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[2019] ZALMPPHC 25
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Baloyi v Mabunda and Others (1867/2016) [2019] ZALMPPHC 25 (23 May 2019)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NUMBER: 1867/2016
In
the matter between:
NKHENSANI
REAGAN BALOYI
PLAINTIFF
AND
TINNY
MAPULA MABUNDA
FIRST DEFENDANT
DIRECTO-GENERAL
OF THE
DEPARTMENT
OF HOME AFFAIRS
SECOND DEFENDANT
MASTER
OF THE HIGH COURT
THIRD DEFENDANT
JUDGEMENT
KGANYAGO
J
[1] The
plaintiff has launched an application against the defendants seeking
an order that
her alleged customary marriage with the late Majozi Pax
Mabunda (deceased) be registered by The Director General of the
Department
of Home Affairs (second defendant). She is also seeking an
order that the alleged civil marriage between the deceased and Tinny
Rabothata (first defendant) be declared null and void, and further
that the second defendant deregister that marriage.
[2]
The first
defendant is opposing the plaintiff's application. The first
defendant is disputing that the plaintiff's alleged customary
marriage is valid. According to her, it did comply with the
requirements for a valid customary marriage. The first defendant
contends
that she was legally married to the deceased by civil rites.
[3]
The
background facts are that the deceased allegedly married the
plaintiff by customary union on the 24
th
November 1985. The plaintiff has also attached an alleged lobola
letter that shows that the agreed lobola amount was R1500-00 and
a
deposit of R100-00 was paid. However, the balance of R1400-00 was
never paid by the deceased. It also shows that R200-00 for
damages
for impregnating the plaintiff was also paid on the date of the
alleged lobola negotiations. The letter also shows that
an amount of
R100-00 for negotiations (engagement), R2-00 to allow for the talk,
R1-00 for reed mat was also paid on the date of
the lobola
negotiations.
[4]
With regard
to the first defendant, she has attached to her answering affidavit
an alleged lobola letter that shows that an amount
of R1000-00 as
lobola was paid for her on the 23
rd
April 2005. She has also attached copy of an alleged marriage
certificate that shows that she and the deceased got married by civil
rites on the 31
st
July 2012.
[5]
The parties
agreed that there was a material dispute of fact which could not be
resolved on papers and referred the matter for trial.
As per the
minutes of the pre-trial, the parties agreed that the issue which the
court must determine was whether a lawful customary
marriage took
place between the plaintiff and the deceased.
[6]
Should the
court find that there was a valid customary marriage between the
deceased and the plaintiff, that will affect the validity
of the
alleged civil marriage between the deceased and the first defendant.
Should the court find that the alleged customary union
between the
deceased and the plaintiff is invalid that will validate the first
defendant’s alleged civil marriage with the
deceased.
[7]
The
plaintiff has testified. She testified that she knows the deceased.
The deceased is her husband and he passed away on the on
the 5
th
March 2016. She was customarily married to the deceased on the 24
th
November 1985. She and the deceased are having two children. The
first child was born on the 15
th
November 1984 and the second child was born during 1987.
[8]
The lobola negotiations were held on the 24
th
November 1984. The Mabunda family had sent emissaries to negotiate
lobola for her on behalf of the deceased. When she got married
she
was aged 17 years. She was not present during the lobola negotiations
as custom does not allow her to be present. After the
negotiations
were concluded she was called and given a feedback. She was told by
her grandmother that they have agreed with the
Mabunda family for
lobola in the amount of R1500-00. The deceased was not present during
lobola negotiations. Their lobola agreement
was reduced to writing.
[9]
The agreement showed that on the day in question the emissaries from
Mabunda family
paid a deposit of R100-00. To show that the
negotiations were concluded, the emissaries from Mabunda family were
given food. Later
the deceased came to fetch the emissaries. The
emissaries were also given food to take with to the Mabunda family.
She did not
leave with them as they did not ask permission for her to
leave with them.
[10]
Before Christmas the deceased came to fetch her and the child saying
he was going to buy Christmas
clothes for the child. After buying
clothes he took her to the Mabunda's homestead. Later the Mabunda's
sent a representative to
her family to inform them that she was now
at the Mabunda homestead. She stayed at Mabunda homestead from
December 1985 to September
1995.
[11]
During 1987 she gave birth to her second child. Both the first and
second child have taken their
father’s surname. After the birth
of the second born, her family decided that she should be formally
handed over to the Mabunda's.
She went back to her parental home on a
Friday. On Saturday her family and other family representatives took
her to the Mabunda
family where she was formally handed over to them.
Her family also bought pots, duvets, blanket and scones which they
took along
to Mabunda family for the handing over ceremony.
[12]
When they arrived at Mabunda's homestead, they were received by the
deceased elder sister Maria
Mabunda, both his parents and other
family members. Her family informed the Mabunda's that they were
formally handing her over,
and the Mabunda's formally accepted her.
After that a goat was slaughtered and a feast was held formally
accepting her.
[13]
From that day she and the deceased stayed together as husband and
wife at the deceased parental
home until 1995. During 1995 the
deceased bought a house in Nkowankowa and they moved to that house.
She did not know that they
were supposed to register their customary
marriage. She, the deceased and their two children stayed together in
Nkowankowa until
2002. During 2002 the deceased had financial
problems as he was now working in Polokwane and was commuting between
Polokwane and
Nkowakowa on daily basis. They agreed to sell the house
in Nkowankowa and buy a house in Polokwane. She could not relocate
with
them to Polokwane as she was working in Nkowankowa. The deceased
moved to Polokwane with the children. She stayed in Nkowankowa
at her
mother's house. The deceased was visiting her over weekends. This
went on until the deceased passed away. However, the visitation
was
no longer the same as the deceased will sometimes visit after a
month.
