SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(Gauteng Division , Pretoria )

Case no : 60676/2019
Heard on: 18/10/2024
Judgment: 16/1/2025
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED.
DATE: 16 January 2025
SIGNATURE
In the matter between :
THEMBI EURIEL TLOU PLAINTIFF

AND

STANLEY THI PE MATLALA DEFENDANT
_________________________________ ___________________ ______ ____ ________
JUDGMENT
STRIJDOM , J
1. This action pertains to a dispute relating to the validity of a customary marriage,
where the plaintiff alleges that the parties entered into a valid customary
marriage on the 6th of October 2005 at Soshanguve, Gauteng Province.

2. The defendant has denied that a marriage exists between the parties and only
admits that a meeting took place between the respective parties ’ delegates on 6
October 2005, which did not according to the defendant, result in the conclusion
of a valid customary marriage between the parties. The defendant states that he
and his delegation were informed of the existence of the plaintiff’s daughter,
Naledi, for the first time during the lobola negotiations and that no lobola was
successfully negotiated.

3. On the day of the commencement of the trial, the defendant amended his plea to
the plaintiff’s particulars of claim.1The application to amend was not opposed by
the plaintiff.

4. At the commencement of the trial, the defendant abandoned the two special
pleas that were initially raised in his plea.

5. It is common cause that the parties are the registered co -owners of an
immovable property, more fully described as: 1 […] B[…] D[…] Soshanguve.

6. In relation to the said property, defendant seeks an order, granting the plaintiff
only that share and/or percentage that she was able to prove a contribution
towards at trial. No evidence was led at the trial by the parties pertaining to the
division of the aforesaid co -ownership.

7. The co -ownership of the property has to be del t with, at a later stage, as the
Court’s finding on whether or not a valid customary marriage exists, shall have
patrimonial consequences on the separate estates of both of the parties.

Common Cause Facts

8. The following facts are common cause between the parties:
8.1 On the 6th of October 2005, the Tlou and Matlala families met at the Tlou
homestead in Soshanguve, Gauteng, with the intention to initiate what would
later become the basis for the process of negotiating lobola on behalf of the
plaintiff and the defendant.

1 Caselines: J1

8.2 The plaintiff and the defendant were involved in a romantic relationship.

8.3 No lobola letter exists and the alleged customary marriage was never
registered.

8.4 The defendant does not dispute that he occasioned a delegation to approach
the Tlou family with the intention to negotiate lobola on his behalf during
October 2005.

8.5 The plaintiff has a daughter, Naledi, form a previous relationship who was
born on 6 March 1996.

Plaintiff’s case

9. The facts and evidence relied on by the plaintiff can be summarised as follows:

9.1 The plaintiff testified that she and the defendant met when she was 23
years old while she was residing with her parents at Block […],
Soshanguve in 1998. The parties began a romantic relationship shortly
thereafter. The defendant was residing nearby with his mother.

9.2 During the year 2000 the parties decided to purchase an immovable
property being the property located at 1 […], Block […], Soshanguve. A
joint bon d in respect of the immovable property was secured as neither
party was able to qualify for same on their own.

9.3 The plaintiff testified that the defendant was from the start of their
relationship, aware of Naledi who eventually came to live with the
parties in 2003 until 2016.

9.4 Regarding the claimed valid marri age by the plaintiff, she confirmed that
Naledi was not discussed between the parties prior to the marriage
negotiations.

9.5 She testified that the negotiations, integration and celebration of the
parties ’ marriage, occurred on Sunday, 12 June 2005. She stated that
the delegation sent by the defendant arrived at her parents’ home at
approximately 09:00. The plaintiff remained in a bedroom with her
daughter Na ledi while the negotiations took place.

9.6 The plaintiff listed the delegates present for the negotiations on her
behalf, as follows:

9.6.1 Samson Ramokgopa (Uncle Sam);
9.6.2 Nimrod Ramokgopa (Uncle Nimrod);
9.6.3 Mulawa Mathe;
9.6.4 Rosemary Mathe

9.7 The plaintiff listed the delegation for the Matlala family as follows:

9.7.1 Granny Mthombeni (defendant’s sister);
9.7.2 Peter Mthombeni (defendant’s sister);
9.7.3 Sister Sassi;
9.7.4 The husband of Sister Sassi .

