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2024
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[2024] ZALMPPHC 116
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Mtsweni v Matenchi and Others (3950/2021) [2024] ZALMPPHC 116 (11 September 2024)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
REPORTABLE: YES/NO
(2) OF INTEREST TO THE
JUDGES: YES/NO
(3) REVISED.
DATE 11/9/2024
CASE NO 3950/2021
In the matter between:
MTSWENI TSHOPANA SARAH
(ID NO: 7[…])
Applicant
And
MATENCHI JULIA MABUNYE
(ID NO: 8[…])
First
Respondent
MASTER
OF THE HIGH COURT, POLOKWANE
Second Respondent
MINISTER
OF HOME AFFAIRS
Third Respondent
DIRECTOR-GENERAL:
DEPARTMENT OF
HOME
AFFAIRS
Fourth
Respondent
JUDGMENT
GAISA
AJ
INTRODUCTION
[1]
This is an application
in terms of section 3(1) of the Recognition of Customary Marriages
Act 120 of 1998 ("the Act")
to declare a customary marriage
valid and lawful. The Applicant, Ms Mtsweni Tshopana Sarah, seeks an
order declaring that she entered
into a valid customary marriage with
the late Mr Samuel Matenchi ("the deceased") on 4 October
2005. She further seeks
orders to have this marriage registered
posthumously and to have the civil marriage between the deceased and
the First Respondent,
Ms Matenchi Julia Mabunye, declared null and
void.
[2]
The application is
opposed by the First Respondent, who contends that no valid customary
marriage existed between the Applicant
and the deceased. The First
Respondent maintains that she entered into a valid civil marriage
with the deceased on 26 April 2013.
[3]
The central issue for
determination is whether a valid customary marriage was concluded
between the Applicant and the deceased in
accordance with the
requirements of the Act. If such a marriage is found to have existed,
the court must then consider the legal
implications for the
subsequent civil marriage between the deceased and the First
Respondent.
FACTUAL
BACKGROUND
[4]
The Applicant avers
that she entered into a customary marriage with the deceased on 4
October 2005 at her family homestead in Thabakgolo,
Stofberg,
Mpumalanga Province. She states that on this date, the deceased sent
emissaries to negotiate magadi (lobolo) for her.
According to the
applicant, an agreement was reached that the total magadi payment
would be R13,200 plus a cow for the traditional
wedding. The
deceased's emissaries paid R3,200 on that day, with an undertaking to
pay the balance later.
[5]
The Applicant states
that the magadi negotiations were reduced to writing and signed by
both families' lead emissaries. The successful
negotiations were
apparently celebrated in accordance with Ndebele cultural norms by
slaughtering a goat. The Applicant contends
that she was then handed
over to the deceased's family in accordance with customary law.
[6]
On 1 September 2007,
the deceased's emissaries allegedly paid the balance of R10,000 for
the magadi. The only outstanding component
was the cow for the
traditional wedding, which was to be delivered on the day before the
wedding.
[7]
The Applicant states
that her marriage to the deceased began experiencing challenges in
2008 when the First Respondent became romantically
involved with the
deceased. In 2009, the deceased left to cohabit with the First
Respondent. The Applicant maintains that there
were never any divorce
proceedings initiated by either party.
[8]
The deceased passed
away on 13 January 2021.
[9]
The First Respondent
denies that a valid customary marriage ever existed between the
Applicant and the deceased. She contends that
the events described by
the Applicant constituted only lobolo negotiations and not the
conclusion of a valid customary marriage.
The First Respondent
maintains that she entered into a valid civil marriage with the
deceased on 26 April 2013, as evidenced by
their marriage
certificate.
LEGAL FRAMEWORK
[10]
Section 3(1) of the Act
sets out the requirements for a valid customary marriage:
"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."
[11]
In
Mayelane
v Ngwenyama and Another
[1]
the
Constitutional Court emphasized that the determination of customary
law is a matter of law for the courts. The court must take
steps to
satisfy itself as to the content of customary law and, where
necessary, to evaluate local custom in order to ascertain
the content
of the relevant legal rule.
