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[2016] ZAGPPHC 618
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Sebona v Mashiloane (A79/16) [2016] ZAGPPHC 618 (8 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
DATE:
8/6/2016
APPEAL
CASE NO: A79/16
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER JUDGES:YES
In
the matter between:
SEBONA
,
PHILEMON
PETER Appellant
and
MASHILOANE,
MASEKGOWA
MAGDELINE Respondent
JUDGMENT
MULLINS
AJ:
[1]
This is an appeal against a judgment of the Mpumalanga Regional Court
held at Middelburg, delivered on 20th August 2015 in a
divorce
action.
[2]
The appellant was the defendant in the court a
quo.
He was
sued by the respondent as plaintiff for a decree of divorce and other
relief, based on the plaintiff's allegation that the
two had married
one another under customary law in 2003
[1]
[3]
The appellant was represented before us by Mr Omar, and the
respondent by Advocate Ngoepe.
[4]
The essential dispute between the parties - and the point on which
the appeal turns - was as to whether the couple had in fact
been
married by customary law.
The
appellant's version in this regard was as per paragraph 5 of his plea
(I quote only that which is relevant):
The
Defendant categorically denies that the parties entered into any sort
of customary marriage ... as alleged and/or that such
marriage still
subsists, and places the Plaintiff to the proof of same.
The
Defendant avers that the parties were mere boyfriend and girlfriend
who had intended to enter into a civil marriage and not
a customary
marriage. However, such wish never materialised....
[5]
The magistrate found in favour of the respondent on this point, in a
detailed judgment which extends over 9 close-typed pages.
[6]
I am in full agreement with the magistrate's findings. In this
regard:
[6.1]
Three witnesses testified in the respondent's case, viz (in the
following order):
[6.1.1]
Her father, Mr Daniel Mashiloane;
[6.1.2]
Her great-aunt, Mrs Kura Manaswe; and
[6.1.3]
The respondent herself.
[6.2]
For the appellant, the appellant testified, followed by his uncle Mr
Zulu.
[6.3]
Mr Mashiloane's evidence was clear and unambiguous. He said this:
[6.3.1]
That the lobolo discussions between the two families took place on 1
March 2003, and on 24 May 2003
[2]
.
[6.3.2]
Agreement was reached, Mr Mashiloane said, on the first occasion 1
March 2003, as to part of the lobolo, with the remainder
to be
negotiated thereafter.
This,
incidentally, ties in with Dlodlo J's description of these
negotiations at 415G-416C of Fanti v Boto and Others
2008 (5) SA 405
(C), where he spoke of a first round of negotiations at which the
potential bride's family accepts gifts and indicates its willingness
to enter into full lobolo negotiations, followed by a second round at
which full agreement is reached.
[6.3.3]
Mr Mashiloane said that the remainder of the lobolo was indeed agreed
upon on the second date. He referred in this regard
to the signed
document to which I adverted in paragraph [6.3.1] above.
[6.3.4]
The lobolo was partly paid, Mr Mashiloane said: R2 700,00 (the value
of six cows) on the first occasion, and R2 250,00 (the
value of five
cows) on the second occasion, with a further R2 250,00 (the value of
a further five cows, making the lobolo the equivalent
of sixteen
cows, of which R1 350,00 was to be paid in cash and the balance in
the form of two slaughter-cows) outstanding.
Mr
Mashiloane did not suggest that the fact that a portion of the lobolo
was still outstanding detracted from the fact of marriage,
and nor
was that effectively suggested to him.
[6.3.5]
Pursuant to the successful lobolo negotiations of March/May 2003,
said Mr Mashiloane, his daughter the respondent was then
delivered by
members of his family to the appellant's family's home on 22 June
2003.
[6.3.6]
Mr Mashiloane testified further that a goat had been ritually
slaughtered on the second occasion (24 May 2003), in recognition
of
the fact that the lobolo had been successfully negotiated.
He
described the reason for this ritual as follows (I quote from p40 of
the record):
In
our culture when we do that, it is an indication that we are
welcoming them so that they can marry our daughter.
[6.3.7]
Mr Mashiloane expressed no doubts as to the fact that his daughter
had married the appellant, in terms of their custom.
I
quote in this regard from his evidence on pp35-36 of the record (this
was in the course of evidence in chief):
D
o
you know the man sitting here next to this attorney? - Yes, I know
him.
