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South Africa: North Gauteng High Court, Pretoria
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[2009] ZAGPPHC 109
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M v M (20622/06) [2009] ZAGPPHC 109 (10 September 2009)
SAFLII
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Certain
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IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG DIVISION)
CASE NO.: 20622/06
In the matter between
J.B. M Plaintiff
and
G.K. M Defendant
DATE HEARD: 21st, 22nd and 23rd APRIL 2009 JUDGMENT HANDED DOWN ON
10th SEPTEMBER 2009
JUDGMENT
EBERSOHN AJ.
[1] The plaintiff sued the defendant for a divorce, division of the
joint estate and ancillary relief.
[2] In the particulars of claim the plaintiff alleged that they were
married in community of property on the 27th January 2001.
Exhibit
"A" before court is the marriage certificate issued by the
Department Home Affairs.
[3] There is one child, a daughter, K, born on the [ …..] 2005
out of the marriage.
[4] The plaintiff alleged that the marriage relationship has
irretrievably broken down and this was conceded by the defendant who
testified that he was in a love relationship with another woman.
[5] The plaintiff testified that she and the defendant had a love
relationship for several years during which she cared for the
children of the defendant out of a his previous marriage and that in
2001 he caused his family to send a deputation to approach
her family
to agree on and pay lobola for her so that a customary marriage
relationship could come into being.
[6] It was the plaintiffs case that a meeting was held between a
deputation of the defendant, which deputation met the deputation
of
the plaintiffs family at the residence of the plaintiffs family, that
there were negotiations about the amount of lobola to
be paid and
that an amount of R2 000,00 was paid to the plaintiffs deputation and
that a meal was had by all thereafter, satisfying
the requirements
for a customary marriage relationship to have come into being
according to her family's traditions.
[7] It was the plaintiffs' contention that the R2 000 was the agreed
amount of lobola whilst it was the evidence on behalf of the
defendant that the R2 000 was in fact only a deposit regarding the
lobola and that the customary marriage relationship would only
come
into being when the full balance of the lobola would be paid and
since it was not paid, so went the defendants' evidence,
and was his
case, the customary marriage relationship did not come into being.
[8] Neither party gave notice in terms of rule 36(9)(a) and (b) that
they would call experts to testify about the customary law
applicable.
[9] Both sides called witnesses who testified about the customary law
applicable. This was clearly evidence from lay people. The
plaintiff
and defendant have different tribal traditions. None of the
defendant's witnesses succeeded in persuading this court:
a) that he was an expert regarding tribal traditions; and
b) that a marriage according to tribal traditions did not come into
being between the plaintiff and the defendant.
[10] It is, furthermore, common cause that the defendant had the
plaintiff registered on the 7th July 2002 as his spouse with the
Vuka
u Sienzele Burial Society and as his spouse with his medical fund.
Documentary proof of this was received as exhibits by the
court
during the trial.
[11] It is common cause between the parties that the plaintiff on the
23rd July 2004 called at the Offices of the Department of
Home
Affairs and that the customary marriage was there registered in terms
of the provisions of section 2 of the Recognition of
Customary
Marriages Act, No. 120 of 1998 ("the Act").
[12] In terms of the provisions of the Act, the date of marriage was
recorded as being the day the two deputations met and the
R2000 was
paid, namely the 27th January 2001. Exhibit "C" being a
copy from the file of the Department of Home Affairs
of the
application for registration of the marriage was handed up as an
exhibit by an official of that Department.
[13] The defendant didn't fare well under cross-examination. He was
uneasy as he tried to explain why, when he learned of the
registration of the customary marriage with the Department, he didn't
take the matter to court to have it annulled, and why he caused
the
plaintiff to be registered as his spouse with the burial society and
medical fund if they were not in a customary marriage
relationship.
It was put to him in cross-examination that by doing so he defrauded
the burial society and the medical fund unless
his evidence in court
was untrue and that at the time he caused the plaintiff to be
registered as his spouse he regarded her as
his customary wife. The
defendant could not give a satisfactory explanation.
