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[2018] ZAECMHC 56
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Dalasile and Others v Mgoduka and Another (5056/2018) [2018] ZAECMHC 56 (2 October 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
CASE
NO. 5056/2018
In
the matter between:
NIKIWE
DALASILE
1
st
Applicant
YANDISWA
DALASILE
2
nd
Applicant
MONGEZI
DALASILE
3
rd
Applicant
And
BABALO
MGODUKA
1
st
Respondent
AVBOB
FUNERAL PARLOUR –
KOKSTAD
2
nd
Respondent
JUDGMENT
JOLWANA
J
[1] Applicants
approached this court on an urgent basis seeking an order
interdicting the first respondent from burying the deceased
and other
orders ancillary thereto. The right of the applicant to bury
the deceased is arduously contested by the first respondent
who
claims that he concluded a valid customary marriage with the deceased
and therefore is entitled to the burial rights pertaining
to the
deceased.
[2] The first and
second applicants are sisters to the late Phezisa Dalasile (the
deceased) who died tragically on 10 September
2018 following a car
accident in Butterworth.
[3] The third
applicant is the paternal uncle to the first and second applicants in
that he is a brother to the latter’s late
father.
Applicants’
locus standi
to institute these proceedings
is not in issue.
[4] It is common
cause that on 26 December 2014
lobola
negotiations took place
at the home of the deceased between the emissaries of the first
respondent and the representatives of the
family of the deceased
including the third applicant.
[5] It is further
common cause that at the end of those negotiations on 26 December
2014 a minute was produced and signed by the
third applicant and
first respondent’s emissaries in which the following is
recorded in isiXhosa:
“
INDWENDWE
ZAKWAMGODUKA ONYATHI FLAKSTAF 26 DECEMBER 2014
Bathe bakubuzwa
bapheth’ezingaphi baphendule bathi baphethe iR20 000.00
sayibala savumelana ukuba yiyo. Adibene amaqwathi
athi inkomo
yobuso bentombi yi R6 000.00 kube inkomo inye amaqwathi ayibiza iR5
000.00 inye. Bacele ukubizwa iR4 000.00 bavunyelwa,
bashiye
zane eziyi R20 000.00. Kususwe iR6 000.00 eshiyekileyo: iR14
000.00 yayeyee nkomo zisabiwa nge R4 000.00 inye.
Bakhuphe
nebotile ezintathu uswazi, ihamb’idlani nesazimzi.
Abanikwanga inani leenkomo bakulifumana zakuba NTANDATHU.
Baphinde bakhupha iR2 000.00 ukuzalisa. Bashiye iR22 000.00.”
[6] Loosely
translated this means:
“
GUESTS
FROM MGODUKA FAMILY, ONYATHI FLAGSTAFF 26 DECEMBER 2014 When asked
they said they were carrying with them R20 000.00 which
was counted
and confirmed. Amaqwathi met and decided that the cow for the
face of the girl is R6 000.00 and each cow will
be R5 000.00.
They asked that each cow should be R4 000.00 which was agreed to.
They left four cows of R20 000.00,
R6 000.00 of which was set aside
for the face of the girl leaving R14 000.00 with each cow being
R4000.00. They paid three
bottles of brandy which were named
according to tradition. They also paid R2 000.00 and the total
paid is R22 000.00.”
[7] The applicants
say the first respondent’s emissaries never returned to pay the
outstanding two cows after the payment
of which they would have been
advised how many cows they were required to pay. It is only
after reaching this threshold in
terms of the number of cows that an
arrangement would have been made for the customary marriage between
the deceased and the first
respondent to be celebrated.
[8] The first
respondent says in his answering affidavit:
“
16.
On 26 December 2014 the said lobola negotiations took place and
deceased family set the number of cows to be paid, before the
deceased could be released to wed to my family, to six.