What
are his names? - It is Philemon Sebona.
Any
relation between you and this Mr Sebona? - He is my son-in-law. He is
the one who is married to Poppie Mashiloane [i.e. the
respondent].
Mr
Mashiloane, your daughter and the defendant, are they married? - Yes,
they are married.
How
are they married? - They are customarily married.
What
do you mean by customarily married? What happened? - They paid
lobolo.
[6.4]
Mr Mashiloane was, equally clear under cross-examination by the
appellant's attorney. I quote a few extracts from his evidence
under
cross-examination:
[6.4.1]
On p45 of the record:
Yes.
They just came and paid lobolo. And on the last date, that is when we
negotiated the total amount of lobolo.
[6.4.2]
On p46 of the record:
Your
Worship, in our culture when the daughter is supposed to be married,
us as family we gather ourselves and then we agree on
the amount of
lobolo.
[6.4.3]
On p47, in response to the hypothesis that the families might not
have reached agreement on the lobolo on the second occasion:
Now you say you
suppose, but they did come and then we negotiated as to how much must
they pay and how much are they left with.
[6.4.4]
And on p48, as to when the marriage took place:
The
marriage started when they gave us six cows on the first day.
[6.5]
I have quoted only four passages in Mr Mashiloane's evidence. There
are many passages in the record in which the appellant's
attorney
attempted to get Mr Mashiloane to depart from his straightforward
evidence, without success.
[6.6]
Mrs Manaswe was in my view an equally credible witness.
She
testified that she, together with another woman (Sapina Taung; see
p69 of the record) and one Daniel Moshlala (who appears to
have been
part of the lobolo negotiations and who, she says, "knocked on
the door and [when it was opened for the party of
females].... went
back to the car"), accompanied the respondent to the home of the
appellant's mother in Middelburg. Her evidence
was as follows on p71:
And
when you arrived there you told them your mission, and what happened?
- When we arrived we told them that we brought the bride
and they
gave her orders, and after that we left.
When
you say they gave her orders, can you recall what type of orders she
was given? - The groom's mother said you have arrived
at Sebona
family, you are welcome. You must behave very well. And we also told
her that in marriage you must be patient. They gave
us tea, and after
we drank tea we left.
Just
plain tea - And cakes.
And
then when you left, did you leave with Mashiloane [the respondent]? -
No, we left her there.
[6.7]
The appellant's attorney attempted to persuade Mrs Manaswe in
cross-examination that all she had really done was to accompany
a
young woman
[3]
on a trip without
any particular significance from one place to another. In this, he
was singularly unsuccessful. See for example
the following passages
on pp72-73 of the record:
Ma
Manaswe, when I look at you, you come across as somebody who
understands the cultural practices of the Pedi. Am I correct? -
Yes.
And
I take it that this was not the first occasion that you took a bride
to be handed over - No, it was not the first time.
How
many times prior to this occasion did you partake in such ceremonies?
- Masekgowa [the respondent] was the second bride that
I have handed
over.
During
that time - The other one I accompanied her years ago and Masekgowa
was the second.
Now
if you were to compare what happened with the first person that you
accompanied and now when you accompanied the plaintiff,
Masekgowa,
would you say there are differences or the process was the same? - We
accompanied them at the same way.
[6.8]
It is so that Mrs Manaswe said on p76 of the transcript that she was
"surprised" to be received by only two members
of the
appellant's family, but there could have been any reason for this
(certainly, none of the receiving members of the appellant's
family
testified to explain this), and her surprise in no way detracts from
the picture painted by her of the respondent's being
delivered, and
received and instructed, as a bride.
[6.9]
I pause at this stage to deal with the central point in Mr Omar's
argument, viz his contention that there had been no handing
over of
the bride as required by customary law, that as a result there was no
customary law marriage, and his reliance in this
regard on the
judgment of Matlapeng AJ in Motsoatsoa v Roro and Two Others
(unreported South Gauteng High Court, Case No: 46316/09,
dated 1
November 2010). In this regard:
[6.9.1]
See, in the first place, Mrs Manaswe's evidence as to the handing
over in paragraph [6.6] above.
What
Mrs Manaswe described there was clearly intended and understood to be
a formal handing over of the bride to the bridegroom's
family, and
the instructing of her as a young bride. It would in my view be
absurd to describe it as anything else.
