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IN THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE DIVISION , KIMBERLEY )
CASE NO.: 1327 /2024
Date heard: 23-08-2023
Date delivered: 07-02-2025
Reportable: Yes/No
Circulate to Judges: Yes/No
Circulate to Magistrates: Yes/No
In the matter between:
V[...] N[...] M[...] Plaintiff
(ID No: 8[...])
And
S[...] D[...] R[...] Defendant
(ID Number: 7[...])
CORAM: WILLIAMS J:
JUDGMENT
WILLIAMS J:
1. In an action for divorce, the plaintiff Ms VM M[...] allege d that she and the
defendant, Mr SD R[...] entered into a customary marriage on 17 April
2010. The plaintiff is Tswana and the defendant Sotho.
2. The defendant opposed the divorce on the basis that no marriage
relationship existed between the parties. He allege d that the lobola
negotiations which were to take place on 17 April 2010 were postponed ,
as a result of which no marriage was negotiated and entered into.
3. The parties agreed before the c ommencement of the trial that the issue as
to whether or not a valid customary marriage was entered into be
determined separately.
Evidence for the plaintiff
4. Mr ME Makhele on behalf of the plaintiff testified that he had been invited,
together with Mr J[...] M[...] , by the plaintiff’s mother to represent the
plaintiff’s family in the lobola negotiations which took place at the plaintiff’s
parental house on 17 April 2010. The defendant’ s family were
represented by the defendant ’s father Mr L[...] and another gentleman
unknown to him.
5. After the negotiations an agreement was reached that twelve cows be
paid as lobola. Mr Makhele explained that one cow represented R1000,
00. It was also agreed that R5000, 00 would be paid on that day and the
balance of R7000, 00 at a later stage.
6. The lobola agreement was put in writing and signed by Mr Makhele and
Mr M[...] on behalf of the plaintiff’s family and by the defendant’s father on
behalf of the defendant’s family. The lobola letter written in Setswana,
was handed in as an exhibit. By agreement an English translation was
acquired for purposes of the trial. It reads as follows:
6.1 “2[...] M[...] Street
Galeshewe Location
Kimberley
17 April 2010
Regarding the letter for the lobola negotiation of our daughter we
the M[...] family.
The meeting the M[...] and the R[...] family held on the 17 April
2010. Both parents agreed in uniting their children to be husband
and wife and to take care of each other’s lives.
The children are D[...] S[...] R[...] and V[...] N[...] M[...] .
D[...] S[...] R[...] is the son of S[...] R[...] from Lesotho, N[...] V[...]
M[...] is the daughter of G[...] B[...] P[...] M[...] from Kimberley.
The bride price agreed upon is R12 000,00 (twelve thousand rand)
they paid R5000,00 (five thousand rand) and remaining balance is
R7000, 00 (seven thousand rand)
Witnesses of Mr S[...]: 1.(signature) S L L[...]
2.
Witnesses of Mr M[...] : 1.(signature) M E Makhele
2.(signature) ”
(I have added the portions in brackets to give a more complete picture of
the letter .)
7. Mr Makhele could not remember who drafted the lobola letter, but testified
that he was present when it was compiled and that the R5000, 00 was
given to Mr J M[...] .
8. He also testified that after the lobola letter was signed , the food cooked by
the women , was eaten in celebration of the fact that the plaintiff was
welcomed into the defendant’s family.
9. Mr Makhela testified that the plaintiff and the defendant were not present
at the lobola negotiations , as was the norm, He also stated that in his
culture, when a man wants to take a wife he first lives with her, then takes
her to his family where an animal is slaughtered to welcome her .
Thereafter the man’s family informs the woman’s family that they want to
start lobola negotiations as they have already welcomed the woman into
the family. According to his knowledge, this is also how the process
between the plaintiff’s and the defendant’s families took place.
10. Mr Makh ele denied the defendant’s version that the lobola negotiations
were postponed on 17 April 2010 because it was established that the
plaintiff had had a miscarriage during 2009 and a cleansing ceremony had
to be performed first. He testified that he had only heard about the
miscarriage two weeks before the trial and in any event the plaintiff’s
culture does not require a cleansing ceremony after a miscarriage.
11. The plaintiff testified that she and the defendant started a relationship
during 2004 when she was in grade 11. The defendant was a tenant at
her mother’s house. After some time he asked her to marry him and
arrangements were made for her to meet his family.
