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2024
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[2024] ZAMPMBHC 25
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Zwane v Zwane and Others (2362/2021) [2024] ZAMPMBHC 25 (11 March 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION
(MAIN SEAT)
Case no.2362/2021
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
DATE: 11 / 03 / 2024
SIGNATURE
In the Application of:
THANDI
CONSTANCE ZWANE
Applicant
(BORN MALABELA)
and
MARY
ZWANE
First
Respondent
NQOBILE
ROBERT ZWANE
Second
Respondent
JOAN
ZWANE (BORN
HILL)
Third Respondent
MASTER
OF THE HIGH COURT
Fourth
Respondent
MPUMALANGA DIVISION
MINISTER
OF HOME AFFAIRS
Fifth
Respondent
JUDGMENT
This judgment was handed
down electronically by circulation to the parties and/or the parties’
representatives by e-mail.
The date and time for hand-down is deemed
to be 11 March 2024 at 10h00.
PICK, AJ
INTRODUCTION
1
This is the story of the untimely death of
a very wealthy man. As a rich man, should, he had three wives. This
Court was requested
to declare that the deceased was customarily
married to the Applicant, the First Respondent and the Third
Respondent –
and to nullify the deceased’s civil marriage
to the First Respondent.
2
Claiming
she was the first and only wife to the deceased, as she was married
to him civilly, the Application is vigorously opposed
by the First
Respondent. She insists on the other customary marriages being
nullified. The Third Respondent filed a notice to abide
and reserved
her right to participate in the proceedings, whether it be by the
Explanatory Affidavit she filed, or orally if the
Court so orders.
[1]
3
This Application was initially enrolled on
the urgent roll. An affidavit in opposition was filed by the Second
Respondent, the contents
thereof being confirmed by the First
Respondent in so far as it had bearing on her. On 14 July 2021, the
Second Respondent and
Fourth Respondent were interdicted from
distributing the estate, pending determination of the statuses of the
deceased’s
marriages to the Applicant, First and Third
Respondent.
4
The First and Second Respondents’
special pleas were dismissed, and the parties were authorised to
supplement their papers.
Part B of the Notice of Motion was
dismissed. Costs were reserved. On 13 June 2023, the parties agreed
on a postponement to 14
November 2023. The Applicant tendered the
costs occasioned by the postponement.
5
The Fourth Respondent is the Master of the
High Court, who was added to the Application for the purpose of Part
B of the Application.
6
The Fifth Respondent was added for the
purpose of expunging and registering the deceased’s marriages
accordingly, should the
Court uphold the Application.
THE BACKGROUND
FACTS
The history of this
matter and the significance of the requested remedies necessitates
dealing with the facts of this matter in
more detail than usual.
The deceased’s
1972 marriage to the Applicant:
7
The Applicant, an African woman, avers that
the deceased and herself got married customarily in 1972. They were
blessed with three
children, the eldest being a boy in 1971. She
alleges to be the deceased’s first wife. She further alleges
her lobola letter
dated 1972 got lost when they moved from Mbombela
to Kanyamazane Township. She presently occupies one of the deceased’s
properties
and conducts business from another of the deceased’s
properties in Kanyamazane. She gave permission for the deceased’s
marriages to the First and Third Respondent. She was already 70 years
of age in 2019, when the deceased passed on.
8
In her supplementary affidavit she
elaborates on the lobola negotiations between her family and the
Zwane family in 1972. Most of
her family emissaries have passed on.
Celebrations started from her family and two cows were slaughtered.
On the day, she and her
family accompanied the Zwane family home for
further celebrations and she was handed over to the Zwane family. The
deceased did
not complete paying his lobola in 1972 and only finished
payment in 2017, after having been reminded thereto by the
Applicant’s
brother. The Applicant’s version is
supported by the Affidavits of her daughter, Delisile and her elder
brother and
sister.
9
Ms Elsie Zwane, the deceased’s
younger sister, denies a marriage ceremony having taken place between
the deceased and the
Applicant in 1972 and says they know the
Applicant to be a female companion of the deceased. Ms Elsie Zwane
and her son, Mr Themba
Zwane attended the 2017 lobola negotiations on
behalf of the deceased. Mr Themba Zwane was the keeper of the 2017
lobola certificate
and subsequently misplaced it. According to the
deceased’s brother, Mr Lucas Zwane, the Applicant and the
deceased were not
married in 1972.
