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[2021] ZAKZPHC 43
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Mankayi v Minister of Home Affairs and Others (3146/2020P) [2021] ZAKZPHC 43 (2 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NO. 3146/2020P
In
the matter between:
PHUMZA
ETHEL
MANKAYI
APPLICANT
and
THE
MINISTER OF HOME
AFFAIRS
FIRST RESPONDENT
NTOMBIZAKHE
PORTIA MIYA
SECOND RESPONDENT
MASTER
OF THE HIGH COURT OF SOUTH AFRICA
THIRD RESPONDENT
ORDER
1.
That the first
respondent registers the customary marriage between Phumza Ethel
Mankayi and Lawrence Bonginkosi Zikode and issue the certificate of
registration as envisaged under
section 4
(8) of the
Recognition of
Customary Marriages Act No. 120 of 1998
.
2.
That the appointment of Ntombizonke Portia
Miya as Executrix in the
deceased
estate of late Lawrence Bonginkosi Zikode is with effect from the
date of this order terminated.
3.
The costs of the application of both
the applicant and the second
respondent on party and party scale be paid out of deceased estate of
Lawrence Bonginkosi Zikode.
JUDGMENT
Delivered
on:
Mngadi,
J:
[1]
The applicant seeks an order declaring that there existed a
customary
marriage between her and the late Lawrence Bonginkosi Zikode (the
deceased); that the customary marriage be registered
and she be
issued with a certificate of registration; and she be appointed as
executrix in the deceased's estate in the place of
the second
respondent. The second respondent opposes the application. The first
and third respondents have not taken part in the
litigation.
[2]
The applicant is Phumza Ethel Mankayi an adult female aged fifty
(50)
years, of Soweto in Gauteng. The First respondent in the Minister of
Home Affairs the minister of state responsible for the
registration
of customary marriages. The second respondent is Ntombizonke Portia
Miya an adult female of Sebokeng in Gauteng. The
third respondent is
The Master of the High Court of South Africa in charge of the
administration of the deceaseds' estates.
[3]
The applicant deposed to the founding affidavit and she stated
as
follows. She was born on 22 October 1964. She resides in Pretoria
North Ext 1. In Soweto. On 15 October
1994
at Vaalbank Village, Lady Frere she married Lawrence Bonginkosi
Zikode, the deceased. The deceased was born on 21 July 1963.
There
were both majors at the time of the marriage. They married each other
by a customary marriage and they both consented to the
marriage.
[4]
The applicant, further, stated that the deceased paid an amount
id R
15 000.00 (Fifteen Thousand Rand) as lobolo for her. He paid it on
the same date of marriage. She attaches on her affidavit
a lobolo
letter. She stated that on 15 October 1989 the marriage was
celebrated by both families. She was handed over to the Zikode
family. Since then
she
lived with the deceased as husband and wife until his death. She and
the deceased remained married to each other until his premature
death
on 12 April 2019. The applicant as evidence of the deceased's death
attached a death certificate.
[5]
The applicant stated that whilst still in mourning for the deceased's
death, she visited the office of the Master of the High Court in
Johannesburg to report the death of the deceased in terms of the
provisions of the Administration of Estate Act No. 66 of 1965. She
discovered that the second respondent had been appointed as executrix
in the deceased's estate. She was surprised because she had not
consented to the appointment of the second respondent as executrix
and she had not been informed about her appointment. She reiterates
that her marriage to the deceased was still in subsistence and
they
were still living together at the time of the passing of the
deceased.
[6]
The lobolo letter attached to in the founding affidavit is in
isiXhosa it reads as follows: "Ingxoxo yekhazi Umhlaka 15
October
1994.
Indawo: VaaJbank
Village Bafiki/e Oonozakuzaku bethunywe likhaya lakwa Zikode bezoce/a
ubuhlobo kwikhaya lakwa Mankayi malunga nentombi
yethu engu Phumza
Mankayi ebonwe lisoka UBonginkosi Zikode. Bashiye imali engange R15
000 00 ezi bethe inkomo eziyisibhozo kwishumi
elinesibini
ebesizibizile. Ingxoxo yokuvunywa kwabayeni iyakuphindwe ibanjwe
ngokwesivume/wano Amangqina abekhona
(1)
Na Mankayi
(2)
J W Fenako
(3)
M O Zikode
(4)
E m Zikode
[7]
The loose translation of the lobolo letter is the following:
'Lobolo
Negotiations
Date: 15 October
1994
Place: Vaa/bank
Village
Negotiations sent
by the Zikode family arrived to conduct negotiations for good
relationship with Mankayi family in connection with
their maiden
Phumza Mankayi having attracted the youngman Bonginkosi zikode. They
left the sum of R 15 000.00 representing eight
(8) head of cattle out
of the twelve head of cattle stipulated.
