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[2019] ZAGPPHC 338
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Meage v Road Accident Fund (1809/16) [2019] ZAGPPHC 338 (26 July 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 1809/16
26/7/2019
In
the matter between:
NALEDI
CLAUDIA MEAGE
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
PHAHLANE,
AJ
[1].
In her particulars of claim, Ms Naledi Claudia Meage (Plaintiff) is
relying on the existence
of a customary law marriage entered into
between herself and the deceased Thulane Shongwe (herein referred to
as the deceased),
to establish the right to claim for loss of support
for herself. However, this matter comes before me for a determination
of the
existence of a customary marriage between the plaintiff and
the deceased.
[2].
The plaintiff led evidence to prove the existence of the customary
marriage between herself
and the deceased. She testified that the
marriage was concluded on 26 December 2013 when the family of the
deceased came to her
home to pay an amount of R6 000.00 for
lobola.
Out of the R6000.00, her family requested that R3000.00 be taken
as damages because she conceived a child before marriage. It was
then
agreed that the balance of the R3000.00 would be for
lobola.
The
lobola
negotiations were carried out by her family and the
deceased's family. The deceased's family was represented by the
deceased's father
Doctor Shongwe, the deceased's uncle, his brother,
his aunt and another person that she was seeing for the first time.
She said
her family was represented by her mother Sylvia Meage, her
aunt, her grandmother and her uncle Reason Maroga
[3].
At the time of the negotiation, she was sitting in the bedroom. She
was later called and
asked who the money should be given to and she
said it should be given to her aunt Philia Meage. The plaintiff
testified that after
the
lobola
was paid, there was a
celebration. Later that day, she left with the father of the deceased
and his aunt, going to the deceased's
home. The reason according to
her, was that the deceased's father requested that she should come
and stay with them so that the
deceased's family can be able to
support the child. She explained that when leaving for the deceased's
home, she was accompanied
by her mother and aunt. When the deceased
died, she was staying at his parental home. The plaintiff testified
that she was eighteen
years old when the
lobola
was paid for
her and the deceased was also eighteen years old.
[4].
She however struggled to tell the court when exactly the deceased
passed away- meaning,
she did not know the date of the deceased's
death. After a while, she then said the deceased died on 29 March
2014. The plaintiff
was not working when the deceased passed on.
[5].
Under cross-examination, the plaintiff said she forgot the name of
the deceased's aunt
who was part of the lobola delegation because she
was not in good terms with her. She said she did not bother to ask
the deceased
the name of the person whom she was seeing for the first
time and was part of the delegation. The
lobola
letter which
is on page 10 of the Index: Quantum Bundle, was shown to the
plaintiff. She testified that she was seeing the
lobola
letter
for the first time and she has never read it. She said her attorneys
of record talked about the letter and she never thought
it was
important for her to read it. The lobola letter is dated
26/13/2013
.
She explained that she does not know who crafted the
lobola
letter. The letter was translated to read:
"The
lobola agreement. The Shongwe's came to the home of Claudia, coming
to ask for the bride's hand in marriage. They paid
damage of R3000.00
and also paid R3000.00 for lobola. One cow is R1000.00
Witness
to Claudia's family: Sylvia Meage and Elena Dibakwane Witness to
Shongwe family: Thandi Shongwe and Simon Shongwe".
[6].
It was put to her that the name of 'Doctor Shongwe' is not on the
lobola
letter because there was no
lobola
paid for her.
Further that the
lobola
letter was given to the defendant by
the plaintiff's attorneys and such is a fabrication. She responded by
saying that she agrees
with some of the aspects which are on the
letter and the people who were present, safe for the name Elena
Dibakwane whose surname
should read - Meage. She said her aunt Philia
Meage and her uncle Reason Maroga's names were also missing from the
letter but denied
that those names were missing because there was no
marriage. When asked about the date appearing on the
/obola
letter, she said the date is a mistake because a year does not
constitute of thirteen months. To the question why she did not
mention
the R1000.00 for the cow which appears on the
lobola
letter, the plaintiff responded by saying she did not think it
was important to mention this aspect.
[7].
The plaintiff also explained under cross-examination that when
leaving for the deceased's
place on this day, she left with the
father of the deceased in his motor vehicle. Her mother and aunt
accompanied her and the deceased's
father was driving. She said
though there was a celebration, no photos or videos were taken. She
testified that after the death
of the deceased she went back home and
her parents started taking care of her and the child. The family of
the deceased stopped
taking care of her. They did not give her the
reason why they were not taking care of her anymore. She said she
just assumed that
maybe it was because they had problems - meaning,
the father of the deceased became blind.
[8].
The plaintiff testified that she met with her lawyers through the
father of the deceased.
She explained that when she came into contact
with them, the deceased's father came with the attorneys while she
was at the fruit
and vegetable market where she had an interview with
them. She explained that the deceased's father talked a lot with
them. In
her own words, she said 'Mr Shongwe was leading the whole
discussion and purely speaking, I had no say'. She said she just
signed
the Power of Attorney. The plaintiff further testified that
she had no say in what was discussed and this was the only time she
met with the lawyers. She said she has never been to the attorney's
office in Pretoria. She further told the court that she never
told
the attorneys about her relationship with the deceased or the lobola.
She does not know where the attorneys got the information
that lobola
was paid for her.
[9].
The plaintiff also testified that at the time of the accident and
death of the deceased,
the deceased was working as a taxi driver for
Mr Mdu Hlabane (Hlabane). She explained that when she met with the
deceased for the
first time, he was working in a wiring business (ie.
working with wires) and later became a taxi driver. She only met with
the
deceased in 2010 and the deceased was not working for his father.
The deceased worked for Hlabane before she had a child and he
worked
for Hlabane until he passed on. Plaintiff was confronted about the
certificate of service signed by the deceased's father
stating that
he was the deceased's employer. She explained that the deceased
worked for Hlabane on a full-time basis and it was
only on Sundays
when he was off duty and free, that he would work for his father. She
did not know how much the deceased was earning.
In her own words she
said
"Mr Hlabane was my husband's boss".
She said
she started working at a salon in June 2018 and is earning R1500.00
per month.
[10]. The
next witness was Doctor Joseph Shongwe (Shongwe) who is the father of
the deceased. He said he
became blind in April of 2018. He testified
that the plaintiff, whom he called
makoti,
was married to the
deceased on 26 December 2013 when lobola was paid for her. Shongwe
said he was one of the five people who went
to the plaintiff's family
home to pay lobola for her. He testified that R6000.00 was paid, of
which R3000.00 was for lobola and
the other R3000.00 was for damages.
He explained that in their culture, damages are paid for a woman when
she gets pregnant before
she is married. He explained that the
R1000.00 written on the lobola letter represented the cow which the
Shongwe's were supposed
to bring to the family of the plaintiff.
[11].
According to him, the celebration did not happen on the same day when
the lobola was paid. He does
not remember the date on which the
celebrations occurred. He testified that after the lobola
negotiations, they took the
makoti
along because she belongs
to them. Shongwe testified that the purpose of crafting the lobola
letter was to serve as prove for the
two families and for when the
couple want to unionise their marriage at the magistrate court, and
it was especially for '[instances
like this]' - meaning in instances
or circumstances such as the current matter before the court.
[12].
