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[2018] ZANCHC 81
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Pecirep and Others v Phakisa and Another (259/2018) [2018] ZANCHC 81 (17 August 2018)
IN THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE DIVISION, KIMBERLEY
CASE NO: 259/2018
Heard
on: 18 May 2018
Delivered
on: 17 August 2018
·
REPORTABLE
: NO
·
CIRCULATE TO JUDGES
:
YES
·
CIRCULATE TO MAGISTRATES
:
NO
·
CIRCULATE TO REGIONAL MAGISTRATES
:
NO
In
the matter between:
ELLEN
NOMANGOMA
PECIREP
1
ST
APPLICANT
KAMOGELO
GAABATLHOLE
2
ND
APPLICANT
VILENCIA
SETLHAMO
3
RD
APPLICANT
and
LERATO
VENETTA
PHAKISA
1
ST
RESPONDENT
MINISTER
OF HOME
AFFAIRS
2
ND
RESPONDENT
JUDGMENT
VUMA,
AJ
INTRODUCTION
[1]
This is an opposed application in terms of which the applicants seek
the
following order:
1) That the registration of the customarily
marriage between the first respondent and Moses Gobusamang Mojatau
(“the parties”) be cancelled;
2) That the second respondent be ordered to
expunge the marriage of the parties from the marriage register;
3) That it be declared that the parties
were not married to each other in terms of a customary union;
and
4) That the first respondent be ordered to pay
the costs of this application; alternatively, the first and
second
respondent, jointly and severally, be ordered to pay the costs of
this application in the event the second respondent opposes
same.
[2] On 13
November 2017 the second respondent issued a marriage certificate
after registering a customary marraige between the first respondent
and the late Moses Gobusamang Mojatau (hereinafter “the
Deceased”), at the request of the first respondent. Both the
application for and registration of the customary marriage were
initiated and concluded after the Deceased had already passed away.
The second respondent has given notice that it will abide by
the
Court’s ruling.
[3] The
applicants dispute the existence of the customary marriage on the
basis that,
inter alia
, the Deceased never informed them of
same.
[4]
Both the first respondent and the applicants raised points
in
limine
in terms of Rule 63 which they subsequently withdrew.
BACKGROUND
FACTS
[5]
The first respondent and the Deceased were involved in a relationship
and stayed together from about 2010 or 2012 until the date of the
Deceased’s passing.
[6] The
applicants are the only children of the Deceased who passed away
on 8
June 2017 following what has been described as a short illness.
[7] During May
2017 the Deceased fell ill from suspected liver cirrhosis
and was
subsequently admitted at the Gariep Mediclinic in Kimberley for
treatment. He was discharged from the hospital on or about
22 May and
was driven home by the first respondent who was in the company of Mr
Martin Mojatau, the Deceased’s cousin.
[8] On 25 May
2017 the first applicant, who had returned to the Republic
of South
Africa a day before to visit the Deceased, obtained an Interim
Protection Order (‘IPO”) against the first
respondent
from the Kimberley Magistrate’s Court to take the Deceased back
to the Gariep Mediclinic. The reason for the application
for the IPO
was firstly, the allegation that the first respondent was not willing
to take the Deceased, whose condition was described
as critical, back
to the hospital and secondly that the first respondent was also
refusing the applicants access to the Deceased.
The Deceased’s
condition deteriorated and on 7 June 2017 he passed.
[9] Following
the Deceased’s passing, the first respondent launched
an urgent
application with the Kimberley High Court under case number 1368/2017
wherein by agreement it was ordered that the first
respondent bury
the Deceased.
[10] It is in this application
that the first respondent alleges that on 25 May 2017 she attended
to
the second respondent’s offices to confirm her status as the
Deceased’s customary wife. This visit was prompted
by the
difficulties she was experiencing to visit the Deceased at the
hospital since the applicants were denying her access to
the former.
Upon visiting the Kimberley Magistrate’s Court, a clerk thereat
advised her to approach the second respondent’s
offices to have
her customary marriage registered with the second respondent.
[11] The first respondent acted
upon the said advice which thus culminated in the second respondent
registering the said customary marriage now being at the center of
dispute. She appeared before the latter’s registering
officer
in the company of the Deceased’s cousin brother, Mr Mothobie
and her mother since these two were also present during
the
magadi
negotiations.
SUBMISSIONS
BY APPLICANTS
[12] The applicants dispute that
the first respondent and the Deceased concluded a valid customarily
marriage in December 2014 which led to its subsequent registration in
November 2017 by the second respondent. They submit that
despite
their admission that failure to register a customary marriage does
not
per se
necessarily render it invalid in terms of the
Customary Marriages Act 120 of 1998 (“the Act”), the fact
remains that
in casu
, the parties failed to comply with
customary law. They further submit that the Deceased would have
informed them of the existence
of such a marriage in the event there
was one, given the fact that they were in a good relationship with
him. They however admit
that there was an instance in 2014 when the
Deceased informed them that he had considered marrying the first
respondent in terms
of custom, but then decided against it.
