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[2022] ZAMPMBHC 80
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Malope v Minister of Home Affairs and Others (2358/2021) [2022] ZAMPMBHC 80 (21 October 2022)
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THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
CASE
NO: 2358 / 2021
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
21
October 2022
In
the matter between:
BONGIWE
PRETTY
MALOPE PLAINTIFF
And
MINISTER
OF HOME AFFAIRS FIRST
DEFENDANT
THE
MASTER OF THE HIGH COURT SECOND
DEFENDANT
JEANIE
ERASMUS THIRD
DEFENDANT
(EXECUTOR
OF THE ESTATE LATE
MATSANE
WELCOME THABO)
YVETTE
BATHABILE MATSANE FOURTH
DEFENDANT
ASANDE
BRANDON MATSANE FIFTH
DEFENDANT
BATHABILE
CHANTEL MATSANE SIXTH
DEFENDANT
J
U D G M E N T
RATSHIBVUMO
J:
Delivered:
This
judgment was handed down electronically by circulation to the
parties' representatives by email. The date and time for hand-down
is
deemed to be 14H00 on 21 October 2022.
[1]
Introduction
.
Facts
of this case are largely undisputed. It is the legal interpretation
thereof that is in dispute. Evidence led combines recent
and not so
recent history in the lives of the man and the woman he chose to be
his wife. The following appears from a distant history.
Two young
hearts were bound together by love and romance. They agreed to take
their enchantment to the next level so they could
be a husband and a
wife. Elders from the groom’s family were sent to negotiate and
pay
lobola
for the bride. A big day of traditional
celebrations was set to be some six weeks later. As fate would have
it, this was not to
be. The big day found the bride lying paralysed
in hospital. It was just two weeks before the big day that the groom
was driving
his bride at night, to Kanyamazane, where he had been
renting a compound; that they were involved in a car accident.
[2]
When she was
discharged from hospital, she was wheelchair bound, a position that
still subsists. The two proceeded to live
together as a husband
and wife, without the big day celebrations they had envisaged. Life
turned to be different to what they had
anticipated as lovers or as a
couple. About three years later, they separated and even stopped
cohabiting. That is how far the
distant history goes. In the not so
distant history, fast-forwarded to 10 years later, the groom died.
That was on 19 March 2021.
The Third to the Sixth Defendant (jointly
referred to as the Defendants) refuse to recognise the lady whose
lobola
was paid by the deceased in 2007 (the Plaintiff), as his wife.
[3]
It is for the
aforementioned reason that the Plaintiff launched an application,
later converted into this action through a court
order, seeking the
order in the following terms:
a)
That the
customary marriage between the Plaintiff and the deceased, entered
into on 04 November 2007 be declared valid;
b)
That the First
Defendant be directed to register the customary marriage;
c)
The Second and
the Third Defendants be directed to recognise the Plaintiff as the
surviving spouse of the deceased;
d)
Costs of suit
in the event of the same being defended.
The
action is opposed by the Defendants. The First and the Second
Defendants do not oppose the Plaintiff’s action.
[4]
Gleaning from
the above, issues to be determined are therefore limited to the
following: Was there a valid marriage concluded between
the Plaintiff
and the deceased? If there was, did the said marriage subsist at the
time of the deceased’s demise. This would
also entail a finding
on how a traditional marriage is terminated and whether the same was
done in this case.
[5]
Three
witnesses testified for the Plaintiff including the Plaintiff
herself. The Third Defendant was the sole witness for the Defendants.
Following is the summary of facts from the evidence that was led.
[6]
Case for
the Plaintiff.
Bongiwe
Pretty Malope:
She
is the Plaintiff in this case. She is from Pedi tribe. She testified
that she fell in love with Welcome Thabo Matsane (the deceased)
in
2006. At that stage she was 26 and he was 32 years old. The deceased
sent a delegation of elders from his family arriving at
her home on
04 November 2007, in order to negotiate and pay
lobola
for her. The delegation from her family’s side to receive the
Matsane delegates comprised of her neighbour named Isaac Simelane
and
her grandparents Sarah and Mbanjwa Gininda. When the Matsane
delegation was there, her mother called her in to confirm if she
knew
them and she confirmed. The Matsane delegation asked to leave with
her but her mother declined saying she would follow to
their family
the next day. This was to let her remain attending to the Malope
visitors who were there for her
lobola
negotiations.
[7]
As promised,
she was taken to Matsane family on 05 November 2007. Once there, the
deceased’s brother, Selby Matsane introduced
her to members of
the Matsane family. She also testified that she and the deceased had
planned a big celebration on 16 December
2007 but this did not
materialise as she was involved in a car accident on 01 December
2007. She was in the company of the deceased
who was the driver that
night. He was however not injured. She was paralysed and lost her
mobility since then. She was admitted
in hospital for 13 weeks and
when she was discharged, she was wheelchair bound.
[8]
Prior
to the car accident, she used to visit the deceased at his place.
They only started staying together as a husband and a wife
from June
2008 following her discharge from hospital. In August 2008, she moved
to D[....] because she had secured a new job as
a nurse there. The
two however remained committed to their marriage as in December 2009,
she left her job and came back to their
marital home in W[....]. They
continued staying together until 2011 when the deceased moved out to
go and reside in B[....], in
a house that he bought in 2009 through
an auction. That marked the beginning of their separation, never to
be together as a family
again. She confirmed that during their years
of separation, she had a lover named Cavallo. Out of this
relationship, a child was
born. That was in 2014. She however never
stayed together with Cavallo. She was never married to anyone else
except the deceased.
[9]
As
introduction to the cross examination, lights were dimmed and the
court was treated to a moment of watching a powerful and motivating
documentary called My First. This is an SABC 1 production which is
also accessible on YouTube on this website:
https://www.youtube.com/watch?v=1JutqA4xSaQ
.