17. It was further
agreed at the negotiations that we could start with the family
rituals of dressing the deceased and giving her
a marital name even
before the fixed amount was paid. I hasten to mention that the
basis for such an agreement was the belief
system that in matters
like the instant witches will not be happy with the idea that the
Magoduka name will not be going to the
ashcan of history anytime
soon. The deceased family at that meeting made it plain that
the handing over of the bride would
only be done once the balance
owing was paid.
18. Indeed in
January 2015 the deceased was named Avuyile as her marital name and
the
tsiki
ritual was performed to fulfil custom.
19. On or about
November 2015 the delegation from my family arranged a meeting with
negotiators from the family of the deceased
to make good on our
promise.
20. Indeed on 05
March 2016, it being the agreed date, after at least two failed
attempts to meet before then due to unforeseen
circumstances the
meeting took place and an amount of R8 000.00 (eight thousand rand)
was paid. I attach hereto a copy of
my bank statement showing
the withdrawal R10 000.00 (Ten Thousand Rand) on the 4
th
March 2016 which was to be to the deceased family as agreed and the
balance was to cover travelling costs marked “BM1”
21. I must mention
that both families were thoroughly excited about the finalization of
the negotiations and the fact that the meeting
of the ancestors was
sealed.
22. We were welcomed
by the deceased family and a sheep was slaughtered in accordance with
custom. A photograph taken on that
day showing and/or
reflecting delegates of both families is attached hereto marked as
annexure “BM2” and “BM3”
respectively.
I call upon the respondents to explain what was happening on this day
if they have a different version to mine.
Annexure “BM2”
depicts the third applicant as chief negotiator from the deceased’s
family and my late uncle from
standing in the middle as the chief
negotiator from my family’s side.
23. Minutes were
taken and our copy of the minutes could not be located as the person
that held possession of the minutes has since
passed on, it being my
late uncle referred to in preceding paragraphs.
24. On our departure
on that day the deceased family promised us that they would bring the
deceased to her marital home at their
earliest convenience and
further details would be communicated with our negotiating team.
The deceased and I behind the scene
started urgent preparations for
the handing over and deceased family called my late uncle to confirm
that they would be coming
to hand over the deceased to our family as
custom dictates. The arranged date was 2
nd
April
2016 as planned the family of the deceased brought and handed over
the deceased. At the hearing of this matter a video
footage
depicting the first applicant, second applicant and the wife to the
third applicant were present during the ceremony.
A copy of the
said video footage will also be made available to the applicants
should they wish to view it before the hearing of
this matter.
26. The ceremony and
act of handing over the bride perfected the consummation of a
customary marriage.”
[9] During the
hearing of this matter Ms Mxotwa, counsel for the applicants advised
me that she had not seen the video and wondered
if the court would
want to see it. My response was that I do not have to see the
video, counsel can view the video and speakers
from the first
respondent’s family would be expected to state in the video
what the gathering was all about and what was
the purpose of the
visit of the deceased family to theirs.
[10] Mr Matotie,
counsel for the first respondent submitted that the video is a very
short video with no speakers or anybody talking
in it. I found
this strange as it becomes difficult to discern what the purpose of
the tender of the video if it would not
help to understand the nature
of the occasion.
[11] This is very
significant because it is common cause between the parties that the
deceased had been to the home of the first
respondent and the
respective families have been to each other’s homes. Most
significantly the purpose of the video
was to prove that the marriage
between the parties was celebrated something that is strenuously
disputed by the applicants.
If the video was not going to be
helpful in this regard it is difficult to understand its purpose.
[12] In the founding
affidavit the applicants make the point that the deceased’s
family members have been to the first respondent’s
home as
follows:
“
25.
The first respondent’s emissaries were able to pay 4 (four)
cows and they agreed to come back at least with 2 cows which
would
allow them to know the
lobola
exact amount and when will the deceased be given to them as their
bride the two cows were costed to be R8 000.00. Attached
hereto
as annexure “ND4” is a copy of the negotiation meeting.
26. It is at this
point when the first respondent’s emissaries promised to return
on a certain date for the payment of the
2 (two) cows in order to
have the number required for
lobola
and when can it be
possible for them to have the deceased as their bride.
