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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
APPEAL CASE NUMBER: HCAAJJ/2024
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 19/06/ 2025
SIGNATURE:
In the matter between: -
L[...] M[...] P[...] APPELLANT
ID NO: 8 […] (Defendant in the main action)
AND
N[...] J[...] D[...] P[...] RESPONDENT
ID NO: 7 […] (Plaintiff in the main action)
JUDGMENT
MANGENA AJ
[1] Marriage is a beautiful thing founded on love, care, trust and common
understanding on issues of life. It is an important social contract out of which a
"family" as a basic unit of society is formed. It is therefore inconceivable that two
people can b e married to each other but differ as to the regime applicable to their
marriage. But in law, strange things happen more especially in marriages of some
Black/African people.
[2] Dr Mosibudi Mangena, the former President of AZAPO and the adherent of
Black Consciousness had this to say about some Black people and their marriages:
When it comes to marriage, some African component of the Black population have a
split personality. They do the lobola/Magadi process and then the European version
through the exch ange of rings, the white veil and the rigmarole that goes with it.
They do the same thing twice, the African way and the western way. They do not feel
that their marriage is proper or complete unless and until they have done the
european part. They live in a world of double vision and poor balance. They have
one foot in Africa and the other in Europe with an ocean of water beneath them and
are struggling to keep their balance. They live in a twin world of blurred lines and
fuzzy images. This is the worst ma nifestation of people without cultural integrity,
character or identity. A Twin World, Maskew Miller Longman, page 95.
[3] This appeal was constituted to determine the marriage regime applicable to
the parties who are both Black/African. They differ as to whether they are married
according to customary law or civil law. Does it matter? Someone may ask.
[4] Of course it matters and it is a big legal issue that has pre -occupied judicial
and non -judicial minds for centuries and it appears it will be like this for as long as
Black people have a choice whether to marry either by customary law or civil law.
This is because in African culture, a marriage is not an event but a process involving
not only the parties getting married but also their families and ch ildren. It is a cultural
process with legal consequences as opposed to a legal process with cultural
consequences. Ntate Mangena puts it as follows "A wedding (marriage) is a ritual full
of cultural meaning. Your wedding tells us who you are".
[5] What ga ve rise to the dispute between the parties is compliance with the
cultural process of marriage and legal consequences which flow from it.
[6] The wife who is the appellant contends that she is married to the respondent
in community of property. The marri age was concluded and entered into on the 1 0th
January 2015. The marriage is governed by the Recognition of the Customary
Marriage Act 120 of 1998 and that there was no ante -nuptial contract entered into by
the parties prior to its conclusion. The 1 0th January 2015 (according to her) is the
date on which the process for the conclusion of the customary marriage was
completed.
[7] The husband who is the respondent holds a completely oppose view. He
denies that they agreed to enter into a customary marriage. They had always wanted
to marry out of community of property and it is for that reason that they concluded an
ante-nuptial agreement on 13 October 2015 before a Notary Public in Polokwane,
which contract expressly excluded community of property and loss as well as the
accrual system. The ante -nuptial contract was registered in the Deeds office on 30
October 2015 . Subsequent to the conclusion of the ante -nuptial contract, they got
married out of community of property without accrual on 23 October 2015 . This is
the marriage which exists between them as evidenced by the marriage certificate
issued by the Department of Home Affairs. The marriage, according to him, is
governed by the Marriage Act 25 of 1961 .
[8] Prior to the hearing by the court a quo, the parties informed the court that they
had a pre -trial conference and identified the issues in dispute as follows: -
(i) Whether the parties were married to one another on 10 January 2015
in terms of customary law, in community of property which marriage still
subsists.
(ii) In the event that the Honourable Court finds that the parties were
married to one another in terms of customary law whether the ante -nuptial
contract entered into between the parties is va lid and enforceable.
[9] When the matter came for trial and before the first witness could be called, the
court was informed that they will ask the court to first rule on the existence of the
customary marriage. The issues identified in the pre -trial minu tes were then reduced
to one, namely whether the parties had entered into a customary marriage or not. By
agreement the defendant was to testify first as she bore the onus to prove the
existence of the customary marriage. I must hasten to record that copie s of the pre -
trial minutes did not form part of the appeal record.
[10] The Defendant took stand on the 26 February 2024 and led evidence
regarding both the conclusion of the alleged customary marriage as well as the
circumstances under which the civil m arriage and the ante -nuptial contract were
concluded.
[11] She was cross -examined by Counsel for the respondent and before the cross
examination could be concluded the parties informed the court that in order to
expedite the proceedings they have agreed on the following facts: -
(a) That there was a customary marriage concluded between them on 10
January 2015 .
(b) On the 13 October 2015 , the parties entered into a valid ante -nuptial
contract which was registered with the Deeds office.
(c) That both m arriages are now to be regarded as valid.
(d) Only the issue of enforceability of the ante -nuptial contract remains
valid .
[12] This was an unusual way and at best the most casual approach adopted for
the resolution of an important legal dispute. To st art with, it is not legally possible for
both the customary marriage and the civil marriage to co -exist along side each other.
Parties are either married by customary law or by civil law. The statement that both
marriages are valid is legally untenable and provides proof that the submission was
based on a wrong understanding of the law. The court a quo was wrong to allow the
parties to proceed on this erroneous basis. The trial court should have guided the
parties to prepare a written statement of agreed fa cts. Indeed the SCA and other
courts have cautioned against this lackadaisical approach and implored on trial
judges to always adhere to the provisions of Rule 33(1) and (2) whenever there is an
appetite to the parties to proceed by way of a stated case.
[13] Rule 33(1) and (2) of the Uniform Rules require the parties to the dispute,
who wish to have their matter adjudicated as a stated case to do the following: -
(a) Agree upon a written statement of facts which clearly sets out the facts
agreed upon, the facts of law in dispute between them as well as their
contentions.
