About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2020
>>
[2020] ZASCA 46
|
|
Tsambo v Sengadi (244/19) [2020] ZASCA 46 (30 April 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
no: 244/19
In
the matter between:
ROBERT
TSAMBO APPELLANT
and
LERATO
RUBETA
SENGADI RESPONDENT
In
re:
TSAMBO,
JABULANI
DECEASED
Neutral
citation:
Tsambo v Sengadi
(244/19)
[2020] ZASCA 46
(30 April 2020)
Coram:
MAYA P and MBHA, ZONDI and MOLEMELA JJA and
MOJAPELO AJA
Heard
:
6 March 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication
on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 12h00 on 30 April
2020.
Summary:
Customary
law –
s 3(1)
(b)
of
the
Recognition
of Customary Marriages Act 120 of 1998
–
whether
handing over of bride occurred – whether a valid customary
marriage came into existence.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Johannesburg (Mokgoathleng J, sitting as a court of first
instance): judgment reported
sub nom
Sengadi v Tsambo; In re: Tsambo
[2018]
ZAGPJHC 666;
2019 (4) SA 50
(GJ);
[2019] 1 All SA 569
(GJ)
The appeal is dismissed
with no order as to costs.
JUDGMENT
Molemela
JA (Maya, P and Mbha and Zondi JJA and Mojapelo AJA concurring)
[1]
The central issue in this appeal is whether on 28 February 2016 a
customary law marriage came into existence between the deceased,
Mr
Jabulani Tsambo whose stage name was HHP (“Jabba”), and
the respondent, Mrs Lerato Rubeta Sengadi. Ancillary to
that issue is
whether, pursuant to the conclusion of the lobola negotiations, a
handing over of the bride ensued in satisfaction
of the requirement
that the marriage be negotiated and entered into or celebrated in
accordance with customary law in terms of
s 3(1)
(b)
of the
Recognition of Customary Marriages Act 120 of 1998
.
[2]
The appeal is directed at the decision of the Gauteng Division of the
High Court, Johannesburg (Mokgoathleng J), which found
that a valid
customary marriage was concluded between the respondent and the
deceased. The appellant, Mr Robert Tsambo, is the
biological father
of the deceased.
[3]
In support of relief she sought from the high court, the respondent
relied on the following facts. The deceased proposed marriage
to her
on 6 November 2015 in Amsterdam. She immediately accepted the
marriage proposal. The deceased considered African culture
to be
important and insisted that the couple conclude a marriage in terms
of customary law
[1]
with the
blessings of their respective parents. The respondent agreed. On 20
January 2016 the appellant dispatched a letter written
by the
deceased’s uncle, Mr Tutu Mokgatle, to the respondent’s
mother. The letter requested that the families of the
respondent and
the deceased meet ‘to discuss the union’ of the deceased
and the respondent. On 28 February 2016 the
two families met at the
respondent’s family home. Although the appellant and the
respondent’s mother were present at
the respondent’s
home, they did not participate in the lobola negotiations, as is the
custom. Upon the successful conclusion
of the lobola negotiations, a
lobola agreement was concluded, reduced to writing and signed. It
stipulated that the lobola agreed
upon was an amount of R45 000. It
further recorded that the deceased would pay a deposit of R30 000
upon signature of the
agreement and that the balance would be paid in
two instalments. As a postscript to the agreement, it was recorded
that ‘the
final amount at our next meeting shall be R10 000.
It is agreed that the remaining R5000 will follow at some later
stage.’
[4]
At the conclusion of the lobola negotiations, the women from the
respective families attended to the preparation of a meal.
At this
time, the deceased left the respondent’s home for a short
while. In the intervening period, the respondent’s
mother
received a payment notification on her phone, advising that the
deceased had transferred an amount of R35 000 into
her bank
account.
