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[2008] ZAWCHC 113
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Mrapukana v Master of the High Court and Another (6567/2007) [2008] ZAWCHC 113 (21 November 2008)
IN
THE HIGH COURT OF SOUTH AFRICA (CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
REPORTABLE
CASE
NO. 6567/2007
In
the matter between:
NTOMBELANGA
NOVUYISANANI MRAPUKANA APPLICANT
And
THE
MASTER OF THE HIGH COURT 1
st
RESPONDENT
MANDISA
MIRRIAM MAGWAXAZA 2 nd RESPONDENT
JUDGMENT
DELIVERED ON 21 NOVEMBER 2008
DLODLO,
J
[1]
The Applicant/Plaintiff in this matter (an adult female person
resident at Ntywenka Administrative Area in Tsolo district,
Eastern
Cape Province), brought an application on urgent basis seeking the
following order against the Second Respondent/Defendant:
(a)
That the appointment of Mandisa Mirriam Magwaxaza (The Second
Respondent/Defendant) as the executrix and administratrix of
the
estate of the late Mr. Luvo Magwaxaza (the deceased) reported under
estate number 3790/07 be cancelled and/or set aside and
that her
appointment by the Master be substituted by an appointment of an
Attorney chosen by the beneficiaries in the deceased
estate.
(b) That
the purported civil marriage between the Second Respondent/Defendant
and the deceased be declared null and void
ab
initio.
(c) That
(a) and (b) orders mentioned above shall operate as an interim
interdict and/or mandamus pending the return date of this
application.
(d) That
a Rule Nisi be issued calling upon the Respondents/Defendants to
show cause on a date to be specified by the Court why
aforegoing
paragraphs (a) and (b) should not be made final.
(e) The
Respondents/Defendants be ordered to pay costs of the application.
A
Rule
Nisi
to
the above effect with certain amendments was granted earlier on in
this Court. This is therefore the return date of the
Rule
Nisi.
BACKGROUND
[2]
The deceased in this matter is father to two (2) sons, Lutando
Magwaxaza (born on 31 July 1992) and Luzuko Magwaxaza (born
on 9
February 1995). The two (2) boys' biological mother is Ntombelanga
Novuyisanani Mrapukana, the Applicant/Plaintiff in the
instant
matter. The Applicant/Plaintiff averred in the application that she
was married to the deceased by way of customary marriage
and that
the two (2) sons mentioned above are in fact children born between
her and the deceased. It is common cause that the
deceased was born
and bred at Ntywenka administrative area, (Rural tribal reserve)
Tsolo in the Eastern Cape. Similarly the Applicant/Plaintiff
is born
in the same area. It is alleged by the Applicant/Plaintiff that
their customary marriage consummated at their place of
birth. The
deceased who initially worked in Johannesburg (but maintained his
place of origin in the Eastern Cape) subsequently
found his way to
the Western Cape and he eventually operated a taxi business in Cape
Town. He resided at Delft-South, Cape Town.
As a taxi operator, the
deceased registered for and became a member of a taxi organization
called Codetta. The deceased apparently,
like most persons that came
for work in urban areas, fell in love with one Mandisa Mirriam
Magwaxaza, cited as the Second Respondent/Defendant
in these
proceedings. According to the Second Respondent/Defendant she and
the deceased got married first by way of customary
union and
secondly by way of civil marriage. It is common cause that the
Second Respondent/Defendant stayed together with the
deceased at a
house in Delft-South, Cape Town, Western Cape.
[3]
It is also common cause that the deceased did not make it a secret
of his own that he was the biological father of two (2)
sons
referred to above. He fetched the two (2) sons from Tsolo in the
Eastern Cape and they came to stay with him and the Second
Respondent/Defendant at their Delft house. This, according to the
papers and the oral testimony was the position until the demise
of
the deceased. It is common cause that the deceased was attacked,
shot and killed by unknown persons who arrived at his Delft
house.
He was, as is customary, buried at his place of birth, namely
Ntywenka reserve, Tsolo, in the Eastern Cape. It is also
common
cause that the Applicant/Plaintiff did not attend the funeral of the
deceased. The reason for her failure to attend was
given by her when
she testified. Her reason is, however, disputed by the First
Respondent/Defendant. The latter did attend the
funeral of the
deceased in the Eastern Cape. Upon her return from the Eastern Cape,
she discovered that the taxis belonging to
the deceased which should
have been at his house at Delft-South, were nowhere to be found. On
being assisted by the taxi organization,
Codetta, she eventually
succeeded to get these taxis back to her. They were in fact found to
have been taken by the sister of
the deceased (one Lulama) who also
then worked and stayed in the Cape Town area. These taxis apparently
formed the biggest portion
of the estate of the deceased because
they generated income for the deceased and subsequently for the
Second Respondent/Defendant
who continued the business with the
assistance of Codetta. Concerns and unhappiness developed from the
deceased' family members
regarding the fact that the First
Respondent had appointed the Second Respondent/Defendant as the
executrix of the deceased estate.
This resulted in the present
application being lodged. The application is resisted by the Second
Respondent/Defendant on various
grounds but the most important
ground of opposition she used is that the Applicant/Plaintiff in her
Replying Papers questioned
the validity of the marriage between the
Second Respondent/Defendant and the deceased. Clearly the papers
then showed that there
existed a dispute of fact rendering it
difficult or even impossible for the dispute to be decided on the
papers before Court.
[4]
On 8 August 2007 the matter was dealt with by my brother
Sholto-Douglas AJ who made the following order:
"1.
That the matter be transferred to the 4
th
Division of this Honourable Court to the 26
th
of November 2007for the hearing of oral evidence on the following
issues:
1.1. Whether
there was a customary marriage between the Applicant and the
deceased;
1.2. If
so, whether at the time of the conclusion of the marriage between
the Second Respondent and the deceased, such marriage
still
subsisted;
1.3. The
evidence shall be that of any witnesses whom the parties or either
of them may elect to call, subject, however, to what
is provided in
paragraph 14 below;
1.4. Save
in the case of the Applicant and the Second Respondent, neither
party shall be entitled to call any witnesses unless:
1.4.1. It
has served on the other party at least 14 days before the date
appointed for the hearing a statement wherein the evidence
to be
given in chief by such person is set out;
1.4.2. The
fact that a party has served a statement in terms of paragraph 1.4.1
hereof or has subpoenaed a witness, shall not
oblige such party to
call the witness concerned;
1.4.3. That
the rule nisi be amended to read as follows:
2.1. The
Master of the above Honourable Court, is directed to appoint an
independent executor/executrix;
2.2. Such
appointed executor/executrix is directed to realize all the assets
belonging to the deceased estate and further operate
the deceased
taxi business for the benefit of the estate up until the fmalization
of this matter;
2.3. Executor/executrix
is directed to provide maintenance for the deceased minor children,
being Lutando Magwaxaza, Luzuko Magwaxaza
and Mpho Magwaxaza from
the proceeds of the taxi operations with effect from the 1
st
September 2007;
2.4. Such
maintenance be an amount of R500,00 per month for each child and
such shall be payable to Ms Mrapukana in respect of
Lutando and
Luzuko Magwaxaza and also to Mrs. Mandisa Magwaxaza in respect of
Mpho Magwaxaza;
2.5. Such
appointed executor/executrix is directed not to distribute the
estate pending the fmalization of this matter;
3. The
Sheriff of the Court is directed to release all the deceased' assets
to whoever is appointed by the Master as Executor
subsequent to this
order;
4. Costs
to stand over for later determination. "
The
matter proceeded before me as per the above Court order.
