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[2017] ZAFSHC 123
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Modiko and Another v Sethabela and Others (4856/2016) [2017] ZAFSHC 123 (4 August 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case No:
4856/2016
In the
application between:
THABO JACKSON
MODIKO
1
st
Applicant
KOTSOANE
JOSEPH
MODIKO
2
nd
Applicant
and
MOHANUA ELISA
SETHABELA
1
st
Respondent
DIRECTOR
GENERAL: DEPARTMENT OF HOME AFFAIRS
2
nd
Respondent
MASTER OF THE
HIGH COURT, FREE STATE DIVISION
3
rd
Respondent
REGISTRAR OF
DEEDS: BLOEMFONTEIN, FREE STATE
4
th
Respondent
JUDGMENT
BY:
C REINDERS, J
DELIVERED
ON:
4 AUGUST 2017
[1]
This is an application which has at its core the validity of a
customary marriage. The first applicant, Mr Thabo Jackson Modiko
is
the uncle to the late Mr Moeketsi Philemon Modiko (“the
deceased”). Mr Kotsoane Joseph Modiko is cited as the second
applicant and is the brother of the first applicant. For ease of
distinction between the two Modiko uncles, reference to them would
be
made as Mr Thabo Modiko and Mr Kotsoane Modiko respectively. Ms
Mohanua Elisa Sethabela (“Ms Sethabela”) is the
first
respondent, with the second to fourth respondents as cited above. Mr
Thabo Modiko is the deponent to the applicants’
founding and
replying affidavits. It is clear from the papers that he is
effectively the party moving for the relief as stated
below in para
[2]. Mr Kotsoane Modiko denies being part of the application as the
second applicant. In opposing the application
it is evident that the
dispute is essentially between Mr Thabo Modiko and Ms Sethabela.
Accordingly reference would be made to
them as the applicant and the
respondent.
[2] In
its notice of motion Mr Modiko moves for an order in the following
terms:
“1. An order setting aside the purported customary marriage
entered into between the Late Moeketsi Philemon Modiko and the
First
Respondent on the 03
rd
August 2013 and declaring it to be
null and void
ab initio
;
2. An order removing the First Respondent as the Executor in the Late
Estate of Moeketsi Philemon Modiko;
3. An order appointing THABO JACKSON MODIKO as the executrix (sic) in
the Late Estate of MOEKETSI JACKSON MODIKO;
4. An order directing the First Respondent to hand over all the
assets of the Estate Late MOEKETSI PHILEMON MODIKO to Mr. THABO
JACKSON MODIKO within (03) days of the date of this court order;
5. Costs order against the First and Second Respondent.”
[3] In
as far as prayers 3 and 4 are concerned, the Master filed a report
and submitted that even if prayers 1 and 2 are granted,
prayers 3 and
4 cannot be granted as the power to so appoint an executor vests in
the Master in terms of
Section 18
of the
Administration of
Estates Act 66 of 1965
. I agree and will deal with the
remainder of the relief sought.
[4]
There are only three basic statutory requirements for the validity of
a customary marriage in terms of
The
Recognition of Customary
Marriages Act 120 of 1998
.
S 3(1)
of the Act provides that:
“
For a customary marriage entered into after the
commencement of the Act to be valid –
(a)
the
prospective spouses-
(i)
must both be
above the age of 18 years
(ii)
must both
consent to be married to each other under customary law; and
(b)
the
marriage must be negotiated and entered into or celebrated in
accordance with customary law.”
[5]
From the papers it is evident that the third requirement, namely the
negotiation and celebration of the marriage in accordance
with
customary law, is the requirement in dispute.
[6]
The legislature did not define what constitutes such negotiations and
celebrations in terms of the customary law. In
Moropane v
Southon
(755/12)
[2014] ZASCA 76
(29 May 2014) Bosielo
J articulated as follow at para [35]:
“
This is understandable as customary law is as
diverse as the number of ethnic groups we have in this beautiful
country. Although
Africans in general share the majority of the
customs, rituals and cultures, there are some subtle differences
which, for example,
pertain exclusively to the Ngunis, Basotho,
Bapedi, VhaVenda and the Vatsonga. This is due to the pleuristic
nature of African
societies.”
And at
para [37]:
“
The most salutary approach to ascertaining the
real meaning of this requirement is by examining the current cultural
practises and
customary law of that particular ethnic group.”
[6]
The relief sought in this application is final in nature. I take into
account the facts averred by the applicant which is not
disputed by
respondent as well as the facts stated by the respondent.
See:
Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E - 635C.
[5] Ms
Sethabela states that she was customarily married to her husband, the
deceased. According to her lobola negotiations started
on 3 Aug 2013.