[5] When the deceased
returned, the respondent noticed that he had changed into formal
attire. She also noticed that the deceased's
aunts, Ms Nomvula and Ms
Minky, had emerged from outside and entered the house bearing a
covered outfit on a clothes hanger. The
deceased's aunts requested
the respondent to accompany them into one of the bedrooms. Once in
the bedroom, the deceased’s
aunts revealed an outfit from the
clothes hanger, and informed her that the attire was her wedding
dress. They then proceeded to
dress her up in that attire. When she
emerged from the bedroom, she noticed that her attire matched the
deceased’s. She then
realised that not only was that day
reserved for lobola negotiations, but the deceased and his family had
also planned that a customary
law marriage between her and the
deceased should be celebrated on the same day. The deceased’s
aunts introduced the respondent
to all persons present as the
deceased’s wife and thereafter welcomed her to the Tsambo
family. The appellant approached
the respondent, embraced her and
congratulated her on her marriage to the deceased.
[6]
The celebration that ensued after the lobola negotiations was
recorded on video camera by one of the attendees. Photographs
described as screenshots were obtained from the recording and
introduced into evidence. In one of the photographs, the appellant
is
depicted with the deceased and the respondent, who are dressed in
matching attire. In another, the appellant can be seen embracing
the
respondent. The video recording was introduced into evidence and
viewed at the high court. The high court recorded that the
video
depicted the two families in a joyous celebratory mood ululating and
uttering the words ‘finally, finally’. The
respondent
averred that a lawful customary marriage came into existence between
the deceased and herself on that day. She asserted
that later that
day when she and the deceased returned to their place of abode, they
did so as husband and wife. Consequently,
their place of abode became
the matrimonial home, so she asserted. It is common cause that the
customary marriage was not registered
with the Department of Home
Affairs.
[7]
According to the respondent, she and the deceased continued to live
together as husband and wife until sometime during 2018,
when their
relationship went through a rough patch, apparently because of the
deceased’s infidelity and drug addiction for
which he refused
to undergo rehabilitation. This caused the respondent to leave the
matrimonial home although she did not take
all her personal
belongings with her. Due to the deteriorating health and depression
of the deceased, during April 2018, the respondent
convened a meeting
of the two families. She reported the deterioration in the deceased’s
health. The deceased, however, stalked
out in a huff before any
resolution could be reached. During August 2018, the couple
reconciled but did not resume their cohabitation
as the respondent
had insisted that she would return to the matrimonial home only if
the deceased agreed to submit himself to a
rehabilitation programme.
Unfortunately, the deceased committed suicide on 23 October 2018. The
respondent returned to the matrimonial
home on 24 October 2018 in
order to mourn the passing of her husband. On 27 October 2018, the
appellant informed the respondent
that he did not acknowledge her as
the deceased’s wife and barred her from making funeral
arrangements for him. He subsequently
changed the locks of the
matrimonial home, thereby depriving the respondent of access thereto.
[8] The respondent
launched an urgent application, essentially seeking recognition of
what she asserted to be a customary marriage
between her and the
deceased and all rights consequent upon that marriage. The salient
orders sought in terms of the notice of
motion were couched as
follows:
‘
2.
It is declared that the customary marriage between [the respondent]
and the deceased is a customary marriage entered into validly
on 28
February 2016, and as envisaged in terms of
section 3
of the
Recognition of Customary Marriages Act, 120 of 1998
.
3. The [respondent] is
declared to be the lawful customary wife of the deceased . . . who
died on the 23
rd
of October 2018.’
The
rest of the relief sought in terms of the notice of motion is not the
subject of the appeal before us and need not detain us.
[9]
The appellant opposed the application. The main thrust of his
opposition was that the respondent had no right to the relief
sought,
as no customary law marriage had been concluded between her and the
deceased on 28 February 2016. The appellant argued
that ‘at
best for the deceased, the necessary customs, rituals and procedures
required for the conclusion of a customary
marriage may have
commenced, but were not proceeded with or completed.’ The
appellant averred that the meeting that took
place on 28 February
2016 was confined to lobola negotiations and what happened thereafter
merely constituted a celebration of
the successful conclusion of the
lobola negotiations. He asserted that it was clear from the terms of
the lobola agreement that
the families intended to have a further
meeting thereafter.