The matter of
recognition of the in-law's delegation to be held once arranged.
Those present and
witnessed were:
(1)
Na Mankayi
(2)
(3)
M O Zikode
(4)
E m Zikode
Those
present and witnessing are in different handwriting suggesting that
each person wrote or signed his name.
[8]
The death certificate of the deceased shows the marital status
as
never married. It shows the date of death to be 12 April 2019. The
place of death is Soweto (Protea North) and in the cause of
death as
natural causes.
[9]
The applicant attached a confirmatory affidavit by Ndondentsha
Gladman Mankayi (Ndodentsha). Ndondentsha in the confirmatory
affidavit stated as follows. He is an adult male with identity
numbers
580201 6034 088 and he resides at Clairmont Village,
Whittlesea, in the Eastern Cape. He is the brother of Phumza Ethel
Mankayi (the
applicant). On 15 October 1994 at Vaalbank Village in
Lady Frere he was one of the
delegates
representing the Mankayi family during the lobolo negotiations
between Mankayi family and the Zikode family. Other members
of the
delegation that represented Mankayi family were Jikile William Fenako
and Mawethu Mhlekwa. The Zikode family was represented
by Ernest
Mzonjani Zikode.
[10]
Ndodentsha, further, stated as follows; He confirms that the marriage
agreement
was reached between the two families. The Zikode family was
charged and paid an amount of RI 5 000.00 for lobolo on behalf of
Lawrence
Bonginkosi Zikode the groom for Phumza Ethel Mankayi, the
bride. The amount paid was equivalent to eight (8) cows out of twelve
(12)
cows, which the families had agreed upon. The marriage was
celebrated in terms of customary rights and the bride was handed over
to the groom and Zikode family to stay with them as Lawrence
Bonginkosi Zokode's wife. They have been residing
together
as husband and wife since 1994 until the death of the husband in
April 2019. He stated that he has read the founding
affidavit of
Phumza Ethel Mankayi and he confirms the contents thereof as far as
they relate to the marriage celebrated on 15 October
1994.
[11]
The applicant attached a second confirmatory affidavit by Themba
Obert Zikode (Themba). Themba stated that his identity number
is
620824 5577 088 and he resides at Swamp Location, Impendle, in
KwaZulu- Natal. He stated as follows. He is the brother
to
the deceased. He was part of the delegation of the Zikode family
during the lobolo negotiations and the persons who were part of
the
delegations as stated by Ndodentsha in his affidavit. The marriage
was celebrated in terms of the customary rights and the bride
was
handed over to the Zikode family to stay with Lawrence Bonginkosi
Zikode as his wife. They have been residing together as husband
and
wife since 1994 until the death of the husband in April 2019. He
confirms the contents of the founding affidavit as far as they
relate
to the marriage celebrated on 15 October 1994.
[12]
The answering affidavit is diposed to by Ntombizonke Portia Miya (the
second respondent).
She stated that she is an adult female residing
at Zone 3, Sebokeng in Johannesburg. She is the duly appointed
executrix in the deceased
estate of the deceased. The deceased was
her father. She stated that the applicant in the founding affidavit
has not explained why
the custo ary marriage was not registered since
1994 and she has not dealt with the issue of the celebration of the
customary marriage
as it is required that 'the marriage must be
negotiated and entered into and or celebrated in accordance with
customary law'. She
queried that the applicant is stating that the
marriage was celebrated on 15 October 1989 before the lobolo
negotiations took place
on 15 October 1994 whereas according to the
custom lobolo is negotiated first, followed by the exchange of gifts
and then the celebration
of the marriage.
[13]
The second respondent stated that the applicant is making frivolous
allegations to
support the relief she is seeking. She submits that
the applicant was not married to her father and she never stayed with
her father
but she used to stay at her own house. She stated that her
uncle is supporting the applicant because he was opposed to the
children
of the deceased inheriting anything. He has taken all the
cars that belonged to her father and he wants to sell the house at
Protea
North.
