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[2018] ZAGPJHC 666
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Sengadi v Tsambo; In Re: Tsambo (40344/2018) [2018] ZAGPJHC 666; [2019] 1 All SA 569 (GJ) (8 November 2018)
Links to summary
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 40344/2018
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-I
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,
12.1and 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 lived
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 uxorilocal in
nature
. The uxorilocal 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
objected 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 law 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 juristic 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, Isiswati 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
Isiswati 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 all 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
law. 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 hasnot been given the space to adapt
and keep pace with the changing socio economic
conditions and
constitutional values. 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.
[36]
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.
[37]
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
[38]
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
[39]
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).
[40]
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-à-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.
[41]
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.
THE
ORDER
[42]
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 is declared to be not a lawful requirement for the
existence
of a customary law marriage when section 3 (1) of the
Recognition Act has been complied with.
This
made and signed in Johannesburg on 30 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