[10]
The appellant also averred that ‘[t]he two families would have
[had] to agree on the formalities and the date on which
the
[respondent] would be “handed over” to the [deceased’s]
family’. He contended that in terms of custom,
subsequent to
the initial payment of lobola, a date is set on which the bride’s
family will hand over the bride to the husband’s
family, ‘go
gorosiwa’,
[2]
and upon
arrival a lamb or goat is slaughtered and the bile therefrom is used
to cleanse the couple. He contended that the performance
of that
ritual would signify the union of the couple and the joining of the
two families. That ritual would be followed by a celebration,
during
which the lamb or goat that was slaughtered would be consumed. The
appellant contended that because that ritual was not
observed, the
handing over of the bride, which he considered as the most crucial
part of a customary marriage, did not take place.
[3]
Thus, so it was contended, no customary marriage came into existence
between the deceased and the respondent.
[11] The high court found
that the handing over was not a strict requirement for a valid
customary marriage and could be waived.
It found that there was a
tacit waiver of the custom of the handing over of the bride because a
symbolic handing over of the respondent
to the deceased’s
family had occurred after the conclusion of the customary marriage.
It rejected the appellant’s contention
that the most crucial
part of a customary marriage is the handing over of the bride and
that the absence thereof would result in
no valid customary marriage
coming into existence. The high court, inter alia, granted the
following orders:
‘
1.
It is declared that the customary marriage between the [respondent]
and the deceased is a customary marriage entered into validly
on
[the] 28
th
February 2016, and as envisaged in terms of
Section 3
of the
Recognition of Customary Marriages Act, 120 of 1998
.
2. The
[respondent] is declared to be the lawful customary wife of the
deceased, JABULANI TSAMBO . . . who died on the 23
rd
of October 2018.’
[12]
Before us, it was contended on behalf of the respondent that the
requirement of handing over of the bride is not determinative
of a
customary marriage. As authority for that proposition, the respondent
relied on the writings of Professor Bennett and Professor
Bekker with
specific regard to the evolution of the customary marriage practices
of the Batswana people, which is the customary
law that is applicable
in the present case. Professor Bekker
[4]
in
Seymour's
Customary Law in Southern Africa
,
argued that amongst the Sotho-Tswana people, the wedding is
celebrated at the bride’s family home, where the lobola
negotiations
take place.
In
some of the communities, the handing over of the bride takes a
physical form on the day of the wedding.
[5]
Professor Bekker proceeds to observe as follows:
‘
On
the completion of the lobolo agreement, the bride's guardian provides
a beast for slaughter, each party receiving half the meat;
certain
ceremonies are performed with the entrails. This slaughter signifies
not only the completion of the lobolo agreement, but
also the
consummation of the customary marriage, which is not rendered less
effective if the bride does not leave with the bridegroom's
party on
that occasion, and usually she does not.’
[6]
[13]
It is clear from the preceding discussion that historically,
significance was paid to the conclusion of the lobola agreement,
and
not necessarily the full payment of lobola. Therefore, the
appellant’s contention that a marriage could not have been
concluded as it was agreed that part of the outstanding balance on
the lobola would be paid ‘at the next meeting’ is
devoid
of any merit. In my view, it simply does not follow that the
completion of the customary marriage process on the same day
was
precluded because it was not pertinently discussed during the
negotiations. As mentioned above, the crisp question in this
matter
is whether, on the facts of this case a customary marriage came into
existence.
[7]
The handing over
of the bride is an issue that was raised by the appellant as proof
that the existence of a customary marriage
had not been established.
The facts must be considered against the backdrop of relevant
authorities.
