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[2015] ZAGPPHC 142
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Nhlapo v Mahlangu and Others (59900/14) [2015] ZAGPPHC 142 (20 March 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 59900/14
DATE: 20 MARCH
2015
NOT REPORTABLE
OF INTEREST TO
OTHER JUDGES
In the matter
between
LINA SESI
NHLAPO
..............................................................................................
APPLICANT
And
LILLIAN
MAHLANGU
........................................................................
FIRST
RESPONDENT
MINISTER OF HOME
AFFAIRS
..................................................
SECOND
RESPONDENT
MASTER OF THE
NORTH GAUTENG
...........................................
THIRD
RESPONDENT
HIGH COURT,
PRETORIA
JUDGMENT
MOLEFE J:
[1] This is an
application for the following relief:
"1.1 That
the customary marriage between the applicant and the deceased, Thomas
Jack Mahlangu, contracted on 29 April 2000
be declared valid;
1.2 That the
civil marriage between the first respondent and the deceased be
declared null and void;
1.3 The second
respondent is instructed to expunge the civil marriage of the first
respondent and the deceased from the marriage
register and to
register the customary marriage between the applicant and the
deceased;
1.4 The third
respondent is instructed to withdraw any appointment granted to first
respondent in respect of the
Administration of Estates Act, 66 of
1965
;
1.5 The first
respondent is to disclose all funds collected and received by her as
representative of the deceased, Thomas Jack Mahlangu
and to pay all
such funds collected from any institution or individual into the
trust account of the applicant’s attorney,
Erna Grove’
(until the estate banking account has been opened for the
administration of the estate of the deceased, Thomas
Jack Mahlangu)
within 10 (ten) days of this order;
1.6 First
respondent to pay the taxed costs in the event of opposition”.
[2] The application
is opposed by the first respondent. The second and third respondents
did not oppose the application and played
no active role in the
proceedings.
[3] The applicant
initially brought an urgent application to be heard on 9 September
2014. By agreement between the parties, the
matter was removed from
the urgent roll and the parties agreed to obtain reports from both
parties’ experts in the determination
of the Ndebele customary
union laws.
Background
Common cause
facts
[4] The applicant
and the first respondent allege that they were married to Thomas Jack
Mahlangu (“the deceased”) who
passed away on 11 May 2014.
[5] Both the
applicant and the first respondent were not aware of the deceased’s
respective marriages and this was discovered
by both parties after
the deceased had passed away. Neither the applicant nor the second
respondent registered their customary
marriages.
Applicant’s
version
[6]
The applicant alleges that she is the legal customary spouse of the
deceased. Customary marriage negotiations between the deceased’s
family and her family commenced during 1986. On 29 April 2000, the
last payment of the
lobola
was
made as per
lobola
agreement.
Neither the deceased nor the applicant registered the customary
marriage at the Department of Home Affairs. Four children
were born
of the customary marriage.
[7] The deceased was
employed at Mike Buyskes Construction (Pty) Ltd situated in Gauteng
and he resided in Nellmapius, Gauteng.
Once a month and during
holidays and weekends, the deceased would visit the applicant and
their children and was financially maintaining
his family.
[8]
The applicant has known the deceased since they were young children
and their relationship started in 1980. Their first child
was born on
26 March 1985. The
lobola
was
determined as 16 heads of cattle payable over a period of time. In
April 1986, the two families had a big handing-over celebration;
cows
were slaughtered and the applicant’s family handed her over to
the deceased’s family. This is confirmed in a number
of
confirmatory affidavits by the deceased’s family, namely his
mother, brother and nephew and by the applicant’s family,
namely her aunt and brothers.
[9]
Applicant’s counsel
1
submits that the applicant was not aware of the legal requirement
that the customary marriage must be registered until after the
deceased’s death. She was however unable to register her
customary marriage at the Home Affairs offices due to the existence
on the records of the civil marriage between the deceased and the
first respondent. The deceased’s mother, Ms Felesakhe Maria
Mahlangu and the applicant’s aunt, Ms Lina Matibela, who were
present at the handing-over ceremony, approached the Nunza
Somphalali
Traditional council. An enquiry was held and the traditional council,
based on the enquiry, was satisfied that the customary
union between
the applicant and the deceased took place and accordingly issued the
customary marriage certificate.
