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[2024] ZAECMHC 91
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Ntshiba v Moshoeshoe and Others (2469/2023) [2024] ZAECMHC 91 (26 November 2024)
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Certain
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION,
MTHATHA)
CASE NO: 2469/2023
In the matter between:
PHINDIWE
PATIENCE NTSHIBA
Applicant
And
TSIDISO
TRUTH MOSHOESHOE
1
st
Respondent
TOKA
JOSEPH RAMOTSO MOSHOESHOE
2
nd
Respondent
KARABO
TEBOHO ISAIAH RAMOTSO
MOSHOESHOE
3
rd
Respondent
VIVIAN
THABANG PALESA MOSHOESHOE
4
th
Respondent
MINISTER
OF HOME
AFFAIRS
5
th
Respondent
JUDGMENT
KUNJU
AJ:
A.
Introduction
[1]
Sometimes the death of a person does not only bring about sorrow,
agony and grief. It also brings about
disputes and acrimony. The
latter features are dominant in this case.
[2]
The applicant alleges that on 10 January 2015 at
Tyeni Administrative Area, Tsolo (Tyeni), she got married
in
accordance with the customary rites observed and applied by the Bhele
Clan based in Tyeni.
[3]
Due to a dispute mounted by the respondents about the existence of
such customary marriage, the applicant
relying on the provisions of
the Recognition of Customary Marriages Act No. 120 of 1998 (the Act)
has resorted to this Court, seeking
in essence, a declarator that a
marriage between her and the deceased Mr Hlalefo Samuel Peka Romotso
Moshoeshoe (the deceased)
existed. She also seeks for an order
directing the Department of Home Affairs to register such marriage,
if found to exist.
[4]
All the respondents have opposed the application. The first to the
fourth to respondents have delivered opposing
affidavits in support
of their opposition. Though the fifth respondent has filed a notice
to oppose, no opposing affidavit was
delivered on his behalf. There
was equally no appearance on his behalf when the matter was argued
before me. For full appreciation
of the dispute between the parties
and in order to identify the areas where the horns are locked, the
background facts are necessary.
It is where I now turn.
B.
Background facts
[5]
The applicant is a South African citizen currently residing at Tyeni
Administrative
Area, Tsolo. She met the deceased who was a Sotho
National. From the papers, it does not appear when exactly did the
applicant
and the deceased meet. What is alleged and not disputed is
that during year 2010, the deceased and the applicant fell in love.
They stayed at Bhongweni location in Mthatha until separated by death
on 3 July 2021.
[6]
The focal point of the dispute now that the deceased is no more is
whether they were married or
not before his demise. Given the minimal
facts in dispute one would crystallise the question requiring
resolution as follows: it
is whether or not on 10 January 2015 the
applicant and the deceased got married within the meaning of the Act.
[7]
The respondents who have answered the question in the negative are
all the children of the
deceased. Ironically and paradoxically Ms
Caroline Ramatos, Rampetsi Ramotso and Harris Silikane Ramotso –
all being the
siblings of the deceased have raised their hands and
answered the question of the existence of the marriage in favour of
the applicant.
In support of the application and harmonious voice
they have confirmed that the marriage was: (i) a customary marriage;
(ii) concluded
in Tyeni Administrative Area, Tsolo, (iii) it was
concluded during year 2015 and (iv) it was between the applicant and
the deceased.
The respondents do not agree.
[8]
It is these divergent and opposing views which have culminated in the
applicant seeking
for an order summarised in paragraph 3 above. It is
necessary to set out the versions of both the applicant and the
respondents.
I hasten to do so.
C.
The applicant’s version and contentions
[9]
The applicant in pertinent parts at paragraphs 1, 2 and 6 of the
founding affidavit has
made the following allegations to
which there was no response by the respondents, namely:
“
(i) I
am an adult female person and
the
surviving spouse of the late Hlalefo Samuel Peka Ramotso Moshoeshoe
…
(ii) I
am the applicant in these proceedings and suing the respondents in my
capacity
as the customary surviving spouse of the late
Hlalefo Samuel Peka Ramotso Moshoeshoe with ID No. 5[…] who
died intestate
on the 3
rd
day
of July 2021
”
(
underlining is mine)
[10]
I have underlined certain areas in the quotation made above to
underscore a point that on numerous occasions
the applicant in her
founding affidavit has made allegations that she is the surviving
spouse of the deceased in a marriage that
was consummated in
accordance with customary laws. The quoted paragraphs as said above
are simply not disputed by the respondents.
