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[2016] ZAGPPHC 460
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Mkabe v Minister of Home Affairs and Others (2014/84704) [2016] ZAGPPHC 460 (9 June 2016)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 2014/84704
9/6/2016
Not
reportable
Not
of interest to other judges
Revised
In
the matter between:
MADALA
PHILEMON
MKABE PLAINTIFF
and
THE
MINISTER OF HOME
AFFAIRS 1
st
DEFENDANT
PIET
MBUNGELA 2
nd
DEFENDANT
TUBILE
CAROL MKHONZA
N.O 3
rd
DEFENDANT
MASEER
OF THE HIGH COURT,
NELSPRUIT 4
th
DEFENDANT
JUDGMENT
TWALA
AJ
[1]
The plaintiff is an adult unemployed male who sues the defendants and
seeks an order declaring that he is the customary husband
of the late
Ntombi Eunice Mbungela with identity number […] who died on
the […] April 2014.
[2]
The first and fourth defendants did not file any papers to defend the
action. The second and third defendants are defending
the action.
However, at the beginning of the trial, by agreement between the
parties, the plaintiff withdrew its action against
the second
defendant with each party to pay its own costs. There remain issues
to be determined between the plaintiff and the third
defendant.
[3]
It is common cause between the parties that there was a love
relationship between the plaintiff and the decease. In April 2010,
plaintiff sent a delegation to the family of the deceased to engage
in ilobolo negotiations. As a result of the negotiations, an
agreement was concluded that the plaintiff would pay a sum of R12 000
for ilobolo. The plaintiff paid R9 000 for
ilobolo,
a living
cow, a suit and per of shoes for the bride's father, a two piece
costume for the bride's mother, two boxes of snuff, liquor
and a case
of beers.
[4]
The plaintiff testified that he met the deceased in 2007 at Kwa
Nyamazane Clinic in Mpumalanga. They telephoned each other thereafter
and gone out for some time and a love relationship started. At the
time the plaintiff was living at Pienaar. He then moved in into
the
place of the deceased until 2008. In 2008 they moved to Pienaar with
the deceased leaving the deceased's daughter Thobile Carol
Mkhonza,
the third defendant, in the house of the deceased. The deceased moved
in with him at his place in Pienaar. She took all
her belongings with
her and left Thobile and another granny to live in her house.
[5]
On the 2 April 2010 plaintiff sent his family to the family of the
deceased to negotiate the ilobolo because he did not want
to cohabit
with the deceased without paying ilobolo. An agreement was concluded
with the family of the deceased that he pays ilobolo
of R12 000. He
then paid a sum of R9 000, a living cow, the suit, hat and shoes for
the father in law, a blanket, two piece costume
for the mother in
law, snuff, liquor, beers and the drinks were handed to the family of
the deceased. The deceased was also present
at the home of Piet
Mbungela where the negotiations were taking place. She was happy
about what was taking place at the time.
[6]
The plaintiff testified further that there were no plans for any
celebration of the marriage or handover ceremony of the bride
to his
family since he has been living with the deceased from 2007. The
deceased remained behind on the 2 April 2016 and only returned
home
on the following Wednesday. She was now his wife because he had paid
ilobolo for her. They considered themselves as a married
couple after
April 2010 and both families considered them as such.
[7]
They had two (2) motor vehicles, a Corolla and a Fortuner, and both
were registered in the name of the deceased. The plaintiff
was
driving the Corolla and the deceased was driving the Fortuner. He met
the deceased who had the Corolla at the time and they
bought the
Fortuner together although it was registered in the name of the
deceased. The deceased also assisted with household
necessities for
the house in Pienaar.
[8]
Nobody informed him of any further ritual and/or custom that needed
to be attended to after what happened on the 2 April 2010.