[14]
The second respondent stated that the applicant was not involved in
her appointment
as an executrix because there was no need to involve
her in their family negotiations. The South African Police Services
informed
the applicant that the deceased only wrote the names of his
children as beneficiaries relating to his death benefits.
[15]
The second respondent attached a confirmatory affidavit of Jabulile
Ntombikayise Zikode
(Ntombikayise). Ntombikayise stated as follows.
She is the eldest daughter of the deceased. She resided at
WilloMontein in Pietermaritzburg.
They as beneficiaries to the estate
of the deceased, nominated the second respondent to be appointed as
an Executrix. The deceased,
her father, was never married to any
woman during his lifetime.
[16]
The second respondent attached a second confirmatory affidavit by
Thembinkosi Lennox
Mkhwanazi (Mkhwanazi). Mkhwanazi stated as
follows. He resides in Protea North, in Soweto. He is the son of the
deceased. He confirmed
that the deceased was not married and they
nominated the second respondent to be the Executrix. The deceased was
never married to
any woman during his lifetime.
[17]
The second respondent attached a third confirmatory affidavit from
Bizo Thokozani Siphesihle
Makhathini (Makhathini). Makhathini stated
as follows. He is a retired member of the South African Police
Services. He resided at
Protea North in Gauteng. He stated that he
worked with the deceased who was his close friend since 1986 and they
stayed together
in the same room from 1986 until 1993. They then
bought their properties. They continued to be friends until the
deceased passed
away on 12 April 2019.
[18]
Makhathini stated that the deceased told him that he will never get
married because
he was not happy in the previous relationships. The
deceased would have told him if he changed his mind, and the deceased
would have
invited him in a celebration of his customary marriage.
[19]
The applicant in the replying affidavit stated that it was a typing
error in her founding
affidavit that the customary marriage was
celebrated on 15 October 1989, what was meant was that it was
celebrated on 15 October
1994.
[20]
It must, in the evaluation and assessment of averments in the papers,
be borne in mind
that the applicant is seeking the relief in order to
benefit as a spouse from the estate deceased. The second respondent
and her
siblings stand to benefit in the exclusion of the applicant
as a spouse of the deceased. In the circumstances, an interested
party
may not disclose that would not advance that parties interest.
Initially, the parties were asked to consider referral to trial of
the issue of whether there existed a customary marriage between the
applicant and the deceased. The applicant's counsel adopted the
attitude that his instructions we to argue the matters on the papers.
The second respondent's counsel also indicated that the onus
was on
the applicant and the respondent was contend to argue the matter on
the papers in the absence of an application by the applicant
to have
the matter referred to the hearing of oral evidence.
[21]
The approach in motion proceedings is that the final relief may be
granted only if
those facts averred in the applicants' affidavit that
have been admitted by the respondent together with the facts alleged
by the
respondent justify such an order. However, allegations or
denials of the respondent that are farfetched or clearly untenable
may
be rejected merely on the papers (See Plascon â Events Paints
Ltd v Van Riebeeck Paints (Pty)
[1984] ZASCA 51
;
1984 (3) SA 623
A at 634 H-l and at
635 (C).
[22]
The onus is on the applicant to prove on the preponderance of
probabilities that she
and the deceased concluded a customary
marriage. In motion proceedings a party does not have an opportunity
to explain what may appear
improbable in his version,
therefore,
probabilities play a far limited role. However, proof by inference
may be resorted to. It means that from established fact
or facts, the
only reasonable inference is made.
[23]
The Constitution of the Republic of South Africa Act No. 108 of 1996,
section 15(3)
(a) provides: 'This Act does not prevent legislation
recognition of -
(i) Marriages
concluded under any traditional, or a system of religions, personal
or family law; or
(ii)
Systems of personal and family law under any traditional or adhere to
by persons professing a
particular religion or;
(b)
Recognition in terms of paragraph (a) must be consistent with this
sections and other provisions
of the constitution.'
[24]
There are various rights and freedoms enshrined in the Bill of Rights
â such as freedom
of association, freedom to pursue a religion and
culture of choice, equality before the law, protection against direct
or indirect
unfair discrimination based on race, gender, sex, age or
social origin. These provisions provide a foundation for the family
law
in South Africa. Legal protection must be accorded to families
resulting from any type of marriage
recognised
by the constitution. To deny recognition as a married person, to a
person who was factually married, traverses that persons
constitutionally enshrined rights.
