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[2013] ZAFSHC 157
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Sehloho v Minister of Home Affairs and Others (2845/2012) [2013] ZAFSHC 157 (22 August 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No:2845/2012
In the matter between:
SELINAH NKGAILANE
SEHLOHO
...............................................
Applicant
and
MINISTER OF HOME
AFFAIRS
...........................................
1
st
Respondent
MASTER OF THE HIGH
COURT, BLOEMFONTEIN
..........
2
nd
Respondent
MOTEBANG PHILLIP
RAMORENA
.....................................
3
rd
Respondent
_________________________________________________________
JUDGMENT:
SEPATO, AJ
_________________________________________________________
HEARD ON:
1
AUGUST 2013
_________________________________________________________
DELIVERED ON:
22 AUGUST 2013
_________________________________________________________
INTRODUCTION AND
BACKGROUND
[1] This is an
application for an order declaring that the applicant, Selina
Nkgailane Sehloho, had on the 25
th
March 2005,entered into
a valid customary marriage as envisaged in
Section 3(1)
of the
Recognition of Customary Marriages Act 120 of 1998
, the Recognition
Act, with one Kefiloe Michael Ramorena, wholaterdied on the 27
th
May 2011. Further,that in terms of Section 4(7) of the Act, the court
should order the first respondent, the Minister of Home Affairs
to
register such marriage. The first and second respondents have not
opposed the matter, the latter filed notice to abide by the
court’s
ruling. Only the third respondent has opposed the application.He is
the son of the deceased Kefiloe MichaelRamorena,
but not the
applicant’s child.He has been appointed the executor of his
deceased father’s estate by the second respondent,
the Master
of the High Court, Bloemfontein.
[2] In his opposing
affidavit, the third respondent in disputing the validityof the
applicant’s marriageinitially raised two
points in
limine
.
Firstly that, the deceased had failed to comply with the provisions
of Section 7(6) of the Recognition Act in that at the time
of the
alleged marriage to the applicant, the deceased had long been
customarily married to the 3
rd
respondent’s mother,
one Maleshoane Sara Khomari who also died in 2008. Secondly, that the
applicant failed to provide proof
of her alleged marriage to the
deceased by producing what the third respondent claimed to be
customarily termed, theletter of agreement
or the lobola letter.
[3] After I had raised it
with both counsels during the opening address, it was agreed that the
second point in
limine
, actually goes to the merits of the
application as it relates to one of the specified requirements for a
valid customary marriage
in terms of section 3(1) of the Recognition
Act, and that it should therefore be separated and left to be dealt
with as one of
the issues to be determined in themain application.
The questionof the deceased’s non-compliance with section 7(6)
of the
Recognition Act was then argued.
[4] For completeness of
the picture, section 7 of the Recognition Act is titled: “Proprietary
consequences of customary marriages
and contractual capacity of
spouses”.Subsection 6 thereof specifically provides that:
“
A
husband in a customary marriage who wishes to enter into a further
customary marriage with another woman after the commencement
of this
Act must make an application to the court to approve a written
contract which will regulate the future matrimonial property
system
of his marriages.”
[5] After hearing
arguments and having considered authority thereon, I dismissed the
point in
limine
,relying on the interpretation ofsection 7(6)
by the Supreme Court of Appeal in the case of
MN v MM and
Another
2012 (4) SA 527
(SCA).It should be noted that the SCA
in the mentioned case had to settle the legal position regarding the
interpretation of Section
7(6) because there were then, already two
conflicting provincial decisions thereon. One was from the Gauteng
South Court (Johannesburg)
MG v BM and Others
2012 (2)
SA 253
(GSJ) and the other was the appeal on hand, which was from the
North Gauteng High Court(Pretoria)
MM v MN and Another
2010(4) SA 286 (GNP).