27. On or about
December 2014 when it was closer to the new year’s eve, the
deceased was invited to a ceremony that was to
occur at the first
respondent’s home at
Bukazi
and indeed she attended the
ceremony.
28. The year 2014
ended without hearing anything from the first respondent. In
the middle of January 2015 the deceased called
our mother to inform
her that she was abducted by the family of the first respondent and
she was dressed and given a name as the
wife of the first respondent.
29. It is at this
point that the third applicant called one of the emissaries of the
first respondent to enquire as to why her daughter
(the deceased) was
abducted whilst there was an agreement that she will only be their
bride after 2 (two) cows for announcement
has been paid. The
first respondent’s family apologized for their conduct and
promised to bring more cows with immediate
effect to our family
including the cow for their bad conduct.
30. Even though a
promise was made to pay more cows but the first respondent’s
family did not act as per the agreement.
31. The deceased
returned home during May 2015 when she was about to give birth to her
first born Akahlulwa (the minor) and she
gave birth during July 2015:
On her arrival the deceased informed me that she left the first
respondent’s home because she
never wanted to be part of that
family.
31.1 I and the
deceased agreed after she shared her pain with me that she must leave
to Cape Town and be with our older sister the
second applicant as a
result her first born was born in Cape Town.
32 The first
respondent’s family was informed that the child has been born
and they gave us a date on which they will visit
our family for the
purposes of bringing clothes for the child and see their daughter.
33 When they visited
to our home to see the child a meeting was held in order to arrange a
date for my family to take the child
to the first respondent’s
family and introduce the child to the first respondent’s
ancestors.
34 The ritual
mentioned above is always conducted in terms of our ancestors when a
payment for damages has been effected even if
the girl is not married
to the alleged family. And it is always important to perform
this ritual when the child is born in
her mother’s homestead.
35. We visited the
first respondent’s family and indeed the ceremony to welcome
the child was conducted by both families.
During the ceremony
the third applicant made a comment in public that the deceased is not
the bride of the first respondent because
the family of the first
respondent has not returned as per the agreement and my family does
not recognize the first respondent’s
family as
abakhozi
(in laws).
36. I have been
advised that in terms of
Section 3
(1)(a) and (b) of the
Recognition
of Customary Marriages Act 120 of 1998
, for a customary marriage
entered into after the commencement of this act to be valid;
36.1 The prospective
spouse must both be above the age of 18 years;
36.2 Must both be
above the age of 18 years;
36.3 Must both
consent to be each other under Customary Law;
36.4 The marriage
must be negotiated and entered into or celebrated in accordance.
37. The third
applicant did inform the first respondent’s family that even
after the payment of
lobola
the marriage will not be valid
until there is a celebration in a form of
Umendiso
(handing
over of the bride) has been made, if they the first respondent’s
family do not act immediately, the deceased will
never be the bribe
of the first respondent and their customary marriage will not be
valid, even the first respondent will never
be taken as the brother
in law by our family.”
[13] I was taken
aback that the first respondent has not denied or challenged, at
least not in any direct way, some of the specific
allegations
contained in the founding affidavit especially the ritual relating to
the introduction of the child to the ancestors
and the
umendiso
custom. This is how the first respondent elected to deal with
some of the profound allegations that applicants made:
“
49.
AD PARAGRAPHS 22,27,29,30,34,35,37,40,46,64 & 66 THEREOF
The contents of
these paragraphs are denied to the extent that they are inconsistent
with the narrative that I have given above.
To that end I
reiterate the contents of this affidavit. I further record that
the deceased has always wished to be buried
next to me and this
conversation has come up on a number of occasions when she put
pressure on me to attend to the
Nyathi
burial site.”