THE
FOUNDING AFFIDAVIT AND ORAL EVIDENCE
[5]
Ntombelanga Novuyisanani Mrapukana ("Applicant/Plaintiff) is
the deponent to this Affidavit and she subsequently testified
as
well. The Applicant/Plaintiff in her Founding Affidavit stated that
she got married to the deceased by way of customary marriage
on 7
April 1989 in consequence to which marriage the two (2) sons Lutando
and Luzuko were born. According to the Applicant/Plaintiff
the
Second Respondent/Defendant and the deceased entered into a civil
marriage in the Western Cape during the subsistence of
the customary
marriage between her and the deceased. The Applicant/Plaintiff
averred that she was not aware that the Second Respondent/Defendant
and the deceased were married and the Second Respondent/Defendant
was appointed as the executrix of the deceased estate. The
Applicant/Plaintiff further elucidating on this aspect stated
categorically that the Second Respondent/Defendant applied to the
First Respondent (The Master of the High Court) for appointment as
executrix and administratrix of the deceased estate but did
not
disclose to the First Respondent that the deceased was also party to
an existing customary marriage prior to his death. The
result was
that the Second Respondent/Defendant secured an appointment by the
First Respondent/Defendant. In her capacity as
an executrix
(according to the Applicant/Plaintiff) the Second
Respondent/Defendant was "running away with some of the estate
assets and was mismanaging same." The Applicant/Plaintiff in
her Founding Affidavit further accused the Second
Respondent/Defendant
of having failed to disclose all the assets of
the deceased estate and of consuming same to the exclusion of all
the other beneficiaries.
Another important averment made by the
Applicant/Plaintiff in the Founding Affidavit is the following:
"Since
the Second Respondent's appointment, the deceased' taxis have been
operating as usual, but no support and/or maintenance
has been
forthcoming to my children nor to myself; instead, the Second
Respondent has left the common home at Delft South together
with all
the taxis and engages in business for her own benefit excluding
everyone else who is entitled to benefit from the estate.
"
8
[6] The
Applicant/Plaintiff contended that the Second Respondent/Defendant's
appointment by the First Respondent was invalid in
that the marriage
between the Second Respondent/Defendant and the deceased is invalid
because the two (2) could not conclude
a valid civil marriage during
the subsistence of the customary marriage between the
Applicant/Plaintiff and the deceased without
first dissolving the
said customary marriage. According to the Applicant/Plaintiff the
Second Respondent/Defendant deceived the
First Respondent in order
to secure the appointment and that had she disclosed or placed the
true state of affairs before the
last mentioned, she could not have
been appointed as such. The Applicant/Plaintiff attached a
Confirmatory Affidavit by Popie
Magwaxaza, cousin to the deceased.
In this Affidavit Popie fully corroborated her assertion that she
was married to the deceased
and that she mothered two (2) sons,
Lutando and Luzuko. Another Confirmatory Affidavit attached to the
Founding papers is that
of Patricia Nozibele Gabayi, an aunt to the
Applicant/Plaintiff. She also corroborated the version of the
Applicant/Plaintiffs
marriage to the deceased. There was also a
handwritten letter attached to the Founding papers purportedly
written by the Chief
of the area. In this letter/note the Chief
confirmed (although this is not an affidavit) that the
Applicant/Plaintiff was indeed
married to the deceased in terms of
the customs in the area. In her oral testimony the
Applicant/Plaintiff re-affirmed the averment
about her customary
marriage to the deceased and gave fine details thereof. She told the
Court that lobolo was negotiated by
Onozakuzaku on behalf of the
family of the deceased. The lobolo was paid in the form of cash
representing cattle on hooves. She
stipulated the number of cattle
paid as her lobolo. She testified how a goat was slaughtered in
conformity with Xhosa custom
as utsiki custom. She told the Court
how the local Tribal Authority allocated to her and her husband a
residential site on which
they subsequently built two (2) huts.
According to her testimony these two (2) huts still exist to date
hereof there at Ntywenka
tribal reserve (Esilaleni), Tsolo in the
Eastern Cape.
[7]
According to the Applicant/Plaintiffs oral testimony the deceased
never forgot about his roots even when he found work in
Cape Town.
The deceased would often drive to the Eastern Cape and he provided
financially and otherwise for his family, that
is, the
applicant/Plaintiff and the two (2) sons. There was a stage,
however, when the deceased started to support the family
in the
Eastern Cape rather so inadequately such that the elders even
encouraged the Applicant/Plaintiff to also go and look for
employment so that she could better provide for the children. Even
though the Applicant/Plaintiff found employment in Johannesburg
consequent upon this inadequate maintenance, the customary marriage
between her and the deceased was never threatened and it
did not
dissolve. She told the Court that Mziwekhaya Mneno and Mzoliso Mneno
were the onozakuzaku who shouldered the responsibility
to negotiate
and ultimately to pay the lobolo which preceded her customary
marriage to the deceased. These two (2) mentioned
onozakuzaku
represented the family of the deceased. The persons they negotiated
with representing the Applicant's/Plaintiffs
family were the
latter's father and two (2) other elders from the village. These two
(2) were Simon Nondabula and Vuyisile Mbombo.
In her oral testimony
the customary marriage that consummated upon payment of lobolo was
never dissolved until date hereof and
that of course was the
position until the death of the deceased. The Applicant/Plaintiff
called Mr. Zolisa Mneno, who resides
at Ntywenka reserve, Tsolo in
the Eastern Cape. The latter testified about the lobolo negotiations
which he together with Mziwekhaya
Mneno conducted on behalf of the
deceased' family. He was one of the onozakuzaku negotiating lobolo
which they subsequently paid.
[8] According
to Zolisa Mneno they were negotiating lobolo with the
Applicant's/Plaintiffs father, Mdabula Mrapukana and the latter
was
being assisted by Mr. Mbombo in conducting the talks on behalf of
this family. Mr. Mneno corroborated the evidence by the
Applicant/Plaintiff that altogether six (6) head of cattle was paid
as lobolo. These cattle sounded in money. The first two (2)
per
agreement was to be valued at four hundred rands (R400,00) per
beast. The rest were valued at eight hundred rands (R800,00)
per
beast. He also corroborated the Applicant/Plaintiff as to the
rituals that followed upon the payment of lobolo. That included
the
slaughtering of a sheep by the family that received the lobolo. The
onozakuzaku went back to the deceased' family with the
skin, left
hind-leg, bowel, tea and a bottle of brandy. All this entertainment
is meant to indicate in a concrete manner the
acceptance of the new
relationship formed between the two (2) families. Such relationships
are sealed by the slaughtering of
this sheep. The gifts were handed
over to the deceased' family. Mr. Mneno also testified about rituals
that took place at the
house of the deceased upon the conclusion of
the customary marriage. He also testified about how the married
couple, that is,
the deceased and the Applicant/Plaintiff, were
allocated a residential site in keeping with the local custom. Mr.
Mneno confirmed
that the customary marriage between the deceased and
the Applicant/Plaintiff was blessed with two (2) sons earlier on
referred
to in this Judgment. Mr. Mneno confirmed that the customary
marriage between the Applicant/Plaintiff and the deceased was still
subsisting at the time when the deceased died.
[9] Importantly,
Mr. Mneno testified that he and the deceased were in good terms. He
emphatically denied that the deceased entered
into a marriage
relationship with any other woman, that is, other than the
Applicant/Plaintiff. He denied in particular that
there was any
customary marriage which was solemnized between the deceased and the
Second Respondent/Defendant. Asked how come
that the Second
Respondent/Defendant wore mourning dress for the deceased, namely
black clothes, Mr. Mneno remarked that the
wearing of black clothes
as a sign of mourning does not per se prove the existence of the
marriage. Further elucidating on this
aspect, Mr. Mneno made it
clear that women are normally the persons who ask certain persons to
wear black clothes. However, according
to Mr. Mneno, women do not
feature in lobolo negotiations. Women are not included when
onozakuzaku are sent to the maiden home
of the bride in order to,
for an example, to discuss/negotiate lobolo or even matrimonial
difficulties that surfaced during the
subsistence of the customary
marriage. According to Mr. Mneno, the Applicant/Plaintiff could not
attend the funeral of the deceased
because she was sick. He
testified that she, however, arrived at the matrimonial home after
the funeral and a sheep in keeping
with custom was slaughtered. Mr.
