2 Customary marriage – alleged in validity to be specifically rai sed in plea – issue
of validity of customary marriage to be raised in plea by way of a confession and
avoidance – impermissible for RAF to generally deny existence of customary marriage
in plea and then rely on alleged invalidity of marriage during trial – RAF in any event
failing to lead evidence in support of alleged invalidity .
Agreement to support as alternative basis for duty to support – on the assumption
that the customary marriage was invalid due to the existence of a prior civil marriage ,
plainti ff’s alternative argument that the facts demonstrate a binding agreement to
support as basis for a duty to support upheld .
HEADNOTE / KOPSTUK
In this action the plaintiff is claiming compensation from the RAF for loss of support ,
as a result of the death o f her husband , who died as a result of injuries sustained in a
motor vehicle collision. The plaintiff’s case was that she was married to the deceased
by way of customary marriage. The RAF generally denied the existence of the
customary marriage, and the al leged duty of support.
The plaintiff testified that she met the deceased in 2007 and that they started to
cohabitate i n August 2007 . The deceased, who was to be ordained as a priest in the
church, informed the plaintiff that he was divorced from the mother of his children, a
fact which she accepted. In terms of custom, they could not be introduced to their
respective parents before lobolo had been negotiated and paid by the deceased. In
2010 , after lobolo had been negotiated and paid, the customary marriage between
them was celebrated at the plaintiff’s parent’s home and thereafter the plaintiff was
also welcomed into the deceased’s family home.
The deceased passed away in 2011 after the motor vehicl e accident . At the funeral,
the plaintiff was allowed to sit on the traditional widows’ mattress , which signified the
deceased’s acceptance of the plaintiff as the deceased’s widow . The deceased’s
previous wife also attended the funeral but was not allowed to sit on the mattress .
During the trial the RAF did not dispute the fact that a customary marriage was
concluded but put to the plaintiff that at the time of the customary marriage a civil
marriage between the deceased and his previous wife was extant, w ithout putting to
3 the plaintiff that any specific defence was raised on that basis. Subsequently the RAF
sought to argue that the customary marriage was invalid in terms of the Civil Union
Act, 2006 due to the alleged existence of a prior civil marriage . However, the RAF led
no evidence in support of its allegation that a civil marriage was in existence at the
time of the conclusion of the customary marriage.
Held , that on the plaintiff’s undisputed evidence a customary marriage was entered
into between the plaintiff and the deceased in accordance with section 3 of the
Recognition of Customary Marriages Act , 1998 .
Held , that if the RAF wished to raise the invalidity of the customary marriage as a
defence, it was obliged to plead a confession and avoidance and plead the facts on
which the alleged invalidity was based . The RAF’s approach during the cross -
examination of the plaintiff to allege the existence of a prior civil marriage without
having pleaded it, and without expressly putting to the plaintiff what the nature of the
defence was, was impermissible. The relationship between the deceased and his
previous wife commenced, and was potentially terminated, prior to the Recognition of
Customary Marriages Act, 1 998 and the Civil Union Act, 2006, and the continued
existence of such marriage is a complicated issue that cannot be dealt with in the
haphazard manner the RAF attempted to do.
Held , that the RAF in any event failed to adduce any evidence of the existence of a
prior civil marriage at the time the customary marriage was entered into between the
plaintiff and the deceased.
Held , on the assumption that the customary marriage was invalid due to the existence
of a prior civil marriage, plaintiff’ s alternative argument that the facts demonstrate a
binding agreement to support as basis for a duty to support must be upheld. The
plaintiff’s undisputed evidence support s the contention that even if the customary
marriage was invalid, the deceased in an y event undertook to support the plaintiff by
purporting to enter into a customary marriage with her (after informing the plaintiff that
he was divorced) , and in fact supporting her until his death.