[14]
She knew about Tinny Mabunda (first defendant) after her children
told her that she was having
an affair with deceased. She confronted
the deceased about the first defendant and he denied having an affair
with her. She never
met the first defendant. She was not aware that
the first defendant was married to the deceased. She knew after the
deceased has
passed away. She did not give the deceased consent to
marry the first defendant.
[15]
On the Old Mutual policy the deceased had nominated her as a spouse,
and the first defendant
as an additional spouse. The deceased was her
husband from 1985 until his death.
[16]
The plaintiff was cross examined and she stated that she and the
deceased started having a love
relationship during 1982, and by then
she might have been 14 or 15 years of age. She conceded that the
balance of R1400-00 for
her lobola was never paid, and that in their
culture they will never demand payment of the outstanding lobola. She
conceded that
the deceased mother and sisters never coached her, but
that she was coached by her family members. She conceded that on the
transfer
documents relating to the house which the deceased bought in
Polokwane during the year 2000, he had stated that he is unmarried.
She conceded that she was not on the deceased medical aid. She
conceded that there is a house in Nkowankowa that she jointly owns
with her first daughter. She conceded that on the affidavit relating
to the transfer documents of the house in Nkowakowa, she has
stated
that she was unmarried. She stated further that it was as a results
of an agreement between her and the deceased to depose
an affidavit
stating that she is unmarried. The reason for that was to assist her
first daughter to secure a bond as she could
not qualify on her own.
[17]
The plaintiff called Penna Maxine Shandlale as her first witness. She
testified that she knows
the plaintiff. The plaintiff is the daughter
of her eldest sister. On the 24
th
November 1985 the Mabunda family sent emissaries to Baloyi family to
hold lobola negotiations regarding the plaintiff. She was
present
when the emissaries from the Mabunda family arrived. Her father,
uncle, siblings, and other family members were present.
They accepted
the emissaries and after that lobola negotiations started.
[18]
The emissaries told them that they have come to marry the plaintiff.
The Baloyi family told the
emissaries that they first had to pay
damages for the plaintiff since the deceased had already impregnated
her. The damage amount
was fixed at R200-00 and the emissaries paid
it. After payment of the damage amount the actual lobola negotiations
started. They
agreed at the lobola amount of R1500-00. There were
also other payments which were paid immediately by the emissaries
which were
procedural requirements before the parties could agree on
the lobola amount. The emissaries paid R100-00 as a deposit for
lobola
and the outstanding balance of R1400-00 was to be paid at a
later stage. She is the one who had written the lobola letter.
[19]
The deceased was not present during the negotiations. However, after
the negotiations were finalized,
the emissaries called the deceased
and explained to him the lobola letter that she had drafted. After
that the deceased was the
first person to sign the lobola letter on
behalf of the Mabunda family. After all the formalities were
completed, they celebrated
that the plaintiff was married.
[20]
During 1987 they contacted the Mabunda family notifying them that
they will be formally handing
over the plaintiff to them. After the
lobola negotiations, the plaintiff and the deceased had agreed to
stay together. There was
a delegation from Baloyi family that
accompanied the plaintiff when she was handed over to Mabunda family.
On arrival at Mabunda
family they were accepted and a goat was
slaughtered. The slaughtering of a goat was a sign of welcoming them.
After that the two
families celebrated together. They have also
bought some items like pots and other staffs which accompanied the
plaintiff when
she was handed over to the Mabunda’s.
[21]
The witness was cross examined and she stated that the person who had
written “subject
to legal marriage” on lobola letter was
his father. She denied that on the 24
th
November 1985 they were celebrating for the payment of damages. She
conceded that on the 24
th
November 1985 after lobola negotiations were completed, the
emissaries did not seek permission to leave with the plaintiff. She
stated that days after lobola negotiations, the deceased invited the
plaintiff to come and stay with him at his parental home.
[22]
Under questions by the court she stated that according to the
Shangaan custom, they will not
demand payment of the outstanding
lobola amount. She further stated that the groom will arrange a date
when he will come and pay
the outstanding lobola amount. After
payment of the outstanding lobola amount, that is when a goat will be
slaughtered to symbolize
that he had paid the full outstanding lobola
amount.
[23]
The plaintiff’s
second witness to testify was Mbuzini Jones Baloyi. He stated that
the plaintiff is his niece. On the 24
th
November 1985 a delegation from the Mabunda family came to the Baloyi
homestead to negotiate lobola for the plaintiff on behalf
of the
deceased. He was not part of the lobola negotiations. He was later
informed that money for lobola was paid by Mabunda family
but he did
not ask how much was paid. They were told that the lobola
negotiations were completed and that they must give the visitors
food. He, his mother and other people are the ones who cooked for the
visitors from Mabunda family.
[24]
He was present and part of the delegation when the plaintiff was
handed over to the Mabunda family. That
was a formal handing over.
Since the handing over of the plaintiff to the Mabunda family, the
plaintiff became the wife of the
deceased. The deceased became their
so-in-law. The witness was cross examined and nothing new came out.
[25]
The plaintiff’s third witness to testify was Daphney Musireni
Rikhotso. She testified that
the plaintiff is her daughter. She
started knowing the deceased during 1984 when the plaintiff fell
pregnant. The deceased is the
one who had impregnated the plaintiff.
When the plaintiff fell pregnant she (witness) was working and
staying in Johannesburg.
