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[2019] ZALMPPHC 16
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Molepo and Others v Mathobela and Others (3453/2018) [2019] ZALMPPHC 16 (30 April 2019)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
CASE
NUMBER: 3453/2018
30/4/2019
In
the matter between:
KGOSHIGADI
PHILIA MATLOU MOLEPO
FIRST APPLICANT
MAKGAPE
STEPHEN MOLEPO
SECOND APPLICANT
MANAMEDI
CYNTHIA MOLEPO
THIRD APPLICANT
RHINA
PUTLA MOLEPO
FOURTH APPLICANT
AND
MAHUBE
GRACE MATHOBELA
FIRST RESPONDENT
ESATATE
LATE: MAISHA MOLEPO III
SECOND RESPONDENT
MASTER
OF THE HIGH COURT
THIRD RESPONDENT
MAISHA
FRANS MOLEPO
FOURTH RESPONDENT
LEKGEMA
FREDDY MOLEPO
FIFTH RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The
applicants have brought an application seeking order that the first
respondent be declared not to have been married to the late
Kgoshi
Maisha Molepo III; that the first respondent be ordered to disclose
and furnish the assets belonging to the deceased and
Ditlou tsa
Ga-Molepo community; an order setting aside the letters of
executorship issued in favour of the first respondent and
that the
second applicant be appointed as the executor; an order that the
first applicant is the lawful beneficiary of the assets
of the late
Kgoshi Maisha Molepo III; an order that the fourth and fifth
respondents have no powers to negotiate the marriage
relationship on
behalf of the first respondent and Ditlou tsa Ga-Molepo community; an
order that the assets held by Kgoshi
Maisha Molepo III devolve
in terms of the tradition of Ditlou tsa Ga-Molepo and customary law;
and an order that the first
applicant is the kraalhead. The
first respondent is opposing the applicants’ application.
[2]
It came to light that there is a material dispute of facts in this
matter. The parties agreed
to refer the matter for oral evidence to
determine whether there was a valid customary marriage between Kgoshi
Maisha Molepo III
(deceased) and Mahube Grace Mathobela (first
respondent) and also to determine ownership of the deceased
properties.
[3]
The first applicant testified and did not call any witnesses. She
testified that her husband Kgoshi
Setalane Molepo has long passed
away, and she is the candle wife married by the tribe. The deceased
is his son, and at the time
of his death he was unmarried. She was
not in good terms with the deceased. Even though they were not in
good terms, if he wanted
to marry he would have consulted her.
[4]
According to their custom, if a person who is supposed to be the
chief intends to get married,
they call a meeting of the elders and
headsmen to inform them about the intended marriage. They will then
send emissaries to the
family of the bride to ask for a wife. In
relation to the deceased this procedure never occurred.
[5]
She does not know about the alleged R4 800.00 which was paid for
the first respondent as
lobola. She does not know the person who
accepted that money. She does not know the emissaries who were sent
to the first respondent’s
family. She used to see the first
respondent at her place but did not know what was happening. She just
assumed that she was staying
in the house with the deceased. She had
never called the members of her inner circle to go and ask for a wife
for the deceased.
[6]
After the deceased passed away, the first respondent took everything
and left the royal house.
She does not know all the cars that
belonged to the deceased. She heard that the Government had given the
deceased some cars. These
cars were used for community work. She has
no knowledge of the letters of executorship been issued to the first
respondent. According
to her she is the one who must be issued with
the letters of executorship.
[7]
The witness was cross-examined and she conceded that that at the time
of his death, the deceased
was the reigning chief. She stated that
she did not know who the deceased was in a love relationship with as
he was bringing different
women to their homestead. She further
stated that in their custom and culture, the deceased was supposed to
marry his cousin. She
denied that the first respondent was married to
the deceased. She stated that if there were to be emissaries who were
supposed
to go and negotiate lobola for the deceased, she is the one
who was supposed choose them. She denied that when the deceased was
inaugurated as the chief during 2004, he had already introduced the
first respondent as his wife. She conceded that before the
deceased
died she has seen the first respondent in the royal house on several
occasions, but did not know that she was in a love
relationship with
the deceased. She stated that she knew that the deceased was having
one child with the first respondent and was
not aware that they had
two children. That concluded the first applicant’s evidence and
she closed their case.
[8]
Mohube Grace Mathobela testified for her case. She testified that she
knew the first
applicant since 2001. She used to meet her at the
royal house, and also when they came to her homestead to ask for her
hand in
marriage. She knows the deceased. She was staying with him as
husband and wife in the royal house.
[9]
During 2003 the deceased family sent Godfrey Malatswa Molepo to pay R
800.00 for the
knock (kokota). Her father is the one who accepted the
R800.00. At that time she was still the deceased girlfriend. Her
parents
asked her whether she was agreeing to be married by the
deceased as he might marry many wives and she agreed.
