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[2019] ZAECMHC 64
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Mlamla v Rubushe and Others (6254/2018) [2019] ZAECMHC 64 (29 October 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
Case
No. 6254/2018
In
the matter between:
FEZILE
MLAMLA
Applicant
And
NOMATHAMSANQA
RUBUSHE
1
st
Respondent
MTHUTHUZELI
KULA
2
nd
Respondent
THANDIKHAYA
RUBUSHE
3
rd
Respondent
VAKUTSHIWO
RUBUSHE
4
th
Respondent
KHEHLANA
RUBUSHE
5
th
Respondent
THE
MINISTER OF HOME
AFFAIRS
6
th
Respondent
THE
MASTER OF THE HIGH COURT, MTHATHA
7
th
Respondent
JUDGMENT
JOLWANA J
[1] Whether or not a
valid customary marriage was concluded between a husband and wife is
oftentimes fraught with controversy.
The answer to this
question can have dire or even disastrous consequences for the
parties as the answer does not always lie in
the production of the
so-called marriage certificate or certificate of registration of the
customary marriage which may or may
not be there.
[2] The applicant
approached this court seeking a declaratory order that a valid
customary marriage between herself and her late
husband (the
deceased) was concluded. She also seeks relief for the 6
th
respondent to be ordered to register the said customary marriage so
that she can claim the benefits that would accrue to her as
the
customary law wife of the deceased. The 6
th
and 7
th
respondents do not oppose the application and no
orders are sought against the 7
th
respondent.
[3] The applicant’s
case is founded on the fact that she and the deceased were both above
eighteen years of age at the time
the lobola negotiations took place
culminating in the lobola being paid in full; the said marriage was
concluded and consummated
and she and the deceased had consented to
the customary marriage.
[4] In December 2011 the
1
st
to 5
th
respondents (the respondents) sent
emissaries to negotiate lobola for purposes of concluding a customary
marriage between the applicant
and the deceased who later passed away
in March 2018. Following the conclusion of those negotiations
and the payment of lobola
the
utsiki
ritual was performed at
the deceased’s home. She was given the name Olulutho by
which she was to be called by the deceased’s
family as is
common in traditional African families that eschew calling their
bride by her maiden name.
[5] On both versions the
applicant did go to the respondents’ family and the
utsiki
ritual was done. They did live together as would a husband and
wife. The applicant and the deceased had some challenges
in
their marriage with accusations of infidelity allegedly committed by
the deceased which were not resolved. The deceased
left their
common home and returned to his family home. It is unclear
whether this state of affairs was reported to the applicant’s
family for intervention. It seems that after they failed to
resolve their issues they lived separate lives for some years.
It is alleged that the applicant later got engaged to one Pastor
Mthombeni and there are even allegations of lobola having been
paid
by Pastor Mthombeni for the applicant. This is more or
less the factual matrix on which this matter falls to be
decided.
[6]
In the main the issue is whether a valid customary marriage was
concluded between the applicant and the deceased. Section
3 of
the Recognition of Customary Marriages Act
[1]
(the Act) prescribes three requirements for a valid customary
marriage to be concluded, as follows:
“
3.
Requirements for validity of customary marriages
(1)
For a customary marriage entered into after
the commencement of this Act to be valid –
(a)
the prospective spouses –
(i)
must both be above the age of 18 years; and
(ii)
must both consent to be married to each
other under customary law; and
(b)
the marriage must be negotiated and entered
into or celebrated in accordance with customary law.”
[7] It is common cause
that the requirements provided for in subsection (1) (a) of the Act
were complied with. It is the requirement
in subsection (1) (b)
that is a subject of dispute in this matter. The respondents
contend that even though lobola negotiations
took place and lobola
was agreed upon their emissaries never returned to the applicant’s
family to pay the balance outstanding
in respect of the said lobola.
Secondly, the applicant was never handed over to the respondents at
all. Thirdly, during
the life time of the deceased the
applicant got engaged to another man who allegedly also paid lobola
for her during the life time
of the deceased.
[8] The submission about
the balance of lobola not being paid misses an important point about
lobola negotiations. While the
agreed lobola is expected to be
paid, I do not understand the requirement and the practice to be that
it must necessarily be paid
in full before the bride is handed over.