The
deceased’s 1973 marriage to the First Respondent
10
Two years later, and in 1973, the deceased
married the First Respondent, a coloured woman. She was 75 years old
in 2019, when the
deceased passed away. They were married in
accordance with civil law in a Catholic church and were blessed with
four children.
She alleges to be the deceased’s first and only
wife. She lives in one of the deceased’s properties and
conducted business,
together with the deceased, from another of his
properties. Their first child, a boy was born in 1973.
11
She is in possession of an abridged
marriage certificate. Photos of their wedding ceremony are attached
to the bundle before Court.
A copy of the entrance in the marriage
register is attached to her papers and the content thereof confirmed
to by a Catholic Priest,
one Mr Makgale. He did not personally attend
to the marriage between the deceased and the First Respondent. The
deceased at the
time of the civil marriage to the First Respondent
indicated that he was a bachelor. The marriage between the First
Respondent
and the deceased was registered by her son, (the Second
Respondent) following the death of the deceased.
12
The
Second Respondent rejects the Applicant’s claim that she got
married to the deceased customarily in 1972. He confirms
a lobola
payment towards the Applicant and a consequent celebration having
taken place in 2016/2017. He states, relying on the
Recognition of
Customary Marriages Act,
[2]
that
there can be no marriage between the Applicant and the deceased in
2017, as the First Respondent was civilly married to the
deceased at
the time. The Minister of Home Affairs did not consent to the
deceased’s further marriage and the marriage was
never
registered. Neither did the First Respondent consent to the
deceased’s marriage to the Third Respondent.
The deceased’s
1986 marriage to the Third Respondent:
13
In 1986, the deceased married the Third
Respondent, an African woman customarily. They were blessed with
three children. She lives
in one of the deceased’s properties
and conducted business from another of his properties. She was 65
years old in 2019 when
the deceased passed on. The Third Respondent’s
lobola letter was taken by the Second Respondent under the auspices
of registering
her marriage to the deceased. She was requested to
accompany the Second Respondent to find out whether the deceased left
a will,
which she denied, as she was still in mourning.
14
In her affidavit, the Third Respondent
refers to the Applicant as the deceased’s first wife and
supports her version of events.
She states that both the Applicant,
First Respondent and herself were wives to the deceased and they
should all be treated equally
following his death.
Further
background from the Affidavits of the Parties:
15
After the passing of the wealthy man on 12
February 2019, his three wives mourned his death together. The
Applicant alleges they
mourned at the deceased’s house, whilst
the First Respondent says it was at her house, as she was the first
wife of the deceased.
A family meeting was called. Present was the
Applicant, First and Third Respondent and Ms. Elsie Zwane, the
deceased’s sister.
It is the Applicant’s version that it
was agreed that one child from each of the wives should be appointed
as co-executors
of the deceased’s estate. The Second Respondent
alleges he registered the deceased’s marriage to the First
respondent
with the consent and blessing of all present at the family
meeting.
16
The estate was reported on 24 May 2019. On
02 August 2019 the Second Respondent was appointed as executor in the
deceased’s
estate. The First and Third Respondents supported
the Second Respondent’s appointment as executor at the time.
The Applicant’s
name is nowhere to be found on the nomination
letter. On 03 December 2020, the First Respondent wrote a letter
withdrawing the
Second Respondent’s executorship. This letter
was revoked by her on 17 February 2021. In her affidavit, the Third
Respondent
makes it clear that she is not satisfied with the Second
Respondent’s appointment as Executor.
17
According to the First Respondent, the
deceased’s cousin, Mr Msibi, does not want to get involved in
the dispute before Court.
He alleges having been forced by the
Applicant to sign certain documentation. A copy of a handwritten note
is attached to
the First Respondent’s Supplementary
Affidavit. Mr Msibi did however depose of an Affidavit which is
attached to the Applicant’s
Supplementary Affidavit. He states
that he was called to Mbombela for the lobola negotiations and
confirms the version of the Applicant.
He remembers lobola was agreed
on 12 cows, having been valued at five pounds (approximately R10)
each at the time.
