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[2009] ZAGPPHC 29
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Ndlovu v Mokoena and Others (2973/09) [2009] ZAGPPHC 29; 2009 (5) SA 400 (GNP) (20 April 2009)
Reportable
IN THE
HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT, PRETORIA
)
Dates : 5 February, 6
and 23March, 20 April 09 Case no:2973/09
REPORTABLE DATE: 20/4/2009
In the matter between:
MIHLOTI LYDIA NDLOVU
APPLICANT
and
VELAPHI NESLIE MOKOENA
FIRST RESPONDENT
DEPARTMENT
OF EDUCATION SECOND RESPONDENT
DEPARTMENT
OF HOME AFFAIRS THIRD RESPONDENT
Customary
marriage – although lobolo was partly paid, no evidence that
woman was delivered or that she lived with the deceased.
Marriage
accordingly not concluded.
Van
Rooyen AJ
[1] This is an application in which the applicant
(“Mihloti”) claims that she is the only customary wife of
the deceased
and applies for an order declaring the (alleged)
customary marriage between the First Respondent (Velaphi”) and
the deceased
null and void.
[2] The deceased
, who
passed away from natural causes on the 18
th
January 2008, was an educator in the service of the Second
Respondent. Pension benefits are payable to the wife of the deceased.
If the first alleged customary marriage was validly concluded, the
pension will be divided in half between the two wives. Velaphi
does
not question the validity of the customary marriage of the deceased
with Mihloti.
[3] There are two customary marriage certificates
before the court: the first is that of Velaphi and the deceased dated
25 May 1991
and the second is
that of
Mihloti and the deceased, dated 20 May 1998. Both certificates were
issued after the death of the deceased and by the same
marriage
officer. At my request the Velaphi certificate (issued on the 11
th
February) was certified and explained under oath by the Home Affairs
official involved. He states that he,
inter
alia
, had reference to a one page
lobolo negotiation document dated 25 May 1991 before he issued the
marriage certificate. Velaphi
states in her opposing affidavit that
she and the deceased were married in 1991. A lobolo delegation was
sent by the deceased’s
family to her home, where lobolo was
negotiated. The deceased’s family’s delegation included,
amongst others, Julius
Mathebula, Martha Zitta and the late Rama
Segodi. She attaches a page from a note book which contains the names
of the deceased
and hers, with the names of the delegation and the
receiving party. It is obvious that the names of the deceased and
Velaphi as
well as the delegations were written by the same person.
The three above mentioned names are included as the delegation. It
would
seem that Raina Segodi signed behind her name. Julius Mathebula
also apparently signed his name. Someone clearly changed Silas to
Julius in the document. Three names representing Velaphi’s
family are also set out in the one page document. Velaphi concedes
that the deceased’s family had only paid R1500 of the R8000
lobolo as promised. The balance of R6500 was yet to be paid and
remained outstanding. Velaphi states that she knew of the deceased’s
second marriage and that it took place after a “mature”
consultation with her. Confirmatory affidavits of Julius Mathebula
(uncle of the deceased) and Martha Zitta (nephew of the deceased)
are attached. They specifically state that the full amount was R8000
and that they managed to pay R1500.
[4] Mihloti states that she was shocked to hear
from the Department of Education that a further wife was claiming
pension. She concedes
that the deceased had informed her about
Velaphi when he proposed to her. She denies that the deceased had
been married to Velaphi.
He, however, was the father of two of
Velaphi’s children. Paternity was never disputed by the
deceased. A court order, dated
14 October 1994, according to which he
had to pay R200 per month maintenance, is attached. Velaphi,
according to the officially
stamped notes of the prosecutor, dated 3
September 1994, stated to the prosecutor that the deceased “has
never sent his people
to come and pay lobola since they left this
office on 26 November. He has again never maintained the children.”