[6] Thesame issue as
in
casu
arose in MM’s case. The applicant sought to nullify
her husband’s second customary marriage on the ground that her
husband had failed to comply with the provisions of section 7(6).The
SCA in a unanimous decision, per Ndita AJA at page 536 paragraph
22,
held that:
“
The
section of the Act dealing with the validity of a customary marriage
s (3) is not by any means related or linked to s 7(6).In
striking a
balance between the text and the context of the Act, the preamble
state the purpose the Act seeks to achieve, and specifically
refers
to the validity of customary marriages. …Notwithstanding the
absence of a sanction for non-compliance with s7(6),
the scheme of
the Act and the broader context of the statute compel a conclusion
that the section could never have been intended
to have any impact on
the validity of the second marriage. The scheme of the Act amply
demonstrates that the main purpose of s7(6)
is to determine and
regulate proprietary consequences, and does not seek to invalidate an
otherwise valid polygamous customary
marriage which complies with
s3.”
[7]
Better put still, Ponnan JA in the same judgment at 541 para [36]
stated:
“
Viewing
the scheme of the Recognition Act as a whole therefore, it is plain
that s7(6) of the Act does not purport to regulate the
validity of
polygynous customary marriages. That is sought to be achieved by s 3…
The Act itself does not contain an express
provision to the effect
that non-compliance with s 7(6) results, without more, in invalidity
of the second customary marriage.…There
are strong indications
and reasons why non-compliance with s 7(6)ought not to result in the
second customary marriage being a nullity.”
On that note, the
application as set out above in paragraph one, was then proceeded
with.
THE CASE TO BE
DECIDED
THE FACTS
[8] The applicant’s
case as set out in her founding affidavit is that, she is an adult
female person residing at 13002 Phase
6, Bloemfontein, Free State
province. She met with the deceased Kefiloe Michael Ramorena in 2001
and started staying together in
2004 as husband and wife. In 2005 she
and the deceased entered into a customary marriage. She was 25 years
old and the deceased
was 43 years old then. They had both consented
to the marriage. The marriage was preceded by lobola negotiations,
starting in 2004,
between her and the deceased’s families. Her
family was represented by her father, his grandfather and brother.
The deceased
family was represented by the deceased’sgrandfather,his
uncle and brothers.
[10] Ten thousand rand
was paid over to her family as lobola, though not as a once off.The
said marriage was negotiated and entered
into and celebrated in
accordance with customary law. She attached confirmatory affidavits
to her founding affidavit, thatof her
father Mohlalefi Edward Sehloho
F3, of the deceased’s two brothers, Mokone Isaac Ramorena and
Sello Jacob Ramorena as F4
and F5 respectively, lastly of their
neighbour Liketso Simon Sebutso as F6.
[11] The said marriage
was celebrated in Botshabelo at the deceased’s sister’s
place on the 25
th
March 2005 where applicant was welcomed
into the family, and another welcoming ceremony was held on the
following day at the deceased’s
home, also in Botshabelo, the
26
th
March 2005. There are no children born of their
marriage. However, upon their meeting, the deceased had informed her
that he had
four children with two different women from previous
relationships. The third respondent was one of them, but that the
deceased
was never married to his mother. Applicant stayed with the
deceased in Bloemfontein whilst all these other persons resided in
Botshabelo.
According to her, the deceased’s children never
accepted her as their stepmother and neither did they enjoy any good
relations
with her.
[12] The third
respondent’s mother passed away in 2008 and applicant was the
one who persuaded the deceased to bury her, which
he did in
Botshabelo. Subsequently, the deceased also passed away on the 27
th
May 2011. At that time, the applicant and the deceased had not yet
registered their customary marriage with the Department of Home
Affairs as they did not know that they were required to do so.
Consequent to the deceased’s death,the third respondent
reported
and got the deceased’s estate registered with the
second respondent who issued him with letters of executorship to wind
up
the estate. The applicant then discovered that she had not been
named as the deceased’scustomary law surviving spouse in the
estate file. She lodged an objection with the second respondent in
this regard who required of her to bring proof of her marriage
to the
deceased. She unsuccessfully tried to register the marriage and
obtain such proof at Home Affairs Department, hence this
application.