Held , as to the question whether the boni mores dictate t hat the agreement to support
was invalid, e vidence elicited during cross -examination revealed that the deceased’s
family was under the impression that the previous marriage was di ssolved by divorce,
4 that there was no relationship between the deceased and his previous wife for about
20 years and the deceased’s sister in raised the two children born from the previous
marriage. Assuming the marriage to be invalid, the plaintiff was entirely bona fide in
enter ing into what she evidently believed to be a valid customary marriage. The
respective families regarded the parties as married. There was no moral turpitude on
the part of the plaintiff and the boni mores do not require the support agreement to be
invalid.
ORDER
(1) It is declared that the defendant is liable to the plaintiff for the loss of support
caused by the death of Samuel Mbhazima Chauke as a result of a motor
vehicle accident that occurred on 5 February 2011 ;
(2) The defendant is ordered to pay the plaintiff’s costs in respect of the trial
relating to the issue of loss of support , with the cost of counsel to be on
Scale B ; and
(3) The matter is postponed sine die in respect of the quantum of the plaintiff’s
claim for l oss of support.
5
JUDGMENT
D MARAIS AJ
The plaintiff’s claim for loss of support
[1] The plaintiff, Ms Catherine Maria Letaoana, instituted action against the
defendant, the Road Accident Fund , for compensation in terms of the Road
Accident Fund Act, Act 55 of 1996, in respect of past and future loss of support,
and funeral expenses.
[2] The claim arises from the death of Samuel Mb hazima Chauke (“the deceased”)
as a result of a motor vehicle collision that occurred on 5 February 20 11. The
plaintiff’s claim for loss of support is based on the allegation that she was married
to the deceased by customary law , and that she suffered loss of support , and
incurred funeral expenses , as a result of his death .
[3] By the time this matter was hear d during October 2024, it had been agreed
between the parties that the defendant was in principle liable as a result of the
motor vehicle in question, but it remained in dispute whether the plaintiff was
entitled to claim for loss of support.
The defendant’s plea in relation to the claim for loss of support
[4] In its plea, the defendant raised a “special plea” in relation to the plaintiff’s
allegation that she was the surviving spouse of the deceased, by alleging that
the plaintiff failed to provide t he defendant with documentary proof, proving that
the plaintiff was indeed married to the deceased. The defendant also alleged that
the plaintiff failed to provide the defendant with proof of the existence of a legal
duty resting on the deceased to support the plaintiff and/or that a relationship
existed between the plaintiff and the deceased which gave rise to a claim for loss
6 of support. The defendant proceeded to state that in the absence of such proof,
the plaintiff lacked capacity to institute legal proceedings in her personal
capacity. This purported defence ostensibly related to the validity of the claim
that was submitted by the plaintiff prior to the institution of the action , but the
basis of this special defence was not revealed. However, the defe ndant did not
persist with this special plea.
[5] In the defendant’s main plea, the defendant generally denied the plaintiff’s
allegation in respect of her relationship with the deceased and put the plaintiff to
the proof thereof.
[6] At the commencement of the tr ial, the parties also agreed to separate the
question whether the defendant is liable to the plaintiff in respect of loss of
support from the question regarding the quantum of such claim. As a result , the
court granted an order separating these issues.
[7] Consequently, on the pleadings the dispute between the parties hinge d solely on
the question whether a customary marriage existed between the plaintiff and the
deceased. At the commencement of the trial, the parties indeed informed the
court that the existenc e of the marriage was the issue in dispute.
The plaintiff’s evidence in support of the claim for loss of support
[8] The only witness who testified in this trial was the plaintiff.
[9] The plaintiff, a dignified and well -spoken lady was, at the time of the trial, 60
years of age , and gave evidence in a credible manner. She finished matric in
1984 and thereafter completed diplomas both in business management and
human resources management. She was employed from 1985 to 2004 by a well-
known firm of attorneys in Johannesburg as a Human Resources Consultant.
She resigned to start a restaurant business with two other persons, which was
eventually sold. Thereafter, she was not employed again as she found it difficult
to find employment under circumstances where employers preferred to appoint
younger persons in positions she applied for. The issue was that she was
regarded as too experienced/qualified for the relevant positions.