Shongwe testified that the date of 26/13/2013 as depicted on the
lobola letter is an error. He told
the court that he does not know
the name of the person who crafted the lobola letter but it was
written by a family member of the
plaintiff. When asked about the
surname of the plaintiff, he said it is “
Meape or something
like that” .
He explained that the plaintiff's surname is
not important to him but what is important is that she was his
makoti. Shongwe testified
that the deceased was employed by him as a
driver and a mechanic doing maintenance. He said he knew Mr Mdu
Hlabane and insisted
that the deceased never worked for Hlabane, and
has never left his employ to work for another person. He had three
taxis when the
deceased passed away on 30 March 2014.
[13].
Shongwe confirmed the contents of the employment certificated dated
05/05/2017 and signed at Kanyamazane
which has his P.O. Box address
and the salary of the deceased being R1700.00 per week. He confirmed
signing the employment certificate
but was however surprised that the
certificate was signed at Kanyamazane and not at Kabokweni. There is
another employment certificate
which is dated 19/10/2015 and the date
of employment is 01/03/2011. It was put to him by the plaintiff's
counsel that there is
a difference between the two employment
certificates with regards to the salary earned by the deceased, as
well as the date of
commencement of employment and that the
handwriting seems to be the same as well as the signature of the
employer who happens to
be the deceased's father. The witness
responded by saying it was difficult for him to confirm the signature
on the second employment
letter because he cannot see it as he is
blind.
[14].
Regarding the visit made by the assessor Mr Molokwane to his home,
Shongwe testified that somewhere
around 2015 Mr Molokwane came to his
house and the plaintiff was not present because she was visiting her
parental home. He said
Molokwane arrived very late at his house and
he never asked about the lobola letter but he promised to come back
and he never did.
[15].
Under cross-examination, Shongwe still could not tell the court the
surname of the plaintiff and he
said it was “
Meebe or
something like that” .
He then came up with another surname
when asked who drafted the lobola letter. In his response, Shongwe
said that he does not know
the name of the person who wrote the
lobola letter because this person is one of the family members of
"Meafe".
He explained that what was important at the
time of drafting the letter, was to read the document to see if it
coincides with the
negotiations or agreement. Thereafter they would
append their signatures. To the question - how would they find the
person who
crafted the 'document' in case this person has left out
critical information, Shongwe responded by saying: "that is why
it
is important that before signing, all parties agree that what is
written in the document, is what has been agreed upon. They do
not
just sign without verifying the details". Shongwe also told the
court that in the area where he lives, when lobola is
negotiated and
concluded, the tribal chief has to be informed, and such chief would
issue a certificate confirming that there was
lobola paid.
[16]. He
confirmed that the lobola marriage is a contract between the two
families and that they were happy
that only four people could sign
the lobola letter as witnesses. Shongwe said he only realized the
error on the lobola contract
regarding the date after he was called
by Mr Shabangu's office - which is the plaintiffs attorneys.
[17].
Shongwe testified that he has been to the plaintiff's attorney
several times to consult and that on
three occasions, the plaintiff
was present. When confronted with the plaintiff evidence that she has
never been to Pretoria to
the attorney's office but that she only
consulted with the attorneys in the street, Shongwe responded by
saying he does not know
why the plaintiff was denying being in the
office of her attorneys. He insisted that he was telling the truth
and that his version
is correct.
[18].
The witness was confronted about a report that was made by himself,
his wife and the plaintiff's mother
to Molokwane, that the plaintiff
and deceased were never married. Shongwe said that was not true. He
said they told Molokwane that
the deceased has another child who was
at the time with the social worker but they did not know the name or
particulars of the
child. Shongwe said Molokwane was more concerned
about the deceased's children. He confirmed that Molokwane was taking
notes when
he had an interview with him and his wife. He further
confirmed that after the interview, Molokwane requested them to sign
the
form where he was making notes. He testified that he was
satisfied and happy with what Molokwane wrote on his report because
he
read the report himself before signing it. In his words, he said
"I read what he wrote before I signed. I went through the
document".
Shongwe testified that he cannot dispute a note
made by Molokwane, that his son was not married to the plaintiff but
that he knows
they were married. Counsel for the defendant read out
two sentences from the statements/report compiled by Molokwane which
stated
that 'deceased was not married and another saying he earned
R1800'. Shongwe said he totally disagree with that. He said Molokwane
promised them that he would come back to collect the lobola letter
and talk to the plaintiff, but he never did.
[19]. The
next witness was Sylvia Meage (Meage). She is the mother of the
plaintiff. She testified that
when the plaintiff fell pregnant, she
went to stay with the deceased at his grandmother's place. She said
on 26 December 2013 the
Shongwe's came to the Meage family to pay
lobola for her daughter. An amount of R6000.00 was paid. She said the
R1000.00 written
on the lobola letter meant that one cow cost
R1000.00. Meage testified that in terms of her culture, many people
can be present
during the lobola negotiations but only the important
people need to sign the lobola letter. She testified that there was a
celebration
immediately after the negotiations and after the
festivities, they accompanied the makoti to her in-laws. The people
who accompanied
the makoti was herself, her sister Philia Meage and
other people who were there. They used a double cab belonging to
Doctor Shongwe.
It was put to her that Doctor Shongwe told the court
that the lobola letter was crafted by one of her family members. Her
response
was that two letters were drafted, whereby each delegation
crafted their own letter.
[20].
She explained that her brother Reason was responsible for drafting a
letter on behalf of the Meage
family while Doctor Shongwe drafted a
letter on behalf of the Shongwe's. She explained that after the
letters were drafted, both
parties signed the letters. According to
her, the letters are exactly the same, they resemble each other. She
said the Shongwe's
took their letter when they left that day. Meage
testified that she did not tell the claimant's attorneys that there
were two letters.
She said she cannot blame Shongwe for saying that
someone else drafted the lobola letter because of the condition in
which he finds
himself in.
[21].
It was put to her that the lobola letter constitutes a contract and
that if it misses
one
of the important elements, it is deemed to be invalid. Further that
the 13
th
month nullifies the contract. She insisted that the letter is a valid
contract. The witness was shown page 13 of Annexure A which
is
titled: Assessor's report and compiled on behalf of Becker Mzimela
Investigations.
[22].
Becker Mzimela Investigations are assessors briefed by the defendant
on behalf of the Fund to investigate
claims. Meage confirmed her
particulars which included her identity number as they appear on page
13. She confirmed that her home
language is North Sotho as stated in
the report. Annexure B of this report is on page 14 and it reflects,
among others, the information
that:
(a)
The minor child is still at home and
resides with us.
(b)
He is presently visiting his paternal
family.
(c)
The deceased was not married to the
claimant
[23].
Meage testified that she does not know Becker Mzimela Investigations
& Assessors and has never
given anyone a statement and that she
never signed the statement shown to her by counsel. The plaintiff
closed its case.
[24]. The
defendant called Thembeni Margaret Ngomane (Ngomane) as its first
witness. She is the mother of
the deceased and is unemployed. Her
evidence basically corroborated that of other witnesses called on
behalf of the plaintiff as
far as saying the deceased was married
because lobola was paid, but did not explain what really happened on
the day of the lobola
negotiations. She testified that on the day
Molokwane came to her home, she was busy in the kitchen. Molokwane
and Shongwe were
sitting in the dining room. She was only called to
come and sign the statement. She testified that she could not refuse
to sign
when called to sign by Shongwe. She explained that she could
not refuse the instructions of Shongwe as he is the elder in the
family
and she is the child.