It was aired by the SABC on 18 December 2017. It focused on the
Plaintiff as a person overcoming her disability and resolving
to open
a private clinic against all odds. People close to her like her
mother and friends were interviewed talking about the Plaintiff’s
upbringing, her strengths and her strong will.
[10]
Only few
snippets of the documentary were relevant for this trial. In the
documentary, the Plaintiff avers that she was traditionally
married
and she refers to the person she was married to, as her ex-husband.
The Plaintiff’s mother confirms in this documentary
that
lobola
was paid for her. She however adds that she had planned to take the
Plaintiff to her in-laws on the 16
th
December 2007. This however did not happen as she was involved in a
car accident. Lastly, the Plaintiff states in the documentary,
just
as she testified, that after she was discharged, she stayed with her
husband in W[....] and that things did not work out between
her and
the husband. She finally called her mother to say she will be leaving
her marital home in W[....], which she eventually
did.
[11]
In cross
examination, the Plaintiff confirmed the documentary as reflecting
what was recorded and aired by the SABC. She was steadfast
in her
version to the effect that she was introduced to her in-laws on 05
November 2007 and that there was no need for her to be
handed over by
her mother as she said she planned to do on 16 December 2007 in the
documentary. She also indicated that she referred
to her marriage in
the past tense although she was only separated from her husband as
she had moved on and she was not going to
be able to prove the
existence of that marriage.
[12]
She
was further referred to a document that she completed in applying for
home loan where she had indicated her marital status as
single.
[1]
She confirmed this to have been a document processed when she applied
for home loan finance and that she had to write that she
was single
as she would not have been able to produce a marriage certificate if
she had indicated that she was married and they
asked for proof. This
was because their marriage was not registered with the Department of
Home Affairs. She gave the same explanation
on why her status in the
companies where she served as a director is reflected as being
single. She also confirmed that she is
the one who walked out of the
marriage when she left the marital home. She did not attend the
deceased’s funeral because
her in-laws did not come to collect
her as they had promised.
[13]
Of some great
importance is a document presented to the plaintiff by the
Defendant’s counsel which happened to be the deceased’s
will. The will is not disputed by any of the parties. In fact, it is
because of the will that the Third Defendant finds herself
with the
requisite
locus
standi
as
she had been nominated by the beneficiaries listed in it, including
the Plaintiff. It is apposite though to indicate at this
stage that
the Plaintiff denied having nominated the Third Defendant as the
executor of the deceased’s estate. According
to her, she was
asked by the Third Defendant to simply sign a document and to write
that she was an ex-wife.
[14]
In the opening
paragraphs of the deceased’s will, dated 13 November 2009 which
remains valid to this day, the deceased stated
as follows:
“
I
Welcome Thabo Matsane (Identity number [....]), declare this to be my
Last Will and Testament, and I hereby revoke, cancel and
annul all
wills, codicils or other testamentary dispositions previously made by
me.
1.
It is my wish
and desire that if practicable my body shall be buried.
2.
I bequeath my
estate as follows:
a)
25% (Twenty
five percent) to my wife Bongiwe Pretty Malope (ID [....])…”
He
then proceeded to bequeath the remainder of 75% to other persons
including his children and his parents.
[15]
The
purpose of introducing the will was to show that the Third Defendant,
who was defending the action on behalf of the Fourth to
the Sixth
Defendants, was willing to release 25% share of the estate to her,
but that should be it. Another reason for referring
to the will was
to introduce evidence by the Third Defendant to the effect that at
the time of his demise, the deceased did not
consider himself married
and that he intended to amend the will to exclude Plaintiff. This
piece of evidence was ruled to be inadmissible
by the court, as it
constitutes hearsay evidence. Although the reasons were given at the
time the ruling was made, they will be
further ventilated later in
this judgment.
[2]
[16]
Selby
Matsane:
He is the deceased’s elder brother and a teacher by profession.
He referred to the Plaintiff as his younger brother’s
wife. He
and the deceased were of Sotho tribe. He gave evidence in Tsonga
because his grandmother was Tsonga and following the
death of his
grandfather, she grew up the whole family observing the Tsonga
culture and practices. He testified that he led the
delegation that
went to negotiate and pay
lobola
for the Plaintiff on 04 November 2007 at the Malope family; having
been sent by the deceased. Other members of the delegation that
went
with him are Liza Phaswane, Thesina Bangale, Idina Matsane and Gideon
Mathebula.
[17]
Upon their
arrival, they waited outside the gate in line with the cultural
practices, so they could be invited in, which is a sign
of being
welcomed. Someone from the host family came and invited them in. Once
inside and after they greeted and introduced themselves,
they then
indicated that they were there because they saw a beautiful woman.
The Malope family wanted to know if the visitors knew
the said woman
and they brought in three women for them to identify Bongiwe, which
they did. They proceeded to hand over the gifts
they had brought
along being, a blanket, a case of beer, soft drinks and a 750 ml
bottle of Viceroy brandy. They were charged 15
cows for
lobola
,
with each cow valued R1 000.00. They paid R6 000.00 and
said they would come back to pay the balance of R9 000.00.
He
confirmed that the document on page eight of the paginated bundle was
the
lobola
letter he signed on that day. It was written in Swati by Isaac who
was part of the Malope delegation.
[18]
He testified
further that he and his delegation requested to take their bride with
now that they married her. The Malope family
however did not accede
to this saying, she would be brought to the Matsane family the
following day and they agreed. As promised,
the bride was brought
following day. It was the deceased who went to fetch her in his car.
She was in the company of her aunt and
her two sisters who handed her
over to Matsane family. He testified that he then took over and
presented the Plaintiff to the Matsane
family as
makoti
.
There were ululations and celebrations. There were many people there
and plenty of food to eat as they celebrated the arrival
of
makoti
.