In some cases lobola or the amount thereof may be agreed upon but it
is not always
necessarily insisted that it must be paid in full
before the handing over of the bride is done. While the groom’s
family
may not be able to insist that the bride must be handed over
before the agreed lobola is paid in full, the bride’s family
is
perfectly entitled if they so decide, to hand over their daughter
knowing fully well that there is a balance of lobola that
has not yet
been paid.
[9] The foundational and
fundamental principle of this process is negotiations at the core of
which is the bringing together of
the two families. The bride’s
family may very well decide to hand over their daughter and inform
the groom’s
family that they intend to do so. This is
normally welcomed by the groom’s family who are, as would be
expected, eager
to receive their
makoti
(bride) and the terms
of the handing over are negotiated and agreed upon.
[10] Mr Notyesi who
appeared for the applicant pointed to certain facts alleged in the
papers and referred to some authorities on
the basis of which he
submitted that it is not necessary that there be a formal ceremony
for the handing over to have taken place.
Those facts are that
lobola negotiations took place and lobola was agreed upon. The
utsiki
ritual was performed by the groom’s family which
included her being fed
isipanga
by one of her uncles and she
was named Olulutho as her marital name by her in-laws. The
applicant describes this occasion
as the conclusion of a valid
customary marriage between herself and the deceased.
[11] This submission is
not without some difficulties. Firstly, the applicant does not
say which one of her uncles fed her
isipanga
as this is denied
by the respondents. This is important because it means that
that uncle would have had to be present at the
deceased’s home
when this feeding of
isipanga
took place. Some of her
uncles have signed confirmatory affidavits in which they have
confirmed being applicant’s family’s
emissaries. I
find it perplexing that not one of them confirmed being the one who
performed the feeding of the
isipanga
nor does any of the
other two say which one of them did.
[12] This is important
because in the founding affidavit the applicant only dealt with the
utsiki
ritual which she says was performed at the
deceased’s home and is not in dispute. Nowhere in the
founding affidavit
does she say that the handing over took place even
during the
utsiki
ritual. She seems to make her case on
the handing over requirement in the replying affidavit. I need
not cite any authority
for the trite legal position that the
applicant must make her case in the founding affidavit.
[13] That is not the only
problem. Even in the replying affidavit the submissions on the
alleged handing over lack particularity
and are surprisingly couched
in vagueness. For instance the applicant says that her family
visited the deceased’s family
for the specific purpose of
handing her over to the deceased’s family. They brought
some gifts being clothes, cutlery
and household appliances which she
was going to use at her marital home. Again she does not
mention any person amongst her
own family who was part of this
delegation that brought her to the deceased’s family. She
also says that during the
handing over ceremony her mother-in-law was
given blankets and traditional dresses. It is not clear
if she is referring
to what is normally called
umembeso
(giving of gifts). As far as I understand this custom it is
usually not only the mother-in-law who is given gifts but also
other
select members of the husband’s family. Usually the
husband’s emissaries are also given some gifts.
[14] The applicant once
more does not say who did the giving of the gifts to her
mother-in-law in addition to her failure to say
which of her family’s
emissaries or uncles were present when this handing over took place.
As I said before, I would
have expected this important detail to
feature prominently in the founding affidavit and not in the replying
affidavit where it
seems to be an afterthought. Contrariwise
there is not even a mention of the handing over in the founding
affidavit.
[15] The handing over is
so essential that it becomes one of the leverages the bride’s
family have to force the groom’s
family to pay not necessarily
all the agreed lobola but certainly to reach the required threshold
of the lobola after which the
bride can and is often handed over by
her family even if the lobola has not been paid in full. There
is an old Xhosa adage
that
ikhazi aligqitywa
– loosely
translated this means lobola is never paid in full as the
makoti
becomes part of her husband’s family and her husband
umkhwenyana
(son-in-law) becomes part of her maiden family.
