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[2022] ZALMPPHC 32
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Mkhari v Minister of Department of Home Affairs (1129/2021) [2022] ZALMPPHC 32 (27 June 2022)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NO: 1129/2021
REPORTABLE: YES/NO
OF INTEREST TO OTHER
JUDGES: YES/NO
REVISED.
In
the matter between:
MARIA
MOHLATLEGO MKHARI
PLAINTIFF
And
MINISTER
OF DEPARTMENT OF HOME AFFAIRS
DEFENDANT
JUDGEMENT
KGANYAGO
J
[1]
The plaintiff and the first defendant were allegedly married to
Gideon Hlengani Mkhari (deceased) by
civil rites. The plaintiff has
instituted an action against the defendant seeking orders that (i)
the purported civil marriage
between the deceased and the first
defendant entered into in Polokwane (Pietersburg) on the 22
nd
June 2000 be declared null and void; (ii) directing the second
defendant to expunge the purported civil marriage between the
deceased
and first defendant from the register and/or system of the
second defendant; (iii) directing second defendant to register and
record
the civil marriage between the deceased and plaintiff as per
annexure M1; (Annexure M1 is the alleged marriage certificate between
the plaintiff and the deceased); and costs of the suite.
[2]
The first defendant (defendant) has defended the plaintiff’s
action, whilst the second defendant
did not defend the plaintiff’s
action. The defendant in her plea to the plaintiff’s
particulars of claim has denied
that the deceased and the plaintiff
were lawfully married to each other. The defendant further pleaded
that she started living
with the deceased in a house purchased by the
deceased in Polokwane during 1996 and denied that the said house was
purchased by
the deceased and the plaintiff. The defendant further
pleaded that she and the deceased had entered into a valid civil
marriage
on 22
nd
June 2000.
[3]
The plaintiff took the witness stand and testified under oath. She
testified that she and the deceased
met and fell in love during 1965
when she was employed as a professional nurse at Ethel Locus Memorial
Hospital now known as Tintswalo
Hospital. She started living together
with the deceased as husband and wife during 1968. On 1
st
July 1968 she gave birth to their first child. During 1969 the
deceased send emissaries to her family (Ngwatje) to pay for her
lobola. Lobola in the amount of R70.00 was paid for her. A letter of
acknowledgment of lobola was issued and it remained with the
Ngwatje
family. All members of the Ngwatle family that had received the
lobola from the deceased family have since passed away,
and she does
not know the whereabouts of the lobola letter.
[4]
During 1971 and 1972 she gave birth to their second and third born
children respectively. After the
birth of their fourth child during
1977, the deceased suggested that they register their marriage. On
10
th
January 1978 she and the deceased went to Mhala Home
Affairs were they registered their marriage. The witnesses to their
marriage
were her uncle Madireng Letswalo and Ephraim Chabangu
representing the deceased family.
[5]
Because of the demand of her work that entails her to work night
shifts, she resigned at the request
of the deceased in order to look
after their children. After she had resigned from work, they had
financial challenges, and she
got employed as an educator. During
1978, she and the deceased bought a stand in Dwarsloop township where
they erected a shack.
The deceased got employed as a traffic officer
in Nelspruit. After the deceased was employed as a traffic officer,
he got a government
subsidy house in Dwarsloop township, and they
moved into that house as a family.
[6]
The deceased was transferred to work in Mhala. From Mhala she was
transferred to Nkowakowa, and later
got a promotion to work in
Giyani. From Giyani he was promoted to work in Polokwane. Whilst the
deceased was working in Polokwane
he bought a house at number 21
Riebok Street Fauna Park Polokwane. After the deceased had
bought that house, he came to Dwarsloop
to fetch her and their last
born child to come and view the house. During that period their last
born child was a student at Turloop
University. Their last born child
went to stay with the deceased in that house.
[7]
Whilst staying in Polokwane, the deceased health started to
deteriorate, and he was in and out of hospital.
