In
the matter between:
THANDEKA
PETER
First applicant
SIYASANGA
BLAYI
Second applicant
UNATHI
MINI
Third applicant
SIYASAMKELA
BLAYI
Fourth applicant
LIBONGE
PIETERS
Fifth applicant
and
MASTER
OF THE HIGH COURT: BHISHO
First respondent
THOBEKA
JOE
Second respondent
JUDGMENT
LAING J:
[1]
This is an application for an order directing the first respondent,
inter alia
, to issue letters of executorship to the first
applicant with regard to the estate of the late Mr Clifford Blayi. At
the heart
of the dispute is the question of whether there had been a
customary marriage between Mr Blayi and the second respondent.
Applicants’
submissions
[2]
The first applicant is the eldest daughter of the deceased. She
states
that her father, the late Mr Blayi, had been married twice
before; both of his previous wives had predeceased him. The first
applicant
alleges that her father had been in a relationship with the
second respondent at the time of his death but emphatically denies
that they had been married. Mr Blayi had apparently resided with the
first applicant’s brother, cited as the fourth applicant
in
these proceedings. Whereas the second respondent would sometimes
visit the deceased, spending a night or more at his home, she
would
return to her own home afterwards; they never co-habited. None of the
applicants was aware of any marriage between the two
individuals in
question.
[3]
Consequent to the passing of Mr Blayi on 23 June 2019, the applicants
instructed their attorneys to report the death to the first
respondent and for letters of executorship to be issued accordingly.
The first respondent, however, informed the applicants that the death
had already been reported by the second respondent’s
attorneys
on 12 August 2019 and that the deceased had allegedly been married in
terms of customary law; however, no letters of
executorship could be
issued until the marriage had been registered with the Department of
Home Affairs (‘DHA’). The
applicants’ attorneys
invited the second respondent’s attorneys to submit proof that
a customary marriage had been
concluded but received no response.
[4]
The first applicant’s affidavit is confirmed by her brothers,
cited
as the second and fourth applicants respectively; the latter
asserts that his father, the late Mr Blayi, had resided with him
until
the date of his passing. The third applicant also confirms the
first applicant’s allegations; she states that her son is the
grandchild of the late Mr Blayi and that they used to visit him at
his home.
Second
respondent’s submissions
[5]
The second respondent has opposed the application on the basis that
she
is indeed the surviving spouse of the deceased and ought to be
appointed as executor. She avers that she and the late Mr Blayi grew
up together in the same village and led separate lives until they met
again in 2013, eventually entering into a relationship. The
second
respondent would visit the deceased at his homestead, situated at
1371 NU 9, Mdantsane, where she would spend a few days
before
returning to her own home. They did not co-habit because this would
have been contrary to the second respondent’s
religious
beliefs.
[6]
The deceased and the second respondent allegedly discussed,
extensively,
when and how they would marry, ultimately agreeing to do
so on 10 December 2016 in terms of customary law. By reason of the
dilapidated
condition of the late Mr Blayi’s homestead, the
couple arranged to become married at the house of a Mr Kututu Joseph,
whom
the deceased considered as a brother. On the day in question,
the couple proceeded to his house where the second respondent was
welcomed as the late Mr Blayi’s wife-to-be. Customary rites
were performed; the second respondent was adorned as a bride
and
given a bridal name (‘Nokhuselo’) by the sister of the
deceased. The ceremony was witnessed by family on both sides
of the
union. Subsequently, contends the second respondent, the couple lived
together as man and wife at the deceased’s homestead,
which
they renovated and refurbished during the course of 2017.
[7]
The late Mr Blayi was diabetic and became increasingly ill as time
went
by. The second respondent alleges that she would care for him
constantly, ensuring that he took his medication, administering his
insulin, bathing him, and assisting him with his ablutions. During
the late Mr Blayi’s illness, states the second respondent,
only
the fourth and fifth applicant ever visited him.
[8]
The second respondent alleges that, subsequent to the passing of the
deceased,
she grieved and wore black for a period of six months
before marking the end of the mourning period at a cultural ceremony
(
ukukhulula izila
) held at the homestead and attended by
family, neighbours and members of the church. None of the applicants
was present on the
occasion.
[9]
The first applicant assisted the second respondent with preparations
for
the funeral, at which the latter was recognised as the surviving
spouse. To that effect, the second respondent points out that she
had
been seated in the place reserved for a widow at the church and that
her union with the late Mr Blayi was acknowledged in the
funeral
programme and also in the obituaries delivered by various speakers.
