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[2021] ZAMPMBHC 57
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Pilato v Fakude (A08/2021) [2021] ZAMPMBHC 57 (26 October 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED.
26/10
/2021
Case
no. A08/2021
In
the matter between:
NGWENYAMA
PILATO
APPELLANT
AND
ALUCIA
NOMONDE FAKUDE
RESPONDENT
IN
RE:
REGIONAL
COURT FOR THE DIVISION OF MPUMALANGA HELD AT MBOMBELA CASE NO:
MRCC:83/2020 JUDGEMENT HANDED DOWN BY MAGISTRATE KHUMALO
ON THE 28
th
of
OCTOBER 2020
Between:
ALICIA
NOMONDE FAKUDE
APPLICANT
AND
DEPARTMENT
OF HOME AFFAIRS
FIRST RESPONDENT
MASTER
OF THE HIGH
COURT
SECOND RESPONDENT
STANDARD
BANK
LIMITED
THIRD RESPONDENT
PILATO
NGWENYAMA
FOURTH RESPONDENT
JUDGEMENT
NDLOKOVANE
AJ
INTRODUCTION
[1]
This is an appeal against the decision of a Regional Court Magistrate
(the Court a
quo
”). The court a
quo
found that
the marriage between the Respondent and the late Tsepo Hector
Ngwenyama (the deceased), the son of the Appellant, contracted
on 4
June 2010, was a valid customary marriage and ordered costs
against the appellant on an attorney and client scale.
[2]
Aggrieved by the court
a quo’s
finding and order, the
Appellant has approached this court on appeal. The appeal is opposed
by the Fourth Respondent only. For
purposes of convenience, I
shall refer to the Fourth Respondent as Ms Fakude.
FACTUAL
BACKGROUND
[5]
A brief factual background giving rise to the proceedings in the
court a
quo
is necessary: Ms Fakude instituted an application
in the court
a quo
for,
inter alia
, a declaration that
her customary marriage to the late Tsepo Hector Ngwenyama (‘the
deceased’) was valid. Furthermore,
she sought an order for the
condonation of the late registration thereof and direction that the
Department of Home Affairs (the
Department), should register the said
marriage in terms of s 4(7) of the Recognition of Customary Marriages
Act 120 of 1998 (‘the
Act’). Ms Fakude sought an order of
costs on an attorney client scale, if there was any opposition to the
application. The
application was opposed by the Appellant.
[7]
Ms Fakude and the deceased met in 2004, after which a love
relationship between them
developed. It was common cause that in
2010, the deceased asked for Ms Fakude’s hand in marriage. A
letter was dispatched
to Ms Fakude’s parents asking for her
hand in the marriage through
lobola
.
[9]
On the 4 July 2010, the deceased sent emissaries to Ms Fakude’s
parental home
where
lobola
was negotiated and agreed at R30
000.00. Of the amount of R30 000.00 the emissaries made a part
payment in the amount of R12 000.00,
accompanied by various
gifts from the deceased’s family to the Fakudes in terms of
annexure “ANF1”, attached
to the record in these
proceedings.
[10]
After
lobola
was paid, refreshments were served, and Ms Fakude
was introduced to the deceased’s emissaries as their bride.
Later in July
2010 Ms Fakude moved in with the deceased. Three
children were born of the union between Ms Fakude and the deceased,
namely a girl
born in December 2010, followed by another girl in July
2013 and the last born, a boy, born in 2014.
[12]
On 11 March 2017, the deceased and Ms Fakude registered the
lobola
agreement at the iNkambeni Traditional council led by Chief Mhaule
through annexure ANF5, which was attached to record in these
proceedings. The deceased, Ms Fakude and their children lived
together at their matrimonial home situated at Hazyview Sabi River
Eco Estate until the untimely death of the deceased in a motor
vehicle accident on 9 October 2019. At the time of the deceased’s
death, the customary marriage had not been registered with the First
Respondent, in accordance with the provisions of the Act.
