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[2024] ZAFSHC 162
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M.C.M v B.P.M (2998/2020) [2024] ZAFSHC 162 (23 May 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
no: 2998/2020
In
the matter between:
M[…]
C[…]
M[…]1
Plaintiff
And
B[…]
P[…]
M[…]2
Defendant
CORAM:
HEFER
AJ
HEARD
ON:
IN CHAMBERS (Heads filed on 23 February 2024)
DELIVERED
ON:
23 MAY 2024
[1]
The Applicant (the Defendant in the
Court a
quo)
seeks
leave to appeal against an order granted by Mahlangu AJ which reads
as follows:
"In the
circumstances, I therefore make the following order:
(i)
The customary marriage entered into between
the parties on 27 December 2014 is declared to be valid and of effect
in terms of the
Recognition of Customary
Marriages Act 120 of 1998;
(ii)
The Defendant is ordered to pay costs."
[2]
For
sake
of
convenience,
the
parties
will
be
referred
to
as
Plaintiff
and Defendant respectively.
[3]
The order sought to be appealed
against was made in a divorce action instituted by the Plaintiff
against the Defendant wherein,
by agreement between the parties and
by order of Court, the issue pertaining to the existence or otherwise
of a customary marriage
between the parties was adjudicated
separately in terms of Rule 33(4) of the Uniform Rules of Court.
[4]
The Plaintiff alleged in her
Particulars of Claim that she and the Defendant were married to each
other in community of property
during a traditional wedding ceremony
which took place on 27 December 2014 and that the lobola negotiated
in terms of Annexure
"H" to the Particulars of Claim was
paid on the same date.
[5]
The translated version of the Setswana worded
Annexure "H" provided at trial, reads as follows:
"The M[...]1 family
accept
I
welcomes the intention of the M[...]2 family to
complete magadi. R15,000.00 was counted and was paid. Both families
agree to a request
that the children become espoused however, only
after they have a holy matrimony. The M[...]1 family takes full
responsibility
to arrange the church service and thereafter revert
with a date and the necessary preparation. Both families agreed."
[6]
The Defendant denied that he married the
Plaintiff. He denied that there was a traditional wedding ceremony on
27 December 2014.
According to him, on the 27
th
of
December 2014 the family representatives negotiated
"magadi"
(lobola) in respect of the Plaintiff.
These negotiations were then reduced to writing, which is Annexure
"H" referred
to. The Defendant further alleged that both
families agreed that the Plaintiff and Defendant will enter into holy
matrimony on
a date and time to be arranged and announced by the
M[...]1 family and that until such time the parties have entered into
holy
matrimony they are not married.
[7]
According to the Defendant, whereas the
M[...]1 family has failed to execute and provide
a date to the Defendant
in the commitment
(to arrange
a
church
service for the holy matrimony and
the exchange of gifts) and the conditions set by the families, the
parties were not married to
each other.
[8]
The graveman of the Defendant's contention
in his application for leave to appeal is that the trial court has
erred in not finding
that in the absence of the
"holy
matrimony"
agreed upon and
recorded in the lobola agreement, no valid customary marriage came
into existence. All the grounds of appeal contained
in the leave to
appeal boil down to this contention.
[9]
The Defendant's application for leave to appeal, as it appears from
Mr
Moretlwe's,
on behalf of the Defendant, Heads of Argument,
with reference to
Section 17(1)
of the
Superior Courts Act 10 of
2013
, is that another Court will indeed come to a conclusion
different to that of the Court a
quo.
[10]
It
is now accepted that the
Superior Courts Act has
indeed raised the
bar for granting leave to appeal in that the use of the word
"would"
in
Section 17(1)(a)
indicates a measure of certainty that another Court
will differ from the Court whose judgment is sought to be appealed
against.
[1]
[11]
Mr
Moretlwe
submitted that the findings of the Court a
quo
are at odds with the evidence presented. In particular he
submitted that Mahlanga AJ's finding that holy matrimony is not an
essential
element for a customary marriage,
"induces
a
sense of shock that is not supported by any evidence".