[14]
Section
3(1)
of the
Recognition of Customary Marriages Act provides
:
‘
For
a customary marriage entered into after the commencement of this Act
to be valid –
(
a
)
the prospective spouses –
(i)
must both be above the age of 18 years; and
(ii) must
both consent to be married to each other under customary law; and
(
b
)
the marriage must be negotiated and entered into or celebrated in
accordance with customary law.’
[15]
When dealing with customary law, it should always be borne in mind
that it is a dynamic system of law.
[8]
In
Ngwenyama
v Mayelane and Another
[9]
this
Court stated as follows:
‘
The
Recognition Act does not specify the requirements for the celebration
of a customary marriage. In this way, the legislature
purposefully
defers to the living customary law. Put differently, this requirement
is fulfilled when the customary law celebrations
are
generally
in accordance with the customs applicable in those particular
circumstances. But once the three requirements have been fulfilled,
a
customary marriage, whether monogamous or polygamous, comes into
existence.’ (Own emphasis.)
[16]
In
Mabuza
v Mbatha
[10]
the court, stated that there was no doubt that the custom of
ukumekeza
[11]
had
evolved
so much so that it is probably practised differently than it was
centuries ago. It went on to endorse the view
that
it was inconceivable that
ukumekeza
had not evolved and that it could not be waived by agreement between
the parties and/or their families in appropriate cases.
[12]
That dictum was approved by this Court in
Mbungela
and Another v Mkabi and Others
.
[13]
Having reviewed several authorities, this Court concluded that the
handing over of the bride, though important, is not a key determinant
of a valid customary marriage. It aptly stated as follows:
‘
The
importance of the observance of traditional customs and usages that
constitute and define the provenance of African culture
cannot be
understated. Neither can the value of the custom of bridal transfer
be denied. But it must also be recognised that an
inflexible rule
that there is no valid customary marriage if just this one ritual has
not been observed, even if the other requirements
of s 3(1) of the
Act, especially spousal consent, have been met, in circumstances such
as the present ones, could yield untenable
results.’
[17]
The appellant’s contentions pertaining to the rituals observed
during the handing over of the bride ceremony fail to
take into
account that customary law is by its nature, a constantly evolving
system.
[14]
That customary law
has always evolved is evident from the following observation made by
Professor Bennett almost three decades
ago and approved in many
judgments:
‘
In
contrast, customary law was always flexible and pragmatic. Strict
adherence to ritual formulae was never absolutely essential
in
close-knit, rural communities, where certainty was neither a
necessity nor a value. So, for instance, the ceremony to celebrate
a
man’s second marriage would normally be simplified; similarly,
the wedding might be abbreviated by reason of poverty or
the need to
expedite matters. Aside from this, the indigenous rituals might be
supplanted by exotic ones: a wedding ring may now
be used in place of
the traditional gall bladder of a slaughtered beast and for many a
church ceremony has become indispensable.’
[15]
[18]
It is evident from the foregoing passage that strict compliance with
rituals has, in the past, been waived. The authorities
cited by the
respondent, mentioned earlier in the judgment, also attest to that.
Clearly, customs have never been static. They
develop
and change along with the society in which they are practised.
[16]
Given
the obligation imposed on the courts to give effect to the principle
of living customary law,
[17]
it follows ineluctably that the failure to strictly comply with all
rituals and ceremonies that were historically observed cannot
invalidate a marriage that has otherwise been negotiated, concluded
or celebrated in accordance with customary law.
[19]
Before analysing the facts of this case, it is appropriate to address
the appellant’s contention that there was a dispute
of fact
pertaining to the question whether the events of 28 February 2016
established a customary marriage. The appellant submitted
that in the
light of a material factual dispute regarding the nature of the
celebrations after the conclusion of the lobola negotiations,
the
high court ought to have referred the dispute to trial or for the
hearing of oral evidence in accordance with the principle
established
in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
.