She was informed that the Mabundas will come
to their homestead to have a discussion with them.
[26]
The deceased married the plaintiff during November 1985. That weekend
she came home. When she
arrived at home, her father told her that the
Mabundas are coming to his homestead to discuss the issue of damages
after the deceased
had impregnated the plaintiff. During the
discussion she was not present. It was later reported to her that
after the Mabundas
have paid damages, they proceeded to discuss
lobola negotiations. During 1985 the plaintiff was aged 17 years and
she gave consent
for the continuation of the lobola negotiations as
the plaintiff was still a minor. Her father (witness) was leading the
negotiations
and he gave consent for the plaintiff to get married. It
was her father who called her and asked her whether she was agreeing
that
the plaintiff should get married.
[27]
After the negotiations, she received a report about the outcome of
the negotiations. She was
told that damages were paid and that
R100-00 as deposit for lobola was also paid. Up to date the balance
of the lobola was never
paid. In Shangaan culture they don’t
invite many people when damages were discussed.
[28]
Sometime after the negotiations were finalised, the deceased arrived
and it was explained to
him the outcome of the negotiations. He
agreed with the outcome of the negotiations and he signed the lobola
letter. The plaintiff
was also called and it was explained to her the
outcome of the negotiations and she agreed with them. The plaintiff
did not go
to Mabunda family with the delegation immediately after
the conclusion of the negotiations as Shangaan culture does not allow
that.
A day will be arranged when it will be formally announced as to
when she will be handed over to her in-laws.
[29]
During December 1985 whilst in Johannesburg, she received a call that
the deceased came and collected
the plaintiff and her child under the
pretext that he was going to buy clothes for the child, but did not
return them. The Mabunda’s
sent a messenger to inform them that
the plaintiff was at their homestead. During 1987 the plaintiff again
fell pregnant whist
staying at Mabunda homestead. The same year they
called the plaintiff back home to formally hand her over to the
Mabunda family.
They bought things that will be taken with her when
she was handed over.
[30]
In Shangaan custom the groom never finishes marrying. Since the
deceased did not pay the lobola of R1500-00
in full, in Shangaan
custom they will deduct that money from the lobola of the deceased
daughter when she gets married. If the
wife dies before the full
lobola was paid, the husband will not be allowed to bury her until he
pays the full outstanding amount.
According to their custom the
payment of R100-00 by the Mabunda family meant something.
[31]
The witness was cross examined and she stated that the plaintiff has
told her that the deceased
wanted to marry her. She further stated
that she had coached the plaintiff about marriage. She stated that
she knew about the first
defendant as she used to come to attend
parties and funerals at their village. The first defendant also
attended Saghwati’s
birthday party and was also present at the
funeral of the deceased father. She knew the first defendant as
deceased wife and they
also had a child together. Under questions by
the court she stated that they handed over the plaintiff to the
Mabunda’s as
there was nothing they could do since the deceased
and the plaintiff were staying together.
[32]
Maria Liza Mabunda was the plaintiff’s
fourth witness to testify. She testified that she knows the
plaintiff
as the wife of the deceased. She knew the plaintiff from 1985.
[33]
During
November 1985 the Mabunda family went to the Baloyi family to marry
the plaintiff. She was not part of the emissaries that
went to marry
the plaintiff. The elders of the Mabunda family had discussed about a
date when they will go to the Baloyi family.
She was not part of that
discussion. However, after they agreed on the date, her father and
mother came and notified her as their
eldest child that they were
going to marry the plaintiff for the deceased. During 1985 she was 28
years of age.
[34]
When
the emissaries came back from the Baloyi family, they gave them a
report of what happened and also gave them a letter written
by the
Baloyi family. According to the letter the parties have agreed on an
amount of lobola to be paid. They did not come back
with the
plaintiff. The plaintiff came to their homestead the following day on
a Sunday after she was collected by the deceased.
[35]
The
plaintiff stayed at the Mabunda homestead for a long time. At some
stage her family called her to return home for a proper handing
over.
Her family handed her over to the Mabunda family during June 1986 or
1987. When they handed her over, they also brought along
cutleries
and utensils. She will not know why she was not handed over earlier.
She was present when the handing over was done.
The Mabunda’s
slaughtered a goat as a symbol of showing happiness and that they
were marrying her. The elders of the Mabunda
family, her father, her
younger brothers, aunt and the deceased were present during the
handing over.
[36]
She
knows the first defendant as the deceased second wife. She is the one
who went to marry the first defendant on behalf of deceased.
At the
time of the deceased death, he was still married to the plaintiff,
and the Mabunda family regards the plaintiff as the deceased
wife.
[37]
The
witness was cross examined and she stated that the plaintiff stayed
at the Mabunda family from 1985 until her family called
her for a
formal handing over. She stated that when the Mabunda’s went to
the Baloyi family on the 24th November 1985, their
intention was to
marry the plaintiff, and they were also aware that they will first
have to pay damages for the plaintiff’s
pregnancy. She stated
that when the plaintiff was handed over, she was already permanently
staying at Mabunda family.
[38]
Violet
Tsakani Mabunda was the plaintiff's fifth witness to testify. She
testified that she knows the plaintiff as someone who was
staying
with the deceased. The deceased is her brother even though not blood
brothers. Her father and the deceased father are blood
brothers. She
is working at Nyavana Traditional Council as an admin clerk. She is
the one who had issued the letter dated 23
rd
March 2016 confirming the customary marriage between the plaintiff
and the deceased. Before she wrote that document, the deceased
sister
Liza Mabunda gave her a document which was signed showing that the
marriage took place on the 24th November 1985. She was
not present
when the negotiations took place, but she had knowledge of them.
