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[2018] ZAGPJHC 613
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Sengadi v Tsambo (40344/2018) [2018] ZAGPJHC 613; 2019 (4) SA 50 (GJ) (3 November 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 40344/2018
REPORTABLE
In
the matter between:
SENGADI,
LERATO
ROBERTA
Applicant
and
TSAMBO,
ROBERT
Respondent
In
re
TSAMBO,
JABULANI
Deceased
The
Reasons for the Order granted on 3 November 2018.
MOKGOATHLENG
J
[1]
In this urgent application, the applicant seeks the following relief:
(a) a declarator confirming that
she is the customary law wife of the deceased;
(b) an order interdicting the
respondent from burying the deceased;
(c) a declarator entitling her
to bury the deceased; and
(d) a spoliation order against
the respondent to restore to her the matrimonial house and other
effects;
[2]
Generally in motion proceedings a court is enjoined to apply the
principles enunciated in
Plascon Evans Paints Ltd v Van Riebeek
Paints (Pty) Ltd
1984 (3) SA 634
H-1
where Corbett JA stated
that: "it is correct that, where in proceedings on notice of
motion disputes of fact have arisen on
the affidavits, a final order,
whether it be an interdict or some other form of relief, may be
granted if those facts averred in
the applicant's affidavits which
have been admitted by the respondent, together with the facts alleged
by the respondent, justify
such an order. The power of Court to give
such final relief on the papers before it is, however, not confined
to such a situation.
In certain instances the denial by respondent of
a fact alleged by the applicant may not be such as to raise a real,
genuine or
bona fide dispute of fact (See in this
regard Room Hire
Co
(Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA
1155
(T) at 1163-
5;
Da Mata v Otto NO
1972 (3) SA 858
(A) at
882D-H).
If in such a case the respondent has not availed himself
of his right to apply for the depondents concerned to be called for
cross
examination under
Rule 6 (5) (g) of the Uniform Rules of
Court (cf Petersen v Cuthbert
& Co
Ltd
1945 AD 420
at 428;
Room Hire case supra at 1164)
and the Court is satisfied as to
the inherent credibility of the applicant's factual averment, it may
proceed on the basis of the
correctness thereof and include this fact
among those upon which it determines whether the applicant is
entitled to the final relief
which he seeks (See
eg Rikhoto v East
Rand Administration Board and Another
1983 (4) SA 278
(W) at 283E-H).
Moreover, there may be exceptions to this general rule, as for
example, where the allegations or denials of the respondent are so
far fetched or clearly untenable that the Court is justified in
rejecting them merely on the papers."
[3]
The
Plascon- Evans
approach is not entirely satisfactory in
such an extremely urgent application and in my considered view, due
to the fact that the
burial of the deceased is scheduled for tomorrow
in Mahikeng in the North West Province an extremely robust approach
had to be
adopted in order that the relief prayed for should be
granted depending on whether there was sufficient cogent clarity
predicating
the issues to be resolved and if the granting of such
orders was justified. As was pointed out in
Trollip v Du Plessis
en Ander
2002 (2) SA 242
(W) 245E- F,
a more practical and robust
approach was required and the court after consideration of the papers
and argument is persuaded that
there was sufficient proof regarding
the contentions and issues to be resolved and which enabled this
court to arrive at a just,
fair and equitable decision.
THE
FOUNDING AFFIDAVIT
[4]
The applicant and the deceased met at university during 2009 and
became lovers. She and the deceased cohabited together for
approximately three years before marrying in terms of
section 3(1)
of the Recognition Act 120 of 1998.
On 6 November 2015 in
Amsterdam the deceased proposed marriage She accepted the marriage
proposal and both decided to enter into
a customary law marriage.
[5]
On 20 January 2016 the respondent dispatched a letter written by the
deceased's uncle to the applicant's mother requesting that
the
deceased's and the applicant's families should meet
"to
discuss the union of their son and her daughter''.
On 28 February
2016 the two families met at the applicant's family home. The lobolo
agreed to was R45 000.00. Upon signature of
the lobolo agreement, the
deceased deposited R30.000.00 into the applicant's mother's bank
account as part of payment of the lobolo
with the balance to be paid
in two instalments of R10 000.00 and R5000.00 respectively at future
agreed dates.
[6]
During the celebration after the lobolo negotiations were completed,
the applicant noticed that the deceased had changed his
clothing and
was now dressed in formal wedding attire. She also noticed that the
deceased's aunts had emerged from outside into
the house bearing a
covered clothes hanger. The deceased's aunts requested her to
accompany them into one of the bedrooms whereat
they revealed an
attire from the clothes hanger, and informed her that this attire was
her wedding dress and then proceeded to
dress her up therein.