7 [10] The plaintiff testified that she met the deceased in 200 7 at church. In August
2007 they decided to cohabitate . After the plaintiff and the deceased met , the
deceased introduced the plaintiff to his sisters and cousins but, in accordance
with Tsonga tradition, the deceased could only introduce the plaintiff to his
mother after the deceased had paid lobola . Similarly, the deceased could not
enter the plaintiff’s parental residence in accordance with Tswana custom. He
could only enter after the lobola negotiations were concluded and after payment
of lobolo.
[11] The plaintiff testified that on 27 March 2010 they celebrated the marriage at her
parents’ house . She went to the deceased’s family’s household in Malamulele
during May 2010, and was welcomed into his family by his family members. At
the decease d’s funeral aft er the accident in 2011, the plaintiff was requested and
allowed by the deceased’s family to “sit on the mattress”. This is in the context of
the Tsonga tradition in terms of which the widow (s) of a deceased sits on a grass
mat (or in modern times a mattre ss) until and / or at his funeral .
[12] The deceased was employed, and earned a net amount of R11,000 per month ,
which he used to support himself and the plaintiff, and provided some cash to his
mother. The deceased was maintaining the common home. Although the plaintiff
through a side hustle erratically made a little bit of money, she was constrained
by a lack of money to properly conduct a business. T he deceased was the
breadwinner in the house . She had nobody else but the deceased to support her.
[13] The plaintiff met the deceased’s children, two sons, in December 2010. At that
time, they were approximately 19 and 22 years of age. She testified that the re
was no relationship between the deceased and his two sons and that they did
not communicate with each other. The deceased was apparently strict and did
not like the way his sons were behaving. On Boxing Day in 2010 they
communicated through the plaintiff to the deceased that they needed some
money, as they were scared of him. The eldest son, Thembani, was present
during the wedding celebrations on 27 March 2010.
[14] During cross -examination, defendant asked the plaintiff whether the deceased
mentioned his son’s mother. In response , the plaintiff testified that she asked the
8 deceased about his sons ’ mother and t hat the deceased informed her that he
was divorced from her. The plaintiff trusted the deceased as he was a pastor in
the Miracle Gospel Church in Rustenburg. He was ordained as such during 2008.
Under cross -examination she testified that she did not ask w hen they were
divorced.
[15] When the deceased was in hospital after the accident, the plaintiff received a
telephone call from the hospital . She was informed by the hospital that one
Mmaseporo Flora Manganyi telephoned the hospital . A hospital clerk put the
plaintiff on a speaker , and she was able to speak to Ms Manganyi . Ms Manganyi
turned out to be the deceased’s former wife. The gist of this conversation was
that Ms Manganyi was only interested in money . The inference can be drawn
that Ms Manganyi was informed or assumed at that time that the deceased was
going to die due to his injuries. Earlier Ms Manganyi allegedly made a comment
to the hospital clerk that the plaintiff was there just for the money.
[16] Ms Manganyi was at the graveyard during the deceased’s funeral, but the plaintiff
did not meet her personally at that point in time. Evidently not being recognised
as the deceased’s widow, s he did not sit on the mattress in accordance with the
tradition.
[17] The defendant elic ited during cross -examination that t he plaintiff was informed
by her sister -in-law that the deceased and Ms Manganyi were married a long
time ago and that Ms Manganyi had been gone for 19 years. She also said that
she (the sister -in-law) raised the deceased’s sons. The deceased’s uncle
similarly said that they all (the deceased’s family) thought the deceased was
divorced.
[18] Subsequently, the deceased’s employer telephoned the plaintiff and informed
her that she was a beneficiary of certain policies held by the deceased. The
plaintiff met Ms Manganyi at the employer’s premises. The deceased ’s employer
made a decision to pay 60% of the policy to the plaintiff and 40% to Ms Manganyi .
The plaintiff requested that 5% be paid to the deceased’s mother.
[19] The plaintiff testified that she remarried on 11 March 2024 by way of a civil union
and that she and her elderly husband are now surviving on government grants.