[11]
The applicant contends that after they fell in love with the
deceased, more particularly during December 2014,
the deceased and a
certain Mr Mziwabantu Mbana (Mr Mbana) had visited her homestead
situated in Tyeni to meet up with her family
so as to set up a lobola
negotiation date. There in Tyeni they met up with Mr Farrington
Ntsikelelo Ntshiba, the elder brother
of the applicant. On this very
same day after the intention was conveyed to the applicant, she
alleges that she agreed to marry
the deceased.
[12]
In order to actualise, conclude and perfect the agreement and in
keeping with the rituals and customs
of the Bhele clan, a date was
set for lobola and customary marriage negotiations. The date agreed
upon was 10 January 2015.
[13]
The applicant states in paragraph 25 of the founding affidavit that
on 15 January 2015 (the marriage
date) she married the deceased in
terms of the customary rites and that their marriage was negotiated,
entered into and celebrated
in terms of the customs and traditions of
the Ntshiba family, the amaBhele Clan.
[14]
She narrates the events and steps which led to the conclusion of the
marriage on the date as follows
:
[14.1]
The emissaries (Oonozakuzaku) of both families had met. The
emissaries for the prospective groom were:
(i)
the deceased; and
(ii)
Mr Mbana.
[14.2]
For the prospective bride, the emissaries were:
(i)
Mr Ntsikelelo Ntshiba;
(ii)
Mr Phakamisa Ntshiba;
(iii)
Mr Mcekeleli Ntshiba;
(iv)
Mr Mthunzi Ntshiba;
(v)
Mr Mayenzeke Ntshiba; and
(vi)
Mr Mawethu Ntshiba.
[14.2] The
lobola payment agreed upon comprised the following:
(i)
isazimzi;
(ii)
uswazi;
(iii)
ihambidlani; and
(iv)
ikhazi.
[14.3]
The lobola payments made towards the above aspects were agreed as
follows:
(i)
isazimzi :
bottle
of brandy
(ii)
uswazi :
bottle
of brandy
(iii)
ihambidlani : bottle of brandy
(iv)
ikhazi :
10 beasts
[14.4] There
were further payments discussed and effected in respect of other
aspects of lobola, namely:
(i)
Icuba lomama
– R500,00
(ii)
Icuba loodad’bawo –
R500,00
(iii)
Iswiti zeentombi
–
R400,00
(iv)
Iswiti zabantwana –
R200,00
(v)
Iswiti zoomakoti
– R500,00
[14.5]
A sheep was also slaughtered in so doing acknowledging and
symbolising the conclusion of lobola agreement
and ukwendiselana. She
says it also symbolised integration between the two families. Her
brother Ntsikelelo officially released
her to the groom’s
family and it turn the groom’s family welcomed her.
[14.6]
As a token of appreciation and acceptance of the marriage
relationship between the two families,
her family handed over the
portion of the slaughtered sheep to the groom’s family. She
alleges the above constituted a conclusion
of a customary marriage in
their clan.
[15]
The applicant’s version has also the following features which
will be mentioned below in an adumbrated way,
namely:
[15.1] during
2016 her and the deceased had visited his rural homestead, Mathokoane
Village, Leribe district in Lesotho.
There she was welcomed by the
deceased siblings including those mentioned in paragraph 7 above.
[15.2]
She is the one who looked after the deceased when his health had
started failing him during year
2021. She mentioned that the deceased
was diagnosed with a liver cancer. She would accompany him to and
from the Doctors in Mthatha
during the period his health was failing
him until his demise.