[25]
Only persons who are not married are allowed to contract a customary
marriage. Persons
married by customary marriage may however contract
a civil marriage with each other. Persons married to each other by a
civil marriage
may celebrate their marriage as if it was a customary
marriage. Persons may marry each other by either a civil marriage
or
customary marriage without ever celebrating their marriage.
[26]
The Recognition of Customary Marriage Act 120 of 1998 (the Act),
seeks to give full
recognition to customary marriages to place them
on par with civil marriages The Act defines (sl) a customary marriage
to mean a
customary marriage concluded in accordance with customary
law. It defines customary law to mean the customs and usages
traditionally
observed among the indigenous African peoples of South
Africa and which forms part of the culture of those peoples. Although
the
section refers to 'customs and usages traditionally observed
among indigenous African peoples and which form part of the culture
of those peoples' it has no cut off point, it includes customs/usages
or culture and traditions of the 21
st
century.
[27]
The Act in s 3(1) as requirements for validity of a customary
marriage entered into
after the commencement of the Act provides that
the prospective spouses must both be above the age of 18 years.
Secondly, they must
both consent to be married to each other under
customary law. Thirdly, the marriage must be negotiated and entered
into or celebrated
in accordance with customary law. The Act
commenced on 15 November 2000. The requirement that the marriage be
entered into or celebrated
in accordance with customary law
incorporates by reference the customary law requirements for a valid
customary marriage. In fact,
the requirements in the Act modify the
requirements found in customary law. The core requirements for the
formation of a customary
marriage remain those found in customary
law.
[28]
The applicant's position straddles the position prior to November
2000 and the position
thereafter. Bekker & Coertze Seymour's
Customary Law in Southern Africa (4
th
ed) pp106-109 states
that the essential of a customary union are as follows:
(i)
The consent of the bride's guardian.
(ii)
The consent of the bride.
(iii)
The consent of the bridegroom.
(iv)
The payment of lobolo, bogadi or ikhazi.
(v)
The handing over of the bride to be bridegroom.
Lobolo
is the key essential to the requirements of a customary marriage.
Without an agreement, relating to lobolo there is no customary
marriage. Seymour PI 50 states that
lobolo
is the rock on which the customary union is founded. An agreement on
lobolo and staying together of the bride and bridegroom
as husband
and wife with knowledge of her people means the existence of a
customary marriage. In those circumstances, the failure
to formally
hand over the bride or to celebrate the union are of no consequence.
Lobolo
signifies
the transfer to and acceptance of the bride by the family she is
marrying to. See Seymour p149. The express handing over
of the woman
to her husband or his people or to allow her to live with him or his
people as his wife, after the agreement relating
to lobolo, concludes
the existence of a customary marriage. Some traditional community,
after an agreement on lobolo and part payment
thereof, slaughter a
beast celebrating the event, which effectively recognises the bride
and the bridegroom as husband and wife.
The other customs and rituals
relating to the customary marriage including its celebration may
remain outstanding. See Moungela and
Another vs Mkabi and others
2020
(1) SA 41
(SCA) para 7.
[29]
The indigenous communities may differ in the manner the prospective
spouses
convey
their consent to marry each other or in the manner they conduct the
lobolo
negotiations.
They may also differ in the manner the handover over of the bride and
in the manner, the bride is accepted in her new
family or in the
manner, they exchange gifts, and the manner they conduct various
rituals and ceremonies around the customary marriage.
The core
requirement must not be lost sight if which is the factual existence
of the marriage. Others, although factually married,
might be heard
saying they are not married meaning that the marriage has not yet
been celebrated. The factual position trumps the
dogmatic
expectations. See Butters v Mncosa
2012 (4) SA 1
(SCA) para 20.
[30]
The conclusion of a customary marriage is a process rather than an
event. Once there
has been an agreement on lobolo and the bride
allowed to join her husband or his family a customary marriage has
been formed. Children
born from the relationship are the children of
the marriage. The wife is expected and is entitled to carry out all
the wifely duties
for her husband and she becomes a daughter- in âlaw
to his family.
