About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2013
>>
[2013] ZAFSHC 182
|
|
Rasello v Chali and Others, Chali and Others v Rasello and Others (A69/2012, 683/2011) [2013] ZAFSHC 182 (24 October 2013)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
Appeal Number: A69/2012
In the appeal between:-
MASEFAKO LYDIA RASELLO
....................................................................
Appellant
and
MATETENKI MARIA CHALI
...............................................................
1
st
Respondent
LEEPO MARIA CHALI
......................................................................
2
nd
Respondent
THABISO CHARLES CHALI
..............................................................
3
rd
Respondent
TISETSO JULIA CHALI
.....................................................................
4
th
Respondent
YVONNE LERATO CHALI
.................................................................
5
th
Respondent
NICOLAS ESAIS JANSE VAN RENSBURG
.....................................
6
th
Respondent
SUSANNA MARIA VAN COPPENHAGEN
........................................
7
th
Respondent
DIRECTOR GENERAL DEPARTMENT OF
HOME AFFAIRS
..........
8
th
Respondent
MASTER OF THE HIGH COURT,
BLOEMFONTEIN
........................
9
th
Respondent
REGISTRAR OF DEEDS, BLOEMFONTEIN
...................................
10
th
Respondent
In Re:-
Case Number: 683/2011
MATETENKI MARIA CHALI
..................................................................
.1
st
Applicant
LEEPO MARIA CHALI
...........................................................................
2
nd
Applicant
THABISO CHARLES CHALI
..................................................................
3
rd
Applicant
YVONNE LERATO CHALI
......................................................................
4
th
Applicant
and
MASEFAKO LYDIA RASELLO
..........................................................
1
st
Respondent
NICOLAS ESAIS JANSE VAN RENSBURG
....................................
2
nd
Respondent
SUSANNA MARIA VAN COPPENHAGEN
........................................
3
rd
Respondent
DIRECTOR GENERAL DEPARTMENT OF
HOME AFFAIRS
..........
4
th
Respondent
MASTER OF THE HIGH COURT,
BLOEMFONTEIN
........................
5
th
Respondent
REGISTRAR OF DEEDS, BLOEMFONTEIN
.....................................
6
th
Respondent
______________________________________________________________
CORAM:
EBRAHIM, J
et
VAN ZYL, J
et
MOLEMELA, J
______________________________________________________________
HEARD ON:
16 SEPTEMBER
2013
______________________________________________________________
DELIVERED ON:
24 OCTOBER
2013
______________________________________________________________
MOLEMELA, J
Introduction
[1] This is an appeal against the
judgment of Rampai AJP. The appeal is with leave of the Supreme Court
of Appeal.
[2] The first to fifth respondents
(hereinafter referred to as “the respondents”) were
applicants in the proceedings
at the court
a quo
. They sought
an order setting aside an alleged customary marriage entered into on
the 19
th
March 2005 between the late David Masakale Chali,
who died on the 23
rd
May 2005 (“the deceased”)
and the appellant. They further sought an order for the removal of
the 6
th
respondent as executor of the deceased estate. The
first respondent is the mother of the deceased and the third, fourth
and fifth
respondents are the children of the deceased. The second
respondent was previously married to the deceased, but they were
divorced
on the 20
th
May 2002. Her interest in the
application relates to the unfinalised administration of the joint
estate which subsisted between
her and the deceased prior to their
divorce. She is still residing at the house which formed part of that
joint estate.
Background facts
[3] The appellant was the first
respondent at the proceedings of the court
a quo.
She and the
executrix of the estate (7
th
respondent) opposed the
application on the basis that she and the deceased had entered into a
valid customary union. In support
of her version the appellant relied
an undated lobola letter, which was allegedly signed at Orkney on 19
March 2005 by the first
respondent and three other people.
[4] The respondents disputed the
authenticity of the lobola letter. Although the respondents had
acknowledged that the deceased
had, during his lifetime, cohabited
with the appellant, the respondent’s case was that no customary
marriage had been concluded
because no lobola negotiations had been
entered into. In particular the respondents averred that no lobola
was paid and that there
was no delivery of the bride (appellant) to
the first respondent’s family in accordance with the Sotho
custom.
