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[2021] ZAGPJHC 498
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Mabaso and Others v Manyathela and Another (20794/2020) [2021] ZAGPJHC 498 (30 September 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
Case
number: 20794/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
30/09/21
In
the matter between:
JACOB
JABU MABASO
First Applicant
BASIMANE
EDWIN MABASO
Second Applicant
NTSWAKI
JOHANNA AP HANA
Third Applicant
and
KEDIBONE
ESTHER MANYATHELA
(Identity
Number:
[....])
First Respondent
THE
CITY OF JOHANNESBURG
METROPOLITAN
MUNICIPALITY
Second Respondent
Delivery:
This judgment is handed down
electronically by circulation to the parties' legal representatives
through email and released to the
court's library. The date for
hand-down is deemed to be 30 September 2021.
Summary:
Eviction application. The respondent’s
defence is marriage in terms of customary marriage. The principles
governing customary
marriage restated. The requirements of eviction
under PIE Act restated.
JUDGEMENT
MOLAHLEHI
J
Introduction
[1]
This is an
application to evict the first respondent and those occupying the
property through and under her from the property situated
at ERF
[....], portion number 0, Chiawela Extension 3, which is commonly
known as [....] Makgalo Street, Chiawela extension 3,
Soweto, (the
property) as contemplated in section 4 of the Illegal Eviction from
Unlawful Occupation of Land (the PIE Act).
[2]
The applicants
contend that the first respondent and all those who recite on the
property through her are in an illegal occupation.
[3]
The
applicants' case is that they are owners of the property in question.
The applicants say that they became the owners of the
property by
virtue of section 1 (1) (b) the Laws of
Intestate Succession Act. 81
of 1987
. According to them, they inherited the property following the
death of their father, who died intestate on 10 May 2019.
[4]
The property
was transferred to the applicants' names as joint property owners on
18 October 2019. It should be noted that initially,
the properties
situated in the Township of Soweto were previously owned by the local
municipality. Thus, the deceased and his family
occupied it under the
lease agreement with the city. This legal regime of ownership of
property in townships has since changed.
The Department of Housing,
now the Department of Human Settlement, is responsible for
facilitating transferring the properties
to those who occupy them.
[5]
The applicants
contend further that the first respondent and the others do not have
the right to the continued occupation of the
property as she was not
married to the deceased.
[6]
On 28 June
2019, the applicant issued the first respondent with notice to vacate
the property through their attorney of record.
She was in terms of
the notice required to vacate the property by 31 July 2019. The
respondent refused to vacate the property.
For this reason, the
applicants contend that the occupation of the property by the first
respondent and the others is unlawful.
The
respondent's case,
[7]
The respondent
opposed the application because she claims to have concluded a
customary marriage with the deceased and is therefore
entitled to
retain possession of the property by virtue of the deceased’s
half share in the property.
[8]
According to
the first respondent, she started staying with the deceased from 14
February 1997 after the third applicant and the
deceased divorced on
16 January 1997. She claims that she stayed with the deceased as
husband and wife and "the ceremony (presumably
referring to the
customary marriage) was concluded on 20 September 2003." They
operated a liquor business at the property
and maintained it without
any contribution from the third applicant.
The
issues
[9]
The issues for
determination in this matter are the following:
i.whether
the continued occupation by the first respondent and all those
occupying the property through and under her is not lawful
or no
ii.Whether
it is just and equitable for the eviction order to be granted, and if
so,
iii.what
time frames should be given to the respondents to vacate the
property.
[10]
The issue of
whether the respondent has a right of continued occupation of the
property turns mainly around the question of whether
she was married
in terms of customary law with the deceased.
Principles
of customary law.
[11]
The
requirements for a valid customary marriage is governed by section 3
(1) of the Recognition of Customary Marriages Act 120 of
1998 (the
Act), which provides as follows:
"Requirements
for validity of the customary marriage.
(1)
For
a customary marriage entered into after the commencement of this Act
to be valid-
a.
The
prospective spouse-
i..
.
ii.Must
both consent to be married to each other under,
b.
The
marriage must be negotiated and entered into or celebrated in
accordance with customary law.”
In
interpreting section 3 (1) (b) of the Act, the Constitutional Court
in MM v MN
[1]
said:
"Section
3 (1) (b) goes on to stipulate that 'the marriage must be negotiated
and entered into or celebrated in accordance
with customary law'.
Customary law may thus impose validity requirements in addition to
the process set out in sections (1) (a).
In order to determine such
requirements a court would have to have regard to customary practices
of the relevant community.”
[12]
The
courts have generally accepted that the requirements for a valid
customary marriage entail a process of family participation,
lobola
agreement, and the final arrangement as to when the woman would join
the man's family.
[2]
[13]
In
dealing with the formalities of a customary marriage, the court in
Matsoatsoa,
[3]
said:
"A
customary marriage in terms of African tradition is not an event but
a process comprising a chain of events. Furthermore,
it is not about
the bride and the groom. It involves the two families. The basic
formalities, which lead to a customary marriage:
emissaries sent by
the man's family to the woman's family to indicate interest in the
possible marriage. (This of course presupposes
that the two parties
man and women have agreed to marry each other); a meeting of the
party's relatives will be convened where
lobolo will be negotiated or
part thereof is handed over to the woman's family and the two
families will then agree on formalities
and date on which the woman
will then be handed over to the man's family which handing over may
include, but not necessarily be
accompanied by a celebration.”