9 Did the plaintiff’s evidence support the conclusion of a customary marriage and
a duty to support?
[20] The plaintiff’s evidence that she and dec eased decided to cohabitate, that there
were lobolo negotiations, that the deceased had paid lobolo, that the deceased
was accepted into the plaintiff’s parental home after payment of lobolo, that the
marriage was celebrated at the plaintiff’s parental hom e, that the plaintiff was
also accepted into the deceased’s family and that the plaintiff sat on the
traditional widows’ mattress before and during the deceased’s funeral (to the
exclusion of Ms Manganyi) was uncontroverted.
[21] During the trial the defendant did not dispute the fact that a customary marriage
had been concluded between the plaintiff and the deceased.
[22] Consequently, I have no hesitation in finding that a customary marriage
complying with the requirements of section 3 of the Recognition
of Customary Marriages Act 120 of 1998 (RCMA) had been concluded.
[23] Non-registration of a customary marriage does not invalidate such marriage in
terms of the RCMA.
[24] That should be the end of the matter and a finding in favour of the plaintiff should
be made.
The impermissible line of defence adopted by the defendant during cross -
examination.
[25] During cross -examination the defendant put it to the plaintiff that the deceased
was previously married by way of a civil marriage. To this the plaintiff responded
by testifying that in the deceased’s death certificate ( evidently issued by the
Department of Home Affairs) it was stated that the deceased was “married”.
[26] It was also put to the plaintiff that the deceased was still married , to which the
plaintiff responded tha t she did not know. She only saw the word “married” on
the death certificate .
10 [27] The plaintiff was also asked also during cross -examination whether she had
asked the deceased uncle about the previous marriage, to which she responded
that the one uncle said th at they thought that the deceased was divorced, and
that the deceased’s sister -in-law also said that she thought that the marriage was
dissolved as the deceased previous wife had not been around for many years
(according to previous evidence 19 years) .
[28] It was also put to the plaintiff that was Ms Manganyi was entitled to claim for loss
of support, and not the plaintiff. To this the plaintiff responded that the
defendant’s investigators informed her that she was entitled to claim as they were
having regard at who was staying with deceased at the time of his death.
[29] During re -examination the plaintiff testified that she had no personal knowledge
regarding any previous civil marriage between the deceased and anybody else
and that she was informed that the dece ased was divorced .
[30] As indicated above, in respect of the alleged customary marriage the defendant
raised a general denial. The purported special plea that the plaintiff failed to
provide proof of the customary marriage to the defendant (prior to action bei ng
instituted) , was not pursued .
[31] Consequently, the only question to be decided in this matter on the pleadings is
whether a customary marriage was concluded or not.
[32] During cross -examination the defendant , whilst putting it to the plaintiff that the
deceas ed was allegedly still married to by way of a civil marriage at the time of
the customary marriage, the actual defence relied upon by the defendant was
never revealed or put to the plaintiff.
[33] If the defendant wished to raise the invalidity of the customary marriage as a
defence, it should have done so by way of a confession and avoidance and
should have pleaded the facts on which the defence was based. This is
particularly so where on the undisputed evidence the deceased and Ms
Manganyi were in a relationsh ip since at least 1989 (their son was 22 in 2011) .
Where the RCMA o nly came in operation in November 2000 and the Civil Union
Act 2006 in November 2006 , the date and nature of the alleged previous
11 marriage is crucial to the inquiry into the status of the alleged previous marriage
and the manner in which such marriage could have been dissolved, as well as
the impact thereon on the customary marriage between the plaintiff and the
deceased.
[34] Having regard to the complicated nature of th e inquiry , if the defendant intended
to atta ck the validity of the customary marriage, as opposed to its mere
conclusion , it was not permissible for the defendant to res ort to a general denial.
It was imperative to plead the facts supporting the defence, a nd to the extent that
the defendant wished to rely on certain statutory provisions, to plead reliance
thereon.