He
continued to live with the deceased as husband and wife until the
deceased took ill in October 2013 immediately after the funeral
of
her mother. He took her to a traditional healer. She was taken in by
the traditional healer for some time until the third defendant
took
her and put her in a hospital in Nelspruit. He visited his wife in
hospital on three occasions and on the fourth occasion,
which was on
the 3 February 2014, he was harshly rebuked by the deceased's
brother, the second defendant, who called him and told
him in no
uncertain terms that he should desist from visiting his wife in
hospital. If there were any issues that he would like
to address, he
can do so after the discharge of the deceased from hospital.
[9]
At the time when the deceased met her death, he was preparing to send
a delegation again to the Mbungela family to settle the
outstanding
balance of R3 000 for the ilobolo. The Mbungela family never demanded
the balance.
[10]
He did not see his wife since the 3 February 2014 for he feared for
his life if he was to be found visiting her in hospital.
He only
learnt of her death from a stranger a day after she died. He had no
problems with the deceased or her family and does not
know why he was
treated in that manner. Before the death of the deceased, the
deceased, her sisters and some of her family members
attended the
funeral of the plaintiff's mother. When the deceased's mother died,
the plaintiff and his family members attended
the funeral of the
deceased's mother.
[11]
Under cross examination he conceded that a certain Jabu was also
living with the deceased when he moved in. He did not mention
Jabu in
his evidence in chief because Jabu is not a child of the deceased and
he did not have anything to do with him. He insisted
that on the 2
April 2010 he married his wife by customary law. Nobody told him that
there are still outstanding rituals and/or
custom that needed to be
attended to. He never discussed anything with Piet Mbungela on that
day nor any day thereafter. He conceded
that in 2007 - 2008 he did
not live permanently at the house of the deceased because he had his
own house in Pienaar.
[12]
He is Swazi and did not know what the Tsonga's tradition is with
regard to consummation of the customary marriage. In siSwazi,
once he
pays ilobolo, the marriage is concluded. Nobody advised him of any
outstanding customs which were required to be observed
before they
could be regarded as married by custom. He did not know that the
deceased did not include him as a beneficiary in her
pension fund
scheme nor that he was not listed as one of the dependants of the
deceased in her medical aid scheme.
[13]
He initially attended to the Amashangana Traditional Council together
with his wife to obtain the letter confirming their marriage
but the
secretary was not in the office on that day. He then went there again
after the death of his wife. He produced the agreement
entered into
between the parties and the proof of payment of the ilobolo - thus he
was issued with the letter confirming that he
was married by custom
to the deceased. The Mbungela family members were not present when he
obtained this letter because they fighting
him at the time.
That
was the case for the plaintiff.
[14]
The defendant called Jabu Mbungela who testified that the deceased is
his mother and they lived together at Kwa Nyamazane.
He has been
living in the deceased's house as long as he can remember. He knows
the plaintiff as someone who had a love relationship
with the
deceased. He did not live with the deceased but they would
occasionally visit each other. He would come and sleep
at the house
for a day or two and the deceased would also visit him in like a
manner.
[15]
Under cross examination, he maintained that the plaintiff and the
deceased did not live together permanently but would visit
each other
all the time. He heard about the payment of ilobolo but he did not
know their intentions to marry. He stated that when
a person pays
ilobolo, it means the couple wants
"to take their
relationship to another level".
Payment of ilobolo joins the
people who love each other and brings together or joins their two
families. However the ilobolo must
be paid in full.
[16]
Mr Piet Mbungela, the second defendant, testified that he is the
elder brother to the deceased. He knows the plaintiff who
was
introduced to him by the deceased, who told him that they wanted to
get married. He met with the delegation from the plaintiff's
family
and started the negotiations for the ilobolo. It was then agreed that
plaintiff pays a sum of R12 000 of which plaintiff
paid R9 000, a
living cow, his suit and a per shoes, his mother's two piece costume,
liquor and beers. He further discussed with
the delegation that
plaintiff should pay the ilobolo amount in full before they can
handover the bride to him. The plaintiff came
in later that day and
he advised him of what he told his delegation, that ilobolo must be
paid in full before the bride can be
handed over to him as a wife.
