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[2011] ZAFSHC 196
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Nthejane and Another v Road Accident Fund (3183/2010) [2011] ZAFSHC 196 (1 December 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. 3183/2010
In
the matter between:
MAMPHO ERNESTINAH
NTHEJANE
….............................
First
Plaintiff
BONGANI
JUNIOR NTHEJANE
….................................
Second
Plaintiff
(
assisted
by his mother and natural
guardian
,
Mampho Ernestinah Nthejane)
and
THE
ROAD ACCIDENT FUND
…............................................
Defendant
_____________________________________________________
JUDGMENT BY:
NAIDOO, AJ
HEARD ON:
10 NOVEMBER 2011
DELIVERED ON:
1 DECEMBER 2011
_____________________________________________________
NAIDOO AJ
[1] The first plaintiff,
Mampho Ernestinah Nthejane (plaintiff), also acting on behalf of the
second plaintiff, her minor son Bongani
(Bongani), sued the defendant
for certain damages arising out of the death of Lethusang Johannes
Azor (the deceased). She alleges
that she was married to the deceased
in terms of a customary union. The deceased was also Bongani’s
biological father.
[2] Mr C Snyman
represented the plaintiffs and Mr WJ Groenewald represented the
defendant. Both counsel informed the court that
most issues in
dispute have been settled and that the only issue for the court to
decide was whether or not the plaintiff was married
to the deceased
in terms of a customary union. The matter accordingly proceeded only
on that issue. The plaintiff called the evidence
of her grandfather,
Simon Nthejane and she also testified.
[3] Mr Nthejane’s
evidence was that his daughter, the plaintiff’s mother,
abandoned her when she was a baby, and he
raised the plaintiff. Her
biological father was not at all involved in her upbringing. She then
had a relationship with a man called
Bazooka and they had a child,
Bongani. It was established that the deceased’s nickname was
Bazooka. When Mr Nthejane approached
the deceased’s
grandmother, she indicated that her family would like to take the
plaintiff as their daughter-in-law. They
agreed to enter into lobolo
negotiations, which did take place, and it was agreed that they would
give him 10 cows in respect of
lobolo. It seems that it was agreed
that this would be done at a later date, because a traditional
ceremony, in accordance with
Sotho culture, was held at the house of
the deceased’s family where the plaintiff was made to wear
traditional bridal clothes
and a sheep was slaughtered as part of the
ceremony to welcome her as a daughter-in -law of the Azor family. She
thereafter took
up residence in the home of the deceased. It was also
Mr Nthejane’s evidence that although the lobolo had not yet
been paid,
it was his intention to claim it from the Azor family. The
plaintiff was, nevertheless regarded as the wife of the deceased.
[4] The plaintiff
testified and corroborated her grandfather’s evidence in all
material respects. She confirmed that the deceased’s
nickname
was Bazooka, and that the traditional ceremony that was held was in
fact a marriage ceremony to welcome her as a daughter-in
–law
of the deceased’s family. She also confirmed that she took up
residence in the deceased’s home as his wife,
following the
traditional ceremony. The plaintiff testified, in addition, that she
was thereafter given the name “Malebohang”,
in accordance
with the custom of the deceased’s family, and which meant
“mother of Bongani”. According to the
plaintiff, she
would not have been given this name if the sheep had not been
slaughtered and she had not gone to live with the
deceased’s
family.
Mr Snyman, representing
the plaintiff, applied for an amendment to the plaintiff’s
Particulars of Claim, to reflect that her
relationship with the
deceased was a customary union. The defendant did not object to the
amendment, which was accordingly granted.
The plaintiff then closed
her case. The defendant closed its case without leading any evidence.
[5] The legislation
regulating customary marriages is the Recognition of Customary
Marriages Act 120 of 1998 (the Act). Section
3(1) of the Act provides
as follows:
“
For a
customary marriage entered into after the commencement of this Act to
be valid –
the prospective spouses –
must both be above the age of 18
years; and
must both consent to be married to
each other under customary law; and
the marriage must be negotiated and
entered into or celebrated in accordance with customary law.”