The
appellant’s contentions
[15]
Before the court
a quo
and again in his notice of appeal
before us, the Appellant contends that the serving of refreshments at
the end of the lobola negotiations
did not amount to a seal of a
binding customary marriage and instead was a mere gesture of courtesy
and affinition agreement between
the two families.
[16]
Further grounds of appeal are that the learned magistrate in the
court
a quo
erred in rejecting the documentary evidence filed
on behalf of the Appellant, which allegedly established that the
deceased was
not married to Ms Fakude and in finding furthermore,
that there was a valid customary marriage between the deceased and Ms
Fakude
despite the two not living as husband and wife. The Appellant
contends furthermore that the Court a
quo
erred in that it
failed to exercise its discretion properly and judicially in granting
the order of costs against the Appellant.
[17]
In his notice of appeal, the Appellant stated that he reserved the
right to amend and or supplement
his notice of appeal once the
written reasons of the learned magistrate would have been provided
and or obtained. In the heads
of argument, the Appellant raised
further grounds of appeal, that the learned magistrate erred in
finding that the judgement in
Mbungela and Another v Mbaki
and others
2020 (1) SA 41
(SCA
) was applicable in the
matter.
The
respondent’s grounds of opposing appeal
[19]
Ms Fakude did not file a notice opposing the appeal but filed heads
of argument in this court.
Counsel for Ms Fakude contends, in the
heads of argument, that the appeal lacks prospects of success and
raises two main grounds
in opposing this appeal, namely
non-compliance with the rules of this Court and lack of factual and
legal basis to sustain the
appeal.
[21]
Regarding non-compliance with the Uniform Rules of Court, counsel for
Ms Fakude raises the following:
(a)
the Appellant failed to comply with the provision of section 50(1)
read with subsection
(4) of the Uniform Rules of Court in that, the
Appellant noted an appeal on 24 November 2020 but only lodged the
appeal and completed
form F, a form filed for the management of
appeal matters in accordance with practice directive of this court,
on 8 March 2021;
(b)
further that there was no agreement reached between parties on the
extension of the time
periods provided by Rule 50(1) of the Uniform
Rules of Court;
(c)
there was no record of proceedings and or a copy of the reasons from
the magistrate.
[22]
Regarding lack of factual and legal basis to sustain the appeal, it
is contended
inter alia,
that:
(a)
in declaring the customary marriage valid, the
learned magistrate based his decision on evidence presented before
him through the
l
obola
letter and confirmation thereof annexed as “ANF1” and
“ANF5” respectively;
(b)
the magistrate found that, based on
MMN
v MFM and the Minister
of
Home Affairs
(474/11 [2012]
and
Gumede v President of the RSA and
Others
2009 (3) SA 152
(CC
)
that a celebration in the form of
Ukumekeza
is not a requirement for a valid customary marriage and as such it is
misleading to state that the learned magistrate based his
finding on
celebration on the day of the
lobola
negotiation, and;
(c)
the court judicially exercised its discretion
when it determined the costs after listening to arguments advanced by
both parties.
[26]
Attached to the heads of
argument of Ms Fakude’s counsel, was a letter dated 28
November
2020 wherein Ms Fakude’s attorneys of record brought the issue
of the time frames to the attention of the appellant.
The letter
reads as follows:
“
1
.
We hereby wish to state that we have received the purported notice of
appeal which was served on our correspondent attorney’s
office
(MG Boshoff Attorney) on the 24 November 2020 regarding the judgement
taken on 28 October 2020 by the learned Magistrate
Mr Khumalo.
2. On the strength of the
above, we wish to categorically state that, in the absence of a copy
of the lodged and court stamped notice
of appeal we will disregard
the document served on our correspondents’ office and proceed
with the execution of our instruction
as per the court order, as it
doesn’t serve as a court document and as such, we are unable to
calculate the prescribed period
due to the lack of that actual date
of noting such as appeal
3.
We further wish to inform you that the prescribed period in terms of
rule 51(1) of the Magistrates’ court rules, from the
date of
judgement has lapsed and further that the 20 days’ period from
the date of judgement has lapsed too”.
