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[2022] ZALMPPHC 69
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M.J.M v N.C.M and Others (HCAA 04/2022) [2022] ZALMPPHC 69 (6 December 2022)
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REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
DATE:
06/12/22
CASE
No HCAA 04/2022
In
the matter between:
M[....]1 J[....]
M[....]2
APPELANT
And
N[....] C[....]
M[....]2
First RESPONDENT
MASTER
OF THE HIGH COURT, THOHOYANDOU
Second
RESPONDENT
MINISTER OF HOME
AFFAIRS,RSA
Third RESPONDENT
UNIVERSITY OF
VENDA
Fourth RESPONDENT
SANLAM
LIMITED
Fifth RESPONDENT
JUDGMENT
LEDWABA AJ
Introduction
[1]
With the leave of appeal granted by the court of first instance on
the
19th April 2022, the appeal is against the whole judgment of NF
Kgomo J delivered on the 30th November 2018.
[2]
Only the first respondent participated in both the court of first
instance
proceedings and in this appeal. The second respondent is
cited in its capacity as the supervising authority in the
administration
of deceased estates and the authority which appointed
the first respondent as the executrix. The third respondent keeps the
records
and make endorsements in the country's population register.
The fourth respondent is L[....] R[....] M[....]2's former employer.
The fifth respondent administers the fourth respondent's provident
fund.
[3]
L[....] R[....] M[....]2 is referred to as the deceased.
[4]
The appellant applies for the condonation of the late service and
filing
of this appeal. The founding affidavit states that it is more
than twenty months out of the prescribed period and that the reason
for the delay was because the appellant did not have the money
requested by her previous legal team. This application is unopposed.
[5]
The appellant and the first respondent make claims that they were
married
to the deceased during his lifetime. The appellant's case is
that she was married by customary marriage which was registered on
the 13th March 1979. As proof, she attached annexure FA 3 to her
founding affidavit. She submits that annexure FA 3 is
prima facie
proof referred in section 4(8) of the Recognition of Customary
Marriages Act 120 of 1998 ( the Act) and that in the absent of
contrary
evidence it becomes conclusive.
[6]
The first respondent's version is that she was married to the
deceased
by civil marriage on the 23rd December 1996. She refers to
annexure FA 4 to the founding as proof of her marriage to the
deceased.
[7]
The court
of first instance dismissed the appellant's application with costs
and found in favour of the first respondent. This aggrieved
the
appellant, hence this appeal. The court order sought to be overturned
is to the effect that
[1]
:
[7.1] the appellant
failed to make out a case that she was married to the deceased, be it
in 1979 or any stage,
[7.2] the civil marriage
entered into between the deceased and the first respondent is
declared valid and had existed as at the
date of the death of the
deceased,
[7.3] what the first
respondent and the deceased regarded as a valid joint will and
testament was confirmed. This was deferred to
the second respondent
for its validity and acceptability. and,
[7.4] as the issue of the
validity of the lobolo proceedings involving the first respondent and
the deceased were embarked upon
after a civil marriage in community
of property had been already entered into, this issue is academic.
[8]
For the purpose of this appeal, the appellant's grounds of appeal are
to the effect that the court of first instance erred:
8.1
by not finding that the deceased was married to the appellant by
customary marriage on the 13th
March 1979 and that the marriage was
terminated by the death of the deceased. This customary marriage was
registered in terms of
the laws of the Republic of Venda and it is
reflected in the identity document issued to the appellant by the
Republic of Venda.
In the absence of evidence of termination of the
marriage and fraud regarding the registration of the said marriage,
the court
of first instance misdirected itself by not putting any or
adequate weight to the marriage certificate issued by the Republic of
Venda,
8.2
by overlooking the fact that once a customary marriage is registered,
the certificate of registration
constitutes a
prima facie
proof
of the existence of such marriage, obviating the need to lead
evidence regarding the customary rituals,
8.3
by overlooking Masindi M[....]2's supplementary affidavit in which
she stated that she is aware
of the valid marriage between the
deceased and the appellant,
8.4
ignoring the fact that the first respondent's evidence which disputes
the existence of the customary
marriage between the deceased and the
appellant is hearsay and
8.5
by not finding that as the civil marriage between the first
respondent and the deceased came into
existence after the customary
marriage between the appellant and the decease, the civil marriage
was void and /or invalid
[9]
At issue is validity of the marriage between the deceased and the
appellant
as against the one between the deceased and the first
respondent.