(b) The statement shall be divided into consecutively numbered
paragraphs.
(c) Copies of the documents necessary for the adjudication of the dispute
shall be annexed to the statement.
(d) The statement shall be signed by the parties, if in person or by their
legal representatives.
[14] None of the requirements listed above were complied with and it remains
unclear what issue was the court called upon to adjudicate. In its judgment the court
a quo recorded the issue for determination as follows: -
"The court was requested to determine whether the parties were married to
one another on the 10th of January 2015 in terms of customary law in
community of property which marriage still subsists and that in the event the
court finds that the parties were married to one another in terms of customary
law, whether the ante -nuptial cont ract entered into between the parties is valid
and enforceable or not".
[15] As stated in paragraph 11 above, the parties had already agreed that there
was a customary marriage concluded on 10 January 2015 . Once the parties agree
on an issue, it is no lon ger open to the court to determine it. This is so because the
court does not adjudicate on issues which are no longer of practical effect to the
parties or do not present a live controversy between them.
[16] Had the parties prepared a written statement o f facts as required by Rule 33,
the court a quo would have been enlightened about the nature of the dispute and
exercised its judicial discretion whether to allow the parties to discontinue the leading
of oral evidence on the disputed legal issue.
[17] As I see it, the central issue for determination, notwithstanding the imperfect
stated case, is the validity of the alleged customary marriage. This issue cannot be
resolved by way of a stated case. It required the parties to present their evidence in
the ab sence of the agreed facts.
[18] Wallis JA explained the importance of compliance with the provisions of Rule
33 in Minister of Police v Mboweni and Another 2014(6) SA 256 SCA as follows: -
"It is clear therefore that a special case must set out agreed f acts, not
assumptions. The point was re -emphasized in Bane v D'A Mbrosi where it
was said that deciding a case on assumptions as to facts defeats the purpose
of the rule, which is to enable a case to be determined without the necessity
of hearing all, or at least a major part of the evidence. A Judge faced with a
request to determine a special case where the facts are inadequately stated
should decline to accede to the request." To proceed with a stated case in
circumstances where there is a need for or al evidence constitutes an error of
law. Murphy AJA writing in the LAC echoed the same sentiments in the matter
of Arends and Others v South African Local Government Bargaining
Council and Others, (2015) 36 ILJ 1200 (LAC) . He was more forthright and
said: "An oral stated case predicated upon poorly ventilated and potentially
unshared assumptions as to facts defeats the purpose of the requirements of
a stated case, and will lead to problematic results.
[19] Like Murphy AJA , I hold the view that the parties in this case were authors of
their own misfortune. They should not have allowed the preliminary views of the
court to persuade them to abandon the course they had taken to present facts upon
which the court was required to make a conclusive legal finding on the marriage
system applicable to their clients.
[20] In view of the order I propose to make, it is not necessary to deal with all other
issues raised by the parties regarding the validity or otherw ise of the ante -nuptial
contract and the subsequent conclusion of the civil marriage.
[21] On the pleadings as they stood at the time the matter was called for hearing,
there was a material dispute of fact regarding the existence of the customary
marriag e and this issue was not adequately addressed in the purported stated case.
The court a quo did not have facts upon which to conclude that there was indeed a
valid customary marriage concluded between the parties.
[22] To the extent that it may be argue d that the parties made concessions on the
respective positions they held prior to their agreement to proceed by way of a stated
case, I am not persuaded that there were any concessions made. For the record,
Adv Ferreira never conceded that there was a cus tomary marriage. If there was any
concession at all, same was conditional upon the defendant equally conceding that
there was a valid ante -nuptial contract and a valid civil marriage concluded between
the parties. Ms De Klerk did not accept that the condit ional concession nor did she
on behalf of her client accept/admit or concede that both marriages as well as the
ante-nuptial contract are valid. She could not by any stretch of imagination have
admitted to these two "concessions" as that would have meant t he end of her case.
In short there were no concessions made by either side.
[23] In any event the Constitutional court tells us that it is trite that a court is not
bound by a legal concession if it considers it to be wrong in law. A legal concession
can also be rejected by the court if improperly made. This is the case in this matter.
The court a quo should have heeded the caution of the SCA and insisted on a
detailed written statement of agreed facts clearly proving all the requirements for a
customary m arriage. It should not have allowed conditional concessions and
assumptions to prevail. I am fortified in my view by what the constitutional court said
in Kruger v President of the Republic of South Africa, 2009 (1) SA 417 at para
102. It said:
"Ordinaril y a court accepts, without. deciding, factual concessions made by
the parties because the effect thereof is that the conceded issue is no longer
in dispute. This rule extends to legal concessions but only to the extent that a
court is satisfied that a conc ession was properly made. If the court is of the
view that a legal concession was improperly made, it is entitled to reject it and
decide the issue as if it remained in dispute"
[24] On the facts of this case, my preponderant view is that there were no
concessions made and if any same were not properly made and are therefore not
binding on this court. The issue regarding the existence of the customary marriage is
still in dispute. We cannot decide it on appeal.
[25] In the circumstances I am inescapab ly directed to make the following orders: -
1. The appeal is upheld with no order as to costs.
2. The order of the court a quo is set aside.
3. The matter is remitted to the court a quo for hearing of further
evidence on the existence or otherwise of th e customary marriage.
M. MANGENA
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
M.F. KGA NYAGO
JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
J.T. NGOBENI
JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
APPEARANCES
FOR APPELLANT : DDKK ATTORNEYS INCORPORATED
FOR RESPONDENTS : VZLR INC
HEARD ON : 25 APRIL 2025
DELIVERED ON : 19/06/2025