About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2019
>>
[2019] ZALMPPHC 5
|
|
S.M.S v V.R.S (181/2015) [2019] ZALMPPHC 5 (15 March 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO PROVINCIAL
DIVISION, POLOKWANE)
CASE
NO: 181/2015
15/3/2019
In
the matter between:
S
M S
PLAINTIFF
And
V
R S
DEFENDANT
JUDGMENT
SEMENYA
J:
[1]
The parties in this divorce action entered into a customary marriage
and later changed the regime to a marriage in terms of
the Marriage
Act, 1961. The issues between the parties which this court should
determine are the following:
i. Whether the customary
marriage entered into by the parties on the 18 may 2002 is valid;
ii. Whether the parties
are married in community of property or out of community of property
with the exclusion of accrual system;
and
iii. Whether the
plaintiff is entitled to rehabilitative maintenance and if so the
quantum and duration of such maintenance.
[2] The parties agree
that their marriage relationship has reached such a state of
disintegration that there is no reasonable prospect
of the
restoration of a normal relationship between them. The issue of
maintenance of the children has already been disposed of
in terms of
rule 43 of the Uniform Rules of Court. The defendant is prepared to
continue with his contribution in that regard post-divorce.
[3]
The plaintiff alleges that she and the defendant have entered into a
customary marriage in compliance with the requirements
laid down in
Recognition of Customary Marriages Act 120 of 1998 (the RCMA). The
defendant on the other hand alleges that there
was no handing over of
the plaintiff to his family. The parties belong to different cultural
groups, the plaintiff is Pedi, the
defendant is Tsonga, and, as it
shall appear from the facts, it is this cultural difference that
constitutes the crux of the parties’
disputes.
[4]
With regard to the regime that governs the marriage relationship
between the parties, although the plaintiff conceded that both
parties have agreed to marry out of community of property with the
exclusion of accrual system, she nonetheless disputes the validity
of
the contract itself, which was drawn after their marriage. I shall
for the sake of convenience refer to this contract as a postnuptial
contract (the PNC). It is the defendant’s version that he and
the plaintiff informed the marriage officer at Home Affairs
Department that they intend to marry out of community of property
with the exclusion of accrual system. The marriage officer advised
them to consult with an attorney who will assist them with the
drawing of an antenuptial contract. It is on this basis that the
defendant contends that the PNC is invalid but only in as far as it
relates to third parties but binding between the parties.
[5]
In as far as rehabilitative maintenance, the defendant’s
contention is that he is not liable to maintain the plaintive
post-divorce by virtue of the nature of their marriage regime.
Plaintiff on the other hand contended that she is entitled to
rehabilitative
maintenance from the date of divorce to the date of
the division of the joint estate. The plaintiff conceded during
cross-examination
that the claim for maintenance stems from her
belief that she and the defendant are married in community of
property.
[6]
It is common cause that on the 4 March 2000, the defendant’s
family sent emissaries to the plaintiff’s family to
ask for her
hand in marriage. It is further common cause that the plaintiff’s
brother and aunt represented the family during
negotiations. It is
the plaintiff’s brother and aunt’s testimony that the
parties to the negotiations agreed that the
emissaries would pay
R1000.00 as security fund for the plaintiff (an indication that the
plaintiff is now engaged to someone else),
an amount which was
ultimately paid. Plaintiff’s family asked for
lobola
in
the amount of R8000. 00. The defendant was required to bring along a
coat, blanket and R40.00
pula molomo
(a token for opening
negotiations). The brother testified that the family of the defendant
informed them that they are going to
leave with the plaintiff on the
date on which they will be coming to finalise the negotiations.
[7]
On the 18 May 2002, the defendant’s family again sent their
emissaries to the plaintiff’s family to finalise negotiations.
It would appear from the minutes of that date that the plaintiff’s
family accepted an amount of R5000.00 instead of R8000.00
as
initially agreed upon. There was a big celebration which included the
blessing of the rings by a pastor. Members of the
defendant’s
family, including his mother were in attendance. Plaintiff’s
aunt testified that a beast was slaughtered
and part of it, cakes and
drinks were taken to the defendant’s family as
mohlabiso/umhlabelo
. A day after the celebration at the
plaintiff’s house, the plaintiff and the people who accompanied
her were taken to the
defendant’s church where further
celebration to welcome the plaintiff’ into the defendant’s
church occurred.