Mneno was present when this ritual as well was done.
[10] In
cross-examination, Mr. Mneno stated that he knows Bigboy, the older
brother of the deceased. He also admitted that he
knows Popie
Magwaxaza, sister to the deceased. Mr. Mneno told the Court that he
is the oldest member of his clan in the area.
When it was put to Mr.
Mneno that there were lobolo negotiations at East London with regard
to the Second Respondent/Defendant,
Mr. Mneno told the Court that he
did not hear this and in his knowledge she was never lobolaed. Asked
if he was present when
the Second Respondent/Defendant ate utsiki,
Mr. Mneno answered in the negative but added that he heard about
this. Asked what
steps he took to get to the roots of what he heard
happened, Mr. Mneno answered that he called for a discussion on this
when
he particularly confronted the deceased about what he was
doing, the deceased avoided him and simply went away. Mr. Mneno told
the Court that in confronting the deceased on this, he demanded to
know what the deceased was doing, he needed to know whether
or not
the latter was then involving himself with the practice of
polygamous marriage. Mr. Mneno reiterated that he got no answer
from
the deceased on this aspect. When asked about the name "Nomthunzi",
he first stated that he does not know the
name but he later on
recalled this to be another name for the Second
Respondent/Defendant. Asked about the arrival of uduli (in
respect
of customary marriage of the Second Respondent/Defendant, Mr. Mneno
said he was not present but was then in Durban (Kwazulu-Natal).
He
told the Court that whilst polygamy is a widely recognized custom,
it has, however, not been practiced in his area -
"the
forefathers practiced the custom but it no longer find
applicability. "
[11] THE
ANSWERING AFFIDAVIT
was
deposed to by Mandisa Mirriam Magwaxaza ("the Second
Respondent/Defendant") in this matter. She gave some background
as to how she met the deceased in the Western Cape. According to the
Second Respondent/Defendant, she and the deceased became
romantically involved, a relationship which grew into being a
fully-blown one. The deceased expressed a desire to marry the Second
Respondent/Defendant. The Second Respondent/Defendant stated the
following regarding her relationship with the deceased:
"Both
the deceased and I wanted things done in a proper manner. We married
first in terms of customary law in 2002. The deceased
knew my father
for only a briefperiod of time, before sadly the latter passed away
in 2000. Prior to us getting married in 2002
in terms of customary
law, my husband had approached my father's side of the family, in
order to enter into negotiations regarding
the payment of lobolo. I
am aware of the fact that agreement in this regard had been reached,
and that the deceased had paid
R4 000.00 cash to my father's side of
the family and to my recollection he simply handed over the cash to
one of the family members.
"
[12] The
Second respondent/Defendant alluded to the fact that she and the
deceased at that time were already living together in
the Western
Cape where the latter conducted a taxi business. What is of
significance in her Answering papers, the Second
Respondent/Defendant
stated the following:
"In
view of the fact that we live in modern times and to ensure legal
certainty we decided to confirm the aforementioned
customary
matrimonial bond we had, by also entering into a civil marriage.
Thus we got married by way of a civil marriage on
13 December 2004
at the Nyanga Magistrate's Court. "
She
attached a copy of the marriage certificate as Annexure
"MMM1"
evidencing
the existing civil marriage between her and the deceased. She
informed the Court that in her marriage to the deceased
a boy named
Mpho Magwaxaza was born. The Second Respondent/Defendant gave an
exposition as to how volatile the taxi business
is in which the
deceased was involved and how shocked she was when one night on 7
March 2007 certain unknown men knocked at the
door of the couple's
house and upon the door being opened, gained entry, shot and killed
the deceased in front of her. The Second
Respondent/Defendant stated
in her Answering papers that she is aware that the deceased had been
involved in a relationship with
the Applicant/Plaintiff in this
matter. According to what the Second Respondent/Defendant knows the
Applicant/Plaintiff in this
matter was "romantically involved"
and stayed together for a short while. In her knowledge the
Applicant/Plaintiff
and the deceased, however, split up in 1995
resulting in the former leaving the common home and the deceased
breaking up the
said relationship. She stated in her papers that the
breaking up of the said relationship was premised on issues of
infidelity.
The aforementioned information was gathered from the
deceased by the Second Respondent/Defendant. The latter also
reiterated
that the deceased never indicated to her that he had been
married to the Applicant/Plaintiff by way of customary marriage. She
maintained that if this was the case, her husband, the deceased,
would have indicated this to her. The Second Respondent/Defendant
averred that she was aware that there are two (2) children fathered
by the deceased in the relationship which existed between
the
Applicant/Plaintiff and the deceased, but hastened to add that the
birth of such children is no proof of the existence of
a customary
marriage. She stated that it was rather strange that the deceased
never visited the Applicant/Plaintiff, a thing
which would
reasonably be expected if there was a customary marriage between the
two. She added that the two (2) children fathered
by the deceased
and mothered by the Applicant/Plaintiff, stayed with her (Second
Respondent/Defendant) and the deceased since
2002 until the death of
the deceased. Confirming her challenged appointment as executrix the
Second Respondent/Defendant stipulated
as follows:
"Upon
his death I was appointed as the executor of the deceased estate. We
were married in community of property, and the
deceased had not
drafted a proper will, therefore the estate is to be finalized on an
intestate basis"
and
she referred the Court to
Annexures
"MMM3"
and
"MMM4"
respectively
being the letters of executorship and letters of Authority issued by
the First Respondent. Responding to the content
of paragraph 3 of
the Founding Affidavit regarding the existence of the customary
marriage between the Applicant/Plaintiff
and the
deceased, the Second Respondent/Defendant made certain
observations which in her view tend to prove
that there was never
such customary marriage. She
inter
alia
referred
the Court to the following observations:
(a)
That the deceased was buried in the Eastern Cape at his original
place of birth but whilst the Second Respondent/Defendant
attended
the funeral, the Applicant/Plaintiff never attended it.
(b)That
the averment relating to an alleged customary marriage between the
Applicant/Plaintiff and the deceased has only been
raised after the
latter's death and at a time when the deceased' estate has to be
wound-up.
(c)
During the funeral the deceased' "direct family" as per
tradition provides the widow with black clothes to wear
and the
Second Respondent/Defendant is the one who was provided with such a
black dress and other clothing to wear.
(d)That
in terms of
Section 4
of the
Recognition of Customary Marriages Act,
120 of 1998
, all spouses to a customary marriage have a duty to
ensure that their marriage is registered,
(e)
That the Applicant/Plaintiff attached a note to the Founding
Affidavit from one Keith Mneno to indicate that she was married
to
the deceased. The note, translated loosely, reads: "I am Chief
Mneno and do testify that Novusa Nani Magwaxaza (born
Mrapukana) id
7207251094086 is the wife for the clan of Emabheleni. Her husband is
Luvo Magwaxaza. She has got two sons Luthando
and Luzuko Magwaxaza."
[14]
The Second Respondent/Defendant criticizing the above quoted note,
cascaded it as providing no proof of the customary marriage
but
merely attempts to corroborate the assertion by the
Applicant/Plaintiff that she was married to the deceased.
Importantly
she remarked that the note falls to be ignored as it was
not in the Affidavit form. The Second Respondent/Defendant also
attacked
the validity of the Confirmatory Affidavits of Patricia
Nozibele Gabayi and Popi Magwaxaza used by the Applicant/Plaintiff
The
deponents are aunt and cousin of the Applicant/Plaintiff and the
deceased respectively. The Second Respondent/Defendant labeled
these
persons as distant relatives who are not truthful in what they aver.