[18]
A brief consideration of the
Plascon-Evans
rule is required. The principle laid down in that seminal judgment is
that an applicant who seeks final relief using motion proceedings
must, in the event of a dispute of fact, accept the version set up by
his or her opponent unless the latter’s allegations
are, in the
opinion of the court, not such as to raise a real, genuine or
bona
fide
dispute
of fact or are so far-fetched or clearly untenable that the court is
justified in rejecting them merely on the papers.
The
nub of the issue is whether on the facts, and bearing in mind the
Plascon-Evans
rule, the handing over of the bride was established.
[20]
In
Wightman
t/a J W Construction v Headfour (Pty) Ltd and Another
,
[19]
this Court clarified the effect of factual disputes in motion
proceedings as follows:
‘
A
real, genuine and
bona fide
dispute of fact can exist only where the court is satisfied that the
party who purports to raise the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed.
There will of course be instances where a bare denial meets
the
requirement because there is no other way open to the disputing party
and nothing more can therefore be expected of him. But
even that may
not be sufficient if the fact averred lies purely within the
knowledge of the averring party and no basis is laid
for disputing
the veracity or accuracy of the averment. When the facts averred are
such that the disputing party must necessarily
possess knowledge of
them and be able to provide an answer (or countervailing evidence) if
they be not true or accurate but, instead
of doing so, rests his case
on a bare or ambiguous denial the court will generally have
difficulty in finding that the test is
satisfied. I say “generally”
because factual averments seldom stand apart from a broader matrix of
circumstances all
of which needs to be borne in mind when arriving at
a decision. A litigant may not necessarily recognise or understand
the nuances
of a bare or general denial as against a real attempt to
grapple with all relevant factual allegations made by the other
party.
But when he signs the answering affidavit, he commits himself
to its contents, inadequate as they may be, and will only in
exceptional
circumstances be permitted to disavow them. There is thus
a serious duty imposed upon a legal adviser who settles an answering
affidavit to ascertain and engage with facts which his client
disputes and to reflect such disputes fully and accurately in the
answering affidavit. If that does not happen it should come as no
surprise that the court takes a robust view of the matter.’
[21]
It is evident from the foregoing passage that a b
ona
fide dispute of fact only arises when the party raising it seriously
addresses the facts that are disputed, especially where
the disputing
party is in a position to be aware of the facts.
The
difficulty for the appellant in this matter is that he
provided
no answer to some of the respondent’s crucial allegations. He
did
not engage with
the respondent’s assertions
pertaining
to specific events that were said to have happened in his presence,
such as her being dressed in a wedding attire as
described by the
deceased’s aunts, being introduced to the witnesses by them as
the deceased’s wife and welcomed to
his family and being
congratulated by the appellant on the marriage. These allegations
were not gainsaid despite the fact that
they related to aspects that
lay within his personal knowledge and for which he could provide an
answer.
[22]
There was a bare denial regarding
the material aspect of what the change of clothes and the words
uttered signified. Whereas the
respondent supported her evidence with
the confirmatory affidavits of her relatives who were present during
the lobola negotiations,
the appellant did not support his bare
denials with any confirmatory affidavit. I find it odd that the
deceased’s aunts,
who played a crucial role in the events, did
not depose to any affidavit. One of the aunts, Ms Nomvula, was
reportedly present
at the deceased’s house before his burial.
This was not denied by the appellant. Surprisingly, not even an
unsworn statement
was presented as her account of events. Instead, an
unsworn statement, allegedly authored at the instance of the
deceased’s
mother after the deceased’s death, was
attached to the appellant’s papers. While it is trite that
hearsay evidence
may be admitted in urgent applications, the note
prepared by the deceased’s mother cannot carry much weight as
she was not
part of the lobola negotiations and the celebrations that
followed.
[23]
Notably, no reason was given for not obtaining affidavits from those
who were present. In my view, the same effort expended
to procure an
unsworn statement from the deceased’s mother could have been
spent on obtaining a statement from Ms Nomvula.