[5] The first respondent admitted that
she and her husband had travelled to Orkney on the day in question.
According to her, it
was a mere social visit so as to meet the
appellant’s family. During that visit, the appellant’s
family proposed that
the appellant should get married to the
deceased. According to the first respondent, this proposal did not go
down well with her
husband and he openly stated that he was not in
favour of such a marriage as the appellant had been married before
and had two
children from that marriage and the deceased also had his
own children to take care of. According to the first respondent, the
meeting ended on that note and no lobola negotiations took place. As
an explanation for her signature on the lobola letter, she
averred
that shortly after the deceased’s death and while the
deceased’s funeral arrangements were being made, the
appellant’s sister had approached her with a blank document and
asked her to sign it on the pretext that same was going to
be
presented to the insurance company for payment of the burial
expenses.
[6] The appellant failed to deal with
the specific allegation that she was never delivered to the
respondents’ family as the
customary wife of the deceased. She,
however, made reference to a ceremony that allegedly took place in
Lesotho in April 2002 at
which she was “introduced” to
the deceased’s family during a ceremony she referred to as “ho
jesa makoti”.
The first respondent acknowledged a visit in
Lesotho at which the appellant was also present. She, however,
contended that it was
merely a trip undertaken by them for the
purpose of visiting the deceased’s ailing grandmother and was
completely unrelated
to any customary ceremony. She pointed out that
no customary ceremony related to a customary marriage could have been
held prior
to the payment of lobola.
[7] The court
a quo
expressed
some reservations about the fact that the lobola letter bore a date
after the deceased’s death but nevertheless
found that the
letter in question was authentic and that the two families in fact
met to negotiate the marriage between the deceased
and the appellant.
The court
a quo
further found that the appellant was, at the
time of the alleged conclusion of the customary union, incompetent to
enter into a
marriage with the deceased on account of the fact that
the she was, according to the respondents, still married to a certain
Rasello
at that time.
[8] The basis of the appeal, in a
nutshell, is that since the respondent’s allegations pertaining
to the subsistence of a
marriage between the appellant and Rasello
were made for the first time in the replying affidavit and thus
constituted new evidence,
such allegations should have been struck
out by the court
a quo
, instead of finding that such evidence
was foreshadowed in the founding affidavit but was not refuted by the
appellant. The appeal
was also directed at the court a quo’s
decision of the application on the papers, instead of referring it
for oral evidence
on account of the existence of factual disputes
pertaining to some of the requirements of a valid customary union.
At the hearing of the appeal the
appellant brought an application for leave to adduce further evidence
on appeal as contemplated
in section 22 of the Supreme Court Act 59
of 1959, such evidence being a deposition with a certified copy of
divorce decree, which
was intended to serve as
prima facie
proof that the appellant was divorced from her former husband,
Rasello, before the alleged conclusion of the customary marriage.
Point
in limine
It was contended on behalf of the
respondents that since the executrix of the deceased estate had
concluded that there was no valid
customary union between the
appellant and the deceased and since such finding was never
challenged in court or set aside, the executrix’s
decision
remained valid and binding and on that ground alone the appeal had to
be set aside. Reliance for this view was placed
on the case of
Oudekraal Estate (Pty) Ltd v City of Cape Town & Others
2004 (6)
SA 222.
I am of the view that this contention is misplaced as it is
clear from the correspondence attached to the papers that the
executrix
had not yet made a final decision on the matter. Whereas it
was clear from earlier correspondence that she had accepted that
there
was no valid customary union between the deceased and the
appellant, in later correspondence she had indicated that having been
placed in possession of a marriage certificate, she was of the view
that such certificate served as evidence of a valid customary
union.
She had indicated that she would make a final decision regarding the
estate once she had been placed in possession of a
certified copy of
the certificate in question. It was on the basis of the having
received information about the latter correspondence
that the
respondent decided to launch the application at the court a quo. As
such, the respondents were the ones that asked for
the executrix’s
decision to be set aside.