[19]
He
agreed that the signature on the
lobola
letter looked different to his signature appended to an affidavit
allegedly made by him in 2021.
[3]
The signatures in both documents were however his. The difference was
due to time passage between 2007 and 2021 and that when he
signed the
2021 document, he did not look at the
lobola
document to make sure that the signatures would look similar. He
denied that he and his brother Mandla were the driving force behind
this action or that they were angry because the deceased did not
include them in his will. He indicated that he was financially
stable
as he worked as a teacher and Mandla was a successful businessman.
[20]
Thesina
Busisiwe Matsane:
She
was part of the delegation that went to marry the Plaintiff on 04
November 2007 at Kanyamazane. The deceased was her brother’s
son. Other people who went with her are Selby Matsane, Idina Matsane,
Gideon Mathebula and a certain Phaswane. They were sent by
the
deceased, Welcome Trompies Matsane, who also gave them cash for
lobola
,
a blanket, a beer crate, another crate soft drinks, a hat and a
jacket to exchange as gifts. Her evidence regarding the
lobola
negotiations is identical to that of Selby Matsane and as such, need
not be duplicated here.
[21]
She
was confronted with the fact that her signature on the
lobola
letter looked different to a signature she appended to an affidavit
in 2021.
[4]
The one on the
lobola
letter read Mpangane and the one made in 2021, Matsane. She confirmed
that both were her signatures. At the time she signed the
lobola
letter, she was married to Mpangane who had already paid
lobola
for her. She however also signs as Matsane as she never changed her
surname in the identity book after marrying to Mpangane. It
was a
common practice for her to interchange signatures to this day because
when called as Mrs. Mpangane at church, she would sign
as Mpangane
while she also signs other documents as Matsane.
[22]
At the time
she gave evidence, she was a 67 years old pensioner who was a
housewife throughout and was not employed at any stage
of her life.
She knew the Plaintiff prior to 04 November 2007. She was there at
the Matsane family home when on 05 November 2007,
the deceased
brought the Plaintiff and introduced her as
makoti
.
There was a plan to have a celebration in which the community would
be informed that the deceased was now a married man. This
did not
take place as on that date, the Plaintiff was hospitalised following
a car accident. According to her understanding of
the custom, once
lobola
was paid for a woman, albeit just a portion thereof, she becomes a
wife immediately.
[23]
With
this evidence, case for the Plaintiff was closed. The Defendants then
applied for absolution from the instance to be granted
arguing that
there was no case made out for them to answer. This application was
opposed by the Plaintiff. The court refused this
application holding
that there was a case for the Defendants to answer. Although the
reasons were given at the time the ruling
was made, they are further
ventilated later in this judgment.
[5]
[24]
Case for
the Defendant.
Jeanie
Erasmus:
She
is the executor in the deceased estate having been nominated as such
by the beneficiaries. According to the deceased’s
will, the
beneficiaries are the Plaintiff, the children of the deceased or
their parents acting on behalf of the minor children.
She is also the
Third Defendant in this case. She was the deceased’s financial
adviser since 2009. Her evidence focused mainly
on her role as the
executor and the meetings and/or talks she had with various people
regarding the estate which is not directly
linked to issues at hand.
Eventually, she testified that the Plaintiff did not want to have
anything to do with the claim from
the deceased’s estate. She
(the witness) is the one who persuaded her to take part in the
inheritance and she agreed. When
she talked to her, the Plaintiff
presented herself as an ex-fiancé of the deceased. According
to her records, the deceased
was not married for the whole duration
that she dealt with him.
[25]
She worked for
First National Bank as a financial advisor at the time she met the
deceased for the first time. When he brought to
her attention that he
wanted a will drafted, she referred him to the legal department for
that purpose. She only saw the will about
a month after it was
drafted and that it made reference to a wife. Despite the ruling
regarding hearsay evidence, she did testify
to the effect that the
deceased told her he was not married and that he intended to have the
will amended to remove the Plaintiff
as one of the beneficiaries.
When questioned about her understanding of the words “my wife”
contained in the will,
she indicated that many people do refer to
others as wives while not married to them.
[26]
With this
evidence, case for the defendant was closed. Heads of arguments were
made available by both parties in which the Plaintiff
submitted that
the court should find in her favour. The Defendants on the other hand
submitted that the claim by the Plaintiff
should be dismissed.
[27]
The ruling
against the hearsay evidence.
As
indicated above, the Defendants sought to introduce hearsay evidence
through cross examination. The urge to lead this evidence
showed up
again when the Third Defendant gave evidence as she
argued
that disallowing her to testify on conversations she had with the
deceased would leave her case with no evidence to present
at all.
[28]
The
application to lead hearsay evidence was premised on the
Law of
Evidence Amendment Act 45 of 1988
. The Defendants argued that since
the deceased was no more, it would be fair to hear what his voice
would have been in this trial
as his views were expressed to the
Third Defendant. It was therefore submitted that the court should
provisionally admit hearsay
evidence. This application was opposed by
the Plaintiff who argued that it would be unfair to have hearsay
evidence admitted on
issues that were decisive whereas the Plaintiff
is deprived of a right to cross examine such a witness as he is no
more.
[29]
Section 3
of
the
Law of Evidence Amendment Act 45 of 1988
provides,
“
3
Hearsay evidence
(1)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence at criminal or civil proceedings,
unless
-
(a)
each party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at
such proceedings;
(b)
the person upon whose credibility the probative value of such
evidence depends, himself testifies at
such proceedings; or
(c)
the Court, having regard to -
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
(vi)
any prejudice to a party which the admission of such evidence
might
entail; and
(vii)
any other factor which should in the opinion of the Court be taken
into account,
is
of the opinion that such evidence should be admitted in the interests
of justice.