The very fact that
the appellant was able to procure a statement from the deceased’s
mother actually puts paid to the appellant’s
contention that he
was not provided with sufficient opportunity to interrogate the
factual disputes. When all is said and done,
the appellant’s
bald denials did not
create a bona fide dispute of fact necessitating the referral of the
matter for oral evidence or trial, or
even the dismissal of the
application.
[24]
The appellant contended that the fact that both the respondent and
the deceased considered culture to be of significance cast
doubt on
whether they could have intended to conclude a wedding without
observing such a crucial aspect of their culture like the
handing
over of the bride. I disagree. In my view, there is sufficient
undisputed evidence from which it can be inferred
that
the deceased, a successful musician who had a busy schedule,
[20]
had decided to expedite the conclusion of the customary marriage.
The
letter requesting a meeting for the lobola negotiations was
dispatched relatively soon after he had proposed marriage to the
respondent.
After
the conclusion of the lobola negotiations, the deceased transferred
more than the amount he was required to pay as a deposit
for the
lobola.
It
is also significant that the deceased and the appellant were in
attendance at the respondent’s home even though the family
had
nominated emissaries that would represent him during the lobola
negotiations.
[25]
While rituals associated with the handing over of the bride, like the
slaughtering of the sheep and the consumption of its
bile were indeed
not observed, there are some features that bear consideration. It is
quite striking that the deceased’s
aunts are the ones who
provided the respondent with an attire matching that of the deceased
and who actually dressed her up in
it. That they described it as her
wedding dress is quite telling. These are customary practices that
are undoubtedly compatible
with an acceptance of the respondent by
the deceased’s family.
[26]
The clearest indication of her acceptance as the deceased’s
wife is evidenced by the actual utterances that were made:
the
respondent was formally introduced as the deceased’s wife and
welcomed to the Tsambo family. Thereafter, the appellant
embraced her
and congratulated her on her marriage to the deceased. Bearing in
mind that the
purpose
of the ceremony of the handing over of a bride is simply to mark the
beginning of a couple’s customary marriage and
introduce the
bride to the bridegroom’s family,
[21]
I am inclined to agree
with
the respondent’s assertion that a handing over, in the form of
a declared acceptance of her as a
makoti
(daughter-in-law),
satisfied the requirement of the handing over of the bride.
[27]
That
the couple continued to cohabit after that celebration and that the
respondent registered the deceased as a beneficiary and
spouse on her
medical aid scheme
[22]
are
features that cannot be dismissed as insignificant, as they are
consonant with the existence of a marriage. I am fortified
in this
view by Professor Bennet’s argument with regards to the handing
over requirement. He argued that the parties’
intention could
be inferred from cohabitation. According to him, where the parties
were cohabiting, the gravamen of the enquiry
was the attitude of the
woman’s guardian. If the guardian did not object to the
relationship, a marriage would be presumed,
irrespective of where the
matrimonial home happened to be or how the ‘spouses’ came
to be living there.
[23]
Professor Bennett placed reliance on a case in which the Court had
remarked that “long cohabitation raises a strong suspicion
of
marriage, especially when the woman’s father has taken no steps
indicating that he does not so regard it”.
[24]
In this matter, the respondent averred that her mother had not
instituted any action for seduction or demanded payment of a fine,
well knowing that the respondent cohabited with the deceased. She
accepted that the respondent and the deceased had entered into
a
valid customary marriage.
[28]
To sum up: the respondent’s evidence of the events that took
place on the day of the lobola negotiations is supported
by several
confirmatory affidavits. The appellant’s bare denials did not
refute the respondent’s evidence. Clearly,
the correct
application of the
Plascon-Evans
rule did not preclude the high court from granting final relief on
the papers, where the evidence put up by the appellant did not
constitute a bona fide factual dispute.