[12]
The
Supreme Court of Appeal, in
Tsambo
v Sengadi,
[2]
held
that while the payment of lobolo is an essential requirement for a
customary marriage, it
is
not the only requirement. The court must consider whether all the
essential elements for a valid customary marriage have been
met
according to the customs of the particular community.
[13]
Section 4(7) of the Act
provides that a court may, upon application and investigation, order
the registration of any customary marriage.
[14]
Section 10(1) of the
Act states:
"A man and a
woman between whom a customary marriage subsists are competent to
contract a marriage with each other under the
Marriage Act, 1961 (Act
No. 25 of 1961), if neither of them is a spouse in a subsisting
customary marriage with any other person."
ANALYSIS
[15]
Validity of the
Customary Marriage
15.1.
The first question to
be determined is whether a valid customary marriage was concluded
between the Applicant and the deceased in
October 2005. This requires
an examination of whether the requirements set out in section 3(1) of
the Act were met.
15.2.
There is no dispute
that both the Applicant and the deceased were above the age of 18 at
the relevant time. The requirement in section
3(1)(a)(i) is therefore
satisfied.
15.3.
Regarding consent, the
Applicant's evidence that both parties agreed to marry each other
under customary law is not directly contradicted
by the First
Respondent. However, there is limited concrete evidence of the
deceased's direct consent to enter into a customary
marriage. The
court notes the absence of any statement or affidavit from the
deceased or anyone from his family confirming his
intention to marry,
or witnesses attesting to his expressed consent.
15.4.
The crucial question is
whether the marriage was "
negotiated
and entered into or celebrated in accordance with customary law
"
as required by section 3(1)(b). This necessitates an examination of
the customs and practices of the relevant community.
15.5.
The Applicant has
provided evidence of several elements that are typically associated
with the conclusion of a customary marriage:
15.5.1.
Lobolo negotiations
were conducted and an agreement was reached.
15.5.2.
A substantial portion
of the agreed lobolo was paid.
15.5.3.
The negotiations were
reduced to writing and signed by representatives of both families.
15.5.4.
A celebratory feast
involving the slaughter of a goat took place.
15.5.5.
Although the Applicant
states she was handed over to the emissaries at her homestead before
being taken to the deceased's family,
this raises concern whether a
proper handover took place.
15.6.
However,
the
court
notes
several
significant
gaps
in
the
evidence presented by the Applicant:
15.6.1.
There is no independent
evidence corroborating the Applicant's claim of being handed over to
the deceased's family.
15.6.2.
There is no
documentation of an official marriage ceremony or registration of the
customary marriage at the time it allegedly occurred.
15.6.3.
There are no affidavits
or statements provided from the Applicant's parents, siblings, or
other family members corroborating her
version of events regarding
the customary marriage ceremony, celebrations, or her being handed
over to the deceased's family.
15.6.4.
There is limited
evidence of cohabitation between the Applicant and the deceased for
an extended period following the alleged marriage.
15.6.5.
The Applicant and
deceased never acquired assets together, jointly or otherwise.
15.6.6.
The Applicant did not
attend the deceased's funeral or perform traditional spousal rituals.
15.7.
The First Respondent
argues that these events constituted only lobolo negotiations and not
the conclusion of a valid marriage. The
court notes from various
caselaw (including Tsambo
supra
)
that in many African cultures, the process of concluding a customary
marriage is not a single event but a series of interconnected
rituals
and negotiations. In the present case, the lack of evidence for key
elements of the customary marriage process beyond the
lobolo
negotiations is concerning.
15.8.
The court is
particularly troubled by the Applicant's delay in bringing this
application. The Applicant waited over 13 years after
separating from
the deceased to file this application. During this time, she took no
legal action to assert her claimed marital
status while the deceased
was alive, even after becoming aware of his civil marriage to the
First Respondent.
15.9.
