About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2017
>>
[2017] ZAFSHC 57
|
|
C v P (1009/2016) [2017] ZAFSHC 57 (6 April 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE
DIVISION,BLOEMFONTEIN
Case
number: 1009/2016
In
the matter between:
R.
C.
Plaintiff
and
M.
S.
P.
Defendant
HEARD
ON:
13, 14 December 2016, 18,19
and 20 January 2017
JUDGMENT
BY:
MOKGOBO, AJ
DELIVERED
ON:
6 APRIL 2017
INTRODUCTION
[1]
Plaintiff instituted a divorce action against the defendant. In terms
of the particulars of claim she sought the following relief:
(i)
Decree of divorce
(ii)
Full parental responsibilities and rights in respect of the minor be
awarded to both parties
(iii)
An order directing the defendant to pay maintenance in respect of the
plaintiff and the minor child and
other ancillary relief.
[2]
The defendant opposed the divorce action on the basis that no
marriage existed between the parties. His opposition is grounded
on
the fact that the plaintiff was not formally handed over to his
people in terms of the customary law, nor do the circumstances
warrant a tacit handing over of the plaintiff.
[3]
Shortly, prior the commencement of the trial, the parties reached an
agreement that the issue relating to the existence or otherwise
of
the customary marriage be determined separately from the rest of the
prayers encapsulated in the particulars of claim. In terms
of the
agreement reached between the parties, the agreement was made an
order of Court in terms of Rule 33(4) of the Uniform Rules
of Court.
I was also requested by Adv. Van Aswegen that in the event I make a
decision favourable to the applicant, I should make
an order with
regard to costs.
[4]
I raised the issue whether customary law applies in this matter since
the plaintiff is coloured. Both Counsel, ably and eloquently
submitted that the Recognition of Customary Act, Act 120 of 1998 does
not preclude such marriages and further the decision of the
plaintiff
to follow the Tswana custom was informed by her choice. I am grateful
to them for their submissions on this point. I
am satisfied
that the Recognition of Customary Marriages Act and in particular,
the Tswana customary law apply in this matter.
B:
COMMON CAUSE FACTS
[5]
It is common cause that the plaintiff and the defendant were in a
relationship since 24 June 2011. It is further common cause
that on
[….] 2012, a child named E. L. was born out of the
relationship between the plaintiff and the defendant. The name
L.
comes from the defendant's family and the name E. comes from the
plaintiff.
[6]
On 3 May 2014 the plaintiffs and defendant's families met at the
plaintiff's home in Bloemfontein. An amount of Twenty thousand
(R20
000) and a bottle of Chivaz Regal Whisky was handed over to
plaintiff's mother. Two of the members representing the respective
families signed a handwritten document (Exhibit D) which reads as
follows:
This
is to certify that
C.’s
family received lobola from P.'s family on this day of 03 May 2014
Amount=
R20
000
[7]
It is further common cause that on 3 May 2014 and thereafter no
festivities took place at the plaintiffs or
defendants parental home, save for the food that was prepared
and served by the plaintiff's mother.
C:
ISSUES
[8]
The only issue for determination by this Court is whether the parties
were married according to the Customary Law.
D:
SUMMARY
OF EVIDENCE
E:
PLAINTIFF'S CASE
[9]
Ms R. C., the plaintiff, testified that she is coloured and thirty
five (35) years old. The defendant showed some interest,
things
happened quickly and they stayed together from 2011 until 11 October
2015. Shortly after the birth of the child they started
discussions
about marriage. The defendant is Tswana and according to his
tradition, the two families should meet to negotiate Lobola.
On the
defendant's advice, their marriage should firstly be a customary
marriage and thereafter they will enter into a white wedding.
She
accepted and respected the defendant's tradition and agreed to the
arrangements.
[10]
Around 2014, the Defendant's family represented by Mrs P. and his
uncle came to her parental home to negotiate their intended
marriage.
The defendant's father is late. Her family was represented by her
mother, Mrs A. C., her brother, L. C. and uncle, Mr
T.. Her father is
also late. The feedback that she received from her mother is that
lobola was negotiated and the parties agreed
on the amount of twenty
thousand (R20 000).
[11]
On 3 May 2014, the defendant's family came to her place. The
defendant's family was represented by his brother, uncles and
their
wives. The women were dressed in traditional blue and white dresses
(shweshwe), white blankets over their shoulders and white
cover
material on their heads (doek). Her family was represented by her
mother and brother. She was also present during that meeting.