[8]
The plaintiff alleges that all required formalities of a customary
marriage were complied with. She argued that she was formally
handed
over to the defendant’s family. The process of handing over, so
the argument goes, took place when her aunt accompanied
her to the
defendant’s house, when the aunt counselled her on how
she should conduct herself as a
makoti (go laya)
, the
slaughtering of a beast, part of which was taken to the defendant’s
family and the performance of traditional chores
at the defendant’s
house. The defendant on the other hand contends that in his custom,
the slaughtering of a beast must take
place at his house and not at
the plaintiff’s house. The argument is that, since this
ritual was not done in that way,
there was therefore no proper
handing over of
makoti
.
[9]
It is common cause that on the 9 January 2006, the parties attended
to the Home Affairs Department offices with a view of entering
into a
civil marriage as alluded to in paragraph [4] above. The defendant
testified that he and the plaintiff, on the advice of
the marriage
officer, consulted an attorney who assisted them with the drawing of
a PNC. The said PNC was eventually registered
at the Deeds office on
the 9 February 2006, a month after entering into a marriage. The
plaintiff testified that one of the reasons
why she is alleging that
the contract that she had entered into is not valid and binding is
because her signature does not appear
anywhere on the PNC. When asked
as to whether she appeared before a lawyer to sign certain documents,
plaintiff stated that what
she remembers is that she once consulted
with two people but cannot remember if it was for the purposes of
signing a post-nuptial
contract. It was put to her, correctly so,
that her signature does not have to appear on this document.
[10]
The plaintiff testified that she and the defendant discussed the
issue of changing their marital regime and that she has agreed
to
marry out of community of property, with the exclusion of accrual
system. She stated that this happened after the defendant
explained
to her the dangers of marrying in community of property when they are
both business people. She further conceded that
she has, for all
intends and purposes, conducted herself as a person who is married
out of community of property and that she regards
the house she is
staying in to be her sole property. She stated that she is disputing
validity of the PNC based on the advice she
has received from her
attorney.
[11]
The requirements for a valid customary marriage are laid down in
section 3
of the
Recognition of Customary Marriages Act 120 of
1998
as follows:
i. The prospective
spouses must be above the age of 18 years;
ii. The prospective
spouses must consent to be married to each other;
iii. The marriage must be
negotiated and entered into in accordance with customary law.
[12]
The events of the 4 March and the 18 May 2006 are largely common
cause. The marriage between the parties in this matter was
celebrated
at the plaintiff’s home. According to the plaintiff’
brother and aunt, everything that was required to be
done to conclude
a valid customary marriage was complied with. In
D R M v D M K, a
Limpopo Division case No:2017/2016 (ZALMPPHC) at par[29],
Makgoba
JP said the following:
“
The requirement
of handing over a bride to the groom’s family was explicitly
set out in
Motsotsoa
v Roro & Another
[2011] ALL SA 324
(GSJ)
where it was decided that one crucial elements of a customary
marriage is the handing over of the bride by her family to her new
family, namely that of the groom. The court held further that the
mere fact that lobola was handed over to the bride’s family,
significant as it is, is not conclusive proof of the existence of a
valid customary marriage.
The handing over of
the bride (go gorosa ngwetsi) is not only about celebration with
feast and rituals. It also encompasses the
most important aspect
associated with the married state, namely, “go laya” that
is coaching or briefing which includes
the education and counselling
both the bride and the groom by the elders of their rights, duties
and obligations which a married
state imposes on them. The Court
regarded this as the most important and final step in the chain of
events. One can even describe
this as the official seal in the
African context, of the customary marriage.”