[10] It is the
applicant’s submission that none of the deceased’s family
had met the first respondent prior to the deceased’s
death and
that the family was not even aware of her existence. The first
respondent did not even attend the deceased’s funeral
to pay
her respects.
[11] The applicant
further submitted that she never gave permission to the deceased that
he may enter into another marriage and
that he entered into a
marriage with the first respondent without her knowledge, consent nor
permission. Applicant stated that
her consent is a requirement in
accordance with the Ndebele culture.
First
respondent’s version
[12]
The first respondent submits that on 5 May 2005, she entered into a
civil marriage with the deceased. (See
civil
marriage certificate
2
)
and
on 12 November 2005, they entered into a Ndebele customary marriage.
The first respondent’s family requested
lobola
payment
in the amount of R6000, 00 from the deceased. An amount of only
R2000, 00 was paid by the deceased brother, Jacob Mahlangu,
on behalf
of the deceased to the first respondent’s uncle.
[13] The deceased
never informed the first respondent that he was married to someone
else in terms of a customary marriage. The
relationship between the
deceased and the first respondent continued from 2005 until 2007 when
it ended due to the first respondent’s
inability to bear
children.
[14] There are three
material issues for determination, namely:
14.1 the validity of
the customary marriage between the deceased and the applicant which
took place on 29 April 2000;
14.2 the validity of
the civil marriage between the deceased and the first respondent
which took place on 13 May 2005;
14.3 the validity of
the customary marriage between the deceased and the first respondent
which took place on 12 November 2005.
[15] Both the
applicant’s and the respondent’s expert witnesses,
Professor Pieter Bakker and Professor Jan Christoffel
Bekker
respectively, are professors in the Department of Private Law at the
University of Pretoria and both regard themselves as
experts in
customary family law on the basis of their qualifications and
practical experiences. The written reports of the experts
contributed
much to the substance of this judgment and I express my gratitude to
them.
[16]
The recognition of customary marriages is governed by the
Recognition
of Customary Marriages Act 120 of 1998
(“the
Recognition Act”).
The requirements for
validity of customary marriages are provided in section 3 of the
Recognition Act:
“
(1)
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
(iii) the
marriage must be negotiated and entered into or celebrated in
accordance with customary law.
(2) Save as
provided in section 10(1), no spouse in a customary marriage shall be
competent to enter into a marriage under the Marriage
Act, 1961 (Act
25 of 1961), during the subsistence of such customary marriage.
[18] With regard to
section 3 (3) of the Recognition Act, the following requirements need
to be present for a customary marriage
to be valid:
(1) consent of the
fathers and the grooms;
(2)
lobola
agreement;
and
(3) incorporation of
the bride into the husband’s family.
[19] The
registration of customary marriages is provided in section 4 of the
Recognition Act:
“
(1)
The spouses of a customary marriage have a duty to ensure that their
marriage is registered.
(2) Either spouse
may apply to the registration officer in the prescribed form for the
registration of his or her customary marriage
and must furnish the
registering officer with the prescribed information and any
additional information which the registering officer
may require in
order to satisfy himself or herself as to the existence of the
marriage.
(3)
A customary marriage
-
a) entered into
before the commencement of this Act, and which is not registered in
terms of any other law, must be registered within
a period of 12
months after that commencement or within such longer period as the
Minister may from time to time prescribe by notice
in the Gazette; or
b) entered into
after the commencement of this Act, must be registered within a
period of three months after the conclusion of the
marriage or within
such longer period as the Minister may from time to time prescribe by
notice in the Gazette.
(4) (a) A
registering officer must, if satisfied that the spouses concluded a
valid customary marriage, register the marriage by
recording the
identity of the spouses, the date of the marriage, any lobola agreed
to and any other particulars prescribed.
(b) The
registering officer must issue to the spouses a certificate of
registration, bearing the prescribed particulars.
[20]
I would first deal with the validity of the customary marriage of the
applicant and the deceased. The applicant submitted that
she was
married to the deceased in terms of customary law since April 1986.
Lobola
agreement
was entered into between the two families, celebration was held and
the applicant was incorporated into the deceased’s
family
through the
ukuvunula
ritual.