9.8 At one point, the plaintiff’s mother entered the bedroom in which the
plaintiff was informing her that the delegates had agreed on R12 000,00
in respect of lobola but that the defendant’s delegates only had
R6 000,00 , which they paid immediately, and that the outstanding
amount would be paid on a later date to be determined. The
defendant’s delegates further provided gifts for the plaintiff’s uncles and
Granny Mthombeni, provided walking sticks and blankets.

9.9 The plaintiff and Naledi were then summoned and displayed in front of
the delegation, at which point Sister Sassi and Granny Mthombeni
exclaimed “we see the makoti and her child, who is known to us …”

9.10 The delegation then enjoyed lunch at the Tlou homestead after which
the plaintiff was informed to prepare to leave to attend the defendant’s
family homestead. The plaintiff then left for the Matlala homestead with
members of her family. Plaintiff stated that Naledi did not accompany
her to the Matlala homestead.

9.11 The plaintiff recalled upon entering the dining room of the Matlala
homestead, that she was accompanied by the defendant. She further
testified that she proceeded to meet the defendant’s father, Frans
Matlala and his wife. The celebration then continued where eating and
drinking took place.

9.12 When asked about whether any photographs or videos were taken of
the claimed celebration, the plaintiff stated that a video was recorded by
a friend of the defendant named Clement. She asserted that the video
remained behind at the Block D […] immovable property when she
vacated same.

9.13 Regarding the existence of the lobola letter, the plaintiff stated that the
letter was drafted on the day of the celebrations and that she had sight
of same the following day. She testified that the lobola letter included
an “X” amount to be paid as well as the arrears, which had been
deferred to a later date. The letter did not include anything pertaining to
Naledi. The letter was subsequently lost at the Tlou homestead during
2021.

9.14 The plaintiff testified that at no stage during the parties’ relationship did
her family elders object to her residing with the defendant at their jointly
owned property. While residing together the parties would share
household expenses. She would pay the bond while the defendant
would pay the property rates and taxes.

10. Mr Samson Ramokgopa testified on behalf of the plaintiff. His evidence can be
summarised as follows:

10.1 He was the leader of the Tlou delegation in respect of the marriage
negotiations between the parties on 12 June 2005.

10.2 The witness expressed that due to his advanced age, he suffers from
memory lapses, for which he takes various prescribed medications on a
daily basis.

10.3 He testified that the purpose of the negotiations was to pay lobola; an
amount of R12 000,00 was agreed upon; the Matlala delegation only
had R6 000,00, which was paid on that day and the balance thereof
was deferred to a date to be determined.

10.4 Gifts were provided to the plaintiff’s delegation, which included 2 coats,
2 shoals, and a walking stick. Slaughtering of animals took place with
half of the meat thereof to be divided between the parties’ families.

10.5 Mr Ramokgopa testified that a lobola letter was drawn up by himself
and Jan Harold Ramokgopa . They both signed the letter. Granny
Mthombeni and another member of the Matlala delegation also signed
the letter. What happened to the said letter was unknown to the
witness.

10.6 The witness stated that nothing was discussed regarding Naledi.

10.7 After lunch was held at the Tlou homestead, a celebration then followed
at the Matlala homestead.

10.8 He further confirmed that he was not opposed to the plaintiff and the
defendant residing together. Although he never visited the parties at
the Block D […] immovable property, he stated that they appeared to be
happy together.

11. Professor Pieter Bakker provided expert testimony on behalf of the plaintiff. His
evidence can be summarised as follows:

11.1 The professor took the Court through his report dated 17 May 2024,2
highlighting the most relevant findings, in particular covering:

11.1.1 The presence of an agreement between the parties;
11.1.2 The payment of lobola;
11.1.3 The integration of the two families, and;
11.1.4 The legal presumption of a valid customary marriage.

11.2 In light of the defendant’s amendment of his plea, in which the
defendant pleads that lobola negotiations could not be finalised, the
professor was not privy to this specific pleading and the claimed issues
surrounding Naledi’s role in the lobola negotiations did not form part of
his expert report.

2 Caselines:E10 -E18

11.3 The professor testified that the obligation to disclose the existence of
Naledi to the Matlala family, was not necessary if in fact Naledi, had
already been residing with the parties and was known to the Matlalas.

11.4 The witness stated that the obligation to disclose the existence of a
parties’ child from a previous relationship, is subjective as it depends on
the families in question.

11.5 The witness testified that the question of the adoption of a child from a
party’s previous relationship should be decided and confirmed by the
delegation of the family who would be adopting such child. In the event
that they do not accept the child, then the negotiations could either
continue in the absence of adopting the child, or the negotiations could
be called off entirely.