[15]
The Second Respondent/Defendant denied that she did not disclose
certain assets of the deceased estate and that she consumed
same to
the exclusion of all other beneficiaries. She expressed concerns
that the Applicant/Plaintiff hardly gave examples of
such assets
allegedly undisclosed and consumed. She, however, confirmed that the
deceased owned three (3) taxis of which two
(2) are currently in a
working order. She averred that after the death of the deceased, the
latter's sister, Lulama Mbiyo, took
the said taxis by force and
handed them to the deceased' cousin, Nceto Walija and friends to
utilize same in order to earn an
income. The Second
Respondent/Defendant, however, with the help of a certain Mr. Ncati
of Codetta was able to secure these taxis
back to herself. In any
event, the Second Respondent/Defendant denied the existence of other
beneficiaries to the estate stating
that it was an intestate estate
and she and the deceased were married in community of property. In
her view, the present application
is an attempt by the Applicant
(assisted by some members of the deceased' family) to try and obtain
benefits from the said estate.
She also expressed a view that the
Court erroneously granted the interim order in this matter and
sought the dismissal of the
application with an appropriate order as
to costs, that is an order that costs be awarded in her favour on
"an attorney-client
and/or attorney own client scale."
[16] Testifying
in chief the Second Respondent/Defendant told the Court that when
she got married to the deceased she was clad
with umakoti dress.
Rituals were performed, for an example, utsiki ritual. According to
her it was her husband, the deceased,
who went to her maiden home in
the company of his brother and another man from his family, in order
to pay lobolo. Her maiden
home is situated at East London. According
to her oral testimony the abovementioned persons ""went to
ask for intombi".
Her maiden people accepted them. The lobolo
paid was the sum of R4 000.00. The persons who received and accepted
this lobolo
(according to the Second Respondent/Defendant) were her
elder uncle Bio and her brother, one Mlindeli. Upon payment of
lobolo
and after certain rituals were done at the deceased' family
place at Tsolo, the Second Respondent/Defendant remained there for
some time. When utsiki was slaughtered, according to the Second
Respondent/Defendant, Lulama Mbio, Bigboy and Zolisa Mneno were
present. The sheep and goat were slaughtered. According to the
Second Respondent/Defendant, she was told that the sheep was utsiki
and the goat was amasi.
[17] She
also testified that upon conclusion of lobolo negotiations and
payment thereof her maiden family members went to the
deceased'
family at Tsolo in order to create relationship. They slept over.
The sheep was slaughtered at the deceased' family
and her maiden
family left with the hind leg of the sheep. In her testimony the leg
of the sheep symbolized the created relationship.
In her oral
testimony the Second Respondent/Defendant reiterated that it was in
2004 that that she and the deceased went to "KwaNsumpa"
(offices of the Superintendent) at Nyanga in order to conclude the
civil marriage. The Second Respondent/Defendant confirmed
in her
oral testimony that all she was told by the deceased was that he
fathered the two (2) sons and that their mother was merely
his lover
and that their relationship ended in 1995. She was never told by
anyone, nor by the deceased that the latter was married
to the
Applicant/Plaintiff and/or any other woman for that matter. During
the subsistence of her customary marriage and the civil
marriage,
the Second Respondent/Defendant visited the Eastern Cape together
with the deceased regularly, particularly during
December and Easter
holidays and whenever there was a funeral to be attended there. She,
however, never saw the Applicant/Plaintiff
during all these visits.
The Second Respondent/Defendant also testified that the name she was
given by the in-laws upon the conclusion
of the customary marriage
is Nomthuzi. The name is said to have been given by Lulama. She also
testified that after the funeral
of the deceased, the relationship
she had enjoyed with the deceased' family members became sour. They
accused the Second Respondent/Defendant
of having killed and/or
caused the deceased to be killed. The poor relationship was worsened
when the Codetta persons moved swiftly
and dispossessed Lulama of
the taxis she had taken from the deceased' and Second
Respondent's/Defendant's matrimonial home at
Delft South, Cape Town,
Western Cape. It was after the abovementioned happening that the
Second Respondent/Defendant was served
with papers in this matter.
THE
REPLYING AFFIDAVIT
[18]
This, as could be expected, was deposed to by the
Applicant/Plaintiff in this matter. In view of the oral evidence
tendered
in this matter it hardly becomes necessary to summarize
this Affidavit. The oral evidence fully covered the contents of the
Replying
Affidavit. It suffices, in my view, to merely highlight
those issues which were not dealt with in the oral evidence. The
Applicant/Plaintiff
contended that if the Second
Respondent/Defendant and the deceased were acting in conformity with
laws and customs, the issue
of her alleged marriage to the deceased
would have been discussed at the latter's home by the members of the
family including
the Applicant/Plaintiff. The importance of such
discussion lies in the fact that should it be the case that the
deceased really
wanted to marry the Second Respondent/Defendant as
his second wife, he needed to seek and obtain the
Applicant/Plaintiffs consent.
The latter reiterated that in such a
meeting the family could have selected two (2) senior persons from
the deceased's family
to negotiate lobolo on behalf of the Amabhele
clan. Emphasizing on this aspect the Applicant/Plaintiff remarked as
follows:
"Moreover,
lobolo in customary law is not simply a question of handing over
money to one person as if buying bread, over
a counter; instead the
male members of the bride's family sitting unicameraly accept same
on behalf of the bride's clan and later
hand over the money paid to
the father with specific instructions as to how to deal with such
money or cattle. "
The
Applicant/Plaintiff invited the Court's attention to her observation
to the effect that if the second Respondent/Defendant
was indeed
married by way of customary marriage to the deceased, there would
have been no need to find legal certainty by converting
the
purported customary marriage to a civil marriage because the
Recognition of Customary Marriages Act 120 of 1998
was already
operational and provides for the registration of such marriages in
its
Sections 4(1)
and (2). The Applicant/Plaintiff admitted in reply
that it is true that her husband, the deceased, fathered Mpho, the
child mothered
by the Second Respondent/Defendant.
[19]
Responding to paragraph 12 of the Answering Affidavit the
Applicant/Plaintiff stated the following:
"I
specifically deny that what was between myself and my late husband
was simply a relationship and state that my late husband
and I had
always been married, moreover, by virtue of our agreement, I had to
reside in the Eastern Cape and take care of his
kraal and livestock
as is usually the custom in our community and I could only visit as
and when there was a need, but in our
case I did not because my late
husband visited the Eastern Cape frequently by reason of taxi
22
operations
since he conveyed passengers from Cape Town to Tsolo and other parts
of the Eastern Cape and we would then meet. "
THE
ISSUES
[20]
The first issue seems to be whether there was a valid customary
marriage between the deceased and the Applicant/Plaintiff
and
whether such marriage still subsisted at the time of the demise of
the deceased. On this issue the party that bears the onus
of proof
is the Applicant/Plaintiff. Another issue is whether the deceased
was at all married to the Second Respondent/Defendant
by way of
customary union apart from the civil marriage, the certificate of
which is annexed to the Answering Affidavit. The
determination of
the dispute in the instant matter necessitates that one must
consider the customary law as it applies to customary
marriages. It
is important to mention that historically the customary marriage was
never recognized as a valid marriage. It could
not stand on equal
footing with the marriage by civil rites.
[21]
It is fair to say that it was tolerated by authorities of the time
and was allowed to continue to exist despite the fact
that it was
not recognized. This non-recognition of the customary marriage
caused untold hardship and pain to the Black communities
because
members of such communities were so married. Some of the severe
hardships flowing from non-recognition of customary marriages
were
inter
alia,
that
children born from such marriages were not regarded as legitimate
and wives in such marriages were not accorded status similar
to the
status of wives involved in civil marriages in matters of
succession, maintenance and litigation. Today, thankfully, the
present democratic government has taken a giant step to recognize
marriage by way of customary law. The piece of legislation
in this
regard is known as the Recognition of customary Marriages Act 120 of
1998. The latter Act is also relevant to the issues
to be decided in
this matter. For that reason it is only prudent to briefly refer to
this Act before one uses same in adjudicating
the dispute between
the litigants in the instant matter.