During that period,
they have started building a house in Dwarsloop, and the deceased was
coming home after every two weeks even
though his health was not
good. When she saw that the deceased health was not improving, she
took him to consult with the family
doctor, but deceased told them
that the doctor who knows his sickness well was in Polokwane, and he
went back to Polokwane. During
the year 2000, his health was fast
deteriorating, and at the end of that year, she took an early
retirement in order to look after
the deceased. By that time the
deceased was still staying in Polokwane with their last born child
who was looking after him. From
time to time she would come to
Polokwane to visit, and she would not sleep in Polokwane but at her
parental home in Bochum.
[8]
On 20
th
February 2001 she got a telephone call whilst in
Bochum, telling her that the deceased had passed away. Her last born
child took
her to their Polokwane house. On arrival in Polokwane, she
requested her sister-in-law to give her the keys of the vehicles and
house, and also the identity document of the deceased so that they
can lock the house, and go back Dwarsloop to make the funeral
arrangements of the deceased. That is when her sister-in-law told her
that there was someone in the house who was having a love
relationship with the deceased, and was refusing to give them the
keys of the house and vehicles, and also the identity document
of the
deceased. She was shocked as she was not aware of that relationship.
[9]
Later they were surprised when the police arrived, telling them to
get out of the house. She did not
know whether their last born child
knew about the affair which the deceased had with that woman. The
following day they went back
to Dwarsloop, and whilst in Dwarsloop,
they were served with a protection order from that woman who had a
relationship with the
deceased. The deceased was buried at Mkhari
family cemetery in Casteel at Gamothakhathi village.
[10]
After the burial of the deceased, she got a message from Polokwane
Local Municipality that the house in Riebok
street Polokwane, was not
yet fully paid. She paid for the outstanding balance and later got a
title deed for that house from Pretoria.
She at no stage got divorced
from the deceased. She was registered as the deceased spouse on
deceased Bonitas medical aid until
the date of his death.
[11]
The plaintiff was cross examined and she stated that she slept once
in the house in Polokwane as most of
the time she visited Polokwane
she was sleeping in Bochum. She denied that the defendant was living
in the house in Polokwane permanently
with the deceased. The
plaintiff conceded that Frances Nomafrentshin appears as a dependant
on deceased’s Bonitas certificate
of membership medical aid,
and that Nomafrentsin was the deceased ex-wife whom he had divorced
on 10
th
March 2000 as confirmed by the decree of divorce
provided by the defendant’s counsel. The plaintiff further
stated that she
was not aware of the marriage between the deceased
and Nomafrentshin, and that to him shows that the deceased was a
crook.
[12]
The plaintiff conceded that other than her oral evidence, she had no
other proof of the customary marriage
between her and the deceased as
the people who had that proof are no longer alive, but she is having
four children with the deceased
and those children were legalised by
her marriage with the deceased. The plaintiff stated that she became
aware that the deceased
and the defendant were married only after the
deceased death. When it was put to the plaintiff that she was not
lawfully married
to the deceased by civil rites, she stated that she
and the deceased were married to each other on 10
th
January 1978. The plaintiff conceded that for the past 20 years after
the passing of the deceased, the defendant was living in
the house at
Riebok Street Fauna Park Polokwane. The plaintiff further conceded
that she issued the summons against the defendant
after 20 years, and
that it was as a result of changing attorneys who were doing
disservice to her.
[13]
Tony Gerald Mkhari was the plaintiff’s second witness to
testify under oath. He testified that he knows
the plaintiff and
defendant before court. The plaintiff is his biological mother, and
the plaintiff was married to the deceased.
He is the last born child
of both the deceased and the plaintiff. He did not know that the
defendant was married to the deceased,
but was under the impression
that the defendant was one of the deceased’s girlfriends. That
the deceased had many girlfriends
and that he had stayed with all of
the deceased’s girlfriends as the deceased was taking care of
him.
[14]
The witness further testified that during 1996 he enrolled to study
at University of the North now known
as University of Limpopo. He did
not visit the deceased often in Polokwane as the deceased did not
have a place to stay. During
month ends the deceased will pick him up
at the university, and they will travel together to Dwarsloop
township. During 1997 the
deceased called him and the plaintiff to
come to Polokwane to view the house he was about to buy. Later during
1997 the deceased
told him that he had bought a house in Polokwane.