[13]
In the instant matter, I am satisfied that all requirements laid down
in
section 3
of the RCMA have been met. I am further satisfied that
the counselling (
go laya
) of the plaintiff and the defendant
were properly done, both during the ceremony and at the defendant’s
place, by the aunt
upon their arrival and in the morning when they
woke up. The evidence of the plaintiff and her aunt that the
defendant’s
mother and other members of the family took them to
their church where further celebrations were held was not disputed. I
am of
the view that the defendant’s mother would not have taken
her to church if the handing over was not done. It is evident that
she wanted to introduce her
makoti
to her church and to the
community. The defendant came up with the version that his father was
not pleased with what had transpired
only during his evidence.
The plaintiff was denied the opportunity to refute it. Overall, the
evidence proves that all parties
were satisfied with the formalities
that took place during the conclusion of the customary marriage.
[14]
The main issue raised by the defendant with regard to the validity of
the customary marriage was that in his culture, being
that of the
vhaTsonga the beast which constitutes
mohlabiso
is slaughtered
at the groom’s house and not at the bride’s as it was
done in this case. He stated that it cannot be
said that there was
mohlabiso
as this was not done according to his culture. The
plaintiff testified that as far as she knows, the defendant is of
Pedi origin
but did not deny that he was raised the VhaTsonga way. It
was however never put to any of the plaintiff’s witnesses, or
to
the plaintiff herself, that during the negotiations their family
was informed that the beast will have to be slaughtered at the
defendant’s house. I find that there is no way that the
plaintiff’s family would have known that the beast will have
to
be slaughtered at the defendant’s house when this requirement
was not known to them. I find this aspect to be too
trivial to
invalidate the marriage between the parties in this matter, more so
that another celebration was held at the defendant’s
church on
Sunday.
[15]
Bosielo J in
Moropane v Southon (755/2012)
[2014] ZASCA 76
(29 May
2014) at [39]
stated the following:
“
[39]
Except for minor and
inconsequential differences on cultural rituals, both expects were
agreed that the current customary requirements
for a valid customary
marriage among the Bapedi people include among others, negotiations
between the families in respect of lobola;
a token for opening the
negotiations (go kokokta or pula molomo); followed by asking for the
bride (go kopa seg sa metsi); an agreement
on the number of beasts
payable as lobola (in modern times this is replaced by money); the
slaughtering of beasts; a feast and
counselling (go laiwa) of the
makoti followed by the formal handing over of the makoti to her
in-laws by her elders. In
D
R M v D M K
above at [33], it was stated that “the Supreme Court of Appeal,
(referring to Moropane,) recognized the pluralistic nature
of the
South African society and pointed out that although Africans in
general share the majority of customs,, rituals and cultures,
there
are some subtle differences which, for example, pertain exclusively
to the Ngunis, Basotho, Bapedi, Vha Venda and the Va
Tsonga”
I
am therefore satisfied that the customary marriage entered into by
the parties is valid. The difference as alluded to by the defendant
is inconsequential. In any event, the parties have already proceeded
to enter into a civil marriage which I shall deal with in
the
following paragraphs.
[16]
With regard to the civil marriage entered into by the parties on the
9 January 2006, it was argued on behalf of the plaintiff
that the
marriage should be regarded as in community of property in view of
the fact that the parties had no antenuptial contract
when they
married. It was contended that the dictionary meaning of the word
‘ante’ is before, and that a contract entered
into after
the marriage cannot change the regime from in to out of community of
property. Counsel for the defendant argued that
the contract is valid
between the parties but is not on third parties. The defendant’s
argument is founded on the plaintiff’s
concession that there
was a meeting of minds between her and the defendant. Their intention
was to change their marital regime
from that which was governed by
RCMA to one of out of community of property with the exclusion of
accrual system.
[17
]
Section 10
(1) of the RCMA provides that a man and a woman between
whom a customary marriage subsists are competent to contract a
marriage
with each other under the Marriage Act, 1961, if neither of
them is a spouse in a subsisting customary marriage with another
person.
It appears from the wording of this section that this change
can be done without the intervention of the court as envisaged in
section 21 of the Matrimonial Property Act 88 of 1084. None of
the parties in this matter was a partner in a customary marriage
with
another woman.