(2)
The provisions of ss (1) shall not render admissible any evidence
which is inadmissible on any ground other than that such evidence
is
hearsay evidence.
(3)
Hearsay evidence may be provisionally admitted in terms of ss (1)(b)
if the Court is informed that the person upon whose credibility
the
probative value of such evidence depends, will himself testify in
such proceedings: Provided that if such person does not later
testify
in such proceedings, the hearsay evidence shall be left out of
account unless the hearsay evidence is admitted in terms
of para (a)
of ss (1) or is admitted by the Court in terms of para (c) of that
subsection.”
[30]
It is clear
from
section 3(3)
of Act 45 of 1988 that the only time a Court may
admit hearsay evidence provisionally is when it is informed that the
person upon
whose credibility the probative value of such evidence
depends, will himself/herself testify in such proceedings at a later
stage.
It is also clear that when evidence is provisionally admitted
and the said person does not later testify in such proceedings, the
hearsay evidence must be left out of account. When it is known that
such a witness shall not testify because he died, there is
therefore
no room for provisional admission of such evidence. The only room
left open would therefore be to admit it in terms of
section 3(1)(a)
or 3(1)(c) of this Act. Section 3(1)(a) which provides for evidence
admission by agreement between the parties,
is also out of choice as
the Plaintiff is opposed to this application. This leaves the
Defendants confined to section 3(1)(c) in
their application.
[31]
The
seven factors listed under section 3(1)(c) of Act 45 of 1988 need to
be evaluated as a whole as opposed to singling out just
one of them
for purpose of determining the admissibility of hearsay evidence. As
for the nature oif proceedings, this is a civil
trial and the reason
for the application is because the person upon whose credibility the
probative value of such evidence depends
has died. This leaves the
court to consider only a limited number of factors, being the purpose
for which the evidence is tendered,
the probative value of the
evidence, any prejudice to a party which the admission of such
evidence might entail and any other factor
which should in the
opinion of the Court be taken into account.
[6]
[32]
As
for the purpose for which the evidence is tendered and the probative
value of the evidence, Schutz JA said the following in
S
v Ramavhale
[7]
,
“
I
do not wish to enter into the debate whether s 3(1)(
c
)
should or should not 'be lightly applied,' but I would agree with the
remarks in this and other cases, the effect of which is
that a Judge
should hesitate long in admitting or relying on hearsay evidence
which plays a decisive or even significant part in
convicting an
accused, unless there are compelling justifications for doing so.”
I
would add to this that a Judge should hesitate long in admitting or
relying on hearsay evidence which plays a decisive or even
significant part in finding for any of the parties in a civil claim.
[33]
As for the
prejudice the Plaintiff may suffer with the admission of such
evidence, it appears to be enormous. The kind of evidence
sought to
be led appears to give a direct response to the issues being tried in
this matter. The Plaintiff has a right to cross
examine the witnesses
whose evidence is determinative on the outcome of the trial. In
considering the purpose for which the evidence
is tendered, the court
was of a view that the provision above was meant to allow evidence
necessary to complete a puzzle for the
court to have a clear
background picture, provided the same is not determinative of the
trial outcome.
[34]
Lastly, any
other factor which should in the opinion of the Court be taken into
account. Given the issues in dispute and the kind
of evidence sought
to be led, it is my view that the court should also consider whether
such evidence would be relevant and necessary.
Two aspects come from
the submissions made by the Defendants: The first is what the
deceased considered his marital status to be
as told to the Third
Defendant. The second is what the deceased intended to do regarding
his will.
[35]
I am of the
view that this hearsay evidence would not take the case for the
Defendants any further because in order to determine
if the deceased
was married, there would be very little weight attached to what he
believed his status to be, even if he was to
be alive and give
evidence to that effect. What is relevant is the facts, in other
words, whether what happened depicts a status
of being married in
terms of the law. This has nothing to do with one’s conviction
or intention.
[36]
If the
deceased was alive and was to defend this action, the court would be
interested in hearing from him the facts around the
lobola
negotiations for the Plaintiff and evidence about him staying with
the Plaintiff as a family. Evidence on what he planned to do
in his
will or what he considered himself to be would be as irrelevant as
what the Plaintiff considered herself to be her status
when she was
interviewed by the SABC in 2017 or when she applied for a home loan.
For all the reasons stated above, the court declined
to admit hearsay
evidence. To the extent that hearsay evidence was led irrespective of
this ruling, the same shall be excluded
and not considered as
evidence tendered.
[37]
Absolution
from the instance.
The
principles that apply when considering if an absolution from the
instance should be granted, at the close of the plaintiff’s
case were laid down in
Claude
Neon Lights (SA) Ltd v Daniel
[8]
where
Miller AJA said the following,
“
It
is to that question that I now turn, bearing in mind that, when
absolution from the instance is sought at the close of plaintiff's
case, the test to be applied is not whether the evidence led by
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. (
Gascoyne
v Paul and Hunter
,
1917 T.P.D. 170 at p. 173;
Ruto
Flour Mills (Pty.) Ltd
.
v
Adelson
(2),
1958
(4) SA 307
(T)
).”
[38]
These
principles were restated in
Gordon
Lloyd Page & Associates v Rivera and Another
[9]
where
the Supreme Court of Appeal (the SCA) Harms JA said,
“
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 (
Marine
& Trade Insurance Co Ltd v Van der Schyff
1972
(1) SA 26 (A)
at
37G - 38A; Schmidt
Bewysreg
4th ed at 91 - 2). As far as inferences from the evidence are
concerned, the inference relied upon by the plaintiff must be
a
reasonable one, not the only reasonable one (
Schmidt
at 93). The test has from time to time been formulated in different
terms, especially it has been said that the court must consider
whether there is 'evidence upon which a reasonable man might find for
the plaintiff' (
Gascoyne
(loc cit
))
- a test which had its origin in jury trials when the 'reasonable
man' was a reasonable member of the jury (
Ruto
Flour Mills
).