The witness stated that he did not stay in the house in Polokwane
but, he would
go to that house to visit. He only started staying in
the house in Polokwane full time from December 1998 to January 1999.
[15]
According to the witness, in the Polokwane house, the deceased was
living with the defendant and also the
defendant’s two sons.
That the children of the defendant were not the biological children
of the deceased. He did not tell
the plaintiff about the defendant
living with the deceased, as the deceased had told him not to tell
the plaintiff, and the deceased
had also given him a car to keep
quite. He had never asked the deceased whether he and the defendant
were married, as the deceased
was just giving him instructions. The
marriage certificate attached to the plaintiff’s particulars of
claim is the marriage
certificate between the deceased and the
plaintiff. That the marriage certificate was issued in his presence
at Mhala Home Affairs,
Thulamahashe on 11
th
July 2002.
That the marriage certificate was issued on the basis of the marriage
register of which the copy of that register was
certified as true
copy of the original on 15
th
March 2001. They issued the
plaintiff with a duplicate marriage certificate as the plaintiff had
lost her original marriage certificate.
[16]
The witness further testified that the deceased health started to
deteriorate during 1999. When he visited
the deceased at the end of
1999 he found that the deceased was sick, but could still move
around. In the year 2000 the deceased
was still sick, and was staying
with the defendant and the defendant’s five children. The
defendant treated the witness like
her own child. During the year
2000, the deceased was so sick to the extent that he was no longer
able to travel to Dwarsloop.
During January 2001, the plaintiff
phoned the deceased to come back to Dwarsloop so that she can be able
to take care of him, but
the deceased refused. He then took the
plaintiff to Polokwane.
[17]
On arrival at the house in Polokwane, the deceased told him not to
come into the house with the plaintiff.
After the witness had entered
the house alone, the deceased asked him whether he wanted to kill him
by bringing the plaintiff.
The deceased told the witness to go to the
plaintiff and tell her whatever he wanted to tell her. He went to the
plaintiff and
told her that the deceased was staying with another
woman, and that the deceased health did not look good. The deceased
was so
thin to the extent that he was unable to cough. The plaintiff
told the witness to take her to Bochum.
[18]
The witness took the plaintiff to Bochum, and he later went back to
the house in Polokwane together with
all of his siblings. They were
all well received by the defendant. They all saw that the deceased
was not looking good, and later
he and his siblings went back to
Dwarsloop. Because the plaintiff had taken early retirement, she
remained in Bochum. During February
2001 they were phoned to be
notified that the deceased had passed away. He and his siblings went
to fetch the plaintiff in Bochum
and drove to Polokwane. On arrival
at the house in Polokwane they were refused entry by the defendant’s
children. They forced
entry into the house, and police were called to
evict them. The plaintiff is the one who had buried the deceased.
They only became
aware of the marriage between the deceased and the
defendant when they were served with summons before the burial of the
deceased.
[19]
The witness was cross examined and he conceded that the defendant had
been staying together with the deceased
in the house in Polokwane
since the deceased had bought that house. The witness stated that the
defendant’s minor children
were addressing the deceased as
“father”. The witness conceded that for the last four
years of the deceased life, the
deceased was living together with the
defendant as husband and wife. The witness conceded that he did not
have the original of
the marriage register, and further that he was
not the author of the copy that was attached to the plaintiff’s
particulars
of claim. He conceded that he could not testify about the
authenticity of marriage register because he did not see the
plaintiff
signing that register. The witness conceded that he could
not testify about the records of Home Affairs. The witness stated
that
he knew Nomafrentshin as the deceased’s girlfriend.
[20]
That concluded the evidence of the plaintiff and she closed her case.
The defendant in turn applied for absolution
from the instance.
Defendant’s counsel submitted that the plaintiff’s case
was that she was married to the deceased,
and because of that
marriage, any subsequent marriage should be regarded as null and
void. Counsel for the defendant further submitted
that from the
pleadings, the defendant had disputed the marriage between the
deceased and the plaintiff, but the plaintiff has
failed to call any
witness from the Department of Home Affairs to confirm that marriage.