The
background
[10]
The appellant avers that the deceased and herself grew up with their
respective homesteads separated by two stands.
They fell in love in
1978 when the deceased was doing Standard nine. She fell pregnant by
the deceased the same year in December
1978. The first-born boy child
was born on the 20
th
September 1979. The second born
daughter was born on the 3rd February 1983 and the third child is
born on the 20th January 1995.
She
states that the deceased admitted paternity and expressed intention
to marry her. It is common cause that the first two children
were
excluded by paternity test from being the deceased's biological
children. The third child did not participate in the paternity
test.
In her replying affidavit, the appellant indicates that she is
dissatisfied with the paternity test results and is ready
to have a
retest , also in respect of the third child.
She
further states that lobola in the amount of R600 was paid and that
they registered their customary marriage at Thohoyandou Magistrates
offices where they were issued with the registration certificate. She
states that the certificate is lost and despite diligent
search she
has not been able to locate it. She says efforts to obtain duplicate
at Home Affairs and Magistrates offices have been
unsuccessful.
She
states that on registration of the customary marriage, she applied
for a new Venda identity document. She says the copy of the
front
page of her identity document is attached as annexure FA 2 while the
copy of the third page of her document is attached as
annexure F3.
She says annexure FA 3 reflects her marital status as married and the
date of marriage as the 13th March 1979.
In
December 1996 the appellant noticed the change in the deceased's
behaviour. Even during festive season, he told her that he was
going
on educational tour. On the 16th December 1996 he came back home late
and highly intoxicated with alcohol and what he said
to her was the
way of telling her that he was involved with the first respondent .
The appellant left their place of resident for
her parental home and
an attempt by the two families to reconcile them was unsuccessful.
She stayed with the deceased's mother
for ten years before building
her own house where she is currently staying. Since they were never
divorced, her staying away from
the deceased and their homestead did
not terminate their valid customary marriage. It was terminated by
the deceased's death.
She
avers that she was surprised to learn that the deceased and the first
respondent were married to each other with the marriage
in community
of property on the 23rd December 1996 as evidenced by annexure FA 4
to the founding affidavit.
She
submits that because it was concluded while the deceased was a
partner in their existing marriage, the marriage between the
first
respondent and the deceased is contrary to the provisions of section
10(1) of the Act. She says since there was no attempt
by the deceased
and the first respondent to marry in terms of the customary law,
there is no valid customary marriage between them.
[11]
The first respondent's version is that she met the deceased as
friends in the early part
of January 1995. Their relationship
developed into the romantic one after the deceased proposed and she
accepted his proposal.
On the 1
st
December 1996 there was
a meeting of the family delegations where R6500.00 lobola was agreed
upon. From the deceased's family,
Vho Tshavhungwe M[....]2, Manyaga
GT, Mafumadi Elina, Magret Sikhwivhilu and Vho Muofhe Matsheka
represented the family while the
first respondent's family was
represented by Masindi Erick, Netshitshive Muditambi Khomalo, Josias
Masindi, Masindi Phillip and
Shonisani Johanna Masindi . The lobola
was paid in trenched payments of R500.00 for the opening of
negotiations, followed up by
R2000,00 payment on the 15th December
1996, R2000 on the 23rd October 1999 and R1000.00 on the 4th December
1999. Lobola documents
were exchanged between the two families. By
the time the payment of lobola was finalised in December 1999, their
civil marriage
was already concluded on the 23rd December 1996 as
evidenced by annexure FA 4. Four children were born from their
marriage relationship.
As
advised by the deceased's sister Thinavhudzulo M[....]2, the first
respondent stated that the deceased denied having impregnated
the
appellant and became so furious when he was pressurised that he
chased the appellant's delegation who came to report pregnancy.
The
June 2004 DNA paternity test results released on the 4th August 2004
excluded the deceased as the father of the tested two
of the three
children.