[39]
She
is the custodian of the custom and culture. The procedure that they
follow when they marry by custom is that a go between will
be sent to
the bride’s family. The go between will agree with the bride’s
family about a date on which lobola negotiations
will be held. From
there the groom’s family will go and prepare themselves and on
the agreed date they will go to the bride’s
family having a
certain amount of money.
[40]
On
arrival at the bride’s family the emissaries will stand at the
gate and pay a certain amount of money to be allowed to
enter the
brides homestead. On paying that amount, emissaries will be allocated
their own room. Somebody from the bride’s
family will be sent
to greet the emissaries. After the greetings, the emissaries will
request to see a representative from the
bride's family, and find out
who will be their go between. The bride's family go between will come
to the emissaries to tell them
that they are ready to start with the
negotiations.
[41]
Where the future bride
has been impregnated by the future groom, before the lobola
negotiations start the parties will first deal
with the pregnancy
damages. The parties will agree on the amount of damages to be paid.
The bride’s family will make a list
of demands which usually
consists of a coat, snuff, jacket, wallet, reed mat where money will
be placed, etc. The bride’s
family will then pose a question to
the emissaries as to who told them that there is a lady in that
family. The list that is demanded
form part of damages. Thereafter
they will agree on lobola amount. Then they will have a total amount
of the list and lobola amount.
The emissaries will pay whatever
amount they are having and if there is an outstanding balance, they
will tell the bride’s
family that they will pay it at a later
stage. If the emissaries are able to pay the full amount, the bride’s
family will
tell them whether they are satisfied or not. If they are
satisfied, the handing over of the bride may be done immediately
after
negotiations.
[42]
Where the groom’s
family did not pay the lobola amount in full, the parties will still
be allowed to get married, and the
groom will even be told that a man
does not finish to marry. The handing over depends upon an agreement
between the two families.
Handing over can be done on the same date
of the lobola negotiations or on a later date. The witness was cross
examined and nothing
new came out.
[43]
Saghwati Mabunda was the
plaintiff's sixth witness to testify. She testified that she is a
daughter of both the plaintiff and the
deceased. Amukelani Hope
Mabunda is her younger sister. Mbhoni is the son of the first
defendant and the deceased. The deceased
had also a son named
Twananani and a daughter named Nkateko from different mothers.
[44]
She
knows the first defendant to be the deceased girlfriend. She started
knowing the first defendant either during 2004 or 2005.
When the
deceased introduced the first defendant to her, he introduced her as
his friend. At a certain point the deceased had a
child with the
first defendant. She only knew after the deceased has passed away
that the deceased and the first defendant were
married to each other.
[45]
She used to stay in the
same house with the deceased and the first defendant at the deceased
house in Polokwane. She, her sister,
the plaintiff and the first
defendant are the ones who contributed to the deceased funeral
expenses.
[46]
She and the plaintiff are
joint owners of house no 876 B Nkowankowa. However she is the one who
is paying the monthly bond repayments.
At the time she bought the
house, she did not qualify for a home loan. She talked to the
deceased to assist her, and the deceased
advised her to talk to the
plaintiff. She and the plaintiff initiated a loan application and it
was successful. The deceased and
the plaintiff were married to each
other. As her mother’s marriage was not registered at the
Department of Home Affairs,
they were advised by the deceased and the
people who were assisting them with the loan application that the
plaintiff should sign
the affidavit in support of the transfer as if
she was unmarried.
[47]
The witness was cross
examined and she conceded that there was nothing preventing the
deceased to go to the Department Home Affairs
to have their marriage
registered. That concluded the evidence of the plaintiff and she
closed her case.
[48]
The first defendant did
not testify for her case but called witnesses to testify on her
behalf. Derrick Vuma was the first witness
to testify on behalf of
the first defendant. He testified that he and the deceased are
cousins and friends as well. He knows the
first defendant as the
deceased wife. He used to visit the deceased in Polokwane and is
aware that the deceased had children with
the plaintiff. To his
knowledge the deceased was not married to the plaintiff. He never
asked the deceased whether he was married
to the plaintiff or not.
[49]
He met the first
defendant during 2004 after the deceased had called him to visit him
in Polokwane. On arrival the deceased introduced
the first defendant
to him as his wife. Before that day he was not aware that the
deceased was married to any other lady, except
that he knew that he
had two daughters with the plaintiff. From time to time the deceased
used to attend funerals and family functions
in the company of the
first defendant.
[50]
The witness was cross examined and he conceded that he did not know
as a matter of fact whether
the deceased was married to the
plaintiff. He stated that around 1985 he was 13 years old. He stated
that he did not know whether
the deceased at any stage stayed with
the plaintiff, but that he only knew that they had two daughters
together.
[51]
Evelyn Sibiya was the
second witness to testify on behalf of the first defendant. She
testified that the deceased was her elder
brother. She knows the
plaintiff as she was having two children with the deceased. She knows
the first defendant as the deceased
wife. She met the plaintiff for
the first time on the 12
th
March 2016 at the deceased funeral. She (witness) is married and she
stays at her own homestead.