THE
RECOGNITION OF CUSTOMARY MARRIAGES ACT 120 OF 1998
[22]
I have had the privilege of reading through Parliamentary debate as
contained in the HANSARD on the promulgation of the
abovementioned
Act. Although divergent views were expressed by politicians in our
Parliament, it would appear that central to
the passing of this
piece of Legislation was to bring about a measure of uniformity in
the matrimonial regime in this country.
The theme of the debate
becomes abundantly clear, for an example, in the following extracts
from the said Parliamentary debate
on the legislation:
"The
Recognition of Customary Marriages Bill before us constitutes one of
our small contributions to easing the pain of African
women in this
country, and is also a crucial pillar for poverty alleviation.
Customary law was one of the instruments used to
confine black
people, particularly African women, in poverty. This was the fate
suffered through indigenous marriages, ultimately
by women whose
rights depended on their marital status and children whose rights
hinged on the status of their parents. This
Bill does not provide an
answer to everything. However, it will emancipate women and others
whose rights have, until now, been
undermined. African women married
under customary law will cease to be regarded as perpetual minors
enjoying less proprietary
protection than minor children. These
women will, for the first time, enjoy full recognition of their
marriages. They will share
equally in the control, including
alienation of matrimonial property. They will enjoy full contractual
capacity and all parental
rights including
custody
and maintenance
The
impact of this law, accordingly, is to eradicate aspects of race and
gender discrimination. The remaining challenges include
public
education and the raising of awareness among service providers. To
foster a climate for successful implementation of the
new laws, the
training of service providers, such as magistrates, judges and
private lawyers, is absolutely critical. ...many
of them have
handled customary law matters not only without any background of the
cultural context, but also having never studied
customary law at
all. The other challenge is to adapt dispute resolution mechanisms
to the way of life of many traditional communities.
Alternate
dispute resolution is particularly critical in this regard. There
are two areas that require urgent intervention, and
these are
inheritance and traditional courts. It is rather sad to have had to
defer the Bill on secession. I do, however, hope
that this law,
which is, in fact, an extension of the principles in the Recognition
of Customary Marriages Bill, will be passed
soon. It is also our
wish as a department to see to the speedy
recognition of other
marriages which are currently not recognized, and in that regard I
am referring to the religious
marriages. "
"What
this Bill also stipulates is that a customary marriage is not
inferior to other types of marriage, such as marriages
by religious
or civil rites. Previously, as the hon members know, customary
marriages were treated as having no legal value,
with some people
treating them as having very little legal value. During the
apartheid era what used to happen was that if a
man married one
woman, MaDlamini, by customary rites and then later on married
another one, MamNtande, by religious or civil
rites, the latter
marriage would be regarded as. legal ahead of the former. People
would even boast that they had a certificate,
because they were
married in the white people's way. In some families this situation
would result in misery for the woman married
by customary rites and
her children. In the end recognition would be enjoyed only by the
second marriage.
All
these types of marriages are going to enjoy equal
recognition,
so that even children out of each can be treated equally.
Furthermore, the procedure for the termination of these
marriages is
the same. One will have to go through a divorce court. However, even
these courts still need to be restructured
in order to make them
accessible to everybody.
Now
people who are married by customary rites according to this new law,
and not those in polygamous unions, will have joint ownership
of
their income and purchases unless they have a signed agreement to
the contrary
It
is our wish that all women participate in this debate, especially
the women from the IFP, and not allow the honourable male
members to
decide fort them. Once this Bill
has been passed, it will be
necessary that all marriages by customary rites are registered with
a registrar who will be nominated
by the Minister of Home Affairs.
People who married prior to the passing of this Bill are encouraged
to ensure that they register
within twelve months. If a man is
involved in polygamous marriages, in terms of this Bill, all those
marriages are equally acceptable
before the law.
Therefore they
should be registered. Those who marry after the passing of this Bill
are encouraged to register their marriages
within three months of
getting married. Certificates will be issued out for all registered
marriages
In
order for a customary marriage to be fully accepted as legal, the
man and the woman should have reached the age of 18, and
they should
have agreed and there should be consultation and a ritual in
accordance with local custom. A man in a non-polygamous
customary
union who is still living with his wife is allowed to remarry that
wife in terms of the law that was passed in 1961.
However, a man who
already is married to one woman by customary rites and that marriage
still subsists, may not marry another
woman according to the 1961
law.
of
this new law polygamy is still acceptable, and that
means
that a man married by customary rites is free to marry another one
by similar rites. However, this man should first enter
into a
written agreement in which it is stated whose responsibility it will
be to manage any wealth and material possessions
that have been
obtained as a result of this marriage and how these will be managed.
The court should be satisfied that the manner
in which these are
managed will benefit the woman and her children. I know that the
issue of polygamy is a very sensitive one
for females. However, it
is entirely up to the unmarried females to choose or not to choose
to enter into polygamous unions
The
Bill we are discussing today lays the foundations for the adjustment
of the marriage law so that all types of marriages in
South Africa
are equally acceptable in law irrespective of the rites. As women,
we would like to request the Department of
Justice to speed up
the consideration of amendments to this law."
"As
changes made their presence felt on the African continent, African
people also started using other forms of marriage
such
as
civil marriages Unfortunately certain
customs
and traditions regarded the status of a woman in a customary
marriage as inferior to that of her husband. This evil was
re-emphasized by the Black Administration Act passed by
the
NP. This unforgettably bad legislation not only declared the woman a
perpetual minor, but also declared customary marriages
as mere
customary unions which did not have the status of marriage for all
purposes
The
Recognition of Customary Marriage Bill before Parliament today seeks
to correct the above bad law in the following ways. Firstly,
for the
first time in this country a customary marriage is given the same
status as a civil marriage. Children born of
this marriage will
no longer be regarded as illegitimate under any circumstances.
Secondly, the status of a woman in a customary
marriage is made
equal to that of her husband. The woman is no longer a perpetual
minor as declared by the NP centuries ago.
Thirdly, the woman in a
customary marriage will be able to be the joint owner of the common
estate in a customary marriage. Fourthly,
all customary
marriages
entered into before commencement of this Bill are
recognized as marriages in terms of this Bill as long as such
marriages were
regarded as valid according to the customs and
traditions in terms of which such marriages were entered into
This
Act is probably not going to solve all problems in customary
marriages but it is an attempt in the correct direction. I want
to
make an appeal to all the people who might be affected by this
legislation to take it in a positive spirit. The thorny issues
to
the traditionalists are perhaps the equal status of a woman to that
of her husband in a customary marriage and
property
of the existing wife or not. This Act now provides that the contract
must be entered into after consultation, and that
the court must
intervene to make sure that the first wife is not prejudiced by that
arrangement
That
was the original custom, which was only changed because of changes
in the economic system which resulted in people using
it to their
own advantage, which was wrong. This Bill
reaffirms
what constitutes a traditional marriage a
man
cannot just decide on his own to take a second wife without
consulting the relevant stakeholders, including the wife concerned.
Therefore, what is the problem? What fabric is
broken?
Now the court is the monitor of
such
a situation, because the contract will be before the court. "
[23] Essentially
Parliament passed the Recognition of the Customary Marriages Act in
order to correct the inequalities that were
created by the Black
Administration Act and to bring the customary law in line with
international law and the Constitution Act
108 of 1996. What
apparently hastened the promulgation of the Act under discussion is
that the President of the Republic of South
Africa ratified the
International Convention on the Elimination of All Forms of
Discrimination Against Women in 1995 without
any reservations. The
Convention's requirements are very stringent as discrimination
against women is outlawed in no uncertain
terms. The Convention
requires proactive measures by the signatory's government to empower
them. There are certain provisions
of the Act that are directly
relevant to the dispute between the parties in this matter. 1 was
referred particularly to Section
10 which reads:
"10(1)A
man and a woman between whom a customary marriage subsists are
competent to contract a marriage with each other under
the Marriage
Act, 1961 (Act No. 25 of 1961), if neither of them is a spouse in a
subsisting customary marriage with any other
person. (2) When a
marriage is concluded as contemplated in subsection (1) the marriage
is in community of property and of profit
and loss unless such
consequences are specifically excluded in an ante-nuptial contract
which regulates the matrimonial property
system of their marriage.