Legal questions
for the court’s determination
[23]
This court is called upon to make a pronouncement on:
(a)
whether or not the Appellant has complied with
the applicable rules and directives in prosecuting this appeal, if
not, who must
bear the legal costs?
(b)
whether or not the learned magistrate erred in
finding that a customary marriage existed between Ms Fakude and the
deceased and
it properly and judicially exercised its discretion in
granting the order of costs against the Appellant.
The
Process of Appeal on question of law
[24]
Section 84 of the Magistrate Courts Act 32 of 1944 provides,
inter
alia
, that every party noting an appeal shall do so within the
period and in the manner prescribed by the rules. The periods for
noting
an appeal in the Magistrates Court are laid down by rule 51(3)
of the Rules Regulating the Conduct of the Proceedings of the
Magistrates’
Courts of South Africa (“the Magistrate’s
Court rules”) and the periods for prosecuting appeals in the
High Court
are governed by rule 50 of the Uniform Rules of Court,
(“the High Court rules”). In other words, the prosecution
of
an appeal from the Magistrate’s court is a proceeding whose
foundation is laid in the Magistrates Court Rules, but which is
conducted in the High Court.
[25]
An appeal must therefore be noted within the period and in the manner
prescribed by the Magistrate’s
Court rule 51 and prosecuted
within the period and in the manner prescribed by High Court rule 50.
[26]
Rule 51 of the
Magistrates Courts’ rules
states that:
“
(1)
Upon a request in writing by any party within 10 days after
judgment and before noting an appeal the judicial officer
shall
within 15 days’ hand to the registrar or clerk of the court a
judgment in writing which shall become part of the record
showing—
(a) the facts he or she found
to be proved; and
(b) his or her reasons for
judgment.
(2) The registrar
or clerk of the court shall on receipt from the judicial officer of a
judgment in writing supply
to the party applying there for a copy of
such judgment and shall endorse on the original minutes of record the
date on which the
copy of such judgment was so supplied.
(3) An appeal may
be noted within 20 days after the date of a judgment appealed against
or within 20 days after the
registrar or clerk of the court has
supplied a copy of the judgment in writing to the party applying
therefor, whichever period
shall be the longer.
(4) An appeal
shall be noted by the delivery of notice, and, unless the court of
appeal shall otherwise order, by giving
security for the respondent's
costs of appeal to the amount of R1 000: Provided that no security
shall be required from the State
or, unless the court of appeal
otherwise orders, from a person to whom legal aid is rendered by a
statutorily established legal
aid board.”
[27]
Rule 51(3) provides, i
nter alia
, that an appeal may be noted
within 20 days after the date of the judgement appealed against. This
will be the case where an appellant
has not made a request for
judgement in writing as provided for in rule 51(1) of the
Magistrates’ Court Rules.
[28]
Rule 2 (2) of the Magistrates Court Rules provides that:
“
A
Saturday, Sunday or public holiday shall not, unless the contrary
appears, be reckoned as part of any period calculated in terms
of
these rules”
[29]
Making reference to
Suliman Mia v Bulbolia
1924 (1)
PH F13,
in
Erasmus Superior Court Practice,
the learned
authors say that as a general rule, in computing a period of time in
terms of the definition, the first date is to
be excluded and the
last date included and, where a rule or order of court prescribes
that something shall be done “within”
a particular number
of days “after” a named day or event, the named day or
event is excluded from the calculation and
the period starts to run
from the following day, whether the word “after” or
“from” or “of”
is used.
[30]
The commentary,
Jones & Buckle The Civil Practice of the
Magistrates Court in South Africa
states, in relation to the
terms of rule 51 (4) of the Magistrate Court Rules, that delivery
means filing with the clerk of the
court and serving a copy on the
respondent as envisaged in Rule 2 (1) (b). In their discussion of the
meaning of delivery the authors
observe that both the filing with the
clerk of the court and the service upon the opposite party must take
place within the proper
time and if one of this is omitted, there is
no valid service.