[15.3]
On 16 June 2021 she states that the deceased liver cancer complicated
and she took him to a Doctor who
decided to admit him on 17 June
2021. He got admitted at Nelson Mandela Academic Hospital until he
succumbed to death on 3 July
2021.
[15.4]
She attended to report his death at the offices of the Department of
Home Affairs and ultimately
a death certificate was issued. She
states that the first respondent tricked her in handing over the
death certificate to him with
the result that he ran away with some
documents of the deceased. Some of those documents included his
identity document, death
certificate and bank cards. He further
surreptitiously
and nicodemously transported away the mortal remains of the deceased
to Lesotho.
[15.5]
She nonetheless forged ahead with funeral preparations. As a result
on 17 July 2021 the deceased mortal
remains were buried at his home
village and she was also present at the funeral service.
[15.6]
She states that in the obituary of the deceased that was prepared by
the deceased family she was acknowledged
and identified as the wife
of the deceased. Indeed the last paragraph of the obituary attached
to the founding affidavit marked
“
NP5
” reads in
relevant parts :
“
He married to
Phindiwe
Ntshiba
with
whom he spent his remaining days. He is leaving behind
his
loving wife
,
children and grandchildren
”
[15.7]
As adverted to above in fortifying her contentions that she was
married to the deceased she attached
some affidavits prepared by the
siblings of the deceased, the affidavit of a local headman Mr Ntuli
and that of Mr Mbana, one of
the emissaries.
[16]
The above are aspects of his evidence that in my view carry more
weight in her quest to show
that her and the deceased were indeed
married. I will not mention her other contentions which seek to show
how strong their love
relationship or bond was given that the
application is less about it but more about the existence or
otherwise of their marriage.
[17]
The above constitutes important and significant features of her
evidence.
D.
Respondents’ version and contentions
[18]
The answering affidavit is deposed to by the first respondent. He
states that he is the first born
and the biological son of the
deceased. He has noted or admitted paragraphs 6 to 13 of the founding
affidavit. As sounded above,
there is simply no proper response to
paragraphs 1 to 5 of the founding affidavit.
[19]
Paragraph 9 of the answering affidavit appears to contest the
validity of the marriage.
There in relevant parts it is said:
“…
It
is denied that there was ever a valid customary marriage between the
applicant and the deceased, Hlalefo Samuel Peka Ramotso
Moshoeshoe
(hereinafter referred to as late Moshoeshoe) in accordance with
Recognition of Customary Marriages Act 120 of 1998
”
[20]
Also, paragraph 11.1 of the answering affidavit appears to suggest
that the marriage was concluded
in Lesotho. There the deponent says:
“
11.1
There was never any customary marriage at Lesotho where the late
Moshoeshoe was domiciled”.
[21]
In essence, a benevolent reading suggests that the contestation is:
the deceased would never
have married customarily unless such
marriage was consummated in accordance with Lesotho customs and
traditions.
[22]
In paragraph 18 of the answering, though not sharply raised as one
would expect in motion proceedings, it
appears that the contestation
is that the family of the deceased was excluded in the marriage
negotiations. Thus, one infers that
the contention is that the
marriage is invalid on that score as well. The paragraph simply
reads:
“
18
The contents of this paragraphs is denied. There could be no official
customary negotiations excluding the
deceased family”.
[23]
In advancing their contention in paragraph 20 of the answering
affidavit the deponent states:
“
20 The
purported marriage is null and void as it had nothing to do with our
customary law, tradition and custom.
And now the applicant wants a
share in deceased estate which is not (sic) entitled to in law”.
[24]
In paragraph 21.1 and in a more focused way he says:
“
21.1
There were no representatives from the Moshoshoe family that were
sent as Oonazakuzaku (“family representatives”)
Mr
Mziwabantu Mbana is not Moshoeshoe nor representative of Moshoeshoe
and cannot say he was sent by the Moshoeshoe in accordance
with our
customs, rituals and customary rites”.