Mihloti states
that the Velaphi certificate issued on 11 February
2008 is based on false facts. Mihloti also refers to a copy of a
charge sheet
concerning a charge against the deceased that he had
failed to pay maintenance. The notes of the magistrate are attached
and are
dated 27 January 1998. The notes,
inter
alia
, state that the deceased (accused
in that case) said that he was twenty seven years old and that “I
am not married”.
A further document, apparently that of the
prosecutor, dated 26 November 1993, reads as follows: “He has
two children with
the applicant and has planned to marry her. He is
just about [to] send the lobola delegation to the applicant’s
family. He
asks to be given a chance to prove that he’s telling
the truth. The applicant has no objection and [is] also prepared to
enter into a marriage, relationship with the applicant. The two
parties are advised to go home. The applicant’s family will
be
waiting for the delegation from respondent’s family.”
[5] Lorraine Zit
tha, a
younger sister of the deceased’s mother (who has already passed
away and whose husband passed away in 2003), confirms
that she,
Daniel Nyati, Alphina Nyathi, Alfred Sithole and the late headman
Mathebula were sent to represent the deceased’s
family in
lobolo negotiations with Mihloti’s family. The negotiations
were concluded and they were asked to pay R10,000 lobolo.
The
deceased and his family never sent any other delegation to negotiate
a marriage on behalf of the deceased. She confirms that
she
participated in all her late sister’s family rituals and
meetings. It is, accordingly, incorrect for Velaphi to claim
that she
was married to the deceased. The family only knew that the deceased
was the father of two children of Velaphi and that
he was repeatedly
brought to court by the children’s mother for payment of
maintenance of the children. Daniel Nyathi, whose
family had lived
next to that of the deceased since the early seventies and had,
throughout the years, been family friends, confirms
the affidavits of
Mihloti and Lorraine Zitha – the affidavits were read to him
and he signed his affidavit.
[6]
An elderly member of
the deceased’s family, Mateeleng Sila Molemi, states that she
knew the deceased from his birth until
his death, that important
matters were reported to her and that to the best of her knowledge
the deceased was married to two wives,
namely Mihloti and Velaphi.
[7] Lastly, there is the affidavit of S Hary
Khoza. He states that
he is employed by the
Department of Home Affairs as a marriage officer. I requested at the
first hearing of this matter that an
affidavit of the person who
issued the certificate for Velaphi be provided to the Court. The
matter was then postponed so that
the affidavit could be provided. Mr
Khoza states as follows:
“
I hereby confirm that the marriage
certificate between Rentweng Lesley Segodi ( the deceased) and
Velaphi Nelsie Mokoena was issued
by me as the employee of the
Department of Home Affairs with powers and duties to do so and I did
so after I satisfied myself that
the parties thereof were duly
married in accordance [with] the customary law and/or Act.
The
lobola negotiation letter was shown to me as but one of the
requirements and proof that the deceased was customarily married
to
Velaphi Nelsie Mokoena during his life time
.”
( emphasis added)
Evaluation
[8]
As appears from the
above, the statements from both sides are diametrically opposed to
each other. The court notes of the magistrate
and prosecutor indicate
that the deceased was not married and there are supporting affidavits
from family members of the deceased’s
family that Velaphi and
the deceased were not married. On the other hand there is Mzamane
Mathebula, who states that he was part
of the
1991 delegation and that R1500 was paid and that
it was agreed that the balance would be paid. Mateeleng Sila Molemi
states that
to the best of her knowledge they were customar
ily
married and Martha Zitha confirms this. The marriage officer who
issued the certificate to Velaphi in February 2008 states that
he
issued the certificate. The lobola negotiation was shown to him “as
but one of the requirements and proof”. The
same officer also
issued a customary marriage certificate to Mihloti.
[9] On the other
hand
the only “evidence” from the deceased is to be found in
the court notes of the magistrate and the prosecutor.
The
magistrate’s notes (27 January 1998) state that the deceased
said that “I am not married” and the prosecutor’s
notes (dated 26 November 1993) states that he (the deceased) is just
about to send a lobolo delegation to the applicant’s
family.