[16]
In
DRM
v DMK
[2]
the
court
pointed out, correctly in my view, that there has to be a distinction
between a cohabitation and a marriage. The court
said:
“
[31]
In my view the handing over of the bride is what distinguishes mere
cohabitation from marriage. Until the bride has formally
and
officially been handed over to the groom’s people there can be
no valid customary marriage. In terms of practice
or living
customary law the bride cannot even hand herself over to the groom’s
family. She has to be accompanied by
the elders or relatives
for the handing over to her in-laws. TW Bennett in Customary
Law in South Africa 18
th
Edition states at p 217 that:
‘
Hence,
when the Recognition of Customary Marriages Act provides that in
order to qualify as customary, a marriage must be negotiated
and
entered into or celebrated in accordance with customary law, the form
of negotiations, the handing over of a bride and the
wedding are all
relevant to giving the union the character of a customary marriage.
It may then be distinguished, on the
one hand, from an informal
partnership and, on the other, from a marriage according to other
cultural or religious traditions.’”
[17] I agree with the
authorities that say that the handing over need not be a big formal
ceremony as Mr Notyesi pointed out.
I also agree with the
concept of constructive delivery to the extent that it suggests, at
the very least, some authorized members
of the bride’s family
delivering or handing her over to the groom’s family without a
big formal occasion. But
if she goes to the groom’s
family either on her own unaccompanied by any authorized person, a
handing over or even constructive
delivery cannot be said to have
taken place, especially bearing in mind the importance of the handing
over in the integration of
the two families. The applicant is
rather sketchy on the details of how she got to be at the deceased’s
homestead where
the in-laws ended up performing the
utsiki
ritual
and how that process unfolded.
[18] I disagree, with
respect, with the authorities cited in the applicant’s heads of
argument to the effect that two individuals
deciding to live together
on their own after lobola was paid can be said to constitute
constructive delivery, if they live together
with the knowledge of
the bride’s family. It is not difficult to imagine
situations in which a man and a woman live
together with the
knowledge of their respective families without lobola being paid.
Similarly, where lobola has been paid
whether in full or partially
the process is incomplete if some form of handing over does not
happen. The fact that the two
individuals lived together
publicly may found some other claim. However, it cannot, be the
basis for the conclusion that
a valid customary law was concluded,
merely on the basis of lobola having been paid. It must be
emphasized that customary
marriage is not a transaction where money
and gifts simply change hands, but it is a sacred institution founded
on the customary
value system of the African traditional way of life.
[19] Whether or not in a
particular case handing over or constructive delivery of the bride
took place is a factual enquiry.
It, however, cannot be said to
have taken place only on the basis that the couple lives together.
The centrality of the role
played by the bride’s and groom’s
families in a customary marriage is indispensable. The converse
is also true
which is that beyond consent and playing the role which
she is directed to play by the elders, the woman cannot take over and
do
things on her own or go to her husband’s family on her own
without being handed over.
[20]
In
Mrapukana
v Master of the High Court and Another
[3]
Dlodlo J (as he then was) explained the legal position as follows on
the existence or otherwise of a customary marriage:
“
[25]
It is fairly simple to determine whether or not a party has
successfully proved the existence of a customary marriage.
There are requirements for a valid customary marriage, namely
consensus between the parties, a formal ceremony to transfer the
bride to the other family and the payment of lobolo. Initially
the consensus I have referred to was not concerned with consensus
between the two marrying parties. The marriage was and is still
regarded as a union between two (2) families rather than
two (2)
individuals. See
Mabena v Letsoalo
1998 (2) SA 1068
(T). We know that because customary law is not
static but it also develops with the times, this requirement is now
such that
the two marrying individuals should agree to the marriage
as well. Section 3(2)[1](a) of the Recognition of Customary
Marriages
Act has nowadays explicitly provided that permission of
both individuals to the marriage is required. In my view this
does
not amend or outlaw the old customary practice to any greater
extent. It is inconceivable that individuals to such a marriage
can exclude the two families. The new provision in the Act
compliments the agreement between two (2) families in my view.
Lobolo can consist of cattle or the momentary value thereof. In
nowadays cash is seemingly preferred, particularly in urban
areas.
In rural areas cattle on hooves are still the only known form of
paying lobolo. Lobolo can either be partially
paid or fully
paid. In the event of the former scenario, an agreement would
have to be entered into as to when and how the
balance of lobolo
shall be paid. Lobolo survived evolution and was never declared
contrary to the rules of natural justice
or public policy. See:
Thibela v Minister of
Wet en orde
1995 (3) SA 147
(T). The bride must be formally transferred to
the family of the prospective husband. Once this is done, she
is then
formally regarded as part of the latter family. Her
release from her own family relationship and her incorporation into
her
husband’s family is celebrated with extensive public
rituals and ceremonies. This is a very important requirement
for
the validity of the customary marriage.”