11.6 The professor continued, testifying that the payment of lobola whether
in part or in full is not a requirement for a valid customary marriage.
What is, however, important is that there must be an agreement
between the families on the amount of lobola to be paid.

11.7 Professor Bekker opined that where the respective delegates of the
families are unable to agree on lobola, then there is little to almost no
probability of there being a conclusion of a valid customary marriage.
Where lobola negotiations have ultimately broken down, the elders of
the respective families would not allow the parties to reside together.
Defendant ’s case :

12. The defendant’s evidence can be summarised as follows:
12.1 He testified that he was in a romantic relationship with the plaintiff from
about 1999 to 2019. He conceded that he and the plaintiff are co -
owners of an immovable property.

12.2 He testified that he was solely responsible for the monthly bond
repayments of the said property and that the plaintiff never resided with
him at the property but would rather occasionally visit over weekends.

12.3 He further testified that when he met the plaintiff, she was residing with
a friend at Block […], Soshanguve. He has no children with the plaintiff
and he was residing with his children at the joint property between 2005
to 2014.

12.4 The defendant testified that during 2005, he intended to marry the
plaintiff and sent a delegation to the family of the plaintiff to enquire how
much lobola they would charge him in the event that he and the plaintiff
were to marry. He did not give any money to the Mthombeni’s on the
said day.

12.5 The Mtombeni’s returned to his mother’s homestead and advised him
that the plaintiff had a child from a previous relationship.

12.6 The defendant testified that he was not aware that the plaintiff had a
child and advised his family hat he no longer wished to proceed to
marry the plaintiff. No further meeting was held between the Matlala
and Tlou family and the defendant terminated the relationship between
the plaintiff and himself.

12.7 He testified that he confronted the plaintiff about the child. She
apologised and stated that she was scared that he would have changed
his mind about wanting to marry her. Around 2005 the plaintiff called
him, once again apologising. He then forgave her and they resumed
their relationship.

12.8 He testified that the plaintiff continued to visit him over weekends from
2006. After the resumption of the relationship he would occasionally
assist the plaintiff with Naledi’s expenses, as and when requested by
the plaintiff.

12.9 His relationship with the plaintiff was terminated in 2019 after he found
the plaintiff with a male companion at the joint property.

Mrs Granny Mthombeni and Mr Peter Nthombeni
13. The Mthombeni’s testified that they were delegated by the defendant to approach
the plaintiff’s family with the intention of negotiating lobola on behalf of the
defendant, in particular to enquire how much the Tlou family would seek from
defendant in respect of lobola.

14. They testified that they attended to the plaintiff’s homestead during October
2005, and were the only two delegates that were present on behalf of the Matlala
family.

15. They testified that they were given permission to enter the Tlou homestead by a
gentlemen known as Nimrod. They entered the home and introduced
themselves to Nimrod and two ladies. Nimrod advised that they should proceed
with their discussions and that the elder uncle would find the negotiations ahead.
The elder uncle later arrived and introduced himself as Sam. The Mthombeni’s
stated the reasons for their presence which was to find out from the Tlou family
as to the amount of lobola they would require as well as what gifts they would
need.

16. The Tlou family informed the Mthombeni’s that they would require R18 000,00 for
lobola. The Tlou delegation were willing to lower the amount to R14 000,00 to
which the Mthombeni’s responded by pleading with the Tlou’s to further reduce
the amount. Sam then responded to the Mtombeni’s that it seems like they were
there to play. He further stated that a cow cannot be severed from its calf.

17. The Mthombeni’s then responded that they were not aware that the cow had a
calf. It was at this point that the Nthombeni’s felt that they could not conclude
any discussion without taking a mandate from the defendant.

18. The Mthombeni’s intimated to the Tlou delegation, that for the sake of the original
mandate, they wish to finalise the discussion on what would be required of the
defendant in the event that they would return to negotiate and pay lobola.

19. Both Nimrod and Sam left the room and returned to advise the Nthombeni’s that
the elders had agreed to lower the amount of lobola to R12 000,00.

20. Mr Nthombeni testified that they informed the Tlou delegation that before they
could discuss the gifts that they were not there to pay lobola, but merely to
discuss what was expected of them. They further informed the Tlou family that
they did not have any money with them. The Nthombeni’s were then served
food, they began to eat and did not finish, as they felt they are no longer
welcome and left.