The
deceased's sister and mother advised her that it is not correct that
there was a meeting of the two families of the deceased
and the
appellant where the marriage between the deceased and the appellant
was discussed. She is further advised that at that
time, the deceased
was still a student to have been in the position to pay R650.00 as
lobola for the appellant. She stated that
the alleged marriage never
complied with the customary marriage requirements.
The
deceased's sister and mother further advised her that the deceased
never registered any customary marriage with the appellant
and this
is common knowledge within the deceased's family members at large.
Her enquiries at Home Affairs revealed that the appellant
is
registered as unmarried. She says this explains why there is no
record of the registration of the alleged marriage.
She
submits that the appellant having failed to prove the alleged
marriage, this means that it was never concluded and registered.
Her
application was rightly dismissed by the court of first instance.
She
submits that in the unlikely event of the finding that there was
Venda lobola process, the requirements for Venda marriage were
not
complied with.
[12]
In reply, the appellant denied that the first respondent and the
deceased were married
to each other by customary union. She said
Thivhavhudzi was eight years old in 1978 when the appellant was
married to the deceased.
Moufhe Matsheka is not related to the
deceased but was their domestic worker who was paid the salary by the
appellant. She said
the deceased's sister Elina Mufamadi would not
have approved the first respondent and the deceased's customary
marriage.
She
conceded that the children DNA came out negative. She is contesting
the result and needs the second test, which would need the
deceased's
remains for DNA tissues be extracted.
She
only became aware of the civil marriage between the first respondent
and the deceased after the deceased's death.
She
attained the surname of M[....]2 by virtue of her marriage to the
deceased.
[13]
In her conditional application, the first respondent seeks orders
that the deceased's last
wish regarding his estate be respected and
that the appellant is not entitled to any form of benefit in the
deceased's estate.
In the alternative and in the event of the finding
that the appellant is entitled to benefit, an order that the
appellant should
only benefit in the deceased's estate for the
duration she alleges to have stayed with the deceased.
Discussion
[14]
The appellant claims that her customary marriage to the deceased was
registered in terms
of the laws of the then Republic of Venda on the
13th March 1979. The first respondent claims her civil marriage to
the deceased
was registered on the 23rd December 1996. The dates of
these marriages are about seventeen years apart. These dates are
before
the 15th November 2000, being the date of the coming into
operation of the Act.
[15]
At the time of the appellant's marriage, the applicable law was
section 22 of the Black
Administration Act 38 of 1927. It provided
that :
22 (1) No male Native
shall, during the subsistence of any customary union between him and
any woman, contract a marriage with any
other woman unless he has
first declared upon oath, before the Magistrate or native
commissioner of the district in which he is
domiciled, the name of
every such first-mentioned woman; the name of every child of any such
customary union; the nature and amount
of the movable property (if
any) allotted by him to each such woman or house under native custom;
and such other information relating
to any such union as the said
official may require.
(2)
Upon the official before whom such declaration is made being
satisfied of the accuracy thereof,
it shall be recorded by him, and
such original record of the declaration, or a copy thereof certified
under the hand of any magistrate
or native commissioner of the
district in which it was recorded, shall be admissible in evidence in
any proceedings in which the
facts therein declared may be relevant,
and any document purporting to be such a record, or a copy thereof
certified as aforesaid,
shall
prima facie
be so admissible
without proof of its execution.
(3)
No minister of the Christian religion authorized under any law to
solemnize marriage, nor
any marriage officer, shall solemnize the
marriage of any Native male person unless he has first taken from
such a person a declaration
as to whether there is subsisting at the
time any customary union between such person and any woman other than
the woman to whom
he is to be married
and, in the event of any
such union subsisting, unless there is produced to him by such person
a certificate under the hand of a
magistrate or native commissioner
that the provisions of this section hereinbefore set out have been
duly complied with.
(4)
Any person contravening sub-section (3) shall be guilty of an
offence, and shall, upon conviction,
be liable to a fine not
exceeding twenty-five pounds, or, in default of payment, to
imprisonment for a period not exceeding three
months.