Statement of the law
[9] In terms of section 3 of the
Recognition of Customary Marriages Act 120 of 1988, a customary
marriage entered into after the
commencement of the Act will be valid
if (i) the prospective spouses are both above the age of 18 years;
(ii) both consent to be
married to each other under customary rule;
and
(iii) the marriage must be
negotiated and entered into or celebrated in
accordance with the customary law
.
Customary
law is defined as “
the
customs and usages traditionally observed
among the
indigenous African peoples of South Africa and which form part of
the culture of
those peoples”
.
Lobola is defined as “the property in cash or in
kind which a
prospective husband or the head of his family undertakes to give
to the head of
the prospective wife's family in consideration of a customary
marriage.
[10] In
Fanti v Boto and Others
2008 (5) SA 405
(C) it was held that in order to prove the existence
of a valid customary marriage, essential requirements that
inescapably must
be alleged and proved are the following:
consent of the bride;
consent of the bride’s father
or guardian;
payment of lobola;
handing over of the bride.
[11] The court clearly regarded the
afore-mentioned requirements as customs traditionally observed by
indigenous people in South
Africa. The court
inter alia
stated
as follows at 413I – 414C:
“
Regard
being had to the above requirements for the validity of a customary
marriage, payment of lobolo remains merely one of the
essential
requirements. In other words, even if payment of lobolo is properly
alleged and proved, that alone would not render a
relationship a
valid customary marriage in the absence of the other essential
requirements. See
Gidya
v Yingwana
1944 NAC (N&T) 4;
R
v Mane
1947 (2) PH H328 (GW);
Ziwande
v Sibeko
1948 NAC (C) 21;
Ngcongolo
v Parkies
1953 NAC (S) 103.
These requirements have not vanished with the
advent of constitutional democracy in this country. On the contrary,
the Constitution
of the Republic of South Africa, 1996, enjoins the
courts to develop customary law and to marry it to the constitutional
order
of the day... The importance of these rituals and ceremonies is
that they indeed indicate in a rather concretely visible way that
a
customary union is being contracted... I am in agreement with Van
Tromp’s views expressed in his work
Xhosa
Law of Persons
at 78 that these ceremonies must be viewed as a ceremonial and ritual
process in which the essential legal requirements have been
incorporated... If such celebrations took place and were not in
conformity with the customs as demonstrated above then they indeed
amounted to nothing but a party devoid of customary recognition.”
[12] T
he
authors Maithufi I.P. and Bekker J.C., in an article entitled
Recognition
of
Customary Marriages Act 1998
and
its Impact on Family Law in South Africa
CILSA
182 (2002) correctly submit that a customary marriage in true African
tradition is not an event but a process that comprises
a chain of
events and involves not only the bride and the groom but also their
families.
[13]
T.W. Bennett in his work
Customary Law
in South Africa 18
th
Edition
submits
as follows at 217:
“
Hence,
when the
Recognition
of Customary Marriages Act provides
that,
in order to qualify as customary, a marriage must be ‘negotiated
and entered into or celebrated in accordance with customary
law’,
the form of negotiations, the handing over of a bride and the wedding
are all relevant to giving the union the character
of a customary
marriage. It may then be distinguished, on the one hand, from an
informal partnership and, on the other, from a
marriage according to
other cultural or religious traditions.”
Analysis of arguments and
application of the law to the issue
[14] Mr Pienaar contended on behalf of
the appellant that since the court
a quo
’s dismissal of
the application was exclusively based on the finding of the
appellant’s incompetence to marry due to
subsistence of an
earlier marriage, logic dictated that once the divorce decree was
admitted as evidence, the order of the court
a quo
pertaining
to the invalidity of the customary marriage would have to be set
aside.
[15] I disagree with Mr Pienaar’s
submission that the court
a quo’
s decision was
exclusively based on its finding of the appellant’s
incompetence to marry
.