During
that meeting the amount of twenty thousand (R20 000) was handed over
to her family and a meal was served. She was handed
over to the
defendant's family on that day by her mother. Her direct words were:
"I did not ask a lot of money because I want
them to start a
life. I am handing over my daughter to you. Look well after her, I
don't want to see her getting hungry" Thereafter
the meals were
served.
[12]
From that day she regarded herself as the defendant's wife and was
treated and regarded as such by the defendant's family.
Her belief is
informed by the fact that prior 3 May 2014, when they visited the
defendant's family in the North- West they were
accommodated in
separate rooms. However, after 3 May 2014 they were accommodated in a
common room with the Defendant. Mrs P., the
defendant's mother
introduced her as
(mogatsa ga
P.
), meaning the
defendant's wife.
[13]
During cross-examination she admitted that in her application for a
protection order she referred to the defendant as her boyfriend.
She
explained that although she was subjectively convinced that she was
the defendant's wife was not sure about the legal effect
of a
customary marriage. On a subsequent question as to why they delayed
the white wedding until
September 2015,
she explained that they planned to delay their civil marriage
in order to save and their plans had
the blessings of the defendant's
mother. She was convinced that to best of her knowledge a customary
marriage was concluded
and counselling would have taken place
after the civil marriage.
[14]
Mrs G. C. testified that she is the biological mother of the
plaintiff. Her husband passed on long time ago. She is Sotho and
her
daughter is Coloured. She knows the defendant and had stayed with her
daughter for three (3) years. She further testified that
Mrs P., the
defendant's mother called her and told her that she is would be
becoming to her place to negotiate the
marriage for the
children. Subsequent their telephonic discussion, on a Saturday, Mrs
P. accompanied by the defendant's uncle arrived
at her place and they
negotiated lobola. They agreed on an amount of twenty thousand (R20
000).
[15]
On 3 May 2014, the defendant's family came to her place to pay
lobola. The defendant's family was represented by his brother-,
his
aunt and other people unknown to her. The ladies were dressed in
shweshwes with shawls around their shoulders and white doeks
on their
heads. They told her that they were sent by Mrs P. to bring the
lobola. They counted the money and it was correct. After
the
money was handed over to her, proof of
payment prepared by the defendant's
brother was signed by two members
from each family (See exhibit 0). She further testified that she
handed over her daughter to
the defendant's family by uttering the
following words:
"Here
is
my daughter, I am handing her
over to
you. I
don't want to see
her coming home naked and having scratches."
A meal was served and thereafter the defendant's representatives
left.
[16]
She further testified that she was satisfied that her daughter was
accepted and loved by Mrs P.. She accepted the defendant
as her son
and considered her daughter married by the defendant.
[17]
She was subjected to a lengthy cross-examination however, her version
remained unaffected. She was emphatic that her daughter
was married
and the twenty thousand she received on 3 May 2014 was for payment of
lobola. Her version in this regard is corroborated
by objective
facts. (See exhibit "A" paragraphs 4.3 and 4.5,"D"
and paragraph 2.3 of the defendant's plea page
21 of the paginated
papers). I have to doubt her version.
[18]
Mr B. L. C. testified that the plaintiff is his sister and he was
present at both meetings. During the first meeting lobola
was
negotiated and his mother said that it was not necessary for damages
because the defendant is marrying her daughter. Few weeks
after the
first meeting, the lobola was paid and the plaintiff was handed over
by his mother to the defendant's family. His version
is substantially
corroborated by his mother's and the plaintiff.
[19]
The plaintiff then closed her case.
F:
DEFENDANT'S CASE
[20]
Mr M. S. P. testified that after the birth of the child, the
plaintiff's mother chased her and the child out of her house and
he
accommodated them for five weeks and he took them back to her
parental home. He denies that plaintiff ever stayed permanently
with
him. He further testified that after 3 May 2014, the plaintiff stayed
less regularly with him. One day when they took a stroll,
the
plaintiff told him that if nothing is going to happen regarding their
marriage before the end of 2014 she will move on with
her life.
During December 2013 he told his mother that they should pay lobola
for the plaintiff. He did not have the money, but
assured his mother
that he will have the money in March. By the end of March he had the
money and he transferred an amount of R20
000 into her mother's
account and told her that they can start negotiating for lobola.
[21]
On 3 May 2014 his family met the plaintiffs family to start the
lobola negotiations. The negotiations did not take place because
there were no delegates from the plaintiff's family and on the
request of the plaintiff's mother negotiations were postponed to
a
date to be given to his family by the plaintiff's family. It is his
custom that lobola (the cattle) cannot go back and the R20
000,
representing the cattle and the Whisky representing the whip, were
left with the plaintiff s mother. To date his family was
never
contacted for lobola negotiations. Since lobola was not negotiated or
paid and the fact that plaintiff was not handed over
to his family,
no valid customary marriage was concluded. In any event he had no
intention to enter into a customary union, he
wanted a civil union.
