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[2013] ZAGPPHC 308
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Machika v Mthethwa (55842/2011) [2013] ZAGPPHC 308 (24 October 2013)
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REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG HIGH COURT, PRETORIA
CASE
NO: 55842/2011
DATE:24/10/2013
In
the matter between:
TB
MACHIKA
.........................................................
PLAINTIFF
and
DM
MTHETHWA
....................................................
DEFENDANT
JUDGMENT
NKOSI
AJ:
Introduction
[1]
The applicant approached this court for an order in the following
terms:
(a)
that she entered into a marriage with the defendant on the 3rd of May
2008;
(b)
the marriage as alleged by the plaintiff is one contemplated by the
provisions of section 3(1) of the Recognition of Customary
Marriage
Act 120 of 1998.
[1]
Plaintiff was therefore required to prove that: “the marriage
was negotiated and entered into and celebrated in accordance
with
customary law”.
[2]
The Recognition of Customary marriage Act 120 of 1998 prescribes the
validity requirements for the conclusion of a customary
marriage.
Fact in dispute
The
existence or non-existence of the marriage.
The parties evidence
Plaintiff
testified under oath that on or about May 2008 she and the defendant
entered into a customary marriage in Bronkhorstspruit:
[3]
The defendant initiated the Lobolo proceedings or talks with his
family delegates who came to plaintiffs parental home to start
the
negotiations.
[4]
She was not directly involved except her uncle Moses and Lucas
Mahlangu.
[5]
The Defendant was represented by his sisters Sasekant and Randzo.
[6]
She was told by her mother that Lobolo was negotiated as follows:
-
6 Live Cattle
-
8 Cattle @ R1500,00 each
-
Cash in the amount of R10 000,00 paid immediately
-
R1000 for a calf was to be settled later
[8]Two
weeks after the part payment of the Lobolo, plaintiff was told by her
mother that she could go that they had to slaughter
a goat and her
grandmother conducted the ‘ukuyala’ to her how to behave.
After the ‘ukuyala’ her mother
gave her a dress and a
blanket, after mother took her to the garage where defendents sisters
were waiting.
[9]
Her mother handed her over to the defendant’s sisters Sasekani
and Randzo and they drove to Bushbuckridge to a place called
Rolle.
They arrived late at night. The Defendant was also travelling with
them.
[10]
On arrival in Rolle there were people waiting for them. There were
neighbours and church members to welcome them that night.
[11]
The following day she was dressed in new clothes specifically
purchased for her with a head band to cover her head.
[12]
She was subjected to another ‘ukulaya’ coaching by her
in-laws who told her to always support her husband, taking
care of
him. They further informed her that defendant was a child from a
previous marriage and they gave her money, the amount
of which was
not disclosed as pocket money.
[13]
They had a good day, had drinks and food. They spent two days and
thereafter drove back to Middelburg where the defendant had
a house
and they stayed together as husband and wife. She left Middelburg on
8 June 2011 while on maternity and later gave birth
to their
daughter. According to her tradition she had to go and stay with her
mother after giving birth at least for 10 days.
[14]
On her return to their house in Middelburg she found defendant with
another woman. Defendant introduced this woman as a girlfriend
to
him. She immediately called her mother and told her about this
problem. She further called her uncle and told him about this.
Uncle
Lucas spoke to the defendant and she overheard him apologising to her
uncle.
[7]
The woman found with the defendant refused to leave and started
quarrelling with her. A month later she requested the defendant
to
register for a birth certificate and he refused. This made her to
register the baby in her own surname as a result, as he constantly
refused to accompany her to the Department of Home Affairs.
[8]
Defendant delayed to pay the balance of the Lobolo. He started asking
as if he was not married to her after she found him with
another
woman. On the 8 of June 2009, the defendant signed an affidavit
confirming his marriage to her.
[9]
It is her belief, as a Christian, that she will not be subjected to a
polygamous marriage.
She
had not changed her surname to Mthetwa’s as they had not yet
signed. She remained Machika.
[10]
She confirmed that she did not know that she had to register the
customary marriage at the Department of Home Affairs.
On cross-examination
[11]
She confirmed to having a child prior to her relationship with the
defendant.
The
child is V M, a six years old boy. The name of the child’s L M.
She
was never married to Mahlangu but his child is given the correct
surname.