[13] In response to the
third respondent’s opposing affidavit, the applicant filed a
replying affidavit in which amongst others,
she stated that actually,
she and the deceased had intended to go and enter into a another
marriage, by civil rights, in addition
to the customary marriage
already existing, at Home Affairs and that they did not intend to
register the latter marriage. That
however, the deceased fell ill
and, eventually died before that could be accomplished.In paragraph
3.4 she added that had it not
been of the problems regarding the
deceased’s estate, she would honestly have never thought of
registering their customary
marriage but maintaining that same had
been validly concluded in accordance with their customs. I will
return to this statement
later on.
[14] She further
explained that they had unsuccessfully searched for the lobola letter
from the outset, but could only find annexure
SNS1 to her affidavit.
This,according to her is proof of payment of the second instalment of
the agreed amount of R10000.The said
letter is dated the 10
th
January 2004 and is written in Sesotho with which I am
familiar.Loosely translated it states that:
“
following
the discussions between the parents on the tenth, a sum of R2000 has
been handed over. They will return again.”
She
actually argued that in as much as the third respondent was insisting
that the deceased was married to his late mother but has
not produced
any lobola letter therefore, he could not be heard to be disputing
applicant’s marriage solely for want of same.
[15] Lastly, she
maintained that their marriage was celebrated at the third respondent
aunt’s home and that the third respondent
does carry knowledge
of that fact as his own siblings were present there. She further
responded to other issues that have been
raised in the opposing
affidavit which I will mention later on as they actually have no
bearing on the question to be decided herein.
The third respondent is
disputing the applicant’s case, basically in its totality
regarding the existence of a valid marriage.
Firstly as stated above,
the respondent denies that there were ever any negotiations of any
nature in which a lobola agreement
was reached, between the
applicant’s and the deceased families, at any stage. He
questioned why the signatories to the alleged
lobola letter SNS1 are,
except for the applicant’s father,persons different from those
initially named in the founding affidavit
and further gave a number
of reasons why such witnesses’ purported confirmation of the
applicant’s version should not
be believed but rather be
dismissed as a fabrication. Iwill not detail those reasons out as it
will appear hereunder that it is
not necessary to do so. Further he
denies that the alleged marriage was celebrated as alleged by the
applicant,arguing that according
to their custom, a customary
marriage is a union of families not just the individuals, and that in
the event of one taking place,
it would be talked about in the family
and everyone would know of it, and that it is therefore impossible
that their father would
have been married without he having heard of
that.
THE ISSUE AND THE
APPLICABLE LAW
[16] The issue to be
determined herein is whether the applicant and the deceased had as a
matter of fact entered into a valid customary
marriage as envisaged
in section 3 of the Recognition Act. If found so, the court should
accordingly make an order in terms of
section 4(7) thereof ordering
the registration of the marriage. It is important to look at the
express provisions of section 3.
Section 3 is titled:Requirements for
validity of customary marriages.
Section 3(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
(b) the marriage must be
negotiated and entered into or celebrated in accordance with
customary law.
[17] Once these three
requirements have been fulfilled, a customary marriage, whether
monogamous or polygamous, comes into existence.(See
MN v MM and
Another
,
supra
at 536 para[23].)
It is therefore beyond
any question herein that with the use of the word “and”,
at the end of each of the first two
requirements, the applicant bears
the burden of proving that all the three requirements of section 3(1)
have been met, not one
or two of them, but all three.
[18] It is however,
crucial to first pay attention to the following:Section 1 of the
Recognition Act defines a customary marriage
as a marriage concluded
in accordance with customary law. In turn, customary law is defined
as the customs and usages traditionally
observed among the indigenous
African people of South Africa and which form part of the culture of
those people.
The starting point herein
is therefore clear and cut. Accepting that the applicant and the
deceased were above the age of eighteen
years at the time of the
alleged marriage, section 3(1)(i), what remains of her to prove is
that in accordance with section3(1)(ii),
she and
the deceased had both consented to enter into a marriage under
customary law,
that is a marriage that is in
accordance with the customs and usages traditionally observed among a
particular group of the indigenous
African peoples and which form
part of the culture of that group of people,and lastly,she must also
prove that,
in accordance with section 3(1)(iii),
their marriage was negotiated and entered into or celebrated in
accordance with customary
law, once more,
“
in
accordance with the customs and usages traditionally observed by the
relevant group of the indigenous African peoples which form
part of
the culture of that group of people”.