It is clear from the tenor of the whole
judgment that while the court
a quo
was satisfied that the
lobola negotiations did in fact take place, it was not persuaded that
the lobola was actually paid. Even
if it is accepted in the
appellant’s favour that the court
a quo
in fact accepted
that lobola was indeed paid, that would not justify a conclusion that
the alleged customary marriage was valid,
because
the
mere fact that lobolo was handed over to the applicant’s family
is not conclusive proof of the existence of a valid customary
marriage.
[16] For a union to be regarded as a
customary marriage, it must be concluded in accordance with custom.
One of the important elements
that distinguish a customary marriage
from a common law marriage is that the former establishes marital
bonds between the family
of the bride and the family of the groom
whereas the latter establishes bonds of marriage between the groom
and the bride only.
The ceremony referred to by the appellant, having
taken place before payment of lobola and without the involvement of
the appellant’s
family, is in my view not in conformity with
custom and does not enjoy customary recognition. In
Fanti v Boto
(supra) the court found, correctly in my view, that “it is
totally inconceivable and in fact impossible for only one side
of the
two families to be involved in these ceremonies”.
[17] An undeniable fact is that the
appellant made no averments whatsoever to counter the respondent’s
contention that there
was no delivery of the bride as required by
custom. In my view, the appeal could thus be dismissed on this basis
alone. To the
extent that the ceremony that allegedly took place in
Lesotho may be regarded as some challenge to the respondent’s
averments
pertaining to the delivery of the bride, then that
challenge was on the basis of clearly untenable and far-fetched
assertions that
warranted rejection on the papers. This view is based
on the fact that on the appellant’s own version, the ceremony
in question
occurred in April 2002, approximately a year
before
lobola was allegedly paid. As lobola had not yet been paid, logic
dictates that there could not have been any
makoti
(bride) to
talk about at that stage, let alone to deliver or to “introduce”.
A ceremony held before payment of lobola
thus cannot constitute
delivery of the bride as this is not in conformity with custom.
[18]
On the
appellant’s own version, t
here is no way that the
ceremony alluded to by the appellant, having occurred before payment
of lobola, could have equated to the
ceremony of delivery of the
bride. Significantly, the appellant made no reference whatsoever to
her own family’s involvement
in the ceremony she referred to.
Although the
Recognition of Customary Marriages Act does
not include
transfer of the bride in the requirements for a valid customary
marriage, I accept that this, being an old Sesotho
custom that is
still widely recognized, it is a custom contemplated in
section 3(6)
of that Act and is thus an essential requirement for validity of a
customary marriage. It was so accepted by the court in the case
of
Fanti v Boto
(
supra)
on the basis of many
authorities. Delivery of the bride entails that the bride will be
accompanied to the groom’s family by
her own delegation, which
will then formally hand her over to the groom’s family.
Olivier, Bekker
et al
in their work
Indigenous Law
describe delivery of the bride as “the transfer of the bride
by
her family group
to the family of the man”. (my emphasis)
[19] Mr Pienaar further argued that
the fact that the deceased and the bride were already cohabiting
would, in any case, have obviated
the need for delivery of the bride.
He, however, conceded that it was not the appellant’s case that
delivery was obviated
by cohabitation. He nevertheless argued that
same could be inferred from the answering affidavit. In my view there
is no room for
such an inference, given that the appellant never
denied the first respondent’s averment that according to the
Sesotho custom
delivery of the bride is an important pre-requisite
for conclusion of a valid customary marriage. If consideration is
paid to the
fact that the establishment of marital bonds between the
respective families of the bridal couple is an important tenet of a
customary
marriage, it is clear that
mere
cohabitation of the appellant and the deceased could not have
obviated the handing over of the appellant to the deceased’s
family.