He or his family never regarded the plaintiff as his wife. For his
view, he relies heavily on exhibits A
and in particular the parental
responsibilities and rights of unmarried fathers given to him and the
fact that on 14 March 2016
at the Domestic Violence Court the
plaintiff said under oath that he is her ex boyfriend.
[21.1]
His response was that those were preliminary stages. He was further
asked to explain why did he say in subparagraph 2.3 in
his plea that
his delegates did pay to the plaintiff's mother an amount of R20 000
which included damages in terms of the customary
law for the
pre-marital conception of the child and advance payment towards
lobola and his version under oath that negotiations
did not take
place and no lobola was paid. His response was that subparagraph 2.3
should be understood in the context that negotiations
will be on
lobola and damages. When asked to explain the contents of exhibit D
in which it is recorded that the plaintiff's family
received lobola
from P.'s family in the amount of R20 000 and signed by both
families. His response was that the document signified
the agenda of
the day. When asked with regard to exhibit A paragraph 4.3 and 4.5
where he and the plaintiff stated that they were
staying in a
permanent life partnership during conception and birth of the child
and that they are married in accordance with customary
law. He could
not provide any convincing reason save to say that the information is
incorrect.
[22]
Ms J. S. M. testified that both the plaintiff and the defendant are
known to her. The defendant is her sister's child and the
plaintiff
has a child with the defendant. On 3 May 2014 she was part of the
delegate representing the defendant's family. She is
adamant that
meeting was the first and the only meeting that took place between
the two families. Their mandate was to negotiate
lobola with the view
of concluding a white wedding and not a customary marriage. An amount
of R20 000 representing (cattle) and
a bottle of Whisky, representing
the whip, traditionally used to drive the cattle were handed over to
them to negotiate lobola.
All the women who were part of the delegate
wore their traditional regalia and will ululate after the successful
conclusion of
the lobola negotiations. However, the lobola
negotiations did not take place because the plaintiff's mother told
them that her
delegates did not come.
[22.1]
According to the Tswana custom, cattle cannot go back home thus the
R20 000 and the Whisky were left with the plaintiff's
mother. As
proof that the plaintiff's mother received the money, a document
prepared by the defendant's brother was signed by two
delegates from
each family. (See exhibit D). It was further her testimony that the
plaintiff's mother will contact them in future
to resume the
negotiations. To date the plaintiff's mother has not contacted them
and they are still waiting to be contacted.
[23]
It was further her testimony that since lobola was not negotiated or
paid that the plaintiff was never handed over to them
and there was
no white wedding, the plaintiff
is not
married to the defendant.
The plaintiff will only be accepted as the defendant's wife upon
conclusion of a white
wedding and production of a marriage
certificate.
[
24]
During cross-examination she admitted that the amount of R20 000 will
only attain the status of lobola after the negotiations.
On a follow
up question as to why did they leave the money and the Whisky because
negotiations had not taken place. Her response
was that
the cattle cannot go back
home. When
further confronted about the contents of
exhibit D, her response was that lobola was the agenda of the day and
for Jack of
better words the document was couched in that fashion. On
the question of Adv Van Aswegen that if she was not part of the first
meeting how could she say such meeting never took place her response
was that such meeting never took place.
[25]
Mr K. P. T. P. testified that he is a medical doctor by profession
and practised as a general practitioner in Rustenburg. The
defendant
is his younger brother. The plaintiff is known to him as his
brother's girlfriend. Around December 2013, the Defendant
told them
that he wants to have a white wedding. A delegation was chosen to
negotiate lobola. His mother and the plaintiff's mother
agreed that
the two families should meet on 3 May 2014 for the lobola
negotiations.
[25.1]
On 3 May 2014, accompanied by his uncles and aunts they
arrived at the plaintiff's house. The plaintiff's mother served
them
with tea where after she left them and went to the kitchen to prepare
some food for them. After a while a meal was served
and the
plaintiff's mother told them that her delegates were no longer
coming. The lobola negotiations did not take place.
[25.2]
The money and the whiskey they had in their possession were left with
the plaintiff's mother because the elders had told
them that they
cannot take the cattle back home. In his own handwriting he prepared
exhibit D as proof of receipt of the money
by the plaintiff's family.