Such a formulation tends to cloud the issue. The court ought not to
be concerned with what someone else might think; it should
rather be
concerned with its own judgment and not that of another 'reasonable'
person or court. Having said this, absolution at
the end of a
plaintiff's case, in the ordinary course of events, will nevertheless
be granted sparingly but when the occasion
arises, a court should
order it in the interests of justice.”
[39]
At this stage
of proceedings, credibility plays no role at all, unless the
credibility of the witnesses for the Plaintiff was hopelessly
destroyed, it may warrant the granting of the order absolving the
Defendants. But this was not the argument before the court. The
argument was more about the Plaintiff having made no case for the
Defendants to answer. Given the totality of the evidence presented
by
the Plaintiff of which the witnesses that the Defendant undertook to
call could not counter as they were not there in 2007 or
could not
have participated; the court was of the view that there was evidence
upon which a court, applying its mind reasonably
to such evidence,
could or might (not should, nor ought to) find for the plaintiff. For
that reason, the application was refused.
[40]
Any
reliance by the Defendants on
Stellenbosch
Farmers' Winery Group Ltd v Martell et Cie & Others
[10]
regarding
the technique generally employed by courts in resolving factual
disputes was misplaced as at this stage of proceedings
the court only
had one version being that of the Plaintiff. Any version that was put
by the Defendants to the Plaintiff’s
witnesses cannot count as
evidence as the same was not made under oath and tested through cross
examination. It would therefore
be premature to apply the said
techniques for purposes of absolution from the instance.
[41]
Evidence
evaluation.
Although
the factual disposition presented by the Plaintiff is disputed by the
Defendants, they offer no alternative version as
being the accurate
facts. The simple reason is that the only witness who testified for
the Defendants was not there when the alleged
incidence pertaining to
lobola
negotiations took place. In fact, she only met the
deceased in her professional capacity as a financial advisor who
worked for
First National Bank where the deceased was a client. At
the time she met him in 2009, the alleged
lobola
negotiations
had long passed – in 2007. It is for this reason that I hold a
view that the factual disposition presented by
the Plaintiff stands
undisputed. The Defendants could not produce a witness to counter the
Plaintiff’s version.
[42]
The court is
conscious of the fact that failure by the opponent to present a
counter version does not automatically translate to
the one presented
being accepted. One can hope, as the Defendants appear to have done
in casu
,
that the only version presented would be self-contradictory to the
extent that it would be found to be improbable and not worth
of being
accepted as being probable on the balance of probabilities. This is
more like hoping for the Plaintiff to score own goals.
A number of
issues were raised by the Defendants during the trial in an attempt
to expose the improbabilities in the Plaintiff’s
version which
I will deal with.
[43]
Suggestions
that Selby Matsane could be pushing for this litigation because he
was left out of a will by his brother is speculative,
lacking the
basis and not supported by facts. He was justified to be offended by
the accusations as nobody testified that he was
pushing for the
litigation. The Plaintiff herself denied this. I also do not see how
this claim, if true would stand to benefit
him even if the Plaintiff
is successful. Equally, there is nothing wrong in pushing for the
litigation, as long as in so doing
it is based on the truth and meant
to acquire justice.
[44]
Perhaps the
issues that stand out deserving some analysis by the court pertain to
the fact that Selby Matsane did not mention that
the jacket and the
hat were presented by the Matsane delegation as gifts to Malope
family, something that was mentioned in the
lobola
letter. Another issue is about the signatures of the two witnesses
who testified for the Plaintiff who are alleged to have signed
the
lobola
letter, which differ from the signatures they appended to their
affidavits in 2021. The last issue would be that the Malope
delegation
did not sign the
lobola
letter.
[45]
On the first
issues, Selby Matsane indicated that he was testifying only on the
things he could remember and things of value in
respect to
lobola
negotiations. At the time he gave evidence, it was almost 15 years
from the date of
lobola
negotiations. Forgetfulness comes naturally even with the very genius
of this earth, with the passage of time. For him to remember
every
detail of what was exchanged could even suggest a recently cooked or
fabricated story.
[46]
The court
reaches the same conclusion when it comes to the signatures that
appear different when compared to those appended some
15 years later.
After all, the two witnesses acknowledged that different as they
appear to be, the signatures were appended by
them. Selby Matsane
indicated that when he signed in 2021, he did not first look at the
document he had signed in 2007 so he could
sign the same way. His
signature has been evolving with passage of time. Thesina Busisiwe
Matsane also indicated that she sometimes
signs using the marital
name (like when she is addressed as Mrs. Mpangane at church) while
she also uses her maiden name. For a
woman who was at the Malope
family to negotiate
lobola
and marry a woman for her brother’s son, presenting herself as
Mrs. Mpangane should not come as a surprise. The explanation
makes
sense in my view.
[47]
If this
version is not acceptable, there would just be no logical explanation
regarding the different signatures and the omission
of the other
gifts in the evidence tendered by Selby Matsane. That is, if the
lobola
letter was a recently fabricated document, one would have expected
the signatures therein to be identical to those appended in
the 2021
affidavits since both documents would have been manufactured post the
deceased’s demise in 2021, by the very witnesses.
Again, Selby
Matsane would have no reason to forget that the gifts exchanged
included a jacket and a hat as these would both have
started existing
in his mind in 2021.
[48]
Lastly, the
lobola
letter was criticised for having not been signed by the Malope
delegates. An explanation proffered by Selby Matsane was the
possibility
that as elderly couple, the old man and the old woman
might have been illiterate. He however believed that the people who
were
bound to sign were the visitors. This aspect brings up the
question as to who is supposed to sign a
lobola
letter between the bride and the groom’s family. Similarly, it
may be asked as to whether a
lobola
letter has to be signed at all or it suffices to mention the names of
those present. As if the conundrum is not complicated enough,
one may
also ask if a
lobola
letter is even necessary or a prerequisite in completion of a
customary marriage.