[31]
Bringing an appeal to the notice of the other party in a manner which
is not in accordance with
those prescribed by the rules is not
sufficient
.
Rule 51 (8) of the Magistrates Court Rules
reads as follows:
(a)
Upon delivery of a notice of appeal, the
relevant judicial officer shall within 15 days thereafter hand to the
registrar or clerk
of the court a statement in writing showing so far
as may be necessary having regard to any judgments in writing already
handed
in by him or her)-
(i)
The facts he or she found to be proved;
(ii)
The grounds upon which he or she arrived
at any finding of fat specified in the notice of appeal as appealed
against; and
(iii)
His or her reasons for any ruling of law
or for the admission or rejection of any evidence so specified as
appealed against; and
(b)
A statement referred to in paragraph (a)
shall become part of the record.
[33]
The Magistrate’s written explanation forms an integral part of
the appeal record and serves
to assist the court of appeal to deal
with the appeal in a speedy and decisive manner. (see,
Regent
Insurance Company Limited v Maseko
2000 (3) SA 983
(W) at
990 A-E).
[34]
Rule 51(9) of the Magistrates Court Rules reads in relevant part as
follows:
“
(9)
A party noting an appeal… shall prosecute same within such
time as may be prescribed by the rule of the court of appeal
and in
default of prosecution, the appeal shall…be deemed to have
lapsed, unless the court of appeal shall see fit to make
an order to
the contrary,”
[35]
In terms of Rule 50(1) and 50(4) of the
High Court rules
, the
following is stated in respect of the prosecution of appeals:
(1)
An appeal to the court against the
decision of a magistrate in a civil matter shall be prosecuted
within
60 days after the noting of such appeal, and unless so prosecuted it
shall be deemed to have lapsed.
(4) (a) The appellant shall,
within 40 days of noting the appeal, apply to the registrar, in
writing, and with notice to all other
parties for the assignment of a
date for the hearing of the appeal and shall at the same time make
available to the registrar in
writing his full residential and postal
addresses and the address of his attorney if he is represented.
(b) In the absence of such an
application by the appellant, the respondent may at any time before
the expiry of the period of 60
days referred to in subrule (1) apply
for a date of hearing in like manner.
(c)
Upon receipt of such an application from appellant or respondent, the
appeal shall be deemed to have been duly prosecuted.
”
(Own emphasis).
[36]
The
Practice Directive For Mpumalanga Division Of The High
Court
issued In terms of
Section 8(3)
of the
Superior Courts
Act 10 of 2013
, read with
Rule 37a
(1) and (2) of Uniform Rules of
Court as amended, on Enrolment and Management of Civil and Criminal
Appeal (“the Practice
Directives”) states in paragraphs
21 that:
“
21.1
Every appeal matter shall be case managed and enrolled for hearing as
contemplated in paragraph 21.2, hereunder and appeal
matter shall be
enrolled for hearing on each Friday of civil trial week. The number
of matters so enrolled shall not exceed six
matter per roll.
21.2 In managing appeal cases,
the parties or their legal representatives shall complete Form F of
this Practice Directive in terms
of which the parties or their legal
representatives determine the date of hearing and time frames to
ensure readiness thereof.
21.3 Within five days upon
receipt of an appeal from the clerk of the lower court, or after
granting of a petition by two judges
of petition from the lower
court, the registrar’s clerk shall enrol the matter for case
management.
21.4 Should the Registrar fail
to enrol an appeal matter for case management within 5 days upon
filling of an appeal or granting
of petition by two judges, any party
thereto shall be entitled to approach the registrar to have the
matter placed on the case
management roll.
21.5 ………….
21.6 Once a date of hearing is
chosen, Form F shall be completed and parties or their legal
representatives shall accordingly set
the time frames for themselves
as provided in Form F……….”
[37]
Rule 50(4) (c) of the Uniform Rules court states that an appeal is
deemed to have been duly prosecuted
when an application for a date of
hearing has been made in writing to the Registrar of the High Court
on notice to all other parties.