[10]
After a week the deceased came and took her to the royal house. Her
parents gave her permission
to leave with the deceased. When she
arrived at the royal house she found the first applicant. On arrival
she was treated as a
visitor and as days passes the first applicant
gave pots to do some cooking.
[11]
The deceased and the first applicant started having some problems to
the extent that the
first applicant
obtained
a protection order against the deceased. She and the deceased
were staying together at the deceased grandmother’s
house. As
the deceased was not in speaking terms with the first applicant, he
arranged his uncles to go and hold lobola negotiations
for him. That
resulted in R4000.00 lobola being paid for her on the 27 February
2016. Before the uncles went to attend the lobola
negotiations, they
informed the first applicant and she told them she does not wish to
get involved in that. The uncles called
the elders and emissaries
were elected and sent to her place to negotiate lobola.
[12]
When the lobola negotiations were finalised, both her parents have
already passed away. Her intention
was to stay together with the
deceased and built a family. After lobola of R4000.00 was paid on the
26 February 2016, the following
day the deceased came to her
homestead and took her to the royal house. On arrival at the royal
they found the first applicant
and the deceased’s sisters. The
sisters welcomed her but the first respondent never uttered a single
word. She did not have
any problems with the deceased and she
regarded him as her husband. They could not go to Home Affairs to
conclude the civil marriage
and change her surname and that of their
children as the deceased fell sick and later passed away.
[13]
She was not involved in the funeral arrangement of the deceased. The
funeral was arranged by
the first applicant and deceased sisters. She
only signed the documents that the deceased be released from the
hospital to a private
mortuary. During the memorial service, herself
and the children were not mentioned. She sat on the matrass in the
house in which
she stayed with the deceased. She did not attend the
funeral as she was not involved in the funeral arrangements and it
was also
announced on the loud speaker during the funeral service
that she was unwanted. After the funeral the first applicant summoned
her family and informed them that she was unwanted at the royal house
and that if they did not leave with her something might happen
to her
and she will not be held accountable. She then packed her belongings
and phoned the SAPS to escort her out of the royal
house. When she
left she took everything including car keys, registration
certificates of the cars and the deceased clothes. The
deceased has
told her what to take in case he dies as he knew that they were going
to chase her out of the royal house.
[14]
The witness was cross examined and she stated that she stayed at the
royal house for more than
10 years. She conceded that her family
never handed her over to the deceased family. She conceded that she
was never counselled
by the deceased family. When it was pointed to
her that the amount of R4000.00 on the alleged lobola letter does not
specify that
it was for lobola, she stated that it was a mistake done
by the author of that letter.
[15]
The first respondent called Maisha Frans Molepo as her only witness.
He testified that he knows
the deceased and that he is the one who
raised him. He knows the first respondent as she was staying with the
deceased at the royal
house as husband and wife.
[16]
On the 27 February 2016 he was part of the emissaries that went to
the first respondent’s
family to pay lobola. They went to the
first respondent’s family to pay lobola on behalf of the
deceased. They paid lobola
for the first respondent in the amount of
R4000.00 and the first respondent’s family accepted that
payment. After accepting
the money there were no further talks. They
then exchanged letters and were told that a huge celebration will be
held at a later
date. After that they left.
[17]
On arrival at home they held a meeting wherein the letter from the
first respondent’s family
was read to all those who were
present. All of them were satisfied with the report they got.
[18]
On arrival at the royal house they found the first applicant and one
Samuel Molepo. They gave
them the letter from the first respondent’s
family.
[19]
The witness was cross examined and he conceded that the intended huge
celebration never took
place as the deceased passed away before it
was held. He conceded that when the first respondent allegedly got
married, she already
had two children. He conceded that when a person
who gets married is already having children with the person who is
marring her,
damages for those children should be paid first before
lobola negotiations could take place. However, he could not tell
whether
in relation to the first respondent damages for two children
were paid. That concluded the evidence of the first respondent and
she closed her case. Both parties submitted their oral closing
address.
[20]
Section 3(1) of the
Recognition of Customary Marriages Act no 120
of 1998
(Act) deals with the requirements of the validity of
customary marriages. It read as follows:
“
For any
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.”
[21]
It is trite that customary marriage is not an event, but a process
that comprises chain of events.
In Motsoatsoa v Roro and Others
2010 ZAGPJHC 122 [2011] (1 November2010); All SA 324 (GSJ) at para 17
the Court said:
“ …
The
basic formalities which lead to a customary marriage are:
emissaries are sent by
the man’s family to the woman’s family to indicate
interest in the possible marriage (this of
course presupposes the two
parties man and a woman have agreed to marry each other); a meeting
of the parties’ relatives
will be convened were lobola is
negotiated and the negotiated lobola or part thereof is handed over
to the woman’s family
and the two families will then agree on
the formalities and date on which the woman will then be handed over
to the man’s
family which may include but not necessarily
accompanied by celebration (wedding).”
[22]
The most crucial part of customary marriage is the handing over of
the makoti to the in-laws.