The plaintiff's mother said she will contact them to resume
negotiations. Since 3 May 2014 to date,
they have not heard a word
from Mrs C.. According to his knowledge no customary marriage was
concluded between the plaintiff and
the defendant.
[25.3]
He was confronted with the contents of exhibit D, a document he
compiled in his own handwriting. He was at pains to explain
the
discrepancy between his testimonial version that no lobola was paid
and the contents of exhibit D, that the C. family received
lobola
from the defendant's family, save to, say that lobola was the agenda
of the day. He conceded that he is not clued up with
custom but was
emphatic that no customary marriage was concluded between the
Plaintiff and the Defendant.
[26]
Mrs M. T. P. testified that she is an educator by profession and the
mother of the defendant. Around December 2013 she was
approached by
the defendant who told her that he wants to marry. He will have
the necessary money for lobola around
March 2014. She initiated
the meeting with the Plaintiffs mother and they agreed to meet on 3
May 2014 for the lobola negotiations.
She initiated a meeting with
the defendant's family and in that meeting the delegates were chosen.
She was not part of the delegate.
[26.1]
The R20 000 she received from the defendant was handed over to the
delegates to negotiate lobola with the plaintiffs family
on 3 May
2014. Her delegates reported to her that things did no go according
to plan. Since then she has not heard a word from
the plaintiff s
family. It was further her testimony that since the Plaintiff and the
defendant had not appeared before a Pastor
or Home Affairs to
conclude a marriage, there is no marriage. She vehemently denies that
she has ever introduced the plaintiff
as the defendant's wife or has
allowed that they be accommodated in a common room whenever they
visited North-West after 3 May
2014.
[26.2]
The following emerged during her cross-examination.
Question:
Did your son tell you that it will be a customary marriage or a civil
union?
Answer:
He left everything in my hands. He is my son. He was a bit shy to
tell me that he is going to pay lobola.
Question:
You must decide whether it is a customary or civil union.
Answer:
No, after the negotiations, he will come to me and tell me how they
are intending to marry. After the conclusion of the
civil marriage
she will wear certain clothes.
[27]
The defendant then closed his case.
G:
PLAINTIFF'S
SUBMISSIONS
[28]
Adv. Van Aswegen on behalf of the plaintiff argued that all the
essentialia for a valid customary marriage were observed and
therefore a valid customary marriage between the plaintiff and the
Defendant was concluded on 3 May 2014. He further argued that
subsequent festivities to be performed are merely ceremonial gestures
and non-observance thereof does not invalidate the marriage.
For his
submissions, reference was made to a number of authorities, however,
much reliance was put on the unreported judgment of
Vilakazi AJ,
MAMUTEANE HLOKA'MONI
MMUTLE v
DIBUSENG MARY
THINDA AND DEPARTMENT OF HOME
AFFAIRS
(TPD) Case No: 20949/07: Date 23 July 2008 and Bekker
in
Seymour,s
Customary Law in
South Africa.
H:
DEFENDANT'S SUBMISSIONS
[29]
Mr Loubser argued that the marriage was never negotiated or
celebrated and the plaintiff was not formally handed over to the
defendant's family. He further argued that the plaintiff lacked the
required consent because of her limited knowledge of customary
law
and therefore a valid customary marriage was and could never have
been concluded. For his submissions he relied on the reasoning
of
Matlapeng AJ in
Motsoatsoa
v Roro
and Others
(2011]
2 All SA 324
(GSJ).
I:THE
LAW
[30]
The Recognition of Customary Marriages Act, Act No 120 of 1998
provides as follows: Requirements for validity of customary
marriages
3.
(1) For a customary marriage entered into after the commencement
of this Act
to
be
valid:
(a)
the
prospective
spouses-
(i)
must both be
above the age
of 18 years and
(ii)
must both consent to be married
to each other under
customary Jaw and
(b)
the
marriage
must
be negotiated
and
entered into
or
celebrated
in
accordance
with
customary raw.
[31]
In
Bhe
and
others
v
Magistrate,
Khayelitsha and
others
[2004] ZACC 17
;
2005 (1) BCLR 1
(CC) para 150 Ngcobo J declared as follows:
"There
are at least three ways in which indigenous law may be established.
In
the
first place,
a court
may
take
judicial notice
of
it.
This can
only
happen
where
it can
be
readily
be
ascertained with
sufficient certainty.
Section 1(1)
of the
Law of Evidence Amendment Act 45 of 1988
says so.
Where
it cannot be
readily ascertained,
expert evidence may be
adduced to establish it. Finally
a
court may consult text books and case law."