[18]
Esselen J in
Ex Parte Spinazze and Another NNO
1983 (4) SA 751
(T)
at 754C-E
(Spinazze) stated that:
“
According to
Roman-Dutch law, an antenuptial contract requires no formalities in
order to be effective as between the spouses so
that, even where an
antenupial contract has been informally entered into, it is effective
as between the spouses and their universal
successors. See Joubert
The Law of South Africa vol 5 at 157. See also
Ex
parte Andersson and Another
1964 (2) SA 75
(C) at 77B
;
Ex parte
Jacobson et Uxor
1949 (4) SA 360
(C)
at 364.”
Hahlo in his book The
South African Law of Husband and Wife 4
th
ed at 262-263
sets out the position as follows:
“
Since an
informal antenuptial contract, though not valid as against third
parties, is binding between the parties, spouses who have
before
their marriage informally agreed that community should be excluded
are married out of community of property as far as they
themselves
and their heirs are concerned. As far as creditors and other third
parties are concerned, on the other hand, they are
married in
community of property unless the Court authorises the post-nuptial
execution and registration of their informal ante-nuptial
contract.”
[19]
In the
article Written by Magdaleen De klerk (attorney for the plaintiff in
this matter) with a title “
The
validity of a verbal antenuptial contract
”
published in De Rebus on the 29 August 2016, the author, after
referring to section 86, 87 and 88 of the Deeds Registries
Act 47 of
1947,
Lagesse
v Lagesse
1992 (1) SA 173
(D),
Honey v
Honey
1992 (3)
SA 609
(W), Ex Parte Spinazze
(above),
Mathabatha
v Mathabatha
1987 (3) SA 45
and
other similar cases that dealt with informal and/or verbal
antenuptial contract came to the following conclusion:
“
No particular
formalities are required for an antenuptial contract to be valid and
enforceable between the parties thereto. However,
to also be
effective against third parties it has to comply with the formalities
required by section 87 of the Act.
Consequently any
antenuptial contract, which is proved to have been entered into
between the intended spouses, no matter how informally,
will be valid
inter partes.
The effect of
registration is merely to give notice to the world of the existence
of the antenuptial contract and thereby (in a
certain way) to bind
persons who are not parties thereto.”
[20]
As already state above, the plaintiff conceded that she agreed to be
married out of community of property and has always considered
herself to be so married, until her lawyer advised her otherwise. It
could not have been their intention to change their customary
marriage, which is in community of property, in terms of RCMA, to a
similar marriage according to the Marriage Act. This, in my
view,
would have been an unnecessary exercise. I find that their initial
verbal agreement constitutes an informal ante-nuptial
contract as
referred to in the cases referred to in the above article.
[21]
Section 86
and
87
of the
Deeds Registries Act 47 of 1937
provides as
follows:
“
86.
Antenuptial contracts to be registered
An
antenuptial contract executed before and not registered at the
commencement of this Act or executed after the commencement of
this
Act, shall be registered in the manner and within the time mentioned
in section eighty-seven, and unless so registered shall
be of no
force or effect as against any person who is not a party thereto.
87.
Manner and time of registration of antenuptial contracts
(1)
An antenuptial contract executed in the Republic shall be attested by
a notary and shall be registered in a deeds registry within
three
months after the date of its execution or within such extended period
as the court may on application allow.
The
contract entered into between the parties was registered within three
months after the date of its execution in a deeds registry.
It is
therefore binding, not only between the parties, but against third
parties as well. The matrimonial regime that governs the
relationship
between the parties in this matter is that of out of community of
property with the exclusion of accrual system.
[22]
On the issue of maintenance,
section 7
(2) of the
Divorce Act 70 of
1979
provides as follows:
“
In the absence
of an order made in terms of subsection (1) with regard to the
payment of maintenance by the one party to the other,
the court may,
having regard to the existing or prospective means of each of the
parties, their respective earning capacities,
financial needs and
obligations, the age of each of the parties, the duration of the
marriage, the standard of living of the parties
prior to the divorce,
their conduct in so far as it may be relevant to the break-down of
the marriage, an order in terms of subsection
(3) and any other
factor which in the opinion of the court should be taken into account
, make an order which the court finds just
in respect of the payment
of maintenance by the one party to the other for any period until the
death or remarriage of the party
in whose favour the order is given,
whichever event may first occur.”
