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[2024] ZAECMHC 45
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S.B v B.B and Another (6014/2022) [2024] ZAECMHC 45 (4 June 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
Reportable
CASE
NO. 6014/2022
In
the matter between:
S[…]
B[…]
Applicant
And
B[…]
B[…]
First
respondent
DIRECTOR
GENERAL: DEPARTMENT OF
HOME
AFFAIRS
Second
respondent
JUDGMENT
KUNJU
AJ:
A.
Introduction
[1]
Broadly speaking, the accomplishment of an African Customary Marriage
does not involve one or two people. The strange feature in this
matter is that all the role players who were involved when the
applicant’s first marriage was consummated are all allegedly
deceased. The first respondent (respondent) contends that there
are
rituals and traditions that are performed by certain members of the
bride and groom families when a customary marriage is performed.
She
contends that the failure by the applicant to mention the persons who
performed such rituals is not without significance. She
is very
critical of the applicant’s coy description of events which led
to the applicant’s alleged first customary
marriage.
[2]
More concerning is that the alleged first spouse of the applicant is
known
but the applicant does not know where she currently is. He does
not seem to be concerned about that.
[3]
Thorough reading of the papers creates a firm impression that the
alleged
first spouse is not aware that a case is being mounted by the
applicant against the respondent about the existence or otherwise
of
her alleged marriage.
[4]
The common thread in this matter is that everyone who allegedly
played
a significant role and who could shed some light about the
existence or otherwise of this marriage is deceased. Something is
shrouded
in the dark.
[5]
Not surprisingly, the applicant alleges that out of the witnesses who
have filed affidavits, he is the only person whose evidence should be
relied upon
. It is in the interests of justice
that the facts of this matter be analysed closely. Especially that
the issue relating to the
existence of a
prior customary
marriage is only raised during divorce proceedings of the second
marriage and when proprietary consequences of
the marriage with the
first respondent are in issue.
B.
The relevant background facts
[6]
The customary marriage between the applicant and the first respondent
was consummated during early July 2017. Thereafter and on 27 July
2017 the civil marriage between the applicant and the first
respondent
was concluded and in turn registered with the offices of
Home Affairs – Port St Johns, Eastern Cape.
[7]
Inability to withstand the difficulties of marriage resulted in the
applicant
and the respondent no longer living as husband and wife,
with the result that on 25 October 2021 the applicant instituted
divorce
proceedings against the first respondent out of the East
London Regional Court.
[8]
After he changed legal representatives and acquired assistance and
services
of his current attorneys he was given an advice that he had
a customary marriage with Ms S[...] before she married the
first respondent by civil rites and as a result the marriage between
him and the respondent was a nullity. This application is sequel to
that advice.
[9]
Pursuant to the advice he acquired he decided to withdraw the divorce
proceedings and instead instituted the current proceedings out of
this court whose objective is to declare the marriage between
him and
the respondent as a nullity.
[10]
The respondent denies that the applicant was ever married before the
conclusion of their
marriage.
[11]
This application therefore is about whether the applicant was ever
married before he entered
into a marriage relationship with the
respondent.
C.
The applicant’s version
[12]
The allegations of the applicant are that:
[12.1]
on 16 December 2010 at Thombo Location, Port St Johns, she got
married to L[...] S[...] (Ms S[...]) of Unit Park
Location, Ngobozana
Administrative Area, Lusikisiki;
[12.2]
her maternal grandfather, Diphotolole Mangqishi had sent emissaries
to Ms S[...]’s home in Lusikisiki to
negotiate their marriage.
The emissaries consisted of: (a) Kholekile Nkomokazi, (b) Thembinkosi
Mangqishi and (c) Diphotolole himself.
As adverted to above in the
introduction, he alleges that all the emissaries are deceased;
[12.3]
an amount totalling to R45 000.00 (forty-five thousand rand) was
paid towards the lobola of S[...] –
including “the
customary requirements known as Izibizo
[1]
”.
He states that the bride’s family during the negotiations was
represented by S[...] and M[...] S[...] and they are
also deceased.
Because of what he says is a substantial amount of money that was
paid towards the lobola, he says, at their request,
M[...] S[...] was
handed over to them on the same date of the lobola negotiations. They
returned to their home together with Ms
S[...] and on the following
day they got married according to their traditions and all rituals
were performed. She then became
the wife of Abathembu and Macirha’s;
[12.4]
she was given a marital name of N[…] by his late grandmother
M[…] B[…];
[12.5]
they have a child with Ms S[...] and her name is P[…] S[…]
[2]
.
