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2024
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[2024] ZALMPPHC 88
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Sedinyane v Malatji and Others (10756/2023) [2024] ZALMPPHC 88 (8 August 2024)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO:10756/2023
(1) REPORTABLE:
YES
/NO
(2) OF INTEREST TO
THE JUDGES:
YES
/NO
(3) REVISED.
Signature:
Date:
08
th
AUGUST 2024
In the matter between:
SEDINYANE
MPONI HILDA
APPLICANT
And
ANARE
MMATEKHE MALATJI
1
ST
RESPONDENT
ANARE
MMATEKHE MALATJI N.O
2
ND
RESPONDENT
MINISTER
OF HOME AFFAIRS.
3
RD
RESPONDENT
MASTER
OF THE HIGH COURT.
4
TH
RESPONDENT
JUDGMENT
MONENE
AJ
[1]
“…
But the biggest weapon
wielded and actually daily unleashed by imperialism against that
collective defiance is the cultural bomb.
The effect of a cultural
bomb is to annihilate a people’s belief in their names, in
their languages, in their environment,
in their heritage of struggle,
in their unity, in their capacities and ultimately in themselves. It
makes them see their past as
one wasteland of non-achievement and it
makes them want to distance themselves from that wasteland.”
[2]
These words from the sniper pen of Ngugi wa
Thiongo in his 1986 literary masterpiece “Decolonising the
Mind”, ring incessantly
in this court’s mind as it
traverses the papers and arguments made before me in this matter
where yet another African man
married a wife customarily and whilst
that marriage subsisted sought to sidestep that marriage of his
cultural wasteland by concluding
another marriage, the so-called
“civil” marriage, only to escape witnessing the
acrimonious wrangling over the administration
of his estate visited
upon his “wives” by his cultural bomb victimhood in the
wake of his intestate demise through
death.
[3]
As a customary wife, referred to in the
Sepedi as
Mosadi wa dikgomo
,
the applicant in
casu
,
brings this application, in the main, against the first respondent
being the “civil” marriage “wife”,
often
referred to in Zulu as
Umfazi we phepha
seeking the following relief in sum:
[3.1] The post-humous
nullification of the “civil” marriage of the first
respondent and the deceased.
[3.2] The post-humous
recognition and registration of her customary marriage to the
deceased and issuance of a certificate in that
regard.
[3.3] A declarator that
she is the only wife of the deceased.
[3.4] An order
withdrawing the letters of executorship issued in the name of the
first respondent in respect of the deceased’s
estate.
[3.5] A declarator that
she is authorized to administer the estate of the deceased.
[3.6] An order directing
the fourth respondent, The Master of the High Court, to issue her
with Letters of Executorship in respect
of the deceased’s
estate.
[3.7] An order mulcting
the first respondent with costs as she is the only respondent who
opposed this application.
[4]
In opposing this application in both her
personal and representative capacity as the currently appointed
executrix
of the deceased’s estate hoists up her “civil”
marriage as the only valid marriage and states, albeit inelegantly,
that although there was a customary marriage between the deceased and
the applicant, it was dissolved and/or cannot enjoy recognition
under
the Recognition of Customary Marriages Act, 120 of 1998 (“the
Act”) which came into effect on 15 November 2000
owing to
having predated the Act by eight years.
[5]
The law on this kind of disputes is settled
and need no prolonged belabouring.
[6]
Section 2(1) of the Act provides that all
marriages which at the commencement of the Act were valid at
customary law are recognised.
[7]
The definition clause of the Act at section
1 defines a customary marriage as a marriage concluded in accordance
with customary
law; with customary law defined further as customs,
usages and practices traditionally observed by and amongst the
indigenous people
of this country and which form part of indigenous
African culture.