See the case of
MFMayelane v MMNgwenyama and Another
CCT 57/12
[2013]
ZACC 14
, Per Zondo J at para [102] and footnote 85.
EVALUATION AND
REASONS FOR FINDINGS
[19] In the case on hand,
both the requirements in section 3(1)(a)(ii) and 3(1)(b) are placed
in dispute. It is unfortunate that
I will be quick to remark that the
applicant’s case herein is lacking in the most fundamental
manner. Nowhere in her affidavits,
both the founding and the
replying, has she made mention or referred to any specific customary
law of any indigenous African group
of people. That is, in terms of
whose customary law did they consent tomarry, what is the content of
the particular law or customary
rule, where was it being practised,
by whom?Above all, I am not informed of the parties social or ethnic
origin, where they lived
and practised or observed a particular
culture, or at least aver that they married in accordance with a
custom or usage that was
observed by a relevant group to which they
belonged. The only information on record is that the deceased’s
family seems to
be or have been in Botshabelo, as for the applicant,
I only know that she is residing in Rocklands township,
Bloemfontein.It is
in any event difficult to even try to assume in
favour of the parties that they had consented to a customary marriage
because,
from the applicant’s own words,it is clear that, if
she and the deceased were to bind each other with the cords of
marriage,
it would have been through a marriage by civil rights, and
not a customary marriage. When a person consents to doing something,
it means he is conscious of what the nature of the thing is or it
entails and intends to be bound by it. So the parties could not
have
consented to a marriage they did not intend entering into, i.e. a
customary marriage. It is correct that failure to register
a
customary marriage does not invalidate an otherwise valid customary
marriage. But registration can only follow a validly concluded
marriage; that is one according to a specific customary law.
[20] Lastly and in the
same way, nowhere has the applicant averred that her and the
deceased’s marriage was negotiated or
celebrated in accordance
with any particular customary rule, practice or usage observed and
forming part of any specific group
to which they belonged.The
Recognition Act does not specify the requirements for the celebration
of a customary marriage.Quite
many arguments were raised and
lengthily argued during the hearing, but asalready indicated,it is
not even necessary to unpack
them except to mention that, neither did
the third respondent too, aver any specific customary rule as
reliance in his opposing
the application. He merely argued in general
terms that it was impossible for the marriage to have been concluded
in the manner
the applicant had alleged. Both parties have got elders
as it is apparent from their cases, however none of such elders
positively
swore that he knows for a fact that the deceased and
applicant had concluded a marriage in accordance with a particular
custom
or practice and inform the court the court what their
respective custom or practice was. They merely confirmed the vague
and bold
contents of the litigants’ affidavits which was not
helpful at all.The court was never engaged in the narratives of
customary
law.According to Zondo J in the
Mayelane
case
above, if the requirement in section 3(1)(b) is not met, then there
is no valid marriage.
[21] I therefor find that
the application is fatally flawed and cannot be cured by anything at
all. I agree with the applicant’s
counsel that there is no
material disputes raised herein that would necessitate the hearing of
oral evidence.This is so because;
“
the fact
that the court orders oral evidence does not enlarge the scope of the
enquiry; the rule provides a method of deciding conflicts
of fact
that are raised in the affidavits.”
See
The Civil
Practice of the Superior Courts of South Africa
, Van Winsen
et al
, 4
th
edition p. 386.
ORDER
[22] Consequently I order
that, the application be and is hereby dismissed,each party to pay
their own costs.
________________
R. M.
SEPATO,
AJ
On behalf of the
applicant: Adv. B.S. Mene
Instructed by:
Fixane Attorneys
BLOEMFONTEIN
On behalf the
respondents: Adv. B. Moeti
Instructed by:
Benjamin Vezi Attorneys
BLOEMFONTEIN