[14] The issue for
determination is whether or not on the facts of this matter a valid
customary marriage was concluded. If
a valid customary marriage
was concluded the first respondent will be entitled to bury the
deceased. It is on the determination
of this issue in their
favour that the applicants will become entitled to the relief
sought. The factual matrix of this matter
makes it clear that
applicants and first respondent accept the xhosa adage that “
ingcwaba
lomfazi lisemzini
” (the grave of a wife is at the marital
home). Its opposite also holds true which is that “
ingcwaba
lentombi likokwayo
”, (the grave of an unmarried woman is at
her maiden home). I digress to emphasize that in terms of these
time honoured
unwritten principles of the African cultural way of
life which principles find application across cultures and traditions
of the
indigenous people in this country, everyone gets to have a
pre-determined resting place when they die. This
is not to suggest, even indirectly, that all indigenous people
subscribe to this belief system.
[15] Section 211 (3)
of the Constitution provides that:
“
The
courts must apply customary law when that law is applicable, subject
to the Constitution and any legislation that specifically
deals with
customary law.”
[16] The Recognition
of Customary Marriages Act 120 of 1998 (the Act) is the legislation
envisaged by the Constitution and applicable
to this matter.
[17] The relevant
section is section 3 of the Act which provides thus:
“
3(1)
For a customary marriage entered into after the commencement of this
Act to be valid –
(a)
the prospective spouses
–
(i)
must be above the age
of 18 years, and
(ii)
must both consent to be
married to each other under customary law
(b)
the marriage must be
negotiated and entered into or celebrated in accordance with
customary law.”
[18] The following
definitions contained in the Act are very important for a better
understanding of the relevant disputed facts
in this matter:
“
‘
customary
law’ means the customs and usages traditionally observed among
the indigenous African peoples of South Africa and
which form part of
the culture of those peoples;
‘
customary
marriage’ means a marriage concluded in accordance with
customary law;
‘
lobolo’
means the property in cash or in kind, whether known as lobolo,
bogadi, bohali, xuma, lumalo, thaka, ikhazi, magadi,
emabheka or by
any other name, which a prospective husband or the head of his family
undertakes to give to the head of the prospective
wife’s family
in consideration of a customary marriage;”
[19] The first
respondent’s case has some very interesting if not peculiar
features. I will mention a few of those below
which I have
paraphrased from his answering affidavit:
(a) In January 2015
the deceased was named Avuyile as her marital name and the
tsiki
ritual was performed to fulfil the custom. He does not say
which custom was being fulfilled nor does he claim that members
of
the deceased’s family were there.
(b) He has annexed a
bank statement as annexure “BM1” and draws attention to
only two transaction of R5 000.00 each
made on the 4 March 2016.
He then says this sum of “
R10 000.00 on 4
th
March 2016 which was to be to the deceased family as agreed and the
balance was to cover travelling costs
”. He then says
on 5 March 2016, one day after the withdrawal of this amount they
went to the deceased’s family
home where they paid the balance
of R8 000.00.
(c) It must be
remembered that in terms of applicants’ annexure “ND4”
whose contents first respondent admits his
family was to be advised
of the total
lobola
or
ikhazi
cows required by the
deceased family. The sum of R8 000.00 was never understood to
be the balance on the payment of which
there would be arrangements
for the celebration of the customary marriage; certainly not in terms
of “ND4”.
(d) Other than the
fact that the visit to the deceased’s family is denied by the
applicants, the only proof of it having taken
place on the 05
th
March 2016 is the withdrawal in Flagstaff of the sum of R10 000.00 on
the 4
th
March 2016. The other withdrawals on the
same day in the sum of R1 900.00 are not explained.
(e) No minutes are
produced by the first respondent of the meeting at the deceased’s
family home on 5 March 2016 reflecting
the alleged payment of R 8
000.00. He explains that on that day minutes were taken and
“
our copy of the minutes could not be located as the person
that held possession of the minutes has since passed on, it being my
late uncle referred to in the preceding paragraphs
.”
(f) There is no
affidavit confirming this meeting from anybody from the first
respondent’s family who would have been part
of the
delegation. This is not explained at all by the first
respondent.
(g) He then says
that following the payment of R8 000.00 on 5 March 2016 the deceased
family “
brought and handed over the deceased
.”