[32]
In
Kgapula v Maphai
1940 NAC (N&T) 108 (Hamanskraal), the
parties regarded their cohabitation as a valid customary marriage
although there had
been no marriage feast or formal handing over of
the woman by her father.
[33]
In
Msutu v
Road
Accident
Fund
[2011]
ZAGPPHC 232,Kubushi J said:
"It
is trite that where a woman is living with the man with the
knowledge of
the
family of the
bride
it
Is
regarded
as
having
been
handed
over"
[34]
In
Seymour's
Customary
Law
in
Southern
Africa
the author wrote:
"Thehanding
over
need
not be
a
formal
ceremony". (page 108).
"The
rendering of lobolo by the bridegroom's father or by the bridegroom
as
the
case
may be,
to the bride's guardian (or custodian} is the major essential
of
the customary
marriage.
Such
phrases as
'there can
be
no
customary
marriage if there are
no
cattle with the girl's guardian' are essentially correct
statements
of customary law. The number
of cattle is Immaterial so long as
some
have
been
delivered
and accepted
as
lobolo;
this Is so for
all tribes"
(pages 107
and 108).
[35]
In
Customary
Law
in
SouthAfrica,
[2004] T
W Bennett wrote:
"In
contrast, customary
law
was always
flexible
and pragmatic.
Strict
adherence
to ritual
formulae
was never
absolutely
essential
in close-knit,
rural communities, where certainty
was
neither a
necessity nor value.
So,
for
instance the ceremony to celebrate
a
man's second marriage would
normally
be
simplified;
similarly,
the
wedding
might
be
abbreviated
by
reason
of
poverty or the
need to
expedite
matters." (page194).
"If
the guardian
did
not
object
to
the
couple's
relationship
which had
to
be
deduced
from his accepting lobolo or from not suing for seduction damages
a marriage was presumed,
irrespective
of
where the matrimonial
home
happened to
be
or
how the parties
came
to
be
living together'' (
page
216)
J:
ANALYSIS
[36]
Section 3
(1) (a) of the Recognition of the Customary Marriages Act,
Act 120 of 1998 introduces express substantive validity requirements:
age and consent of both parties to the marriage. The Act further
recognises the bride and the groom as the most important
decision-makers
in their pending nuptials.
[37]
In the present case, it is common cause that both the plaintiff and
the defendant are above the age of eighteen (18) years.
With regard
to the requirement that both parties must consent to be married to
each other under customary law, in his closing address,
Mr Loubser
argued that plaintiff did not fully appreciate the legal status of a
customary marriage and therefore lacked the required
consent for the
conclusion of a valid customary marriage.
[38]
I disagree within and on the following grounds:
Firstly,
the undisputed evidence of the plaintiff is that she was well advised
and informed by the defendant that his tradition
dictates that they
should firstly marry according to custom and thereafter a civil union
will be concluded. As a gesture of respect
for his tradition, she
accepted the advice and agreed to be married according to the
customary law. Secondly, her conduct on 3
May 2014 by not objecting
to be handed over to the defendant's family, which is of course
disputed by the defendant, and
her continued stay with the defendant
until 11 October 2015, amply demonstrates her consent
and willingness
to be married in accordance
with the customary law. See also Exhibit
A paragraph
4.5. Her lack of knowledge with regard to the legal
status of a customary marriage, and the fact that there is nothing
suggesting
that she was wrongly advised, I am satisfied that her
consent is valid. The argument of Mr Loubser is with respect without
any
merit. I am satisfied that the requirements mentioned in section
3 (1) (a) (i) and (ii) of the Recognition of Customary Marriages
Act,
Act No 120 of 1998 have been complied with.
[39]
In addition to the above requirements, section 3 (1) (b) lays down
that:
"The
marriage
must
be negotiated and entered into or
celebrated in
accordance
with
customary
law".
[39.1]
Although lobola is not specifically mentioned in the Act, it is trite
that payment thereof either in full or part is one
of the essential
requirements that a marriage have been negotiated and entered into in
accordance with customary law. See
Seymour's
Customary
law
in South-Africa
supra.
[39.2]
The requirement set out in the above section is couched in broad
terms and poses some problems. Firstly, the problem is triggered
by
the fact that the specifics and contents of this requirement are not
mentioned and secondly, the customs and usages differ from
one
community to the other as a result of the ever changing needs of the
various communities. In order to determine the exact specifics
and
contents of section 3 (1) (b), it is incumbent upon a court to have
regard to the customary law as practised in the community,
also
referred to as the living indigenous law.
[40]
On this aspect, both the plaintiff and the defendant raised two
mutually destructive versions.