[25]
To summarise the respondents’ version: according to them they
were not represented during
lobola negotiations when the rituals were
performed or when the marriage was concluded. He contends that the
rituals performed
were not those of their family. They allege that
marriage is invalid. In paragraph 24 of the answering affidavit he
narrates steps
and or rituals which would have been performed in
terms of the Lesotho custom and which traditions or steps would have
produced
a valid customary marriage. Given that such rituals and
customs were not preformed and that the applicant does not rely on
the
improper performance of such rituals for the validity of her
marriage, I will not enumerate the said rituals nor discuss them in
any detail. It is common cause that the applicant got married in
accordance with the customary laws applicable to the Bhele clan.
[26]
Curiously, in paragraph 25.5, the deponent contends that:
“…
the
South African law informs that the domicile of the husband determines
which law will be followed in such matters
”.
[27]
The above contention is confusing though – but having read the
entire affidavit and attempted
to make sense out of it, what is
contended for is that for the Lesotho customary marriage to exist,
the laws of the husbands are
applied. That is probably the law in
Lesotho. The applicant relies for the existence of her marriage on
the South African laws.
The deceased and the applicant married
in accordance with the South African laws. Whether such marriage is
valid or not is
a matter for determination in this application.
[28]
There are limited allegations which seek to refute or contest those
of the applicant. For instance,
he alleges that the applicant should
instead attach marriage certificate not the photos depicting the
applicant and the deceased
in a cosy love relationship. She also
states that the hospital did not release the mortal remains of the
deceased to her because
she could not produce proof that the she was
related to the deceased.
[29]
Other than general statement that the marriage between the deceased
and the applicant is invalid,
the respondents in their affidavit have
not pertinently answered the question, whether what was concluded on
10 January 2015 in
Tyeni, Tsolo, amounted to a customary marriage or
not. Nor have they explained who the wife of the deceased is, who has
survived
him – as reflected in the obituary.
[30]
The upshot and the high-water mark of the Respondents’ version
is that:
[30.1]
to the extent that the Sotho customary marriage rituals were not
followed or observed there cannot be a
valid customary marriage
between the applicant and the deceased;
[20.2]
secondly, to the extent that the family of the deceased was not
represented by his close family members
the marriage consummated
cannot be a valid customary marriage between the deceased and
applicant.
.
E.
Issues for determination
[31]
The issues which have fallen for determination in this application
are:
[31.1] whether the
application meets the requirements for the validity of a customary
marriage as envisaged in
section 3
of the
Recognition of Customary
Marriages Act 120 of 1998
;
[31.2] whether the
absence of the deceased close relatives during the negotiations and
consummation of a customary marriage invalidates
such a marriage; and
[31.3] whether the
consummation of a customary marriage in accordance with the rituals
of the bride’s family renders such
marriage invalid.
F.
The legal framework and discussion
[32]
Section 3
(1) of the
Recognition of Customary Marriages Act provides
:
“
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.
(b)
The
marriage must be negotiated and entered into or cerebrated in
accordance with customary law”.
[33]
In this case, it must be noted that the applicant and the deceased at
the time the negotiations
ensued, they were both old enough to
consent to a marriage relationship. As at January 2015 the deceased
was 60 years of age whereas
the applicant was 52 years of age. Their
ages in my view are important in the assessment of this application.
That said, the requirements
of the Act in so far the age is concerned
is not controversial in this application. In any event, I hold a view
that the older
the couple the lesser this requirement should detain
this Court.
[34]
There is no contestation that the applicant and the deceased
consented to marry to each other
under customary law.
[35]
Section 3 (1) (b) of the Act requires that the marriage must be
negotiated and entered into or
celebrated in accordance with
customary law.
[36]
It would seem that the only provision of the Act targeted by the
respondents is section 3 (1)(b).
In broad terms, the issue that is
raised by the respondents in this connection is whether a customary
marriage concluded in accordance
with the bride’s customs and
rituals is valid or not. It being their contention that the marriage
in issue is invalid to
the extent that it was not concluded in
accordance with the groom’s rituals and traditions.