[31]
The applicant averred that on 15 October 1994 there were lobolo
negotiations between
her family and the family of the deceased. The
negotiations related to the deceased paying lobolo for her. The
negotiations took
place at her home in her village. She identified
persons who formed delegations to the negotiations and what was
agreed to in the
negotiations. She furnished a brief interim
contemporaneous recording of the negotiations. She furnished
confirmatory affidavits
from the side of her family and from the
family of the deceased. The second respondent has not disputed that
the alleged lobolo negotiations
took place. After the lobolo
negotiations were successfully completed and a substantial part of
the lobolo paid the event was celebrated.
It was the important part
in the process of applicant becoming the wife of the deceased.
Obviously before such negotiations are embarked
upon both sides,
satisfy themselves that the prospective spouses want to marry each
other and there are no known impediments to them
marry each other.
[32]
The successful holding of the lobolo negotiations and part payment of
the lobolo although
it is a very important step in the process, on
its own alone, it would not be tantamount to a conclusion of a
customary marriage.
The applicant averred that from 1994 until the
deceased died she stayed with the deceased as his wife. The paternal
uncle of the
deceased confirms the averment. The close friend of the
deceased does not deny it. There is no evidence that the deceased
stayed
alone or stayed with another woman. If the deceased was not
staying with the applicant for a period of 27 years those close to
him
including his children, uncles. brothers, friends would have
known where he stayed and with whom. The connection between the
deceased
and the applicant is confirmed by the second respondent
averment that on the death of the deceased, the employer of the
deceased
told the applicant that the deceased had written his
children as persons to receive the death benefits. The second
respondent denies
that the applicant lived with the deceased as a man
and wife as claimed by the applicant. She furnishes no basis for her
denial.
She does not state where the deceased was staying and with
whom. She is content to repeatedly state that the deceased was not
married
to the applicant. In my view, the bare denial of the averment
by the second respondent is farfetched and can safely be rejected on
the papers.
[33]
The deceased paid lobolo for the applicant in 1994. By definition,
you pay lobolo for
somebody you want to take as your wife. From 1994
up to the date of his death for a period of 27 years, the deceased
stayed with
the applicant as his wife. The applicant and the deceased
were committed to each other as husband and wife; they had no other
relationship
with each other except that of husband and wife. The
applicant's family must have known and accepted that the applicant
was staying
with the deceased as his wife. The applicant and the
deceased might not have celebrated their customary marriage but they
factual
formed a customary marriage. The deceased took the applicant
and stayed with her as his wife with the approval of her parents as
from 15 October 1994. The customary marriage was concluded on 15
October 1994 when the lobolo negotiations were held, part of the
lobolo paid and they started staying together as husband and wife.
[34]
The third respondent appointed the second respondent as executrix in
the deceased estate
of Lawrence Bonginkosi Zikode without knowing
that the applicant was the surviving spouse of the deceased. Section
54 (1) of the
Administration of Estate Act No. 66 of 1965 provides
that an executor may at any time be removed from his office if for
any other
reason the court is satisfied that it is undesirable that
he should act as executor of the estate concerned. The applicant as a
surviving
spouse of the deceased needed to be consulted and be
considered before an executor is appointed for the deceased estate.
The second
respondent is contesting the applicant's position as the
surviving spouse of the deceased. The second respondent has placed
herself
in a position where she is unlikely to act in the best
interest of the applicant relating to her interest in the deceased
estate
as a surviving spouse. I am satisfied that it is undesirable
that the second respondent continues to act as executrix of the
deceased
Estate.
[35]
In the result, it is ordered.
1
. That the first respondent registers the customary
marriage between
Phumza Ethel Mankayi and Lawrence Bonginkosi Zikode and issue the
certificate of registration as envisaged under
section 4
(8) of the
Recognition of Customary Marriages Act No. 120 of 1998
.
2
That the appointment of Ntombizonke Portia Miya as
Executrix in the
deceased estate of late Lawrence Bonginkosi Zikode is with effect
from the date of this order terminated.
3
The costs of the application of both the applicant
and the second
respondent on party and party scale be paid out of deceased estate of
Lawrence Bonginkosi Zikode.
Mngadi,
J
APPEARANCES
Case
Number
3146/2020P
For
the Applicant
Mr T. Mlambo
Instructed
by
Ratshibvumo Attorney Inc.
JOHANNESBURG
For
the respondent
Mr S. H. Zondi
Instructed
by
B.S Mabaso Inc.
PIETERMARITZBURG
Heard
:
15 June 2021
Judgement
delivered on
:
02 July 2021