Once the ilobolo is paid in full, they will then go to the Tribal
Authority to obtain a letter confirming
the marriage of the bride and
the groom. Before paying the ilobolo in full, he is just a friend to
the deceased and not a son in
law to the Mbungela family.
[17]
He testified further that he received a telephone call from the
plaintiff complaining that Thobile was disrespectful to him.
He
promised to discuss this issue with him when he comes back from
Johannesburg. Plaintiff never attended and/or assisted with
the
funeral of the deceased. He did not know why he did not partake in
the funeral arrangements.
[18]
Under cross examination, he confirmed that he made an affidavit in
the motion proceedings which were instituted in this case.
He denied
that he met the plaintiff before the ilobolo negotiations. He only
met him for the first time on the day of the negotiations.
At the
time of the negotiations between the two families, he was head of the
Mbungela family. He admitted that all the things as
listed in
annexure "MPM2" of the plaintiff's particulars of claim
were delivered by the plaintiff as it was agreed upon
in the
negotiations. He denied that the plaintiff and the deceased had been
living together as husband and wife since 2010. He
was happy with the
plaintiff marrying the deceased and has never stopped being happy for
them. When the deceased died, he asked
his brother in law to call the
plaintiff and report to him that his (the plaintiff's) wife has died.
[19]
He conceded that the delivery of the suit, per shoes, two piece
costume, blanket, liquor and beers by the plaintiff to the
Mbungela
family as a result of the negotiations and the agreement concluded
therefrom symbolises the joining and coming together
of the bride and
groom and the two families.
[20]
The third defendant, Thobile Mkhonza, testified that she is the only
child and daughter of the deceased. She knows the plaintiff
as the
husband to the deceased. She and her mother, the deceased were very
close. They lived in Kwa Nyamazane in Nelspruit in the
same house.
She denied that the plaintiff ever lived permanently with the
deceased. They only visited each other for a day or two.
She did not
have any relationship with the plaintiff except that he was someone
living with her mother. The plaintiff and the deceased
were never
married. She took the deceased to hospital and the plaintiff never
visited her in hospital. She heard the deceased telling
her friends
whilst in hospital that she does not want to see the plaintiff
anymore.
[21]
Under cross examination, she admitted that she is the Executrix of
the estate of the deceased. She has not yet finalised the
winding up
of the estate because she is awaiting finalisation of this case. She
admitted that she will be the sole heir should
the plaintiff be found
not to be married to the deceased. She heard that the plaintiff had
paid ilobolo but she does not know how
much and how because it is not
in their culture for her to pry in such things. Deceased never left
her home in Kwa Nyamazene to
live with the plaintiff in Pienaar. She
fetched the deceased from the traditional healer and took her
hospital. She used the deceased
vehicle which she took from the
plaintiff at the time, to transport the deceased to hospital and
never took it back to the plaintiff.
That
was the case for the defendant.
[22]
Section 3 of the Recognition of Customary Marriages Act, Act 120 of
1998 ("the Act") provides as follows:
"3. Requirements
for validity of customary
marriages
(1)
For a customary marriage entered into after the commencement of this
Act to be valid :-
a)
The
prospective
spouses:-
/.
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".
[23]
In April 2010 the plaintiff proposed marriage to the deceased and she
accepted. It is not in dispute that their marriage was
to be by
customary law. As already stated above, the plaintiff sent his
emissaries to the family of the deceased to enter into
negotiations
for the purposes of marrying her. The dispute to be determined by
this Court is whether a customary marriage was entered
into by the
deceased and the plaintiff on the 2nd April 2010.
[24]
The plaintiff's testimony was clear and unambiguous and it did not
change under cross examination. It was put to him that the
second
defendant will testify that he personally had discussions with him
after having advised the emissaries that plaintiff need
to pay
ilobolo in full before he can be regarded as the son-in-law by the
family. He denied having had such a conversation with
the second
defendant. He admitted that he did not pay the balance of ilobolo but
stated that, that did not invalidate their marriage.
Although he was
prepared to pay the balance of ilobolo, the family of the deceased
did not demand it and it is customary that the
bridegroom does not
finish paying ilobolo.