The Applicant has not
provided a satisfactory explanation for this significant delay. This
inaction raises doubts about the Applicant's
claim of a valid
customary marriage and suggests that she may not have considered
herself to be in such a marriage during this
extended period.
15.10.
The court must also
consider the evidence presented by the First Respondent. She has
provided a marriage certificate as prima facie
proof of her civil
marriage to the deceased. The existence of this civil marriage, which
was not challenged by the Applicant for
many years, casts further
doubt on the existence of a prior valid customary marriage.
15.11.
Furthermore, the First
Respondent has provided evidence of her own customary marriage to the
deceased prior to their civil marriage,
including affidavits from
family members of the deceased and witnesses to the customary and
civil marriages.
[16]
Application of the
Plascon-Evans Rule
16.12.
Given
the material disputes of fact that have arisen on the papers, the
court must consider the application of the Plascon- Evans
rule. This
rule, established in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
,
[3]
provides
that where there are disputes of fact in motion proceedings, a final
order should only be granted if the facts averred
in the applicant's
affidavits, which have been admitted by the respondent, together with
the facts alleged by the respondent, justify
such an order.
16.13.
In this case, the
Applicant has failed to file a replying affidavit to address
points
raised
in
the
First
Respondent's
answering affidavit.
This failure limits the Applicant's ability to dispute the claims
made by the First Respondent.
16.14.
Applying the
Plascon-Evans rule, the court must accept the version set out by the
First Respondent insofar as it is not inherently
implausible,
far-fetched or clearly untenable. The First Respondent's version,
supported by documentary evidence and witness affidavits,
presents a
more coherent and credible account of events than that of the
Applicant.
[17]
Implications for the
Civil Marriage
17.15. Having found that
the Applicant has not discharged the burden of proving that a valid
customary marriage existed between
herself and the deceased, it is
not necessary for the court to consider the implications for the
subsequent civil marriage between
the deceased and the First
Respondent.
17.16. The court notes,
however, that the existence of a valid civil marriage certificate
creates a strong presumption in favour
of the validity of that
marriage. The Applicant has not provided any evidence to rebut this
presumption.
CONCLUSION
[18]
In light of these
factors, the court finds that the Applicant has not discharged the
burden of proving that a valid customary marriage
existed between
herself and the deceased. While there is evidence of lobolo
negotiations, the Applicant has not provided sufficient
proof that
all the requirements for a valid customary marriage under the Act
were met.
[19]
The lack of supporting
evidence from the Applicant's family members, the absence of proof of
key customary rituals beyond the lobolo
negotiations, and the
Applicant's long delay in asserting her claimed marital status all
weigh against finding that a valid customary
marriage existed.
[20]
Given this finding, it
is not necessary for the court to consider the implications for the
subsequent civil marriage between the
deceased and the First
Respondent.
ORDER
In the result, the
following order is made:
1.
The application is
dismissed.
2.
The Applicant is
ordered to pay the costs of this application.
N GAISA
Acting Judge High Court
of South Africa
Limpopo Division,
Polokwane
APPEARANCES
FOR
THE APPLICANT
INSTRUCTED
BY
EMAIL
FOR
THE 1
ST
RESPONDENT
INSTRUCTED BY
EMAIL
:
MS MANTEBELE MATLOGA-MASEKO
:
LM THOBEJANE ATTORNEYS
:
mmanelebo@gmail.com
:
ADV SKHOSANA
: MPHELA &
ASSOCIATES ATTORNEYS
:
belinda@mphela.co.za
DATE
OF HEARING
DATE
OF JUDGEMENT
:
9 September 2024
:
11 September 2024
This judgment is
handed down electronically by circulation to the parties’
representatives by email. The date and time for
hand-down of the
judgment is deemed to be 11 SEPTEMBER 2024 at 17:00 PM.
[1]
2013
(4) SA 415 (CC)
[2]
[2020]
ZASCA 46
[3]
[1984] ZASCA 51
;
1984
(3) SA 623
(A)