[8]
The Supreme Court of Appeal in
Netshituka
v Netshituka and Others
2011 (5) SA 453(SCA)
at
para 15 in dealing with earlier attempts at undermining our cultures
as wastelands worth abhorring, unequivocally stated the
law as
follows:
“…
In
Thembisile v Thembisile (2002(2) SA 209) Bertelsmann J held that a
civil marriage contracted while the man was a partner in an
existing
customary union with another woman was a nullity. It was not argued
in this court that Thembisile was wrongly decided.
It follows that
the civil marriage between the deceased and the first respondent,
having been contracted while the deceased was
a partner in existing
customary unions with Tshinakaho and Diana, was a nullity.
”
civil marriage between A and B that was
entered into while A was married in terms of customary law to C was a
nullity.
”
[9]
The same court later in
Monyepao
v Ledwaba and Others (1368/2018) [2020] ZASCA
held
as follows at paragraph 19:
“
In
the papers, an argument was made that when Ms Ledwaba married Mr
Kwele civilly, that had the effect of nullifying her existing
customary marriage to Mr Phago. That argument runs contrary to
authority in this court. In Netshituka v Netshituka and Others,
Petse
JA held, on facts strikingly similar to those in this case, that a
civil marriage between A and B that was entered into while
A was
married in terms of customary law to C was a nullity.
”
The facts
[10]
On 13 August 1988 the applicant and Seabela
Thizer Malatji, the now deceased concluded a customary marriage as
evidenced by a lobola
certificate or letter attached to the
applicant’s founding affidavit as well as by several
confirmatory affidavits also attached
thereto.
[11]
Four children having been born out of that
marriage, the couple drifted apart resulting in the applicant leaving
the matrimonial
home at Machidi, Mashishimale Village in Phalaborwa
in around late 1992.
[12]
On 5 February 2014 the first respondent
entered into a “civil” marriage with the now deceased
Seabela Thizer Malatji
as evidenced by a home affairs department
issued marriage certificate also attached to the applicant’s
founding affidavit.
[13]
On 2 March 2021 Seabela Thizer Malatji
passed away from natural causes as evinced by the death certificate
attached to the founding
affidavit.
[14]
On 30 July 2021 the first respondent was
appointed executrix of the deceased’s estate by the fourth
respondent.
[15]
Upon prevailing upon the office of the
fourth respondent on 1 August 2023, the applicant was advised that
the lobola certificate
that she produced was not proof of marriage
and further advised that the first respondent had, by virtue of her
“civil”
marriage, already been appointed executorship of
the deceased’s estate.
[16]
It is within that background that the
applicant approached this court praying as reflected upon
supra.
The
issue
[17]
What the first and second respondents
appear to place at issue is not whether there was a valid customary
marriage between the deceased
and the applicant. They do not
challenge the lobola certificate nor the confirmatory affidavits of
the surviving members of the
marriage delegations at all. They are
not arguing that the customary marriage was not concluded for want of
any further traditional
ritual either, such that determinations made
as to essentialia of a customary marriage in such matters as
Tsambo
v Sengadi (244/19)
[2020] ZASCA 46
(30 April 2020)
are
not worth reflecting upon in
casu
.
Their case is best summoned as follows:
[17.1] At the time of the
coming into operation of The
Recognition of Customary Marriages Act,
120 of 1998
customary marriage between the applicant had ended with
the separation of 1992 and is thus incapable of recognition.
[17.2] The dissolution of
that customary marriage could not have been expected to be in terms
of the Act as the dissolution happened
prior to the Act coming into
effect.
[17.3] The first
respondent had stayed longer with the deceased after the applicant
had walked out of the matrimonial home in 1992,
married him “civilly”
and stayed with him until his death.
[18]
Try as I did from perusing the first
respondent’s heads of argument or listening to submissions made
before me on the first
respondent’s behalf, I could not find
any cogency to any of the purported grounds mounted in opposition of
this application.
[19]
In the first place the first and second
respondents aver in a blunt, vacuous and flailing manner that the
customary marriage between
the applicant and the deceased had been
dissolved in 1992 without indicating in what manner it came to end.