12. During November/December 2009 the plaintiff visited the defendant’ s
family in Lesotho. She arrived on a Saturday and was told to enter the
house during the night because the defendant’s father was not supposed
to see her. On the following day, the defendant’s family held a ceremony
for her during which a sheep was slaughtered. She was dressed in
traditional shweshwe and she was told that it is the makoti dress. The
defendant’s father gave her the name of M[...] , which was an indication
that she was welcomed into the family. She was also made to eat a ri b of
the sheep. Photographs of the plaintiff dressed in shweshwe were
handed in as exhibits.
13. The plaintiff testified that Mr L[...], the defendant’s father, informed her that
she was now married to the defendant and that she had to stay with them
for three weeks. Thereafter, when she and the defendant leave Lesotho
they will live together as husband and wife. In the meantime an
arrangement will be made with her family for lobola to be paid.
14. According to the plaintiff the lobola negotiations took place at her mother’s
house on 17 April 2010. Neither she nor the defendant were present at
the lebola negotiations. They were living in Colesb erg at the time. She
however received the lobola letter from her mother after the event. The
respondent told her that he had also received a copy of the letter from his
father.
15. The plaintiff testified that she had a miscarriage during 2008 (it was later
agreed that the miscarriage occurred during 2009) but that it was not part
of her culture to have a cleansing ceremony after such an event. In any
event, she testified that her family had been aware of the arrangements to
meet to negotiate lobola on that day and had agreed to it. Initially the
lobola negotiations were to take place during January 2010, but her
mother had arranged for it to be held at someone else’s house, which did
not suit the defendant’s family. It was the agreed between the families
that it take place at a later date, 17 April 2010.
16. The plaintiff testified that she and the defendant lived together in
Colesberg during 2010 and when she fell pregnant with their elder child,
she moved back to her parental home in Kimberley, since it was tradition
that you give birth to your first child at home. During that time the
defendant visited her over weekends until he obtained employment in
Barkly -West, close to Kimberley. They then lived together in a house left
to her and her sister by the plaintiff’s grandmother and paid rental to the
sister. The parties second child was born two years later. During the time
before the parties separated , the plaintiff testified that she visited the
defendant ’s family in Lesotho at least 13 times. Copies of the plaintiff’s
passport showing the entries into Lesotho were handed up as exhibits.
17. During 2015 the relationship between the parties turned sour and the
defendant left the common home. The plaintiff then approached
Fletcher’s Attorneys for legal advice. She informed the attorney that the
lobola amount had not been paid in full. She had been under the
impression that the marriage would only be completed once the lobola
was paid in full. The result of her consultation with the attorney was that a
letter of demand was addressed to the defendant claiming damages in the
amount of R100 000,00 for breach of the contract of marriage. According
to the plaintiff the defendant refused to pay because he was of the view
that they were married.
18. It was only when the plaintiff approached the Maintenance Court for
assistance with a claim for maintenance of the children during 201 8 that
she was informed that a customary marriage is valid even if the lobola had
not been paid in full . She was then advised to have the marriage
regist ered but learn ed that the defendant was already in another
relationship and that a child had been born from this relationship. It was
then that she instituted divorce proceedings.
Evidence for the defendant
19. The defendant confirmed that he and the plaintiff had been in a
relationship since 2004 while he was a tenant at her parental home. The
plaintiff became pregnant with his child and had a miscarriage during
2009.
20. The defendant testified that he took the plaintiff to Lesotho to meet his
family during December 2009. The reason for taking the plaintiff to his
family he explained initially, was because she had requested him to assist
her financially with her studies and he had to at least let them get to know
the person he intended to assist.
21. The defendant denied that he had propose d to the plaintiff, but admitted
that he had told his family that she was someone he will be able to live
with. He admitted that a sheep was slaughtered to welcome the plaintiff
and that his sister made her a shweshwe garment which he paid for. He
denied however that the plaintiff was treated or recognised as his wife, but
that the celebration s were held because he had introduced her as
someone he had intentions to marry.
22. Defendant further testified that he first sent his family to visit the plaintiff’s
family to negotiate lobola during January 2010, but that there was a
problem with regard to the venue and arrangements were made for the
lobola negotiations to take place during April 2010.