[41]
The plaintiff's case is that prior 3 May 2014 lobola was negotiated
between her and defendant's families. In that meeting her
family was
represented by her mother, uncle and brother and the defendant's
family was represented by the defendant's mother and
one of his
uncles. Both families agreed that lobola will be R20 000. Upon
conclusion of the negotiations, the defendant's mother
said she will
send her delegates to pay lobola. On 3 May 2014 the delegates from
the defendant's family arrived at her place and
lobola was paid. She
was handed over to the defendant's family by her mother. No
festivities took place. With the knowledge and
blessings of her
mother she continued to live with the defendant until 11 October
2015. Her version is substantially corroborated
by her mother,
brother, exhibits A and D.
[42]
On the other hand the defendant is adamant that prior to and on 3 May
2014 no lobola was negotiated or paid. It further his
version that
the contents of exhibit D is merely proof that the R20 000 was left
with Mrs C. for future negotiations as lobola
cannot go back home. It
is further his version that the plaintiff was not handed over to his
family. The required celebrations
were not observed and therefore no
marriage came into existence. The plaintiff only visited him and did
not stay with him permanently.
This version is corroborated by his
aunt, brother and his mother.
[43]
Upon a critical analysis of the respective versions, the plaintiff,
her mother and brother had impressed me as good witnesses.
Notwithstanding the lengthy and excruciating cross-examination their
respective versions remained unaffected. They corroborated
one
another in every material respect and further their versions are
corroborated by neutral facts. See in this regard exhit D
and para
2.3 of the defendant's plea which substantially support their version
that lobola was paid. The plaintiff's version that
after payment of
lobola a customary marriage was concluded and had lived with the
defendant is substantiated by exhibit A paras
4.3 and 4.5 wherein
both plaintiff and the defendant unequivocally stated that they
are married in accordance with the customary
law and are staying
together in a permanent life partnership. Exhibit A further supports
the plaintiff's version that she is the
defendant's wife and explains
why she was referred to as
mogatsa
ga
P..
In
view of the above, I have no justification to doubt the plaintiff's
and her witnesses' versions.
[44]
Unfortunately, same cannot be said about the defendant and his
witnesses. They are adamant that no negotiations took place
between
the two families, no lobola was paid and the plaintiff was not handed
over to the defendant's family and the accompanying
celebrations were
not observed.
[44.1]
It is true that the ceremonial celebrations were
not observed but I am at pains to accept the
defendant's version that
negotiations did not take place and lobola was not paid. My
difficulty with regard to this version is
grounded on the following:
[44.2]
Firstly the defendant, his aunt and brother were not part of the
meeting that preceded the meeting on 3 May 2014, but they
are
emphatic that there was no such a meeting. Their denial that there
was no such meeting is baseless and inadmissible hearsay.
[44.3]
Secondly, on the version of Ms M. the money will only attain the
status of lobola or cattle after negotiations. If her version
is
correct that negotiations did not take place and lobola was not paid,
it will then follow that the money has not attained the
status of
lobola yet, therefore nothing could have precluded them to take the
money back home. Strange enough they did not take
the money back home
instead they left the money and the whiskey with the plaintiff's
mother. Further her version and that of the
defendant's brother that
negotiations did not take place and lobola was not paid are at odds
with the defendant's plea wherein
he stated that the R20 000 his
delegates paid to plaintiff's mother included damages and advance
payment towards lobola.
[44.4]
Thirdly, the substantial and the exact amount they brought, supports
plaintiff's version that the defendant's delegates were
send by Mrs
P. not to negotiate but merely to deliver the amount of
lobola agreed in the meeting that preceded
the one on 3 May
2014.
[44.5]
Fourthly, the contents of exhibit D are clear and capable to no other
construction save that lobola was paid. The defendant's
version that
exhibit D signifies the agenda of the day is in my view, nothing else
but a fabrication and ought to be rejected.
[44.6]
Fifthly, the fact that the defendant's delegates has left a
substantial amount with plaintiff's mother and since May 2014
to
date, no attempt whatsoever, has been made by them to remind her of
the pending negotiations. Their inaction raises more questions
than
answers.
[44.7]
Finally, the belated assertion by the defendant that he never lived
with the plaintiff is in conflict with the contents of
exhibit A and
cannot be accepted as the truth.
[45]
In view, of the above, I am satisfied that the network of events
around the defendant's version, supports the plaintiff's version
that
lobola was indeed negotiated in the earlier meeting and paid on 3 May
2014, hence the handing over of the whiskey, that signified
the whip
to guard and drive the cattle.