[21] It needs to be
emphasized, even at the risk of being repetitive, that in the
founding affidavit where the applicant’s
case ought to be made,
there was no mention of the applicant being handed over. When
this issue was raised in the answering
affidavit the applicant
suddenly brought some facts in the replying affidavit the import of
which is to suggest that a handing
over was done. Even then the
applicant skirts around the issue and the affidavit is bereft of all
the essential averments
on aspects as basic as by whom from her
family she was handed her over to her in-laws. She belatedly
creates the impression
that what she had described as
utsiki
ritual in the founding affidavit was in fact a handing over
ceremony. The respondents pointed out that the
utsiki
ritual
was not a handing over occasion.
[22]
Most decided cases across the country from many different traditional
communities in South Africa have emphasized the importance
of the
handing over of the bride. In
Moropane
v Southon
[4]
the Supreme Court of Appeal finally confirmed the legal standing of
the handing over requirement as follows:
“
[40]
Importantly, the two experts agreed that the handing over of the
makoti
to her in-laws
is
the most crucial part of a customary marriage
[5]
.
This is so as it is through this symbolic customary practice that the
makoti
is finally welcomed and integrated into the groom’s family
which henceforth becomes her new family.”
[23]
Commenting on this decision and its impact on the requirement of the
handing over
P.
Bakker
[6]
analysed a number of cases and stated that:
“
After
the decision in
Moropane v Southon
the integration of the bride is a requirement for a valid customary
marriage in the official customary law. A deviation can
be
allowed only if it can be proved that the living customary law of a
certain tribe has evolved to such an extent that integration
of the
bride can no longer be regarded as an essential requirement for a
valid customary marriage.
The view of Twala AJ in
Mkabe
that the integration of the bride (an essential
requirement for a valid customary marriage) can be waived or condoned
by agreement
between the parties cannot be followed. The
decision is based on an error in law due to an incorrect reading of
Mabuza
. The essential requirements of a customary
marriage cannot be waived or condoned, but the accompanying rituals
or ceremonies
may be waived or abbreviated by the parties.
Parties concluding a customary marriage must always keep in mind that
the rituals
are performed to provide proof that a valid customary
marriage did take place should such proof be required in the event of
divorce
or death. For this reason, it is not possible to waive
all the rituals relevant to an essential requirement of a customary
marriage”
[24] Of and about the
applicant’s engagement to Pastor Mthombeni, the first
respondent, in her answering affidavit, has alleged
that she and
other family members became aware that there was an engagement
ceremony in which the applicant and one Pastor Mthombeni
of God Never
Fails Ministries got engaged; that such ceremony was officially
recorded and that she is in possession of the said
video recordings
and that the applicant should have them as well. In those
recordings the applicant’s family allegedly
confirmed that
Pastor Mthombeni was their son-in-law and that lobola was paid.
The first respondent also attached annexures
A1 to A4 being the
alleged pictures downloaded from God Never Fails Ministries’
Youth Facebook page.
[25] Those Facebook page
pictures depict a gentleman and a lady who the respondents allege, is
the applicant. On that page
the following message is also
posted:
“
Congratulations
to Pastor Mthombeni and Fezile Mlamla who got engage (sic) this
weekend, we wish them all the best on their journey
to marriage.
May the Lord keep them
GOD NEVER FAILS”
[26] On the basis of this
information the respondents’ family believed that the applicant
was another man’s wife.
For this reason when the deceased
passed away in March 2018, they did not report his passing to the
applicant’s family because
at that stage she was already
another man’s wife.
[27] The applicant’s
response to these very serious allegations is rather disappointing,
to say the least. One would
have expected her to explain if she
is indeed the person depicted in the pictures and who the gentleman
she is standing with in
the pictures is. She would also have
been expected to contextualize what the occasion that was as well as
the circumstances
in which the pictures were taken, if known to her.