23. Despite the defendant’s denial that he had proposed to the plaintiff he
stated that he and the plaintiff had agreed that he would pay lobola of
R5000, 00 since he was paying for her education and driving lessons.
24. The defendant ’s evidence was that he sent his father and two cousins who
lived in Kimberley to conduct the negotiations. He was informed by his
father afterwards that the lobola negotiation s did not take place because
the plaintiff ’s family informed his family of the miscarriage and required a
cleansing ceremony to be held first. The money was handed over to the
plaintiff’s f amily for the cleansing ceremony. The defendant denied that
the lobola contract before court was entered into and signed by inter alia
his father . He insinuated that it was a forgery and that he had seen a copy
thereof for the first time during 2015 as it was attached to the letter of
demand he received from the plaintiff’s erstwhile attorneys.
25. According to the defendant he and the plaintiff were not living together
during 2010. At that time he was living in Colesberg and she was in
Kimberley. He stated that the y lived together in Kimberley from 2011 to
2015, but as life partners, not as husband and wife. This was known to
the plaintiff, according to his evidence, since she agreed, when they first
went for mediation with the Family Advocate during October 2015, that
they were not married.
26. The defendant does not deny that after 2010 the plaintiff had visited his
family in Lesotho on several occasions and even attended the funeral of a
family member there. He however denies that she had been to Lesotho
thirteen times since 2010.
27. The defendant contended, as substantiation for his allegation that lebola
had not been negotiated and paid, that none of the customary rituals after
the payment of lobola occurred. The plaintiff would have been taken by
his family to live with them. If she is pregnant a ritual will be performed
whereby a cloth would be put around her waist. If she is not pregnant she
would be taken to visit her family accompanied by one of his family
members. Once a baby is born the husband’s family will deliver a cultural
necklace and place it around the baby’s neck.
28. None of the above rituals were performed after 17 April 2010. His family
had come to Kimberley to perform the ritual after the birth of a baby but
the plaintiff’s family would not allow it because they said that he has not
married to the plaintiff.
29. The defendant’s father Mr S[...] S[...] L[...] also testified. He lives in
Lesotho. He testified that he got to know the plaintiff during
November /December 2009 when the defendant brought her to their home.
The defendant told them that the plaintiff had requested financial
assistance with her studies and that they should get to know her. Mr L[...]
stated that he welcomed her as a visitor and gave her a place to sleep and
the same food that they ate. If a sheep had been slaughtered it would
have been done to welcome the defendant as he does not visit them
often.
30. Mr L[...] denied having any conversations with the plaintiff during that initial
meeting except for greeting her. The defendant also did not tell him that
he and the plaintiff were in a relationship. Only after the plaintiff had left
Lesotho for home did defendant inform him that he should go to the
plaintiff’s family to make negotiations concerning the plaintiff.
31. Mr L[...] described the negotiations he was to make as “marking a piece”.
He explained that it was a S otho culture whereby he would go the
woman’s family and inform them that his son is interested in their
daughter . If the woman’s family allows it he will place a “mark piece” –
normally money or an animal – and he would then return and marry. This
version is co ntrary to that of the defendant who had requested his father to
negotiate lobola.
32. The first time he visited the plaintiff’s family was in January 2010. There
were certain complications in that the negotiations had to be done at a
different home. He went back to Lesotho and arranged another date for
the negotiations .
33. Mr L[...] returned to plaintiff’s family during April 2010 after he had sent his
nephew, Tsekolo Mbele, to inform them of his plans. On the arranged
day, himself, Tsekolo Mbele and Lebogang Mbele went to the plaintiffs
parental home. When the arrived there they were informed that the
plaintiff had had a miscarriage and needed to be cleansed before
marriage could be negotiated. It was the first time he had heard of the
miscarriage. He accepted that the plaintiff had to be cleansed first
because this was very important in his culture as well. If not done , things
could go badly in future and even result in having a disabled baby.
34. The plaintiff was represented at that meeting by one Puleng, J[...] and an
unknown man. They informed him that they needed R5000, 00 for the
cleansing ceremony. He testified that in the Sotho culture cleansing is
performed by slaughtering a sheep but he was satisfied to give the
plaintiff’s family money as he did not know their culture. The pla n was that
he would return to Lesotho and come back to Kimberley at a date after the
cleansing to negotiate the marriage . This never happened.