(3)
(4)
Despite subsection (1), no spouse of a marriage entered into under
the
Marriage
Act, 1961, is, during the subsistence of such marriage,
competent
to enter into any other marriage. "
[24]
A reference was also made to Section 4 of the Act which provides
as follows:
"4(1)
The spouses of a customary marriage have a duty to ensure that their
marriage is registered.
(2)
Either spouse may apply to the registering officer in the prescribed
form for the registration of his or her customary marriage
and must
furnish the registering officer with the prescribed information and
any additional information which the registering
officer may require
in order to satisfy him- or herself as to the existence of the
marriage.
(3)
Any
customary marriage -
entered
into before the commencement of this Act, and which is not
registered in terms of any other law, must be registered
within a
period of 12 months after that commencement or within such longer
period as the Minister may from time to time prescribe
by Notice in
the Gazette;
entered
into after the commencement of this Act, must be registered within
a period of three months after the conclusion of
the marriage or
within such longer period as the Minister may from time to time
prescribe by notice in the Gazette.
(4)
(a)
A registering officer must, if satisfied that the spouses
concluded
a valid customary marriage, register the marriage by
recording
the identity of the spouses, the date of the marriage, any
lobolo
agreed to and any other particulars prescribed.
(b)
The registering officer must issue to the spouses a certificate of
registration, bearing the prescribed particulars.
(5)
(a)
If for any reason a customary marriage is not registered, any
person
who satisfies a registering officer that he or she has a sufficient
interest in the matter may apply to the registering
33
officer
in the prescribed manner to enquire into the existence of the
marriage.
(b)
If the registering officer is satisfied that a valid customary
marriage exists or existed between the spouses, he or she must
register the marriage and issue a certificate of registration as
contemplated in subsection (4).
If
a registering officer is not satisfied that a valid customary
marriage was entered into by the spouses, he or she must refuse
to
register the marriage.
A
Court may, upon application made to that Court and upon
investigation instituted by that Court, order -
the
registration of any customary marriage; or
the
cancellation or rectification of any registration of a customary
marriage effected by a registering officer.
A
certificate of registration of a customary marriage issued under
this Section or any other law providing for the registration
of
customary marriages constitutes prima facie proof of the existence
of the customary marriage and the particulars contained
in the
certificate.
Failure
to register a customary marriage does not affect the validity of
that marriage. "
Most
of the provisions of the
Recognition of Customary Marriages Act are
new. But the question of registration provided for in
Section 4
set
out above is not completely new. In KwaZulu-Natal customary
marriages could be registered in terms of the provisions of
Section
44
50
of the KwaZulu-Natal code on Zulu Law. Similarly in the
former Transkei parties could register their customary marriages
although
this had no effect on the validity of any such marriage.
See:
Bekker,
Requirements for validity of customary marriages, (South African
Journal of Ethnology
44
(2001);
West,
Proprietary Consequences of marriages in Customary law and the
Contractual Capacity of spouses so married (De Rebus,
47
(Oct. 2002).
APPLICATION
OF CUSTOMARY LAW
[25]
It is fairly simple to determine whether or not a party has
successfully proved the existence of a customary marriage. There
are
requirements for a valid customary marriage, namely consensus
between the parties, a formal ceremony to transfer the bride
to the
other family and the payment of lobolo. Initially the consensus I
have referred to was not concerned with consensus between
the two
marrying parties. The marriage was and is still regarded as a union
between two (2) families rather than two (2) individuals.
See:
Mabena
v Letsoala
1998
(2) SA 1068
(T). We know that because customary law is not static
but it also develops with the times, this requirement is now such
that
the two marrying individuals should agree to the marriage as
well.
Section 3
(2) (a) of the
Recognition of Customary Marriages
Act has
nowadays explicitly provided that permission of both
individuals to the marriage is required. In my view this does not
amend
or outlaw the old customary practice to any greater extent. It
is inconceivable that individuals to such a marriage can exclude
the
two families. The new provision in the Act compliments the agreement
between two (2) families in my view. Lobolo can consist
of cattle or
the monetary value thereof. In nowadays cash is seemingly preferred,
particularly in urban areas. In rural areas
cattle on hooves are
still the only known form of paying lobolo. Lobolo can either be
partially paid or fully paid. In the event
of the former scenario,
an agreement would have to be entered into as to when and how the
balance of lobolo shall be paid. Lobolo
survived evolution and was
never declared contrary to the rules of natural justice or public
policy. See:
Thibela
v Minister of Wet en Orde
1995
(3) SA 147
(T). The bride must be formally transferred to the family
of the prospective husband. Once this is done, she is then formally
regarded as part of the latter family. Her release from her own
family relationship and her incorporation into her husband's family
is celebrated with extensive public rituals and ceremonies. This is
a very important requirement for the validity of the customary
marriage.
[26] It
is relevant to these proceedings to mention that prior to 1988 a man
and a woman could enter into a common law marriage
with someone
other than his customary wife during the subsistence of a customary
marriage. The position was that the customary
marriage would have
been regarded as dissolved and only the common law (civil) marriage
would receive recognition. See:
Bennet
(Sourcebook on African Customary Law
232-237
- Cape Town 1991). This resulted in great hardships and frustration
experienced by wives married by customary marriages.
Many men were
pressured into engaging in this practice by their urban lovers for
economic benefits only. Section 22 of the then
36
Black
Administration Act 38 of 1927 which purported to deal with property
owned by blacks did not accord wives in such customary
marriages
their deserved protection. There was no uniformity in the case law
of the time. For instance in
Ndhlovu
v Ndhlovu
1937
NAC (N&T) 80 the Court found that such subsequent marriage would
be invalid while the Court in
Malazi
v Mndaweni
1975
BAC (C) 45 found that the common law marriage would be voidable.
Section 22 (7) of the Black Administration Act purported
to provide
protection to the customary wife and children in relation to
inheritance. See also:
Marissa
Herbs and Willemien Du Plessis
(Electronic
Journal of Comparative Law).
We
bear in mind that Section 1 of the Marriage and Matrimonial Property
Law Amendment Act 3 of 1988 resolved this anomaly by providing
that
a spouse should first dissolve his or her customary marriage before
entering into a civil marriage.
[27] Now
(thankfully) in terms of
Section 3
(2) of the
Recognition of
Customary Marriages Act none of the
parties to a customary marriage
will be allowed to conclude a marriage in terms of the 1961 Marriage
Act. However, Section 10
(1) quoted in full earlier on in this
Judgment provides that two (2) parties in a monogamous customary
marriage may conclude
a civil law marriage but not visa versa. The
intention seems to further monogamous marriages rather than
polygamous marriages.
I hasten to add though, that nowhere in the
Recognition of Customary marriages Act are polygamous marriages
outlawed. The summarized
evidence of the Applicant/Plaintiff as well
as that of her witness, Mr. Zolisa Mneno, is no doubt very
impressive and persuasive.
The Applicant/Plaintiff reaffirmed her
assertion that she was married to the deceased by way of customary
marriage. She gave
minute details as to the steps taken by the
deceased' family and her own family prior to, during and after the
celebration of
this customary marriage. She dealt exhaustively with
the payment of lobolo, the agreement between the two (2) families
that she
and the deceased should enter into this customary marriage,
the handing over of herself by her family to that of the deceased,
the celebration as well as all other ancillary rituals that form the
central part of the coming into being of the customary marriage.
Despite grilling and truth searching cross-examination, her evidence
did not change its colour. Cross-examination instead served
to put
her in a position to give further details to improve on her evidence
in chief. Importantly, she thereafter called Zolisa
Mneno, a clearly
well informed self confessed tribal man who does not only know the
customs and practices of his tribe, but who
lives them.