18
According to Mr Msibi, the deceased had
three wives and treated them equally. The First Respondent was a
coloured woman and their
custom did not entail lobola. The deceased
never mentioned having married the First Respondent civilly, but had
he done so, it
would have been as a result of their conflicting
cultures.
Arguments before this
Court:
19
It was held that the deceased was of Zulu
descent but became Swati due to regionalisation. No expert evidence
was placed before
Court to explain the applicable customs during the
deceased’s marriage to the Applicant. The custom applicable to
the marriage
between the deceased and the Third Respondent was never
placed in contention. Counsel for the First and Second Respondents
pointed
out in argument that this application should have taken the
form of a trial, rather than an Application. It was argued that there
is a dispute of facts which requires oral evidence. This is denied by
counsel for the Applicant.
20
Having given it due consideration, this
court is of the view that oral evidence would not have assisted
greatly. Bearing in mind
the deceased’s cultural turn around,
it is only the deceased who would have been able to honestly explain
which customs had
to be applied at the time of his marriage to the
Applicant. It is also only the deceased who can explain what he did
and didn’t
do and whether he abided by the reigning legislation
at the time and if not, for what reason he did not consider it
necessary to
abide by such.
21
The
First Respondent’s case, supported by the deceased’s
brother and sister, does not weigh on observance of the applicable
culture. They simply deny that the deceased married the Applicant in
1972. They do however acknowledge that there was a payment
of lobola
and celebrations in 2017. For as far as it might have constituted a
marriage ceremony, the First Respondent, relying
on the Recognition
of Customary Marriages Act, denies the validity thereof.
[3]
22
The First Respondent’s case is based
on her marriage to the deceased being civil and therefore the only
legitimate marriage.
As such, the deceased’s marriages to
neither the Applicant nor the Third Respondent could be legitimate,
although they were
both known to be female companions to the
deceased. At the time of the deceased’s death in 2019, the
Applicant has been known
as his female companion for at least the
last 47 years and the Third Respondent for at least the last 33
years.
23
It is important to recognise what hangs on
this order. Should it be ruled by this Court that the First
Respondent, in her having
been civilly married to the deceased, was
his first and only legal wife, the Applicant and the Third Respondent
will not be placed
on an equal footing as the First Respondent and
will not inherit from the deceased’s estate.
24
Considering
the dire prejudice the Third Respondent potentially stands to suffer,
this Court found it in the interest of justice
to consider the Third
Respondent’s affidavit as being part of the evidence before the
Court. In further recognising the Third
Respondent’s
constitutional right to equality before the law, her filing a Notice
to Abide did not, in the view of this Court,
void her of her right to
have her case properly considered by this Court. Any ruling in this
Application, either way, will also
affect her rights. She clearly
indicated her interest in the outcome of this matter by filing an
affidavit and reserving her right
to participate in the proceedings.
The spirit of customary law is not rigid. It was held in
Mayelane
:
[4]
‘
[61].…
it must be emphasised that, in the end, it is the function of a Court
to decide what the content of customary law
is, as a matter of law,
not fact. It does not depend on the rules of evidence a court must
determine for itself how best to ascertain
that content…
…
[79]
…Under the Constitution the legal status of all persons is
based on everyone being equal before the law and having the
right to
equal protection and benefit of the law ….’
DISCUSSION:
25
For the sake of clarity, and at the risk of
repeating myself, the deceased allegedly married the Applicant in
1972, the First Respondent
in 1973 and the Third Respondent in 1986.
The First Respondent however holds that the Applicant only married
the deceased in 2017.
Historical Background:
26
It is advisable to consider the historical
background to customary marriages, before we deal with the deceased’s
marriages
to the Applicant, the First and Third Respondents.
27
When
the deceased got married to the First Respondent back in 1973, the
Prohibition of Mixed Marriages Act 55 of 1949 did not, contrary
to
argument by counsel for the Applicant place a ban on marriages
between African and Coloured people.
[5]
The Black Administration Act 38 of 1927 (repealed in 2005) made
it obligatory for men who wanted to enter into any further
marriages,
whether civil or by custom, to first declare the names of their
existing wives, the children between themselves and
their wives and
the nature and amount of movable property he would leave to each such
woman or house under custom, before he could
enter into a further
marriage.