The applicant still lives with her mother-in-law. The customary
marriage was not registered in terms of section 4 of the
Recognition
Act.
[21] Both parties’
expert witnesses agree that the applicant’s customary marriage
complies with section 3 (1) of the
Recognition Act. However, the
first respondent’s expert witness, Professor Bekker raised two
questions, firstly the applicant’s
surname of “Nhlapo”
instead of “Mahlangu” and secondly the matter of the
traditional council issuing a
customary marriage certificate on
behalf of the applicant.
[22]
Regarding the applicant’s “Nhlapo” surname, an
affidavit by Gladys Sphenge Mahlangu, the applicant’s
niece was
presented explaining that the applicant’s biological father was
a Nhlapo and the applicant was raised by her mother
and uncle, the
Skhosanas. This explained the
lobola
agreement
being between the Skhosanas and the Mahlangus. In my opinion, the
applicant’s surname has no bearings whatsoever
on her marital
status. It is a choice of every married woman to either use her
maiden name or her married name. The applicant clearly
chose to use
her maiden name.
[23] In my view the
customary marriage certificate issued by the traditional council also
do not have any bearings on the validity
of the applicant’s
customary marriage. Section 4 (9) of the Recognition Act, provides
that failure to register a customary
marriage does not affect the
validity of that marriage. It is noteworthy that the applicant had,
after the deceased’s death,
attempted to have her customary
marriage registered at the Department of Home Affairs but due to the
existence of the first respondent’s
civil marriage in the
records, she was unable to register her customary marriage.
[24] I am satisfied
that the customary marriage concluded between the applicant and the
deceased complied with all the requirements
and is a valid legal
customary marriage by virtue of section 3 (1) of the Recognition Act.
Applicant was a spouse in a valid customary
marriage with the
deceased. The marriage was negotiated, entered into and celebrated in
accordance with the Ndebele customary law.
[25] I now turn to a
consideration of the question whether, in the conclusion that the
applicant’s customary union is valid,
the civil marriage of the
first respondent contracted on 13 May 2005 is valid. It is clear that
this civil marriage was concluded
in contravention of section 3 (2)
of the Recognition Act which clearly provides that no spouse in a
customary marriage shall be
competent to enter into a marriage under
the Marriage Act, 1961 (Act 25 of 1961) during the subsistence of
such customary marriage
save as provided in section 10 (1). Section
10 (1) of the Recognition Act provides that:
“
(1)
A man and a woman between whom a customary marriage subsists are
competent to contract a marriage with each other under the
Marriage
Act, 1961 (Act 25 of 1961), if neither of them is a spouse in a
subsisting customary marriage with any other person”.
[26]
The
Marriage
and Matrimonial Property Law Amendment Act 3 of 1988,
came
into effect on 2 December 1988 and prevents any person who is a
partner in a customary union from contracting a marriage with
another
person during the subsistence of that union
3
.
The alleged civil marriage of the first respondent to the deceased
contracted in or about 2005, whilst the deceased was in a customary
marriage with the applicant cannot therefore be recognised as legal
and is null and void. It was not legally competent for the
deceased
to contract a civil marriage with the first respondent during the
subsistence of the customary marriage between the deceased
and the
applicant.
[27]
Finally in consideration of the validity of the customary marriage
between the first respondent and the deceased which took
place on 12
November 2005, the first respondent submitted that the deceased’s
brother, Jacob Mahlangu and the first respondent’s
uncle were
witnesses to the part payment of the
lobola.
[28] The identity of
Jacob Mahlangu is however disputed by the applicant and the
deceased’s family who submitted that the
deceased had no
brother named Jacob. The applicant stated that she never gave
permission to the deceased to enter into a further
marriage in
accordance with their Ndebele culture and that the deceased entered
into the marriage without her knowledge, consent
nor permission.
[29]
The first respondent’s counsel
4
argued that to claim nullity of the first respondent’s
customary marriage due to non-compliance with the Ndebele traditions
constitutes violation of the right to dignity of every woman in a
subsequent customary marriage who did not have the knowledge
that her
husband was already married. It was counsel’s contention that
the first respondent entered into the customary marriage
in good
faith and that she should not be punished for the deceased’s
failure to uphold the Ndebele traditions. Counsel further
argued that
the Recognition Act should extend its protection to subsequent
spouses by recognising their customary marriages even
if they do not
comply with the Recognition Act. I do not agree with this argument.