[37]
The work of Professor Bekker –
JC Bekker Seymour’s
customary law in Southern Africa Juta (1989) at 113 – 114
–
argues that amongst the
Sotho – Tswana people
, the
wedding is celebrated
at the bride’s family home
, where
the lobola negotiations take place. I find no fault with the
observation made by Professor Bekker. I embrace it and informed
by
some judgments I have gone through which engage the provisions of
Section 3 of the Act.
[38]
A customary marriage is defined in Section 1 of the Recognition Act
as a marriage concluded in
accordance with
customary law
. In
turn customary law is defined as
the custom and usages
traditionally observed among the indigenous African people of South
Africa and which form part of the culture
of those people
(Mayelane v Ngwenyama & Another
2013 (4) SA 415
CC –
para 27).
[39]
As I understand it, the applicant and the deceased decided to follow
the Bhele Clan customs and
traditions in concluding their customary
marriage. It is not the contention of the respondents that the
rituals of the Bhele clan
were not followed or complied with when the
marriage took place. As stated in this judgment, the respondents’
contention
is that if the marriage was not concluded in accordance
with the Sotho traditions, then to them it is not a marriage at all.
I
conclude that the marriage was negotiated, concluded or celebrated
in accordance with customary law of the Bhele clan. I reach this
conclusion because there is no countervailing evidence that it was
not concluded in accordance with the rituals of the Bhele clan.
[40]
The uncontested allegation of the applicant is that she met the
deceased during year 2010, they
fell in love and they stayed together
since then at Bhongweni Location, Mthatha, Eastern Cape. This means
that even before they
got married on 10 January 2015, they had stayed
for five years. The case of
Tsambo v Sengadi (244/19)
(2020) ZASCA
46
(30 April 2020) observed
as follows regarding presumption of
marriage in a long-term cohabitation:
“
[27] ... I am
fortified in this view by Professor Bennet’s argument with
regards to the handing over requirement.
He
argued that the parties’ intention could be inferred from
cohabitation. According to him, where the parties were cohabiting,
the gravamen of the enquiry was the attitude of the woman’s
guardian. If the guardian did not object to the relationship,
a
marriage would be presumed, irrespective of where the matrimonial
home happened to be or how the ‘spouses’ came to
be
living there. Professor Bennett placed reliance on a case in which
the Court had remarked that “long cohabitation raises
a strong
suspicion of marriage, especially when the woman’s father has
taken no steps indicating that he does not so regard
it”. In
this matter, the respondent averred that her mother had not
instituted any action for seduction or demanded payment
of a fine,
well knowing that the respondent cohabited with the deceased. She
accepted that the respondent and the deceased had
entered into a
valid customary marriage
”
.
[41]
The applicant and the deceased chose for themselves the customs and
rituals through which they
wanted to conclude their marriage. I find
the argument that negates that choice untenable.
Maya P
- as
she then was in
Mbungela and Another v Mkabi and Others
2020 (1)
SA 41
SCA
paragraph 27 – observed thus:
“
[27] The
importance of the observance of traditional customs and usages that
constitute and define the provenance of African culture
cannot be
understated. Neither can the value of the custom of bridal transfer
be denied. But it must also be recognised that an
inflexible rule
that there is no valid customary marriage if just this one ritual has
not been observed, even if the other requirements
of s 3(1) of the
Act, especially spousal consent, have been met, in circumstances such
as the present ones, could yield untenable
results”.
[42]
I find that the marriage that was negotiated got to be entered into
and celebrated on 10 January
2015 and at the instance of the deceased
who was old enough to make decisions for himself.
[43]
In the context of this case the observation by
Tokota J
in
Fezile Mlamla v Nomathamsanqa Rubushe
is apt. He said:
“
[36] Where
there is an agreement, at the lobola negotiation stage, for the
acceptance of the proposed customary marriage, a contract
of marriage
relationship is entered into between the two families. In some
communities this is signified by the slaughtering of
lamb to welcome
the new – in – laws (abakhozi) after a certain number of
lobola cattle agreed upon have been delivered
or in the case of money
after a certain amount of money has been paid. The celebration
thereof is optional. In any event the slaughtering
of utsiki lamb at
the bridegroom’s homestead is in itself a celebration of the
marriage. In this way the requirements of
section 3(1)(b) of the Act
are satisfied”.