21. They testified that they were at no point introduced to the plaintiff or her minor
child and there was no exchange of gifts. They also testified that at no point was
the plaintiff taken to the Matlalas’ homestead and there was no celebration of any
kind. They further testified that there was no letter that was written to record the
events of the meeting.

Assessment of Evidence
22. Ordinarily, the party who bears the onus can discharge it only if that party had
adduced credible evidence, particularly where there are mutually destructive
versions.3

23. To come to a conclusion on the disputed issues a court must make findings on
(a) the credibility of the various factual witnesses (b) their reliability; and (c) the
probabilities.4

24. What must be borne in mind, however, is that the conclusion which is reached
must account for all the evidence.

25. The plaintiff did not impress me as a reliable witness. She contradicted herself
on material aspects and there appear to be several inconsistencies in her
evidence. It is further evident from her evidence that her memory does not serve
her well.

26. She testified that the defendant’s delegation approached her family to negotiate
lobola on the 12th of June 2005, whereas her particulars of claim indicate that the
alleged lobola negotiations occurred on 6 October 2005.

27. The plaintiff testified that lobola was successfully negotiated. It was the
testimony of the plaintiff that she was not present during the alleged lobola
negotiations and that she waws only later advised of what had transpired during
the alleged negotiations.

28. She testified that after the lobola negotiations, she and her daughter (Naledi)
were introduced to the Matlala delegation. During cross -examination she
conceded that her daughter did not accompany her to the Matlala homestead.

3 National Employers’ General Insurance v Jagers [1984] 4 All SA 622 [ E] 624 -625; 1984 (4) SA 437 €
440 D -G.
4 SFW Group Ltd and Another v Martell et ( Cie & Others [2002] OL 10175 (SCA); 2003 (1) SA 11 (SCA).

29. Plaintiff testified that a lobola letter was executed at the end of the alleged
negotiations. When asked during cross -examination why she did not use the
lobola letter in support of her claim, she answered that the letter went missing in
2021, when renovations were being done at her parental home.

30. The summons in this matter was issued in 2019, two years before the letter was
allegedly lost. It is highly improbable that if such a letter exist when the
summons was issued, it was not disclosed or used to support the plaintiff’s claim.

31. The plaintiff testified that the lobola letter remained at her homestead whereas
Sam Ramokgopa testified that the letter was given to the Matlala delegation as
proof to be shown to the rest of the Matlala family.

32. During cross -examination the plaintiff testified that pictures and a video were
taken of the celebrations by the defendant’s friend. She failed to adduce into
evidence a letter of lobola, or any pictures of the alleged celebration. She also
failed to file any affidavit by the other members of her delegation, despite
testifying during cross -examination that many of them were still alive and could
have been of assistance to the court in establishing what transpired at the
meeting.

33. The plaintiff contradicted herself during cross -examination on the date of the
alleged negotiations the date upon which she met and entered into a romantic
relationship with the defendant.

34. She further contradicted the evidence of Sam Ramokgopa. She testified that an
animal was slaughtered at the abattoir, whereas Mr Ramokgopa testified that an
animal was slaughtered at the Tlou homestead.

35. The evidence of Mr Ramokgopa must be treated with circumspection. During
cross -examination, he informed the court that he is “a person of some memory
lapses” and further stated that he remembers some details and others he does
not. He takes various prescribed medications for the memory lapses on a daily
basis.

36. His evidence contradicted that of the plaintiff in material respects. In respect of
what transpired during the negotiations his evidence cannot be corroborated by
the evidence of the plaintiff. The plaintiff was not present during the negotiations.
The plaintiff relied on the information that was conveyed to her by Mr
Ramokgopa.

37. With regard to the lobola negotiations, Mr Ramokgopa must be treated as a
single witness. Taking into consideration his memory lapses. The Court cannot
attach much weight on his evidence.

38. Professor Bakker in my view was a honest and reliable witness. His expertise
was not disputed by the defendant.

39. He testified that the report he had compiled, was based on an interview he had
with the plaintiff. He conceded during cross -examination hat he did not interview
any other persons for the purpose of compiling his report. He further conceded
that no lobola letter, no pictures of the alleged celebration were provided to him
by the plaintiff. No collateral information was furnished to him.

