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[2015] ZAKZPHC 20
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Sithole v Gumede and Another (5639/2014) [2015] ZAKZPHC 20 (14 April 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, PIETERMARITZBURG
CASE
NO 5639/2014
In the
matter between:
NOZIPHO
SITHOLE
...............................................................................................................
Applicant
and
LINDA
BRADFORD
GUMEDE
..................................................................................
First
Respondent
MSUNDUZI
MUNICIPALITY
................................................................................
Second
Respondent
JUDGMENT
NTSHANGASE
J
Introduction
[1]
In an application brought under the provisions of the Prevention of
Illegal Eviction and Unlawful Occupation of Land Act, Act
19 of 1998
( the PIE Act) the applicant seeks an order declaring the first
respondent and all others who, under or through the
first respondent
occupy immovable property situate at 739 Imbali, Unit 15 fully
described as Erf 739 Edendale Q, Registration
Division FT Province of
KwaZulu-Natal (the property) be declared to be in unlawful occupation
of the property, and for an order
directing the eviction of the first
respondent and all who occupy under or through him from such
property.
[2]
In opposition to the application the first respondent sets out the
grounds for upon which his entitlement to occupy the property
is
based as follows:
(a) ‘Applicant and I were previously in a romantic
relationship, pursuant to which we commenced procedures with a view
to
concluding a marriage in terms of customary law.’
(b) ‘There is a dispute as to the effect of the
procedures that were followed. I am advised and I respectfully
submit
that the procedures were completed to such an extent that our
marriage in customary law was in fact concluded. This is
disputed
by the applicant.’
(c) ‘Be that as it may, the
property in question, i.e. the property at 739 Imbali, Unit 15, was
acquired by us jointly with
the intention that this would become a
joint asset that we would own together as man and wife.’
[3]
It appears from the foregoing that the first respondent’s
grounds for entitlement to remain in occupation of the property
are
twofold, namely that the property is owned jointly by the applicant
and himself (the parties) by virtue of their customary
marriage and
their joint acquisition of the property.
Background
[4]
It is common cause that the applicant is the registered owner of the
property. It is also common cause that the parties
engaged in a
romantic relationship from about 1997. The parties cohabited at 915
Mkhoba Road. The parties’ relationship
ceased during
2009. It is common cause that subsequent to the cessation of
that relationship they entered into a lease agreement
for his further
occupation of the property in terms whereof the he was to pay
R2000.00 per month. (Later increased to R3000.00
per month).
The
Issues
[5]
I turn now to deal with the question whether the parties contracted a
customary marriage subsequent to the commencement of their
romantic
relationship in 1997, or not. It is not in dispute that
the parties had, in their relationship contemplated
being united in
marriage. Various customary preliminary rituals were
performed. There was part payment of lobolo as
well. According
to the applicant no marriage was contracted because not all the
rituals, ceremonies and requirements for the coming
into existence of
a customary marriage were completed and, as a result thereof, they
did not register a customary marriage. The
first respondent avers
that in the process the parties performed the most important ritual
that is central to a customary marriage,
whereby the two families
each contributed one goat for slaughter’ for the ancestors of
each family to signify the bringing
together of these ancestors to
enable the bride (in this case the applicant) to be accepted into the
family of the bridegroom and
to legitimise their child.
[6]
What is central in the creation of a customary marriage lies in the
fulfilment of the requirements for a valid customary marriage
to as
set out in s 3(1) of the Recognition of Customary Marriages Act 120
of 1998 (the Act) as follows:
‘
(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.’
[7]
Counsel for the applicant laments the vagueness of paragraph (b)
above which does not specify the actual requirements for a
valid
customary marriage. It appears to me that the provision in
question in fact left open the mode of negotiating, entering
into and
celebration of the customary marriage because of the diversity of
customary law as applies to various tribes.
[8]
It appears from the papers that the parties were domiciled in the
province of KwaZulu-Natal. The emissaries sent to negotiate
with the prospective bride’s family did so in “Bethlehem,
near Bulwer” in this province. The contemplated
marriage
fell to be ‘negotiated and entered into or celebrated in
accordance with customary law' as applies to KwaZulu-Natal
the
territory of their domicile. A long line of proclamations
codified the customary law in terms whereof the customary marriage
should be negotiated and entered into or celebrated in this, the
parties’ province of domicile. I refer to a few
codifications
of the applicable Customary Law.