[25].
Ngomane confirmed her signature on page 24 of the assessor's report.
It was put to her that Molokwane
will tell the court that before she
signed the statement, he had explained the contents of the statement
to her in her own language
and further that she and her husband
Shongwe, signed the statement affirming that there was no marriage
between the claimant and
the deceased. The information which appears
on page 23 of the report reveals that Ngomane Thembeni confirm that
she is the mother
of the deceased Shongwe Thulani Innocent. The box
which states that -'I confirm that the deceased was not married at
the time of
the accident', - has been ticked. On the part relating to
the relative or person who assisted with the lobola arrangement, the
answers provided is - NIA (ie. not applicable)
[26].
Phetolo Bethuel Molokwane was called as the second witness for the
defendant. He testified that he
works as an assessor on behalf of the
Road Accident Fund. He is currently working at KG Investigations. At
the time of doing investigations
with regards to the matter before
court, he already had ten years' experience as an assessor. He
previously worked for Mankgoke
Assessors where he was trained to be
an assessor - that is in 2005-2006. He is a teacher by profession and
has underwent training
to become an assessor while he was still a
teacher. In 2012 he resigned from his teaching post and continued to
work as an assessor.
From 2012-2013 he worked for Steven Black
Investigation/Assessors and between 2013 and 2016, he worked for
Becker Mzimela Investigations
until it came under liquidation. He
then worked for TNN Assessors which was in a partnership with
Alexander Forbes and had a contract
with the Road Accident Fund
(RAF). In 2017 when the contract between Alexander Forbes and RAF
ended, he joined Senzeo Assessors
and left them in September 2018
when they reduced fees for assessors. He then joined KG
Investigations where he is currently employed.
Molokwane testified
that while still working as a teacher, he worked part time for
Mankgoke Assessors where he was trained to be
an assessor.
[27]. With
regards to the matter before court, he testified that when he was
given a mandate and realized
that the claim was for Quantum, the
requirement which he had to comply with was that he had to get
instructions from the plaintiff’s
attorneys for permission to
proceed with his investigation. He called the plaintiff’s
attorney and he was assisted by a lady
called Linah. He told Linah
that he was investigating quantum in the Meage matter and he is
looking for the claimant's number.
Linah gave her the number of the
claimant but when he called this number, the person who answered the
phone informed him that she
is the mother of the claimant. He told
her that he got the number from their attorney and he wanted to come
and discuss the issues
pertaining to this matter. He was then given
the address and upon arrival, he found the claimant's mother and her
grandmother.
The claimant's mother is Sylvia Meage.
[28].
Molokwane testified that he asked about the relationship between the
deceased and the plaintiff and
in particular, whether they were
married or whether they were just in a relationship; whether they had
children; whether the deceased
had other children apart from the
claimant's child; whether the claimant was working; and whether the
deceased was working before
he passed on. He also enquired about
other things relating to the estate - for example, whether there was
a letter of authority;
whether deceased contributed to the workman's
compensation; whether the children were receiving grants; as well as
the qualifications
of the deceased. Molokwane explained that though
the family of the plaintiff is staying in the Seswati infested area,
he was conversing
with them in North Sotho because their home
language is North Sotho. He further testified that he was told by the
mother and grandmother
of the claimant that the deceased was never
married to the claimant but they have a child together.
[29]. He
said while receiving this information, he reduced it into writing by
making a statement to that
effect. He said he explained to both the
mother and the grandmother of the claimant the contents of the
statement and he thereafter
requested them to sign. When he was
finished with them, they gave him the directions to the deceased's
place. He went there and
he found the deceased's father and mother.
He introduced himself and explained the reasons for his visit. He
asked them about the
relationship between the deceased and claimant.
They told him the deceased was their child and that the claimant was
the girlfriend
of the deceased. They also explained that the deceased
has another child with a different woman who brought the child to
them and
vanished into thin air. The deceased's parents also
explained that they were busy making arrangements to have the child
adopted
and that this child was at that time, with the social
workers. He was told that the deceased was working in the family
business.
[30].
Molokwane testified that the father of the deceased is the one who
completed the certificate of service
because he said he is the one
who employed the deceased. The deceased's father signed the
certificate on the same date of the 19th
October 2015. The witness
said the certificate of service is self-explanatory but he explained
to the father what was needed in
the form. He said page 18 of the
report (which I will deal with later in my judgment) was completed as
a result of the interview
he had with the father of the deceased.
Molokwane said they were communicating in Seswati because they stay
in Kabokweni which
is an area where the people speak Seswati. He
explained that the reason why he spoke to them in iSiswati was that
when he arrived,
he greeted them in Seswati and their conversation
continued in Seswati - otherwise they would have used a different
language if
they were not Swati speaking.
[31].
Molokwane further testified that he only went to the deceased place
once. He said he received everything
that he needed on this day and
there was no need to go back. He denied that he made a promise to the
family that he would come
back. He also disputed the deceased's
father's evidence that he was told about the deceased and the
claimant being married. He
also denied that he was informed that
there was a lobola letter somewhere and that he had promised to come
back to obtain that
letter. According to him, if upon enquiry he is
told that there is a marriage, he would immediately request either
the marriage
certificate; lobola letter; or a letter from the chief.
He explained that in instances where he is told that the people are
married
but that the letter from the chief or the lobola letter is
misplaced or lost, he would make a note of that, and if he is told
that
there was no marriage, he would make a note of that as well and
there wouldn't be a need to pursue the matter any further.
[32]. The
witness said he was also given the same information by Thembeni
Margareth Ngomane who is the mother
of the deceased - and that is the
fact that the deceased was not married. He informed the court that he
went to the Shongwe's during
the day because he is not allowed to do
house visits at night. He disputed the evidence of the mother of the
deceased that he came
at night and he was in a hurry, and further
that he did not explain the contents of the statement to her. The
evidence of Molokwane
is also that he talked to the brother of the
deceased telephonically and he indicated that on the part of the
statement where a
person is supposed to append a signature, by
inserting the words
-"telephonic statement"
to
indicate that the interview was done telephonically.
[33].
Under cross-examination, he confirmed that he had been an assessor
with ten years' experience when
he conducted investigations. To the
question whether there is training or qualifications that is needed
for one to be an assessor,
he responded by saying that he has never
come across any documentation that allows one to practice as an
assessor. He explained
that one does not need to have formal
qualifications as a pre-requisite to be an assessor. He further
explained that all that is
required is for a person to do formal
theoretical and practical training. He confirmed that he was trained
at Mankgoke assessors.
[34].
When asked if he is an expert assessor, he explained that he cannot
say that even though he had undergone
training and does not have
papers to prove it. However, he explained that with the experience he
has acquired over the years, he
considers himself to be an assessor
because of the extensive knowledge he has working as an assessor. He
explained that one can
be an assessor by virtue of the training and
experience in a particular field or by having qualifications.
[35]. The
witness testified that the people who are also taken as assessors,
are former police officers
because of the experience they have in
relation to investigations. It was put to him that a notice served by
the defendant in terms
of Rule 36(9)(8) stated that the defendant
intends to call BECKER MZIMELA INVESITAGATIONS the ASSESSOR, as an
expert witness at
the hearing of this action. Further that it was
actually Becker Mzimela Investigations that was supposed to give
evidence and not
the witness since his name does not appear on the
Rule 36(9) notice.
[36].