[6]
Failure to have
acted accordingly was considered an offence and was punishable by
law.
[7]
A later civil marriage
would nullify the prior existing customary marriages and there could
be no further customary marriage without
the aforesaid declaration.
Sections 22 and 23 of the Act provided that all his wives would be
considered equal upon the death of
their husband.
28
Customary
marriages were, at the time, seen as contracts between the families
and not the individuals and all marriages concluded
before 01
November 1988 were ordinarily and unless parties indicated the
contrary, considered as having been concluded out of community
of
property.
[8]
Explaining the
reasoning behind these injunctions, Judge Langa, DCJ (as he then was)
in the groundbreaking judgment on the abolishment
of discriminatory
laws governing customary intestate succession in
Shibi
v Sithole and Others
[9]
held:
‘
[76]
….. Property was collectively owned and the family head, who
was the nominal owner of the property, and administered
it for the
benefit of the family as a whole…’
29
Since
15 November 2000, customary marriages are governed by the
Recognition
of Customary Marriages Act, as amended (“the Act”)
.
[10]
In accordance with the Act, spouses must both be over the age of 18
years and consent to be married to each other under customary
law.
Their marriage must be negotiated, entered into and celebrated in
accordance with customary law
[11]
.
Existing valid customary marriages, even where a person is in a
polygamous marriage, will be recognised as marriages by the Act.
[12]
30
These
marriages are considered to be in community of property.
[13]
Provided they are not already a party to another customary marriage,
parties may wed each other in terms of the Marriages
Act.
[14]
The matrimonial property regime of a husband’s further
customary marriages must be regulated by Court.
[15]
Customary marriages must be registered within 12 months from date of
commencement of the Act by either party thereto or anyone
who has
sufficient interest in the matter.
[16]
This Act repealed sections 11(3)(b) and 22 of the Black
Administration Act 38 of 1927. It also recalled sections of the
Transkei Marriages Act 21 of 1978, the KwaZulu Act on the Code of
Zulu Law 16 of 1985, and section 27(3) of the Natal Code of Zulu
Law
1987.
31
As
the Recognition of Customary Marriages Act (“the Act”)
came into operation on 15 November 2000,
[17]
it could only find application once the
validity
of the deceased’s marriages to the Applicant, the First and the
Third Respondents have been established.
The
Plascon-Evans
[18]
Rule
32
Counsel
for the First and Second Respondent argues that the Court has no
choice but to apply the Plascon-Evans rule and find in
their favour.
The Plascon-Evans rule has two legs. The first is that the Court is
to decide a matter before it, where there are
two mutually
destructive versions in an Application, on the common cause facts or
otherwise on the Respondents’ version.
The Supreme Court of
Appeal, with reference to paragraphs 634I to 635D of the
Plascon-Evans case, explains the second leg of the
test in
Malan
and Others v Law Society of the Northern Provinces
as
follow:
[19]
‘…
the
second and important leg of the Plascon-Evans rule, namely whether
the disputes raised were real, genuine or bona fide, or whether
the
allegations or denials were so far-fetched or clearly untenable that
the Court would have been justified in rejecting them
merely on the
papers.’
33
The common cause facts are that the First
Respondent was civilly married to the deceased. The Applicant, the
First and the Third
Respondent were all in long-term relationships
with the deceased. They each stay in one of the deceased’s
houses and trades
from another of his properties. The deceased stayed
over at all their houses during his lifetime. They all had children
with the
deceased. Together they attended a family meeting after the
deceased’s death. Thereafter and on 13 September 2020, they
again
attended a meeting to discuss the liquidation and distribution
account. At this meeting, the Applicant discovered she was not a
beneficiary in the deceased’s estate.
34
They are
ad
idem
that the consent of the first wife
was necessary for any further marriages by the deceased. They agree
that neither the Applicant,
nor the Third Respondent are in
possession of their respective 2017 and 1986 lobola letters. The
Applicant and both the First and
Second Respondents acknowledged that
lobolo was paid towards the Applicant and a ceremony took place in
2017. The Applicant and
First Respondent agree that the deceased’s
marital status on his death certificate was changed from unmarried to
married
by the Second Respondent after the date of his death. They
agree that they mourned the deceased’s death together with the
Third Respondent.