[52]
During 1986 her mother told her about the birth of Saghwati, the
deceased daughter even though
she was born during 1984. Her mother
also told her that the plaintiff was staying with them together with
Saghwati. She also told
her that since they were from the royal
family, they have sent a delegation to Baloyi family to pay damages
for the deceased for
having impregnated the plaintiff. The reason why
they paid damages was that the deceased did not love the plaintiff
and also did
not intend to marry her. She does not remember the
plaintiff being handed over to the Mabunda family. When the deceased
went to
the Baloyi family was to admit that he had wronged them. The
alleged lobola letter according to her is not a lobola letter but a
letter for payment of damages. In their custom the groom does not
sign a lobola letter. According to their custom if lobola
negotiations are held the Baloyi’s and Mabunda’s will
draft their own letters, sign them and exchange them. It is only
when
it is payment of damages that two families will sign the same
document.
[53]
During 2003 the deceased came to her place and introduced the first
defendant to her. He told
her that he intends marrying the first
defendant since he did not have a wife. During 2005 the deceased told
her that he was ready
to marry the first defendant. In deed lobola
for the first defendant was paid during 2005. In their culture a man
will not marry
a second wife without the knowledge of the first wife,
and the elders will also not allow that. The day the deceased passed
away,
she went to the first defendant homestead to ask her where she
wanted the deceased to be buried. She did that as she knew the first
defendant to be the deceased wife.
[54]
The witness was cross examined and she stated that
between 1984 and 1986 she did not visit her parental
homestead. She
stated that she is aware that Saghwati was having a younger sister
Amukelani, but did not know when she was born.
She further stated
that she did not know whether her family approached Nkateko and
Twanani’s family to pay damages on behalf
of the deceased. In
relation to Mbhoni the first defendant’s son, she stated that
there was no need to pay damages since
the deceased intended to marry
the first defendant, and that according to their custom, damages were
payable if the man had no
intention of marrying the woman. She
conceded that when Amukelani was born the deceased family did not pay
damages. She stated
that if the plaintiff was handed over to the
Mabunda family during 1987, the deceased and her parents would have
informed her.
She denied that her sister Liza is telling the truth
when she testified that the plaintiff was handed over to the Mabunda
family
during 1987, and further stated that if there was such an
event, she would have been notified. She stated that the confirmatory
affidavit that is attached to the first defendant answering affidavit
is false, and that she was never in Thohoyandou where it
was
commissioned. She stated that the delegation that signed the alleged
lobola letter dated 24
th
November 1985 did that without a mandate from Mabunda family. When
asked why in relation to the alleged lobola letter of first
defendant
both families have signed the same document, she stated that the
Mabunda’s have compromised their own custom.
[55]
Gladewill Blade Mabunda was the first defendant’s third witness
to testify on her behalf.
He stated that the deceased is his elder
brother. He knows the plaintiff as Saghwati’s mother. He knows
the first defendant
as the deceased wife. He is disputing the
contents of his confirmatory affidavit attached to the first
defendant’s answering
affidavit. The author of that
confirmatory affidavit did not read the contents of it to him.
[56]
During December 1985, the deceased told their uncle that Saghwati
together with the plaintiff
came to their homestead in order for him
to buy Saghwati Christmas clothes. The way his uncle laughed after
being told, he could
see that he knew about the plaintiff and
Saghwati. However, the deceased did not tell their uncle that he
intends marrying the
plaintiff.
[57]
With regard to the issue
marriage, the elders would not have involved him since he was still
young. He knows that the Mabundas have
sent a delegation to Baloyi
family but does not know why they were sent as he was not part of the
discussion. The deceased was
part of the people who went to Baloyi
family. The plaintiff started staying in their parental homestead
from early 1986. When the
deceased and the plaintiff moved to
Nkowankowa, they were not married. He does not remember the plaintiff
been handed over to the
Mabunda family during 1987. The Baloyi family
never came to Mabunda family with gifts and blankets.
[58]
He met the first defendant around 2002. That day the deceased went
with him to Gakgapane where
the first defendant was staying. On
arrival the deceased introduced the first defendant as his girlfriend
and that he intends marrying
her.
[59]
In Polokwane the deceased was staying alone, but during school
holidays Saghwati and Amukelani
would visit him. During 2005
the Mabunda’s sent emissaries to go and marry the first
defendant. The deceased and the
first defendant stayed together until
the deceased passed away during March 2016. The deceased and the
first defendant had a child
together and the child was born during
1995.
[60]
The witness was cross examined and he stated that the plaintiff and
the deceased stayed at their
parental home from 1985 to 1995 as
boyfriend and girlfriend. He conceded that their custom does not
allow an elder brother to stay
with his girlfriend at their parental
home and that in the case of the deceased he did that as he had
admitted guilt and paid damages.
He further stated that the deceased
had many girlfriends who were even fighting over him.
[61]
Constance Mabunda Nukeri was the first defendant fourth witness to
testify. She testified that
the deceased is her elder brother. She
knows the plaintiff as Saghwati’s mother. She knows the first
defendant as the deceased
wife. She disputes the contents of the
confirmatory affidavit attached to the first defendant’s
answering affidavit. She
was not in Thohoyandou when it was allegedly
commissioned. She signed the document at Xihoko village and was only
showed where
to sign.
[62]
She met Saghwati for the first time at her parental home during 1985.
That day she saw Saghwati
in the morning and later she saw the
plaintiff coming out of the deceased room. The plaintiff
introduced herself to her and
told her that Saghwati was the deceased
daughter. From that day the plaintiff used to stay at their parental
home and sometimes
she (plaintiff) would go to her parental home.
Amukelani is the plaintiff’s second born child and was born
during 1987.
[63]
Between 1985 and 1987 there was no celebration of any kind that was
held at her parental home.