[29]
Despite the high court’s misgivings about the application of
the
Plascon-Evans
rule in the context of an urgent application, it is evident that, in
reality, it applied the same rule and came to the correct
decision
regarding the waiver of some of the rituals associated with the
handing over of the bride. It is therefore not necessary
to determine
whether a more robust approach was necessary.
To
the extent that the high court stated that the
Plascon-Evans
rule was not satisfactory in the context of urgent applications, it
erred.
[30]
Having considered all the facts and circumstances of this case, I am
persuaded that on 28 February 2016, the respondent and
the deceased
concluded a customary marriage that complied with all the
requirements for a valid customary marriage as contemplated
in s 3(1)
of the Act. It follows that the appeal against that order of the high
court must fail.
[31]
Despite the finding that the appeal against the order of the high
court ought to fail, there is an aspect that this Court is
constrained to pronounce itself on. Having correctly found on the
facts of this case that the physical handing over of the bride
was
waived in favour of a symbolic handing over, the high court, in the
process of giving reasons for its order, proceeded to declare
that
the custom of the handing over of the bride was unconstitutional.
[32]
In
Director
of Public Prosecutions, Transvaal v Minister for Justice and
Constitutional Development and Others
,
[25]
the Constitutional Court laid down that
a
court may raise, of its own accord, the unconstitutionality of a law
that it is called upon to enforce.
[26]
It pointed out that it may do so where (a) the constitutional
question arises on the facts; and (b) a decision on the
constitutional
question is necessary for a proper determination of
the case before it or it is in the interests of justice to do so.
[27]
It pointed out that it was neither necessary nor desirable to
catalogue circumstances in which it would be in the interests of
justice for a court to raise, of its own accord, a constitutional
issue, because that would depend on the facts and circumstances
of
the case.
[28]
It stressed that
the parties must be afforded an adequate opportunity to deal with the
issue.
[29]
[33]
It must be borne in mind that it was never the r
espondent’s
case that the requirement of the handing over of the bride was
unconstitutional.
The issue of the
handing over of the bride became relevant in so far as establishing
whether a customary law marriage came into
existence.
Given
the pleaded case, a decision on the constitutionality of the custom
of the handing over of the bride simply did not arise.
During
the exchange with the bench, both counsel assured this Court that the
constitutionality issue was not canvassed during argument
before the
high court. They bemoaned the fact that the declaration was made
without the benefit of full argument. Since prerequisites
laid down
by the Constitutional Court in the afore-mentioned judgment have not
been met, I am inclined to a
gree
that there was no
basis for the high
court to declare that the handing over custom was unconstitutional.
[34]
With regard to costs, counsel for the appellant informed us that he
was representing the appellant on a pro bono basis. He
submitted that
if this Court was inclined to find against the appellant, it should
grant an order in terms of which the costs of
the appeal are borne by
the deceased estate, as the appellant was cited in his personal
capacity as well as in his capacity as
the head of the Tsambo family.
The respondent’s counsel indicated that it left the issue of
costs in the Court’s discretion.
All things considered, it
would be appropriate not to make any order as to costs.
[35] The appeal is
dismissed with no order as to costs.
________________________
M B MOLEMELA
JUDGE
OF APPEAL
Appearances:
For
appellant: D
Mahon (with him C Marule)
Instructed
by: Lawtons Inc, Sandton
Symington
De Kok Attorneys, Bloemfontein
For
respondent: A Bester SC (with him F Bezuidenhout)
Instructed
by: Ngoqo Sithole Inc, Johannesburg
Honey
Attorneys, Bloemfontein.
[1]
‘[C]ustomary law’ is defined in s 1 of the Act as
‘customs and usages traditionally observed among the indigenous
African peoples of South Africa and which form part of the culture of
those peoples’.
[2]
A Setswana phrase meaning integration of the bride into the
bridegroom’s family.