[6] It is common cause in
this matter that the lobolo negotiations as well as the customary
ceremony and celebration described by
the plaintiff and her
grandfather were performed after the Act came into operation and
therefore, section 3(1) would be applicable.
[7] The plaintiff’s
evidence was that she and the deceased were both above the age of 18
when they decided to marry, and both
had consented to be married to
each other in terms of customary law. The defendant has not disputed
the evidence of Simon Nthejane
that he concluded lobolo negotiations
with the deceased’s grandmother and it was agreed that he would
receive 10 cows as
lobolo. It has also not been disputed that
following upon this agreement, the traditional ceremony and
celebration took place.
[8] The defendant,
however, contended that the plaintiff cannot claim to have entered
into a customary union as the lobolo had not
been paid. Mr Groenewald
referred me to the work “
Inheemse Reg
” by the
learned authors NJJ Olivier and WJ Olivier, Butterworths 1998, in
which they said at page 24:
“
Geen geldige
gebruiklike verbinding kan plaasvind sonder dat daar ‘n
ooreenkoms aangegaan is omtrent die lewering van lobolo-beeste
nie.
Gebruike verskil van gemeenskap tot gemeenskap betreffende die getal,
tydstip van lewering, ensovoorts, maar die algemene
reël
(behalwe klaarblyklik by die Pondo) is dat ten minste een bees
gelewer moet word voor die aanvang van die huwelikseremonies.”
They go on to describe
the various forms of delivery that are possible and acceptable.
The learned author
Schäfer in the work “
Family Law Service”, Section
G- “Customary Family Law”
– Issue 53 indicates
the situation in similar terms in paragraph G35, page 23 where he
says:
“
The general
rule is that the payment of
ikhazi
is
an essential requirement for entry into a customary marriage”
(
Ikhazi
is
a term used to refer to dowry cattle). Schäfer goes on to say
that there are exceptions and qualifications to this rule,
one such
exception being that amongst tribes practising
teleka,
the
dowry cattle need not necessarily be paid before the marriage is
entered into.
Teleka,
in
essence, is the customary inducement to pay lobolo practised in some
tribes where lobolo is not paid before or at the time of
the
marriage. The wife’s guardian detains the wife and/or children
to remind the husband to pay lobolo. The husband normally
would pay
another “instalment” of lobolo and fetch his wife and/or
children.
(see
Customary
Law in South Africa, TW Bennett, page 232/3).
[9] The plaintiff is
Sotho. Neither she nor her grandfather were asked about the customs
and practises of the Sotho people, nor
was it canvassed with them
whether they practise teleka or not. From Mr Nthejane’s
evidence, it is clear that the arrangement
regarding lobolo was
acceptable to both families. In the absence of any evidence to the
contrary, it must be accepted that this
arrangement was not only
suitable to both families but also that it was in accordance with
their customary practices.
[10] Both counsel
referred me to the matter of
FANTI v BOTO AND OTHERS
2008(5) SA 405 (C). Although this matter deals with the practises of
the Xhosa people, the views expressed by the learned judge,
Dlodlo J,
in respect of customary marriages have application in the present
matter. At paragraph 19 on page 413, the learned judge
deals with the
essential requirements that must be established to prove the
existence of a customary marriage and comments that
“
payment of
lobolo remains merely one of the essential requirements. In other
words, even if the payment of lobolo is properly alleged
and proved,
that alone would not render a relationship a valid customary
marriage.”