(5)
Any Native male person who during the subsistence of any customary
union between him and
any woman contracts a marriage with any other
woman without having previously made a declaration referred to in
sub-section (1)
or sub-section (3) shall be guilty of an offence and
shall, upon conviction, be liable to a fine not exceeding fifty
pounds or,
in default of payment, to imprisonment for a period not
exceeding six months; and any Native male person who knowingly makes
any
false statement in any such declaration shall be guilty of an
offence and punishable in the same manner as if he had committed the
crime of perjury.
(6)
A marriage between Natives, contracted after the commencement of this
Act, shall not produce
the legal consequences of marriage in
community of property between the spouses: Provided that in the case
of a marriage contracted
otherwise than during the subsistence of a
customary union between the husband and any woman other than the wife
it shall be competent
for the intending spouses at any time within
one month previous to the celebration of such marriage to declare
jointly before any
magistrate, native commissioner or marriage
officer ( who is hereby authorized to attest such declaration) that
it is their intention
and desire that community of property and of
profit and loss shall result from their marriage except as regards
any land in a location
held under quitrent tenure such land shall be
excluded from such community.
(7)
No marriage contracted after the commencement of this Act during the
subsistence of any
customary union between the husband and any woman
other than the wife shall in any way affect the material rights of
any partner
of such union or any issue thereof, and the widow of any
such marriage and any issue thereof shall have no greater rights in
respect
of the estate of the deceased spouse than she or they would
have had if the said marriage had been a customary union.
(8)
Nothing in this section or in section twenty-three shall affect any
legal right which has
accrued or may accrue as the result of a
marriage in community of property contracted before the commencement
of this Act
Subsection
1 provided that no black male could , during the subsistence of any
customary union between him and any woman, contract
a marriage with
any other woman unless he had first declared upon oath, before the
Magistrate or native commissioner of the district
in which he is
domiciled, the name of every such first-mentioned woman; the name of
every child of any such customary union; the
nature and amount of the
movable property (if any) allotted by him to each such woman or house
under native custom; and such other
information relating to any such
union as the said official could require.
The
provision of section 22 of the Black Administration Act 38 of 1927 as
reflected in paragraph 14 of the appellant's founding
affidavit is
not accurate.
[16]
Having regard to section 22(6) of the Black Administration Act 38 of
1927, the marriage
between the appellant and the deceased would not
produce the legal consequences of the marriage in community of
property. Prayer
four of the application is thus not competent.
[17]
At the time
of the marriage of the first respondent on the 23rd December 1996,
section 22 of the Black Administration Act was amended
by the
Marriage and Matrimonial
Property
Law
Amendment
Act 3 of
1988 which came into operation on the 2nd December 1988. Its section
1(1) provided that a man and a woman between whom
a customary union
subsisted were competent to contract a marriage with each other if
the man was not also a partner in a subsisting
customary union with
another woman. Section 1 (2) provided that subject to subsection 1,
no person who was a partner in a customary
union was competent to
contract a marriage during the subsistence of that union. Subsection
3 barred a marriage officer from solemnising
the marriage of a Black
man unless he had first taken from him a declaration to the effect
that he was not a partner in a customary
union with any woman other
than the one he intended marrying.
[2]
[18]
It is important to note that while section 1 of the Marriage and
Matrimonial Property Law
Amendment Act 3 of 1988 amended section 22
of the Black Administration Act, the Act repealed the whole section.
[19]
The
document
relied upon
by the court
of first
instance
is
described as
"an
uncertified or unverified copy of an ID-document in which
a
single
line reads: MARRIED
ON
1979-03-13"
There
is no indication
as
to whom she is supposed to be married to. There
is
no
ID-number of the alleged
spouse.
No
names
either."
[3]
This
document does not appear to form part of the pleadings and having
regard to the annexures attached to the pleadings at the
hearing of
the court of first instance, the closest to this document is annexure
FA 3 attached to the founding affidavit. It reads:
[....]
SURNAME: M[....]2
NAMES: L[....] R[....]
MAIDEN: TSHIKORORO
NAMES: M[....]1 J[....]
MARRIED ON: 1979/03/13
This document has
particulars relating to the appellant's full names and maiden
surname, the surname and names of the person to
whom the appellant is
married as well as the date of marriage. The document presented to
the court of first instance is described
by the court as having no
indication as to whom the appellant is supposed to be married, no
identity number of the alleged spouse
of the appellant and no names
of her spouse. If this is the description of annexure FA 3 to the
founding affidavit, this description
is with respect incorrect.