35
The only issues really in dispute, is
whether the deceased and the Applicant got married in 1972 or in 2017
and would it be found
that the deceased indeed married the Applicant
in 1972 - whether the deceased at the time declared his intended
marriage to the
First and the Third Applicant as he was obliged to,
prior to marriage.
Application
36
De
Villiers, AJ (as he then was) discussed the requirements for a valid
customary marriage in
ND
v MM
:
[20]
‘
[16]
….. the formalities for the coming into existence of (a
customary) marriage have crystallised over the years.’
The
Court goes on to quote from an article in
CILCA
182 (2002),
Recognition of Customary Marriages Act 1998
and its
Impact on Family Law in South Africa by Maithufi IP and Bekker
JC
[21]
and relates the basic formalities to a customary marriage being that
the man’s family would send emissaries to the women’s
family indicating possible interest in a marriage. A meeting of the
families’ relatives would take place to negotiate lobola,
discuss whether part or full payment will be made and discuss the
formalities regarding the date the woman will be handed over
to the
husband’s family. The handing over might be accompanied with
celebrations. De Villiers AJ reiterates that this view
found support
in the matter of
Fanti
v Boto and Others
2008 (5) SA 405
(C) and Chakalisa v Mmemo (CACLB
04106)
[2008] BWCA 11
(30 January 2008)
.
37
In her Supplementary Affidavit, the
Applicant describes that there were lobolo negotiations between her
and the deceased’s
family and two cows were slaughtered.
Celebrations started from her home, whereafter her family and herself
went to the deceased’s
home and she was handed over to
the deceased’s family. If the version of the First and Second
Respondent were true, and the
families never accepted each other, as
there was no 1972 marriage between the deceased and the Applicant,
there would have been
reference to a payment for seduction or a fine
in 2017 when the Applicant and the deceased finally married each
other. No such
evidence was placed before this Court. It is more
likely that the remainder of the lobolo was paid up in 2017. The
Applicant’s
version is largely supported by the Third
Respondent’s affidavit. She refers to the Applicant as
the deceased’s
first wife, as “mamkhulu”. She says
“first was there the Applicant, then the First Respondent and
finally herself”.
She submits that they should be treated
equally before the law. She denies the averment by the Second
Respondent that she is scared
of the Applicant. Evenly, Mr Msibi’s
affidavit supports the version of the Applicant. He deals with the
lobolo negotiations
in the finest details, even remembering what a
cow was worth in 1972.
38
The
mere denial of the Applicant’
s 1972
marriage to the deceased,
as that of the First and Second Respondents and the deceased’s
brother and sister, does not make
out a real, genuine or bona fide
factual dispute warranting either oral evidence or dismissal of the
Application. Apart from stating
they are only aware of the 2017
ceremony, no other substantiation, detail or contradictory facts are
placed before this Court.
[22]
Neither were their versions so far-fetched or improbable that it had
to be dismissed on the face thereof.
39
Not
in dispute are that all the parties lived together with the deceased
as husband and wife, under the same roof (albeit from time
to time),
had children together and the Applicant resided in one of the
deceased’s houses prior to his death. These factors
were
considered indicative of a proper marriage relationship in
Mbungela
and Another v Mkabi and Others
.
[23]
The deceased further exercised firm discipline over the Applicant.
The Second Respondent states that the Applicant was expelled
from the
family at one stage but returned on the death of her second son.
Clearly the Applicant fell under the house of the deceased.
40
Has the Applicant not been considered as
married to the deceased or at least having had a protectable
interest, there is no logic
in her having been invited to family
meetings post the deceased’s death. The Applicant, in the
spirit of customary law, says
that she gave permission to the
marriages of the deceased to the First and Third Respondent. The
First Respondent on the other
hand, grabs at every technicality to
place herself in a better position as the deceased’s other two
wives, with whom she
lived in relevant peace whilst the deceased was
still alive.
41
The blatant attempt by the First and Second
Respondents to discredit the evidence of the Third Respondent and Mr
Msibi does not
go unnoticed. The First and Second Respondents, in
their answering affidavit, aver that the Third Respondent is scared
of the Applicant.