[14] The birth of their child, K, on the [ ….] 2005 meant that
the child was conceived at about the stage when the plaintiff
registered the customary marriage. The defendant explained that
although the plaintiff was not his customary wife he still had
sex
with her when he visited her where she was saying in his house and
apparently is still staying.
[15] There is another very serious aspect which counts against the
defendant. He was summonsed to the appear before the maintenance
court where, after an inquiry, he was ordered to pay maintenance for
the plaintiff and for their minor child. He should have realised,
by
then, at least, that he was bound by the marriage and that he would
in future suffer the consequences thereof, and he at least
at that
stage should have approached the court to have the marriage annulled,
yet he didn't do so despite the lapse of everal years.
That the
defendant also could not really explain in cross-examination.
[16] In the face of the marriage certificate issued by the Department
and the absence of acceptable evidence on the part of the
defendant
to rebut the marriage certificate and what is more, in the absence of
even a counterclaim to have the marriage annulled,
and the fact that
the defendant was a poor witness and was clearly lying at stages,
this court cannot even consider the defendant's
version that a valid
marriage didn't come into being and the plaintiff must therefore
succeed with her action for divorce.
[17] This court is of the opinion that joint custody and control over
the parties' daughter should he awarded to both parties but
that the
parental control over her should vest in the plaintiff with
reasonable access to the defendant to the child.
[18] The defendant will also be ordered to pay maintenance for the
plaintiff and the child and the child's medical and ancillary
expenses.
[19] An order will also be granted regarding the division of the
joint estate. In this regard counsel submitted that an advocate
with
appropriate experience be appointed arbitrator in the event of the
parties not being able to agree on the division of the
joint estate.
[20] It is clear that the marriage disintegrated due to the conduct
of the defendant and costs of this action must follow the event
and
his' and the plaintiffs costs will have to paid out of the one-half
of the defendant's share of the joint estate.
[21] The record is silent about it but in the event of the defendant
belonging to a pension fund the plaintiff will be entitled
to half a
share thereof. [22] I accordingly make the following order:
1. A decree of divorce is granted.
2. Custody and control over the parties' minor daughter K is awarded
jointly to the plaintiff and defendant.
3. Parental control over the parties' minor child K will vest in the
plaintiff with the right of reasonable access to the said
child by
the defendant.
4. The defendant is ordered to pay maintenance to the plaintiff for
herself in the amount of R750 per month until her death or
remarriage
whichever occurs first.
5. The defendant is ordered to pay maintenance to the plaintiff for
the minor daughter K of the parties at the rate of R750 per
month.
6. With regard to the parties' minor child K the defendant is also
ordered to pay all her reasonable medical-, dental, ophthalmic-
and
hospitalization costs and the costs of all doctors' prescriptions and
of her necessary toiletries and her school fees.
7. The joint estate of the parties must be equally divided between
the plaintiff and the defendant and failing agreement as to
how it
should be divided and what the joint estate comprises of and the
value of certain assets, an advocate of at least 10 years
standing
and who is a member of the Pretoria Bar, nominated for that purpose
by the Chairperson of the Pretoria Bar Council, is
hereby appointed
arbitrator with all the powers vested in him by the Arbitration Act
to decide the issue(s) and to divide the joint
estate.
8. In the event of the defendant belonging to a pension fund the
plaintiff will be entitled to one half of the benefits thereof,
as at
the date of this order, and either party may approach this Court upon
affidavit to make a further specific order regarding
the name etc. of
the fund to enable the pension fund to
register the plaintiffs rights.
9. The defendant is ordered to pay his' and the plaintiffs costs
of suit out of his half share of the joint estate.
ACTING JUDGE OF THE HIGH COURT
Plaintiffs counsel Adv. P. J. Nieman
Plaintiffs attorneys Cronje De Waal-Skosana Inc.
c/o H.W. Theron Inc. Ref. D. van der Merwe/Z608
Tel. 012 x 346 1555
Defendant's counsel Att. Y. Omar
Defendant's attorneys Zahid Omar Attorneys
c/ Mohammed Seedat Attorneys
4/
Ref YN/M302CDC 01l - 815 1720