[7]
The applicant states that when the she emerged from the bedroom, she
noticed that her wedding dress matched the deceased's wedding
outfit,
she then realised that not only was this day in respect of their
families negotiating the lobolo and she and the deceased
thereafter
entered into their customary law marriage, but the deceased and his
family had also planned that the customary law marriage
between
herself and the deceased should be celebrated on the same day. The
family representatives introduced her to all persons
present as the
deceased's customary law wife and they thereafter welcomed her into
their family as their customary law daughter-in-law.
[8]
The respondent who was present at the lobolo negotiations celebration
approached her, embraced her and congratulated her on
her customary
law marriage to the deceased. This encounter was captured by way of a
video recording which depicts the respondent
embracing her, and also
depicts the deceased's family and the applicant's family celebrating
together as evidenced in the annexed
photos
F12, 12.1 and 12.2
which also depict the applicant and the deceased in their
marriage garments. The video recording was shown in court, and
depicts
the families in a joyous celebratory mood ululating and
uttering the words
"finally, finally''
[9]
The applicant contends that the lobolo negotiations and the customary
law marriage ceremony were celebrated on the same day
as attested to
by the confirmatory affidavits deposed to by her family
representatives, Dorah Gladys Smith and Puleng Ann Sengadi
respectively. The applicant further contends that a lawful and
binding customary law marriage came into existence between herself
and the deceased on 28 February 2016 because they have complied with
the prescriptions of
section 3(1) of the Recognition Act 120 of
1998. After their customary law marriage she and the deceased Jived
in the matrimonial
home as husband and wife.
[10]
The applicant states that because the deceased was addicted to
cocaine and suffered from depression, she as his customary law
wife
subscribed to a Discovery Medical Health Scheme on 1 May 2016 in
order to pay for the medical costs of the deceased's rehabilitation.
Due to the deteriorating health and depression of the deceased caused
by his substance addiction, during April 2018 she invited
the
respondent as the father of the deceased and his family to a meeting
at Rockville Soweto at the deceased's aunt's house to
convince the
deceased to submit himself to a medical facility for rehabilitation
from his substance addiction.
[11]
The applicant states that because of the deceased's infidelity she
left the common home and insisted that she would only return
if the
deceased had submitted himself to a rehabilitation facility. On 24
October 2018 after the deceased's death she returned
to the
matrimonial home. On 27 October 2018 whilst mourning the deceased's
death the respondent informed her that she was not welcome
at the
matrimonial home because he did not recognise her as the customary
law wife of the deceased, consequently that she was not
entitled to
arrange the burial of the deceased.
[12]
The applicant states that the respondent thereafter changed and
replaced all the locks of the matrimonial home and she was
thereby
deprived access thereto. Further the respondent has taken control of
the deceased's body, and same is in Mahikeng for the
burial arranged
for the 3 November 2018. The respondent has also taken possession of
other effects and he refuses to return same
to her. The applicant
contends that as the customary law wife of the deceased she is
entitled to arrange the burial of the deceased
in Johannesburg in
accordance with the deceased's wishes.
THE
ANSWERING AFFIDAVIT
[13]
The respondent disputes the applicant's claim that she is the
deceased's customary law wife or that she has the right to bury
the
deceased. He states that funeral arrangements have been made at great
expense with the participation of the Mahikeng Municipality
and the
North West Province Government. The deceased's funeral is scheduled
to take place on 3 November 2018. The Premier of the
North West
Provincial Government is scheduled to deliver the eulogy at the
funeral.
[14]
The respondent denies that the applicant and the deceased concluded a
valid customary law marriage and states that in order
for a valid
customary law marriage to occur the following formalities and
procedures should have been complied with:-
(i) emissaries must have been sent by
the deceased's family to the applicant's family to indicate interest
in a possible marriage
of the parties;
(ii) an agreement must have been sent
by the deceased's family to the applicant's family to indicate
interest in the possible marriage;
(iii) an agreement must have been
reached between the families to the effect that a meeting of the
parties relatives would take
place where at the question of lobolo
would be negotiated;
(iv) payment or part payment of the
lobolo would have to be made to the applicant's family; and
(v) the two families would have to
agree on the formalities and the date on which the applicant would be
"handed over"
to the deceased's family and the handing over
of the bride to the family (normally accompanied by a ceremony) would
have to take
place.