35. Mr L[...] at first explained that he did not return to the plaintiff’s family to
negotiate the marriage after the cleansing because the plaintiff fell
pregnant and gave birth during 2011 and thereafter the parties split up.
When confronted with the fact that the parties only separated during 2015,
Mr L[...] changed his version by saying he had been sickly and was unable
to commence negotiations during that period before the break -up.
36. Mr L[...] admitted that he had given the plaintiff the name of M[...] , but only
after the first child was born and he had named the child K[...], not when
the plaintiff had first visited them in 2009. He disputed that the defendant
had the authority , in his culture , to give the w ife and child names. He
subsequently corrected himself by saying he meant “woman” not wife.
37. Mr L[...] also testified about the ritual his daughter was sent to perform
after the birth of the firs t child and the fact that the plaintiff’s family would
not allow it since the parties were not married.
38. Mr I[...] T[...] M[...] , the defendant’s cousin, also testified. H is testimony
was that he had been present when the first meeting of January 2010 was
postponed. He was also present at the meeting of 17 April 2010 as part of
the defendant’s delegation, together with his brother Samuel Mbele and
Mr L[...]. He confirm ed that the intention was to negotiate marriage with
the family of the plaintiff.
39. At the plaintiff’s parental home the plaintiff’s delegation consisted of Mr
Makhele, Mr J[...] M[...] , the plaintiffs ’ mother, a certain Puleng and an
unknown male person. The defendant ’s family was informed that as the
plaintiff had previously suffered a miscarriage, a cleansing ceremony had
to be performed before lobola negotiations could take place. The
plaintiff’s family required R5000, 00 for the cleansing. This witness called
the defendant, who was in Colesberg with the plaintiff at the time, and
informed him of the unexpected turn of events. The defendant gave
permission that the R5000, 00 intended for lobola be given to the plaintiff’s
family for the cleansing ceremony.
40. Mr Mbele testified that there were no negotiations regarding lobola at all.
There was no lobola letter drafted or signed by the representatives . The
defendant ’s representatives left the plaintiff’s family home, mission
unaccomplished and were supposed to return at a later date. According
to Mr Mbele the lobola negotiations were not completed and therefore no
marriage had taken place .
41. The requirements for a valid customary marriage are to be found in s3(1)
of the Recognition of Customary Marriages Act 120 of 1998 which reads
as follows:
“3. Requirements for validity of customary marriages. – (1) 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.”
42. It is not in dispute that the parties were both above the age of 18 years on
17 April 2010 and that they consented to be married to each other under
customary law. Despite the defendant’s denial of having proposed to the
plaintiff , his evidence that they discussed and agreed on the amount of
lobola which he would pay, contradicts his denial. Counsel who appeared
for the defendant, Ms Thyuthuza, who appeared during the trial and
drafted heads of argument and Mr Botha who represented the defendant
during argument, did not dispute that there was consent between the
parties.
43. The issues in dispute are whether the requirements in s3(1)(b) of the Act –
that the marriage must be negotiated and entered into or celebrated in
accordance with customary law – have been complied with.
The lobola letter/contract
44. It is not in dispute that the defendant’s family went to the plaintiff’s family
on two occasions to negotiate lobola. On the second occasion R5000, 00
was paid by the defendant’s delegation. The issue is whether the R5000,
00 had been paid for lobola as contended by the plaintiff, or a cleansing
ceremony as contended by the defendant.
45. In disavowing the lobola letter, much was made of the fact that Mr L[...]’s
initials (next to his signature) had been entered as S L whereas it would
be SS for S[...] S[...] according to his identity document. The argument
being that it is improbable that a person would get his own initials wrong.
The other argument raised is that Mr L[...] would not have signed as his
own witness , that is if one accepts that “Mr S[...]” refers to Mr L[...].
46. The letter however also makes provision for witnesses of “Mr M[...] ” and
the only Mr M[...] who was allegedly involved in the negotiations,
according to Mr Makhele, was Mr J[...] M[...] . The question would then be
– why would Mr J[...] M[...] sign a a witness for himself? The body of the
letter also refers to the defendant as being the son of “S[...] R[...] ” which is
not the name of his father, Mr L[...].
47. The lobola letter is definitely not perfect . But are the flaws therein as a
result of mere human error or because it is a forgery? Without the benefit
of a handwriting expert to assist in determining the authority of the lebola
letter and in light of the conflicting versions of the parties, I am left to
consider and weigh the probabilities to determine which version is more
probable.