[6.9.2]
Although the appellant's attorney questioned Mrs Manaswe (along the
lines outlined in paragraph [6.7] above) as to a relative
lack of
ceremony and numbers, what Mrs Manaswe said on pp71-73 of the record,
as quoted by me in paragraphs [6.6] and [6.7] above,
was
unchallenged.
[6.9.3]
Motsoatsoa is, I am satisfied, totally distinguishable.
What
happened in
Mo
tsoatsoa
is that the applicant and the deceased lived together from 2005 until
the deceased's death on 21 July 2009. During that
period, in 2007 and
2008, steps were taken to set a customary marriage in motion
[4]
but, on the strength of the judgment, nothing more. In
contradistinction with the facts of this case, there was no handing
over
of the bride, no instruction of her by her new family, nothing
of that nature.
It
is consequently unnecessary for me to decide whether Motsoatsoa was
correctly decided or not.
[6.9.4]
It is apposite in this regard to refer to the judgment of Hlophe JP
at 2260-G of Mabuza v Mbatha
2003 (4) SA 218
(C) (Mabuza related to
the question of whether the couple had been married in accordance
with siSwati customary law, and in particular
the apparent failure to
comply with the siSwati Ukumekeza custom, in terms of which the bride
must be handed over and must, apparently,
traditionally cry in the
course thereof; see p225E-G of the judgment):
In
my judgment, there is no doubt that Ukumekeza, like so many other
customs, has somehow evolved so much that it is probably practised
differently than it was centuries ago. I got a firm impression that
Mr Shongwe [expert for the defendant] was not being truthful
to the
Court insofar as he attempted to elevate Ukumekeza into something so
indispensable that without it there could be no valid
siSwati
marriage. It is my view that his evidence in that regard cannot be
safely relied upon. As Professor de Villiers [expert
for the
plaintiff] testified, it is inconceivable that Ukumekeza has not
evolved and that it cannot be waived by agreement between
the parties
and/or their families in appropriate cases.
Further
support for the view that African customary law has evolved and was
always flexible in application is to be found in TW
Bennett
A
Sourcebook of African Customary Law for Southern Africa.
Professor
Bennett has quite forcefully argued (at 194):
'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 a 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'.
[6.9.5]
I am in full agreement with the reasoning of Hlophe JP in Mabuza.
Applying
that reasoning to this matter, there can in my view be no doubt of
the fact that the respondent was handed over as a bride
to her
bridegroom in accordance with their custom.
[6.10]
As for the respondent's evidence:
[6.10.1]
The respondent confirmed the evidence of those who preceded her, i.e.
that she understood that lobolo had been agreed upon
and that she was
married, that she consented to be married to the appellant, that she
was delivered to the appellant's mother's
home as his wife, and that
she thereafter lived with him as man and wife
[5]
for ten years until he returned her to her father in August 2013, and
bore him three children
[6]
.
[6.10.2]
The appellant's attorney attempted in cross-examination to suggest
that the appellant and the respondent had always intended
a civil
wedding, and had never regarded themselves as married without such a
civil wedding.
The
respondent readily agreed that the appellant had, as she put it (p87
of the record), told her that one day I want to marry you.
I want to
put a ring on your finger.
But
she was adamant that this related to the idea of a civil ceremony,
and didn't detract from their marriage by custom.
[6.10.3]
See in this regard for example the respondent's evidence on p89 of
the record, when she was tackled on her dissatisfaction
with the
appellant's infidelity, given that customary union marriages are
potentially polygamous:
Now
if you do not have any problem with polygamy, why are you having a
problem with (the appellant's having an intimate relationship
with
another woman] ...? - According to my understanding, if he wishes to
have another wife, in our culture he must first approach
me. He must
not just go out and have a relationship with another woman.
[6.10.4]
And see p90 of the record (the references in what follows to a "white
wedding" are references to the ceremony
of a civil marriage):
Now
you say you were talking about marriage with the defendant. - You
mean the white wedding.
Yes.
As explained to you what a white wedding is - Yes. He will always
tell me that one day when he gets he will marry me in white
wedding.
In
your discussions and your understanding, what did that mean to you? -
He was trying to explain that he also wishes to marry me
in white
wedding, but it does not mean that we are not married, and it does
not mean that he does not understand the way we are
married ... our
customary marriage.
Now
when did you get married customarily? - In 2003.
When
specifically in 2003? - On the 24th of May.