[13] They argue that the
registering officer did not have the authority to register the said
marriage given the lengthy period that had elapsed after the alleged
conclusion of same. They argue further that the registering
officer
did not have the relevant facts to satisfy himself of the existence
of the said alleged valid marriage, especially in the
absence of
their confirmatory affidavits regarding same. They argue that the
consequences of the marriage certificate issued by
the second
respondent are dire considering the fact that the first respondent
will be deemed as having been married to the Deceased
in community of
property, thus entitling her to half the joint estate of the parties.
They submit that this application must be
viewed in light of the
above fact.
SUBMISSIONS
BY THE 1
ST
RESPONDENT
[14] The first respondent submits
that she and the Deceased concluded a valid customary marriage
which
was subsequently registered by the second respondent. She submits
that the applicants were aware of the fact that the Deceased
had paid
magadi
for her since when she made this allegation in her
urgent High Court application, they never disputed it. She submits
that the fact
that the applicants were not involved in the
magadi
negotiations is in terms of the customary traditions. She further
submits that from the Deceased’s family side it was Mr Mothobie
who is the Deceased’s cousin brother who was present, and her
mother from her family side and her uncle.
[15] She further submits that
during the
magadi
negotiations, the Deceased’s family
had agreed to pay R40 000-00 in cash, R20 000-00 of which was paid on
6 December 2014
when the traditional ceremony took place. The balance
of R20 00-00, she submits, was paid electronically on 1 March 2015.
She was
then handed over to the Deceased’s family on 7 March
2015.
[16]
It was submitted on behalf of the first respondent that the reason
why the parties did
not register their marriage in terms of the law
is due to the fact that they did not obtain any legal advice in
respect of the
registration of their customary marriage. It was
further submitted that the parties had also intended to get married
in terms of
civil law in November 2017.
ISSUES
FOR DETERMINATION
[17]
Based on the above, the issues for determination are the following:
1. Whether on the balance of probabilities, the first
respondent and the Deceased concluded a valid customary marriage on
6
December 2014; and
2. Whether the second respondent’s registering officer,
before registering and issuing the customary marriage certificate
between the parties, had considered and satisfied himself of all the
relevant facts.
THE LAW
[18]
Sections 3 and 4 of the Customary Marriages Act 120 of 1998 (“the
Act”) provides
the following:
“
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 under customary law; and
(b)
The marriage must be negotiated and
entered into or celebrated in accordance with customary law…”
4. Registration of customary
marriages.-
(1)
The spouses of a
customary marriage have a duty to ensure that their marriage is
registered.
(2)
Either spouse may apply
to the registering officer in the prescribed form for the
registration of his or her customary marriage
and must furnish the
registering officer with the prescribed information and any
additional information which the registering officer
may require in
order to satisfy himself or herself as to the existence of the
marriage.
(3)
A customary marriage-
(a) …………..
(b) entered into after the commencement of this Act, must be
registered within a period of three months after the conclusion of
the marriage or within such longer period as the Minister may from
time to time prescribe by notice in the Gazette.
(4)
(a) A registering
officer must, if satisfied that the spouses concluded a valid
customary marriage, register the marriage by recording
the identity
of the spouses, the date of the marriage , any lobola agreed to and
any other particulars prescribed.
(b) The registering officer must issue to the spouses a
certificate of registration, bearing the prescribed particulars.
(5)
(a) If for any
reason a customary marriage is not registered, any person who
satisfies a registering officer that he or she has
a sufficient
interest in the matter may apply to the registering officer in the
prescribed manner to enquire into the existence
of the marriage.
(b) If the registering officer is satisfied that a valid customary
marriage exists or existed between the spouses, he or she must
register the marriage and issue a certificate of registration as
contemplated in
subsection (4)
.
(6)………
(7)
A court may, upon
application made to that court and upon investigation instituted by
that court, order-
(a)
the
registration of any customary marriage; or
(b)
the cancellation or
rectification of any registration of a customary marriage effected by
a registering officer.
(8)
A certificate of
registration of a customary marriage issued under this section or any
other law providing for the registration
of customary marriages
constitutes prima facie proof of the existence of the customary
marriage and of the particulars contained
in the certificate.
(9)
Failure
to register a customary marriage does not affect the validity of that
marriage”.
ANALYSIS
[19] As a starting point I must point out
that I do not fully agree with the submission by the first
respondent’s
counsel that section 4(5)(a) of the Act entitled
the first respondent to apply to the registering officer as she did
by enquiring
into the existence of her marriage. It is my considered
view that section 4(5)(a) provisions are intended for third parties
whereas
spouses
per se
can avail to themselves the provisions
of section 4(2) of the Act instead.
[20] The issues this application raise are to
be considered in light of the relevant provisions of the
Act and the
facts made by the parties
in casu
. This therefore raises a
further question as to which version between the parties’ is
more probable. The nub of the applicants’
argument is centered
around what the first respondent stand to gain patrimonially in the
event this application is dismissed since
the latter will invariably
be entitled to half the parties’ joint estate.