The Third Respondent denies having been threatened
or being scared of the Applicant. Evenly so, and in their
supplementary affidavit,
the First and Second Respondents aver that
they attended Mr Msibi’s house. According to them, he signed
documentation and
later his confirmatory affidavit, used by the
Applicant in her supplementary affidavit, under false pretenses. Yet,
Mr Msibi, notwithstanding
being so strongly opposed to getting
involved, does not depose of another affidavit withdrawing his first
affidavit before this
Court.
CONCLUSION
42
As
held earlier, at the time of the deceased’s death, the
Applicant has been his female companion for at least 47 years and
the
Third Respondent for at least 33 years. The First Respondent, at the
time, was civilly married to the deceased for 46 years.
There is in
my mind no reason why they should not all be afforded equal
protection before the law. The community’s interest
would
expect no less. It was held in
Mayelane:
[24]
‘
[62]
Section (1) of the Constitution provides that everybody is equal
before the law and has the right to equal protection and benefit
of
the law
…
..
[64] This Court has
repeatedly emphasised the importance of the right to equality as a
cornerstone of our constitutional democracy.
As noted in
Hugo
(President of the Republic of South Africa and Another v Hugo
(1997)
ZACC 4
;
1997 (4) SA 1
(CC);
1997 (6) BCLR 708
(CC) at para 41):
“At the heart of the prohibition of unfair discrimination lies
a recognition that the purpose of our new constitutional and
democratic order is the establishment of a society in which all human
beings will be accorded equal dignity and respect regardless
of their
membership of particular groups.’
43
Customary
law is unwritten
[25]
and its
contents are to be determined by the customs of the people and their
values, in such a manner that their constitutional
rights are
respected. Customary law is not governed by rigid rules, but is
flexible.
[26]
As was held in
Tsambo
v Sengadi
:
[27]
‘
[17]
…That customary law has always evolved is evident from the
following observation made by Professor Bennet 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….
[18] It is evident
from the foregoing passage that strict compliance with the rituals
has in the past been waved… Clearly,
customs has never been
static. They develop and change along with the society in which they
are practiced…’
44
In
Tsambo
,
referring to
Mbungela
,
[28]
it was held that the Court decided that the handing over of the bride
was not a pre-requisite to a valid customary marriage. Referring
to
Mabuza
[29]
,
the
Court remarked that “
ukumekeza
”
has evolved to such a degree, that it was capable of being waved by
agreement between the two families. In
ND
v MM
[30]
it was held that the non-observance of registering a customary
marriage does not invalidate it, it only makes it harder to
proof the marriage without a certificate in hand.
45
In
ND
v MM
,
[31]
the Constitutional Court was further quoted as holding in
Mabuza
v Mbatha:
[32]
‘
[17]
… It is established that customary law is a dynamic, flexible
system, which continuously evolves within the context
of its values
and norms, consistent with the Constitution, so as to meet the
changing needs of the people who lives by its norms.
The system
therefore, requires its content to be determined with reference to
both history and the present practice of the community
concerned …..
“
[18]
The Constitutional Court has cautioned Courts to be cognizant of the
fact that customary law
regulates
the lives of people
and that the
need for flexibility and the imperative to facilitate its development
must therefor be balanced against the value
of
legal
certainty
,
respect
for vested rights
and the
protection of constitutional
rights
. The Court must strive to
recognize and
give effect to the
principle of living, actually observed customary law
,
as it constitutes a development in accordance with the spirit,
purport and objects of the Constitution within the community, to
the
extent consistent with adequately upholding the protection of
rights.’
(my emphasis)
46
Considering the nature and duration of the
relationship between the deceased and the Applicant, the surrounding
circumstances, community
interest and the spirit of customary law, I
am satisfied that the Applicant has made out a proper case. In
keeping with the living
values of customary law, I am not prepared to
accept that the Applicant was merely a female companion to the
deceased for 47 years.
She bore him children and gave a home to him
from time to time. He allowed her to stay in one of his properties
and trade from
another. These are not the actions of a man who
keeps a female companion his wife does not agree to. Discriminating
against
the Applicant by virtue of a lost lobolo letter is untenable
in our democratic dispensation.