The handing over symbolises the customary
practice that the makoti is finally welcomed and integrated into the
grooms family henceforth
becomes her new family. (
See Moropane v
Southon
[2014] ZASCA 76
(29 May 2014 at para 40).
[23]
In the matter at hand,
the first applicant dispute that the first respondent was married to
the deceased. She dispute that there
was any lobola negotiations
which were carried out on behalf of the deceased. According to her,
if the deceased intended to marry,
he would have told her and she
would have arranged a meeting of elders and also elect emissaries.
However, at the same time she
stated that she was not in good terms
with the deceased. The first respondent has also confirmed that the
deceased and the first
applicant were not in good terms to the extent
that the first applicant had obtained a protection order against the
deceased. The
first respondent was never challenged on this version.
[24]
The question is if the first applicant had obtained a protection
order against the deceased, was it possible
for the deceased approach
her? That now support the version of the first respondent’s
witness who testified that the deceased
had approached his uncles to
go and negotiate lobola for him as he could not have approached the
first applicant due to their differences.
In African customs uncles
play an important role for the purposes of lobola negotiations.
Therefore in my view, the deceased had
approached the relevant people
to go and negotiate lobola for him. The uncles have also taken some
initiatives to inform the first
applicant, but she had no interest in
the affairs of the deceased due to their stormy relationship. The
Court is therefore satisfied
that there were lobola negotiations
regarding the deceased and the first respondent, and the letter
attached to the first respondent’s
answering affidavit is proof
of the said lobola negotiations.
[25]
However, the mere fact that the lobola negotiations were held, is not
sufficient to prove that
a valid customary marriage has been
concluded. As I have already pointed out in paragraph 21 above that
customary marriage is a
process that comprises a chain of events, the
holding of lobola negotiations is one of those processes of chain of
events.
[26]
In this case both the deceased and the first respondent were above
the age of eighteen when the
lobola negotiations were held. The first
respondent has testified that her parents have asked her whether
indeed she was willing
to be married to the deceased as culturally
the deceased was permitted to marry more than one wife. Despite the
warning from her
parents she agreed to be married to the deceased.
That in my view shows that the parties have consented to be married
to each other
under customary law.
[27]
Now that the two families have agreed on the lobola amount to be paid
for the first respondent,
and that amount was paid, the final step
and most crucial element of a customary marriage, was the handing
over of the first respondent
to the deceased family and celebration.
Celebration does not in all instances takes place at the same time
with the handing over
of the bride to the groom’s family.
However, once handing over has been properly done, a valid customary
marriage is concluded.
Handing over can be done immediately after
lobola negotiations or later at a date agreed by the two families.
[28]
In this case, the first respondent testified that after lobola
negotiations were concluded, the
emissaries from the deceased family
were told that a huge celebration will take place at a later stage.
However, that did not happen
due to the passing away of the deceased.
The first respondent has also conceded that she was never handed over
to the deceased
family and was also not counselled by the deceased
family to show that she was formally part of the deceased family.
According
to the first respondent, the deceased came the following
day after lobola negotiations and took her to the royal house and she
thereafter stayed with the deceased until he passed away. What the
deceased has done did not amount to handing over.
[29]
Even if the first applicant dispute knowing the first respondent, the
evidence are overwhelming
that the first respondent stayed in the
royal house with the deceased over a long period of time. For that
period of time which
the first respondent and the deceased have
stayed together, even if the deceased and the first applicant were
not in good terms,
it is impossible that the first applicant would
not have known what was happening between the deceased and the first
respondent.
It is unfortunate the time period that the first
respondent has spent in the royal house staying together with the
deceased, does
not determine the existence of a valid customary
marriage.
[30]
I
am therefore satisfied that the essential requirement for a valid
customary marriage between the first respondent and the deceased
have
been met since she was never handed over to deceased family to seal
their marriage
.
[31]
With regard to the issue of ownership of the assets, it is trite that
the assets which are registered
into the names of the deceased at the
time of his death will automatically fall into his estate. If there
is any person who alleges
to have a claim against any of the
deceased’s assets, will lodge a claim against the estate.
[32]
In the results the following order is made:
32.1
It is declared that there was no valid customary
marriage that was concluded between the late Kgoshi Maisha Molepo
III
and the first respondent.
32.2
The assets registered into the names of late Kgoshi Maisha Molepo
III at the time of
his death automatically fell into his estate.
32.3 The
first respondent to pay the applicants’ costs.
MF KGANYAGO J
JUDGE OF HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCE:
COUNSEL FOR THE
APPLICANT : MR
SEKHUKHUNE
INSTRUCTED BY
: VTM SEKHUKHUNE ATTORNEYS
COUNSEL FOR
RESPONDENTS :
MR KOKOTLA
INSTRUCTED BY
: LEGAL AID S.A-
POLOKWANE
DATE OF HEARING
: 19
MARCH 2019
DATE OF JUDGEMENT
: 30
TH
APRIL 2019