[20]
The appellant's case is that when their marriage was registered, they
were issued with
the marriage certificate which has been lost. It is
not clear if it was a separate document or was endorsed in the
appellant's
identity document. The records of the Department of Home
Affairs and the Magistrates office do not reflect the registration of
their marriage for the duplicate certificate to be issued. Home
Affairs told the appellant that it can only issue duplicate
certificate
if a copy of the marriage certificate is brought to the
office. She submits that the fact that she is unable to produce the
lost
marriage certificate does not invalidate her marriage to the
deceased. She submits that in the absence of certificate, annexure
FA
3, being a copy of the third page of her identity document, is
prima
facie
proof of the existence of her customary marriage to the
deceased as envisaged in section 4(8) of the Act and unless
wrongfulness
or unlawfulness such as fraud is proved, that becomes
conclusive proof of the registration of her marriage to the deceased.
The
appellant further submits that in terms of section 2(1) of the Act, a
marriage which is a valid marriage in terms of customary
law and
existing at the commencement of the Act, is for all purposes
recognised as a marriage.
[21]
The reason the first respondent does not accept annexure FA 3 as
proof of the marriage
between the appellant and the deceased appears
to be based on her enquiries at the Department of Home Affairs which
revealed the
appellant's marital status as unmarried.
[22]
The court of first instance accepted the document placed before it as
evidence, but have
rejected its validity for the purpose of proving
the appellant's marriage on the basis that it was forged.
The
court of first instance found that there is no proof of the marriage
by the two families of the appellant and the deceased,
that the
document presented to prove the marriage does not take the
appellant's case any further and no family documents were
exchanged.
[4]
The
judgment further says the document relied on has no particulars of
the person the appellant is married
to. It
found
that
the
appellant
failed
to
establish
the
existence of the marriage asserted to the appellant
[23]
The appellant's submission is that what she regards as the
registration certificate issued
to her is evidenced by annexure FA 3
to her founding affidavit, which is
prima facie
proof not only
of the existence of her customary marriage to the deceased, but also
of the particulars of her former spouse and
the date of marriage, as
envisaged in section 4(8) of the Act. In the absence of evidence of
any illegality such as fraud, the
existence of the appellant's
marriage to the deceased is on the balance of probability
established. The court of first instance
found that there was forgery
in relation to the documents presented to it, resulting in the
dismissal of the appellant's case.
The record of the proceedings
shows no evidence of forgery.
[24]
On the required balance of probabilities and based on annexure FA3 to
the founding affidavit,
the appellant has proved that she was married
to the deceased, which marriage was registered on the 13th March
1979.
[25]
Given the above, the next question is whether the first respondent's
civil marriage contracted
subsequent to the appellant's marriage on
the 23rd December 1996 can survive. Like in the Murabi and Netshituka
cases, the answer
to that lies in section 1(1) and (2) of Marriage
and Matrimonial Property Law Amendment Act 3 of 1988 which came into
operation
on the 2nd December 1988. The appellant's marriage was
registered on the 13th March 1979, some nine years before the coming
into
operation of the Marriage and Matrimonial Property Law Amendment
Act 3 of 1988. At that time the legal position was regulated by
section 22 of the Black Administration Act 38 of 1927. In the light
of the production of annexure FA 3 to the founding affidavit,
there
is prima facie evidence of the appellant's marriage, obviating the
need to prove the requirements of the customary law and
of section 22
of the Black Administrative Act 38 of 1927.
[26]
Just like in the Murabi
[5]
case,
and given that section 1(2) of the Marriage and Matrimonial Property
Law Amendment Act 3 of 1988 prohibited a person who
was a partner in
a customary union to contract another marriage during
the
subsistence of such marriage , it was not legally competent
for
the
deceased
to
contract
a
civil
marriage
with
the
first
respondent during the subsistence
of the
customary marriage between
the
deceased and the appellant. A civil marriage contracted while a man
was a partner in an existing customary union with another
woman was a
nullity.