[44]
The deceased was present when his marriage was negotiated and entered
into. He chose to be accompanied
by Mr Mbana. Mr Mbana has indeed
filed a confirmatory affidavit. I see no reason in principle why the
Bhele traditions and customs
would not be applicable in this matter.
All that the Act requires is that the marriage must be negotiated and
entered into or celebrated
in accordance with customary law. If the
Act intended to say that the customary law or rituals should be those
of the prospective
groom’s family, the Act would have said so
in no uncertain terms. The applicant’s family could not and did
not have
any say on who was eligible or not eligible to represent the
deceased family during the negotiations. In the eyes of the
applicant’s
family, the deceased family was represented.
Significantly, the deceased formed part of delegation during the
entire process.
[45]
I hold a view that in majority of communities – the rituals
that would guide the negotiations
and conclusions of customary
marriage are likely to be those of the bride. I say so because the
groom’s family would ordinarily
visit that family in order to
ask for a prospective wife – they visit the bride’s
family with hat in hand. I am unable
to think that they would dictate
how that particular community or tribe should go about negotiating
and concluding the marriage
or lobola negotiations. It is for this
reason it does not come as a surprise to me that during the lobola
negotiations marriage
comes into existence in certain circumstances.
I observe that whatever else that takes place at the groom’s
home can sometimes
amount to a celebration of a marriage concluded at
the bride’s family home.
[46]
I have observed in this case that some of the siblings of the
deceased have supported the case
of the applicant that she was
married to the deceased. Also, the obituary prepared by the family of
the deceased confirms the case
of the applicant. The denial of this
marriage to me is simply a bare denial.
[47]
I am satisfied that the applicant has made out a case for the
principal relief that is sought
in the notice of motion. I have no
hesitation to issue the order as sought relative thereto.
G.
Costs
[48]
During argument when I engaged the legal representatives of the
parties about the applicable
scale of costs, they requested to file
supplementary heads of argument. The parties appeared oblivious of
the provisions of rule
67 A of the Uniform rules of Court, hence the
application for the filing of the supplementary heads of argument. I
agreed to the
request.
[49]
I subsequently received the heads of argument. I am of the view that
the punitive costs order
sought by the applicant is not appropriate.
The points raised by the respondents appeared to be genuinely and
honestly held though
destitute of merit.
[50]
I have also considered whether the matter involves complex issues. I
do not think that the issues
argued were complex. The opposing
affidavit does not raise any serious or complex issue. As
pointed out above, it is replete
with bare denials.
[51]
For the above reasons, I believe that scale A is appropriate.
H.
Order
[52]
In these circumstances, an order in the following terms shall issue:
(a)
That the customary marriage consummated between the applicant with
identity
number
6[…]
and the late
Mr Hlalefo Samuel
Peka Ramotso Moshoeshoe
with identity number
5[…]
on 10 January 2015 is valid.
(b)
That the fifth respondent is directed to register and endorse in its
records
the customary marriage between the applicant and late
Mr
Hlalefo Samuel Peka Ramotso Moshoshoe
within ten (10) days from
the date of service of this order.
(c)
That the fifth respondent is directed to issue the applicant with a
marriage
registration certificate within five (5) days from the date
of registration.
(d)
With the exclusion of the fifth respondent, the rest of the
respondents
are liable for the costs of this application jointly and
severally one paying the other to be absolved from liability and such
costs shall be taxed under scale A.
V.
KUNJU
ACTING JUDGE OF THE HIGH
COURT
Appearances
Attorney
for the Applicant :
Mr Malala
Instructed
by
:
MVUZO NOTYESI INC
.
Old
TH Madala Chambers
14
Durham Street
MTHATHA
Attorney
for the 1
st
to
4
th
Respondents
:
Mr Gaba
Instructed
by
:
L. JIKELA ATTORNEYS
15
Cumberland Street
MTHATHA
Heard
:
23 May 2024
Further heads of argument
:
received on 3 October 2024
Delivered
:
26 November 2024