[10]
With regard to her unsuccessful application for letters of
executorship, the second respondent
explains that she and the
deceased had never registered their marriage because of the late Mr
Blayi’s illness and the difficulties
posed by having to travel
to and queue at the offices of the DHA. After his passing, the onset
of the COVID-19 pandemic and ensuing
restrictions on movement
hampered the second respondent’s further efforts.
[11]
The confirmatory affidavit of Mr Mkhokheli Joseph accompanied the
answering papers. In
terms thereof, he states that he and the
deceased grew up together and were both of the Mkhuma clan. They
viewed each other as
brothers. He was present at the marriage of the
second respondent and the late Mr Blayi, held at the house of his
older brother,
Mr Kututu Joseph. The marriage was conducted in
accordance with customary rites and the couple resided together as
man and wife
at the homestead of the deceased.
[12]
The confirmatory affidavit of Mr Petros Meti is also attached. In
that regard, he confirms
that he is the son of the first applicant
and grandson of the late Mr Blayi. He states that he met the second
respondent at the
deceased’s homestead and observed that the
couple lived together as man and wife. On a visit to the homestead in
2018, he
noticed that renovations were being carried out and heard
his grandfather (the deceased) acknowledge the second respondent as
his
wife when he spoke to the first applicant. The second respondent,
avers Mr Meti, nursed and took care of the late Mr Blayi and had
been
present at his death. Mr Meti moved into the homestead afterwards and
observed how the second respondent had dressed in black
and grieved
the passing of the late Mr Blayi. He had not attended the cultural
ceremony to mark the end of the mourning period
because he had been
with his mother, the first applicant, who had refused to go.
[13]
Furthermore, the second respondent has attached the confirmatory
affidavit of Mr Libonge
Pieters, who is the son of the late Mr Blayi
and sibling of the first, second and fourth applicants. Although he
is cited as the
fifth applicant, he disputes that the first applicant
was authorised to bring the application on his behalf and distances
himself
from the proceedings. In 2014 and 2015, Mr Pieters stayed
with his father (the deceased) at the homestead, where he came to
know
the second respondent during her visits. He subsequently left
the homestead to stay with his aunt at Gonubie, after which he would
return to visit his father during the school holidays. The second
respondent, avers Mr Pieters, lived with the late Mr Blayi at
his
homestead since December 2016. They carried out substantial
renovations and refurbishments on the property. He alleges that
he
had been present together with the second respondent and Mr Meti when
the deceased passed away and confirms that the second
respondent had
dressed in black and grieved. None of the applicants attended the
subsequent cultural ceremony.
[14]
The second respondent attached, finally, the supporting affidavit of
Ms Nosikhumbuzo Rubu,
who resides at 1370 NU 9, Mdantsane. She
supports the allegations of the second respondent, alleging that her
neighbour, the late
Mr Blayi, had informed her of his marriage to the
second respondent, who in turn had confirmed this at the time. They
renovated
their home together and the second respondent conducted
herself as a married woman. She nursed the deceased until his
passing.
Ms Rubu attended his funeral and witnessed how the second
respondent had been recognised as the deceased’s widow. She
sewed
the mourning clothes for the second respondent and assisted at
the cultural ceremony, where the second respondent had been
counselled
on how to conduct herself as a widow.
Issues
to be decided
[15]
The deceased died intestate, without having nominated any person to
be his executor. In
terms of
section 18(1)(a)
of the
Administration
of Estates Act 66 of 1965
, the first respondent is obligated to
appoint and grant letters of executorship to anyone deemed ‘fit
and proper’ to
be executor of the estate. However, where more
than one person has been nominated for recommendation,
section 19(a)
stipulates that the first respondent must give preference to ‘the
surviving spouse’.
[16]
Consequently, the court is required to determine whether the second
respondent is indeed
the surviving spouse. This must be premised upon
a decision as to whether there was a customary marriage between the
late Mr Blayi
and the second respondent, in accordance with the
requirements of section 3(1) of the Recognition of Customary
Marriages Act 120
of 1998 (‘the Act’). The provisions
thereof state as follows:
‘
3
Requirements for validity of customary marriages
(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.’