Molokwane testified that after doing his investigations, he went to
the office and sat with the clerk
named Julia, who assisted him in
compiling a report. He explained to Julia what he found out from the
investigation and the report
was compiled on 22/10/2015.
[37].
Molokwane testified that he was trained to take statements and that
the format of the statement they
use does not cater for a witness to
sign, safe for the person who is being interviewed. He also testified
that he did not commission
the statement because that is how they
work at his office, unless a special request is made to get a
statement commissioned. He
only functions the way in which the office
operates and what he is expected to do in terms of his mandate. The
witness was taken
to task about the statement of Sylvia Meage not
being signed; commissioned; and witnessed. He explained that Sylvia
Meage's statement
which he was shown in court was missing a page
where the deponent had signed and that he did not compile a bundle
for the court
because he thought that all the court documents were in
order as the parties were supposed to discover. It had appeared that
the
grandmother of the plaintiff had in her statement signed by
making a cross and Molokwane explained that such was made because the
deponent could not write.
[38]. To
the question why he did not go to the chief to enquire about the
marriage, he responded by saying
that the family told him that there
was no marriage, and as such, there was no need to go to the chief.
He explained that if on
the 19 October 2015 he could have been told
there was a marriage and that the lobola letter was misplaced for
example or that they
did not have it, he would put a note of that in
the statement and go to the chief because the office of the chief
always keep records.
[39].
Molokwane also testified that he has dealt with matters from
plaintiffs law firm before and their
matters have been settled. I
need to mention that the plaintiffs attorneys were at all times
present during court proceedings and
this aspect was never disputed.
Molokwane confirmed to court that the claim for the deceased's
children was settled on 5 December
2018 as a result of the
investigations he made. He ended his evidence by telling the court
that after visiting the two families,
he made a statement to that
effect which was compiled with his report.
This concluded the evidence of the
defendant.
Evaluation of the Evidence
[40].
Before I address the issue for which I am expected to make a
determination on, I will first start
with the issue regarding the
employment of the deceased as it was brought to my attention. This
aspect also formed the basis on
which the deceased children's claim
was settled as well as a foundation on which the plaintiff's claim
relies. There seems to be
a contradiction as to who exactly was the
employer of the deceased. It is clear from the evidence of the
plaintiff that the deceased
worked for Mr Mdu Hlabane as a taxi
driver from 2011 until the day he passed on in 2014. She testified
that though she did not
know how much the deceased was earning, the
deceased worked for Hlabane on a full-time basis and it was only on
Sundays when he
was off duty that he would work for his father. She
referred to Hlabane as her husband's boss.
[41].
Shongwe on the other hand testified that he was the employer of the
deceased and denied that the deceased
ever worked for Hlabane. He
confirmed issuing and signing a certificate of service dated
05/05/2017 in which it is noted that the
salary of the deceased was
R1700.00 per week. Molokwane testified that on 19 October 2015 when
he visited the Shongwe family household,
Doctor Shongwe told him that
he was the employer of the deceased and he (Shongwe) completed a
certificate of service which appears
on page 29 of his report where
it is stated that the deceased was earning a salary of R1800.00 per
week. According to Molokwane,
this certificate of service was signed
by Shongwe on the very same day. The plaintiff's counsel argued that
this certificate of
service should be disregarded by the court as it
was not completed and signed by Shongwe.
[42].
Shongwe informed the court that he lost his eyesight in 2018 and can
therefore not confirm the signature
which appears on page 29 of
Molokwane's report. I have taken judicial notice of the signature
appearing on the certificate of service
signed by the Shongwe on
05/05/2017, as well as the signature on the certificate of service
which appears on page 29 of Molokwane's
report and dated 19 October
2015 to be the same. Not only does the signature appears to be the
same, but also the handwriting on
both documents appear to have been
written by the same person. I am therefore satisfied that it was
Shongwe who completed and signed
the certificate of service on the
19t h October 2015 when interviewed by Molokwane.
[43]. It
is important to note that it was put to Shongwe by plaintiffs counsel
during examination in chief
that there is a difference between the
two employment certificates with regards to the salary earned by the
deceased, as well as
the date of commencement of employment, and
further that the handwriting seems to be the same as well as the
signature of the employer
who happens to be the deceased's father.
What was put to Shongwe by counsel therefore confirms the evidence of
Molokwane that Shongwe
is the one who completed and signed the
certificate of service on 19
th
October 2015.
[44].
It stands to reason that the argument put forward by the plaintiffs
counsel that the court should
disregard the certificate of service of
the 19
th
October because Molokwane was not sure whether
it was Shongwe who completed it or not, cannot stand. Having said
this, the difference
as regards the date of commencement of
employment of the deceased as well as the salary he earned, raises a
concern as to whether
the deceased was indeed employed by his father
Mr Shongwe or whether he was employed by Mr Mdu Hlabane as testified
to by the plaintiff
because if he was employed by Shongwe, then
Shongwe would have known exactly when his son started working for him
and how much
he earned.
[45].
Turning to the issue of whether or not the plaintiff and the deceased
were customarily married, in
his closing argument, plaintiff s
counsel argued that the plaintiff, by her evidence and as
corroborated by her witnesses, has
established that she was married
to the deceased by customary law. He submitted that the court should
reject the evidence of the
defendant as the defendant failed to
produce proper evidence that there was no marriage between the
plaintiff and deceased.
[46]. I do
not agree with the submission made by counsel that the defendant
failed to produce evidence that
there was no marriage entered into
between the plaintiff and the deceased. The burden of proof falls on
the plaintiff to prove
the existence of the marriage on a balance of
probabilities. I say this by virtue of the principle as laid down in
Pillay v
Cretchner
[1]
that the
basic rule in civil cases is that the onus lies with the plaintiff -
or that the party who alleges must proof. This court
held that:
"The burden or onus of proof in its
ordinary sense is
a
metaphorical
expression for the duty which on
e or
other of the parties has, of finally satisfying court that he/she is
entitled to succeed on his claim or defence, whichever
it may be.
The true and original sense of
the notion ie. the incidence of the onus tells us who must satisfy
the court, but that is not all
that we need to know. The degree or
standard of satisfaction; the quantum of proof, that is required by
the court in order to be
satisfied must necessarily be provided by
the party who bears the onus".
[47]. A
perusal of the Pre-trial minutes dated 17 October 2018 at paragraph
2.1 indicates that that the
plaintiff has made an undertaking that
the plaintiff bears duty to begin and the onus of proof. In
principle, if however the plaintiff
through evidence cannot satisfy
the court that this court must grant an order in her favour, then the
court needs to look at the
rebuttal that comes from the side of the
defendant.
[48].
The plaintiff and her witnesses testified that there was a customary
marriage on 26 December 2013
when lobola was paid for her. What was
peculiar with her evidence was that she did not know the date on
which the deceased died,
nor did she know the age of the deceased at
the time the lobola was paid for her. She told the court that she
cannot remember the
date on which the deceased passed away because
she tried to block it out of her memory. When it was put to her that
it was highly
improbable that she could not remember the day which
brought sorrow to her, she struggled on several occasions to give an
answer
and when pressed further, she just laughed it off and still
could not tell when exactly the deceased passed away.
[49]. The
plaintiff testified that when the lobola was paid for her, both
herself and the deceased were
eighteen years old. She said she was
born on 18 September 1995. She further testified that the deceased
was born on 19th October
1989 . Which means that the deceased was 24
years old at the time the alleged lobola was paid for her. One would
expect that if
the plaintiff was closer to the deceased as she
claimed, she would have been in a position to tell a simple thing as
his age, assuming
that they were of the same age, born on the same
year when the lobola was paid.