[6]
It follows that the
civil marriage between the deceased and the first respondent
contracted
on the 23rd
December
1996, having been contracted while the deceased was a partner in
existing customary union with the appellant, was a nullity.
It
follows
that it was
not legally
competent
for the
deceased
to
contract
a
civil marriage with the first respondent during the subsistence of
the customary marriage between the deceased and the appellant.
[27]
The appellant's marriage continues to be recognised in terms of
section 2(1) of the Act
[28]
The prohibition of the marriage in respect of the people in the
position of the deceased
is also provided in section 10(1) of the
Act.
[29]
There is no evidence how the birth of the parties' children plays any
role in the resolution
of this dispute.
[30]
The alternative relieves sought by the first respondent are matters
relating to the liquidation
and distribution of the estate of the
deceased referred to in the
Administration of Estates Act 66 of 1965
which fall under the jurisdiction of the second respondent. The
second respondent being the authority responsible for the
administration
of estates, it is undesirable to administer the
deceased's estate under the kind of the court order sought by the
first respondent.
The first respondent has been appointed the
executrix in the estate of the deceased.
[31]
This matter deserves the engagement of two counsels. There is no
reason why the costs should
not follow the results.
The Order
[32]
The late service and filing of this appeal is condoned.
[33]
The appeal succeeds.
[34]
The order of the court of first instance of the 30
th
November 2018 is set aside and replaced with the following order:
34.1 It is
declared that M[....]1 J[....] M[....]2 and L[....] R[....] M[....]2
were married by customary marriage and
their marriage was registered
on the 13th March 1979,
34.2 The
marriage between N[....] C[....]h M[....]2 and L[....] R[....]
M[....]2 is declared null and void an initio
34.3 The
first respondent is ordered to pay the costs, both of the court of
the first instance and this appeal. Both
costs to include the costs
of engaging two counsels.
LGP LEDWABA AJ
ACTING
JUDGE OF THE HIGH
COURT
LIMPOPO
DIVISION : POLOKWANE
I
agree
F
KGANYAGO J
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION : POLOKWANE
APPEARANCES
Heard
on:
21st October 2022
Judgement
delivered on:
November 2022
For
the Appellants:
MS Sikhwari SC with Adv Maree
Instructed
by:
MK MULAUDZI ATTORNEYS
For
the First Respondent: Adv
UB Makuya with Adv ML Magau
Instructed
by:
RAPFUMBEDZANIATTORNEYS
C/O MPHO MOKHITHI INC
G J DIAMOND AJ:
[1]
I have read through the majority judgement of Ledwaba AJ, and I am
unable
to agree with them for the reasons set out below.
[2]
The Appellant, who was also the applicant in the court a
quo
approached the court a quo in the end on a very simple basis.
[3]
She alleged that she was married according to customary law, to the
deceased
call, one L[....] R[....] M[....]2.
[4]
In paragraph 19 - 20 of the founding affidavit the Appellant
attempted
to prove that she and the deceased concluded a customary
law marriage, by attempting to prove compliance with the essential
requirements
for the conclusion of a customary marriage.
[5]
The court a
quo
ruled in the end that she was unable to
do so. Paragraphs 3 and 4, of the Notice of Appeal seem to be an
attempt to appeal against
the finding of the court
a quo
that
the Appellant failed to prove a customary law marriage by adducing
evidence of the conclusion thereof. The two grounds are
however
stated that in isolation in the Notice of Appeal. At the hearing
further, Mr Sekwari, who appeared for the Appellant stated
explicitly
that the Appellant persist with her appeal on the basis of the
stipulations of section 4(8) of the Recognition of Customary
Marriages Act, 1998 (Act 120 of 1998) ("the Act").
[6]
The
Appellant attached a document
[7]
purporting to be an identity document issued by the then Republic of
Venda, which identity document
ostensibly
carries
an
endorsement
of
the
existence
of
a marriage
between the Appellant and the deceased.
[7]
Section 4 of the Recognition of Customary Marriages Act, 1998 (Act
120
of 1998), stipulates as follows:
"4.
Registration of customary marriages.-
(1)
The spouses of
a
customary marriage have a duty to
ensure that their marriage is registered.