[49]
The
answer to all the above is that there is no hard and fast rule.
Customary law is not rigid hence the statute does not attempt
to
define it when it comes to a marriage celebrated in terms of custom.
It is however 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.
[11]
While its
production would normally solidify the assertion of
lobola
negotiations, a
lobola
letter is not even a requirement for concluding a valid customary
marriage. The explanation given by Selby Matsane cannot be rejected
given that his was not to explain himself on anything done that was
not supposed to be done in the first place.
[50]
The
Plaintiff’s version gets more probable when one compares it
with the deceased’s will which was discovered by the
Defendants
and the SABC documentary referred to above as these were done without
any of the parties envisaging this litigation.
When the deceased
wrote a will in 2009, he bequeathed 25% of his assets to a woman he
described as his wife. It therefore cannot
be true that the deceased
always presented himself to the Third Defendant as a single man in
all his dealings with her, or at least
from the records she had
access to pertaining to him. This is because she claims to have been
the one who referred the deceased
to the legal department for the
drafting of the will, which she had sight of, about a month later. It
means that the Third Defendant
is aware that when the deceased
presented himself for will drafting, he presented himself as a
married man.
[51]
Denying this
plain truth contained in writing in her hands must be for other
reasons not disclosed to the court. The court is mindful
though that
naturally, executors benefit more when the estate is huge and when it
is not, the benefits would also be less as the
fees charged are
usually calculated on a percentage of the total value of the estate.
A successful claim by the Plaintiff has a
potential to slash the
deceased’s estate by up to half, depending on the value of her
own assets.
[52]
If in 2009,
away from the view of the Plaintiff, the deceased believed himself to
be married to her, the question would then be
how else would he be
married if not through the 2007
lobola
negotiations that the Plaintiff testified about as there appears to
be no other
lobola
payment except that one. The Third Defendant should have made a
choice on whether she was happy with the validity of the will,
in
which case, she should accept the contents thereof, or else challenge
it for containing what she believed not to be in line
with how the
deceased presented himself to her. Obviously, she could find herself
with no
locus
standi
with the later choice. However, standing by the will and ignore the
utterances therein can find her talking in forked tongue.
[53]
The SABC
documentary presented in this trial by the Defendants, does not only
contain the piece of evidence that they wanted on
trial record, to
wit, that the Plaintiff’s mother intended to hand her over to
her in-laws on 16 December 2007, but it also
contained other factors
that corroborate the existence of a marriage between the Plaintiff
and the deceased. The Defendants however
want the court to believe
what the mother said in the documentary even though she was not
called as a witness. The court has no
problem accepting that she said
what is in the documentary as the Plaintiff confirmed that she said
so and the recording was not
manipulated with.
[54]
The court is
mindful of the fact that the documentary was not under oath and it is
not evidence before it. The court is also mindful
that in that
recording, the Plaintiff’s mother averred that
lobola
was paid for the Plaintiff around the same time that the Plaintiff
testified that the Matsane delegation came for
lobola
negotiations. The Plaintiff’s mother further averred that the
Plaintiff went to stay with her husband in W[....] and that
at some
stage she called her to tell her that she would be leaving W[....] as
things were not working out in the marriage.
[55]
In
the same documentary, it is clear that the Plaintiff regarded herself
as having been married at some point in her life and that
such
marriage was no more. This is because she kept on referring to
herself as an ex-wife. As much as one does not become a wife
or a
husband by merely referring to himself/herself as such, the same goes
to being an ex-wife or ex-husband. I will deal with
the dissolution
of a customary marriage when dealing with the legal provision
hereunder.
[12]
[56]
After
considering all the discrepancies and possible contradictions
highlighted in the Plaintiff’s case, the court is unable
to see
the Plaintiff’s version as being improbable. Her version
remains the only version presented regarding the
lobola
negotiations that took place in 2007. The court also finds that the
credibility of the Plaintiff’s witnesses remained intact
throughout the gruelling cross examination by the Defendants’
counsel. The court accepts that a portion of
lobola
was paid for the Plaintiff and that the following day she was
accompanied by her family members and handed over to her in laws.
[57]
While it is
possible that the Plaintiff’s mother may have planned to hand
her over on the 16 December 2007, the court accepts
that the
Plaintiff was handed over on 05 November 2007 meaning any handing
over would have been just ceremonial. After all, it
is not uncommon
for traditional marriages to be celebrated after the parties are
already residing together after
lobola
payment and handing over have been done. For the reason that it
remains possible that the Plaintiff’s mother may have planned
to still hand her over at a function that did not happen, I will deal
with the aspect of not handing over the bride under the law.
The fact
that the version is accepted as being accurate does not mean the
claims stand to be allowed as the next hurdle is whether
legal
interpretation favours the Plaintiff or the Defendants.
[58]
The law.
Relevant
parts of the Recognition of Customary Marriages Act, no. 120 of 1998
(the Act) read,
“
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
.
4.
Registration
of
customary
marriages.
—(1)
The spouses of
a customary marriage have a duty to ensure that their marriage is
registered.
(9)
Failure to
register a customary marriage does not affect the validity of that
marriage
.
8.
Dissolution
of
customary
marriages.
—
(1)
A customary
marriage may only be dissolved by a court by a decree of divorce
on the ground of the irretrievable breakdown of the marriage.
…”
[Own
emphasis].
(i)
While
the law stipulates that a customary marriage must be negotiated and
celebrated in accordance with customary law, no mention
on what the
said customary law entails. This is because it is established that
indigenous law is a dynamic, flexible system, which
continuously
evolves within the context of the community in which it operates.