[17]
There is no dispute about the consent of either the deceased or the
second respondent to
have become married. The focus of the court’s
enquiry is, rather, on sub-section (b). The first applicant’s
main contentions
are that no delegation was sent by the deceased’s
family to that of the second respondent, no
lobolo
was
negotiated, and there was no handing over of the second respondent by
her family to that of the late Mr Blayi.
[18]
The basic legal framework will be discussed in the paragraphs that
follow, after which
the above aspects will be assessed in relation
thereto.
Legal
framework
[19]
It is useful, at the outset, to reiterate the organic nature of
customary law, which is
characterised by its continuous and natural
development within a constantly changing socio-economic environment.
The Supreme Court
of Appeal emphasised this in
Mbungela and
another v Mkabi and others
[2020] 1 All SA 42
(SCA), where Maya P
held, at 17, with reference to the Act, that:
‘…
section
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…’
[20]
The courts have recognised the need for flexibility when dealing with
matters of customary
law, notwithstanding the possible uncertainty
that this can create. Overall, it appears from the case law that the
courts have
adopted a pragmatic approach, rooted in the practices and
lived experiences of the community concerned.
[21]
An example
of such an approach can be found in
Mabena
v Letsoalo
1998 (2) SA 1068
(T), where Du Plessis J recognised, at 1072C-D, that
customary marriage is not purely a matter between the bride and groom
but
is also ‘a group concern, legalising a relationship between
two groups of relatives’.
[1]
However, the court took heed of social realities and pointed out that
many unmarried men live on their own and fend for themselves.
There
was no reason why an independent, adult man was not entitled to
negotiate the payment of
lobolo
or that he needed the consent of his parents to marry.
[2]
[22]
What is necessary before a marriage can be said to have been
negotiated, entered into or
celebrated appears to depend on the
existence or otherwise of a set of basic requirements. These were
listed in
Fanti v Boto and others
[2008] 2 All SA 533
(C),
where Dlodlo J held, at 19, that:
‘
It is actually
relatively easy to prove the existence of a customary marriage in
view of the fact that there are essential requirements
that
inescapably must be alleged and proved. These would be:
(i)
consent of the bride;
(ii)
consent of the bride’s father or guardian;
(iii)
payment of
lobolo
;
(iv)
the handing over of the bride.’
[23]
The payment of
lobolo
has been regarded as fundamental to a
customary marriage. It was considered in
Maloba v Dube and others
[2010] JOL 25852
(GSJ), where Mokgoatlheng J observed, at 26, that
the agreement to marry in customary law is predicated upon
lobolo
in its various manifestations; the agreement to pay it underpins the
customary marriage.
[24]
Similarly, the handing over of the bride has been accorded much
significance. The following
remarks were made by Matlapeng AJ in
Motsoatsoa v Roro and another
[2011] 2 All SA 324
(GSJ):
‘
[19] One of
the crucial elements of a customary marriage is the handing over of
the bride by her family to her new family
namely that of the groom.
As the man’s family gained a daughter through the marriage,
from her family, the bride is invariably
handed over to him at his
family’s residence. Handing over of the bride… is not
only about celebration with the attendant
feats and rituals. It
encompasses the most important aspect associated with married state
namely
go laya / ukuyala / ukulaya
in vernacular. There is no
English equivalent of this word or process but loosely translated it
implies “coaching”
which includes the education and
counselling of both the bride and the groom by the elders of their
rights, duties and obligations
which a married state imposes on them.
This is the most important and final step in the chain of events that
happens in the presence
of both the bride and the groom’s
families. One can even describe this as the official seal in the
African context of the
customary marriage.
[20] The
handing over of the bride is what distinguishes mere cohabitation
from marriage. TW Bennett
Customary Law in South Africa
18ed
states at 217 that
“
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 a 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.”
In terms of practised or
living customary law the bride cannot hand herself over to the
groom’s family. She has to be accompanied
by relatives.’
[25]
Whether or to what extent the basic requirements for a customary
marriage were met in the
present matter lies at the heart of the
dispute. These will be assessed below.
Application
of the law to the facts
[26]
The applicants’ case rests on the assertion that the basic
requirements were missing.
No delegation was sent by the deceased’s
family, no
lobolo
was negotiated, and no handing over of the
second respondent ever took place.
Handing
over of the bride
[27]
Beginning
with the question of the handing over of the second respondent, she
asserts that she was accompanied by her brother at
the time of the
marriage ceremony. She was welcomed into the deceased’s family
by,
inter
alia
,
Mr Kututu Joseph and the late Mr Blayi’s sister. The first
applicant does not take this further in her replying papers other
than to contend that the above individuals were not her family.