During that period, the Baloyi’s did
not come to her parental home with pots and gifts. She (witness) left
her parental home
during 1993 to go and live at her own place. She
does not know when the plaintiff moved out of their parental home to
go and stay
in Nkowankowa.
[64]
The deceased was someone who would come back home late at night and
sometimes will wake up in
the morning from his car or the room of his
younger brother Gladewill.
[65]
The witness was cross examined and she stated that she does not know
the reasons why the deceased
and the plaintiff moved out of their
parental home. She stated that during 1985 she was 14 years old and
would not have been informed
about lobola negotiations. She stated
that at Nkowankowa the deceased was staying with the plaintiff and
her children. She denied
that the plaintiff was ever handed over to
the Mabunda family.
[66]
Motupi Evans Selomo was the first defendant fifth and last witness
testify. His testimony did
not add value to the issue in dispute.
Thereafter the first defendant closed her case. Both parties have
submitted their written
heads of arguments supplemented by their oral
submissions.
[67]
It is trite that customary marriage is not an event, but a process
that comprises a chain of
events. In
Matsoatsoa
v Roro and Others 2010 ZAGPJHC 122,
[2011] 2 All SA 324
(GSJ) (1
November 2010) at para 17
Matlapeng AJ said:
“
The basic
formalities which lead to a customary marriage are:
emissaries are sent by
man’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 where 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 be handed over may include but not necessarily be
accompanied by celebration(wedding)”.
[68]
The most crucial part of customary marriage is the handing over of
the makoti to the in- laws.
The handing over symbolizes the customary
practice that the makoti is finally welcomed and intergrated into the
groom’s family
which henceforth becomes her new family. (See
Moropane v Southon
[2014] ZASCA 76
(29 May 2014) at para 40).
[69]
The matter at hand has divided Mabunda family into those that support
the plaintiff and those
that support the first defendant. Witnesses
for both parties to some extent were economic with the truth. The
plaintiff testified
that she saw the first defendant for the first
time after the death of the deceased. However, the plaintiff’s
mother testified
that she knew the first defendant as the deceased
wife, and that she has even attended Saghwati’s birthday party.
If the
first defendant was able to attend Saghwati’s birthday
party, it is improbable that the plaintiff can claim to have met her
only after the death of the deceased. Saghwati was staying in
Polokwane with the deceased and the first defendant, and it was also
improbable for the plaintiff not to have known the people who were
staying with her daughter.
[70]
The plaintiff has stayed at the deceased parental home for almost ten
years. However, the first
defendant’s witnesses claim not to
have known as to what was happening between the deceased and the
plaintiff. The first
defendant’s witnesses claim to be coming
from a royal house. The royal house is supposed to be the custodian
of both custom
and culture, and therefore would not have allowed the
deceased who was induna in waiting to have stayed with the plaintiff
as girlfriend
and boyfriend for such a long period of time in their
homestead. The first defendant’s witnesses put a picture as if
the
deceased and the plaintiff were not sharing the same room,
however in the process children were born between the deceased and
the
plaintiff. Both children took the surname of the deceased.
[71]
In African culture for a child to be named it is a big thing. The
name of the child is decided
by the elders and that child will not be
given any other name, but a specific name linked to a specific
individual who might be
alive or dead. Therefore, the children of
both deceased and the plaintiff to take the deceased surname shows
that the relationship
of the deceased and the plaintiff was not just
that of a boyfriend and girlfriend, but more than that. The first
defendant’s
witnesses in my view were afraid that if they tell
the court how the viewed the relationship of the plaintiff and the
deceased,
that might strengthen the plaintiff’s case.
[73]
What this court must determine is whether this relationship which the
plaintiff and the deceased
had, met the requirements of a valid
customary marriage.
[74]
It is not in dispute that the deceased and the plaintiff had two
children together. The alleged
lobola letter between the plaintiff
and the deceased was signed after the birth of the first child
Saghwati. The first defendant
dispute that the said letter was for
lobola negotiations. The first defendant contends that the said
letter was in relation to
negotiations for damages after the deceased
had impregnated the plaintiff.
[75]
Both the plaintiff and the deceased are Shangaans. Both parties
did not call any independent
expert witness to testify about the
Shangaan custom regarding customary marriage. The witnesses who
testified about the procedure
to be followed when a man asked a woman
a hand in marriage are two of the plaintiff’s witnesses Maxine
Shandlale and Violet
Mabunda. Both witnesses were not challenged on
that aspect.
[76]
According to Maxine the man’s family will sent emissaries to
the woman’s family.
On arrival at the woman’s family, the
woman’s family will line up few girls for the man’s
family to identify
out the girl they have come to marry. After
identifying the girl, the negotiations will start. Thereafter they
will agree on the
lobola amount. If they are having something, they
will pay that as a deposit. According to her in Shangaan custom they
will not
demand the outstanding lobola amount. When the man is
ready to come and finish paying the outstanding lobola amount, he
will
first arrange the date with the woman’s family as to when
he will come. After paying the outstanding lobola amount, that is
when a goat or sheep will be slaughtered symbolizing that the man has
paid the full lobola amount.
[77]
According to Violet when the process of asking a woman a hand in
marriage is started, a go between
will be appointed. The go between
will be sent to the woman’s family to tell them that their son
had seen their daughter.
A specific date will be arranged on which
lobola negotiations will be held. The man’s emissaries will go
to the woman’s
family on that specific day and they will also
be having a certain amount of money.
[78]
On arrival at the woman’s place they will stand outside the
gate. The woman family will
send a child to go and greet them. The
emissaries will give the child a certain amount of money so that the
child can open the
gate for them and they will then be permitted to
enter the homestead. After entering, the emissaries will be allocated
a room.