[15]
The respondent contends that the
"handing over'
of the
bride to the deceased's family which is the most crucial part of the
customary law marriage did not take place. In the premises,
no
customary law marriage was concluded or came into existence between
the deceased and the applicant. The respondent confirms
that the
families agreed on R45000.00 as the amount of lobolo, that an amount
of R30 000.00 was paid immediately and "the
balance was to be
paid when the families next met in instalments of R10 000.00 and of R
5000.00 respectively.
[16]
The respondent contends that it is clear the families intended to
have a subsequent meeting as part of the ongoing marriage
process,
but that this meeting did not take place, because the deceased and
the applicant broke up before the marriage rituals,
formalities and
procedures could be concluded.
In
terms of custom, subsequent to the initial payment of lobolo a date
is set whereby the bride's family will hand over the bride
to the
husband's family "go gorosiwa" and upon arrival a lamb or
goat is slaughtered and the bile therefrom is used to
cleanse the
couple. This ritual signifies the union of the couple and the joining
of the two families and the couple who are thereafter
considered to
be married. A celebration will then ensue, where the lamb or goat
will be consumed by the families. Because this
did not take place,
the applicant cannot be accepted as a bride or
"makoti"
of the Tsambo family.
THE
EVALUATION OF THE EVIDENCE
[17]
It is undisputable that the applicant and the deceased with the full
knowledge and approval of their respective families cohabited
together for a period of approximately three years before concluding
their customary law marriage on 28 February 2018, and after
the said
customary law marriage was entered into and celebrated they continued
cohabiting together as husband and wife at the matrimonial
home. The
respondent in his answering affidavit did not dispute the veracity of
the couples cohabitation after the conclusion of
the customary law
marriage on the 28 February 2016 because the Tsambo family accepted
that a valid customary law marriage had come
into existence on 28
February 2016.
[18]
The applicant's submission that the custom of handing over of the
bride is an indispensable sacrosanct
essentiallia
for the
lawful validation of a customary law marriage and that without the
handing over of the bride. No valid customary law marriage
comes into
existence is not correct because the validity of the customary
marriage comes into being after the requirements of section
3(1) of
the Recognition Act 120 of 1998 have been complied with.
[19]
In this particular case there was a tacit waiver of this custom
because a symbolic handing over of the applicant to the Tsambo
family
occurred after the of the conclusion of the customary law marriage.
Because the deceased's aunts after the conclusion of
the customary
law marriage and indeed the respondent himself, congratulated the
applicant on her customary law marriage to the
deceased, thereafter
they welcomed and accepted the the applicant as the customary law
wife of the deceased as evidenced by the
fact that after the
customary law marriage was concluded the deceased and the applicant
continued to cohabit as husband and wife
at the matrimonial house.
[20]
The respondent's insistence that the most crucial part of a customary
law marriage is the handing over of the bride to the
bridegrooms
family, that if this did not occur no valid customary law marriage
comes into existence despite the couple having complied
with the
requirements of
section 3(1)
of the Recognition Act cannot be
sustainable because the respondent. incorrectly assumes that
customary law custom of the handing
over since its original
conceptualisation has not changed, that customary is rigid, static,
immutable and ossified. On the contrary
African Customary Law, it's a
living law because, its practices, customs and usages have evolved
over the centuries. The handing
over custom as practised in the pre-
colonial era has also evolved and adapted to the changed socio
economic and cultural norms
practised in the modern era.
[21]
The respondent's rigid incantation of the custom of handing over as
legitimising and validating the legal existence of a customary
law
marriage has been adapted to suit the existential reality and the
evolution of African communities. It is indisputable that
since the
advent of European or Western cultural influences in South Africa
living customary law which denotes the practices, customs,
rules,
usages and conduct in African communities has evolved, is dynamic,
pragmatic and constantly adapting to the interactive
social and
economic imperatives which infuse living customary law with
flexibility in content and application of the custom of
handing over
hence the waiver of or symbolic handing over which does not entail
the physical handing over of the bride to the husband's
family.
