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[2016] ZAECMHC 9
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B.M v B.V.N and Another (2612/2015) [2016] ZAECMHC 9 (29 March 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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THE
HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO. 2612/2015
In
the matter between:
B.
M.
Applicant
and
B.
V. N.
First
Respondent
THE
ADMINISTRATOR GOVERNMENT
EMPLOYEES
PENSION FUND
Second Respondent
JUDGEMENT
MBENENGE
J:
[1]
The applicant (otherwise hereinafter referred to as B.) and the late
T. I. S. (the deceased) got married to each other by customary
rites
at Palmitfontein Locality, Sterkspruit during the year 2002. All
the formalities preceding the consummation of a customary
marriage
were complied with. The marriage produced an offspring, a boy
born on [.....2004], who unfortunately expired on
16 February 2005.
[2]
In no time thereafter, the couple became estranged. They even
sold their house, and shared the proceeds of the sale equally
amongst
themselves.
[3]
It is not in dispute that during February 2007 the deceased fell in
love with the first respondent (otherwise hereinafter referred
to as
B.). Without first seeking and obtaining the consent of B. or
obtaining a divorce decree terminating the marital bonds
between
himself and B., the deceased contracted a purported customary
marriage with B. during February 2007. The deceased
lived with
B. until he met his demise in June 2011.
[4]
Upon the deceased’s death, a scramble for payment of the
deceased’s pension benefits, involving B. and B., ensued.
The
Government Employees Pension Fund (the Fund)
[1]
conducted certain investigations and reported, on 19 August 2015, as
follows:
“
2.1
GPAA have (sic) advised that the investigation regarding who is the
surviving spouse of the late T.
I. S. has been concluded.
2.2
The investigation from GPAA has revealed theta the deceased member
initially entered into
a customary marriage with B. M. on August
2002. The customary marriage was dissolved around 2006 due to
irreconcilable differences
after both families attempted to mediate.
The parties divided their joint estate including the proceeds of
their immovable property.
On 6 September 2009 the deceased entered
into a customary marriage with B. V. M. and the parties have one
child together. They
stayed together as husband and wife until the
deceased’s death.
2.3
following the completion of the investigation, the file was reffered
to the legal section
of GPAA for a legal opinion on the findings of
the investigation. The legal opinion recommended that Ms B. V. M. be
recognised
as the deceased’s surviving spouse. The deceased’s
benefits will, therefore, be distributed between the surviving spouse
and the minor child.”
[5]
In the wake of the stance of the Fund, B. resorted to the instant
proceedings seeking, by way of urgency, orders of a declaratory
nature and also an interdict restraining the Fund from paying the
pension benefits to B. and her minor child pending the outcome
of the
application. The interim interdict was granted. B.
seeks an order declaring that she is the sole surviving
spouse of the
deceased and, secondly, that the marriage between B. and the deceased
is
void
ab-initio
.
[6]
The application is predicated on two grounds namely, that B. and the
deceased had never divorced and that the deceased had never
sought
and obtained B.’s consent prior to contracting the purported
customary marriage with B..
[7]
In pursuit of her opposition to the application B. contends that B.
and the deceased had consented to dissolving their marriage,
in as
much as they had sold their house and shared the proceeds of the sale
equally amongst themselves prior to the deceased and
B. marrying one
another.
[8]
Prior to the coming into operation of the Recognition of Customary
Marriages Act 120 of 1998 (the Act) on 15 November 2000,
customary
marriages, having been entered into informally could be terminated
informally. If the husband, the wife and
the wife’s
father agreed on dissolution, dissolution took place.
[2]
[9]
A major change brought about by the Act is the rule that customary
marriages “
may
only be dissolved by a court by a decree of divorce on the ground of
the irretrievable breakdown of the marriage”
[3]
Before
it grants such a decree the court has to be “
satisfied
that the marriage relationship between the parties to the marriage
has reached such a state of disintegration that there
is no
reasonable prospect of the restoration of a normal marriage
relationship between them”.
[4]
[10]
All indications point to the marriage between B. and the deceased as
having disintegrated. The question, however, is
whether the
marital bonds between B. and the deceased were terminated in the
appropriate manner.
[11]
Section 8(1) of the Act brooks of no other interpretation than that,
except in the case of death, customary marriages are terminable
only
by a court and only on one ground. The term “
may”
used in the section simply signifies that the parties are permitted,
if they so wish, to obtain a decree of divorce in order to
terminate
their customary marriage; nothing more, nothing less. It is the
term “
only”
that is dominant pointing to the fact that there is no other
dispensation available to the parties if they wish to terminate their
marriage, except obtaining a decree of divorce.
[12]
In all these circumstances, the applicant ought to succeed in her
quest for the declaratory orders she is seeking.
[13]
This litigation was triggered by the view of the Fund that B., and
not B., is the surviving spouse of the deceased. This
view was
ill-informed, and flies in the face of the trite legal position
provided for in the Act. The deceased had long been
staying
with B. when he died. She took charge of his burial. B.
must have relied on the deceased’s
ipse dixit
that he
had terminated the marital bonds with B.. Lack of stewardship
on the part of the deceased is the cause of this litigation.
In
my view, it would be fair and equitable for the costs to be paid out
of the
estate
of the deceased.
[14]
The order that I grant is the following:
1.
The
applicant is declared to be the only surviving spouse of the late T.
I. S. (the deceased).
2.
The
customary marriage between the deceased and the first respondent is
declared to have been unlawful, invalid and of no force
or effect.
3.
The
costs of this application shall be borne by the estate of the
deceased.
______________________________
S
M MBENENGE
JUDGE
OF THE HIGH COURT
Attorney
for the Applicants
: Mr V.
V. Msindo
Instructed
by
V.V Msindo & Associates
York
Road
Mthatha
Attorney
for the 1
st
Respondent
:
Ms C.Z. Ndesi
Instructed
by
M.M Holi Attorneys
Cnr
York Street
Mthatha
Date
Heard
: 24
March 2016
Judgment
delivered
: 29 March
2016
[1]
The fund is
created by the Government Employees Pension Law, 1996 (Proc 21 in GG
17135 of 19 April 1190. This Law
inter
alia
makes
provision for the payment of pensions and certain other benefits to
inter
alia
the dependants of persons who were in the employer of the
government.
[2]
J C Bekker,
Seymour
Customary Law in Southern Africa
(5 ed) Juta 1989)
[3]
Section 8(1)
of the Act
[4]
Section 8(2)