[23]
The plaintiff testified that she was working as a nurse when she met
the defendant. She resigned and contributed her pension
towards the
business of a funeral undertaker that she and the defendant jointly
owned. It is common cause that the defendant at
some stage withdrew
himself from the business and left the plaintiff to run it alone. The
said business has since been liquidated.
The plaintiff thereafter
joined Herbal Life and sold its products. She had to leave the job in
order to transport her children
to their different destinations and
to take care of them. The parties’ two children are still at
school. One of the
children is a weekly border. She is
currently unemployed and without income. The house she and their
children are staying is in
need of maintenance. Plaintiff’s
application for maintenance
pendent
lite
was dismissed.
She is 44 years old. She testified that she is currently a full time
driver for her children and has no time to
sell Herbal Life products
any more. She is busy with applications to be re-employed as a nurse.
[24]
In
Kroon v Kroon
1986 (4) SA 616
(E) at 633,
financial needs
and obligations of parties as referred to in section 7(2) of the Act
has been defined as the amount of money each
party needs for his/her
day to day living and how much of the income or resources each has to
spend for some obligatory purposes.
The plaintiff in this matter
requires money that will take her through her needs until she finds
work. It might take long for her
to find employment in the nursing
profession as she will have to compete with younger people. She may
have to downscale her standard
of living and find a smaller house at
a cheaper area where she will live in after the divorce.
[25]
The defendant is a business man who owns two seven bedroomed houses
in Pretoria and Cape Town. He earns a salary of R75 00.00
per month
and an additional travelling allowance. The defendant married another
woman during the subsistence of the marriage. The
plaintiff learnt
about the wedding celebration from the parties’ mutual friend.
The photos and programme of the wedding show
that it was a big
celebration which was attended by government ministers David Mahlobo
and celebrities such as Yvonne Chaka Chaka.
This marriage is one
other factor that I should take into consideration in deciding on the
issue of maintenance. It has no doubt
also contributed towards the
break-down of the marriage. He is living with the said woman and
their child. He is living affluently
and will not struggle to pay
rehabilitative maintenance for a period of 12 months.
[26]
On the issue of costs, it was argued on behalf of the plaintiff that
I should order the defendant to pay her costs. I was referred
to a
WhatsApp message in which the defendant was telling plaintiff to
corporate and make the divorce process easy or else he will
make
things difficult for her. It was argued that the defendant has indeed
made the process difficult and lengthy. I do not agree
with this
argument. The facts of this case clearly prove that the plaintiff was
the most unreasonable person in this litigation.
Firstly, it was not
necessary to proceed with the issue whether the customary marriage
was valid or not. The parties have already
changed that marriage to a
marriage by civil rites. Secondly, the plaintiff proceeded to
challenge the validity of PNC despite
the fact that she agreed to be
married out of community of property and was happy with it. These
issues were unnecessarily dealt
with for a number of days when they
could have been resolved with a day or two. It will be unjust to
order the defendant to pay
the plaintiff’s cost under these
circumstances.
[27]
In the circumstances I make the following order:
i.
The
customary marriage entered into by the parties is valid;
ii.
The
parties are married to each other out of community of property with
the exclusion of accrual system;
iii.
A
decree of divorce is granted;
iv.
The
defendant is ordered to pay rehabilitative maintenance for a period
of twelve months in the amount of R5000.00 per month effective
from
the date of this order.
v.
Each
party is to pay his or her costs.
M.V
SEMENYA
JUDGE OF THE HIGH
COURT; LIMPOPO DIVISION.
RESERVED
ON
: 11 JANUARY 2019
JUDGMENT
DELIEVERED ON
: 15 MARCH 2019
ATTORNEYS FOR THE
PLAINTIFF : DDKK INC.
COUNSEL FOR THE
PLAINTIFF
: MRS. M DE KLERK
ATTORNEY FOR THE
DEFENDANT : DU DOIT SWANEPOEL STEYN &
SPRUYT
COUNSEL FOR THE
DEFENDENTS : ADV M S SCHNEHAGE