[50]. The
plaintiff and her mother Sylvia Meage testified that after the lobola
was negotiated, there was
a celebration while the deceased father
told the court that the celebration occurred on a different date and
not on the same day
of the lobola negotiations. Plaintiffs counsel
argued that the case of the plaintiff is not based on the lobola
letter but that
the letter serves to prove that there was something
which happened, in other words, there was a marriage. However, the
aspect of
marriage cannot be looked at in isolation. The events of
the day of the supposed marriage cannot be shrugged off under the
carpet
without considering all the aspects which would assist this
court when evaluating the other evidence placed before it.
[51].
Meage testified that there were two lobola letters drafted on that
day. Of importance, she testified
that the letter on behalf of the
Shongwe family was drafted by Doctor Shongwe. On the other hand,
Shongwe's evidence was that the
letter was crafted by a family member
of the plaintiff. It is worth noting that Shongwe emphasized the
importance of the lobola
letter. Through his own admission and
evidence, he said he knew that there was a possibility that matters
such as [this], might
end up in court. I must say, counsel for the
plaintiff was not happy when clarification was sought from Shongwe to
explain what
he meant by saying "matters such as [this]".
Counsel objected to and did not want Shongwe to answer the question
without
giving reasons for his objecting.
[52]. It
is difficult to understand why Shongwe would want to distance himself
from being the author of
the lobola letter if he was really part of
the negotiations, given the fact that he understands and appreciates
the importance
of the letter. He also testified that when there is a
marriage in the area where he stays, the chief has to be notified and
he
in turn will issue a certificate proving the existence of a
marriage.
[53].
Normally when the two families come together, there are certain
customary and cultural practices which
are observed and followed such
as a token for opening the negotiations (go kokota or pula molomo);
followed by asking for the bride
(go kopa sego sa metsi); an
agreement on the number of beast payable as lobola (which has in
modern times been replaced by money);
payment of the agreed lobola;
the exchange of gifts between the families; 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
for example. See
Moropane v Southon (755/12)(2014] ZASCA
76.
These practices are also followed in the North-Sotho (Pedi) as
well as the Swati culture. The Meage's and the Shongwe's are Pedi's
and Swati's respectively. The evidence I have before me is silent on
those aspects. The only evidence before this court is that
lobola was
paid.
[54]. When one looks at the lobola
letter and the evidence of both Meage and Shongwe, there is mention
made of a R1000.00 for the
cow which does not fit into the puzzle of
the amount of lobola paid which is R6000.00 and which the plaintiff
did not testify about.
Though Meage and Shongwe explained what the
amount of R1000.00 represent, it is unclear as to whether this amount
was only mentioned
in passing in the lobola letter or what was to
happen with either the cow or its value, or whether this cow would
have been brought
at a later stage or not. All three of these
witnesses only talks about the lobola being R6000.00
[55].
The lobola letter, though argued by the defendant that it did not
come through the proper rules of
court as it was served very late on
the defendant (ie. on 8 October 2018), and that the plaintiff should
have been barred in terms
of Rule 35(4) from relying on the evidence
that was not discovered, counsel did not object when this document
was introduced by
the plaintiff and counsel ended up cross-examining
on it. On the same token, I still could not understand why the
plaintiff's counsel
argued that the case of the plaintiff is not
based on the lobola letter while he introduced it.
[56]. It
is on record that the date written on the lobola letter is
26/13/2013. Relying on the case of
Nkosi v RAF NOS 487 (2005);
495 (2001) (SCA),
counsel on behalf of the defendant argued,
and rightly so, that it is trite law that when a document is in
dispute and defective,
the author of that document has to be called
to come and testify. He further argued that this error brings about
three issues of
concern which are:
1.
Whether indeed the plaintiff was
eighteen years old when lobola was paid for her. Put differently,
that it cannot be said with certainty
that the plaintiff had already
reached the age of majority on the alleged day of the marriage.
2.
That the lobola letter constitutes a
binding contract which is nullified by the error
3.
That the author of the letter is the
only person who can testify to its authenticity and rectify the
error, and submitted that if
the letter is accepted by the court, it
be treated as hearsay evidence.
[57].
If one takes into account the lobola letter in order to determine the
age of the plaintiff at the
time when the lobola was paid, it becomes
difficult to know whether she had attained the age of majority or
not. All the witnesses
have said the lobola negotiations were
concluded on the 25
th
of December 2013 . Shongwe denied
being the author of the letter. The only person who could have
testified and rectified the date
was not called to give evidence. The
plaintiff gave the wrong age of the deceased on the day of the
supposed marriage, and it becomes
difficult to say with certainty how
old she was herself - given the fact that the only document which the
witnesses were examined
and cross-examined on and maybe relied upon,
is defective as regards the date of the lobola negotiations.
[58]. A
customary marriage as defined by the Act is regarded as a marriage
concluded in accordance with
customary law. Customary law on the
other hand is defined in the Act as the customs and usages
traditionally observed among the
indigenous African people of South
Africa and which form part of the culture of those people. Therefore,
in order for a customary
marriage to be recognised as valid, it must
comply with the provisions of the Act. The so-called jurisdictional
requirements for
a valid customary marriage as stipulated in s 3(1)
of the Act are that:
1.
For a customary marriage entered into
after the commencement of the Act will be valid -
(a)
the prospective spouses -
(i)
must both be above the age of 18 years;
and
(ii)
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.
[59]. If
this court accept the date of 26 December 2013 as being the correct
date of the negotiations, it
follows that the first requirement in
terms of s3(1)(a)(i) has been complied with as the plaintiff had just
turned eighteen years
and two months at the time when the customary
marriage was entered into. There is no doubt in my mind that the
reason why the plaintiffs
counsel introduced the lobola letter was to
prove his case. Be that as it may, the plaintiffs counsel already
submitted that the
plaintiffs case is not based on the lobola letter
but on the viva voce evidence led by the witnesses. I agree with this
submission
because the determination of a customary marriage in terms
of s3 of the Recognition of Customary Marriages Act 120 of 1998 (the
Act) is not dependant on the lobola letter.
[60].
Though discovered, the lobola letter was not admitted into evidence
as to the truthfulness of its
contents, and it is for this reason
that it does not constitute admissible evidence as to the facts
contained in it. At the same
time, this letter does not assist the
court in making a determination as to whether the plaintiff was
eighteen years of age at
the time when the lobola was paid or whether
indeed the customary marriage was concluded between the deceased and
the plaintiff.
I am of the view that the defendant would clearly be
prejudiced should this letter be elevated beyond its limited status
and as
such, the lobola letter is rejected.
[61].
The plaintiff's counsel had in his closing argument submitted that
the handing over ceremony of the
bride to the groom' s family has
been complied with as part of the requirements as contemplated in s3
of the Act. The handing over
ceremony is not listed as part of the
requirements in terms of the Act. Neither is the payment of the
lobola listed as a requirement
for the coming into existence of a
customary marriage. Although the payment of lobola to the bride's
family forms part of the evidentiary
material to prove the conclusion
of a customary marriage, payment is not conclusive proof of the
existence of a customary marriage.
See in this regard
Motsoatsoa
v Roro and Others
2011 (2) ALL SA 324
(GSJ) at 18
[62].