[13]
It is not a fixed body of classified rules. For that reason, in
applying indigenous law, it is important to bear in mind that,
unlike
common law, indigenous law is not written. It is a system of law that
was known to the community, practised and passed on
from generation
to generation. It is a system of law that has its own values and
norms. Throughout its history it has evolved and
developed to meet
the changing needs of the community. And it will continue to
evolve within the context of its values and
norms consistently
with the Constitution.
[14]
[59]
The
requirements for a valid customary marriage have been subject of
interpretation by the courts on several occasions. In
Ndlovu
v Mokoena and Others,
[15]
the court held that the “requirements for valid customary
marriage are (1) consensual agreement between two family groups
as to
two individuals who are to be married and
lobola
to be paid; and (2) transfer of bride by her family group to family
of the man. Payment of
lobola
is merely one of essential requirements and not sufficient in absence
of other essential requirements. When
lobola
is partly paid but the woman not delivered or living with \the
husband, there is no valid customary marriage concluded.”
[16]
[60]
I
am in full agreement with the legal writers,
Maithufi
& Bekker
[17]
who describe a customary marriage as something which is not an event
but a process that comprises a chain of events and that it
is not
about the bride and groom alone; but their two families. It is a
meeting of the two families who convene and
lobola
is negotiated and a portion thereof (sometimes in full) is handed
over to the bride’s family.
[61]
The
argument that
lobola
must be paid in full before a valid customary marriage is concluded
is misguided and has no foundation in law or indigenous practice
of
any culture. The payment of
lobola
does not have to be in full. Just as Ngwenya J (with whom Hlophe JP
concurred) observed in
Bhe
and Others v Magistrate, Khayelitsha and Others
,
[18]
“
[t]here
is one misconception on the part of the third applicant which
requires correction. She averred that had it not been the
inability
of the deceased to pay
lobola
for her, they would have been married before he died. It has never
been a prerequisite under African customary law to pay
lobola
before marriage is consummated. There must be agreement, however, as
regards
lobola
.
It may be deferred as long as circumstances do not permit payment.”
[62]
The
rigidity with which all these requirements should be enforced was the
subject before the SCA in
Mbungela
and Another v Mkabi and Others.
[19]
Common cause facts were that only a portion of
lobola
was paid and the parties proceeded to reside together as a husband
and wife without the bride being handed over by her family to
the
groom’s family. Maya P (as she then was) referred with approval
to
Mabuza
v Mbatha
[20]
where the court dealt with a question on whether the handing over of
the bride (
ukumekeza
)
cannot be waived by the parties as a requirement for a valid
customary marriage. In that judgment, the court held,
“
[T]here
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 . . 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.
Further
support for the view that African customary law has evolved and was
always flexible in application is to be found in T W
Bennett
A
Sourcebook of African Customary Law for Southern Africa.
Professor
Bennett has quite forcefully argued (at 194):
“
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 [because of a pregnancy or elopement].”
In
my judgment, there was a valid siSwati customary marriage between
plaintiff and defendant.”
[21]
[63]
The
SCA
then
referred with approval to the learned author, J C Bekker,
[22]
who wrote,
“
the
handing over need not be a formal ceremony; for example, upon
delivery of
lobola
or a fine for seduction only, the subsequent
thwala
ie the abduction of the maiden to the groom’s home without her
guardian’s consent, consummates the customary marriage,
if her
guardian then allows her to remain with her suitor on the
understanding that further
lobola
will be paid due course. And proof of cohabitation alone may raise a
presumption that a marriage exists, especially where the bride’s
family has raised no objection nor showed disapproval, by, for
example, demanding a fine from the groom’s family.”
[64]
The SCA
concluded therefore 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 s 3(1) of the
Act, especially spousal consent, have been met, in circumstances such
as the present ones, could yield untenable
results.”
[23]
[65]
The relevance
of the above is that even if the court could be wrong in its finding
that the Plaintiff was handed over by her family
to Matsane family on
05 November 2007, the behaviour of the parties involved should be
looked at holistically. It would become
apparent that if there was
lobola
negotiation and payment, exchange of gifts and the parties proceeded
to stay together as husband and a wife thereafter, it can
be safely
assumed that they decided to waive the need for the bride to be
handed over to the groom’s family. That would therefore
have no
impact on the validity of the customary marriage. I however emphasise
that the Plaintiff’s version regarding her
being handed over
remains undisputed and there is no reason not to accept it.
[66]
The
dissolution of a customary marriage.
The
last question is whether the customary marriage concluded as above
was dissolved in any manner lawfully. This question is invoked
through an alternative submission made for the Defendants who argue
that if there was such a marriage, the same was dissolved.
It is
common cause that both the Plaintiff and the deceased referred to
themselves as being married at some stage. While there
is no evidence
on whether the deceased ever regarded himself as single or divorced
in the later years, there is evidence to the
effect that the
Plaintiff considered herself as an ex-wife, suggesting, she was
divorced from the deceased. It is however common
cause that the two
never divorced at any stage.
[67]
Pronouncing
oneself to the public, the SABC or even financial advisors as
divorced, without a decree of divorce issued by the court
does not
make one a divorcee. It may however help one find a new love which
for all purposes would remain an extramarital affair,
no matter how
much it gets glorified. Perhaps it is out of this self-declaration
that the Plaintiff earned herself a lover and
a child in 2014. It is
this relationship which the Defendants want the court to see as a
sign of a marriage she might have been
in with the deceased having
been dissolved.