The applicant and Ms S[...] encountered some marital difficulties
towards the end of year 2011, so much that when she demanded
to
return to her maiden home he agreed. He states that despite the
separation that occurred between them they never lost contact
with
each other because they have a child together, P[…]
[3]
.
During January 2011 he was employed by Eskom and stationed in East
London. Attempts to reconcile with Ms S[...] were made but
unsuccessful. During early December 2011 Ms S[...] became extremely
unwell despite various visits to both the medical and traditional
doctors. He finally released her to attend to her traditional
training in Kwazulu Natal;
[12.6]
her traditional doctor refused any visit by the applicant to his
alleged wife since 16 December 2011 when he
left her there. Since
then, there was total communication breakdown between the two
spouses. He was not allowed to receive a telephone
call nor an
opportunity to enjoy any conjugal rights with his spouse;
[12.7]
during December 2012 he met the first respondent (B[…]). She
proposed to her a love relationship which
was accepted and in turn a
love relationship was established with the result that on 14 July
2017 they got married in terms of
Customary Law. On 27 July 2017 they
concluded a civil marriage at Home Affairs, in Port St Johns, Eastern
Cape;
[12.8]
when he married B[…] he was not aware that the customary
marriage he had concluded with Ms S[...] was
an impediment to that of
B[…]. He got to know about such an impediment during divorce
proceedings against B[…]. This
advice was acquired from his
current attorneys of record. The attorneys who initiated the divorce
with her did not advise him that
instead of divorce proceedings he
should issue the current proceedings. As such, the current attorneys
have taken up the cudgel
on his behalf; and
[12.9
for the above reasons, he seeks an order that nullifies his marriage
with the respondent on the ground that the
marriage is null and void.
He contends that a civil marriage concluded during the subsistence or
survival of a customary marriage
is in law a nullity.
D.
The respondent’s version
[13]
The respondent vehemently disputes the existence of any other
marriage with the applicant
except hers.
[14]
She meticulously highlights gaps in the applicant’s evidence of
how his alleged customary
marriage was conducted. Impertinently, she
narrates quite persuasively why the names of the persons who could
have played important
roles during the consummation of the alleged
customary marriage with Ms S[...].
[15]
She contends that the applicant’s emissaries and the family
expressly stated during
lobola negotiations and Utsiki ceremony that
the first respondent was his first wife. She states that at the time
she stayed with
the applicant as husband and wife he had never
mentioned Ms S[...] as his previous wife. She states that since she
got to be part
of the B[…] family and got to talk with the
family members throughout the years of the existence of the marriage
between
them, she was never told about the previous marriage of the
applicant – instead the mother of the applicant (mother in law)
she ululated in praise during the Tsiki ceremony stating that it was
her first time to welcome a wife at her homestead.
[16]
She remarks and observes that all persons who allegedly played some
roles in the applicant’s
alleged first customary marriage are
all deceased, leaving the applicant as the only person who can attest
about the alleged existence
and consummation of the customary
marriage between him and Ms S[...]. She states that this idea about a
prior marriage came about
after she delivered her plea in the divorce
proceedings and claiming her 50% share being a consequence of their
marriage regime.
[17]
The respondent contends that through these proceedings the applicant
is trying to avoid
the proprietary consequences of the marriage she
concluded with the applicant. In this regard she refers to two
confirmatory
affidavits, one being that of a Traditional Leader (the
Chief) on whom the jurisdiction of the homestead of the applicant
falls
and the second one being that of a long standing neighbour at
the applicant’s ancestral homestead. They both deny the
existence
of any other marriage except the one between the applicant
and the respondent.
E.
The issue
[18]
The issue here is factual in nature. It is whether there was ever a
marriage relationship
between the applicant and Ms S[...] before he
married the respondent.
F.
The Court hearing on 23 May 2024
[19]
When this opposed application was called only the applicant was
represented. There was
no appearance on behalf of the respondent.
There was equally no heads of argument prepared on behalf of the
respondent. I was equally
ready to hear the matter notwithstanding
the said shortcomings.
[20]
When Mr Baceni, who appeared for the applicant had confirmed that the
applicant was ready
to proceed with the matter, I allowed him to
argue the matter.