The plaintiff testified that after the lobola was paid, there was a
celebration and later that day
the deceased's father requested that
she should come and stay with them so that they can take care of her
child. Her evidence is
corroborated by that of her mother Sylvia
Meage who confirmed that after the negotiations, there was a
celebration and that the
plaintiff left with the deceased's father on
the same day to go and stay over at the deceased's family home.
However, Shongwe testified
that there was no celebration on this day
but that it happened on another day which he could not remember.
There is therefore a
clear contradiction as to whether there was a
celebration on the day of the alleged lobola negotiation followed by
the handing
over of the claimant to the Shongwes.
[63]. It
is trite that when faced with two mutually exclusive versions, the
Court has to resolve the factual
disputes by making findings on the
credibility of the various factual witnesses, their reliability and
the probabilities. See
Stellenbosch
Farmers'Winery Group Ltd and Another v Martell ET CIE and Others
[2]
[64]. This court will
reiterate on what was said by the Supreme Court of Appeal in the
matter of
Moropane v Southon
[3]
that:
"In order to resolve this impasse, the
trial judge has to consider and weigh the probabilities to determine
which version is
more probable than the other. She also has to
consider the credibility and reliability of the various witnesses.
The test to be
applied in such a case was enunciated lucidly as
follows in
National Employers'
General Insurance v Jagers
[4]
"It seems to me, with
respect, that in any civil case, as in any criminal case, the onus
can ordinarily only be discharged
by adducing credible evidence to
support the case of the party on whom the onus rests. In a civil case
the onus is obviously not
as heavy as it is in criminal cases, but
nevertheless where the onus rests on the Plaintiff as in the present
case, and where there
are two mutually destructive stories, he can
only succeed if he satisfies the Court on a preponderance of
probabilities that his
version is true and accurate and therefore
acceptable, and that the other version advanced by the Defendant is
therefore false
or mistaken and falls to be rejected. In deciding
whether that evidence is true or not the Court will weigh up and test
the Plaintiff's
allegations against the general probabilities. The
estimate of the credibility of a witness will therefore be
inextricably bound
up with a consideration of the probabilities of
the case and, if the balance of probabilities favours the Plaintiff,
then the Court
will accept his version as being probably true. If
however the probabilities are evenly balanced in the sense that they
do not
favour the Plaintiff's case any more than they do the
Defendant's, the Plaintiff can only succeed if the Court nevertheless
believes
him and is satisfied that his evidence is true and that the
Defendant's version is false.
This view seems to me to be in
general accordance with the views expressed by Coetzee J in Koster
KO-operatiewe Landboumaatskappy
Bpk v Suid-Afrikaanse Spoorwee en
Hawens (supra) and African Eagle Assurance
Co
Ltd v Gainer
(Supra). I would merely stress however that when in such
circumstances one talks about a Plaintiff having discharged
the onus
which rested upon him on a balance of probabilities that means that
he was telling the truth and that his version was
therefore
acceptable. It does not seem to me to be desirable for a Court first
to consider the question of the credibility of the
witnesses as the
trial Judge
did
in the present case, and then having concluded that enquiry, to
consider the probabilities of the case, as though the two aspects
constitutes separate fields of enquiry. In fact, as I have pointed
out, it is only where a consideration of the probabilities fails
to
indicate where the truth probably lies, that recourse is had to an
estimate of relative credibility apart from the probabilities."
[65].
Having regard to the above dictum, I have to evaluate the evidence of
the witnesses and also consider
whether in the current matter, the
alleged ceremony can be said to have been completed by the handing
over of the bride (makoti,
in this case, the plaintiff). On the
question whether the handing over of a bride is an element of a
customary marriage, the Full
Court of the Free State Division,
Bloemfontein answered the question in
Rasello
v Chali
&
Others
[5]
where Molemela
J, as she then was, said the following at paragraph [18]:
".....
.Although
the
Recognition of Customary Marriages Act does
not include transfer
of the bride in the requirements for
a
valid customary marriage, I accept that
this, being an old Sesotho custom that is still widely recognized, it
is
a
custom
contemplated in
section 3(6)
of that Act and is thus an essential
requirement for validity of
a
customary
marriage. It was so accepted by the court in the case of
Fanti
v Boto
(supra) on the basis of many
authorities. Delivery of the bride entails that the bride will be
accompanied to the groom's family
by her own delegation, which will
then formally hand her over to the groom's family. Olivier, Bekker et
al in their work Indigenous
Law describe delivery of the bride as
"the transfer of the bride by her family group to the family of
the man".
[66]. See
also
Moropane
v Southon
[6]
supra
where the
Supreme Court of Appeal dealt with and decide on the essential
requirements of a valid customary marriage.
[67]. I
therefore have to make a determination on whether a request by
Shongwe that the plaintiff should
go with them to their home so that
they can take care of her child, constitutes the handing over of the
bride to the groom's family
as required by custom - Put different,
whether the request qualifies as being a delivery in terms of the
requirements of the customary
marriage.
[68]. The
court stated in
Msutu
V RAF
[7]
that:
"
It is indeed so that in the true African context, marriage is not a
bond between the man and the woman but it is a bond between
their
families" .
The
two families would therefore come together as one and have to know
each other (my emphasis). It had appeared from the evidence
of all
the witnesses, safe for the plaintiffs mother, that when the
Shongwe's left with the plaintiff to go and stay at their family
home, she was going there for the first time. While Meage on the
other hand testified that when the plaintiff fell pregnant, she
went
to stay with the deceased at his grandmother’s place. This
would mean that when the alleged lobola was paid, the two
families
already knew each other and formed some kind of a relationship.
[69]. What
is disturbing is that in the midst of all these, the father of the
deceased was at pains remembering
the surname of the plaintiffs
family. Shongwe told the court that he regarded the plaintiff as his
own daughter and treated her
as such. However, he did not know the
surname of the one person whom he calls makoti and a daughter. He
gave three different surnames
and explained that the surname of her
makoti is not important, but that what is important is that his son
was married to her. The
question posed to Shongwe during examination
in chief was as follows:
Question: Do you know the
plaintiff who was here - Naledi?
Answer: Yes, I know the plaintiff.
She is Naledi
' Meape'
... or something like that. She is my
makoti
Under cross examination, the
question was posed as follows:
Question: I heard you saying the
plaintiff's surname is
' Meape'
Answer: Yes, it is
'Meebe
or something like that.
Question: The lobola marriage is a
contract between two families....... It does not have the names of
all the people who concluded
it.
Answer: We were happy with only
four people whose names appear .........The contract was crafted by
one of the family members from
'Meafe'.
[70]. This
is one of the aspects that raise an eyebrow and cannot be ignored. It
goes towards the credibility
of the witness and one wonders (1). if
really there was a relationship between the Meage and the Shongwe
family; (2) If the plaintiff
was a makoti who stayed in the same
house with Shongwe and his son the deceased; (3) or if plaintiff was
a like daughter as Shongwe
testified. There is no indication or
evidence that the plaintiff was delivered as a makoti in the true
sense of the word. There
is also no evidence that there was an
agreement between the two families that the plaintiff, - by leaving
with the Shongwes, would
constitutes or qualify to having been handed
over or delivered as a makoti. The only evidence before court is that
the move was
solely for the benefit of the child, where he would be
taken care of by his paternal grandparents. This leaves grave doubt
as to
whether the requirement of a celebration coupled with the
handing over has been fulfilled. With this doubt in mind, I am wary
of
coming to a conclusion that there was a celebration or that the
plaintiff was handed over.