Section
148 of Law No 19 of 1891: The Natal Code of Native Law sets out the
custom to be followed in contracting a valid customary
marriage as
requiring -
(a)
the
consent of the father or guardian of the intended wife. Such consent
may not be withheld unreasonably;
(b)
the
consent of the father or the Kraalhead of the intended husband should
such be legally necessary;
(c)
the
declaration in public by the intended wife to the Official Witness on
the marriage day that the proposed marriage is with her
free will and
consent.
Section
59(1)(c) of Proclamation R168 of 1932: The Natal Code of Native Law
and s 59(1)of Proclamation R195 of 1967: The Natal Code
of Bantu Law,
and the KwaZulu Act 6 of 1981 : The KwaZulu Act on the Code of Zulu
Law 1981 have provisions similar to those of
Law No 19 of 1891 except
that the requirement “(c)”reads –
‘
(c) a declaration in public
by the intended wife to the Official Witness at the celebration of
the union that the union is with
her own free will and consent’
[9]
‘The Official Witness is a standing appointment made by a Chief
or headman, and when a customary union has been arranged,
the
guardian of the bride, or the intending spouses themselves, are
obliged to report the proposed customary marriage and the date
and
place fixed for its celebration to the Chief or his deputy or to the
headman as the case may be, who thereupon directs the
Official
Witness to attend at the time and place fixed.’ Thus
Seymour’s Customary Law in
Southern Africa
5ed by J C Bekker (Cape
Town, 1989) at p 118.
In
regard to the officiating function of the Official Witness T W
Bennett with N S Peart in a
Source Book of African Customary Law
for Southern Africa
(Cape Town, Juta 1991) state:
‘
In Natal under the code an
official witness who was obliged to attend all customary weddings,
had to ask the wife publicly at the
ceremony whether she was marrying
of her own free will. If she were silent or demurred, he would
be obliged to stop the wedding
immediately.’
The
Customary Law has, for over a century, as indicated above, regulated
the manner in which customary marriages are here to be
entered into
or celebrated.
[10]
In terms of s 7(2) of the Act the proprietary consequencies of a
customary marriage entered into after commencement of the
Act in
which a spouse is not a partner in any other existing customary
marriage, is a marriage in community of property and of
profit and
loss between the spouses unless such consequences are specifically
excluded by the spouses in an antenuptual contract
which regulates
the matrimonial property system of their marriage.
[11]
The respondent’s claim to a half share in the property stems
from his belief that he and the applicant contracted a customary
marriage which bears the proprietary consequences pertaining to a
marriage in community of property.
[12]
A marriage which does not meet the requirements set out in s 3(1)(a)
and (b) of the Act is null and void
ab initio.
In his
own words the respondent indicates that no marriage was entered into
or celebrated. He states:
“
It is true that we did not
proceed to have a formal celebration or wedding reception in respect
of the marriage. This is because
of the breakdown in our
relationship.’
He
goes on to say –
‘…
that in customary
law, as in western law, the celebration is not required for the
conclusion of the marriage. To the contrary
the purpose of the
wedding reception is to celebrate a marriage that has already been
concluded.”
This
of course ignores that ‘celebration’ is a set
prerequisite for a valid customary marriage. It cannot happen after
the marriage has been concluded. The first respondent has no
legitimate claim to a half share in the applicant’s property;
he is not, with the applicant, a partner in a customary marriage in
community of property.
[13]
I deal now with the claim that he contributed equally in the
procurement of the property and the property at ‘915 Mkhoba
Road.’ The respondent avers that -
‘
(t)he monies that were used
to pay off the bond (on the property) were monies from a business
that applicant and I owned and operated
jointly.’
All
of this is denied by the applicant who points to annexure “B”
to her replying affidavit which reflects her as the
sole purchaser in
the offer to purchase the 915 Mkhoba Road property. She avers
that after commencement of their relationship
the respondent ‘moved
into (her) house situated at 915 Mkhoba Road and (they) began
cohabiting.’ In his response
the respondent states that
‘the property at 915 Mkhoba’ (they) acquired jointly with
the intention that (they) co.
own this as man and wife’.