[28] I
was singularly impressed by Mr. Mneno's evidence. Mr. Mneno is a
relevant witness to have been called. He is brother to
Chief Mneno
and is bloodily related to the deceased. He belongs to the clan of
Amabhele. He and Mr. Mneno (the Chief of the area)
were the
representatives (onozakuzaku) of the deceased' family specially
selected to assume the responsibility to undertake lobolo
negotiations with the family of the bride. This they did with pride.
It is his evidence that the negotiations/discussions held
between
the two (2) families culminated in the payment of lobolo testified
to by both the Applicant/Plaintiff and Mr. Mneno himself.
The latter
played a pivotal role in the subsequent ceremonies and rituals and
celebrations which
necessarily
followed. Mr. Mneno fully corroborated the version by the
Applicant/Plaintiff as set out first in the Founding Affidavit
and
Replying Affidavit as well as documented in her oral evidence. The
cross-examination of this witness elicited answers that
effectively
taught all involved what happens customarily when the customary
marriage is concluded. He approached each question
in a cool and
collected manner and gave the Court significant straight forward,
well thought out and logical answers. Mr. Mneno
is a classical
example of a man who is very well versed in his customs and
practices. He would for an example, listen carefully
to a statement
made by the defence for him to comment. In response he would with
dignity and certainty answer and say, "Ngamampunge
lawo"
(those are lies) and would then deal succinctly with what is the
true position and that would almost always be in
conformity with his
detailed evidence already given. He was asked about whether he knew
polygamy. In response he answered that
polygamy was practiced by his
great forefathers and that at present no one in his area practices
polygamy. It was strange that
there was hardly any contradiction of
any type in the evidence led by the Applicant/Plaintiff and Mr.
Mneno.
[29]
The Second Respondent/Defendant also testified albeit she called no
witness. The only drawback in her testimony is that
it consisted
essentially of what she gathered from the deceased principally. I
refer in particular to her evidence that there
was no customary
marriage subsisting between the latter and the Applicant/Plaintiff.
This is an aspect on which one tends to
be sympathetic towards the
Second Respondent/Defendant because experience has shown and taught
us that male persons who leave
their original homes in rural areas
and come to urban areas essentially in pursuit of what one may call
"greener pastures"
(better employment opportunities) have
over time in memorial resorted to tendencies of not informing their
urban lovers the true
state of affairs when it comes to their
matrimonial status. She testified that her husband, the deceased,
paid lobolo for her
and when he did so, he was being accompanied by
his elder brother Bigboy. In other words Bigboy and the deceased
were Onozakuzaku
in her particular case. Unozakuzaku is a vital
witness in any disputed customary marriage because apart from being
the key figure
(the go between) in discussions involving the two (2)
families, he thereafter becomes involved as well during the
celebration
of the marriage he helped to begin. There is undoubtedly
a fountain of information lost if one does not call such an
important
witness. According to the Second Respondent/Defendant
Bigboy as an elder brother of the deceased was present when she ate
utsiki
etc. It certainly is not too much expectation on the part of
the Court if I state I expected that Bigboy would be called by the
Second Respondent/Defendant to give his side of what happened.
Moreover, it came to light during this hearing that the Second
Respondent/Defendant knows Bigboy to be resident and employed here
in the Cape Town area. Although litigants choose which witnesses
to
call and which not, failure to call Bigboy was a serious omission on
the part of the Second Respondent/Defendant. This left
a gap
unfilled in her version. The Second Respondent/Defendant knew from
the time she received the papers in this matter that
her alleged
customary marriage and subsequent civil marriage were questioned by
the Applicant/Plaintiff. It was also abundantly
clear when the
Applicant/Plaintiff testified that her matrimonial status in both
categories was called to question. Why would
the presentation of her
case leave such an important aspect unattended? Certainly there
emanates herefrom troublesome questions
that have no readily
available answers.
[30] Whenever
the Court is faced with two (2) versions from litigants it would be
quite relevant to seek guidance from the following
formulation of
note by Eksteen AJP in
National
Employers' General Insurance v Jagers
1984
(4) SA 437
(E) at 440D-G:
"It
seems to me, with respect, that in any civil case, as in any
criminal case, the onus can ordinarily only be discharged
by
adducing credible evidence to support the case of the party on whom
the onus rests. In a civil case the onus is obviously
not as heavy
as it is in a criminal case, but nevertheless where the onus rests
on the plaintiff as in the present case, and
where there are two
mutually destructive stories, he can only succeed if he satisfies
the Court on a preponderance of probabilities
that his version is
true and accurate and therefore acceptable, and that the version
advanced by the defendant is therefore false
or mistaken and falls
to be rejected. In deciding whether that evidence is true or not the
Court will weigh up and test the plaintiffs
allegations against the
general probabilities. The estimate of the credibility of a witness
will therefore be inextricably bound
up with a consideration of the
probabilities of the case and, if the balance of probabilities
favours the plaintiff, then the
Court will accept his version as
being
41
probably
true. If however, the probabilities are evenly balanced in the sense
that they do not favour the plaintiff's case anymore
than they do
the defendant's, the plaintiff can only succeed if the Court
nevertheless believes him and is satisfied that his
evidence is true
and that the defendant's version is false."
[31] In
the instant case after having heard the evidence and considered same
holistically, I reach an inescapable conclusion that
it has been
proved to my satisfaction that the Applicant/Plaintiff was indeed
married to the deceased in accordance with custom
and that such
customary marriage subsisted at the time of the deceased' demise.
The parties were then ordinarily resident and
domiciled in their
place of birth Tywenka, Tsolo, in the previous Transkei. Even if one
were to consider the provisions of the
Transkei Marriages Act 21 of
1978, it would be found that the Applicant/Plaintiff satisfied the
requirements of a marriage set
out in terms thereof. Counsel for the
Second Respondent/Defendant insisted that even if I find that the
customary marriage between
the Applicant/Plaintiff and the deceased
existed, the fact that such marriage was not registered must
negative the validity thereof.
The fact of the matter is that
registration of a customary marriage per se is not an essential
requirement for the validity of
a customary marriage. See:
Section
3
(3) of the
Recognition of Customary Marriages Act.
Notably
the
above cited Act recognizes the validity of customary marriages
that existed and were valid prior to its commencement. See:
Section
2 of the abovementioned Act.
Section
4
(9) of the
Recognition of Customary Marriages Act (fully
quoted
earlier on in this Judgment) makes it clear that non-registration or
failure to register a valid customary marriage does
not affect the
validity thereof. The aforementioned submission on behalf of the
Second Respondent/Defendant cannot therefore
be sustained.
[32] I
have great difficulty to understand the version of the Second
Respondent/Defendant in this matter. She maintained there
existed a
customary marriage between her and the deceased prior to the
subsequent conclusion of the civil marriage in 2004, the
certificate
of which is attached to her Answering papers. It is her evidence
that her husband, the deceased, personally paid
the sum of Four
thousand rands (R4000,00) to her father which sum of money
represented lobolo. She added that the deceased was
in the company
of his elder brother Bigboy. Although it is not contrary to any law
for a person to act as Unozakuzaku in his
own prospective marriage,
it is, however, very unusual and strange. I do not intend wasting
too much time on this aspect. It
suffices to say the Second
Respondent/Defendant has no personal knowledge of all this. She was
told by the deceased. I am also
very much concerned about her
testimony about the alleged utsiki she testified she ate. Not a
single person was called to substantiate
her version. She also
focused on her attendance of the funeral of the deceased and that
she was made to dress in a black mourning
dress. Nothing turns on
attending a funeral. It is an accepted fact that when the deceased
died, she was cohabiting with him
at Delft South, Cape Town and
importantly, she and the deceased had concluded civil marriage at
Nyanga in 2004. It is common
cause that the deceased used to visit
his original home in the Eastern Cape with her. It is quite probable
that the elders (particularly
women) at the deceased' home had come
to accept her as not only the deceased' companion, but also his
civil wife. We also know
how much acceptable the validity of a civil
marriage in rural communities had become.