[22]
The existential reality that customary law is dynamic and adaptive
finds resonance. Sipho Nkosi's De Rebus Article issue- Archive
25
2015 Jan/Feb DR67 wherein he states; "Regarding the handing over
of the bride, there is no hierarchy of requirements where
customary
marriages are concerned. The application of the provisions of
s3(1)(b) of the Recognition Act particularly if one considers
the
several decisions from the Constitutional Court, are
a
study
in judicial flexibility (see Shilubana and Others v M+Nwamitwa
2009
(2) SA 66
(C) at para 49
-
55; see also Mabena v Letsoalo
1998
(2) SA 1068
(T) at 1074-5 and also Mabuza v Mbatha
2003 (4) SA 218
(C) at 226). ""the notion that the physical (virilocal)
handing over the bride to the bridegroom's family as being the
be-all
and end-all of all customary marriages is not correct, because the
handing over can also take
a
symbolic or uxorilocal form."
Section
31(1)(b) provides that a customary marriage must be 'negotiated and
entered into or celebrated in accordance with customary
law' (my
emphasis). The italic words indicate that The Legislature
acknowledges that there are many different communities in South
Africa whose marital matters are regulated by some or other body of
customary law and that there exists many different strands
of
customary law. Each community is governed by
a
set of customs
and usages that change and develop all the time and the Constitution
has been
a
major catalyst in this regard (see the Shilubana
case at 54
-
55).
These developments
·
have not left the handing over of the bride
-
as
a requirement of
a
customary marriage
-
untouched. It is also true that the adherence to this
ritual has never been monolithic
. (My underlining)
Different communities practise it differently, and execute it
differently (see Mabuza case at 226, where the
court condoned the
non-performance of ukumekeza (a siSwati version of handing over which
also involves the bride appearing naked
in front of the female elders
of the groom's family), and it was also accepted that where the bride
had cohabitated with the groom
for about eight years, and had
regarded herself as the groom's 'lawful wife'; see also Letsoalo case
at 1072- 1074).
In some of the communities. the handing
over of the bride takes a physical form. manu in manum, on the day of
the wedding
(My underlining) (JC Bekker Seymour's
Customary Law in Southern Africa (Cape Town: Juta 1989) at 109 and
114), and in others, the
ritual is symbolic or uxori/ocal in nature.
The uxori/ocal handing over may involve the slaughtering of
a
beast by the father or guardian of the bride, to signify the
acceptance of the groom by the family; or as an indication that she
is free to join him and his people, if she so wishes (ibid). This is
very much in line with the view that, in customary law, 'scrupulous
attention to the rule is seldom vital', particularly where
a
man
is already married or where there is a pregnancy and elopement
involved,
and the intending parties seek to expedite
matters for themselves
(see W Bennet Customary Law in
South Africa (Cape Town: Juta 2004) at 214
-
216).
Cohabitation
is another factor that needs to be considered in these circumstances,
particularly where the bride's family never obiected
to it. or did
not display any opprobrium by. for example. exacting a fine from the
groom's family
. Bekker makes this point, concisely, when
he says: '[P]roof of cohabitation
...
may raise presumption
that a customary marriages exist' (Bekker op cit at 116). And. if
there is no cogent evidence in rebuttal
of that presumption, the
court will definitely conclude that
a
valid
customary marriage exists (or existed) between the parties (ibid)
.(My
underlining) ...
Most
of the women who are involved in these patriarch rituals are adult:
they are not chattels to be shunted around at the whim
of their
families. They are entitled to all the fundamental rights as
enshrined in the Constitution. which customary Jaw should
always
conform to (see s 211(3))
.(My underlining)
Customary law is not just
an infrangible continuum of rituals and usages. It is also not frozen
in time. It is very malleable. And.
in dealing with matters of this
nature. the courts have to take cognisance of whatever developments
and changes which might have
taken place within
a
particular community, provided the process is consonant
with the 'spirit' purport and object of the Constitution'
(see Pilane and Another v Pilane and Another 213 (4) SA BCLR 431
(C) at para 35; see also the Shilubana case at para 49
-
55).
This is because these developments represent the 'living
law' which is 'actually observed by African communities' in this
regard
(Mabena at 1074). It is also the preserve of any community
(and its constituent family groups) to regulate and simplify the
rituals
and requirements that pertain to customary marriages: or to
abridge them as they see fit
(my underlining) (see Bennet
op it at 194). As the Constitutional Court put in Alexkor Ltd and
Another v The Richtersveld Community
and Others 20040(5) SA 460 (CC)
at para 53: 'Throughout its history [customary law] has evolved
...
to meet the changing needs of the community. And it will continue
to evolve within the context of its values and norms consistent
with
the Constitution' (see also in this regard, the Shilubane case at
para 54
-
55; the Pilane case at para 35 and Letsoalo case at
1075).