He then notes that the applicant has no objection and is also
prepared to enter into a marriage relationship with the applicant.
The two parties are advised to go home. He then states : “ The
applicant’s family will be waiting for the delegation
from
respondent’s family.” It is significant that by 27
January 1998 the deceased still states to the magistrate that
he is
not married. Both court dates are well after the date of the Velaphi
lobola document – 25 May 1991.
[10] That a Court cannot simply fall back on the
Plascon Evans
rule
in matters of status was pointed out by Langa J (as he then was) in
Bhe and Others v Magistrate,
Khayelitsha, and Others (Commission for Gender Equality as Amicus
Curiae); Shibi v Sithole and Others;
South African Human Rights
Commission and Another v President of the Republic of South Africa
and Another
[2004] ZACC 17
;
2005 (1) SA 580
(CC)
(2005
(1) BCLR 10)
at para
[13]
. This being the case, I deemed it fit to
even call two of the members of the delegation of the deceased to
testify in Court. It
was, in my view, important to do so since it was
clear from their affidavits that they could not read and that the
affidavits had
to be read to them. To exclude any possibility that
the affidavits were not conveyed to them correctly, these two crucial
witnesses
to the lobolo celebration in 1991 had to be heard
personally. I am satisfied that, in spite of discrepancies in the
testimony of
the rather aged Mr Mathebula, they were indeed at the
lobolo ceremony in 1991.
[11] The question is, however, how the notes of the prosecutor and
magistrate can be reconciled with the lobolo transaction. A
next-door
neighbour of the deceased as well as a family member both aver that
the deceased had not been married to more than one
wife. This gives
rise to the question whether the lobolo transaction indeed concluded
the matter. The marriage officer states
that the document was but one
of the requirements he looked at. However, he does not state what the
other factors were that influenced
him to come to a conclusion that a
customary marriage existed. In
Fanti v Boto and Others
2008
(5) SA 405
(C) and
Mabena v Letsoalo
1998 (2) SA 1068
(T) it
was held that the lobolo transaction is but one of two requirements
for the conclusion of a customary marriage. There must
also be a
delivery of the woman to the family of the man. That such delivery
need not necessarily be
de manu in manum
appears from
Road
Accident Fund v Mongalonkabinde v Road Accident Fund
2003
(3) SA 119
(SCA) where it was held that R200 which was paid to a
woman who was living with the man, was part-payment of lobolo and not
maintenance
and that the woman had been customarily married to the
man.
[12] Lastly the question arises whether there are
sufficient reasons for me to come to the conclusion that the
marriage officer
had
issued the certificate
to Velaphi on grounds which are reviewable by a Court. He was most
certainly wrong in only referring to the
lobolo document. He states
that he also took other factors (“requirements”) into
consideration, but does not convey
what these factors were. I have
had the privilege of looking at the facts as a whole, including the
statements of Mihloti and her
supporters. The maintenance court
documents were also brought to my attention. I have come to the
conclusion that there are sufficient
reasons for me to intervene:
there is no evidence that there was a delivery of Velaphi or that
they lived together and the court
documents amount to supporting
evidence that a marriage had not been concluded. I, accordingly, find
that although there was no
evidence of fraud, the marriage officer
did not apply his mind properly to all the facts which were before
this Court and that
the certificate must be set aside.
[13] Since this is a dispute between women who
were both involved in the life of the deceased, I do not regard it to
be appropriate
to make a costs order against Velaphi. I also have no
reason to believe that Velaphi’s claim was not
bona
fide.
ORDER
The application is acceded to and it is held that only the Applicant
was validly married to the Deceased.
The marriage certificate issued as to the
customary marriage between the First Respondent and the
Deceased
is set aside as invalid.
No order as to costs is made.
JCW van Rooyen 20 April 2009
Acting Judge of the High Court
For the Applicant: Mr Motloba from Motloba Attorneys, Pretoria.
For the First Respondent : Mr Shabangu from Shabangu Attorneys