[28] This is the
applicant’s dismissive response in her replying affidavit:
“
AD
PARAGRAPHS 20, 21, 22, 23, 24, 24, 25, 26, 27 & 28
20. I deny the
allegations contained in these paragraphs. I reiterate the
contents of my founding affidavit. I dispute
the authenticity
of the annexures referred herein as A1–A2 as they constitute
inadmissible evidence. In any event the
alleged engagement is
irrelevant on the issue for determination in this matter. The
deponent is just a curious person who
does not want me to benefit
from the estate of my ex-husband, the deceased.”
[29] This is rather
sketchy and evasive. The applicant does not deal with whether
or not she is the person in the pictures.
Most importantly she
does not dispute that what was taking place was her engagement to
Pastor Mthombeni. She simply dismisses
it as an alleged
engagement and characterizes it as irrelevant to the issue for
determination. This baffles me as I cannot
understand how
allegations of another man’s wife being engaged to another man
during the lifetime of her husband in a public
ceremony can ever be
said to be irrelevant to the question of whether she is still a
customary wife of her husband. Even
the basis on which the
authenticity of those pictures is disputed is not explained.
[30] If she is the person
depicted therein she could, at the very least, say that she does not
know how the pictures were put together
as there was no engagement in
the first place or that the pictures may have been fraudulently
manipulated to create the impression
that she was engaged to somebody
else. She makes no attempt at all to lay the basis for
disputing the authenticity of the
pictures beyond merely dismissing
them as irrelevant. She basically and very disturbingly
chooses to say almost nothing
beyond a bare denial on such an
important aspect of the case.
[31] This, in my view, is
totally unacceptable. The question is whether she was ever
engaged to another man, specifically
Pastor Mthombeni, as alleged
during the lifetime of the deceased. This is very important in
these circumstances in which
the applicant contends that she is still
the customary wife of the deceased and must be recognized as such.
It goes without
saying that if there was no valid customary law, she
would be entitled to be engaged and even get married to another
person even
if lobola had been paid for her. What the family of
the deceased does about that is a totally different matter
altogether.
[32] A married woman does
not and cannot be engaged to another man during the subsistence of
the marriage. It must be that
she did not regard herself as
still married to the deceased. I do not agree with Mr Notyesi’s
rather simplistic submission
that if she did become engaged and
lobola was paid for her while she was still married to the deceased,
such purported marriage
stands to be nullified. That is
certainly not my understanding of customary law as it relates to
customary marriages.
[33]
In
Mayelane
v Ngwenyama and Another
[7]
the Constitutional Court made the following observations, about
customary law in general and customary marriages in particular:
“
[24]
This Court has, in a number of decisions, explained what this
resurrection of customary law to its rightful place as one of
the
primary sources of law under the Constitution means. This
includes that:
a)
customary law must be understood in its own
terms, and not through the lens of the common law;
b)
so understood, customary law is
nevertheless subject to the Constitution and has to be interpreted in
the light of its values;
c)
customary law is a system of law that is
practiced in the community, has its own values and norms, is
practiced from generation
to generation and evolves and develops to
meet the changing needs to the community;
d)
customary law is not a fixed body of
formally classified and easily ascertainable rules. By its very
nature it evolves as
the people who live by its norms change their
patterns of life;
e)
customary law will continue to evolve
within the context of its values and norms consistently, with the
Constitution;
f)
the inherent flexibility of customary law
provides room for consensus-seeking and the prevention and
resolution, in family and clan
meetings, of disputes and
disagreements; and
g)
these aspects provide a setting which
contributes to the unity of family structures and the fostering of
co-operation, a sense of
responsibility and belonging in its members,
as well as the nurturing of healthy communitarian traditions like
Ubuntu
.
[25]
Paradoxically, the strength of customary law – its adaptive
inherent flexibility – is also a potential difficulty
when it
comes to its application and enforcement in a court of law. As
stated by Langa DCJ in
Bhe
,
“[t]he difficulty lies not so much in the acceptance of the
notion of ‘living’ customary law…but in
determining its content and testing it, as the Court should, against
the provisions of the Bill of Rights.” This difficulty
will be addressed later on in this judgment.
The Recognition Act
[26] The Recognition Act
represent
s
“a belated but welcome and ambitious
legislative effort to remedy the historical humiliation and exclusion
meted out to spouses
in marriages which were entered into in
accordance with the law and culture of the indigenous African people
of this country.”