Somebody from the woman’s family will be sent to go and
greet them. After the greeting, the emissaries will tell that person
the purpose of their visit and will also request a go between from
the woman’s family. The go between from the woman’s
family will be sent to the emissaries to tell them that they are
ready to start with the negotiations.
[79]
When the woman they have to marry has been impregnated, they will
first deal with the issue of
pregnancy and pay damages for that. The
woman’s family will list everything that is demanded for
damages. After the list
has been determined, they will come to a
certain figure which will represent the lobola amount and damages.
The emissaries will
pay a deposit of what they brought along and tell
the woman’s family that the outstanding lobola amount will be
paid at a
later stage. If the whole lobola amount is paid in full
they will write down a letter and thereafter tell the emissaries that
they
are handing over the woman to them.
[80]
Handing over depends on the agreement between the two families.
Handing over can be done the
same day of the lobola negotiations are
concluded or on a later date.
[81]
From the testimony of both Maxine and Violet, it is clear that for
every process during the lobola
negotiations, both families must
agree. They first agree on the date on which the lobola negotiations
are to be held, secondly
they agree on lobola amount, thirdly if the
agreed lobola amount is not paid in full, the man’s family will
settle the balance
at a later date, and if they are ready to pay the
balance, the two families will agree on the date on which the balance
will be
paid, and fourthly when the full lobola amount is paid in
full and other requirements have also been met, the two families will
agree when bride will be handed over to the groom’s family.
[82]
In the plaintiff’s case, it is not in dispute that the
Mabunda’s and Baloyi’s
met and had a meeting. What is in
dispute is the purpose of that meeting. As I have pointed out above,
according to the plaintiff
the meeting was about lobola negotiations,
whilst the first defendant contends that the meeting was about the
damages for the deceased
having impregnated the plaintiff.
[83]
There is no evidence that on the 24
th
of November 1985 when the Mabunda’s arrived at the Baloyi
family they stood outside the gate and a girl was sent to greet
them.
There is no evidence that the Mabunda’s have paid a certain
amount of money to be allowed to enter the Baloyi homestead.
If
a certain amount of money was paid give them permission to enter the
homestead, it would have been recorded on the alleged lobola
letter.
There is no evidence that there was a go between of the two families.
It seems that the Mabunda’s have entered the
Baloyi’s
family like any other person and thereafter they started with the
discussion. That gives credence to the first defendant’s
contention that the Mabunda’s have gone to the Baloyi’s
to discuss about the damages for the deceased having impregnated
the
plaintiff. Daphney Rikhotso the plaintiff’s mother has
testified that her father has told her that the Mabunda’s
are
coming to discuss the issues of damages regarding the deceased for
having impregnated the plaintiff.
[84]
In African culture it happens that a delegation will be sent to
discuss damages and after agreeing
on the damages payable, the
delegation may ask the woman’s family how much will lobola be
in case the man decide to marry
the woman. That will culminate
the into lobola negotiations even though that was not the initial
intention. If the parties
agree on the lobola amount, an agreement
will be drafted which both families will sign. The delegates will
report to their elders
what transpired. They would have killed two
birds in one stone.
[85]
It seems that is what
happened in the matter at hand. That explains why the deceased had
signed the alleged lobola letter. The groom
does not form part of the
lobola negotiations. In this case in my view, when the deceased
arrived at Baloyi family, it was explained
to him what transpired,
and he agreed with the procedure that they followed by signing the
document. By signing the document, the
deceased had ratified their
actions. The parents of the deceased had ratified the actions of the
delegates as the plaintiff and
deceased had stayed in their homestead
for the next ten years based on the outcome of the negotiations of
the 24
th
November 1985. In the process of the deceased and the plaintiff
staying together, Amukelani their second child was born and both
children also took the surname of the deceased.
[86]
Under the circumstances, taking into consideration the totality of
the evidence, presented holistically,
I am satisfied that the
discussion of the 24
th
November 1985 even though initially was about damages, has resulted
in lobola negotiations wherein the parties ultimately agreed
on
lobola amount. After agreeing on the lobola amount of R1500-00, a
deposit of R100-00 was paid leaving a balance of R1400-00.
[87]
As there was still an outstanding lobola amount, in African culture,
the man will go to work
to enable him to pay the outstanding lobola
amount. If he is ready, a message will be sent to the woman’s
family wherein
the two families will agree on a date when the man’s
family will come and finish paying the outstanding amount. Even
before
the full amount is paid, the man's family may request to leave
with the bride to be but will have to pay a certain amount for that.
In the case of the plaintiff it is not in dispute that on the 24th
November 1985 the Mabunda delegation did not request to leave
with
her.
[88]
It is
not in dispute that the outstanding amount of R1400-00 was never paid
even up to date. The plaintiff's witnesses testified
that it is not a
prerequisite that the full amount be paid for the conclusion of a
valid customary marriage. They even testified
that hence there is a
say that the groom does not finish paying lobola. In my view, the
notion that the groom does not finish paying
lobola does not refer to
the outstanding lobola amount, but merely refers that every time a
groom goes to visit his in-laws, he
must buy them something and not
say he had paid the full lobola for the woman. The outstanding lobola
is like a debt which must
be settled unless the two families agrees
to dispense with the payment of the outstanding amount. In the case
at hand it does not
appear that the two families have agreed to
dispense with the payment of the outstanding amount, hence the
plaintiff’s mother
testified that in their tradition it will be
deducted from the lobola of their daughter or if the woman’s
dies the man will
not be allowed to bury her until the full
outstanding amount has been settled. That shows that unless full
lobola amount has been
paid or an agreement of some kind has been
reached, the woman’s family will not be satisfied to pave the
way for a proper
handing over.