Introduction of plaintiff to defendant’s family
48. On the defendant’ s own version, in the Sotho culture there are two ways in
which marriage to a woman is initiated. The first is that the man sends his
family to the women’s family to negotiate the marriage. The second way
is for the man to take the woman to his family home. While the woman is
at his family home, his parents will go to the woman’s parents to negotiate
marriage. The woman will thereafter only be taken to her parental home
to visit, accompanied by a male relative of the man, or when she is
pregnant.
49. Despite the defendant’s and his father’s denial that he had taken the
plaintiff to his parental h ome to introduce her as the woman he wanted to
marry , the admitted facts tell a different story. The plaintiff was dressed in
shweshwe, the traditional makoti (wife) dress, a sheep was slaughtered
and welcoming celebrations were held. I find it improbable that such a
welcome would have been given to someone who was merely introduced
by the defendant as a person who’s studies he was paying for.
50. The defendant’s reluctance to admit that he had taken the plaintiff to his
parental home to introduce her as the woman he intended marrying is
astonishing given the fact that he had asked his father, during that same
period and while visiting in Lesotho, to approach the plaintiff’s family in
order to negotiate marriage with the plaintiff. Within a month the first visit
to the plaintiff’s family took place. The senseless denial by both the
defendant and Mr L[...] that the plaintiff was introduced to the defendant’s
family in preparation of lobola negotiations and marriage , does not hold
any water.
51. The plaintiff had testified that she had been given the name of M[...] by Mr
L[...] in December 2009 after the ceremony welcoming her into the
defendant’s family. The defendant denied any knowledge of this
occurring, only that he and the plaintiff had decided on their firstborn’s
name together. Mr L[...]’s version that he had given the plaintiff her name
after their first child was born and had been given a name by him , is not
only contradictory to the defendant’s evidence but also to his own version
that the plaintiff was never accepted into their family. Support for the
plaintiff’s version that she was given a name before the birth of the first
child is however found in an article written by Mthobe li Guma titled Guma,
M. (2001) the Cultural Meaning of Names among B asotho of South
Africa. A Historical Analysis, where the author states at 271, paragraph 4
thereof that:
“Among Basotho, marriage gives both men and women a new status in
society with concomitant rights and privileges (Ashton 1967). Added to this
is the new relationship that incorporates both the couple and their families.
Within this relationship, a new bride is usually given a teknonymous name
so that the inlaws avoid addressing her or referring to her by her maiden
name (Mohome 1972: 181). The husband is expected to call her by this
name particularly among kin members or in public. Sometimes the name
becomes permanent as her firstborn is usually given a name that will
match her teknonymous name. If, for example, she is named M[...] , her
child, if it is a boy, may be named Tshepo (trust) . For a girl the name is
dropped for one that is suitable for a girl such as Tshepiso (promise).
Since Basotho are a patrilineal society, the majority of teknonymous
names given to new brides are based on boy's names. ”
(own emphasis)
52. Tekno nymy is the practice of referring to parents by the names of their
children . In my view the probabilities favour the plaintiff’s version that her
visit to Lesotho in November/December 2009 was to introduce her to the
defendant’s family as his future wife and she was accepted as such with
the traditional celebrations and rituals.
53. Whilst it is so that the plaintiff did not stay behind in Lesotho while the
lobola negotiations were pending, as contended by the defendant she
should have done according to their customs, that factor i n my view has
been overtaken by the very fact that the defendant’s family in any event
still made arrangements for lobola negotiations and by all appearances
waived this particular requirement.
Payment for cleansing v lobola
54. As already intimated herein, the defendant and Mr L[...] did not make a
good impression as witnesses. They were evasive, contradictory and
intent on denying even the incontrovertible. Mr Mbele made a better
impression as a witness, but then his contribution to the defendant’s case
was limited. He did however confirm the plaintiff’s version that she and
the defendant lived together in Colesberg at the time of the negotiations
and that Mr Makhele was part of the plaintiff’s delegation at the
negotiations .