[71]. The
evidence of the plaintiff together with that of her witnesses, Sylvia
Meage and Doctor Shongwe,
is not sufficient to establish the
existence of a customary marriage where lobola was paid, followed by
a celebration and the handing
over of the plaintiff to the deceased's
family home. Regarding the demeanour and credibility of the plaintiff
as a witness, I find
that she did not perform better during her cross
examination and upon questions by the court. She was evasive and
unconvincing
with her responses, and when she was unable to answer
tough questions, she would just laugh.
[72]. In
my view, it does not seem that the plaintiff was handed over as
required by custom and I find that
the requirement in terms of
s3(1)(b) was not met. I say this taking into consideration the
evidence of Molokwane which i now turn
to deal with.
[73].
Molokwane testified that when he visited the plaintiffs family home,
he was informed by both the plaintiffs
mother and grandmother that
the plaintiff and the deceased were not married. He made a note of
that in a statement which is contained
in page 16 of his report.
Molokwane further testified that before requesting both the mother
and the grandmother to sign, he explained
the contents of the
statement to them. The grandmother signed by making a cross where she
was supposed to append her signature.
The pair gave him the
directions of going to the deceased's family and upon arrival there,
he found both the mother and the father
of the deceased.
[74]. He
testified that he was also given the same information by the
deceased's father Doctor Shongwe and
the deceased's mother, that the
plaintiff and the deceased were never married. Equally so, he made a
note of this information in
the statement which formed part of his
report. Page 18 and 19 of the report reveals the following
information:
"Shongwe Doctor who is the
father of the deceased Shongwe Thulani Innocent confirmed that the
deceased was not married at the
time of the accident. There is a part
which requires the information of the relative or person who assisted
with the lobola arrangement,
the answer thereto is: N/A (not
applicable). The statement also reveals that the deceased and Meage
Naledi Claudia were living
together at the time of the accident. That
the deceased and Meage Naledi Claudia had a child named Shongwe
Thandolwethu born 2012/06/19
and was not in school. At the time of
the accident, the deceased was working at Shongwe taxis in Kabokweni
earning R1800.00 per
week. The claimant was unemployed".
[75].
Molokwane testified that he completed the statement at the same time
he was interviewing Doctor Shongwe,
the father of the deceased. An
oath appears on page 21 at the end of the statement which says: "I
the undersigned herewith
declare that this statement was made by me
and was done to the best of my knowledge and belief, I made this
statement voluntarily.
I agree to the contents of this statement and
was read back to me in SESWATI. Signed at KA-BOKWENI this 19t h day
of October 2015".
There is a signature there and the Molokwane
testified that it was the deceased father who signed. The certificate
of service which
appears on page 29 of this statement is also signed.
[76]. I
interpose to state that I have taken judicial notice of the two
signatures on page 21 and 29 respectively
and they appear to be
exactly the same, meaning that they were signed by the same person.
Molokwane testified that he also explained
the contents of the
statement to both Shongwe and Ngomane before they could sign. Page 24
of the report contains an oath and a
part where a signature has to be
made. This signature on page 24 was confirmed by Ngomane as her own
when she was shown the statement
during her testimony.
[77]. I
want to reflect back to what was put to Shongwe that Molokwane will
come and tell the court that
the deceased and the plaintiff were not
married, according to the report which he received from Shongwe and
his wife. Shongwe responded
by saying: "I cannot dispute that
molokwane can tell the court that my son was not married to the
plaintiff, but when he came
to my house he met me and my wife and the
child and we told him that my makoti was not at home, she went to
visit at her parental
house".
[78].
Shongwe testified under cross-examination that Molokwane wanted to
confirm if the accident had occurred.
In his words, he said
"he
was taking notes when asking questions and we gave him the
particulars and documents of the children. He was more concerned
about the children. He even wrote that the other child is with the
social workers and at the time we did not know the name and
particulars of the child. I read what he wrote before I signed. I
went through the document before I signed'.
This then confirms
the evidence of Molokwane that before Shongwe and his wife appended
their signatures on his report, they were
conversant with the
contents of the statement he was writing before they could sign.
[79].
Regarding the evidence by Shongwe that Molokwane promised to come
back to his home, Shongwe testified
in chief that Molokwane never
asked about the lobola letter but that he promised to come back.
Under cross-examination, Shongwe
said the reason why Molokwane
promised to come back was because he was coming to talk to the
plaintiff and get the letter. These
are two conflicting statements.
If Molokwane never asked about the lobola letter, how then would he
make a promise to come back
to obtain a letter that he was never told
about in the first place. Molokwane's evidence is that he never made
any promises to
return to the Shongwe household and explained that
there was no need for him to go back because he received all the
information
that he was looking for and most importantly, he was
informed that the plaintiff and the deceased were never married. It
is therefore
highly improbable that Molokwane would make a promise to
Shongwe and as such, the evidence of Molokwane is accepted in this
regard.
[80]. The
general considerations that are important when a court weighs up the
evidence or when it evaluates
the evidence at the end of a trial is
to first weigh the evidence as a whole. In essence, a trier of facts
must have regard to
all considerations which reasonably invite
clarification. In doing this, the court should take the following
into consideration,
among others: all probabilities; reliability and
opportunity for observation of the respective witnesses; the absence
of interest
or bias; the intrinsic merits or demerits of the
testimony itself; inconsistencies or contradictions and
corroboration. It is however
important to distinguish inferences and
probabilities from conjecture and speculation. No proper inference
can be drawn unless
there are objective facts from which to infer the
other facts. Probabilities must likewise be considered in the light
of proven
facts.
[81].
It is important to note that Molokwane confirmed to court that the
children of the deceased, one of
whom is the child of the plaintiff,
have already been compensated as a result of the investigation which
he did or conducted when
he visited the Shongwe and Meage family
household on the 19t h October 2015 - meaning, the claims of the
minor children of the
deceased Thulane Innocent Shongwe have already
been settled on 5 December 2018. This witness was taken to task about
the children's
birth certificate in that he stated in his report that
he obtained copies of the birth certificates while in fact, he did
not.
This aspect was immaterial to pursue because the claim for both
of the deceased's children have already been settled through
Molokwane's
investigations.
[82].
Plaintiff's counsel put to Molokwane that the notice served by the
defendant in terms of Rule 36(9)(8)
stated that the defendant intends
to call BECKER MZIMELA INVESITAGATIONS the ASSESSOR as an expert
witness at the hearing of this
action. Further that it was actually
Becker Mzimela Investigations that was supposed to give evidence and
not the witness since
his name does not appear on the Rule 36(9)
notice. It was also put to him that he did not compile a report but
that it was compiled
by Julia who works at Becker Mzimela. This
notion cannot be true because it became clear from the explanation of
this witness that
what the clerk (Julia) at his office did, was to
type in the information on the computer as he relayed it to her. It
would therefore
be wrong to conclude that the report was compiled by
Julia and not Molokwane himself.
[83]. When
Molokwane did investigations in this matter, he worked for Becker
Mzimela Investigations. It
appears from the compiled assessors report
that Caveonet Investments (Pty) Ltd was trading as Becker Mzimela
Investigations. It
is therefore clear that Becker Mzimela
Investigations is a company which has agents working as assessors. Mr
Molokwane was employed
by this company as an assessor and I can
therefore not understand how the plaintiff's counsel would expect the
company itself to
be in court by asking the witness such a question.