If
South African women (or mothers) an now perform all the iuristic acts
mentioned above. then surely fathers can. as
a
corollary
accept their sons' intending spouses into their homes. as their
daughters in law'
-
as a species of the handing
over? Moreover. there is nothing constitutionally reprehensible about
this deviation. particularly where
there was cohabitation between the
bride and groom after the payment of lobolo
-
or
a
portion thereof. This would ensure that the
dignity of the women involved in these seemingly inchoate marriages
is protected;(My
underlining) and that the children are not rendered
extramarital. After all. there is no universal. rigid. catechismal
formula
that exists for all customary marriages. and the handing over
of the bride is not the sine qua non that it is made out to be.(my
underling)
[23]
In MMN v MFM and Minister of Home Affairs (474/11) [2012] delivered
on 1June 2012 the SCA held that:
"The requirements for validity
of a customary marriage in s 3(1) are simply that:
(i)
the spouses must be above the age of 18 years; and
(ii)
both must consent to be married to each other under customary
law; and
(iii)
the marriage must be negotiated and entered into or celebrated
in accordance with customary law.
The
Recognition Act
does not specify the requirements for the
celebration of a customary marriage. In this way, the legislature
purposefully defers
to the living customary law. Put differently,
this requirement is fulfilled when the customary law celebrations are
generally in
accordance with the customs applicable in those
particular circumstances. But once the three requirements have been
fulfilled,
a customary marriage, whether monogamous or polygamous,
comes into existence."
[24]
In the present constitutional era customary law customs have to be
consistent with the spirit and purport objects of the Constitution
and values of freedom, equality, and dignity in an open transparent
and democratic South Africa. In the case of Mabuza v Mbatha
2003 (4)
SA 218
(C) JP Holphe was confronted with an analogous and similar
contention that, lsiswati custom of Ukumekeza the handing over of a
bride was not done (the formal integration of bride's family the
bride into the bridegroom's family). The expert evidence was that
without complying with custom of Ukumekezwa, no valid customary
marriage came into existence. JP Hlophe held that African Customary
Law has evolved and that African customary law has to be consistent
with the dictates of the Constitution, further that courts
have a
constitutional obligation to develop customary law and should not be
slow in doing so. JP Hlophe determined that the lsiswati
custom of
Ukumekeza was no longer rigidly applied and that over time it has
been adapted in application.JP Hlophe consequently
held that the
ukumekezwa custom was not an indispensable sine qua non for the
existence of a customary law marriage.
[25]
In the pre-constitutional era customary law marriages were based on
the notion of patriarchal supremacy. African males negotiated
and
consented to customary law marriages on behalf of the bride and the
bridegroom. African males were the principal interlocutors
and
interpreters of customary law, traditions, practises, usages,
cultural norms, standards and procedures.
[26]
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."
IS
THE CUSTOM OF HANDING OVER THE BRIDE TO THE BRIDEGROOM'S FAMILY
CONSTITUTIONALY COMPLIANT
[27]
Moseneke DCJ stated: in Gumede v President of the RSA and Others
2009 (3) SA 152
(CC)... Further on in Gumede Moseneke DCJ states:
"Beyond
the Constitution, the Recognition Act is the starting point of this
equality analysis. It must be understood within
the context of its
legislative design. Its avowed purpose ...is to transform spousal
relations in customary marriages. The legislation
not only confers
formal recognition on the marriages but also entrenches the equal
status and capacity of spouses and sets itself
the task of regulating
the proprietary consequences of these marriages. In doing
so,
the
Recognition Act abolishes the marital power of the husband over the
wife and pronounces them to have equal dignity and capacity
in the
marriage enterprise."
This
grudging recognition of customary marriages prejudiced immeasurably
the evolution of the rules governing these marriages. For
instance,
a
prominent feature of the law of customary marriage,
as
codified, is male domination of the family household and its
property arrangements. Whilst patriarchy has always been
a
feature of indigenous society, the written or codified rules of
customary unions fostered
a
particularly crude and gendered
form of inequality, which left women and children singularly
marginalised and vulnerable. It is
so
that patriarchy has
worldwide prevalence, yet in our case it was nurtured by fossilised
rules and codes that displayed little or
no understanding of the
value system that animated the customary law of marriage.
The
Recognition Act is inspired by the dignity and equality rights that
the Constitution entrenches and the normative value systems
it
establishes. It is also necessitated by our country's international
treaty obligations, which require member states to do away
with al/
laws and practices that discriminate against women. On the other
hand, the Recognition Act gives effect to the explicit
injunction of
the Constitution that courts must apply customary law subject to the
Constitution and legislation that deals with
customary Jaw. Courts
are required not only to apply customary law but also to develop it.