[3]
At the very least, there can be no real dispute that the second
respondent’s brother was present as a representative of her
surviving family. Furthermore, the first applicant does not seem to
challenge the second respondent’s contention that the
deceased
was from the same clan (Mkhuma) as Mr Kututu Joseph and Mr Mkhokheli
Joseph.
[28]
The concept of clanship is discussed by the learned writer, Jonas,
who explains:
‘
Clanship is
therefore an inherent quality, constituting a vital part of the
individual’s identity. Apart from one’s
personal names
and surname, the latter frequently a lineage name, every individual
also has a clan name which he shares with all
his fellow-clansmen. To
the question “
Ungumni
na?
”
(literally: What [person] are you?) someone will usually first reply
with his clan name, for example
NdinguNgwevu
(I am Ngwevu) or
NdingumNgwevu
(I am a Ngwevu), before mentioning a personal name or surname.’
[4]
[29]
Jonas goes on to explain that:
‘
Clanship is
immutable, being something to which an individual is ineluctably
bound. Only where misfortune is ascribed to someone’s
bearing
the wrong clan identity… a ritual is performed to formalize
the adoption of the correct clan identity, in this case
that of the
genitor. The underlying reason for this change is that clan identity
entails more than the clan name. A member of the
Nkabane clan
explained the significance of clanship as follows: ‘
Ndiphila
ngaso, ndihleli phantsi kwaso. Impilo yam yonke ikuso. Ukuba ngaba
ndinako ukungasazi ndinako ukulahla zonke izinto zakowethu
’
(I live by it, I live under it. My whole well-being is in it. Should
it be possible that I do not know it, I may lose everything
that
belongs to us) … From the above analysis it is clear that
identity implies awareness of self within a particular context,
that
is, the context of the clan and everything associated with it,
implying recognition of “corporate identity” beside
individuality.’
[5]
[30]
From the above, it is apparent that the concept of clanship is
integral to the practices
and lived experiences of the isiXhosa
community. The presence of members of the same clan at the marriage
ceremony, especially
individuals with whom the deceased had grown up
and treated as his brothers, would have been akin to the deceased’s
having
had close members of his direct family in attendance to have
facilitated the handing over of the bride. This would have been all
the more necessary where there were few if any surviving elders in
the late Mr Blayi’s family and where relations with his
children were complicated, at best.
[31]
The
related, albeit not identical, requirement of
ukumekeza
[6]
in siSwati customary law was dealt with in
Mabuza
v Mbatha
[2003] 1 All SA 706
(C), where Hlophe JP made the following
observations:
‘
[25] In my
judgment there is no doubt that
ukumekeza
, like so many other
customs, has somehow evolved so much that it is probably practised
differently than it was centuries ago. I
got a firm impression that
Mr Shongwe was not being truthful to the Court insofar as he
attempted to elevate
ukumekeza
into something so indispensable
that without it there could be no valid siSwati marriage. It is my
view that his evidence in that
regard cannot be safely relied upon.
As Professor de Villiers testified, it is inconceivable that
ukumekeza
has not evolved and that it cannot be waived by
agreement between the parties and/or their families in appropriate
cases.
[26] Further
support for the view that African Customary Law has evolved and was
always flexible in application is to
be found in TW Bennett
A
Sourcebook of African Customary Law for Southern Africa
.
Professor Bennett has quite forcefully argued that:
“
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”
(at 194).’
[32]
In the present matter, there does not seem to be any reason why the
customary practice
of the handing over of the bride could not be said
to have evolved to accommodate a situation where the groom’s
family is
represented by members of the same clan. This is all the
more so where the circumstances at the time did not allow for the
presence
of any elders, simply because there were none or where the
surviving elder lacked the capacity to represent the family
meaningfully,
and where the late Mr Blayi no longer enjoyed a close
relationship with all of his surviving children.
Lobolo
[33]
Turning to the question of
lobolo
, the second respondent makes
no mention of this in her answering papers and it must be assumed
that it was never paid. The legal
effect thereof must be examined
more closely.
[34]
The term,
lobolo
, is defined in section 1 of the Act as:
‘
the property in
cash or in kind… which a prospective husband or the head of
his family undertakes to give to the head of
the prospective wife’s
family in consideration of a customary marriage’.