He refers to the video footage in which his counsel Mr Matotie,
submitted during the hearing of the matter, could
not be useful
because it is short, has no speeches in which anybody says what the
purpose of the gathering was. I pause here
to highlight that
applicants deny that this meeting on the 2 April 2016 or the handing
over of the bride ever took place or even
that they were at first
respondent’s home on that day and for that purpose.
(h) In the answering
affidavit of the first respondent no mention is made of a Xolani
Mgoduka. However, and very strangely
Xolani Mgoduka deposed to
a very short confirmatory affidavit in which he says:
“
3.
I have read and understand the contents of the answering affidavit
deposed to by the first respondent Babalo Mgoduka. I
confirm
the contents therein in so far as reference is made to me. I
further confirm that I was one of the members of the
delegation that
partook in the lobola negotiations between the deceased’s
family and that of the first respondent on behalf
of the first
respondent. I further confirm that there was a marriage between
the deceased and the first respondent.”
[20] Firstly, first
respondent does not make any reference at all to Xolani Mgoduka in
his answering affidavit. Secondly,
the fact that lobola
negotiations between the two families took place was never disputed
by the applicants. Thirdly, Xolani
Mgoduka does not indicate
the basis of his conclusion that there was a marriage between the
deceased and the first respondent.
Fourthly, he does not deal
with two very crucial points, the alleged visit to the deceased
family on the 05 March 2016 and the
alleged visit by the deceased’s
family to first respondent’s family on 02 April 2016.
These visits are both denied
as having taken place at all by the
applicants, certainly not for that purpose.
[21] I have an
uncomfortable feeling that the confirmatory affidavit by Xolani
Mgoduka was a belated attempt and an afterthought
designed to mislead
the court and I do not say so lightly. During the hearing I
also got the impression that Mr Matotie did
not know about it until I
referred to it and he then started referring to it in support of the
first respondent’s case.
On the face of it, it appears to
have been printed from a different printer and probably typed by a
different person to the one
who typed the answering affidavit if one
has regard to things like font and spacing. I sincerely hope
that I am wrong in
this regard.
[22]
Ms Mxotwa, counsel for the applicants filed heads of argument in
which, among other things, she points out that the parties
have not
requested that the matter or any of the issues should be referred for
trial or oral evidence. She submits that the
court must resolve
any factual disputes on the principles of
Pascon-Evans
.
[1]
I agree.
[23] In any event I
am not convinced that first respondent has raised a real, genuine
dispute of fact as would require the court
in the exercise of its
discretion in the interest of justice to refer this matter for the
hearing of oral evidence on any issue.
What the first
respondent has done is to make bare denials punctuated with
unsubstantiated factual allegations that do not even
fit together
with the picture he seeks to paint.
[24] In
Wightman
t/a JW Constitution v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA
371
(SCA) at 375 para 13 Heher JA had this to say:
“
A
real, genuine and
bona
fide
dispute of
fact can exist only where the court is satisfied that the party who
purports to raise the dispute has in his affidavit
seriously and
unambiguously addressed the fact said to be disputed. There
will of course be instances where a bare denial
meets the requirement
because there is no other way open to the disputing party and nothing
more can therefore be expected of him.
But even that may not be
sufficient if the fact averred lies purely within the knowledge of
the averring party and no basis is
laid for disputing the veracity or
accuracy of the averment. When facts averred are such that the
disputing party must necessarily
possess knowledge of them and be
able to provide an answer (or countervailing evidence) if they be not
true or accurate but, instead
of doing so, rests his case on a bare
or ambiguous denial the court will generally have difficulty in
finding that the test is
satisfied. I say ‘generally’
because factual averments seldom stand apart from a broader matrix of
circumstances
all of which needs to be borne in mind when arriving at
a decision. A litigant may not necessarily recognize or
understand
the nuances of a bare or general denial as against a real
attempt to grapple with all relevant factual allegations made by the
other party. But when he signs the answering affidavit, he
commits himself to its contents, inadequate as they may be, and
will
only in exceptional circumstances be permitted to disavow them.