That the onus is on the plaintiff to proof
the existence of such
marriage. The plaintiff when she testified, did not testify about any
of the documents that could proof the
existence of her marriage and
the deceased, and also did not even verify the alleged signature on
the alleged register of marriage
allegedly from the Department of
Home Affairs as hers. That there is no evidence which the defendant
can present to take this matter
any further.
[21]
Counsel for the plaintiff submitted that the plaintiff had discharged
the onus of proof that a civil marriage
existed by presenting a
register of marriage from Department of Home Affairs. That the
deceased and the plaintiff opted for their
marriage to be in
community of property. That in 1978 when they entered into that
marriage, there were no computers. That the defendant
should come and
take a stand since her marriage with the deceased is strange as it
was entered into seven months prior to the death
of the deceased.
Further that during 1997 when the alleged lobola negotiations of the
defendant took place, the deceased was still
married to
Nomafrentshin.
[22]
It is trite that the test in an absolution stage is whether at the
close of the case for the plaintiff there
is evidence upon which a
reasonable man might find for the plaintiff, or if the defendant does
not present any evidence, but close
his/her case immediately, is
there such evidence upon which the court may give judgment in favour
of the plaintiff.
[23]
In
Gordon
Lloyd Page & Associates v Rivera and Another
[1]
Harms JA said:
“
The
test for absolution to be applied by a trial- court at the end of a
plaintiff’s case was formulated in Claude Neon Lights
(SA) Ltd
v Daniel
1976 (4) SA 403
(A) at 409G-H in these terms:
‘…
(w)hen
absolution from the instance is sought at the close of the
plaintiff’s case, the test to be applied is not whether
the
evidence led by the plaintiff establishes what would finally be
required to be established, but whether there is evidence upon
which
a Court, applying its mind reasonably to such evidence, could or
might (not should, nor ought to) find for the plaintiff…’
This implies that a
plaintiff has to make out a prima facie case – in the sense
that there is evidence relating to all the
elements of the claim –
to survive absolution because without such evidence no court could
find for the plaintiff.”
[24]
The plaintiff has testified that she and the deceased were married to
each other by civil rites on 10
th
January 1978. The
plaintiff had testified that the deceased had allegedly paid lobola
for the defendant on 27
th
September 1997. On 22
nd
June 2000 the deceased and the defendant allegedly got married by
civil rites. Counsel for the defendant had further submitted
copy of
a decree of divorce during cross examination of the plaintiff, and
this copy shows that the deceased had divorced one Nomafrenthsin
Frances Mkhari on 10
th
March 2000. The plaintiff did not
challenge the authenticity of the copy of the decree of divorce. In
fact, the plaintiff’s
second witness had testified that he knew
Nomafrenshin as one of the deceased girlfriend. It is not known as to
when did the deceased
and Nomafrenthsin got married. The deceased
during his lifetime was married to three women without the knowledge
of each other.
He even divorced one of them without the knowledge of
either of them.
[25]
The plaintiff has therefore the onus to prove that her marriage to
the deceased was a valid one. Credibility
of the evidence of the
plaintiff at this stage of the proceedings plays a lesser roll unless
her evidence is so hopeless that we
will just be delaying the
inevitable. The plaintiff has testified that before she and the
plaintiff were married to each other
by civil rites, the deceased had
sent emissaries to her homestead to negotiate lobola for her. That
led to the deceased family
paying lobola of R70.00 for her. However,
the plaintiff did not call anyone to confirm that version and also no
document to prove
that was submitted.
[26]
The plaintiff has testified that she had misplaced her original
marriage certificate with the deceased and
on 11
th
January
2002 she went Mhala Home Affairs in Thulamahashe where she was issued
with a duplicate marriage certificate and also provided
with a copy
of the alleged register of the marriages. According to the copy of
the alleged register, the alleged marriage between
the deceased and
plaintiff was allegedly entered into the register of marriages on
10
th
January 1978. The defendant in her plea had denied
that the alleged civil marriage between the deceased and the
plaintiff was lawfully
solemnized and authorised. When the trial
started, the defendant had denied the authenticity of the alleged
marriage register from
Mhala Home Affairs. However, when the
plaintiff testified, she did not testify about the alleged marriage
register, or to confirm
that the signatures that appears on that
document are hers and that of the deceased.