Section 39(2) of the Constitution makes
plain that when
a
court
embarks on the adaptation of customary law it must promote the
spirit, purport and objects of the Bill of Rights.
The
adaptation of customary law serves
a
number of important
constitutional purposes. Firstly, this process would ensure that
customary law, like statutory law or the common
law, is brought into
harmony with our supreme law and its values, and brought in line with
international human rights standards.
Secondly, the adaptation would
salvage and free customary law from its stunted and deprived past.
And lastly, it would fulfil and
reaffirm the historically plural
character of our legal system, which now sits under the umbrella of
one controlling law
-
the Constitution. In this regard we must
remain mindful that an important objective of our constitutional
enterprise is to be "united
in our diversity." In its
desire to find social cohesion, our Constitution protects and
celebrates difference. It goes far
in guaranteeing cultural,
religious and language practices in generous terms provided that they
are not inconsistent with any right
in the Bill of Rights.
[28]
Section 2 of the Constitution
provides: The Constitution is
the supreme law of the Republic, law or conduct inconsistent with it
is invalid, and the obligation
imposed by it must be fulfilled. The
Bill of Right which applies to all law including the common law and
customary law binds the
legislature, the executive, the judiciary and
all organs of state. The Bill of Rights is the cornerstone of
democracy in South
Africa it enshrines the rights of all people in
our country and affirms the democratic values of human dignity,
equality and freedom
Section
211(3) of the Constitution
states that" Courts must apply
customary law when that law is applicable, subject to the
Constitution and any legislation that
specifically deals with
customary law. "Section 39(2) provides that when developing
customary law a court
"must promote the spirit, purport and
objects of the Bill of Rights."
The Constitution thus
"acknowledges the originality and distinctiveness of
indigenous law as an independent source of norms within the legal
system"
such that customary law "feeds into, nourishes,
fuses with and becomes part of the amalgam of South African
constitutional
law regime.
[29]
The Constitutional Court has held that:
"When
section 3(1)(b) thus speaks of customary law marriage, it
necessarily speaks of marriages in accordance with human dignity and
fundamental
equality rights upon which our Constitution is based. "It
is no answer to state that the definition of customary law and
customary
marriages in the Recognition Act does not expressly state
this. Those definitions must be read together with the Constitution
and
this Constitutional Court's jurisprudence."
The
Recognition Act is inspired by the dignity and equality and non
discrimination rights that the Constitution entrenches
and the
normative value systems it establishes."
[30]
The Constitutional Court has held that "the Recognition Act does
not purport to be - and should not be seen as - directly
dealing with
all necessary aspects of customary marriage. The Recognition Act
expressly left certain rules and requirements to
be determined by
customary law, such as the validity requirements referred to in
section 3(1)(b). This ensures that customary law
will be able to
retain its living nature and that communities will be able to develop
their rules and norms in the light of changing
circumstances and the
overarching values of the Constitution. The Constitutional Court has
held that that the Constitution's recognition
of customary law as a
legal system that lives side-by-side with the common law and
legislation requires innovation in determining
its 'living' content,
as opposed to the potentially stultified version contained in past
legislation and court precedent."
[31]
The Constitutional Court has engaged in an incremental development of
customary law as contemplated by section 39(2) of the
Constitution.
In
Bhe
and Otherts v Magistrate Khayalitsha and Others2005 (1)
BCLR 1 CC the Court invalidated the customary rule of succession
regarding
male primogeniture. The Constitution demands equality in
the personal realm of rights and duties as well. In the present
constitutional
era, it is undeniable that there are still certain
customary law customs which in essence discriminate against women on
the basis
of their gender and other customs which infringe women's
constitutional rights to equality and dignity and freedom. The
customs
which are inconsistent with the spirit, purport and objects
there are still of the Bill of Rights because such customs can be
said
to have not kept pace with the development of living customary
law which has to be consistent with the Constitution as influenced
and adapted to the changing norms of African communities.
[32]
The rights to equality, dignity and freedom are the most rights in an
open, transparent democratic state like South Africa
because of our
past history of inequality and hurtful discrimination based on race
and gender.
In
Alexkor Ltd and Another v Richtersveld Community and Others 2004(5)
SA 460 (CC) at paragraph 53, the Constitutional Court noted
that
"indigenous 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." It
has throughout history "evolved and developed
to meet the
changing needs of the community."