There is thus a serious duty imposed upon a legal adviser
who settles
an answering affidavit to ascertain and engage with facts which his
client disputes and to reflect such disputes fully
and accurately in
the answering affidavit. If that does not happen it should come
as no surprise that the court takes a robust
view of the matter.”
[25] I have come to
the conclusion that on the facts of this matter, the first
respondent’s family or emissaries did not return
to the
deceased family to pay the balance of R8 000.00. Even if they
had, it would not amount to their entitlement to the
bride without
more. Annexure “ND4” makes it clear that once the
balance is paid and the threshold of six cows
is reached only then
would first respondent’s emissaries be told the total number of
cows required by deceased’s family.
[26] There is no
evidence that the visit by the applicants’ family members to
first respondent’s home was an entering
into or celebration of
a marriage in accordance with customary law as required by section 3
of the Act. In fact no attempt
has been made by the first
respondent to explain what actually happened on the 2 April 2016
beyond merely alleging that deceased’s
family members came and
handed over the deceased. He does not say who was there on
either side. His averments in this
regard are couched in
generalities that are unhelpful to challenge applicants’
submission that handing over or celebration
of the marriage did not
happen.
[27] This is
surprising considering the importance of the handing over or
celebration of the marriage – about which both parties
agree.
In
Moropane v Southon
(755/12)
[2014] ZASCA 76
(29 May
2014) para 40 Bosielo JA, writing for the full court, had this to
say:
“
Importantly,
the two experts agreed that the handing over of the
makoti
to
her in-laws is
the most crucial part of a customary marriage. This is so as it
is through this symbolic customary practice
that the
makoti
is finally welcomed and integrated into the groom’s family
which henceforth becomes her new family.”
[28] Mr Matotie made
a submission that if I find against the first respondent with regard
to the existence of the customary marriage
I should still find in
favour of the first respondent with regard to the burial rights on
the basis that he is the father and natural
guardian of the minor
children born of the relationship between the deceased and the first
respondent. He based his submission
in this regard on section
21 (1) (b)(i) of the Children’s Act 38 of 2005 which provides
as follows:
“
21
(1) The biological father of a child who does not have parental
responsibilities and rights in respect of the child in terms
of
section 20, acquires full parental responsibilities and rights in
respect of the child –
(a)…
(b)
If he, regardless of whether he has lived or is living with the
mother –
(i)
consents to be identified or successfully applies in terms of section
26 to be identified as the child’s father or pays
damages in
terms of customary law.”
[29] On this basis,
so the submission went, in his capacity as the father and natural
guardian of the deceased’s minor children
with full parental
responsibilities and rights he is entitled to make decisions on
behalf of the minor children and to decide on
burial arrangements of
their mother. In my view to use the Children’s Act and
more specifically its provisions regarding
parental responsibilities
and rights is an impermissible and unjustifiable stretching of this
Act to resolve burial disputes for
which it was never intended if
regard is had to the purposes of this Act and its preamble.
[30] The further
submission was made on behalf of the first respondent that in cases
where the deceased died intestate, the heirs
to the deceased’s
estate are the ones who are entitled to decide on burial
arrangements. The court was told that in
this regard the law is
settled as there is a long line of cases even in this Division.
As I understood it the submission
is that the minor children are the
heirs to the estate and their father has the right to decide on their
behalf including deciding
on burial rights in respect of their late
mother.
[31] Besides the
fact that this issue was not pertinently raised in the papers, it is
in my view based on some decided cases that
unfortunately wrongly
decided all burial disputes with the prism of common law, which has
been a common feature of our jurisprudence
for a long time.
[32] I was referred
to the case of
Mankahla v Matiwane
1989 (2) SA 920
(CkGD) at
924 A-F in which Heath J, as he then was, summarized what he called
principles on burial rights in the following terms:
“
In
my view the principles involved can be summarized as follows:
(a)
If someone is appointed
in a will by the deceased then that person is entitled and obliged to
attend to his burial and that person
is entitled to give effect to
his wishes.