[20] It is clear
from the papers that the appellant’s reference to what she
termed as “a ceremony union” held
in Lesotho in 2002 was
a red herring intended to either obfuscate issues if attention was
not paid to the date of its occurrence,
alternatively to create a
dispute of fact in order to frustrate the respondents’
application. As the appellant’s reference
to the Lesotho
ceremony failed to raise a real, genuine or bona fide dispute of
fact, the court
a
quo
had
no reason to refer the matter for oral evidence. See
Plascon
Evans Paints v van Riebeeck Paints
1984(3)
SA 623 (A) at 634H-635C. I also echo the following sentiments, aptly
expressed in the case of
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) par 55 “
That
conflicting affidavits are not a suitable means for determining
disputes of fact has been doctrine in this court for more than
80
years. Yet motion proceedings are quicker and cheaper than trial
proceedings and, in the interests of justice, courts have been
at
pains not to permit unvirtuous respondents to shelter behind patently
implausible affidavit versions or bald denials. More than
60 years
ago, this Court determined that a Judge should not allow a respondent
to raise 'fictitious' disputes of fact to delay
the hearing of the
matter or to deny the applicant its order. 55 There had to be 'a bona
fide dispute of fact on a material matter'.
56 This means that an
uncreditworthy denial, or a palpably implausible version, can be
rejected out of hand, without recourse to
oral evidence. In
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd, 57 this
Court extended the ambit of uncreditworthy
denials. They now
encompassed not merely those that fail to raise a real, genuine or
bona fide dispute of fact but also allegations
or denials that are so
far-fetched or clearly untenable that the Court is justified in
rejecting them merely on the papers.”
[21] Another reason why I am not
persuaded to agree that the court
a quo
dismissed the
application exclusively on the basis of the finding of the
appellant’s incompetence to marry, is that the court
a quo
in its judgment specifically stated as follows:
“
I
found the first respondent’s answering affidavit to be
materially inconsistent with her previous sworn statement (annexure
TTT). Moreover her own attorney’s letter (annexure UUU) also
strongly militates against her claim as set out in the answering
affidavit that she is the late Chali’s widow. In the light of
all these
I
have no hesitation to dismiss the first respondent’s answering
affidavit as false on this point wherever it is inconsistent
with the
founding affidavit and her previous sworn statement as well as her
attorney’s letter.
”
(My emphasis).
It is clear from the extract above
that the court
a quo
’s dismissal of the application was
also in consideration of the fact that the appellant had deposed to
inconsistent statements
pertaining to the same issue. The court was
well-entitled to take a dim view of that discrepancy. See
Baadjies
v Matubela
2002 (3) SA 427
at 431 par 19.
[22] I now turn to the appellant’s
application for the admission of her divorce decree as evidence in
the appeal. The principles
applicable to such an application are
trite:
there should be some reasonable
sufficient explanation, based on allegations which may be true, why
the evidence which is sought
to be led, was not led at the
application;
there should be a
prima facie
likelihood of the truth of the evidence;
the evidence should be materially
relevant to the outcome of the application.
[23] While admission of the divorce
decree may clarify that the appellant was not incompetent to enter
into a marriage at the time
of the lobola negotiations, this does not
detract from the fact that the appellant failed to refute the
respondents’ assertion
that the result of non-compliance with
the essential requirement of the handing over of the bride was that
no valid customary marriage
was entered into. Thus, the acceptance of
such evidence cannot change the outcome of the application considered
by the court
a quo.
I therefore agree with Mr Hlatswayo’s
submission that the application for admission of further evidence
ought to succeed.
[24] It is clear that the court
a
quo
committed no material misdirection that warrants the setting
aside of its judgment.
[25] Having considered the matter, the
following order is made:
ORDER:
1. The application for leave to hear
further evidence at the hearing of the appeal is dismissed.
2. The appeal is dismissed with costs.
_________________
M.B. MOLEMELA, J
I
concur.
_____________
S. EBRAHIM, J
I
concur.
____________
C. VAN ZYL, J
On behalf of appellant: Adv C.D.
Pienaar
Instructed by:
Stander and Partners
BLOEMFONTEIN
On behalf of respondents: Attorney M.
Hlatshwayo
Instructed by:
Hlatshwayo Mhayise Inc
VEREENIGING
and
Phatshoane Henney Inc
BLOEMFONTEIN
/sp