See also
Hall v Van Tonder
1980
(1) SA 980
(C) at 910.
[38]
If one were to summarise the time frames and the appeal process from
a judgment in the magistrates’
court in this division, it would
be as follows:
a.
Within ten (10) days of judgement, and before
noting an appeal, a party may request for reasons thereof (rule
51(1));
b.
Within 15 days of delivering judgement the
magistrate hands the written judgement to the clerk of court, whether
a party has requested
reasons or not. The judgment should show the
facts that the magistrate found to be proved and his or her reasons
for judgment.
(Rule 51(1));
c.
The clerk of court is supposed to supply a copy
of the written judgment to a party who requests for it and endorse
the date which
the copy was supplied. (Rule 51(2));
d.
The appellant is supposed to note an appeal in
the magistrates’ court, that is within 20 days of the judgment
or 20 days after
the written judgment has been supplied. (Rule
51(3));
e.
Noting an appeal means delivering a stamped
notice of appeal to the respondent and filing same with the clerk of
court, together
with the requisite security deposit for the
respondent’s cost of appeal Rule 51(3) Magistrates court
Rules);
f.
Within 40 days of noting appeal in the
Magistrates Court, Appellant should apply to the Registrar of the
High Court in writing,
on notice to other parties, for a date to be
assigned to the appeal. (50(4) Uniform Rules of Court);
g.
Within five (5) days of receipt of an appeal
from the clerk of the lower court
the
registrar’s clerk enrols the matter for case management.
(Practice Directive);
h.
Should the Registrar fail to enrol an
appeal matter for case management within 5 days upon filling of an
appeal or granting of petition
by two judges, any party thereto shall
be entitled to approach the registrar to have the matter placed on
the case management roll
(Practice Directive);
i.
Once a date of hearing is chosen, parties
then complete Form F and accordingly set the time frames for
themselves as provided in
Form F (Practice Directive).
Whether
the Appellant has followed the Appeal Procedure
[39]
Having set out herein above the prescribed procedure in civil appeals
in terms of the rules of
both the Magistrates Court and the High
Court as well as the practice directive of this division, it remains
to be seen whether
the Appellant in the present appeal has complied
with the rules regulating the appeals from the Magistrate court to
the High court.
I hasten to state herein that the Appellant has not
followed the procedure provided for in the Magistrate’s court
rule 51
and uniform rule of court 50.
Noting
of the appeal
[40]
In the appeal before us, the Magistrate in the court
a quo
,
gave an oral judgement on 28 October 2020. In terms of Rule 51(1),
appellant ought to have applied in writing to the clerk of
the court
for the facts that the magistrate found to be proved and the reasons
for judgment ought to have been made by any party
within 10 days
after judgment. There is no indication in the papers before us that
the Appellant made a request for a judgement
in writing as provided
for in rule 51(1) of the Magistrates’ Court Rules. We do not
have before us the written judgment of
the magistrate in the court
a
quo
, we only have the transcribed record of the judgment.
[41]
In terms of rule 51 (3) the Appellant ought to have noted an appeal
within 20 days after Wednesday
28 October 2020, when judgement was
delivered. Applying the above interpretation of Rule 2 of the
Magistrates Court rules, 20 days
started running on Thursday 29
October 2020 and terminated on Wednesday 25 November 2020.
[42]
The Appellant’s notice of appeal filed of record is stamped 24
November 2020, and which
was served on the Respondent’s
attorneys of record on the same day, but unstamped according to the
letter of Ms Fakude’s
attorneys of record. The stamped notice
of appeal must be filed with the Clerk of court and served on the
Respondent within 20
days. There is nothing to show that the
Appellants ever remedied the breach indicated in the letter of 28
November 2020
,
nor did counsel address the issue in his heads
of argument filed on 26 March 2021. We therefore find that the
Appellant did
not timeously note its appeal.