47
The
deceased’s marriage to the Third Respondent might have been
invalid, in so far as the necessary declaration in terms of
the Black
Administration Act was not made. Only the deceased would be able to
truthfully tell the Court whether he abided by the
Act or not.
Whether he declared the marriage or not, would not matter after his
death.
[33]
The Third
Respondent is, by virtue of the Second Respondent, not in possession
of her lobolo letter. She mourned the deceased’s
death together
with the Applicant and the First Respondent. She had at least a 33
year long relationship with the deceased. She
bore him children and
gave him a home. She stays in one of the deceased’s properties
and trades from another. Again, this
is not the actions of a man who
kept a female companion without his wife’s blessing. On the
face of the facts before me,
the deceased treated all three his wives
equally. Post his death he would have expected the Court to respect
his wives and also
treat them equally.
48
My judgment is in keeping with the
Reform
of Customary Law of Succession and Regulation of Related Matters Act
11 of 2009.
This Act repealed sections
22 and 23 of the Black Administration Act. The new Act provides that
all the deceased’s wives,
whether married to him by civil law
or customary marriages shall be considered equal upon his death.
Section 7(1)
and 7(2) of the Act provide as follow:
‘
7(1)
A marriage under the Marriages Act, 1961 (Act 25 of 1961) does not
affect the proprietary rights of any spouse of a customary
marriage
or any issue thereof if the marriage under the Marriages Act, 1961
was entered into -
(a)
On or after 1 January 1929 (the date
of commencement of sections 22 and 23 of the Black Administration
Act, 1927 (Act 38 of 1927)),
but before 2 December 1988 (the date of
commencement of the Marriages and Matrimonial Property Law Amendment
Act, 1988 (Act 3 of
1988); and …
(b)
…
..
7(2) The widow of the
marriage under the Marriages Act, 1961, referred to in subsection
(1), and the issue thereof have no greater
rights in respect of the
estate of the deceased spouse than she or they would have had if the
marriage under the Marriages Act,
1961, had been a customary
marriage.’
49
Finally
and as held in
Mayelane:
[34]
‘
[43]
This Court has accepted that the Constitution’s recognition of
customary law as a legal system
that lives side-by-side with the
common law and legislation- requires innovation in determining
‘living’ content, as
opposed to the potentially
stultified version contained in past legislation and court
precedent…’
50
The Application stands to be granted with costs on a party and party
scale. I do not see
any reason why the Applicant has to be penalized
with a cost order apart from that for the postponement occasioned on
13 June 2023.
ORDER:
51
The civil marriage between the First
Respondent and the deceased is declared null and void;
52
The civil marriage of the First Respondent
to the deceased shall be equal in status to the customary marriages
of the deceased to
the Applicant and the Third Respondent;
53
The Fifth Respondent is herewith ordered to
remove the civil marriage of the First Respondent to the deceased
from the marriage
register and to register the three customary
marriages between the deceased, the Applicant and the First and Third
Respondent;
54
The Fourth Respondent is ordered to oversee
the division of the deceased’s estate accordingly.
55
The applicant shall pay the First and
Second Respondent’s costs occasioned by the postponement on 13
June 2023 on a party
and party scale, subject to the discretion of
the taxing master.
56
Cost of the Application shall be cost of
the estate, payable in accordance with the discretion of the taxing
master on a party and
party scale.
57
A copy of this judgment is to be forwarded
to the Mpumalanga Deeds Office.