[68]
Listening
to this argument, the facts in
Monyepao
v Ledwaba and Others
[24]
come to mind. The question before the SCA was whether a woman
(Ledwaba) whom the deceased paid
lobola
for in 2007, and left her marital home in 2008 only to sign into a
civil marriage with another man in 2009, should still be recognised
as a wife of the deceased when he died in 2012. Her marriage to the
deceased was not dissolved through a divorce decree. Not only
had
Ledwaba deserted her marriage and married another man, but the
deceased had also moved on to marry another woman (Monyepao)
customarily, in 2010. As the SCA held, the second marriage entered
into by Ledwaba was a nullity as she was still married to the
deceased and that second “marriage” has no impact on the
marital status she had with the deceased, until such time
that she is
divorced from him through a court of law.
[25]
[69]
From the
evidence before me, it would appear that the Plaintiff was in
constant contact with the deceased and that one of his children
would
often contact her (the Plaintiff) if she wanted anything from the
deceased so she could talk to him on her behalf, and she
did it up to
the final weeks of his life. That portrays a picture of a man who
knew what was going on in the life of the Plaintiff.
He obviously was
aware that she had a child with another man. The SABC documentary
referred to above was aired in his lifetime.
These did not persuade
him to alter his will in which he had declared 25% to be bequeathed
not just to Bongiwe Pretty Malope, but
“his wife.” I must
however be quick to indicate that the title the deceased gave to the
Plaintiff does not on its own
impact on his and her marital status,
as much as deleting the words “my wife” would not have
meant anything without
a divorce decree. This simply signifies how he
considered himself to be, at the time.
[70]
The year he
wrote this will, is the same year the Plaintiff left their marital
home. If the deceased had plans to change anything
in that will, he
could have done it in the 12 years following the scribing thereof,
before his death in 2021. This must have been
deliberate or there is
no evidence to suggest otherwise. I am mindful of the fact that the
will is not in dispute. It is however
in that will that he bequeathed
a portion of his estate to “his wife” and that should be
respected. If any of these
parties wanted to be divorced, they could
have approached the court for a divorce decree and none of them did.
[71]
With the
above, the court finds that there was a valid customary marriage
concluded between the Plaintiff and the deceased on 04
November 2007,
which marriage still subsists.
[72]
As for costs,
no argument was advanced in which the court could find malice in the
Defendants opposing this action. There is no
reason for any of them
to be mulcted with costs.
[73]
For the
aforesaid reasons, I make the following order:
[73.1]
The customary marriage between the Plaintiff and the deceased,
entered into on 04 November 2007 is declared valid;
[73.2]
The First Defendant is directed to register the customary marriage
between the Plaintiff and the deceased and
[73.3]
Costs to be paid from the deceased’s estate.
TV
RATSHIBVUMO
JUDGE
OF THE HIGH COURT
MPUMALANGA
DIVISION
MBOMBELA
FOR
THE PLAINTIFF
:
ADV LD TJALE
INSTRUCTED
BY
: TP RADEBE ATTORNEYS
MBOMBELA
FOR
THE FIRST & SECOND :
NO APPEARANCE
DEFENDANTS
FOR
THE THIRD-SIXTH :
ADV P SIBERHAGEN
DEFENDANTS
INSTRUCTED
BY :
MARKUS SAAYMAN INC
:
MBOMBELA
DATES
HEARD
:
22-26 AUG & 17 OCT 2022
JUDGMENT
DELIVERED
:
21 OCTOBER 2022
[1]
See p. 163 of the Defendants’ paginated bundle.
[2]
See paras 27-36 below
[3]
See
pages 8 & 87 of the paginated bundle.
[4]
See pages 8 & 89 of the paginated bundle.
[5]
See paras 37-40 below
[6]
See
sec 3(1)(c)(iii), (iv). (vi) & (vii) of Act 45 of 1988.
[7]
1996 (1) SACR 639
(A) at 649C-D
[8]
1976
(4) SA 403
(A) at 409G-H.
[9]
2001
(1) SA 88
(SCA) at 92G-93A.
[10]
2003
(1) SA 11
(SCA) at para 5.
[11]
See
Mbungela
and Another v Mkabi and Others
2020
(1) SA 41
(SCA) para 17.
[12]
See para 66-69 below.
[13]
Mbungela
and Another v Mkabi and Others
supra
at
fn 11 above. See also
Bhe
& others v Magistrate, Khayelitsha, & others (Commission for
Gender Equality as Amicus Curiae); Shibi v Sithole &
others;
South African Human Rights Commission & another v President of
the Republic of South Africa
[2004] ZACC 17
;
2005
(1) SA 580
(CC) paras 81 and 86-87 & 153.
[14]
Alexkor
Ltd and Another v The Richtersveld Community and Others
2004
(5) SA 460 (CC)
at
para 51.
[15]
2009
(5) SA 400 (GNP).
[16]
See also
Fanti
v Boto
2008
(5) SA 405 (C)
.
[17]
See
Recognition
of Customary Marriages Act 1998
and its impact on family law in
South Africa
CILLSA
182 (2002).
[18]
2004
(2) SA 544
(C) at p. 551 para E-G. See also See J C Bekker
Seymour's
Customary Law in Southern Africa
at 112 - 13.
[19]
2020
(1) SA 41
(SCA).
[20]
Mabuza
v Mbatha
2003 (4) SA 218 (C).
[21]
Mabuza
v Mbatha
supra
at
paras
25-26.
[22]
J
C
Bekker
Seymour’s
Customary Law in Southern Africa
5
ed (1989) at 108-109 & 116.
[23]
Mbungela
and Another v Mkabi and Others at para 27.
[24]
(1368/18)
[2020] ZASCA 54 (27 May 2020)
.
[25]
See
also
Netshituka
v Netshituka and Others
2011
(5) SA 453
(SCA) para 15 where the SCA held, “
a
civil marriage between A and B that was entered into while A was
married in terms of customary law to C was a nullity.”
See
too,
Thembisile
and Another v Thembisile and Another
2002
(2) SA 209
(T) para 32;
TM
v NM and Others
2014 (4) SA 575
(SCA) para 17.