(b)
The deceased person can
appoint somebody to attend to his burial in his will or in any other
document or verbally formally or informally,
and in all these
instances effect should be given thereto in so far as it is otherwise
legally possible and permissible.
(c)
A deceased can in the
third instance, die intestate, but can appoint someone to attend to
his burial in a document or verbally.
(d)
In the absence of a
testamentary direction the duty of and the corresponding right to see
to the burial of the deceased is that
of the heirs. The heirs
appointed as heirs in the will of a deceased.
(e)
The afore-mentioned
principle that heirs (appointed as heirs), in the absence of any
provision in the will as to burial of the deceased,
are entitled and
obliged to attend to the burial of the deceased applies in my view
similarly and equally to intestate heirs of
a deceased. That
would mean that, in the absence of any indication by a deceased as to
his burial arrangements, the intestate
heirs would be in the same
position as testate heirs. I can see no reason why the position
should be different in the case
of intestate heirs.
(f)
It follows that persons
obliged and entitled to see to the burial arrangements are also
entitled to arrange where and when the deceased
is to be buried.”
[33] The first point
to be made about what the court said in
Mankahla
is that it
based its reasoning purely on common law. Secondly, the case
itself predates the Constitution and therefore the
constitutional
dispensation. Therefore, in my view, this case is irrelevant
for cases based on customary law or where customary
law is
applicable. Thirdly, even though
Mankahla
predates the
Constitution, customary law predates common law. There was
therefore no basis for making general principles
applicable to all
cases on burial rights without answering a very important question
whether on the facts of a particular
case customary law was
applicable or not.
[34] Therefore, all
cases that would have been decided after
Mankahla
whether they
specifically followed
Mankahla
or not without determining the
applicability or otherwise of customary law were decided on a wrong
premise. This would apply
in my view to even cases that were
decided during the constitutional dispensation.
[35] Even without a
specific reference to common law or Roman Dutch Law it has always
been wrong in my view, to decide a case without
consideration first
been given on whether on the facts of the case customary law is
applicable or not. I venture to say that
under the
constitutional dispensation it could amount to the impermissible
disregard of the Constitution and therefore a promotion
of common law
at the expense of customary law, even if that is done unwittingly.
[36] The other
unfortunate result of the well documented dominance of common law
over customary law has been the indiscriminate
conflation of burial
rights with rights of inheritance. These do not always go
together, certainly not under customary law
and African traditional
belief systems which sometimes include issues of African traditional
religious practice. It is this
dominance that must be guarded
against as not doing so will be at the risk of not complying with the
clear provisions of the Constitution
on customary law.
[37] In the result,
applicants must succeed in their application as on the papers it is
clear that the deceased was never handed
over to respondent’s
family as their
makoti
and therefore the customary marriage
was never celebrated. Therefore the deceased and the first
respondent were not married
according to customary law at the time of
her death.
[38] In the result
the following orders will issue:
1. It is ordered
that the first respondent and/or any person acting in concert with
him be and are hereby interdicted and restrained
from burying the
remains of the deceased Phezisa Dalasile.
2. It is ordered
that the deceased shall be buried at her maiden home at Bokleni
Administrative Area, Engcobo.
3. The second
respondent is ordered to release the body of the deceased to the
applicants.
4. The first
respondent is ordered to pay costs of this application including
costs reserved on 26 September 2018.
M.S. JOLWANA
JUDGE OF THE HIGH
COURT
Appearances
Counsel for the
Applicants: N. MXOTWA
Instructed by:
MSWATIE MGEDEZI ATTORNEYS
MTHATHA
Counsel for the 1
st
Respondent: L. MATOTIE
Instructed by: Y.
MAKALIMA INC. ATTORNEYS
MTHATHA
Heard on: 27
September 2018
Delivered on: 02
October 2018
[1]
Plascon Evans Paints LTD v Van Riebeek Paints
(PTY) LTD
[1984] ZASCA 51
;
1984 (3) SA 623
Act 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 the 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
deponents 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 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.