[46]
I pause at this juncture to address the issue of handing over of the
bride. Defendant contends that the plaintiff was not handed
over to
his family and the required ceremonies were not observed. To support
his contention, Mr Loubser relies on the Motsoatsoa
judgment
mentioned above. In contrast, the plaintiff contends that she was
handed over to the defendant's family and with the knowledge
and
blessings of her mother she continued to live with the defendant. For
his contention, Adv Van Aswegen relies on the judgment,
Mamuteane
Hloka'moni
Mmutle
v Dibuseng Mary Thinda
and
Department of
Home
Affairs,
supra.
[47]
The facts of the above cases are briefly set out hereunder.
[47.1]
MOTSOATSOA CASE
On
1O August 2008 the deceased through his parents sent emissaries to
the
applicant's
parents to
inform them of their
wish to
enter
into negotiations for
Iobola. A
date of 4 October 2008 was agreed upon. On
that date and
following upon negotiations an amount of R18 000,
00 was
agreed
upon as lobola.
Of
this
amount
the
decease's
emissaries
handed
over
R5000,
00
to
the applicant's
emissaries
and
the balance
remaining
was
R13000,
00 unfortunately
the
deceased
died
on
21 July
2009
before
he
could
pay
the outstanding
balance. The
applicant's
guardian insisted
that
handing
over
of
the
bride
will
only
take
place
once
the
whole
lobula
as
agreed
has
been handed
over.
On
page 7 para 14 of his judgment, Matlapeng AJ said:
"The
reality
is
that
in
most
instances
the
customary
law
embodied
in
statutes,
academic writings and case
law does
not reflect the correct
and genuine customary
law"
On
page
11
para
20
with reference
to
T
W
Bennet,
Customary Law
in
South
Africa
18th
Edition
at
page
217,
he
said:
"Until the
bride
has
formally
an
officially
handed
over
to
the
groom's
people
there
can
be
no
valid"
[47.2]
MAMUTEANE HLOKA'MONIMMUTLE
“
The
deceased and the First Respondent had lived together as man and wife
since the 1990's in Mafikeng. On 28 March 1997, the parties
decided
to formalise their cohabitation. The deceased sent representatives to
the First Respondent's parental home in Botshabelo
to negotiate and
pay lobola for the First Respondent Lobola was agreed upon in the sum
of R 2300.00 of which an amount R1000.00
was thereupon paid leaving a
balance of R1300.00. A receipt for lobola was issued by the First
Respondent's father to the deceased
representatives. No arrangement
was made with regard to the payment of balance. After payment of
Lobola the deceased and First
Respondent returned to their home in
Mafikeng and continued to live together as husband and wife. On the
4th August 2000 the First
Respondent gave birth to their child.
During 2006 deceased and First Respondent sold their house in
Mafikeng and relocated to Callinan.In
January 2007 the First
Respondent had the customary union registered at the offices of the
Second Respondent in terms of the Recognition
of Customary Marriages
Act, 98 of 2000."
[48]
In the present case lobola was paid and was accepted by the
plaintiff's mother. Plaintiff was not accompanied and delivered
by
her family to the defendant's parental home instead with the
knowledge of her mother she continued to live with the defendant
at
his place. Mrs C. did not sue for seduction as she had resigned to
the fact that her daughter was married in accordance with
customary
law.
[49]
As much as there are some salutary customary law aspects raised and
addressed by Matlapeng AJ, in the
Motsoatsoa
judgment,
unfortunately, his facts are distinguishable from the facts at hand.
Firstly, in the
Motsotsoa
case part of lobola was paid and the
handing over of the bride was specifically delayed until such time
the outstanding lobola
is paid in full. In the present matter
although disputed by the defendant, the plaintiff's was handed over
to the defendant's representatives
after lobola was paid. With the
knowledge of her mother she lived with the defendant at his place.
Secondly, in the
Motsoatsoa
case it is not clear what the
customs and usages of the respective families were with regard to the
handing over and to what extent
they had evolved and developed. For
instance, in the Tswana custom the handing over had evolved
significantly from its original
version and it is practiced
differently in other communities. However, Matlapeng AJ, adopted a
one size fits all approach and concluded
that there was no handing
over. This approach, with respect, is in my view, quite rigid and in
conflict with the flexible and pragmatic
nature that customary law.
See in this regard
Mabuza
v
Mbatha
2003 (4) SA
218
(C) where Hlophe JP condoned the non performance of
ukumekeza,
a siSwati version of handing over of the bride. See
also
Fanti
v
Boto
and
Others
2008
(5) SA 405
(C), where Dlodlo J recognised the position of the mother
as head of the family in the absence of the father. Thirdly, in the
same
judgment, Matlapeng AJ, cautioned about the unreliability of the
works of academics, however, in the same judgment he relied on
the
works of the same academics to support his conclusion that there was
no handing over. See paragraph 14 of the judgment. In
view of the
above, I cannot follow the
Motsoatsoa
judgment on the facts of
the present case.