What
gave you the impression, or what signs were there that indicated to
you that now we are entering into a customary marriage?
- Because
according to our customs, when a person is paying a lobolo that means
he is taking you as his wife.
[6.11]
I pause here to say that the question of the exact date of marriage,
if the couple were married by customary law, was debated
in the
evidence, and that the particulars of claim claimed
[7]
,
and the magistrate held, that it was the date of the first meeting, 1
March 2003.
For
my part, I would have thought that the respondent's evidence, which I
quoted in paragraph [6.10.4] above, was correct to the
effect that
the marriage actually only commenced on the date when full agreement
was finally reached on lobolo, 24 May 2003. In
this respect I would
differ from the magistrate. But I might be wrong about that, and it
bears emphasising that the issue on appeal
is
whether,
not
when,
the couple were married.
[6.12]
[6.12.1]
Section 3(1)
of the
Recognition of Customary Marriages Act
120 of 1998
provides as follows:
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 law;
and
(b)
the marriage must be negotiated and entered into or celebrated in
accordance with customary law.
[6.12.2]
Dlodlo J in
Fanti
above at 413G-H confirmed the finding of
Hlophe JP in
Mabuza
above at 223, that the essential
requirements for a union to have been negotiated and entered into or
celebrated in accordance
with customary law are (a) consent of the
bride, (b) consent of the bride's father or guardian, (c) payment of
lobolo (for which
one can substitute agreement on lobolo, it being
clear that whatever the consequences of a failure to make full
payment, it doesn't
void the marriage), and (d) the handing over of
the bride.
[6.12.3]
The evidence for the respondent clearly established that these
requirements had been met to the satisfaction of the parties,
such
that they regarded themselves as married by customary law.
[6.13]
The writing was, I think, already discernible on the wall by the time
the respondent's case was closed and the appellant
had to testify.
[6.14]
[6.14.1] 1 say this firstly because one had by then heard the
evidence for the respondent, which was clear, credible and,
in my
view, unscathed by cross-examination.
[6.14.2]
I say this secondly because one knew by then what the appellant's
version was going to be, because it had been put in
cross-examination. And what had been put sounded unconvincing and
improbable.
[6.14.3]
See for example what Mr Rakwenya, the attorney for the appellant, was
constrained to put to Mr Mashiloane on p57 of the
record:
Sir,
I put it to you that, it was never the intention of your son-in-law,
as well as your daughter to be married customarily. Customarily
they
only wanted to perform the ceremony of lobolo and pass on to a civil
marriage.
That
passage begs a number of questions: why go to the trouble of
negotiating lobolo, and of paying most of the lobolo, if it was
intended to have no significance? If a civil marriage was the
parties' only intention, why was it never carried out despite ten
years and the birth of three children? Why was the respondent
formally delivered to the appellant's family and instructed by them
in accordance with custom, if nothing was intended by it?
[6.15]
I mentioned what I did in paragraph [6.14] above because, as it
turned out, the evidence for the appellant was, in contrast
with that
for the respondent, singularly unconvincing.
[6.16]
The magistrate said the following in this regard in paragraph 17 of
her judgment (p193 of the record), with which I fully
agree:
It
cannot be denied that the steps which were taken by the parties
themselves in agreeing to marry each other; then causing their
families to meet to negotiate lobolo; and thereafter settling
together and establishing a family, are all ingredients of a
customary
marriage. Defendant's only qualm with the process is that
he had not asked for the plaintiff to be brought to his mother's
house....
However, his denial of his family or himself requesting her
formal delivery is lame and cannot stand in the face of the rest of
the evidence that it
was
arranged; and that she
was
received by his mother.... He was obviously grateful that she was
brought, and so much that he took her to his house the same night
to
start the cohabitation. Unconvincing too is his contention that he
was not relying on the existence of a customary marriage
between them
when he lived with her as a family replete with the children. It
would have been quite in conflict with the character
of a born again
Christian that he says he is if he simply lived together with the
plaintiff without any justification 'before God
and man' in the form
of a marriage. The fact that he did, makes it abundantly clear that
he recognised the process that he had
followed, and the steps which
were taken, as constituting a marriage which legitimated his
cohabitation with plaintiff.
Also
unconvincing is the defendant's version that he did not consent to be
married under customary law even when he had followed
every step of
that process.