The
record of appeal
[43]
In terms of Rule 51(1) the written judgement, and in terms of rule
51(8)(b) the magistrate’s
statement should form part of the
record of appeal.
[44]
In terms of Rule 50 (7)(c), the record of appeal shall contain a
correct and complete copy of
the pleadings, evidence, and all
documents necessary for the hearing of the appeal.
[45]
We do not have before us a complete copy of all documents, because,
we do not have the magistrate’s
written judgement in terms of
rule 51(1) or the magistrate’s statement in terms of rule 51(8)
of the Magistrates Court rules.
What we have is a transcription of
the judgment handed down orally, something which is not required in
terms of the rules. All
that the rules require is the magistrate’s
written judgment in terms of 51(1), and a statement in terms of rule
51(8) supplementing
such judgment, which addresses issues raised in
the notice of appeal.
Prosecution
of the Appeal
[46]
In terms of Rule 50(4)(a) of the Uniform Rules of Court, the
Appellant should have applied in
writing to the Registrar of the High
Court, on notice to other parties, for the assignment of a date for
the hearing of the appeal.
Noting that the judgement was
delivered on 28 October 2020 and the filed notice of appeal is
stamped 24 November 2020, the appellant
ought to have written to the
Registrar of the High Court within 40 days of 24 November 2020, that
is by Thursday 21 January 2021
for assignment of the date for the
hearing of the appeal.
[47]
In terms of Rule 50(4)(c) upon receipt of an application as envisaged
in Rule 50(4)(a), the appeal
shall be deemed to have been duly
prosecuted. Clearly, there is no indication in the indexed and
paginated bundles that the Appellant
had applied for assignment of a
date for the hearing of the appeal within the period provided for in
the Uniform Rule of Court
50(4) or at all.
[48]
The index of the appeal records and notice of appeal bear a date
stamped of this court for 8
March 2021. Assuming that such filing was
an attempt to comply with rule 50(4), it would have been out of time
in that it was 71
days after the appeal was noted in the Magistrates
Court and 31 days after the period within which the appeal ought to
have been
filed in this court.
[49]
There was no application to condone the non-compliance with the
rules. Consequently, we find
that the appeal was not duly prosecuted
in terms of the Rules. It follows therefore that the appeal lapsed as
dictated by Rule
50(1).
Appellant’s
enrolment of appeal
[50]
In terms of Rule 50 (5) of the High Court rules, upon receipt of an
application for a date of
the hearing of the appeal, the Registrar of
the High Court shall forthwith assign a date which shall be at least
40 days after
the application. The registrar would then give all the
parties 20days notice of the date on which the appeal is set down.
[51]
The notice contemplated in rule 50(5) does not appear
ex facie
the appeal record. What appears in the record are the heads of
argument on behalf of the appellant and Ms Fakude’s were filed
on 26 March 2021 and 31 March 2021 respectively and the parties Form
F which is date stamped 21 May 2021 and states in paragraph
one that
the appeal in the matter was filed on 8 March 2021. There is also a
notice of enrolment dated 11 June 2020.
[52]
At some point, the appellant somehow procured the enrolment of the
appeal by the Registrar of
this court for hearing. This was done
despite not following the procedure prescribed in the Magistrate’s
court rule 51(9)
and the Uniform Rule of court 50(1) and (4) and (5)
for prosecuting the appeal
[53]
The following irregular steps are apparent from the papers before us:
j.
the Appellant did not properly note the
appeal in that the notice served on Ms Fakude did not bear a court
stamp as provided for
in rule 51(4) read with rule 51(3) of the
Magistrates Court Rules.
k.
the Appellant did not apply to the
Registrar for assignment of a date of the hearing of the appeal
within the set time as required
by the rule 51(9) read with rule
50(4), and for that reason we find that the appeal has lapsed.
l.
the Appellant did not, as required in rule
50(7)(c), lodge a complete record of the matter as contemplated in
rule 51(1) and 51(8)
of Magistrates Court Rules.
m.