Having said this, it is important to note that when this matter was
postponed
on 5 April 2019, it was specifically to have Mr Molokwane
to be present in court to come and give his evidence. Plaintiff's
counsel
knew on that day that no one else from Becker Mzimela
Investigations, other than Molokwane, had to give evidence as an
assessor
on behalf of the defendant. No objections were raised as to
his qualifications or position as an assessor. Even when Molokwane
was called to the witness stand, no objections were raised by the
plaintiff that Molokwane does not have the
locus standi
to be
presenting evidence on behalf of the Fund.
[84]. I
should mention that it was put to Meage that Molokwane was given the
go ahead by the plaintiff's
attorneys to go and see her (Meage), a
point which was never disputed by Meage or the plaintiff's counsel. I
could therefore not
understand why counsel for the plaintiff put to
Molokwane that he is not an expert when his own instructing attorney
did not have
a problem giving Molokwane the go ahead to do his duties
as an assessor. Molokwane is an experienced assessor, and when he is
given
permission by the plaintiff's attorneys to go and
assess/investigate whether the plaintiff was married to the deceased
or have
children with the deceased, - which investigation is the
basis of the claim by the plaintiff, and the basis on which the claim
for the children of the deceased was settled, then his evidence and
his position as an assessor cannot be rejected or ignored. With
no
objections raised, this court accepts the evidence of Molokwane in
the position in which he testified as an assessor.
[85].
Molokwane came across as a satisfactory and reliable witness. He was
never evasive or hesitant in
his responses. He gave a clear and
coherent account of the events of the 19th October 2015. He appeared
to be a credible and reliable
witness. His evidence is accepted and I
therefore find that Sylvia Meage, Elinor Dasea Meage who is the
plaintiff's grandmother;
Doctor Shongwe and Margaret Thembeni
Ngomane, all four reported to Molokwane that the deceased and the
plaintiff were never married,
which report was reduced to writing and
signed by the them after the contents of which were explained to them
by Molokwane.
[86]. The
Declaration of Consent which appears on the RAF 1 form, which is a
form for lodging a claim on
behalf of the claimant is blank in that
the capacity of the claimant is not stated. The plaintiff was not
confronted about the
document though it was shown to her mother. Be
that as it may, the court cannot ignore or turn a blind eye to the
fact that this
very document is silent as regards the capacity of the
claimant, especially taking into consideration the fact that her
capacity
as the customary wife of the deceased is in dispute. The
document (RAF 1) has been signed, and I presume, by the claimant and
a
witness.
[87].
It is important to note that the plaintiff testified that she only
met her attorneys through Shongwe
when she was at the fruit and
vegetable market. Her evidence was that Shongwe was leading the
discussion and she had no say in
what was discussed. She also
testified that she never told the attorneys about her relationship
with the deceased and she never
told them that lobola was paid for
her. She was given the power of attorney to sign and she did. Shongwe
on the other hand testified
that he has been to the plaintiff's
attorneys on several occasions to consult and on three of the
occasions, the plaintiff was
present. The plaintiff testified that
she has never been to her attorneys' office in Pretoria. This
situation really raises a concern
and a question as to why would
Shongwe consult with the plaintiff's attorneys if he is not the
claimant or plaintiff. The only
inference I can draw from this part
of evidence is that the plaintiff did not lodge a claim against the
Fund herself even though
she is cited as the plaintiff.
[88].
Regarding the telephone interview which Molokwane had with the
brother of the deceased, Molokwane
testified that he believed that he
was speaking to the right/correct person because the father of the
deceased took his phone and
called the brother of the deceased
personally and thereafter, handed the phone back to him so that he
can talk to the brother.
Molokwane explained that the parents of the
deceased first spoke to him (the brother) and told him that he
(Molokwane) wanted to
talk to him and he did. Molokwane also
explained that this was his guarantee that he was speaking to the
right person. This part
of evidence was never disputed and as it
stands unchallenged, it is accepted as the truth.
[89].
Before addressing the evidence of Ngomane, I first want to state that
when the trial commenced, both
parties informed the court that the
witnesses for the plaintiff which will not be called to give evidence
on behalf of the plaintiff,
will be made available to be called as
witnesses on behalf of the defendant. However, when that was supposed
to happen, it became
a problem. Counsel for the defendant informed
the court that the plaintiff's counsel refuses to call the deceased's
mother on behalf
of the defendant. In response to this, the
plaintiff's counsel said he did not see any need of calling this
witness because calling
this witness will be time consuming as it had
already gone passed normal court working hours (ie. The time was
16:30). Plaintiff's
counsel informed the court earlier that he had to
fly to the Eastern Cape on the same day, and I believe he was worried
about missing
his flight. The court then gave a directive that this
witness be called and it took more than twenty minutes for her to
arrive
while court was informed that she was sitting outside the
court building in her motor vehicle.
[90].
Ngomane testified that the deceased was married to the plaintiff
because lobola was paid. She explained
that Molokwane was in the
dining room with Shongwe during the interview and she was only called
to come and sign the documents
which Molokwane had. She confirmed her
signature which is on page 24 of the report. She said Molokwane asked
about the particulars
of the children of the deceased. That was
basically the evidence of this witness.
[91].
I interpose to state that the reason why Ngomane was called, was to
give clarification to some aspects
relating to the statements made by
Shongwe which were in dispute and to which Shongwe could not be of
any help because he is visually
impaired. Counsel on behalf of the
plaintiff argued that the court should reject the evidence of the
defendant but that it should
accept the evidence of Ngomane as she
confirmed that there was a customary marriage between the plaintiff
and the deceased. I have
already made a ruling that I accept the
evidence of Molokwane as being truthful, credible and reliable. The
evidence of Ngomane
on the other hand did not assist the court in any
way, and more specifically, with regards to the interview between
Shongwe and
Molokwane because she explained that she was busy in the
kitchen and was only called by Shongwe to come and sign the statement
which was taken by Molokwane during the interview.
[92].
Having considered both arguments and on the analysis of the evidence,
and having regard to the legal
requirements of a valid customary
marriage, I come to a finding that there was no valid customary
marriage entered into between
the plaintiff and the deceased.
In the result I grant the
following order:
1.
It
is declared that no valid customary marriage exists between the
Plaintiff and the deceased.
2.
The
plaintiff is liable to pay costs on a party and party scale.
P. D PHAHLANE
Acting Judge of the High Court
Gauteng, Pretoria
For
the Plaintiff
:
Adv. Phiyega
Instructed
by
: SHABANGU B ATIORNEYS & ASSOCIATES
For
the Defendant
: Adv. Mojamabu
Instructed
by
: MORARE THOBEJANE INC.
Date
of Judgment
: 26 July 2019
[1]
1946 AD 946
at 952
[2]
2003 (1) SA 11
(SCA) at 5
[3]
Moropane v Southon (755/12) (2014] ZASCA 76 (Delivered 29 May 2014)
[4]
1984 (4) SA 437
(ECD) at 440D-441A
[5]
A69/2012 (2013] ZAFSHC 182 (Delivered 23 October 2013)
[6]
Moropane v Southon (755/12) [2014] ZASCA 76
[7]
Msutu v Road Accident Fund , Case No: 181714/14 at para 39