[14]
In
general, the essential part in the conclusion of a customary marriage
is the handing over of the bride (known as makoti) to the
groom's
family. She is then welcomed to her husband's family and regarded as
part of that family.
[4]
[15]
In the present
matter, there is no evidence of compliance with any of the above
requirements. The respondent presented no evidence
of the deceased's
family engaging in discussions about the lobolo or being introduced
to the deceased's family. There is also no
evidence that she has ever
met the family of the deceased. In addition and more importantly
there is no record of the registration
of the marriage.
[16]
The
respondent's counsel attached to the heads of argument a copy of the
Department of Home Affairs' letter purporting to confirm
that the
respondent was married to the deceased. The letter reads as follows:
"
TO
WHOM IT MAY CONCERN.
RE:
MANYATHELA KEDIBONE ESTHER ID NUMBER: [....]
This
serves to confirm that the above-mentioned paragraph was married
customarily to the deceased
MABASO
MATHEWS ID NUMBER [....]
on
our National Population Register.
I
trust the above is in order."
[17]
The letter was
signed on behalf of the Office Manager Soweto L/O by someone else who
is not identified in the letter.
[18]
In the first
place, there is no explanation as to why the letter was not attached
to the answering affidavit neither is there any
affidavit from the
officer of the Department who signed the letter. The letter does not
indicate whether the customary marriage
between the respondent and
the deceased was ever registered with the Department of Home Affairs
in terms of section 4 of the Act.
[19]
In light of
the above, the respondent has failed to provide sufficient and
persuasive evidence that a customary marriage was concluded
between
her and the deceased. It, therefore, means that the respondent cannot
assert the right to occupy the property based on
a half share of the
deceased arising from a customary marriage.
[20]
The next issue
to consider is whether the respondent should be evicted from the
property.
In
terms of section 4 of the PIE Act. to succeed in an application for
eviction, the applicant has to show the following:
(a)
that he or she
is the registered owner of the property concerned, and
(b)
the occupation
of the property is unlawful, and thus the occupiers have no legal
right to occupy the property.
[21]
In general,
upon satisfying the above requirements, the court would then consider
the following before granting the eviction order:
(a)
whether the
factors as set out in section 4(6) and section 4(7) of the PIE Act
have been satisfied and
(b)
The compliance
with the formal requirements of the PIE act.
[22]
The next issue
to consider is whether the respondent should be evicted from the
property in terms of section 4 of the PIE Act. To
succeed in an
application for an eviction, the applicant has to show the
following:
(a)
that he or she
is a registered owner of the property concerned, and
(b)
the occupation
of the property is unlawful, and thus the occupiers have no legal
right to occupy the property.
[23]
On the facts
before this court, it is clear, mainly having found that there was no
customary marriage between the respondent and
the deceased, that the
respondent and the others do not have any defence to the eviction
application. It is also clear that the
respondent and those occupying
the property with him are doing so unlawfully.
[24]
The next issue
to consider is whether the first respondent and those occupying the
property with her have disclosed relevant facts
and circumstances
that would show why the applicants are not entitled to evict her and
the others. In this respect, the first respondent
indicated that her
eviction would result in homelessness.
[25]
The applicants
have attached a Windeed property report which indicates that the
first respondent is a joint owner of a property
situated at ERF
number [....] in Kagiso Ext 12. This means that the first respondent
will not be rendered homeless if she was to
be evicted as she has
alternative accommodation in Kagiso.
[26]
For the above
reasons, I find it equitable to have the first respondent and those
occupying the property with and under her evicted
from the property.
Order
1.
The First Respondent currently residing at the property situated at
ERF [....], PORTION NUMBER: 0, CHIAWELO EXT 3, which is more
commonly
known as [....] MOKGALO STREET, CHIAWELO EXT 3, SOWETO, and all other
occupants residing on the property through and under
her, vacate the
property as contemplated by Section 4(1) of Act 19 of 1998l.
2.
The First Respondent and all persons occupying through and under her
shall vacate the above premises within 14 days of date of
this order;
3.
The eviction order may be carried out by the Sheriff or his deputy
with the assistance of the South African Police Services or
a Private
Security Company, should the First Respondent and all persons
occupying through and under her, failing to vacated the
property by
the date set in paragraph 2 hereof;
4.
The First Respondent and all persons occupying through and under her
are interdicted and restrained from entering the property
at any time
after they have vacated the property, or been evicted therefrom by
the Sheriff and or his Deputy;
5.
The Sheriff or his deputy are authorised to utilize the same order
evicting First Respondent and all persons occupying through
and under
her,
should
they re-enter the property after the Sheriff gave effect to the order
as per paragraph 2 supra;
6.
The First Respondent is ordered to pay the costs of this application
on a party and party scale.
E
MOLAHLEHI J
Judge
of the High Court of
South
Africa, Johannesburg
Representation:
For
the Applicant: Ms Thobeka Mkhize (Attorney)
Instructed
by: SSLR Incorporated
For
the Respondent: Adv. T.C Matambuye
Instructed
by: Kedibone Esther Manyathela
Date
of the hearing: 27 July 2021
Date
delivered: 30 September 2021
[1]
2013
(4) SA 415
(CC) paragraph 29
[2]
See
Matsoatsoa v Roro [2011] 2 ALLSA324 at paragraph 29.
[3]
Matsoatsoa
v Roro - supra
[4]
Moropane
v Southon
2014 JOL 32177
(SCA) para [40].