[12]
It was put to her that there was no valid customary marriage between
the Defendant and herself as they did not follow the indispensable
‘ukuyala’ custom in Bushhuckridge and that she was not
officially handed over to her in-laws. She was only requested
to stay
with Defendant pending final payment of Lobolo and the proper
cultural ceremony to solemnize the marriage.
[13]
It was further put to her that if she had been taken through the
proper ‘ukulaya/ukuyaia’ customs she could not
burn the
defendant’s clothes.
She
said that she was provoked by another women, no name given, whom she
received a call from Middelburg. She had to drive about
80km from
Bronkhorstspruit to Middelburg to sort this woman out.
She
admits burning defendant’s clothes and stopped short from
burning the whole house.
[14]
It was put to her further that the date of final Lobolo payment and
the date of the customary marriage or celebration to conclude
the
process was not yet announced. Therefore there had been no marriage.
On re-examination
[15]
She said that defendant has been involved with other woman and she
wants a divorce.
[16]
1st Wittness: Lucas Masango under oath confirmed that he is the
plaintiffs uncle and that he was involved in the Lobolo negotiations
representing Plaintiff. It was his evidence that the defendant did
approach the bride’s family to initiate the Lobolo talks.
That
was done and portion of Lobolo was paid with the balance of R1000,00
for a calf and six life cattle’s. He could not
assist the court
in confirming whether there was an official consummation of the
marriage in terms of the Ndebele customs.
He
was unfortunately not part of the crew who travelled with the
plaintiff to Bushbuckridge. This is an indication that there was
no
official handing over of the bride to confirm consummation of the
marriage in terms of the customary law.
He
confirmed that they informally agreed that though the Lobolo was
incomplete the defendant was entitled to stay with his wife
as he had
a house in Middelburg.
No
date was set for the official wedding where every person, relatives,
friends and neighbours would come and witness the marriage.
He
confirmed that both Ndebele and Shangaai cultures had to be combined
to seal the relationship.
[25]
The issue of plaintiff going to her parents place soon after giving
birth was confirmed as the culture of the Ndebele people.
He
confirmed that plaintiff called him at a time when she discovered
that defendant had another woman in the house while she was
on
maternity. This was sorted out between himself and the defendant.
[26]
This strengthens the argument that they were not married as yet.
Should there be a problem between the two parties:
(a)
if caused by the husband the woman must report him to her in-laws and
not to her own parents or uncle;
(b)
if caused by the woman the husband will have to report her to his
in-laws or her parents.
There
is no hybrid or short-circuit to this culture which is applicable to
all Nguni cultures including Zulus, Swazis, Xhosas, Ndebele
and
Shangaan speaking people.
[27]
If not yet married then the converse is true on cross-examination.
[28]
He confirmed that he was not aware that plaintiff burnt defendant’s
clothes that she threatened to burn the whole house.
He
was further confronted with the sms which was sent by plaintiff to
the defendant that “we can stay without a marriage but
you can
take care of the kids”.
He
was not aware further that the child Unathi was not registered in the
defendant’s surname.
It
was put to him that the reason for this is that plaintiff was of the
view that they are not married. He further confirmed that
there was
no date set for the wedding ceremony to seal the requirements of the
customary marriage.
He
further confirmed that there was no beast slaughtering but only
slaughtered a goat for plaintiffs mother.
Plaintiff
was not given Mafumeza or Godschild to mark the completion of the
marriage.
Mrs
Lina Msiza testified that she is one of those who accompanied the
plaintiff to Bushbuckridge and could not take the matter any
further
in confirming the existence of the marriage.
Plaintiff
closed its case without calling further witnesses.
Mr
Omar for the defendant brought an application for absolution from the
instance which was found to be prematurely done.
[17]
Dawson Mthetwa (the plaintiff) was called in to lead his evidence
under oath. He denied that he was married to the plaintiff
in terms
of the customary marriage. He confirmed that the first phase of the
Lobolo negotiations and the part payment thereof.
[18]
He denied that the process was completed as required in terms of the
Shangaan customs and culture which requires that full
payment of the
Lobolo had to be done, a date for the consummation of the marriage
had to be arranged and agreed upon by the two
families.