Past law accorded marriages under
customary law recognition only as customary “unions” and
this “grudging recognition
of customary marriages prejudiced
immeasurably the evolution of rules governing these marriages.”
The Recognition Act
is legislation “specifically deal[ing] with
customary law”, as envisaged in terms of section 211(3) of the
Constitution.
Its enactment was inspired by the dignity and
equality rights and the normative value system of the Constitution.
It is an
adaption of customary law which “salvage[s] and
free[s] customary law from its stunted and deprived past.”
[27] The Recognition Act
defines customary law as “customs and usages traditionally
observed among the indigenous African
peoples of South Africa and
which form part of the cultures of those peoples” and a
customary marriage as “a marriage
concluded in accordance with
customary law.”
[28] Section 3(1) of the
Recognition Act provides that:
“
for
a customary marriage entered into after the commencement of this Act
to be valid –
(a)
the prospective spouses-
(i)
must
both be above the age of 18 years; and
(ii)
must both consent to be married to
each other under customary law; and
(b)
the marriage must be negotiated and
entered into or celebrated in accordance with customary law.”
[29] Section 3(1)(a)
introduces express substantive validity requirements that were not
required under pre-colonial notions of customary
law: the majority
age and the consent of both parties to the impending marriage.
This development is significant since, in
pre-colonial times,
“marriage was always a bond between families and not between
individual spouses” and the bride
– and groom-to-be were
thus not always the most important decision-makers with regard to
their pending nuptials. Section
3(1)(b) goes on to stipulate
that “the marriage must be negotiated and entered into or
celebrated in accordance with customary
law”. Customary
law may thus impose validity requirements in addition to those set
out in subsection (1)(a).
In order to determine such
requirements a court would have to have regard to the customary
practices of the relevant community.”
[34]
The applicant has failed to establish all the requirements for the
validity of her customary marriage to the deceased.
It was not
her case that a handing over is not a requirement for the validity of
her customary marriage to the deceased.
On the contrary, she
unsatisfactorily and belatedly in the replying affidavit wanted this
court to conclude that what she clearly
called the
utsiki
ritual
performed by the deceased’s family must be regarded as her
handing over to the deceased’s family. In terms
of
Uniform Rule 6(5)(g)
[8]
of the
Uniform Rules of Court, the court is entitled to dismiss an
application where it cannot be properly decided on affidavits.
Furthermore none of the parties asked for the hearing of oral
evidence. The applicant has not made out a case for the relief
sought and therefore her application must fail.
[35] In the result the
following order will issue:
1. The
application is dismissed with costs.
_______________________
M.S. JOLWANA
JUDGE
OF THE HIGH COURT
Appearances:
Counsel for the
Applicant: M. NOTYESI
Instructed by: MVUZO
NOTYESI INC.
Mthatha
Counsel for the
Respondent: S. SINTWA
Instructed by: T. QINA &
SONS
Mthatha
Heard on: 05 September
2019
Delivered
on: 29 October 2019
[1]
Recognition
of Customary Marriages Act 120 of 1998
[2]
DRM V DMK (2017/2016) [2018] ZALMPPHC 62 (7 November 2018)
[3]
Mrapukana
v Master of the High Court and Another (6567/2007)
[2008] ZAWCHC 113
(21 November 2008)
[4]
Moropane
v Southon
(755/12)
[2014] ZASCA 76
(29 May 2014)
[5]
My underlining
[6]
Bakker
P. Integration of the Bride as a requirement for a valid Customary
Marriage: Mkabe v Minister of Home Affairs and Others
(2014/84704)
[2016] Potchefstroom Electronic Law Journal (Vol 21) [2018]
[7]
Mayelane
v Ngwenyama
and
Another
2013 (4) SA 415 (CC)
[8]
Uniform
Rule 6(5)(g)
reads as follows:
“
Where
an application cannot properly be decided on affidavit the court may
dismiss the application or make such order as to it
seems meet with
a view to ensuring a just and expeditious decision. In
particular, but without affecting the generality
of the aforegoing,
it may direct that oral evidence be heard on specified issues with a
view to resolving any dispute of fact
and to that end may order any
deponent to appear personally or grant leave for him or any other
person to be subpoenaed to appear
and be examined and cross-examined
as a witness or it may refer the matter to trial with appropriate
directions as to pleadings
or definition of issues, or otherwise.”