[49]
In the
Mamuteane Hloka'moni Mmutle v Dibuseng Mary
Thinda
and Department
of Home Affairs,
and the facts of the
present case, there are some significant parallels. Firstly, in both
cases negotiations were concluded and
the handing over of the bride
either constructive or informal is present. Secondly, in both cases
the Tswana customs and usages
are applicable. Therefore the judgment
of Vilakazi AJ has in my view, some persuasive force with regard to
the application of the
customary law in the present case.
[50]
In the
Mamuteane Hloka'moni Mmutle v Dibuseng Mary Thinda
and
Department of
Home Affairs supra,
both the deceased and
the first respondent had lived together before lobola was paid and
after lobola was paid in part they returned
to their home and
continued to live together as husband and wife without the first
respondent being handed over to the deceased
or his representatives.
On these facts, Vilakazi AJ, held that the handing over of the First
respondent to the deceased or his
representatives would have amounted
to a symbolic gesture and the absence of the formal handing over was
therefore a non event
with no legal consequences. See also
Customary Law in
South-Africa, 2004, T W
Bennett,
Kgapula v Maphai
1940 NAC (N&T) 108 (Hamanskraal) and
Seymour's
Customary
Law
in
Southern
Africa
supra.
[51]
In the present case, the version of Mrs C., substantially
corroborated by the plaintiff and her son, is that she handed over
the plaintiff to the defendant's representatives. I have no basis not
to accept this version. It is common cause that the plaintiff
was not
physically delivered to the defendant's parental home in North- West
and no ceremonial rituals were observed. However,
informed by the
above-cited authorities, it is quite evident that the handing over of
the bride need not be a formal ceremony.
In view of the fact that the
plaintiffs mother had accepted lobola and did not institute an action
for seduction, knowing that
the plaintiff lives with the defendant, I
am satisfied that the plaintiff was handed over to the defendant's
family, notwithstanding
the fact that the ceremonial rituals were not
observed.
[52]
If I am wrong and for whatever reason, it is accepted that there was
no handing over due to the fact that the plaintiff was
not formally
accompanied and delivered by her family to the defendant's parental
home, it would still be my finding that since
the plaintiff and the
defendant were living together after lobola was paid, "constructive
delivery" is present. The formal
ceremonial handing over under
these circumstances would, in my view, be a mere a ceremonial gesture
with no adverse consequences
on the validity of the customary
marriage. See in this regard,
Mamuteane Hloka'moni Mmutle v
Dibuseng Mary Thinda
and Department
of
Home
Affairs and Msutu v
Road Accident Fund
supra.
[53]
The defence version that there was no customary marriage between the
plaintiff and the defendant is in direct conflict with
the contents
of exhibit "A", wherein both the plaintiff and the
defendant, despite the non-observance of certain ceremonial
rituals,
lived together and regarded themselves as married by customary law.
On their own say so, the existence of a customary
marriage is
incontrovertible. See
Kgapula
v
Maphai
1940 NAC
(N&T) 108 (Hamanskraal), authoritatively followed in
Mamuteane
Hloka'moni
Mmutle
v
Dibuseng
Mary
Thinda
and
Department
of Home Affairs
supra.
[54]
The views of both Mrs M. and the defendant's mother, that they would
accept plaintiff as the defendant's wife only upon production
of a
marriage certificate issued by either Home Affairs or a Pastor, are
in my view, nothing else but a distortion of the customary
law. In
conclusion, I am satisfied that all the requirements of a valid
customary marriage have been complied with.
K:
COSTS
[55]
Adv. Van Aswegen argued that in the event I make a decision
favourable to the applicant, I should make an order with regard
to
costs. Mr Loubser conceded that the granting of such an order will be
fair under the circumstances.
[56]
In the result, Imake the following order:
(i)
A valid customary marriage was concluded
between the plaintiff and the defendant.
(ii)
The defendant to pay the costs.
________________________
M.C.
MOKGOBO, AJ
On
behalf of Plaintiff: Adv
Van Aswegen
Instructed by:
MclNTYRE VAN DER POST
ATIORNEYS
BLOEMFONTEIN
On
behalf of Defendant: Mr J H
Loubser
Instructed by:
WEBBERS ATIORNEYS
BLOEMFONTEIN