[6.17]
Suffice to quote the following passages from the appellant's evidence
under cross-examination on pp125-126 of the record:
In
March 2003 you were staying in Bloukomsig. Is that correct? - Yes.
You
were not staying in Mhluzi. Is that correct? - That is true.
In
May 2003 when she was brought to your home or to your mother, she was
not taken to Bloukomsig. Is it not? - That is true.
Why
was she taken to Mhluzi to your mother? It is not your mother's wife
– I do not know how that happened.
It
is a mystery. - Yes, it is a mystery.
And
to add further to this mystery, she does not come alone. She is
accompanied by her aunts, two women - Yes, it is so.
And
another man, Mr Mohlala. - Yes, it is so.
And
I guess in May she already knew that you were staying in Bloukomsig,
she had been to Bloukomsig before. Is it not? In May when
she was
taken to Mhluzi, she already knew where you were staying. - It is
correct.
And
to add to our argument, you are also there at Mhluzi waiting for her
to be brought there - Your Worship, on that particular
day I was at
Mhluzi to see my mother as it is what I normally do on Sundays to go
to see my mother or to visit my mother.
So
her being brought there was coincidental.... - Yes, it is so, Your
Worship.
The
unconvincing nature of the appellant's evidence is I believe fully
apparent from the passage that I have just quoted.
[6.18]
The appellant's uncle Mr Zulu's attempts to support the appellant's
version were not successful. See the following passage
in his
evidence in chief
[8]
:
So
according to you, you say on that day it was a stalemate, nothing was
agreed on - Your Worship, ultimately the father of the
bride accepted
what we presented.
Which
was for her daughter's hand in marriage with your nephew ... can
marry your nephew. - Yes.
I
must add that Mr Zulu's evidence related to the first meeting, and
not the second - he confirmed on p163 of the record that he
was not
present on the second occasion.
[7]
I need not refer to the binding authority
(Rex v Dhlumayo and
Another
1948 (2) SA 677
(A);
Protea Assurance Company Limited
v Casey
1970 (2) SA 643
(A)) to the effect that an appeal on
issues of fact such as this can only succeed if we are satisfied that
the decision was wrong.
I
need not do so, because I am to the contrary quite satisfied that the
magistrate's decision was correct, and was amply justified
by the
evidence.
[8]
The law must pay due respect to the parties' custom and, as per
Mabuza above, to the inherent flexibility in that custom.
If
one takes a step back and looks at the evidence in its totality, I
can see no basis whatsoever for doubting that all concerned
(including the parties) were satisfied at the time and for years
thereafter that this couple was married in accordance with their
custom.
[9]
In the result, the order which I propose is the following:
The
appeal is dismissed, with costs.
____________________
JF
MULLINS
ACTING
JUDGE,
GAUTENG
DIVISION, PRETORIA
HIGH
COURT OF SOUTH
AFRICA 8
JUNE 2016
I
CONCUR AND IT IS SO ORDERED
:
_____________________
DS
MOLEFE
GAUTENG
DIVISION, PRETORIA
HIGH
COURT OF SOUTH
AFRICA
8
JUNE 2016
[1]
The particulars of claim had erroneously referred to 2013, but the
mistake emerged during the trial, and the plaintiffs particulars
of
claim were amended on an unopposed basis so as to state the date of
the marriage as being 1 March 2003
[2]
Mr Mashiloane didn't stipulate the latter date. He simply said that
it was "May in 2003". But he referred to a document
signed
by the family representatives on both sides, which formed part of
the record. The document is in the vernacular, but bears
signatures
and two dates, viz 1 March 2003, and 24 May 2003.
[3]
Judging from the summons, the respondent will have been 21 years old
at the time, and the appellant 33 years old.
[4]
The deceased's family sent emissaries to the applicant's parents;
negotiations were embarked upon; lobolo of R18 000,00 was agreed;
R5
000,00 of the lobolo was paid.
[5]
I say as man and wife" for ten years, but her evidence was that
the appellant slept on the couch for the last eight to twelve
months.
[6]
The eldest was born on 11 December 2003, which suggests that the
respondent was impregnated in March of 2003, but would only
have
become aware of the pregnancy in April or May of 2003 at the
earliest - a court can take judicial notice of these things,
which
are in any event not material to the question of whether the parties
were married or no
[7]
See paragraph [2], and fn 1, above.
[8]
See p162 of the record; note the leading question, which was not
preceded by any evidence by Mr Zulu of a lack of agreement.