[21]
During the course of argument I enquired from Mr Baceni if the
alleged first wife of the
applicant knows about these proceedings and
his response was that the whereabouts of the first wife are not known
by the applicant
and as such is not aware that there are these
proceedings.
[22]
After engaging Counsel about some problems I encountered in this
matter a draft order
referring this matter to oral evidence was
presented to me. It did not have the conventional terms
relating to procedural
steps before the hearing of oral evidence. I
adjusted it accordingly as it will appear below.
G.
Analysis
[23]
The high watermark of the argument adopted by the applicant seems to
be that his evidence
should be accorded more weight by the court than
that of the respondent. To show this, in paragraph 12 of the
applicant’s
heads of argument, the following submission is
made:
“
Further
to the above, the fact of the first marriage lies purely within the
knowledge of the Applicant.”
[24]
The following to me, are some of the features that render the version
of the applicant
curious and mind boggling:
[24.1]
the applicant became aware of the ramifications of the alleged
previous customary marriage when confronted with
consequences of her
marriage with the respondent in the middle of divorce proceedings and
after the filing of a plea of the respondent.
[24.2]
all persons who played major roles both in the alleged lobola
negotiations or during the consummation of the
marriage ceremony
(utsiki) are either deceased or their names are not mentioned at all.
[24.3]
the Chief of the area and the neighbour of the applicant at his
locality or village deny the existence of the
alleged marriage.
[25]
I am unable to ignore what the respondent alleges in paragraphs 4,
7.1, and 7.2 of her
affidavit. In relevant parts, in paragraph 4, the
respondent alleges:
“
.
. . Having known the applicant since 2013 until we got married in
2017, it is a concoction and recent fabrication to evade
the
legal consequences of divorce that he was previously married.
.
. .
The applicant fails to appreciate that by virtue of us having
been married and having been also an active member of his family for
not less than five years, I am also part of his family and thus I
have acquired all relevant information surrounding the family.
…”
[25.1]
In sub paragraphs 7.1 and 7.2 she says:
“
7.1
I dispute the averment made in this paragraph. I am the applicant’s
first wife. Despite knowledge
based on my own background check which
was also confirmed by the applicant himself that he was never married
before I got into
the picture, this was clearly stated by the elders
from my family who had handled my lobola negotiations (emissaries),
those being
Sicelo Magungxu and Fanele Magungxu. This was discussed
as part of the lobola deal between the two families agreed on our
marriage.
The applicant’s family was represented by Thanduxolo
Mafanya, Mluleki Bangiso Andile Nkomokazi and Songezo Dliwako.
7.2
As I have indicated above that I did my own background check as well,
I further confirmed that the applicant
was never married to anyone
before me when I joined his family as a member. I was informed by my
grandmother in law, sisters in
law and as well as the close family
relatives that I was the first wife. It is highly inconceivable that
the emissaries who negotiated
lobola with my family on his behalf did
not know of the alleged first marriage. I say so because none of the
emissaries confirms
the first marriage the applicant alleges to
exist. One of the emissaries in my case was Mluleki Bangiso who is a
biological brother
of the applicant’s mother. He (Mluleki) is a
noticeable absentee in this application and whose confirmatory
affidavit to
the applicant’s case would have given weight.”
[26]
The absence of any form of evidence from the other spouse of the
alleged previous customary
marriage – even by way of a
confirmatory affidavit is a worrying factor. It worries me more in
the circumstances of this
case.
[27]
Apart from anything else, I am unable to characterise the disputes
raised by the respondent
as:
[27.1]
not
bona fide
on material aspect of the case;
[27.2]
uncreditworthy denial of a palpably implausible version; and
[27.3]
being farfetched or fictious.
[28]
Rule 6(5)(g) provides:
“
Where
an application cannot properly be decided on affidavit the court may
dismiss the application or make such order as it deems
fit with a
view to ensuring a just and expeditious decision. In particular, but
without affecting the generality of the afore going,
it may direct
that oral evidence be heard on specified issues with a view to
resolving any dispute of fact and to that end may
order any deponent
to appear personally or grant leave for such deponent or any other
person to be subpoenaed to appear and be
examined and cross-examined
as a witness or it may refer the matter to trial with appropriate
directions as to pleadings or definition
of issues, or otherwise.”
[29]
In
MEC for Health: Eastern Cape v Mbodla (449/2013)
[2014]
ZASCA 60
(6 May 2014)
in paragraph 7 the court said:
“
Rule
6(5)(g) deals with this situation as is apparent from its opening
words, which are:
‘
Where
an application cannot properly be decided on affidavit the court may
dismiss the application or make such order as to it seems
meet with a
view to ensuring a just and expeditious decision.