[25]
It was my impression that the plaintiff was a reliable and honest
witness. He was not evasive in answering questions and gave
his
testimony in an honest and truthful manner.
[26]
The second defendant was not truthful with his answers. He admitted
attesting to an affidavit which stated that he met the
plaintiff
before the 2 April 2010 and told him what was expected of him before
he could be recognised by the family as a son-in-law.
However, he
denied meeting the plaintiff before payment of ilobolo. He insisted
that he only met the plaintiff for the first time
on the day ilobolo
was paid. He refused to answer the question regarding the meaning of
the letter from the Amashagaan Traditional
Council. At some point he
was laughing when being cross examined. He however acknowledged at
the end of his testimony that the
exchange of gifts on the 2 April
2010 symbolised the joining and/or coming together of the bride and
the groom and the two (2)
families. But he denied that the deceased
and the plaintiff were married by custom and that they were living
together as husband
and wife. Further, when asked how he conveyed the
message to the plaintiff that the deceased has died, he said "/
told him his wife has died".
But he later testified that
he ask his brother in law to call the plaintiff and advise him that
his (the plaintiff's) wife died.
[27]
I therefore concluded that the second defendant was not a reliable
witness. He tailored his evidence and answers to questions
as the
case was proceeding.
[28]
The gist of the testimony of Jabu Mbungela and that of the third
defendant was more on whether the plaintiff and the deceased
lived
together as husband and wife. They were not present on the 2 April
2010 when the ilobolo negotiations and agreement was concluded.
Of
importance is that when the third defendant was asked: how do you
know the plaintiff? She replied that
"he is my mother's
husband".
The third defendant conceded that she did not live
with the deceased or at home for some time because she was working in
Ermelo
and in Witbank. She came home only on weekends.
[29]
It is not in dispute that the plaintiff is the one who took the
deceased to the traditional healer after she took ill in October
2013
and that both vehicles were in the possession of the plaintiff until
the third defendant and a friend to the deceased came
to collect the
Fortuner and never returned it. It was not disputed that the deceased
assisted with the household necessities of
the Pienaar home of the
plaintiff. This militates against the evidence of the defendants'
that the plaintiff and the deceased did
not live together as husband
and wife.
[30]
Counsel for the defendants contends that to show that the plaintiff
and the deceased were not married to each other the deceased
did not
include the plaintiff in her medical aid scheme as a dependant. She
did not list him as a beneficiary in her pension fund
scheme.
[31]
As it appears
supra,
when the deceased took ill, the plaintiff
did not use her medical aid and took her to a doctor and/or hospital.
He took her to a
traditional healer. That is indicative of the belief
of the plaintiff in traditional healers and not the doctors who need
medical
aid. In my view, the plaintiff believes in traditional
medicine and therefore being a member of a medical aid scheme is of
no consequence
to him. Further, it is the undisputed evidence of the
plaintiff that he has been using the Corolla and the deceased was
using the
Fortuner although both vehicles were registered in the name
of the deceased.
[32]
I am of the view, therefore, that the plaintiff and the deceased were
living together as husband and wife. Consequently, it
is the
plaintiff who was the first to know that the deceased is ill and took
her to a traditional healer for help. The deceased
left both vehicles
registered in her name in the care and possession of the plaintiff.
[33]
The second defendant has conceded that the delivery of the gifts by
the plaintiff to the Mbungela family symbolised the coming
together
of the two families and of the bride and the bridegroom. He however,
places emphasis that the plaintiff and the deceased
were not married
to each other because the plaintiff did not pay the ilobolo in full.
This was also the evidence of Jabu that if
the ilobolo is not paid in
full, then there can be no marriage between the parties. However, it
is the uncontested evidence of
the plaintiff that customarily, the
bridegroom does not finish paying ilobolo.
[34]
In the case of
MABUZA vs MBATHA
2003 (4) SA 218
(C).the
following was stated:
"African
customary law has evolved and was always flexible in
application.