We are left none the
wiser as to where, when and how the dissolution
of the customary marriage is alleged to have happened. One is left
with an impression
that the first respondent takes the inexplicable
quantum leap in logic that the mere admitted walking out of the
matrimonial home
by the applicant in 1992 is conclusive proof of a
divorce which happened eight years before the coming into effect of
the Act.
That in my view is misplaced reasoning more so in the
absence of any attempt, by these respondents, at reasoning that that
is how
they perhaps, mistakenly of course, understand divorce to be
constituted at customary law. Desertion for whatever period may in
many jurisdictions and regarding customary and so, so-called “civil”
marriages, be a ground of divorce but it is not
and cannot of itself
constitute or prove divorce or marriage dissolution. In that regard
my view gains traction from the counsel
of the SCA in
Netshituka
where at paragraph 12 it was approvingly observed,
inter alia, as follows:
“
In
customary law, where a husband has deserted his wife his offence is
not irreparable…It was held in Bobotyane v Jack 1944
NAC (C &
O) 9 that customary law ‘does not recognize a dissolution of
the union by mere desertion of the wife or husband,
by abandonment,
or even by bare repudiation, for these are all eventualities provided
for by the lobola cattle; the husband can
always “phuthuma”
his wife after any length of absence; the wife can always return to
her husband’s kraal and
resume her former status.
”
[20]
Secondly, in the absence of a proven
divorce or dissolution of that customary marriage recognisable at
either by custom or by any
statute predating the Act, the customary
marriage between the applicant and the deceased subsisted up to and
beyond the coming
into operation of the Act which in terms of section
2(1) thereof recognised all customary marriages which preceded its
promulgation
as valid marriages, the patrimonial consequences of
which are all in community of property and profit and loss unless
consequences
to the contrary were expressly stated somewhere. All
such marriages are once recognised, terminable only by a court of law
in terms
of section 8 of the Act.
[21]
Thirdly, having stayed with a person longer
than a competing suitor or spouse or having the curious privilege of
being present at
their deathbed of the contested over spouse does not
clothe one with a better marital standing than the other nor does it
the nullity
of a marriage cure.
[22]
Taking a leaf thus from the SCA matters of
Netshituka and Monyepao
referred
to
supra,
the question is what to make of the “civil marriage” of
the first respondent to the deceased which, in my view, clearly
superimposed itself, through the unfortunately conduct of culturally
bombed persons like the deceased, onto a subsisting customary
marriage of the applicant and the deceased. It is clearly, as the law
stands, nullity
ab initio
and should quite clearly be so declared. A consequence of that
declaration of nullity means therefore that all benefits or rights
which accrued from that marriage that never was, like the appointment
of the first respondent as executrix of the estate of the
deceased
should fall victim to the same sword.
[23]
In the same vein, there is no impediment on
the way of the customary marriage of the applicant and the deceased
being recognised
and registered posthumously and the applicant being
declared the lawful customary wife of the deceased. Hers is a valid
customary
marriage which under cover of the Minister of Home Affairs’
notice in terms of section 4(3)(a) of the Act, was, at the time
of
the hearing of this matter, falling squarely within the prescribed
period for the registration of customary marriages, which
period was,
up to then, 30 June 2024. That period would have now, in the light of
the change of guard to a new government post
the recent elections,
reasonably have been extended already.
[24]
Much as I am with the applicant almost the
whole hog in this application, what I am disinclined to do is to
needlessly usurp the
powers of the fourth respondent and
encroachingly order the fourth respondent to issue the applicant with
letters of executorship
authorizing the estate of her late husband.
The fourth respondent, who did not enter the fray in this
application, remains empowered
to act as per his or her statutory
mandate regarding appointment of executors post this judgement,
factoring into his or her fresh
decision, inter alia, the fact that
the surviving marital spouse of the deceased is the applicant.