(2)
Either spouse may apply to the registering officer in the
prescribed form for the registration of his or her customary marriage
and must furnish the registering officer with the prescribed
information and any additional information which the registering
officer
may require in order to satisfy himself or herself as to the
existence of the marriage.
(3)
A customary
marriage-
(a)
entered into before the commencement of this Act, and which is
not registered in terms of any other law, must be registered within
a
period of 12 months after that commencement or within such longer
period as the Minister may from time to time prescribe by notice
in
the Gazette; or [General Note: The period for the registration of
customary marriages has been extended until 14 November, 2002
as
published under Government Notice No. 1228 in Government Gazette
22839 of 23 November, 2001.J
(b) entered into after the
commencement of this Act, must be registered within
a
period
of three
months
after
the
conclusion
of
the
marriage
or
within
such longer
period
as the Minister
may
from
time
to
time
prescribe
by notice in the Gazette.
(4)
(a) A registering officer must, if satisfied that the spouses
concluded
a
valid customary marriage, register the marriage by
recording the identity of the spouses, the date of the marriage, any
lobolo agreed
to and any other particulars prescribed.
(b)
The registering officer must issue to the spouses a certificate of
registration, bearing the prescribed particulars.
(5)
(a) If for any reason
a
customary marriage is not
registered, any person who satisfies
a
registering officer
that he or she has
a
sufficient interest in the matter may
apply to the registering officer in the prescribed manner to enquire
into the existence of
the marriage.
(b) If the registering
officer is satisfied that
a
valid customary marriage exists or
existed between the spouses, he or she must register the marriage and
issue
a
certificate of registration as contemplated in
subsection (4).
(6)
If
a
registering officer is not satisfied that a valid
customary marriage was entered into by the spouses, he or she must
refuse to register
the marriage.
(7)
A court may, upon application made to that court and upon
investigation instituted by that court, order--
(a)
the registration of any customary marriage; or
(b)
the cancellation or rectification of any registration of
a
customary marriage effected by
a
registering officer.
(8)
A certificate of registration of
a
customary marriage
issued under this section or any other law providing for the
registration of customary marriages constitutes
prima facie proof of
the existence of the customary marriage and of the particulars
contained in the
certificate.
(9)
Failure to register a customary marriage does not affect the
validity of that marriage.
[8]
The Appellant argues that, by virtue of Section 4(8) of the Act, the
identity
document qualifies as a certificate contemplated in Section
4(8) of the Act, and that, therefore the certificate provides of
prima
facie proof of the existence of a customary law union between
the Appellant and the deceased.
[9]
The court a
quo
rejected this argument, giving several reasons
and concluded that the Appellant failed to prove the authenticity and
nature of the
alleged identity document.
[10]
In my view, the first question that needs to be answered is whether a
valid identity document
qualifies to be regarded as"
[11]
"(8) A certificate of registration of
a
customary
marriage issued under this section or any other law providing for the
registration of customary marriages constitutes
prima facie proof of
the existence of the customary marriage and of the particulars
contained in the certificate."
[12]
Clearly, the identity document that was attached to the founding
document was not a
"certificate of registration of a
customary marriage issued under this section",
for obvious
reasons.
[13]
The only question that remains is whether such an identity document,
carrying an endorsement of marriage, qualifies to be a certificate
issued by
"any other law providing for the registration of
customary marriage".
If the identity document fails to be
within this category, then likewise, the identity document shall not
be a document for the
purposes of Section 4(8), and such a document
shall not confer on the. litigant the benefit that the document
itself shall be
prima facie
evidence of the customary law
marriage.
[14]
It is to be stressed though that the status of such a document shall
only be that it evidences
prima facie
evidence of a marriage -
it would still be open to an interested party to lead to rebutting
evidence of the existence of a customary
law marriage. Apart from
this, if a person does not have such an acceptable certificate, then
such a person is not remediless,
and such a person can still prove
the existence of the customary law marriage by adducing evidence of
the conclusion of the marriage
in terms of customary law.
[15]
Hence, any certificate that was issued under any law, which does
not
explicitly provide for the authority to register a customary law
marriage, would not qualify to be regarded as a certificate
for the
purposes of Section 4(8) of the Act.