[33]
The custom of handing over in customary law have not been given the
space to adapt and keep pace with the changing socio economic
conditions and constitutional valu'3s. The rights to freedom,
equality and dignity include the right-bearer's entitlement to make
choices and to take decisions that affect his or her life-the more
significant the decision, the greater the entitlement. The autonomy
and control over one's personal circumstances is a fundamental aspect
of human dignity. However, a customary law marriage wife
effectively
has no freedom of opinion, autonomy or control over her marital life
if her customary husband's family insists that
her family should hand
her over in order to validate the existence of her customary law
marriage inspite of the fact that she and
her customary law husband
have complied with section 3(1) of the Recognition Act.
[34]
The primary question which is arises is:
Does
the handing over custom to which
a
female spouse is subjected
discriminate against her because of her gender that she is
a
woman. Another associated question is whether it would be
appropriate for the court to develop the customary law custom of
handing
over the bride with regard to the validation of
a
customary marriages in order to make the custom consistent with
the equality, dignity and non- discrimination prescriptions of the
Constitution.
When
appropriate, courts have a constitutional obligation to develop the
living customary law in order to align it with constitutional
values.
The question of developing customary law in this particular instance
does arise. An important consideration is that the
custom of handing
over the bride
as
a prerequisite in validating the existence
of a customary law marriage is inconsistent with the Constitutionally
guaranteed values
of equality, dignity and non-discrimination. The
development of the custom of handing over would bring legal certainty
in that
the handing over custom would not necessarily be a
prerequisite which legalises a customary law marriage and which
supersedes the
compliance with section 3(1) requirements of the
Recognition Act
as
validating the existence of a customary law
marriage.
[35]
The conceptualisation and rigidity of the custom of handing over the
bride to the bridegroom's family legally validates the
coming into
existence of a customary law marriage entrenches a system of
customary law that discriminates against and is oppressive
against
women because it institutionalises gender inequality and infringes
the dignity of the female spouses, it also infringes
the female
spouse's freedom of opinion and control over her marital status
because the assumption implicit in the intractable customary
law
custom that if the bride is not handed over there cannot have been a
valid customary law marriage adumbrates the patriarchal
nature of the
pre constitutional customary law when the consent and opinion of
women was not solicited and was irrelevant because
then women were
regarded as perpetual minors with no rights. In the present
constitutional era customary law the customs of handing
over as an
indispensable requirement to validating a customary law marriage
cannot pass constitutional muster because it is inconsistent
with the
spirit, purport and objects of the Constitution.
THE
ORDER
[36]
It is declared that the customary law custom of handing over the
bride to the bridegroom's family as an essential pre-requisite
for
the lawful validation and the lawful existence of a customary law
marriage declared to be not a lawful requirement for the
existence of
a customary law marriage when section 3 (1) of the Recognition Act
have been complied with.
[37]
The customary law custom of handing over the bride is self-evidently
discriminatory on the ground of gender and equality as
between the
prospective wife and the prospective husband. Because only women,
after consenting to enter into a customary law marriage
are subject
to this unequal treatment by the custom of handing over which
overrides the statutory requirements of section 3(1)
of the
Recognition Act as the essential requirements for a valid customary
marriage.
[38]
In my view the customary law custom of the handing over has to be
developed to the extent that the requirement of the handing
over of
the of the bride as an essentialia for the lawful existence of a
customary law marriage and that the failure to comply
with such
custom despite having complied with the section 3(1) statutory
requirements of the Recognition Act invalidates the validity
and
existence of the customary law the spouses consented to and had
celebrated. In my considered view the requirement of handing
over the
bride to bridegroom's family does not pass Constitutional muster as
it is not in accordance with the Bill of Rights and
it does not
promote the spirit, purport and objects of the equality and dignity
clauses in the Constitution because this handing
over custom as a
determinative prerequisite for the existence of a customary law
marriage unfairly and unjustly discriminates against
the gender of
the applicant as a woman and denies her constitutional right of
equality and dignity.
THE
PRINCIPLE OF UBUNTU
[39]
Ubuntu has been identified as a constitutional value.