The learned judge
continues thus
“
All the
authorities are in agreement that a valid customary marriage only
comes about when the girl…has been formally transferred
or
handed over to her husband or his family. Once that is done severance
of ties between her and her family occurs. Her acceptance
by the
groom’s family and her incorporation into his family are
ordinarily accompanied by well-known extensive rituals and
ceremonies
involving both families [para 22]… The importance of these
rituals and ceremonies is that they indicate in a
rather concretely
visible way that a customary marriage is being contracted and that
lobolo has been paid
and/or
the arrangements regarding the payment of lobolo have been made and
that such arrangements are acceptable to the two families
–
particularly the bride’s family”
[para23]
(my
underlining)
[11] The evidence
tendered on behalf of the plaintiff, therefore, established the
following:
11.1 The plaintiff and
the deceased were both above the age of 18 years at the time they
were married;
11.2 Both the plaintiff
and the deceased consented to be married to each other by customary
law;
11.3 The marriage was
properly negotiated, and celebrated in accordance with customary law.
Although lobolo was not paid, adequate
arrangements, which were
accepted by both families, were made for payment of lobolo.
11.4 The plaintiff was
“handed over” to the family of the deceased and took up
residence in his family home after the
ceremonies were performed.
I am satisfied that the
rituals and ceremonies performed by the two families incorporated the
essential legal requirements, as provided
for in section 3(1) of the
Act, and that the plaintiff has established on a balance of
probabilities that such a union was a valid
customary marriage.
[12] Mr Groenewald cross
examined the plaintiff regarding the contents of certain affidavits
and documents that were submitted to
the defendant when her claim was
lodged. The plaintiff’s evidence was that her child was in
hospital and she was fetched
from the hospital and taken to the
attorney’s office in order to sign the documents. She signed
them without being fully
aware of the contents of these documents.
She was accompanied by the deceased’s mother, who it seems also
deposed to an affidavit
and pressured the plaintiff into signing the
affidavit that she did. The plaintiff acknowledged that the documents
referred to
her as co-habiting with the deceased, and not that she
was in a customary union with him. Although the plaintiff conceded
that
she understood some Afrikaans, it is my view that in the absence
of evidence to the contrary, it is not implausible or far -fetched
that she would have signed documents upon the request of a legal
representative, whose legal expertise she trusted and who was
mandated to lodge a claim on her behalf. This is especially so in
view of the fact that her child was in hospital and, therefore,
it is
not unreasonable to expect that she would have been in a fragile or
distracted state of mind.
[13] It was also pointed
out that the death certificate reflected the deceased’s marital
status as “single”. This
was not taken any further with
the plaintiff or at all. The author of the document is unknown, as
are the circumstances under which
such a certificate was completed.
No evidence was presented as to the source of the information upon
which the death certificate
is based. The plaintiff can now hardly be
expected to answer for such an entry in the death certificate and,
much less, be visited
with an adverse inference against her as a
result of such an entry. Similarly, Mr Groenewald criticised the
plaintiff for not calling
an available witness, namely the mother of
the deceased. It was never asked of the plaintiff whether such a
witness was in fact
available. Again it is my view that, in this
respect too, this court cannot make an adverse inference, against the
plaintiff.
[14] The defendant closed
its case without leading any evidence. It was open to the defendant
to call not only the evidence of the
deceased’s mother but also
evidence, if any, regarding customary practices of the Sotho people,
with regard to customary
marriages, in order to negate the evidence
tendered by the plaintiff and her grandfather. It clearly chose not
to do so.
[15] I, accordingly, make
the following order:
15.1 The plaintiff was
married to the deceased in terms of a valid customary marriage
15.2 The defendant is
ordered to pay the plaintiff’s proven or agreed damages,
arising from the death of Lethusang Johannes
Azor;
15.3 The defendant is to
pay the plaintiff’s costs of suit.
_____________
S. NAIDOO, AJ
Counsel for Plaintiff:
Adv C Snyman
Instructed by:
Bezuidenhouts Ingelyf
104 Kellner Street
Westdene
Bloemfontein
Counsel for the
Respondent: Adv W Groenewald
Instructed by: Webbers
Attorneys
Webbers Building
96 Charles Street
Bloemfontein
SN/sp