[35]
Generally, there is no consensus on the meaning and function of
lobolo
. The learned writer, NJJ Olivier (
et al
),
remarks that:
‘
It is probably
impossible and unwise to give a narrow description of the institution
of
lobolo
.
It serves to legalise the marriage, to legitimate the children born
of the woman, to act as a form of compensation in a general
sense, to
place the responsibility upon her father to support her if it should
become necessary, to stabilise the marriage, and
to ensure proper
treatment of the wife by the husband and his family. It is clear,
however, that the primary function of the
lobolo
is to transfer the reproductive capacity of the woman to the family
of her husband; in other words, there is a direct correlation
between
(a) the transfer of the
lobolo
,
and (b) the reproductive potential of the woman.’
[7]
[36]
It is evident from the papers that the late Mr Blayi was 68 years old
when the marriage
took place; the second respondent was 61. The
possibility of having children would have been very remote, if even
contemplated
at all. Moreover, it is not disputed that the deceased
was a diabetic, which seems to have hastened his passing some
two-and-a-half
years later. In the circumstances, the function of
lobolo
would have served little purpose and the couple would
have been expected, instead, to have used any available resources to
make
their lives more comfortable in anticipation of old age; it is
common cause that they did so, carrying out extensive renovations
and
refurbishments at the homestead.
[37]
The
decision of the court in
Mabuza
v Mbatha
(supra)
can be
interpreted to mean that the requirement of
lobolo
is capable of waiver.
[8]
Whereas
the second respondent does not expressly indicate this in her papers,
there is sufficient evidence to deduce that there
was indeed a tacit
waiver by both parties. The payment or otherwise of
lobolo
appears never to have been an issue.
Sending
of a delegation
[38]
With regard
to the question of a delegation from the deceased’s family,
both the late Mr Blayi and the second respondent were
advanced in
years when they married. This was certainly not the union of a young
couple. By the first applicant’s own admission,
there were no
remaining elders in the deceased’s family except for a Mr
Nantetho Blayi, who is described as being ‘mentally
ill’.
[9]
Quite who would have made up any delegation to have been sent to the
second respondent’s family is not clear.
[39]
The court does not understand the determination of whether a
customary marriage was concluded
to entail the adoption of a tick-box
approach with regard to the identification or otherwise of the basic
requirements. In other
words, the absence of one or more should not
automatically disqualify the union.
[40]
To that effect, the remarks of the Supreme Court of Appeal in
Mbungela and another v Mkabi and others (supra)
bear
repeating, Maya P held, at 27, that:
‘
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 requirements
of section 3(1) of the Act,
especially spousal consent, have been met, in circumstances such as
the present ones, could yield untenable
results.’
[41]
The circumstances of the couple in the present matter need to be
acknowledged. This was
not a marriage of a young man and a young
woman; for the deceased, it was his third marriage. There were no
surviving elders who
could have meaningfully represented the late Mr
Blayi in any negotiations with the family of the second respondent.
Moreover, the
deceased’s relationship with his children did not
seem to have permitted their participation in any delegation. Such a
situation,
however, should not have thwarted or prevented the second
respondent from marrying in accordance with customary law.
Relief
to be granted
[42]
It cannot be said that a neat and clearly demarcated set of facts,
unequivocally demonstrating
compliance with the basic requirements
for a customary marriage, has emerged from the proceedings. Whereas a
compelling enough
argument can be made to the effect that there was a
handing over of the bride and that
lobolo
was waived, the
ultimate question remains whether this was sufficient to indicate
that the marriage was customary in nature. To
answer that, it would
be remiss of the court not to take into account the evidence in
relation to how the union was viewed by the
community itself, whose
practices and lived experiences inform the content of customary law.
[43]
The second respondent’s answering papers describe the holding
of the marriage ceremony,
the couple’s residence at the
homestead (which they renovated and refurbished), the second
respondent’s nursing of
the deceased prior to his death, the
respect and recognition that were accorded to her at the funeral, and
her wearing black and
subsequent release from mourning at the
cultural ceremony. She attaches a copy of the funeral programme,
which indisputably refers
to a marriage between her and the late Mr
Blayi and which refers to her by her bridal name, Nokhuselo. The
above averments were
supported by a member of the clan, the first
applicant’s own son, the late Mr Blayi’s son, and a
neighbour.
[44]
In
contrast, the first applicant’s replying papers amount to not
much more than a bare denial. She merely asserts that if
the second
respondent and the deceased had been married, then the applicants
would have known ‘because we are the children
of the
deceased’.