S v
Makwanyane and Another (CCT3/94)
[1995] ZACC 3
;
[1995] (6) BCLR 665
(3(
[1995] ZACC 3
; ,"
1995
(3) SA 391
;
[1996] 2 CHRLD 164
; 1995 (2) SA
from the judgment it
appears that
'Ubuntu'
encapsulates communality and the
interdependence of the members of a community, a respect for life and
human dignity, humanness,
social justice and fairness, and an
emphasis on reconciliation rather than confrontation. In Sachs J to
advocate a more inclusive
approach to the national legal system. He
declared that:
'the
secure and progressive development of our legal
system
demands
that it draw the best from all the
streams
of justice in our
country.... It means giving long overdue recognition to African law
and legal thinking as
a
source of legal ideas, values and
practice'.
He
added the caveat, however, that:
'we
do not automatically invoke each and every aspect of traditional law
as
a
source of values, just as we do not rely on all features
of the common law. Thus we reject the common law traditions which are
inconsistent
with freedom and equality, and we uphold and develop
many aspects of the common law, which feed into and enrich the
fundamental
rights enshrined in the Constitution. [Similarly] there
are many aspects and values of traditional African law which will
also
have to be discarded or developed in order to ensure
compatibility with the principles of the new constitutional order.'
THE
BURIAL
[40]
Normally the right to bury a deceased customary law husband reposes
on his customary wife (widow) who is normally the heiress
to the
deceased's estate, See
Nzaba v Minister of Safety and Security and
Others an (unreported judgment delivered in case No: 0535/ 2005.)
In
customary law the male head of the family of the deceased is the
person who decides the arrangements concerning the burial of
the body
of the deceased. This authority of the male head of the family or the
father of the deceased was predicated on the principle
of
primogeniture. The Constitution has decreed that the principle of
primogeniture regarding the law of intestacy violated the
right of
Women to human dignity guaranteed in section 10 of the Constitution.
In our new constitutional dispensation these traditional
cultural
customary law practices were reconsidered in the light of our
constitutional development pursuant to
section 39(2) and 111 (2)
of the Constitution, Act 108 of 1996
and See
Bhe and Others v
Magistrate Khayelitsha and Others; Shibi v Sithole and Others
where
the principle of primogeniture was abolished;
South African Human
Rights Commission and Another v President of the Republic of South
Africa and Another
2005 (1) SA 560
(cc) 2005 (1) BCRL (1).
[41]
The applicant as the customary law wife of the deceased Jabulani
Tsambo pursuant to the customary law marriage concluded between
herself and the deceased on the 28 February 2016 is entitled to bury
her customary law marriage husband, the deceased. But in this
matter
there are competing claims predicated on the principle of Ubuntu
vis-a-vis the deceased's family and the applicant's rights
as the
deceased customary law widow, the considerations of public, the
principle of fairness, equality, equity and the interests
of justice
and the balance of convenience and the exigency that the deceased was
a public figure of national importance and was
to be accorded a civil
funeral by the provincial Government of the North West, which was
funding the costs of the funeral burial
of the deceased, at the
Community Hall which was already booked that, as this urgent
application was being argued a second memorial
service was being held
in Mahikeng and was attended by large numbers of the public, and
further that large numbers were said to
be travelling from all over
the country to attend the funeral of the deceased which was already
scheduled for the following day
and that the premier of the North
West Province on behalf of the citizens and government was to deliver
the main eulogy.
[42]
These multiple competing and practical considerations cannot be
governed and resolved strictly on the basis of the principles
governing the granting of interdicts at this very late hour to
interdict the respondent from proceeding with the funeral and the
deceased. The court was obliged to exercise a practical common sense
approach which prompted the court to subsume the legitimate
burial
rights of the applicant as the customary law wife of the deceased to
the greater equally competing rights of the public
interests, and the
deceased's family rights more especially where the deceased's body
was lying in the state in Mahikeng as this
urgent application was
been argued. The applicant sought an order to bury the deceased in
Johannesburg but because r the respondent
gave an undertaking on
behalf of himself and his family that the applicant could attend the
deceased's funeral unhindered. The
court taking into consideration
the competing interests and balancing same on the principle of
proportionality was obliged to apply
the principles of Ubuntu and
decided to issue an order declining to accede to the applicant's
interdict to prevent the funeral
of the deceased not being held on 3
November 2018.
__________________________
MOKGOATHLENG
J
JUGDE
OPF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION
Counsel
for the Applicant: Adv A. Bester (SC)
Adv
F. Bezuideonhout
Instructed
by: Hogan Lovells (South Africa) Inc
Counsel
for the Respondent: Adv D. Mahon (SC)
Adv
C. Marule
Instructed
by: Mathipane Tsebane Attorneys
Date
of Hearing: 02 November 2018
Date
of Judgment: 02 November 2018