55. On the other hand, both the plaintiff and her witness Mr Makhele made a
good impression. They were subjected to lengthy cross -examination but
were not budged. The y denied that a cleansing ritual was part of the
plaintiff’s culture and Mr Makhele denied that this topic had ever been
mentioned during the negotiations on 17 April 2010. Mr L[...], however
testified that a cleansing after a miscarriage was an important part of his
culture and that it had to be done before lobola negotiations could take
place. Curiously though, after paying R5000, 00 for a cleansing
ceremony, neither the defendant nor Mr L[...] knew whether in fact the
cleansing ceremony had taken place or even enquired about it afterwards.
I find it highly unlikely that neither defendant nor Mr L[...] would not at least
have enquired about the cleansing ceremony i f that had been a
prerequisite for the resumption of lobola negotiations .
56. In my view the probabilities favour the plaintiff ’s version in this respect,
that lebola negotiations took place on 17 April 2010, and R5 000, 00 was
paid by the defendant’s family towards the lebola , as set out in the lobola
letter. It would also explain why nothing further was done by the
defendant and his family regarding lobola after that date.
Integration of the plaintiff into the defendant’s family
57. The defendant and Mr L[...] testified that after 17 April 2010, there were no
rituals performed for the plaintiff as was their custom after marriage and
that the plaintiff was therefore never accepted and integrated into the
defendant’s family. Ther e was not much elaborati on on the rituals which
had to be performed except for the fact that the plaintiff would be taken to
the defendan t’s home and that her hair would be shaved. These rituals
and the rituals pertaining to the birth of a baby wer e not done. I must at
this stage mention that it was never put to the plaintiff that these above -
mentioned rituals were a requirement for a valid custom ary marriage.
58. But be that as it may, it was never in dispute that there was no formal
handing over of the plaintiff after the lobola negotiations. In argument for
the defendant, I was referred to the matters of Fanti v Boto and Others
2008 (5) SA 405 ( C) and Rasello v Chali and Others [2013] SAFSHC 182
(24 October 2013 ) in support of the contention that the payment of lobola
alone, absent the other essential requirements, do es not render a
relationship a valid customary marriage.
59. In Fanti it was held at paragraph 22 thereof that:
“[22] From the Applicant’s own papers it is abundantly clear that there was
no handing over of the bride to the Applicant and/or the latter’s family. All
authorities are in agreement that a valid customary marriage only comes
about when the girl (in this case the deceased) has been formerly
transferred or handed over to her husband or his family. Once that is done
severance of ties between her and her family happens. Her acceptance by
the groom’s husband and her incorporation into his family is ordinarily
accompanied by well known extensive ritual and ceremonies involving
both families. See: Customary Law in Southern Africa (5th edition)
by Seymor revised by Bekker ; Die Privaatreg van die Suid -Afrikaanse
Bantoetaalsprekendes (derde uitgawe) by Olivier .”
60. In Raselli the court stated the following at paragraph 18 thereof:
“[18] On the appellant’s own version, there is no way that the ceremony
alluded to by the appellant, having occurred before payment of lobola,
could have equated to the ceremony of delivery of the bride. Significantly,
the appellant made no reference whatsoever to her own family’s
involvement in the ceremony she referred to. Although the Recognition of
Customary Marriages Act does not include transfer of the bride in the
requirements for a valid customary marriage, I accept that this, being an
old Sesotho custom that is still widely recognized, it is a custom
contemplated in section 3(6) of that Act and is thus an essential
requirement for validity of a customary marriage. It was so accepted by
the court in the case of Fanti v Boto (supra) on the basis of many
authorities. Delivery of the bride entails that the bride will be accompanied
to the groom’s family by her own delegation, which will then formally hand
her over to the groom’s family. Olivier, Bekker et al in their
work Indigenous Law describe delivery of the bride as “the transfer of the
bride by her family group to the family of the man”.
61. What counsel for the defendant has not borne in mind is the changing
nature of customary law. In Maropane v So uthon (755/2012) [2014]
ZASCA 76 (29 May 2014) , the Supreme Court of Appeal held at
paragraph 36 thereof that:
“Furthermore African Law and its customs are not static but dynamic.
They develop and change along with the society in which they are
practised.” ;
and at paragraph 153:
“The evolving nature of indigenous law
[153] Indigenous law is dynamic system of law which is continually
evolving to meet the changing circumstances of the community in which it
operates. It is not a fixed body of classified rules. As we pointed out
in Alexkor :
“In applying indigenous law, it is important to bear in mind that, unlike
common law, indigenous law is not written. It is a system of law that was
known to the community, practised and passed on from generation to
generation. It is a system of law that has its own values and norms.