[10]
This
takes the matter no further. She also refutes the second respondent’s
allegations with regard to the period of mourning,
the cultural
ceremony and the funeral, without adequately advancing any further
clarification or explanation to persuade the court
that her version
should be accepted. For example, the first applicant contends that
the second respondent changed the text of the
draft funeral programme
without the applicants’ knowledge, prior to submission of the
programme to the printers. This is
implausible; if that had indeed
been so, then there would surely have been evidence of an outcry and
recriminations at the funeral
itself or afterwards.
[45]
There are,
admittedly, disputes of fact with regard to other issues. For
example, the fourth applicant alleges that the late Mr
Blayi resided
with him; the second respondent asserts, to the contrary, that she
resided with the deceased at the homestead and
that the fourth
applicant visited them regularly.
[11]
In such a situation the usual principles must be applied, viz. a
final order will only be granted where the facts as stated by
the
respondent, together with the facts alleged by the applicant that are
admitted by the respondent, justify such an order.
[12]
[46]
Overall,
what emerges from the papers is a picture of a simple union, mostly
shorn of the events and customs that would usually
mark the marriage
of a young couple, but nevertheless retaining the essential features
of a customary marriage. As the learned
writer, Bennett, has
remarked, customary law has always been flexible and pragmatic, and
strict adherence to ritual formulae has
never been absolutely
essential in appropriate circumstances.
[13]
It would have been reasonable for the couple to have abbreviated the
process where both were advanced in years and where it was
the
deceased’s third marriage. How the community itself viewed the
union has to be taken into consideration, it cannot be
ignored; on
the basis of the evidence, the first applicant has not demonstrated
that the community refused to recognise the second
respondent as the
surviving spouse of the deceased, in accordance with the tenets of
customary law. Quite the opposite appears
in the second respondent’s
papers.
[47]
With regard to the second respondent’s failure to have
registered the customary marriage,
section 4(8) of the Act provides
that a certificate of registration constitutes
prima facie
proof of the existence thereof. However, section 4(9) clearly
stipulates that the failure to register does not affect the validity
of the marriage. The second respondent has furnished an acceptable
explanation and nothing more turns on this.
[48]
The only remaining issue is that of costs. The usual principles apply
and costs must follow
the result. There is no basis for granting an
order on anything other than a party-and-party scale.
Order
[49]
In the circumstances, the following order is made:
(a)
the application is dismissed; and
(b)
the applicants (excluding the fifth applicant) are liable for the
second respondent’s
costs.
JGA
LAING
JUDGE
OF THE HIGH COURT
APPEARANCE
For the
applicants:
Adv Mhlanti, instructed by Badi Loliwe Attorneys, East London.
For the second
respondent:
Adv Maqetuka, instructed by Nomjana Attorneys, East London.
Date
of hearing:
12 May 2022.
Date
of handing down of judgment:
02 August 2022.
[1]
The learned judge quoted Mönnig
The
Pedi
,
at 129; reference was also made to Bekker
Seymour’s
Customary Law in Southern Africa
,
5ed, at 96.
[2]
At 1073A-B.
[3]
See paragraph 13 of the replying affidavit, at 73 of the record.
[4]
PJ Jonas, ‘Clanship as a cognitive orientation in Xhosa
world-view’ (S. Afr. J. Ethnol, 1986, 9(2)), at 60.
[5]
Ibid.
[6]
The requirement was described in
Mabuza
v Mbatha
as ‘the formal integration of the bride into the bridegroom’s
family’, which is distinct from the formal handing
over of the
bride to the groom’s family (at 9).
[7]
NJJ
Olivier (et al), ‘Indigenous Law’, in
LAWSA
(Vol 32, 2ed, LexisNexis, 2009), at paragraph 113.
[8]
See Hlope JP’s remarks at 25.
[9]
See the applicant’s replying affidavit, paragraphs 12 and 32,
at 73 and 79 of the record, respectively.
[10]
See paragraph 13 of the replying affidavit, at 73 of the record.
[11]
See paragraph 15 of the answering affidavit, at 46 of the record.
[12]
The principles were stated in
Stellenbosch
Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd
1957 (4) SA 234
(C), at 235, and have become settled law after they
were adopted in numerous other cases, including
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A), at 634.
[13]
Quoted in
Mabuza
v Mbatha
,
at 26.