The Registrar somehow assigned the date of
hearing of the appeal without having received a written application
from the appellant
as provided for in uniform rule of court 50(4)
n.
the notice of appeal
ex
facie
does not even indicate whether
the appeal is against the whole or part of the court
a
quo’s
judgement.
[54]
Despite the Appellant’s non-compliance with the rules regarding
the appeal, the Appellant
did not bring any application for
condonation. Instead, in the written submission dated July 2021, the
Appellant submitted that
once the party completes form F in terms of
the practice directives, it has an automatic waiver of application of
the hearing date
in terms of the Uniform Rules of Court. This
interpretation is misplaced. As the heading of Form F states, it is
for purposes
of case management of an appeal. The first
paragraph of that form clearly requires parties to fill in a date on
which the
appeal was filed. Filing is done in terms of rules of court
and Form F simply records that date of filing. Paragraph 3 of Form F
then states time frames that parties or their legal
representatives
should agree on which to ensure that the record and heads of
argument ought to be filed. Form F does not replace rule 51(4).
[55]
In view of the above, the point in
limine
raised by the
respondent must succeed. However, as often stated, the rules
are for the court and not the court for the rules.
Consequently, the
Appellant’s failure to comply with the rules will not preclude
the court from dealing with the merits of
the appeal.
Whether
a customary law marriage was validly concluded
[56]
Section
3(1)
of
the
Recognition
of
Customary
Marriages
Act provides
:
‘
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.’
[57]
In
Shilubana
& others v Nwamitwa
2009
(2) SA 66
(CC)
paras 44-46
;
t
he
Constitutional Court cautioned
courts
to be cognisant of the fact that customary law regulates the lives of
people and that the need for flexibility and the imperative
to
facilitate its development must therefore be balanced against the
value of legal certainty, respect for vested rights and the
protection of constitutional rights.
[58]
In
Ngwenyama
v Mayelane and Another
2012
(4) SA 527
(SCA
)
the
SCA stated as
follows
:
‘
The
Recognition Act does not specify the requirements for the celebration
of a customary marriage. In this way, the legislature
purposefully
defers to the living customary law. Put differently, this requirement
is fulfilled when the customary law celebrations
are generally in
accordance with the customs applicable in those particular
circumstances. But once the three requirements
have been fulfilled, a
customary marriage, whether monogamous or polygamous, comes into
existence.’ (Own emphasis.)
[59]
In
Tsambo
v Sengadi,
[2020] ZASCA
46
the
SCA
stated
that
“
It
is evident …that strict compliance with rituals has, in the
past, been waived. ... Clearly, customs have never been static.
They develop and change along with the society in which they are
practised.
Given
the obligation imposed
on
the courts to give effect to the principle of living customary
law, it follows ineluctably that the failure to strictly comply
with all rituals and ceremonies that were historically observed
cannot invalidate a marriage that has otherwise been negotiated,
concluded or celebrated in accordance with customary law”
.
[60]
Our courts
have
,
in a number of cases, been called upon to consider
whether
non-observance
of the bridal transfer ceremony invalidates a
customary
marriage
.
[61]
In
Mbungela and
Another v Mbaki
and others
2020 (1) SA
41
(SCA)
, which the Appellant
argues
was not applicable in
casu,
the
court
said:
“
It
is important to bear in mind that the ritual of handing over of a
bride is simply a means of introducing a bride to her new family
and
signify the start of the marital consortium… 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….
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. (paragraphs 25 to
27) “.
[62]
I
find
that the case
Mbungela
and Another v Mbaki
is
applicable
in
ca
su.
[63]
In
Mabuza
v
Mbatha,
2003
(4) SA 218
(C)
where
the court found that there was a valid siSwati
customary
marriage
between plaintiff and defendant
,
the
court considered whether non-compliance with the siSwati custom of
bridal
transfer
,
ukumekeza
,
invalidated a customary marriage. The court said:
“
[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].”