40. The professor testified that the plaintiff had not disclosed to him that she had a
child.

41. When asked during cross -examination whether or not the existence of a child on
part of a woman, that was not known to a man’s family prior to initiation of lobola
negotiations, the expert conceded that it might be an issue, if the man’s family
subsequently becomes aware of the existence of a child that was not initially
disclosed. The revelation of this nature may cause issues in the negotiation
process.

42. When questioned by the Court on what the consequences of lack of consensus
by delegates at a lobola negotiation were, the expert testified that no valid
marriage would be concluded.

43. The defendant gave a detailed and thorough account of the incident in a
straightforward manner. Under cross -examination he was able to logically
substantiate his evidence thereby reinforcing it. He made a favourable
impression on the Court as an intelligent witness whose account was truthful and
reliable. He did not contradict himself in any material way. His evidence is also
corroborated on material aspects b y the evidence of the Nthombeni ’s.

44. Granny Nthombeni impressed the Cou rt as a good witness and there is nothing
to cast doubt on her veracity concerning the lobola negotiations and subsequent
events. Her evidence was credible and free form contradictions and
discrepancies concerning the details. There are also no inherent improbabilities
in her evidence. Her evidence was not seriously contested during cross -
examination. Her evidence was corroborated by the evidence of Peter
Mthombeni on all material aspects.

45. Pieter Mthombeni also made a favourable impression on the Court. In my view
he was a truthful and reliable witness. He did not contradict himself in any
material way. His evidence was not seriously contested during cross -
examination. His evidence was also corroborated by the evidence of Granny
Mthombeni on all material aspects.

46. There were certain facts of the defendant’s version that were not put to the
plaintiff during cross -examination. In my view all the material aspects of the
defendant’s version were put to the plaintiff and Mr Ramokgopa during cross -
examination. The court must also take in consideration that the version of the
plaintiff was not put to the Mthombeni’s during cross -examination.

47. It is trite that the purpose of cross -examination is to challenge the evidence of a
witness and the failure to do so may affect the findings of the court on that
specific issue.

48. If a point in dispute is left unchallenged a witness’s testimony is accepted as
correct.5

49. It was submitted by the plaintiff’s counsel that the plaintiff and her uncle were
candid, made reasonable concessions, remained calm and were able to provide
reasonable and acceptable explanations and responses. Their versions
accorded with one another in material respects.

50. On a preponderance of probabilities, I am not persuaded that the version of the
plaintiff is true and accurate and that the defendant’s version is false. In my view
the balance of probabilities does not favour the plaintiff.

Customary marriages

51. In terms of section 2(1) of the Recognition of Customary Marriages Act, Act 120
of 1998 (hereinafter referred to as “the Act”), the provisions of the Act apply to all
valid customary marriages which existed at the time of commencement of the
Act.

52. The Act was assented to on 20 November 1998 and came into operation on 15
November 2000.

5 RSA v South African Rugby and Football Union 2000 (1) SA (CC) at para 61 -65

Section 2(1) of the Act provides that:
“2(1) A marriage which is a valid marriage at customary law and existing at the
commencement of this Act is for all purposes reckoned as a marriage.”

53. The requirements for a valid customary marriage are set out in section 3 of the
Act as follows:
“3. Requirements for validity of customary marriages:
(1) For a customary marriage entered into after 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.”

54. According to Prof Bakker’s expert report, the essential requirements for the
conclusion of a valid customary marriage are similar in all tribal groups within
South - Africa.

55. The plaintiff is required to prove, on a balance of probabilities, that the
requirements for a valid customary marriage has been met.

56. It was argued by counsel for the plaintiff that the process of consent commences
with the negotiation of lobola . An agreement to pay lobola is sufficient and as
such, it becomes clear that the parties intend to be married in terms of customary
law. It was further submitted that the plaintiff has proven that the parties
concluded a valid and binding customary marriage and that the plea of the
defendant stands to be dismissed with costs.

57. Having accepted the version of the defendant and his witnesses, I conclude that
the plaintiff has failed to prove the requirements of a valid customary marriage.

58. In the result, the action is dismissed with costs, which costs are to be taxed in
accordance with scale B.

JJ STRIJDOM
JUDGE OF THE HIGH COURT OF
SOUTH -AFRICA , GAUTENG DIVISION,
PRETORIA

APPEARANCES:
For the applicant: Adv JB Them ane
Instructed by: Abrams Madira Inc Attorney
For the Respondent: Adv Z Marx Du Plessis
Instructed by: Shapiro & Ledwaba Inc Attorneys