[35] In written argument filed subsequently, the defendant sought to argue that the
customary marriage was invalidated by the provisions of the Civi l Union Act ,
which prohibits the conclusion of a customary marriage where there was a pre -
existing civil marriage or civil union. This defence was never pleaded, nor put to
the plaintiff in cross -examination.
[36] The defendant is simply not entitled to rely on such defence . The defence was
not pleaded, no r was it fully ventilated during the trial.
[37] Furthermore, the defendant presented no evidence whatsoever in support of the
defence raised in argument.
[38] The defendant argued that certain documentation was discovered by the
defendant in terms of rule 35 which supports the defence. These alleged
documents were never put to the plaintiff during cross -examination , nor did the
defendant introduce the documents into evidence. These alleged documents are
simply no t before the court.
[39] Regarding the information contained in the death certificate, t he purpose of a
death certificate is not to certify a deceased’s marital status at the time of death.
The indication that the deceased was “married” is meaningless. All it does is to
state that the deceased was married at some point in history, according to the
records of the Department of Home Affairs. It does not reflect on the entire history
of such marriage , for instance whether the marriage was dissolved by divorce,
12 or by the death of a spouse. It also soes not indicate whether the marriage was
by way of civil union or by customary law. In the premises, the content of the
death certificate does not assist the defendant in this matter.
[40] The correctness of the records of the Department of Home Affairs depends on
whether the parties ensured that a marriage or divorce is recorded in the records.
On the available evidence the deceased divorced Ms Manganyi a long time ago.
Having regard to the fact that the plaintiff and the d eceased met each other in
2007, the alleged marriage between the deceased an Ms Manganyi may well
have been concluded and dissolved before the RC MA and / or the Civil Union
Act came into operation. If such marriage was a customary marriage , the
dissolution thereof would be a matter of great complexity , which cannot be dealt
with in a haphazard manner.
[41] Consequently, the Civil Union Act defence cannot succeed, even if it could be
entertained.
The plaintiff’s alternative argument
[42] As the defendant strayed beyond the scope of the pleadings, the plaintiff’s
attorneys, clearly out of abundance of caution , argued that on the facts of the
matter the deceased agreed to support, and in fact supported, the plaintiff from
the time they started to live together until his death. As such, it was argued that
a duty of support was created by agreement.
[43] It is indeed beyond any doubt that the deceased had undertaken to support the
plaintiff. The deceased concluded a customary marriage with the plaintiff , thereby
undoubtedly undertaking to support her. If the customary marriage was
technically invalid , for whatever reason, this does not detract from the fact that
the deceased had undertaken to support the plaintiff.
[44] In Du Plessis v Road Accident Fund 2004 (1) SA 359 (SCA) , prior to the Civil
Union Act 2006 coming into operation, the Supreme Court of Appeal held that
where same -sex partners have established a reciprocal legal duty of support by
way of a tacit agreement , that duty was worthy of protection and cou ld for m the
basis of a claim for loss of support, but left open the question whether the
13 dependants' action should be extended generally to unmarried parties in
heterosexual relationships or to any other relationships.
[45] In Paixão and Another v Road Accident Fund 2012 (6) SA 377 (SCA) the
Supreme Court of Appeal indeed extended the common law duty to support to
heterosexual persons who contractually under took reciprocal duties of support
to each other.
[46] In Engela v Road Accident Fund 2016 (1) SA 214 (GJ) the partie s in
heterosexual relationship reconciled after a divorce and again co -habituated. The
deceased had undertaken a duty of support towards the “illegitimate” son of the
female partner . They had not agreed to marry again. The court held that
underlying the a greement entered into between the parties regulating the
resumption of their relationship, was a mutual commitment to live together as a
family. It was irrelevant whether or not such agreement was governed by a
marriage certificate.
[47] On the assumption that the deceased was still married by way of a civil marriage
by the time the customary marriage was concluded, which would have
invalidated the customary marriage , both in terms of the Civil Union Act and
section 10(4) of the RCMA , the facts of the present ma tter are somewhat different
from the cases mentioned above. On the aforementioned assumption, the
deceased was still marrie d at the time of the undertaking to support the plaintiff
and remained married .