Throughout its history it has evolved and developed to meet the changing
needs of the community. And it will continue to evolve within the context of
its values and norms consistently with the Constitution”.’ ”
62. Moreover in Mbungela and Another v Mkabi and Others 2020(1) SA 41
(SCA), the SCA , dealing specifically with the ritual of bridal transfer,
debunked the view that if one particular ritual has not been observed there
could be no valid customary marriage. At paragraphs 26 – 29, the SCA
states as follows:
“[26] No objection at all was raised here. Instead, there is overwhelming
evidence that the families, including the deceased’s ‘guardian’, considered
the couple as husband and wife for all intents and purposes. The evidence
ineluctably leads to the conclusion that the bridal transfer ritual was
waived. This finding, in my opinion, does not offend the spirit, purport and
objects of the Bill of Rights and recognises the living law truly observed by
the parties and the actual demands of contemporary society.
[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.
[28] Thus, for example, a woman could consent to a customary marriage,
followed by payment of lobola, after which she cohabited, built a home
with her suitor, and bore him children, with the full knowledge of his family.
When the man died, she and those children could be rejected and
disinherited by his family simply on the basis she was not handed over or
properly introduced to his family and was therefore not his lawful wife and
that the children were illegitimate. Needless to say, that consequence
would be incongruous with customary law’s inherent flexibility and
pragmatism which allows even the possibility of compromise settlements
among affected parties (contemplated in cases such as Bhe), in order to
safeguard protected rights, avoid unfair discrimination and the violation of
the dignity of the affected individuals.
[29] Professor Bennett argues in Customary Law in South Africa , that
the bridal transfer ceremony should be treated as an optional
element of a customary marriage, which the parties would be free to
observe if they chose to celebrate their marriage according to a
particular tradition. He places reliance for this view on a suggestion
made by the South African Law Commission’s Special Project
Committee on Customary Law in its Report on Customary
Marriages, which considered the effect of wedding ceremonies and
transferring the bride, and found that the variations in local practice
and the ambiguities inherent in them suggested that neither should
be deemed essential for the creation of a customary marriage. This
opinion, to my mind, is not constitutionally reprehensible or
repugnant to ‘living’ customary law of marriage as actually practised
by the continuously evolving society, as the Law Commission itself
clearly determined. Its recognition would constitute a development
of the system and protect the interests of vulnerable affected parties,
in the appropriate case, in accordance with the spirit, purport and
objects of the Constitution. ”
(own emphasis)
63. In casu , the plaintiff had been welcomed into the defendant’ s family with
certain rituals and celebrations even before the lobola had been
negotiated. The father of the defendant had given her a name as well as
that of the part ies’ firstborn. The parties had lived together since before
the lobola was paid and continued to do so for a further 5 years. In that
time they had two children together with the full knowledge of both sets of
families. The plaintiff visited the defendant’s family in Lesotho on
numerous occasions after the lobola was paid, even to attend t he funeral
of a family member of the defendant. There can be no doubt in my view
that the plaintiff had been integrated into the family of the defendant. As
far as the absence of the formal handing over of the plaintiff is concerned I
align myself with the view as expressed in C v P (1009/2016) [2017]
ZAFSHC 57 (6 April 2017) , at paragraph 52 thereof, that even if:
“. . . it is accepted that there was no handing over due t o the fact that the
plaintiff was not formally accompanied and delivered by her family to the
defendant’s parental home, it would still be my finding that since the
plaintiff and the defendant were living together after lobola was paid,
“constructive delivery” is present.”
64. In conclusion, the fact that the plaintiff laboured under the impression that
the customary marriage had not been completed because the full lobola
had not yet been paid takes the matter no further for the defendant (see C
v P supra at paragraphs 37 and 38). I am satisfied that all the
requirements for a valid customary marriage have been complied with.
65. There is no reason why costs should not follow the result.
In the circumstances the following order is made.
a) A valid customary marriage was concluded between the parties.
b) The defendant is to pay the costs of the action.
CC WILLIAMS
JUDGE
For Plaintiff : Mr L Matlejoane
Matlejoane Attorneys
For Defendant t: Adv. T Thyuthuza
Adv A Botha
Motllamm e Attorneys