[19]
He said that he had to pay the balance of the Lobolo and slaughter a
beast and half of the carcass to be given to the bride’s
parents; had to do a ‘mshongola dance’ at the bride’s
home indicating that he is being accepted as the son-in-law.
Traditional food is served to all present.
After
this they all leave and go back home leaving the bride with her
parents and wait for her to be delivered on a date agreed
upon
between the families.
On
the date of her delivery the plaintiff and her delegates will find
cattle tied to a tree waiting for them to slaughter it. Half
of its
carcass will be given to the bridegroom’s family and they will
take the other half for themselves.
After
that they will undergo a process called ‘ukulaya’ (in
Shangaan) and ‘ukuyala’ (in Ndebele). The couple
will be
seated outside side by side with the bride having her elders next to
her.
[20]
During that process the chief of the area, or his induna in case of
his absence or any representative to witness. The bride
will be
dressed with the attire provided by the bridegroom.
The
‘ukulaya’ will begin in front of the community, induna,
friends and relatives.
It
is a requirement that the bride and the groom have to be together
during that process.
[21]
Plaintiffs evidence that she was “requested” by his
sisters, at Bronkhorstspruit, to join him in Middelburg was
not the
official handing over. This was just a request for her to be allowed
to join the defendant in Middelburg as he was staying
alone after a
divorce from his previous wife.
[22]
Asked if he has a child with the plaintiff? His response was that he
would like to believe so but the plaintiff created a doubt
in his
mind by skipping sleeping at home and coming back the next morning
with the child without informing him. She refused to
register the
child in his surname.
[23]
This was a subject of a meeting convened by plaintiffs uncle after
the defendant lodged a complaint to them:
(a)
defendant had a name proposed for the child but the plaintiff refused
to take it but went on to register the child in her own
surname;
(b)
the reason she gave, in the presence of the uncles and defendant’s
sisters is that it is because they are not yet married.
[36]
He further mentioned that they were not given a godchild as they had
not yet finished with the traditional or customary marriage
requirements.
[37]
Defendant further referred to two sms messages sent to him by the
plaintiff.
(a)
15 August 2010: “we can still be together without a wedding
just want the Husband and kids” from Thembi (plaintiff);
(b)
24 May 2010: “as soon as my demands are met and you set a date
with your family and inform my family and stop pressuring
me”
from Thembi.
The
two messages were not discovered but were shown to the parties in
court and all agreed that they came from the plaintiff’s
cell
phone number: ....
[38]
Defendant confirmed that he had the plaintiff and child in his
medical aid to show that he wanted to take care of them.
[39]
The affidavit discovered in the court papers was confirmed to have
been signed by the defendant on request by plaintiff as
she claimed
to have had an intention to register her parents and his parents for
funeral cover. The affidavit was meant for trial
purpose only on
insistence by the plaintiff.
[40]
The plaintiff refused to go to the same church with the defendant
until such time “we get married”.
[41]
The plaintiff burnt his clothes and broke the windows, mirrors,
televisions and took photographs or what she destroyed. The
police
were called but defendant decided to let it go.
[42]
Defendant further mentioned some elements of dishonesty about the
plaintiff citing that she was ashamed to be seen with him.
She would
often lie to him and attending Macufe festival with friends. She even
went to the official opening of the World Cup in
2010 leaving him
behind, and going to important events with friends. These taken
together would not constitute a married woman.
On cross-examination
[43]
It emerged that defendant had previously married and divorced twice
and that plaintiff has always been a friend to him until
they started
dating. He made it clear to her that he did not want a “vat en
sit” arrangement and had to follow all
procedures to get
properly married but plaintiffs behaviour made him not to finalize
the marriage process and therefore there was
no marriage.
Sasekani
Nomyongo testified under oath that she is defendant’s elder
sister. She was involved in the Lobolo arrangements and
denied that
the plaintiff was customarily married to the defendant.
She
testified that the process to get married was not completed after the
part-payment of the Lobolo.
She
outlined what was outstanding to have the customary marriage to be
completed in terms of the Shangaan culture and customs:
(a)
to settle the balance of 6 live cattle and the R1000,00 to the
plaintiffs parents;
(b)
having done that defendant had to do a slaughtering of a cow at the
Machika family and take half of the cow for his family and
the other
half remaining at the plaintiffs (Machika home);
(c)
a ritual dance called ‘mshongolo’, where the defendant
was expected to be dressed traditionally and do some dancing
to drum
beating, and to be accepted as a son in law;
(d)
the plaintiffs family had to prepare traditional food for the
bridegroom’s people; and
(e)
after this ‘mshongolo’ dance or ritual is part of the
culture.