[33]
Mr. Sandlana submitted that the customary marriage alleged by the
Second Respondent/Defendant must be found to have been
invalid
inter
alia
because
it was purportedly entered into without the consent of the
Applicant/Plaintiff. I deal with this submission later on in
this
Judgment. The civil marriage between the Second Respondent/Defendant
and the deceased is simply rendered a nullity by the
provisions of
Section 10
(1) of the
Recognition of Customary Marriages Act.
Section
10 of this Act is fully cited earlier on in this Judgment. A
man and a woman who is party to a subsisting customary marriage can
no more enter into a civil marriage with another party. At the time
of concluding the civil marriage in question in these proceedings,
the deceased was party to a subsisting customary marriage with the
Applicant/Plaintiff. It is quite possible that the deceased
lied to
the Second Respondent/Defendant and said he was not married to
anybody. I have mentioned how common that has become.
But the fact
of the matter is that the Second Respondent/Defendant also had an
obligation to undertake an investigation in this
regard. Hers was
even easier. The children of the Applicant/Plaintiff stayed with her
and the deceased at Delft South as from
2002. These two (2) children
carried the surname of the deceased. Ordinarily, in African
communities, only children born from
a marriage relationship carry
the father's surname. Children born out of wedlock normally carry
their mother's surname. This
is because they are taken to belong to
their maternal grandfather with the biological father only burdened
with the duty to maintain
them.
[34] What
appears to have happened here is that the Second
Respondent/Defendant and the deceased cohabited (without forming any
type of marriage) for some time. The Second Respondent/Defendant
fearing the danger of staying with the deceased without defined
matrimonial link, must have persuaded (understandably) the deceased
that the two (2) should proceed to contract a civil marriage.
The
latter marriage is easier to bring into being compared to the
marriage by way of customary law. This was probably an endeavour
(understandably) on her part to secure her position when it comes to
things like inheritance. She probably did not then know
about the
provisions of the
Recognition of Customary Marriages Act which
outlawed that practice. The practice now outlawed by
Section 10
(1)
of the
Recognition of Customary Marriages Act had
been the order of
the day prior to the promulgation of the Act. The practice left the
women (particularly in rural areas) married
by way of customary
marriages destitute whenever their husbands died.
[35]
Mr. Sandlana contended that in his view the consent of the already
married wife (by customary law) had to be first sought
before the
conclusion of the second and/or third marriage by the husband who is
party to an existing customary marriage because
the second and/or
third marriage implied that the property of the already married wife
would diminish. Traditionally whenever
one speaks of property this
was almost always a direct reference to livestock in the nature of
cattle. Indeed the conclusion
of the second and/or third marriage by
such husband involved the use of such cattle for purposes of paying
lobolo. I, however,
differ with Mr. Sandlana in this regard. The
aspect of property was carefully managed in traditional communities.
The wife upon
marriage formed what is called a house. There will be
cattle allocated to that particular house. Such livestock is
properly identified
and marked accordingly. They multiply and are
known to that particular wife. This becomes known as house property.
Another category
in the same family will remain known as kraal
property. The family head (the husband) remains in charge of all the
property but
he may not use any beast belonging to the house
property for any purpose other than for the benefit of that
particular house.
If he must use same, he must fully consult the
wife of that particular house. Until and unless an agreement between
him and that
house has been reached, he shall under no circumstances
resort to the use of the house property. The most common agreement
reached
would entail the replacement of that property used by the
husband other than for the benefit of the relevant house. The head
of the family, however, had a free hand when it came to the use of
kraal property. It was almost always from the kraal property
that he
paid lobolo for any further wife he intended to marry.
[36]
He merely informed the senior wife that he intended to initiate
lobolo negotiations with regard to any wife he then intended
marrying. This was more out of respect than soliciting consent from
her. Before leaving this aspect of the Judgment, it may be
useful to
quote from the EJCL, an article authored by
Marissa
Herbst and Willemien du Plessis entitled Customary Law v Common Law
Marriages: A Hybrid Approach in South Africa
where
the following statement of law appears:
"According
to the KwaZulu-Natal Codes of Zulu law, house property belongs to
the specific house but is still under the control
of the family
head. The house property must, however, be utilized for the benefit
of the members of the specific household. The
family head must
maintain the daily needs of his wife (wives) and children. Family
property includes all the property in the
family excluding house
property and personal property. Personal property includes, for
example, clothes and other smaller items
of personal nature or gifts
that were received. Women had control over their personal property
only. "
See
further:
Olivier
et al, Inheemse Reg; T.A. Bennet, Sourcebook on African Customary
Law 232-237
(Cape
Town 1991);
LP.
Maithuli, Do we have a new type of voidable marriage?
(Journal
of Contemporary Roman-Dutch Law 628-630 (1992)
.
[37] I
do not hold the view that in the past a polygamous man could not
enter into or contract further customary marriages without
the
consent of the senior wife. The situation is of course different
today. The weak, un-persuading non-committal testimony by
the Second
Respondent/Defendant does not help me to make a finding that she was
ever customarily married to the deceased. I am
mindful of what she
called utsiki which she told the Court she ate and that she was
given a name by the family members of the
deceased. Utsiki alone
does not mean that a valid customary marriage has come into
existence. Mr. Zolisa Mneno conceded that
there was some
slaughtering at the deceased' house in the Eastern Cape and that the
Second Respondent/Defendant was present.
Mr. Mneno told the Court
that he personally confronted the deceased if he was then engaging
himself in polygamy. The latter did
not reply but simply and quickly
vanished from the eyes of Mr. Mneno. I cannot on the Second
Respondent's/Defendant's evidence
make a finding that there was a
customary marriage between her and the deceased. Although she
testified principally about things
she had no personal knowledge of,
she did not impress me either as a good witness even in things she
should have had personal
knowledge of. She was in my view, an
untruthful witness. The conclusion I have reached about the Second
Respondent's/Defendant's
case must not be interpreted to mean
anymore than that she was simply not customarily married to the
deceased. She, however,
remains the mother of the deceased' child,
Mpho. It remains a fact that she stayed with the deceased at Delft.
South, Cape Town
for a number of years prior to the demise of the
latter.
[38]
An application for interdictory relief (which this one is) must
comply with certain requisites. The requisites for a final
interdict
are:
a) a
clear right;
b) an
injury actually committed or reasonably apprehended or an actual or
threatened invasion of that right;
(c)
the absence of similar protection by any other ordinary or
suitable
legal remedy.
See:
Conradie J,
Hall
and Another v Heyns and Others
1991
(1) SA 381
(CPD) 395 D-E.
The
Applicant/Plaintiff, in my judgment, satisfied each and every one of
the above requisites for the granting of the final interdictory
order in the instant matter. Having considered the papers in this
matter and having heard, evaluated and considered the oral
evidence
led in this matter, I am in a position to make findings that will
settle the dispute between the parties.
ORDER
[39]
In the circumstances it is ordered that:
a) The
Rule Nisi granted in this matter and subsequently amended by my
brother Sholto-Douglas AJ on 8 August 2007 is confirmed.
b) The
Applicant/Plaintiff and the deceased had entered into a customary
marriage and the said customary marriage subsisted upto
the date of
the demise of the deceased.
c) There
was never a customary marriage between the Second
Respondent/Defendant and the deceased; the civil marriage entered
into between the Second Respondent/Defendant and the deceased on 13
December 2004 at Nyanga, Cape Town (Annexure "MMM1"),
is
declared null and void by virtue of the provisions of Section 10
(1) of the Recognition of Customary marriages Act 120 of
1998.
d) The
Appointment of the Second Respondent/Defendant by the First
Respondent as the executrix and administratrix of the estate
of the
deceased (Luvo Magwaxaza) reported under estate number 3790/07 is
hereby cancelled and/or set aside; the First Respondent/Defendant
is
directed to consider appointing a competent Attorney and/or an
independent executor approved of by the beneficiaries in the
estate
of the deceased.
e) The
Second Respondent/Defendant shall pay costs of this application and
the subsequent trial.
DLODLO,
J