[30]
The Constitutional Court in
Mayelane
v Ngwenyama and another (Women’s Legal Centre Trust and Others
as amici curiae)
2013 (8) BCLR 918
CC
held.
“
[71]
Are the first wife’s rights to equality and human dignity
compatible with allowing her husband to marry another woman
without
her consent? We think not.
—
[72] Second,
where subsequent customary marriages are entered into without the
knowledge or consent of the first wife, she is unable
to consider or
protect her own position. She cannot take an informed decision on her
personal life, her sexual or reproductive
health, or on the possibly
adverse proprietary consequences of a subsequent customary marriage.
Any notion of the first wife’s
equality with her husband would
be completely undermined if he were able to introduce a new marriage
partner to their domestic
life without her consent.
[74] Given that
marriage is a highly personal and private contract, it would be a
blatant intrusion on the dignity of one partner
to introduce a new
member to that union without obtaining that partner’s consent”.
[31]
In
casu,
the
first respondent’s customary marriage was not celebrated in
accordance with the customary law and she was not handed over
to the
deceased’s family through the
ukuvundula
(incorporation
ritual). In my view, the customary marriage does not comply with the
requirements in section 3 (1) (b) of the Recognition
Act.
[32]
Customary marriage not only creates a bond between the two
individuals but also creates a bond between the two families. The
ritual of the
ukuvunula
creates
a bond between the bride and the ancestors of her husband’s
family. The
ukuvunula
ritual
is conducted by the first wife under the supervision of her
mother-in-law if the husband concludes a second or further marriage
and a valid Ndebele customary marriage cannot be concluded without
the active participation of the first wife
5
.
[33] Both experts
agree that when a man wants to enter into a second customary marriage
he must have the first wife’s approval.
The applicant did not
consent nor permit the deceased to enter into a second customary
marriage with the first respondent. The
applicant was not even aware
of the existence of the first respondent until after the death of the
deceased. It is very strange
that the first respondent was not
curious to meet the deceased’s family during their marriage nor
did she even attend the
deceased’s (her husband) funeral. The
consent of the first wife is a necessary dignity and equality
component of a further
customary marriage in terms of section 3 (1)
(b) of the Recognition Act. It is therefore clear that the first
respondent’s
subsequent customary marriage did not comply with
the consent requirement and cannot be recognised as valid and is null
and void.
[34] I therefore
make the following order:
34.1 The
customary marriage between the applicant and the deceased, Thomas
Jack Mahlangu, contracted on 29 April 2000 is declared
valid;
34.2 the civil
marriage between the first respondent and the deceased be declared
null and void;
34.3 the second
respondent is instructed to expunge the civil marriage of the first
respondent and the deceased from the marriage
register and to
register the customary marriage between the applicant and the
deceased;
34.4 the third
respondent is instructed to withdraw any appointment granted to first
respondent in respect of the
Administration of Estates Act, 66 of
1
965;
34.5 the first
respondent is to disclose all funds collected and received by her as
representative of the deceased, Thomas Jack
Mahlangu and to pay all
such funds collected from any institution or individual into the
trust account of the applicant’s
attorney, Erna Grove’
(until the estate banking account has been opened for the
administration of the estate of the deceased,
Thomas Jack Mahlangu)
within 10 (ten) days of this order;
34.6 First
respondent is ordered to pay the costs of this application.
D S MOLEFE
Judge of the High
Court
APPEARANCES:
Counsel on behalf
of Appellant: Ms. M Horn
Instructed by:
Michelle Horn Attorneys
Counsel on behalf
of Respondent: Adv. M K Steenekamp
Instructed by:
Pretoria Justice Centre
Date Heard: 04
February 2015
Date Delivered:
20 March 2015
1
Ms
M Horn
2
Bundle
page 99 annexure "LMS"
3
Section
(1) (1)
4
Advocate
M K Steenekamp
5
Professor
Bakker's report, bundle page 133