[89]
In
African custom the handing over and celebration will be done after
the bride’s family is satisfied that all their demands
have
been met. Part of the demand is payment of the full lobola amount. If
the woman was requested to stay at the man's homestead
before the
full lobola amount was paid, on the day when the full amount is paid,
she must be at her parental home. The purpose
for her being at her
parental home is that if the handing over is going to be done on that
date, she must be present at her parental
homestead for purposes of
performing certain rituals and also to be coached. There will also be
a delegation of people who will
be identified to accompany her to the
groom’s family. That will also be an opportunity to inform
other family members and
members of the community that the bride will
be handed over to the groom’s family. Functions of this nature
are usually open
to every member of the community to attend. People
will be informed in advance to enable those who can to buy presents
for the
bride to do so.
[90]
Even
if the full lobola amount has been paid, but the handing over was not
yet done, a valid customary union has not been concluded.
In the case
of the plaintiff, the alleged handing over took place after two years
immediately after the birth of Amukelani. By
then the deceased had
not paid the full lobola amount and it does not seem he had the
intention to do so. According to the plaintiff’s
mother, they
saw that there was nothing they can do since the plaintiff and the
deceased were staying together hence they decided
to hand her to the
Mabunda family. The question is whether that was a proper handing
over.
[91]
In
M
v K [2018] ZALMPPHC 62 (7 November 2018)
at
34 Makgoba JP said the following:
“
All the
authority I referred to are in agreement that a valid
customary marriage only comes about when the woman has
been
transferred or handed over to her husband or his family. Once that is
done severance of ties between her and her family happens.
Her
acceptance by the groom's husband and her incorporation into his
family is ordinarily accompanied by well-known extensive rituals
and
ceremonies involving both parties. The importance of these rituals
and ceremonies is that they indeed indicate in a rather
concretely
visible way that a customary marriage is being contracted and that
lobola has been paid and/or arrangements are acceptable
to the two
families. The fact of the matter is that the customary marriage is
and remains an agreement of the two families”.
[92]
In the
case at hand taking into consideration that two years has lapsed
before the alleged handing over, in my view that was supposed
to be a
huge celebration which would have included extended family members
and members of the community. The celebration will start
at the
bride’s family with beer being brewed, a cow or sheep or goat
will be slaughtered. Relatives and members of the community
will be
informed in advance. However, that did not happen in the plaintiff’s
case.
[93]
The
plaintiff’s mother has been waiting for a long time for the
deceased to come and pay the full lobola amount so that a
proper
handing over could be done. Realizing that same was not forth coming
but that the plaintiff and the deceased were continuing
making babies
whilst staying at the deceased parental homestead, she unilaterally
decided to formalise their marriage by handing
over the plaintiff to
the Mabunda's. That explains why there was no ceremony at the Baloyi
homestead. There is no evidence that
despite the outstanding lobola
amount, the two families came together and had an arrangements
acceptable to both families regarding
the outstanding lobola amount.
In my view, the plaintiff’s mother felt that it was a taboo for
the plaintiff to stay with
the deceased as husband and wife without
that being formalized. It was a question of what will the people
say.
[94]
In
terms of custom since there was still an outstanding lobola amount
and the time period that has lapsed, the two families were
supposed
to have sat together and arrive at an acceptable arrangement and a
date for the handing over. If the outstanding lobola
amount did not
matter, the plaintiff‘s family would have handed her over to
the Mabunda family on the 24
th
November 1985. Since the Baloyi's expected the deceased to do the
right thing, they waited until they realise that the deceased
had no
intention of paying the outstanding lobola. The proper thing to do
was for the Baloyi's after realising that the deceased
had no
intention of paying the outstanding lobola, but were continuing to
make babies whilst the plaintiff was staying at the deceased
parental
home, call the Mabunda's to a meeting wherein an acceptable
arrangement could be reached, and not to act unilaterally.
[95]
The
plaintiff herself was not convinced that she was married to the
deceased. If indeed the plaintiff was convinced that she was
married
to the deceased, she would not have deposed an affidavit wherein she
confirms that she is unmarried and also not a spouse
to a person in
terms of customary marriage as intended by the Recognition of
Customary Marriage Act, 120 of 1998. She deposed the
affidavit on
18
th
May 2009 when she jointly bought a property with her daughter
Saghwati. The affidavit was deposed 24 years after the alleged
customary
marriage, and by then the plaintiff was already employed as
a professional nurse and was able to read and write English. She was
aware of what she was signing for. In my view, the affidavit on its
own is fatal to the plaintiff’s case.
[96]
Taking
into consideration the totality of the evidence presented as a whole
and the applicable law in relation to customary marriages,
I am
satisfied that the essential requirements for a valid customary
marriage between the plaintiff and the deceased have not been
met.
[97]
In
the
results the following order is made:
97.1
The plaintiff’s claim is dismissed with costs
.
MF. KGANYAGO J
JUDGE OF HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCE:
COUNSEL FOR THE
APPLICANT : ADV K
RAMARUMO
INSTRUCTED BY
: S RANGOANASHA INC
COUNSEL FOR
RESPONDENTS
: ADV C MARAIS
INSTRUCTED BY
: LE ROUX
ATTORNEYS
DATE OF HEARING
:
10 APRIL 2019
DATE OF JUDGEMENT
:
23
RD
MAY 2019