There is thus no doubt that the siSwati custom of ukumekeza (i.e. the
formal integration of the bride into the family
of the bridegroom,
the custom being one of the three requirements for
a
valid
marriage according in siSwati customary law), like so many other
customs, has somehow evolved so much that it is probably
practised
differently from what it was centuries
ago.
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".
[35]
I agree with Counsel for the plaintiff that Customary Law has evolved
over the years and that payment of ilobolo in full cannot
be such an
essential requirement to invalidate a customary marriage. Suitable
arrangements can be made for payment of ilobolo and
if the other
requirements of a customary marriage have been met, a valid customary
marriage can be entered into by the parties.
So ilobolo does not have
to paid in full as alleged by the defendants before a valid customary
marriage can be entered into between
the parties. In
casu
the
plaintiff paid R9 000 of the R12 000 ilobolo asked by the bride's
family and delivered certain gifts to the relevant people
of the
bride's family as required by custom to unify and/or bring together
the two families and the bride and the bridegroom.
(See
FANTI v BOTO
AND OTHERS
2008
(5)
SA 405
(C)).
[36]
Counsel for the defendants contends further that there was no handing
over of the bride to the bridegroom's family, therefore
there was no
customary marriage entered into by the parties since this essential
requirement was not met.
[37]
In the case of Mabuza
supra,
it was stated as follows:
"There is no
reason why failure to observe some of the rituals or ceremonies
cannot be waived or condoned by parties in terms
of an agreement
between them".
[38]
The requirement of handing over of the bride to the bridegroom's
family cannot be over emphasised than the other requirements
to
invalidate the conclusion of a customary marriage. Authorities agree
that the handover of the bride to the bridegroom's family
and her
acceptance and incorporation into the bridegroom's family is
ordinarily accompanied by well-known extensive ritual and
ceremonies
involving both families. These rituals and ceremonies come at a huge
cost. Thus- due to financial constrain and/or means,
parties at times
postpone these ceremonies. In casu, the deceased, who has been living
together with the plaintiff at the time
the ilobolo was negotiated
and paid, returned to her husband a few days later. It is the
undisputed testimony of the plaintiff
that she returned the following
Wednesday after payment of ilobolo.
[39]
I am of the view therefore that, with the testimony of the plaintiff
that he was not aware nor was he alerted that there was
other ritual
and/or custom to be observed and the undisputed fact that she
returned to her husband on her own on the Wednesday
after ilobolo was
paid and the other rituals performed, the handover of the bride to
the family of the plaintiff was condoned and/or
waived by the
parties.
[40]
I conclude therefore, that a customary marriage was entered into
between the plaintiff and the deceased on the 2 April 2010
although
there was no formal handing over of the bride to the family of the
plaintiff. I therefore conclude that the plaintiff
was married to the
deceased by customary law. Therefore the plaintiff succeeds in its
claim against the defendants.
[41]
In the circumstances, I make the following order:
a. That the plaintiff and
the deceased Ntombi Eunice Mbungela entered into a customary marriage
on 2 April 2010 and as such the
Plaintiff is the customary husband of
the deceased;
b. The customary marriage
referred in (a) above has not been dissolved by law or otherwise;
c. The first defendant is
ordered to enrol and register the customary marriage referred in (a)
above in the first defendant's Marriage
Register;
d. The first defendant is
ordered to issue a Recognition Certificate in favour of the plaintiff
within 14 (fourteen) days from the
date of this order;
e. The third defendant is
liable for the costs of this action in her representative
c
apacity
as the Executrix of the deceased estate.
__________________________
TWALA
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Counsel
for the Plaintiff:
ADV. C. RIP
Instructed
by:
ME MAZIBUKO ATTORNEYS
TEL: 012 460 1913
Counsel
for the Defendant:
ADV. E. MOUKANGWE
Instructed
by:
NKOSI ATTORNEYS
TEL: 012 342 1179
Date
of Hearing:
4-6 MAY 2016
Date
of Judgment:
8 JUNE 2016