[48] However, by parity of reasoning the principle remains the same; if the deceased
had undertaken contractually to support the plaintiff, with whom he purportedly
entered into a customary marriage, this clearly created a duty of support which
the plaintiff is entitled to assert.
[49] In Jacobs v Road Accident Fund 2019 (2) SA 275 (GP) the facts were, however,
similar to the present matter, in that the deceased was still married to another
person at the time when he undertook to support the plaintiff . Collis J held that
the plaintiff established an agreement to support and rejected the defendant’s
contention that the boni mores requires the rejection of a duty to support under
circumstances where the deceased was married to another person .
14 [50] Collis J , whilst recognis ing the value of marriage in our society, held ( op.cit. par
[20]) as follows:
“In the present matter the evidence presented showed that the respective families
of both the plaintiff and the deceased did not regard their cohabitation as
opprobrious. Cohabitation outside a formal marriage, and dare I say, even where
one of the parties is still married, is now widely practised and accepted by many
communities, including our South African community. In the present matter, as
already alluded to, the plain tiff and the deceased had taken the decision to get
married and, shortly prior to his death, were even making plans for the actual
wedding. Both parties for a period of six years prior thereto had undertaken
reciprocal duties of support, with the deceased providing financially for the
household. ”
[51] I respectfully agree with the learned Judge in this regard that the boni mores do
not dictate that that a duty of support undertaken by a married person to another
life-partner should necessarily be visited by inva lidity. This does not mean that
there may not be circumstances where the conduct of a plaintiff who claims the
benefit of a duty of support was so opprobrious and harmful to other legitimate
dependents of the deceased (for example exploiting a vulnerable p erson to the
detriment of other legitimate dependants) that it justifies a finding that the
arrangement was contra bonos mores .
[52] In the present matter there was no moral turpitude on the part of the plaintiff
whatsoever . She met a man who was to be ordained as a pastor in the church.
He assured her that he had been divorced . The evidence is that the deceased’s
family was under the impression that the deceased and his previous wife were
divorced a long time ago, and that th e deceased’s previous wife had not been
seen for about 19 years. The deceased’s children with his previous wife w ere
raised by his sister. The parties complied with traditional custo m by refraining
from introducing themselves to their respective families b efore lobola was paid,
and thereafter the marriage was celebrated , and they were welcomed into each
other’s respective families. The plaintiff bona fide entered into the customary
marriage with the deceased whil e having no reason to doubt their capacity to do
so validly. Such was the plaintiff’s acceptance into the family of the deceased
that she was requested to sit exclusively on the traditional funeral mattress .
15 Clearly , the boni mores would not require the deceased ’s undertaking to support
the plaintiff as part of a putative marriage (assuming the marriage to be invalid)
to be invalidated. To the contrary, a finding of invalidity in casu would be a grave
injustic e.
[53] Consequentlly, to the extent necessary I agree with the plaintiff’s alternative
argument .
Costs
[54] The plaintiff was successful in establishing liability on the part of the defendant
for loss of support. Although the quantum of such claim must be determined, on
the evidence it is clear that the plaintiff has suffered damages and will succeed
with her claim , whatever the amount.
[55] There is obviously the possibility that the quantum of the claim may be settled
between the parties and that the matter will never go on trial on the issue of the
quantum of the claim .
[56] Under the circumstances it would be preferable not to reserve the costs on the
separated issue and it will be appropriate to order the defendant to pay the costs
occasioned by the hearing on the issue of loss of support.
[57] The costs of the p laintiff’s counsel shall be on scale B .
Order
In the circumstances the following order is granted:
(1) It is declared that the defendant is liable to the plaintiff for the loss of support
caused by the death of Samuel Mbhazima Chauke as a result of a motor
vehicle accident that occurred on 5 February 2011 ;
(2) The defendant is ordered to pay the plaintiff’s costs in respect of the trial
relating to the issue of loss of support, with the cost of counsel to be on
Scale B; and
1