The applicant avers that ‘during 2009 (she) ended (her)
relationship with the first
respondent and first respondent moved out
of (her) house situated at 915 Mkhoba Road.’ The
respondent does not dispute
this. He instead says no more than
–
‘
I
admit that applicant terminated our arrangement in 2009’
The
respondent’s failure to prove co. ownership of ‘915
Mkhoba Road’ property is evident.
[14]
The respondent has fared no better in his endeavour to show that he
co. owned the property at Imbali. He states that
‘although
the property was registered in the applicant’s name (they)
contributed equally to its acquisition.’
He vaguely further
states that ‘(he) paid roughly half the bond instalments.”
He re-iterates this claim in his specific
answer to paragraph 9 of
the applicant’s founding affidavit as follows:
‘
Applicant informed me that
the bond instalments were in the region of R7 000.’
[15]
Significantly he provides no proof of contributions he made and he
carefully, and without committing himself states:
Accordingly, she required a
monthly contribution from me in the region of R3 500.’
He
does not state that he in fact paid R3500 monthly.
[16]
The applicant denies that the respondent contributed. She obtained a
loan from Nedbank and bought the property in December
2007 for
R275 000 and repaid it at R3600 per month. She also points to
the fact that the Deed of Grant, annexure “NS
I” to the
founding affidavit reflects her as the sole owner. The sole
ownership of the property to the exclusion of
the first respondent is
borne out by the fact that the respondent paid rental for his
occupation of the property.
[17]
The first respondent’s averment that he and the applicant
‘
contributed equally towards the
final payment of the bond’
and
that ‘(t)he monies that were used to pay off the bond were
monies from a business that applicant and (him) had owned and
operated jointly’ is not borne out by the lease agreement,
annexure “A” to the founding affidavit which is between
the applicant only and the owner of the East Street Tavern,
“Skinnies”, Rajhan Chetty.
The
first respondent is untruthful in stating at paragraph 22 of his
answering affidavit that he and applicant owned the “Skinnies”
tavern. It was leased to the applicant. Annexure “A”
shows that it was owned by Chetty and leased to the
applicant alone.
[18]
Any suggestion that there is, in this matter, a dispute of fact which
cannot be resolved on the papers is without merit.
The
respondent has engaged in opposition which lacks
bona
fides.
He is clearly in unlawful
occupation of the property. He falls to be evicted. Upon
eviction he will be in a position
to acquire accommodation on a
rental basis as he was able to do in respect of his occupation of the
property.
The
Order
[19]
I make the following order:
(a) The first respondent and all other persons who
occupy under and/or through the First Respondent, the immovable
property situate
at 739 Imbali, Unit 15 and more fully described as
Erf 739 Edendale Q, Registration Division FT, Province of
KwaZulu-Natal, in
extent 352 square metres are declared to be in
unlawful occupation of the property.
(b) It is directed that the First Respondent, and all
other persons occupying under and/or through the First Respondent, be
evicted
from the property referred to in paragraph (a).
(c) It is directed that the First Respondent, and all
other persons who unlawfully occupy the property referred to in
paragraph
(a), vacate such property with all their movable property
on or before the 8
th
day of May 2015.
(d) In the event of the First Respondent, and all other
persons who unlawfully occupy the immovable property referred to in
paragraph
(a) hereinabove failing to vacate the property by the 8
th
May 2015, the Sheriff of this court shall be and is hereby authorised
to take all reasonable and necessary steps to evict the First
Respondent and all other unlawful occupants from the immovable
property referred to hereinabove after the 8
th
day of May
2015.
(e) The South African Police Service is directed to
afford the Sheriff such assistance in the execution of this order as
he/she
may require.
(f) The First Respondent is ordered to pay the costs of
this application together with any costs reasonably incurred by the
Sheriff
in enforcing these orders.
DATE
OF HEARING: 7 April 2015
DATE
OF JUDGMENT: 14 April 2015
FOR THE APPELLANT: Mr T Manicum, instructed by Mastross
Inc.
FOR THE RESPONDENT: In person