[27]
Despite the defendant having disputed the authenticity of the alleged
marriage register, the plaintiff has
failed to call anyone from Home
Affairs to verify its authenticity. Plaintiff’s counsel tried
to rectify the error of failing
to lead the plaintiff on the alleged
marriage register by leading the plaintiff’s second witness on
that. However, that witness
could only take it as far as testifying
that the duplicate marriage certificate and copy of the marriage
register were made in
his presence. He could not testify about the
contents of that alleged marriage register as on 10
th
January 1978 he was eight months old and could not have appreciated
anything.
[28]
What complicates this matter further is the marriage of the deceased
and Nomafrentshin which it has not been
established as to when they
got married. According to the Bonitas certificate of membership, the
deceased was born 20
th
September 1944, the plaintiff born
on 25
th
October 1944, and Nomafrentshin born on 29
th
September 1945. The three are in the same age bracket. The deceased
and plaintiff’s first child was born 1
st
July 1968.
Rhulani whom the plaintiff’s second witness has testified that
he was Nomafrentshin child was born 30
th
December 1969.
According to the Bonitas certificate of membership, the deceased had
registered both the plaintiff and Nomafrentshin
as beneficiaries of
his medical aid on 1
st
November 1987.
[29]
Taking into consideration the date of birth of the plaintiff’s
first born child and Rhulani, Nomafrentshin
child, and also that the
deceased had registered both the plaintiff and Nomafrentshin as
beneficiaries of his medical aid at the
same time, it appears that
the deceased was having a relationship with them at the same time. If
this court was to accept that
there was a marriage which was
concluded between the deceased and plaintiff, the most crucial
question is between the plaintiff
and Nomafrentshin whom did the
deceased marry first. If the deceased married Nomafrentshin first, it
follows that the marriage
concluded between the plaintiff and
deceased was not valid. Had the plaintiff called a witness from Home
Affairs, all these questions
could have been clarified.
[30]
In
Monumental
Art Co v Kenston Pharmacy (Pty) Ltd
[2]
Rose Innes AJ said:
“…
it
is not competent for Court to embark upon a conjecture in assessing
damages where there is no factual basis in evidence or, an
inadequate
factual basis, for an assessment, and it is not competent to award an
arbitrary approximation of damages to a plaintiff
who has failed to
produce available evidence upon which a proper assessment of the loss
could have been made…If there is
no or an insufficient
evidential basis upon which the loss can be assessed on the
probabilities, then no assessment of damages
can be made for lack of
proof of the quantum of those damages.”
[31]
The defendant had disputed the validity of the plaintiff’s
marriage with the deceased in her plea to
the plaintiff’s
particulars of claim, and the defendant had further disputed the
authenticity of the alleged register of
marriages. Despite disputing
that, the plaintiff has failed to call any official from Home Affairs
to corroborate her version,
and she also did not testify about the
marriage register. Without that marriage register, there is nothing
to support the plaintiff’s
version that she and the deceased
got married on 10
th
January 1978 as the alleged duplicate
marriage certificate was issued on the basis of the alleged marriage
register. It has also
not been established as who between the
plaintiff and Nomafrentshin got married to the deceased first. In my
view, the plaintiff
has failed to prove that she and the deceased had
concluded a valid marriage on 10
th
January 1978. I agree
with the defendant’s counsel that the defendant’s
evidence will not take this matter any further.
It will therefore
serve no purpose to allow this matter to continue beyond the stage it
had reached.
[32]
In the result I make this order:
32.1 Absolution from the
instance is granted with costs on party and party scale.
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
Counsel
for the Plaintiff
:
Adv N Mkhari
Instructed
by
:
AA Milanzi Attorneys
Counsel
for the defendant
:
T Grobler
Instructed
by
:
Thomas Grobler Attorneys
Date
heard
:
1
st
June 2022
Electronically
circulated on
:
27
th
June 2022
[1]
2001 (1) SA 88
(SCA) at 92E-H
[2]
1976 (2) SA 111
(C) at 118D-F