[44]
It is only after this process that the plaintiffs family had to
provide a date of handing of their daughter over to the Mthethwa
family:
(a)
on this date there will be eiders from plaintiff’s family, the
Machika’s, and three girls in their company;
(b)
on their arrival they will find a cow tied to the three to be
slaughtered by the Machika’s and take half of it and the
other
half left for the defendant’s family.
[45]
This is a way of bringing together the two families ancestors to
confirm a new family
relationship:
(a)
then they all get into the house and it is where the bride will be
clothed with Shangaan traditional attire;
(b)
the Mthethwa’s will also cloth the plaintiff’s uncle,
grandmother, aunt or sister and in turn the Machika’s
will
clothe the Mthetwa’s as well.
[46]
After this process they all go out to the court yard:
(a)
there will be neighbours, community, friends, induna. It is a
customary that in such ceremonies a chief or his induna will be
invited. (This also happens when there is a funeral);
(b)
the ceremony will be witnessed by all present that defendant is now
getting married and that plaintiff becomes a makoti, daughter
in law.
[47]
A grass-mat will be sprawled on the ground for the bride and the
bridegroom:
(a)
the bride’s family will sit on the left and the bridegroom on
the right hand side;
(b)
this will be followed by the ‘ukulaya’ process by the
defendant’s grandmother, auntie and the elder sister:
(i)
starting with the plaintiff telling her of how they live in the
Mtethwa family, how to behave like a married woman, to take
care of
the husband at all material times, to cook and wash for him and the
general respect to all;
(ii)
then the defendant is told, in her presence, how to take care of his
wife and to provide for his family and to behave properly.
[48]
After the ‘ukulaya’ process a child from the family will
be given to the plaintiff as the godchild and to take
her as her
child and be responsible for all her needs:
(a)
the child will be let to sit down on the ground and jump over her
twice. This signified that the plaintiff must bear children
for the
Mthethwa’s, most expected of her to bear more children for the
family. After the jumping she would take the child
in her arms
signifying that she accepts the child as hers;
(b)
the Machika’s will in turn re-affirm their ‘ukuyala’
process to the plaintiff in the presence of the defendant
as well.
[49]
When this process is over the plaintiffs family will avail presents
like pots and plates and this will be followed by general
exchange of
gifts and the ululation and singing takes place having witnessed the
marriage ceremony in its final process in the
full view of the induna
and the community.
[50]
The celebration starts and the people will have the prepared
traditional meal: ground nuts, masonja, sorghum beer, mealie-meal
or
pap, meat and vegetables.
[51]
After the celebration the three teenage girls who came with the bride
and her elders will remain behind with her for a week
after the
delegates and the plaintiffs family have left. The girls are referred
to as vakoroki in Shangaan culture.
[52]
This concludes the customary marriage done in full view of the
public. According to this witness, none of these happened, and
according to her the plaintiff was not yet married to the defendant,
as required or dictated by their own custom or culture.
On cross-examination
[53]
She confirmed that she was part of the people who went to plaintiffs
place, soon after the part payment of the Lobolo, to request
that
plaintiff be released to defendant,
as
the defendant was staying alone and working in Middelburg: It was a
special request and had to leave at night and they travelled
with her
to Bushbuckridge before she could join him in Middelburg. There was
no date set for the marriage ceremony and she was
taken to
Bushbuckridge first for her to see where defendant came from called
‘ekhaya’. The Lobolo was not paid in full
and the date
for that was not yet set. The bride was not delivered for the purpose
of the marriage ceremony as it was still going
to be done.
Defendant
closed its case without calling further witnesses.
Weighing of argument and submissions
[54]
Plaintiff submitted that she was married to the defendant by
customary law as envisaged by section 3(1) of the Recognition
of
Customary Marriages Act 120 of 1988 which prescribes the validity
requirements for the conclusion of a customary marriage.