The
finding goes, he submitted, against the unchallenged evidence
presented on behalf of the Plaintiff to the effect that holy
matrimony is part of their custom / culture.
[12]
According to the judgment of Mahlanga AJ,
Mr Shonyane, the uncle to the Plaintiff and who was the lead
negotiator of the M[...]1
family testified that
"it
is their custom that the parties should be married at church as is
their custom whereafter
the
Plaintiff
would
be
released
to
the
Defendant".
He
further
testified, as per the judgment, that
according to him the parties got married to each other after the
final lobola payment was made.
[13]
The
Defendant criticized the Court a
quo
for
making adverse credibility findings against him and his father. In
the absence of having the full record of proceedings before
me, I am
not able to make a finding at this stage. It can however be adduced
from the judgment that the trial court was faced with
mutually
destructive versions of factual issues. It had to, as per the
instructive principles laid down in
Stellenbosch
Farming Winery Group Ltd v Martell et Cie & Others
[2]
,
make
certain credibility and reliability findings in order to prefer one
version over the other on the disputed issues.
[14]
In deciding whether leave to appeal should
be granted the facts which are common cause and the basis for the
Court a
quo's
finding
should now be considered.
[15]
Section 3(1) of the Recognition of
Customary Marriages Act 120 of 1998
("the
Act")
provides as follows:
"Requirements for
the validity of customary marriages.
(1)
For the 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."
[16]
The parties were both over the age of 18
and intended to get married to each other in terms of Customary Law.
This can be adduced
from the fact that lobola negotiations (or magadi
as the Defendant wishes to call it), have taken place on the 27
th
of
December 2014, the terms of the lobola negotiations were reduced
to writing
and
signed by the respective family members
on
behalf of both Plaintiff and Defendant
and
the final lobola
payment
was made
on
the same date.
[17]
After
the
lobola
negotiations
and
conclusion
of
the
lobola
agreement,
two
children had been conceived by the parties.
[18]
The Court
a
quo
also accepted the evidence led on
behalf of the Plaintiff, that after the lobola negotiations had been
concluded and the lobola
paid:
(a)
there was a celebration at the
Plaintiff's home;
(b)
the Plaintiff was presented to the
Defendant's family by her aunt;
(c)
some members of the two families
including the parties, gave speeches inside the garages where lunch
was served and there was singing
and ululation during the
celebrations;
(d)
that
the
Plaintiff
was
allowed
to
move
in
with
the
Defendant
in
Johannesburg during March and April 2015, and that
when she fell pregnant, she had to go home in Thaba Nchu; and
(e)
the
Plaintiff
regarded
herself
as
the
wife
to
the
Defendant
and
also
the
family of the Defendant regarded her as such.
[19]
It was already mentioned above that during the negotiations, the
family of the Plaintiff indicated to the
Defendant's family that it
is their custom that the parties should be married at church
whereafter the Plaintiff would have been
released to the Defendant.
[20]
Both parties as well as the Court relied upon the matter of
Mbungela
and Another v Mkabi and Others
[3]
,
the
relevant portion which reads as follows:
"Buts
3(1)(b) does not stipulate the requirements of customary law which
must be met to validate a customary marriage. The
reason for this is
not far to seek. It is established that customary law is a dynamic,
flexible system, which continuously evolves
within the
context
of its values and norms, consistently with the Constitution, so as to
meet the challenging needs of the people who live
by its norms. The
system, therefore, requires its content to be determined with
reference to both the history and the present practice
of the
community concerned. As this court has pointed out, although the
various African Cultures generally observed the same customs
and
rituals, it is not unusual to find variations and even an unambiguous
in their local practice because of the pluralistic nature
of African
society. Thus, the legislature left it open for the various
communities to give content to s 3(1)(b) in accordance with
the lived
experiences."