PICK, AJ
Acting Judge of the High
Court of South Africa
Mpumalanga Division,
Mbombela Main Seat
Appearance for the
Applicant:
Mr Khoza
Instructed by PC KHOZA
ATTORNEYS
Mbombela, Mpumalanga
File Ref: MR KHOZA /
KZ00015 / E
E-mail:
pckhoza.attorneys@gmail.com
Appearance for the
First and Second Respondent:
ADV HF FOURIE
Instructed by GERHARD
LOURENS INC, FOR 1
ST
AND 2
ND
RESPONDENT
Mbombela, Mpumalanga
File Ref:
E-mail:
sibusiso@gerhardlourens.co.za
;
hermann@advfourie.co.za
And to:
Third Respondent:
Joan Zwane
1916 Kanyamazane,
Mbombela
Mpumalanga
nozakhi@gmail.com
Fourth Respondent:
The Master of the High
Court
Mbombela, Mpumalanga
Fifth Respondent
The Minister of Home
Affairs
c/o Office of the State
Advocate
Mbombela,
Mpumalanga
[1]
Pages 179 –
184 of the Bundle
[2]
Recognition
of Customary Marriages Act, Act
120 of 1998
[3]
Para
12 above
[4]
Mayelane v
Ngwenyama and Others (CCT 57/12)
[2013] ZACC 14
;
2013 (4) SA 415
(CC);
2013 (8) BCLR 918
(CC) (30 May 2013)
[5]
Section
1(1)(a)(ii) of the Prohibition of Mixed Marriages Act, Act 55
of
1949
[6]
Section 22(1)
and (3) of the Black Administration Act, Act 38 of 1927,
repealed
2005
[7]
Section 22(5)
of the Act – see 6 above
[8]
Section 22 of
the Act – see 6 above
[9]
Shibi v
Sithole and Others (CCT 50/03, CCT 69/03, CCT 49/03)
[2004] ZACC 18
;
2005 (1) SA 580
(CC);
2005 (1) BCLR 1
(CC) (15
October 2004)
[10]
Recognition of
Customary Marriages Act, Act
120 of 1998
[11]
Section 3(1)(a) and
(b) of the Act
[12]
Section 2(3) of the
Act
[13]
Section 7(1) of the
Act
[14]
Section 3(2) and
10(1) of the Act
[15]
Section 7(6) to
7(8) of the Act
[16]
Sections 4(1), 4(2)
and 4(5) of the Act
[17]
Recognition of
Customary Marriages Act, Act
120 of 1998
[18]
The rule
established for dealing with mutually destructive versions in
Plascon-Evans
Paints v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623
(A)
[19]
Malan
and Another v Law Society of the Northern Provinces (568/2007)
[2008] ZASCA 90
;
2009 (1) SA 216
(SCA);
[2009] 1 ALL SA 133
(SCA)
(12 September 2008)
[20]
ND
v MM, see 20 above at para 16
[21]
ND v MM, see 20
above at para 17
[22]
Tsambo v Sengadi
(244/19)
[2020] ZASCA 46
(30 April 2020); Lombaard v Droprop CC and
Others (377/09)
[2010 ZASCA 86
;
2010 (5) SA 1
(SCA);
[2010] 4 All SA
229
(SCA) (31 May 2010)
[23]
Mbungela and
Another v Mkabi and Others (820/2018)[2019] ZASCA 134;
2020 (1) SA
41
(SCA);
[2020] 1 All SA 42
(SCA) (30 September 2019) at [28]
[24]
See 4 above
[25]
Alexkor Ltd and
Another v Richterveld Community and Others
[2003] ZACC 18
;
2004 (5)
SA 460
(CC);
2003 (12) BCLR 1301
(CC)
(Alexcor)
[26]
Mbungela
and Another v Mkabi and Others, 23 above
[27]
Tsambo v Sengadi
(244/19)
[2020] ZASCA 46
(30 April 2020)
[28]
Tsambo at para 16,
Mbungela and Another v Mkabi, see 20 above
[29]
Tsambo at para 16,
Mabuza v Mbatha, see 21 above
[30]
ND v MM, see 20
above at para 10
[31]
ND v MM
(18404/2018) ZAGPJHC 113 (12 May 2020); See also Mbungela and
Another
v Mkabi and Others
2020 (1) SA 41
(SCA) para 7
[32]
Mabuza v Mbatha
2002 (4) SA 218 (C)
[33]
Section 22 and 23
of the Black Administration Act, which was repealed and replaced
by
Section 7(1) and 7(2) of the Reform of Customary Law of Succession
and Regulation of Related Matters Act 11 of 2009
[34]
Mayelane v
Ngwenyama and Another, see 4 above; See also Shilubana and Others
v
Nwamitwa (CCT 03/07) [2008] ZACC 9
[2008] ZACC 9
; ;
2008 (9) BCLR 914
(CC);
2009 (2)
SA 66
(CC) (4 June 2008) at paras 47-49 and 55