[16]
Thus, if the legislation in terms of which identity documents of the
erstwhile Republic of Venda only
provides to capture the state of
affairs regarding citizens for instance, their marital status, then
and identity document issued
in terms of such legislation clearly
does not qualify as a certificate contemplated in the above-mentioned
section, and would not
be
prima facie
evidence of customary
law marriage.
[17]
And this is the argument of the Appellant. The Appellant states in
paragraph 1 of the notice
of appeal that
"This customary
marriage was registered in fer.ms of the marriage laws of the
Republic of Venda, and it is reflected in the
identity document of
the applicant issued to her by the Republic of Venda."
And
paragraph 2 of the notice of appeal states as follows.·
"The honourable
court misdirected itself by overlooking the fact that once
a
customary marriage is registered in whatever acceptable form, then
the certificate thereof constitutes prima facie proof of the valid
existence of such a marriage."
[18]
Mr Sekwari, appearing for the Appellant tried to bolster the above
two grounds during hearing
by stating that in the erstwhile Republic
of Venda, registration of marriages only took place in terms of the
same legislation
authorising the issuing of identity documents. It is
stated explicitly this was the only procedure and this is how it was
done
in Venda.
[19]
This contention flies into the face of the version of the Appellant.
The Appellant explains
in paragraph 28 of the founding affidavit that
she could clearly recall that she registered customary law marriage
and I
"was issued with
a
registration certificate which was way is small and marked
in bold caps
"R1
".
However, the
certificate is lost and after
a
diligent search I could not
locate it. Upon confronting the office of Home Affairs in Makwarela
with the view to obtain
a
duplicate certificate I was told
that the information was with the Magistrate office Thohoyandou that
can corroborate my story.
The office of the magistrates
(sic)
could not help either.
[20]
In this paragraph directly contradicts the subn1ission of Mr Sekwari.
[21]
The ground of appeal stating that "once a customary marriage is
registered in whatever
acceptable form" then the certificate
thereof constitutes prima far proof, can, in my view, not be
sustained.
[22]
The question is not whether a customary marriage "is registered
in whatever acceptable
form". The question is whether a person
holds in its hand, a certificate which
was issued
in terms of
a law
providing for the registration of customary marriages.
[23]
If a person does have such a certificate then such a person is
relieved of the duty to
the prove existence of the customary law
marriage by way of the normal way of evidence. If not, the subsection
does not apply and
the person will have to resort to the normal way
of proving that the customary law marriage existed.
[24]
There is absolutely nothing in the identity document attached to the
founding affidavit
that indicates in any way that it is a certificate
of customary law marriage in terms of a law authorising the
registration of
customary law marriages. What appears from the
identity document is only an endorsement of marital status.
[25]
I agree with the majority judgment that the court a quo erred in not
accepting that the
document attached to the founding affidavit was an
identity document carrying an endorsement of marital status. That in
my view,
does not take the matter any further for the Appellant.
[26]
I would also differ in a further respect with the majority judgement.
As is clear from
the motion proceedings filed in the court a
quo
the Respondent instituted a conditional counter application, the
condition being that the counter application is instituted should
the
Appellant be successful with the application. In my view therefore,
if one comes to the conclusion that the appeal should be
upheld, then
the application should be referred back to the court a quo, to
adjudicate the counter application.
[27]
I am, however, convinced for all the above reasons that the appeal
should simply be dismissed.
G.
J. DIAMOND
ACTING
JUDGE OF
THE
HIGH COURT
[1]
Paragraph 103 -page 34 of the judgment- Bundle A
[2]
Netshituka v Netshituka & Others
(2011) ZASCA 120
; 2011(5) SA
453(SCA)(Netshituka) – par 14
[3]
Paragraph 79 of the judgment.
[4]
Par 75 to 78 of the judgement.
[5]
(M
v
M-
Murabi
v
Murabi
(2014)
ZASCA
49
;
(2014)
2 All SA 644(SCA)
2014(4) SA 575(SCA) ( Murabi)- par 17
[6]
Murabi- par 17 Netshituka v Netshituka & Others
(2011) ZASCA
120
; 2011(5) SA 453(SCA)- par 15; Monyepao v Ledwaba
(2020) ZASCA
54-
par 19
[7]
Annexure
"FA2".