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[2016] ZAGPPHC 889
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Mavimbela v Minister of Home Affairs and Others (49613/14) [2016] ZAGPPHC 889 (30 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
30/5/2016
Case
Number: 49613/14
In
the matter between:
SESANA
JOSEPHINE
MAVIMBELA
Applicant
and
MINISTER
OF HOME
AFFAIRS
1
st
Respondent
DIRECTOR-GENERAL:
DEPARTMENT
OF
HOME
AFFAIRS
2
nd
Respondent
PETER
DHLADHLA
3
rd
Respondent
REASONS
FOR ORDER GRANTED ON 30 MAY 2016
MNGQIBISA-THUSI,
J
[1]
The applicant seeks the following relief:
1.1
that the
second respondent, the Director-General of the Department of Home
Affairs ("Director-General") that that be or
ordered to
register the customary marriage of the applicant and the third
respondent, Mr Peter Dhladhla ("Mr Dhladhla")
in terms of
the
Recognition
of Customary Marriages Act
[1]
("the
Act"), within 14 days of the order;
1.2 that the
Director-General be ordered to issue a certificate of marriage in
respect of the customary marriage registered in terms
of the Act; and
1.3 that the respondent(
s) pay the costs of the application on the scale of attorney and
client scale.
[2]
It is not in dispute:
3.1.that on 31 March 1996
the Dhladhla family negotiated lobolo payment with the Mavimbela
family and that lobolo was set at R4
800 and two cows;
3.2.that on the day of
the negotiations, the Dhladhla family paid an amount of R2 000 as
part payment towards the lobolo; and
3.3.that on 5 October
1996, the Dhladhla family paid an additional amount of R l 000.00 and
delivered two cows, with an outstanding
balance of Rl 800.
[3]
What is in dispute is whether Ms Mavimbela and Mr Dhladhla entered
into a valid customary marriage.
[4]
Section 3(1) of the Act provides that:
"For a customary
marriage entered into after the commencement of this Act to be valid-
(a) the prospective
spouses-
(i) must both be above
the age of 18 years; and
(ii) must both consent to
be married to each under customary law; and
(iii) the marriage must
be negotiated and entered into or celebrated in accordance with
customary law."
[5]
The
applicant bears the
onus
of
proving, on a balance of probabilities that she and Mr Dhladhla
entered into a valid customary marriage. See
Baadjies
v Mathebula
[2]
In this
regard the applicant must prove, in my view, not only that the
customary marriage was negotiated but also entered into or
celebrated
in accordance with customary law.
[6]
Mr Dhladhla contends that Ms Mothibe was never formally handed over
to his family, as customarily required. In this regard,
Ms Mothibe in
her replying affidavit conceded that she was not formally handed over
to the third respondent's family. However,
Ms Mothibe contends that
the mere fact that he lived with Mr Dhladhla from 1994 to 2014, is
sufficient proof that a customary marriage
was concluded. However, Mr
Dhladhla contends that in terms of the isiSwati custom, for a couple
to be considered married, the lobolo
has to have been paid in full.
[7]
In
Motsoatso
v Rora and another
[3]
the
court stated that:
"As described by the
authors Maithufi IP and Bekker CJ,
Recognition of Customary Marriages
Act 1998
and its Impact on Family Law in South Africa"
C!LSA
182 (2002), a customary marriage in true African tradition is not
an event but a process that comprises a chain of events. Furthermore,
it is not about the bride and the groom. It involves the two
families. The basic formalities which lead to a customary marriage
are: emissaries are sent by the man's family to the woman's family to
indicate interest in the possible marriage (this of course
presupposes that the two parties man and woman have agreed to marry
each other); a meeting of the parties' relatives will be convened
where lobolo is negotiated and the negotiated lobolo or part thereof
is handed over to the woman's family and the two families
will then
agree on the formalities and date on which the woman will then be
handed over to the man's family which handing over
may include but
not necessarily be accompanied by celebration (wedding).
... Although the handing
over of lobolo is in terms of the Act not listed as a requirement for
the coming into existence of a customary
marriage, it is
intrinsically linked with its existence. It is one of the pillars and
an important one in the concatenations of
processes leading to a
marriage. ... However, the mere fact that lobolo was handed over to
the applicant's family, significant
as it is, is not conclusive proof
of the existence of a valid customary marriage.
One of the crucial
elements of a customary marriage is the handing over of the bride by
her family to her new family namely that
of the groom. . .. This is
the most important and final step in the chain of events happens in
the presence of both the bride and
the groom's families. One can even
describe it as the official seal in the African context, of the
customary marriage."
[8]
Furthermore,
in Molaba v Dube
[4]
the court
held that:
"It is trite that in
African customary law, there is no rigid custom governing time
stipulation within which lobola has to
be paid. What is sacrosanct is
the undertaking to pay the agreed lobola. Consequently the
non-payment of lobola balance as alleged
by the applicant is not
decisive of the ultimate question which is whether was a valid
customary marriage negotiated or concluded
and that in pursuant of
such negotiations lobola was fixed."
[9]
It is the applicant's contention that on the day the initial lobolo
negotiations were also alleges that the marriage was celebrated
and
she was handed over to the Mr Dhladhla's family.
[10]
The fact that the lobolo was not paid in full is of no moment. If all
the requirements are met, then a valid customary marriage
exists. The
applicant has admitted that she was not handed over to the
respondent's family. This is an essential requirement in
a valid
customary marriage. The fact that Ms Mothibe and Mr Dhladhla lived
together for a long period, does not validate the relationship
between them as a valid customary marriage. At most the applicant and
the third respondent were cohabitees.
[11]
I am satisfied that the applicant has not, on the evidence before me,
shown that a valid customary marriage was entered into
between
herself and the third respondent.
[12]
Accordingly, the following order is made:
'The application is
dismissed with costs.'
______________________
NP
Mngqibisa-Thusi
Judge
of the High Court
Appearances:
For
the Applicant:
Instructed
by:
For
the Third Respondent:
Instructed
by:
[1]
Act 120 of 1998.
[2]
2002 (3) SA 427
(WLD) at para [l 5]-[22].
[3]
[2011] 2 All SA 324
(GSJ) at [ 17] and [18].
[4]
(2008)ZAGHPHC 434 at para [24].