[21] Regarding the question whether the
parties did hold a traditional ceremony on 6 December 2014 at the
instance during which the question of
magadi
were being
negotiated, I am persuaded that the first respondent’s version
is the more probable one. I find the applicants’
contrary
argument assailable given their concession that in terms of
tradition, as children of one the spouses involved, they are
barred
from attending the negoatiations. This finding finds further traction
in the fact that the Deceased’s family was also
represented by
his cousin brother, Mr Mothobie and further that their counsel could
not provide the court with one reason why Mr
Mothobie would avow the
conclusion of the parties’ customary marriage if it did not
exist.
[22] Regarding the question
whether the parties’ marriage satisfies all the customary
law
requirements for it to be deemed as a valid customary union, I am of
the view that it does despite the applicants’ contention
that
the agreed payment of the
magadi
in instalments was not in
accordance with the law. My view is that like any other contract, to
the extent that the requirements
are not peremptory, the parties
would be free to modify the said terms to meet their respective
circumstances. It is my considered
view that the fact that the
parties agreed to a specified
magadi
payment plan suffices as
meeting a customary law requirement regarding the
magadi
issue.
[23] Regarding the question why
the first respondent would have waited to have the customary
marriage
registered only until the Deceased was critically ill, I am satisfied
with the reason proffered by the first respondent
that neither
herself nor the Deceased knew that there was such a requirement. I am
of the further view that since the Act did not
prescribe the period
after which such application for registration should not be
entertained by the registering officer, that such
silence can be
construed as a discretion being left entirely to the registering
officer as to whether or not he is satisfied regarding
the reasons
for the delay.
[24] Regarding the question
whether the second respondent’s registering officer had
satisfied himself with all the relevant facts which led him to
register the parties’ customary marriage, I am satisfied that
he did. The fact that he did not seek the applicants’
confirmatory affidavits is, in my considered view, immaterial since
by their own admission, they did not even form part of the Deceased’s
family delegation regarding the
magadi
negotiations. It
therefore goes without saying that the applicants would not have been
of any assistance in the event they were
approach for confirmation or
clarity purposes. To the extent that the persons who were present
during the
magadi
negotiations were also present when the
registering officer was considering the registration application,
prima facie
, indicates that the former had complied with his
statutory obligations in this regard.
[25] Taking into account all of
the above, I am satisfied that on the balance of probabilities,
the
parties concluded a traditional ceremony on 6 December 2014 and that
Mr Mothobie, the first respondent’s mother and her
uncle were
part of the alleged
magadi
negotiations. This view is arrived
at considering also the fact that a copy of a signed document
alluding to the conclusion of such
a ceremony between the parties,
the agreed payable
magadi
and the advance payment of R20
000-00 formed part of the documentary proof adduced by the first
respondent. The said document also
bore a signature purporting to be
that of,
inter alia
, the Deceased. It is important to note the
applicants never placed in dispute the said signature as not being
the Deceased’s.
[26] I further find as assailable
the submission on behalf of the applicants that unless the
parties’
marriage is declared invalid and subsequently expunged, that same
will invariably lead to an injustice due to the
fact that the first
respondent will be unduly benefitted by inheriting half the joint
estate of the parties. The reason is for
this view is that the
determination of whether a customary marriage was entered into and if
so, its validity, can never be premised
on the patrimonial
consequences.
[27]
Furthermore, even after the factoring in of,
inter alia,
the
alleged disputed accounts regarding the first respondent’s
attitude towards the applicants in the weeks leading to the
Deceased’s passing, which has not been proven, same does not
take the validity or otherwise of the parties’ marriage
any
further. I am of the further view that the applicants’
submission of the unlikelihood regarding the fact that neither
the
first respondent nor the Deceased, who was an intelligent and an
educated professional person, would not have known that their
alleged
marriage had to be registered is equally meritless since the
registering officer was satisfied with such an explanation.
[28]
I am further satisfied that the applicants, on the other hand, have
failed to place any
evidence before me to refute the
prima facie
proof of the conclusion of a valid marriage between the parties.
[29] The above findings are
arrived at despite the alleged contradictory allegations by the
first
respondent and Mr Mothobie regarding how much and when the
magadi
were paid by the Deceased, which contradictions I find to be
immaterial. As stated above, the fact that the parties had consented
to the marriage and that in accordance with customary law, they had
agreed,
inter alia
, with regard to the
magadi
payable,
suffices to constitute a valid customary marriage.
[30] In the premises the
application ought to be dismissed with costs.
[31]
In the result I make the following order:
ORDER
1. The
Application is dismissed with costs.
L Vuma
Acting
Judge
Northern
Cape High Court
Appearances
For
Applicants: Adv. Rust
Instructed
by: Haarhoffs Inc.
For 1
st
Respondent: Adv. A.S Sieberhagen
Instructed by: Duncan &
Rothman Inc.
For 2
nd
Respondent: The State Attorney