[25]
I have at several points in this judgement
put the words “civil” in civil marriage in inverted
commas suggestive of
perhaps having hiccups or misgivings about its
employ. I indeed do have those discomforts about routinely, as has
been the case
even in authority I referred to approvingly, employing
the word “civil” to describe a marriage in terms of our
statutes
governing marriages as derived from the Roman-Dutch law
traditions. Perhaps, I need to, without digressing a lot, briefly
explain
the uncomfortable gnawing the word, in context, does to this
court’s decolonized, perhaps injudiciously seditious (some may
suggest), mind.
[26]
As I understand the dictionary or ordinary
meaning of the word “civil” from the English language it
either means polite,
courteous or as per its Latin root
civilis
it means “relating to citizens” or to people. It has, in
my view, the hidden, colonially intended or maybe unintended
meaning
of negatively othering people such that, in the context of “civil”
marriage, it suggests that customary marriages
are not courteous, are
impolite oddities or about, of, or relate to non-citizens or those
surplus to the norm and perhaps such
none civil practices are of
savages who lack civility or the civil touch or are in need
civilization. In that sense the word “civil”
in civil
marriage as distinguished from customary marriage offends my sense of
what is just as it appears, in my view, to be part
of Ngugi wa
Thiong’o’s lamented cultural bomb unleashed by
colonialism and imperialism to annihilate practitioners
of indigenous
African customary law’s belief in themselves leading them to
see their Africanness as “a wasteland of
non-achievement”
from which they need to “civilly” distinguish or distance
themselves.
Costs
[27]
It being commonplace for costs to follow
the event and the applicant, in my view, having attained substantial
success against the
first and second respondents, I see no reason to
deviate from that practice.
[28]
In her heads of argument, the applicant
prayed for a punitive scale on attorney and client scale. It was
however not indicated as
to why the two respondents who opposed this
application, the first and second, should be mulcted with a costs
order beyond the
ordinary.
[29]
I am not persuaded that a punitive costs
order is, on the facts of this matter, the poorly conceived and
mounted opposition notwithstanding,
called for.
[30]
In all the above premises therefore, the
application should succeed to the extent already indicated
supra
with costs on a party and party scale.
[31]
Resultantly, I make the following order:
[31.1.] The application
succeeds.
[31.2] The “civil”
marriage entered into between the first respondent and the now
deceased Seabela Thizer Malatji on
5 February 2014 is declared
unlawful and void
ab initio
.
[31.3] The Letters of
executorship bearing Estate Number 2[...] in respect of the deceased
estate of Seabela Thizer Malatji issued
to the first respondent by
the fourth respondent on 30 July 2021 are set aside.
[31.4] The customary
marriage entered into between the applicant and the now deceased
Seabela Thizer Malatji (ID number 5[...])
entered into on 13 August
1988 is recognised as a customary marriage entered into validly in
terms of the
Recognition of Customary Marriages Act, 120 of 1998
and
the Third Respondent is directed to duly register that customary
marriage in terms of
section 4(7)(a)
of that Act.
[31.5] The third
respondent is ordered and directed to issue the applicant with a
marriage certificate.
[31.6] The first
respondent is ordered to pay the costs of this application on a party
and party scale inclusive of counsel’s
fees computed on scale
B.
MALOSE.S. MONENE
ACTING JUDGE OF THE
HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES
Heard
on
: 17 May 2024
Judgement delivered
on
: 08 August
2024
For the Applicant
:
Ms R H Chuene
:
Instructed by Hope Chuene Attorneys Inc
: Tel: - 066 487
1650
:
Email:
justice@hopechueneattorneys.co.za
For the 1
st
and 2
nd
Respondents : Ms. M E Matloga-Maseko
: Instructed by Obi
Matlaila Attorneys
: Tel: 015 268
3248
:
Email:
matlailaattorneys@gmail.com