Application
of the law
[64]
The court
a quo
found
that it was common cause that, there was an agreement to perform a
customary marriage, parties entered into
lobola
negotiations, and
twelve
thousand rands of the
agreed amount had been paid
and parties were
served food after the
lobola
negotiations. There was a letter recording the negotiated l
obola
,
what had been paid and what was outstanding, as well as and the names
of the people representing the deceased’s family and
Ms
Fakude’s family. There was no statement in the letter to say a
marriage would only come to being after a handover or payment
of all
l
obola
. The parties
also registered their customary marriage and
Lobola
agreement at the iNkambeni Traditional council led by Chief Mhaule.
[65]
The basis of the Appellant’s objection to the existence of a
customary marriage was that
no cow was slaughtered, there was no
handover and no celebrations observing unspecified rituals.
[66]
In
Tsambo
v
Sengadi
supra
as in this case, the appellant who was the deceased husband’s
father, in denying the existence of a customary marriage between
his
son and the respondent, argued that ‘at best for the
deceased
,
the necessary customs, rituals and procedures required for the
conclusion of a customary marriage may have commenced, but were
not
proceeded with or completed.’ He averred that the meeting that
took place when money was transferred from the deceased
to the
Respondent’s family was confined to
lobola
negotiations
and what happened thereafter merely constituted a celebration of the
successful conclusion of the
lobola
negotiations.
[67]
Much like the Appellant in this case, the father in T
sambo
contended
that in terms of custom, subsequent to the initial payment of lobola,
a date is set on which the bride’s family
will hand over the
bride to the husband’s family, ‘go gorosiwa’, and
upon arrival a lamb or goat is slaughtered,
and the bile therefrom is
used to cleanse the couple. He contended that the performance of that
ritual would signify the union
of the couple and the joining of the
two families. That ritual would be followed by a celebration, during
which the lamb or goat
that was slaughtered would be consumed. The
Appellant contended that because that ritual was not observed, the
handing over of
the bride, which he considered as the most crucial
part of a customary marriage, did not take place. Thus, so it was
contended,
no customary marriage came into existence between the
deceased and the respondent.
[69]
In
C v P
[2017] ZAFSHC 57
,where R20 000.00 had been
paid towards
lobola
, there was a document signed by both
families which it is recorded that the plaintiff's family received
lobola
and food was served, but no festivities or celebrations
took place, the court found that a valid customary marriage was
concluded
between the parties because they lived together as husband
and wife together after
lobola
was paid, "constructive
delivery" is present. The court found that formal ceremonial
handing over under these circumstances
would be mere a ceremonial
gesture with no adverse consequences on the validity of the customary
marriage.
[70]
I find that the weight of precedent favours the existence of a
marriage where there is no ritual
to handover a bride but
lobola
has been paid and there is recognition of the establishment of a
relationship and parties have lived together. What is more
significant
in this case is that the deceased and Ms Fakude
registered their marriage with the traditional leadership. I find
that the court
a quo
righty rejected the will which described
the deceased as unmarried.
COSTS
[71]
Ms Fakude has asked for costs on an attorney client scale. Costs on
an Attorney and client costs
are
awarded only in very exceptional or special
circumstances. See Herold
v Sinclair
1954 (2) SA 531
(A) at 531.
[72]
It is trite that the granting of a cost order is in the discretion of
the court which must be
considered
judiciously.
[73]
As noted earlier the Constitutional Court cautioned on the need to
consider
legal
certainty,
respect
for vested rights and the protection of constitutional rights. In
making an order for costs, one of the considerations that the
court a
quo applied was that despite sending a delegation to the lobola
negotiations, and despite there being grandchildren, the
Appellant
persisted in denying the existence of a valid customary marriage
between the deceased and Ms Fakude. I cannot fault the
exercise of
the court
a
quo’s
discretion on the circumstances.
ORDER
[74]
In the result the following order is made:
74.1
The appeal is dismissed.
74.2
Appellant shall pay the costs of the appeal.
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NDLOKOVANE
N
ACTING
JUDGE OF THE HIGH COURT
MPUMALANGA
DIVISION, MBOMBELA
I
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