’
This
Court has confirmed that the powers this rule vests in the court are
extremely broad and should be exercised to ensure that
matters are
decided justly and expeditiously. They are usually exercised because
of the presence of disputes of fact in the papers
before the court,
but the rule is not confined to that situation. If a court
is unable to make a just decision because the parties have failed to
place sufficient information before it to enable it to do so, it may
in an appropriate case, exercise its powers under the rule
to give
directions that will enable the deficiencies to be remedied and a
just decision to be rendered
.
” (my underlining).
[30]
In general terms, it can be said that oral evidence in terms of the
subrule can be allowed
if there are reasonable grounds for doubting
the correctness of the allegations made by the applicant (D1 –
71: service 20:
2022: Erasmus). In this matter I also find myself in
that position. I have serious reservations about the correctness of
the allegations
made by the applicant. With the available evidence I
am unable to render a just decision.
[31]
My finding as stated in the preceding paragraph has made me believe
it appropriate to refer
this matter to hearing of oral evidence. I
consider the dispute in issue to be very critical between the
parties, especially the
respondent who is innocent and likely to be
prejudiced by the new revelations brought forward by the applicant.
[32]
It cannot be said without more that because the applicant states that
he previously married,
I should simply accept that as correct. I have
looked at the applicant’s version against other dimensions and
allegations
in the matter. The evidence presented by the applicant
needs to be tested in open court. My view is that where a fundamental
right
is threatened or the evidence is in doubt or is not fully
ventilated, as in this case, referral to oral evidence in my view is
the correct route to take. I see no reason why rule 6(5)(g) may not
be invoked in such circumstances. The resolution of this dispute
is
in any event important to both parties in this matter. It may also
help Ms S[...] acquire knowledge about her rights or benefits
arising
from the alleged previous marriage. The applicant is not likely to be
troubled by the involvement of Ms S[...] in any way
or form.
[33]
For all the above reasons the following order shall issue:
1.
The issue of whether or not the applicant married L[...] S[...]
before she got
married to the respondent is referred to oral evidence
on a date to be arranged with the registrar.
2.
Unless this court otherwise directs,
in relation to the issue
referred to oral evidence
:
2.1
the applicant and the first respondent will be entitled to call any
witness who deposed to any
affidavit in the application proceedings;
2.2
the applicant and the first respondent are obliged to make available
for cross-examination such
witnesses who deposed to affidavits in
these proceedings to the extent that such party persists in seeking
to place any reliance
on that person’s evidence in the
affidavits;
2.3
the applicant and the first respondent are entitled to call any
further witnesses who were not
deponents to affidavits in these
application proceedings:
2.3.1
provided that such party has at least thirty court days before the
date of the hearing of the oral evidence served on the
other party a
statement of the evidence in-chief to be given by such person;
2.3.2
but subject to the court, at the hearing of the oral evidence,
permitting such further witnesses to be called notwithstanding
that
no such statement has been served in respect of his or her evidence;
2.4
the applicant and the first respondent may subpoena any witness to
give evidence at the hearing
or to furnish documents whether such
person has consented to furnish a statement or not in relation to the
issue referred to oral
evidence;
2.5
that a party has served a statement in terms of sub-paragraph 2.3
above or has subpoenaed a witness
shall not oblige such party to call
the witness concerned;
2.6
Uniform Rule 35 will be applicable to the discovery of documents on
the issue referred to oral
evidence.
3.
The incidence of costs, including any costs arising from the hearing
of this
application on 23 May 2024, will be determined after the
hearing of oral evidence.
V.
KUNJU
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
the applicant:
Adv Baceni (heads
of argument prepared by Adv Mzileni)
Instructed
by:
Mdledle – Malefane & Associates
No. 50 Elliot Road iso
ECDA Building
Suite G8, 9 & 10
Mthatha S
For
the respondent :
No appearance.
Attorneys
:
Ximbi Ncolo
Attorneys
94 nelson Mandela Road
Mthatha
Heard:
23 May 2024.
Delivered:
04 June 2024.
[1]
One
is unable to establish from the papers what this Izibizo is.
[2]
I
have noted that the child’s surname is that of Ms S[…]:
traditionally this has other permutations.
[3]
Strangely for purposes of this application she is not contactable.