[21]
The
following
portions
of
the
judgment
of
Maya
P
(as
she
then
was)
in
the
Mbungela-
matter
are also of importance:
"[24]
Professor Bennet has, in citing
examples of traditional wedding ceremonies that were simplified or
abridged without affecting the
validity of a marriage, pointed out
that
–
'Western
and Christian innovations have been combined with the traditional
rituals
...
hence
a wedding ring may be used in place of a traditional gall bladder or
slaughtered beast and, for many, a church ceremony is
now the main
event'.
This seems to be
precisely what happened hereto. To my mind, there can be no greater
expression
(own emphasis) of the couple's consummation of the
marriage than the undisputed Church wedding.
[27] The
importance of the observance of traditional customs and usages that
constituted 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 section 3(1) of
the Act, especially spousal consent have been met, in circumstances
such as the present, could
yield untenable results.
[30] To sum up:
The purpose of the ceremony of the handing-over of a bride is to mark
the beginning of a couple's customary
marriage and to introduce the
bride to the groom's family. It is an important but not necessarily a
key determinant of a valid
customary marriage. Thus, it cannot be
placed above the couple's clear volition and intent where, as
happened in this case, their
families, who came from different ethnic
groups, were involved in, and acknowledged, the formulation of the
marital partnership
and did not specify that the marriage would be
validated only upon bridal transfer."
[22]
Although the family of the Plaintiff
expressed the
"condition”
that
the parties will only be espoused
with holy matrimony,
it
does not mean that such custom is
appears
that it is not the case of the Defendant that such custom is indeed
part of that particular ethnic group. In the absence
of evidence to
that effect it must therefore be accepted that this
"condition"
was merely a custom of the
M[...]1-family. The wishes of a particular family (although agreed
upon) cannot disregard or nullify
the legal consequences
of Section 3(1) of the Act had been met.
The
"condition"
of
holy matrimony can merely be regarded as an expression but not a
requirement of the consummation of the couple, as per the words
of
Professor Bennet referred to.
[23]
The evidence which served before the Court
a quo
indicates
that the requirements of Section 3(1) of the Act had been met. They
were both above the age of 18 years;
there
are no indications that they did not consent to be married to each
other under customary law
and
the marriage had been negotiated as well as entered into and/or
celebrated in accordance with customary
law
according to the evidence
of
the Plaintiff, which the Court
a quo
has
accepted.
[24]
In addition to those reasons as provided by
the Court
a quo,
it
appears
that the
"condition"
in
regards to holy matrimony which was imposed by the Plaintiff's
family, had in any event been waived by allowing the Plaintiff
to
live with the Defendant,
albeit
for a limited period of time.
[25]
Based on the facts which served before the
Court
a quo,
I
am not convinced that another Court will come to a different
conclusion that the requirements of Section 3(1)(b) of the Act had
been met and that a valid customary marriage had been concluded on
the 27
th
of December 2014.
[26]
As indicated, according to the authorities,
the bar has been raised in regards to the
test to be applied in applications
for
leave to appeal in that the Applicant has to show with a certain
measure
of
certainty
that
another
Court
will come to a conclusion different from that of the Court
a
quo,
which the Defendant in the present
matter has not done. Therefore, the application for leave to appeal
must fail.
Therefore,
I make the following order:
Order:
The application for leave
to appeal is dismissed with costs.
HEFER
AJ
Appearances
on behalf of the Plaintiff:
Adv M
Mazibuku
Instructed
by:
Honey
Attorneys
Bloemfontein
On
behalf of Defendant:
Adv T
Mortlwe
Instructed
by:
Mphahlele
- Matentji Inc Attorneys
c/o
Phatshoane Henney Attorneys
Bloemfontein
[1]
Mont
Chevaux Trust v Goosen 2014 JDR 235 LCC at par. [6];
Acting
National Director of Public Prosecutions and Others v Democratic
Alliance in re: Democratic Alliance v Acting National
Director of
Public Prosecutions and Others (19577/09) [2016] ZAGPPHC 489 (24
June 2016)
[2]
2003
(1) SA 11
(SCA) at 14 I-
15
E
[3]
2020
(1) SA 41
(SCA) at par. [17]