[3]
In
support of the averment that the handing over of the bride to the
bridegroom’s family was an important element of a customary
marriage, the appellant relied on the dictum in
Motsoatsoa
v Roro and Another
2010]
ZAGPJHC 122;
[2011] 2 All SA 324
(GSJ) where the high court stated
that the bride is invariably handed over to the bridegroom’s
family at the husband’s
family’s residence.
Motsoatsoa
was cited with approval in
Mxiki
v Mbata
,
In re:
Mbata
v Department of Home Affairs and Others
[2014] ZAGPPHC 825, where the court found that there can be no valid
customary marriage until the bride has been formally and
officially
handed over to her bridegroom’s family. Those judgments
predate
Mbungela
v Mkabi
Mbungela
and Another v Mkabi and Others
[2019] ZASCA 134
;
2020 (1) SA 41
(SCA);
[2020] 1 All SA 42
(SCA),
where this Court found that the ritual of the handing over of the
bride was important but not a key determinant of a valid
customary
marriage.
[4]
J
C Bekker
Seymour’s
Customary Law in Southern Africa
Juta
(1989) at 113-114.
[5]
Ibid
at 109.
[6]
Ibid
at 113-114.
[7]
See
Moropane
v Southon
[2014]
ZASCA 76
para
56.
[8]
Moropane
v Southon
[2014]
ZASCA 76
para
153.
[9]
[2012]
ZASCA 94
;
2012 (4) SA 527
(SCA);
2012 (10) BCLR 1071
(SCA);
[2012] 3
All SA 408
(SCA) para 23
.
[10]
2003
(4) SA 218
(C);
2003 (7) BCLR 743
(C).
[11]
Described as ‘
the
formal integration of the bride into the bridegroom’s family’
amongst Swati people in
Mabuza
v Mbatha
para 9
.
[12]
Mabuza
v Mbatha
para
25. Also see
C
v P
(1009/2016)
[2017] ZAFSHC 57
(6 April 2017).
[13]
[2019]
ZASCA 134
;
2020 (1) SA 41
(SCA);
[2020] 1 All SA 42
(SCA)
para
27.
[14]
Shilubana
and Others v Nwamitwa
[2008] ZACC 9
;
2008 (9) BCLR 914
(CC);
2009 (2) SA 66
(CC)
para
45.
[15]
T
W Bennett
A
Sourcebook of African Customary Law for Southern Africa
(2004)
at 194, cited in
Mbungela
v Mkabi
para 24
.
[16]
Moropane
v Southon
[2014]
ZASCA 76
para
36.
[17]
Shilubana
and Others v Nwamitwa
para 81.
[18]
[1984] ZASCA 51
;
1984]
2 All SA 366
(A);
1984
(3) SA 623
(A)
at 634E-635C.
[19]
[2008]
ZASCA 6
;
[2008] 2 All SA 512
(SCA);
2008 (3) SA 371
para 13. Also
see
Malan
v City of Cape Town
[2014] ZACC 25
;
2014 (6) SA 315
; (CC);
2014 (11) BCLR 1265
(CC) para
73.
[20]
On
the appellant’s own account, the reason the respondent and the
deceased gave for not arranging another meeting after
the lobola
negotiations was that it was due to ‘clashing schedules’.
[21]
Mbungela
and Another v Mkabi and Others
para
30.
[22]
The
respondent’s assertion that she registered the deceased as a
beneficiary and spouse on her medical aid scheme on 1 May 2016
was not disputed.
[23]
T
W Bennett
A
Sourcebook of African Customary Law for Southern Africa
(2004)
at
195.
[24]
Ibid
at
219, where the case of
Kgapula
v Maphai
1940 NAC (N&T) 108 (Hammanskraal), is discussed.
[25]
[2009]
ZACC 8; 2009 (4) SA 222 (CC); 2009 (2) SACR 130 (CC); 2009 (7) BCLR
637 (CC).
[26]
Ibid
para 33.
[27]
Ibid para 42.
[28]
Ibid para 40.
[29]
Ibid para 42.