A bride price of R 15 000,00 was agreed upon between the
families of the bridegroom (the Modikos) and the bride
(the
Sethabelas). The first instalment was paid on that day. On the 30
th
November 2013 a further instalment of R 5 000,00 was paid, and
almost a year later on 15 November 2014 all the customary rituals
were observed and completed. She was dressed in new clothes by the
Modiko family, sheep were slaughtered, she received a new name,
Makatleho Modiko and was welcomed into the Modiko family. These
allegations are confirmed by affidavits of members of both families
who were witnesses to the celebrations, to witt Ms Sethabela’s
father Petrus Tefo Sethabela and her mother Joalane Miriam
Sethabela,
and Mr Kotsoane Modiko and Ms Agnes Thembekile Modiko from the
deceased’s family.
[6] Mr
Thabo Modiko, except for the negotiations for lobola and part payment
thereof, deny the allegations in respect of the rituals
that were
concluded
in toto
. He avers that as uncle of the deceased and
being the main negotiator in lobola negotiations he can confirm that
no customary rituals
and practises as alleged took place. The
applicant bears the onus herein to proof his allegations. According
to him, “in
his custom”, the following requirements had
to be met: delivery of the bride to the parental home of the groom,
exchange
of gifts between the families, the re-naming of the bride
and the slaughtering of sheep. He denies that Ms Sethlabela was
delivered to
his
home as the customary wife of the deceased or
that any of the other customary rituals took place. Nowhere does he
state to which
particular ethnic group he belongs and what the
particular rituals of a customary marriage
in casu
should
accordingly be. No assistance by way of expert evidence was rendered
to me to determine whether the marriage was negotiated,
concluded and
celebrated according to his particular custom.
See:
Moropane v Southon
supra
at para [39].
But
even if he did, it would have made no difference to the conclusions I
reach herein.
[7]
Although I take notice of Mr Modiko’s denial of the allegations
made by Ms Sethabela, I am to apply the principles set
out in the
Plascon-Evans rule. I would only be entitled to reject the
respondent’s version if I can safely find that her
version is
to be rejected as being so far fetched and untenable that it stands
to be rejected on that basis.
See:
National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA)
at para
[26]
.
[8]
There is nothing in Ms Sethlabela’s version entitling me to
find same as being far fetched or untenable. In fact (as mentioned)
she is supported in her version by affidavits of members from both
families. Even if I were to approach the application in a robust
manner as I was encouraged to do by both counsel appearing before me,
it would seem that the probabilities favour the respondent’s
version. In this regard it is noteworthy that at the time of the
death of the deceased Ms Sethabela and the deceased were
not
only living together in the same communal home at House 2669,
Gelukwaarts, Maokeng, Kroonstad, but were raising their child
Katleho
Modiko.
[9]
The applicant confirms the initial negotiations between the parties
for purposes of concluding a customary marriage. He at least
confirms
payment of two instalments of the bride price. Applying a robust
approach I would have been satisfied with the respondent’s
version that the customary marriage was indeed concluded between her
and the deceased.
[10]
The complaint of the applicant that all the lobola have not been paid
and that therefore no customary marriage could have been
concluded,
is ill-founded. Payment of the entire lobola does not seem to be an
insurmountable hurdle for the conclusion that a
customary marriage
was properly concluded.
See:
Southan v Moropane
(14295/100)[2012]ZAGPHJHC 146 (18
July 2012).
[12]
Mr Mokhele on behalf of the applicant insisted that a dispute of fact
was not foreseeable and in fact there is no dispute of
facts
in
casu
. I cannot agree with him. The parties on very similar facts
were involved in previous litigation in the Kroonstad Magistrates
Court
under case nr 2152/2016. Ms Sethabela in her supporting
affidavit to the spoliation application stated that she was married
by
customary law to the deceased and was kicked out of the communal
home by the applicant a day after the funeral of the deceased.
She
was refused access to the communal home where all their belongings
and furniture were. It is hard to imagine that the applicant
in
launching this application did not foresee a serious dispute of fact.
It is trite that where an applicant forsees a dispute
of fact but
elects to proceed by way of application he cannot be heard to
complain if a court for that reason dismisses the application.
[13]
Not only am I satisfied that the application cannot succeed for the
reasons stated above, but the application also stands to
be dismissed
as the applicant in initiating these proceedings, should have forseen
the insurmountable factual dispute. Mr Janse
van Rensburg on behalf
of the respondent pressed hard upon me to award a punitive cost order
against Mr Modiko, arguing the latter
is vexatious in bringing this
application. In my discretion however I see no reason to deviate from
the usual cost order.
[14] I
therefore make the following order:
The application is dismissed with costs.
______________
C.
REINDERS, J
On behalf of the
Applicants: Mr L.M. Mokhele
Instructed by:
L.M. Mokhele
Attorneys Inc.
BLOEMFONTEIN
On behalf of the
First Respondent: Adv. G.S. Janse van Rensburg
Instructed by:
Du Randt & Louw
Inc.
c/o Rosendorff Reitz
Barry
BLOEMFONTEIN