Of
importance in this matter is section 3(1 )(b) which provides that:
“the marriage must be negotiated into or celebrated
in
accordance with customary law” which I agree with. This
requirement entails that:
(a)
capacity to enter into customary marriage;
(b)
consent of the bridegroom and the bride;
(c)
consent of the father (or guardian) of the bride;
(d)
payment of Lobolo; and
(e)
handing over of the bride.
[55]
The first three requirements are not in real dispute except the
bridegroom’s consent to the marriage as opposed to implied
consent to initiate the Lobolo proceedings which would lead to the
consummation of the customary marriage if all steps are followed.
The
plaintiff cannot have it both ways: not married when it suits her and
vice versa.
[56]
Lobolo was partly paid and the plaintiffs view was that partly-paid
Lobolo is not an impediment to the consummation of the
marriage
according to her culture. This view was disputed by the defendant
whose stance was that the balance or the outstanding
Lobofo of
R1000,00 and the 6 (six) live cattle had to be paid by him to
conclude the customary marriage which would precede by
the
handing-over of the bride formally in their culture and custom of the
Shangaan.
This
view was expressed in Motsoatswa and another 2011(2) SA 324 657:
where it was confirmed that Lobolo forms an integral part
of the
customary marriage. The same view was expressed in Southern v
Moropane case number 14295/10 SAGPJHC 146 about Lobolo or
part-payment thereof.
The
two cases did not deal with the aspects of the delivery of the bride.
[57]
The delivery process is an event witnessed by the community,
neighbours, friends and relatives as against delivery in the
commercial sense. Other cultures do invite the chief of the area or
induna if they stay in the rural villages and the township residents
do the process without the chief or induna. This does not mean to
overlook the ritual adherence which is more important. It has
been
widely accepted that the couple about to get married can vaive other
steps by agreement by the families. This view was accepted
in Mabuza
v Mbatha
2003 (4) SA 218
(c). This view might not be accepted as
bringing a change to customary practices as known by different
cultural groups.
This
judgment cannot be read to mean easy deviation to acceptable cultural
and customary practices.
[58]
In customary law the bride would not independently give consent to
the marriage or customary marriage as a woman was a perpetual
minor
even if she had attained the age of majority. The father or her
guardian would be the only person to accept the bridegroom
to be on
her behaif. This has been a generally accepted practice amongst the
Nguni’s (The Shangaans, Swazis, Ndebele, Xhosa
and Zulus).
[59]
The delivery of the bride to the groom’s place short of the
full ceremony of slaughtering, traditional dance and rituals
as
outlined by the defendant’s witness would render the process to
the consummation of the customary marriage in complete.
[60]
The recently customary married couple can then proceed to the
Department of Home Affairs to register their marriage in terms
of the
Recognition of the Customary Act of 1998. This Act does not seek to
prescribe the customary practice to be followed before
the marriage
can be registered. It is there to recognise and legitimise the
parties’ chosen customary processes prior to
the registration
of the customary marriage.
[61]
This Act seeks to regulate, amongst other things, the matrimonial
property rights of the newly wedded and to determine all
their rights
in case of further marriage by the husband.
[62]
This Act comes into operation to the parties once their marriage is
registered as required by it and if not registered the
matrimonial
property rights will not be applicable.
[63]
The handing over of the bride is what distinguishes cohabitation from
marriage. The fact that the woman is requested to stay
with the groom
after payment of Lobolo or part of it does not mean to short-circuit
the true African customary marriage as practiced.
This view was
supported by the Mathapeng AJ judgment quoted above.
Facts found to be proven
[64]
Having heard the parties to this matter I am satisfied that on the
facts and arguments placed before me, no customary marriage
was shown
to have existed between the plaintiff and defendant.
Court order
[65]
In the circumstance I make the following order:
(a)
The plaintiff’s case is dismissed with costs.
VRSN
NKOSI
ACTING
JUDGE OF THE|HIGH COURT
COUNSEL
FOR APPLICANT: ADV. J JOOSTE
APPLICANT’S
A TTORNEYS: SHAPIRO & SHAPIRO A TTORNEYS
COUNSEL
FOR RESPONDENT: ADV. Z OMAR
RESPONDENTS’
ATTORNEYS: C/O FRIEDLAND HART SOLOMON,
NICOLSON
ATTORNEYS
DA
TE OF HEARING:30 SEPTEMBER 2013
DA
TE OF JUDGMENT: 24 October 2013