REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 034446/19
(1) REPORTABLE : NO
(2) OF INTEREST TO OTHER JU.DGES · NO
(3) REVISED : NO
IO·-Io,_ lt>2.._s
Date Sign ture
In the matter between:
M. M.(born M)
And
N. I. M.
JUDGMENT
Plaintiff
Defendant
THIS JUDGEMENT HAS BEEN HANDED DOWN REMOTELY/ELECTRONICALLY
AND SHALL BE CIRCULATED TO THE PARTIES BY WAY OF E- MAIL/
UPLOADING ON CASELINES AND/OR COURT ONLINE. ITS DATE OF HAND
DOWN SHALL BE DEEMED TO BE OCTOBER 10, 2025
1
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 034446/19
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date
In the matter between:
M. M.(born M)
And
N. I. M.
Signature
JUDGMENT
Plaintiff
Defendant
THIS JUDGEMENT HAS BEEN HANDED DOWN REMOTELY/ELECTRONICALLY
AND SHALL BE CIRCULATED TO THE PARTIES BY WAY OF E-MAIL/
UPLOADING ON CASELINES AND/OR COURT ONLINE. ITS DATE OF HAND
DOWN SHALL BE DEEMED TO BE OCTOBER 10, 2025
1
NTANGA AJ:
Introduction
[1] The plaintiff instituted an action against the defendant for inter alia an order in
the following terms:
a. declaring that she entered into a valid customary law marriage on or about
May 14, 2011, with the defendant;
b. a decree of divorce;
c. division of the joint estate, alternatively, division of the limited estate;
d. the Antenuptial Contract concluded between the plaintiff and the defendant
on or about December 21 , 2016, is invalid and unenforceable, alternatively
void, alternatively has been validly cancelled;
e. an order appointing a Receiver and Liquidator of the joint estate;
f. parental responsibilities and rights (as envisaged in terms of Section 18(2)
and Section 18(3) of the Children's Act 38 of 2005) pertaining to the 2 (two)
minor children are awarded to the plaintiff and defendant jointly subject to
the terms set out in the particulars of claim;
g. that the defendant shall pay maintenance to the minor children in the amount
of R40 000.00;
h. that the defendant is to pay to the plaintiff until her death or re-marriage,
whichever occurs first the amount of R80 000.00 per month.
[2] The defendant filed a counterclaim and sought an order inter alia in the following
terms:
a. a decree of divorce;
2
b. declaring the marriage relationship entered into between the parties as valid
and legal;
c. that the terms of the Antenuptial Contract entered into between the parties
are valid and enforceable;
d. that the plaintiff shall have primary residence and custody in respect of the
minor children and the defendant shall have reasonable rights and contact
with the minor children which reasonable rights of contact shall not interfere
w ith the minor's social, educational, religious and extra mural activities;
e. that the plaintiff and the defendant shall have full parental responsibilities and
rights in respect of the m inor children; and
f. the defendant to pay maintenance for the minor children in the amount of
R20 000.00 per month. The defendant will further be responsible for all
necessary school expenses and medical expenses. The defendant will
further buy monthly groceries and clothing for the minor children.
Background
[3] Both the plaintiff and defendant effected various amendments to their pleadings
before commencement of trial proceedings. In the amended particulars of claim
the plaintiff avers that the parties were married to each other in community of
property by way of a customary marriage on May 14, 2011, at Johannesburg,
Gauteng. The plaintiff avers that customary marriage was concluded as follows:
a. the defendant paid lobolo to the plaintiffs family;
b. the marriage was celebrated in two separate ceremonies held at the
plaintiffs and the defendant's home. These ceremonies included the
exchange of gifts between the two families as well as the welcoming of the
bride by the defendant's family;
3
c. on or about January 5, 2017, the parties married each other in terms of a
registered Antenuptial Contract. In terms of the Antenuptial Contract,
community of property and profit and loss were purportedly excluded as well
as the accrual system; and
d. the plaintiff averred that the Antenuptial Contract amounts to a postnuptial
variation of the matrimonial property regime of the parties from a marriage in
community of property, to a marriage out of community of property. The
plaintiff avers that the parties were obliged to obtain the leave of the Court
prior to the conclusion of the Antenuptial Contract in order to validly change
their matrimonial property regime from a marriage in community of property,
to a marriage out of community of property. The plaintiff avers that this failure
to obtain leave of the Court has rendered the Antenuptial Contract invalid
and unenforceable. The plaintiff further avers that the Antenuptial Contract
is void, alternatively voidable as a result of misrepresentation and/or duress.
[4] The defendant in his plea avers that the parties, acting in their personal capacity,
during or about the period of 2010/2011 entered into an explicit verbal
alternatively, tacit further alternatively implied agreement, the terms of which are
the following:
a. that the parties will in due course in the future enter into a civil marriage;
b. that, prior to entering into civil marriage, the parties will execute an
Antenuptial Contract in terms whereof the parties will agree to be married out
of community of property with the exclusion of the accrual system; and
c. that, for the sake of the parties' respective families and more specifically their
parents, the parties will participate in a traditional ceremony where lobolo is
exchanged, and certain traditional rights are followed.
4
[5] The defendant further averred that in terms of the foregoing agreement, during
or about May 2011 the parties and their respective families participated in the
exchange of lobolo. Subsequent to the aforesaid, the parties acted as follows:
a. at all relevant times arranged their respective financial affairs and conducted
their affairs as if they were not married;
b. the parties did not establish a joint estate; and
c. the parties maintained full de facto and de jure control over their respective
estates.
[6] The defendant's case is that he admits that certain customary rites were followed
but denies that such rites created or amounted to a customary marriage in terms
of customary law and further denies that it was the intention of the parties to be
married in terms of customary law.
[7] The defendant averred that the parties never intended to enter into a customary
marriage, and/or to establish a joint estate and further denies that the ceremonies
pleaded by the plaintiff established a customary marriage. In keeping with their
agreement, the parties entered into an Antenuptial Contract which resulted in a
civil marriage on January 5, 2017. The defendant further averred that at the time
when the parties concluded the Antenuptial Contract, and on the insistence of
the plaintiff, the parties agreed that certain benefits will be bestowed upon the
plaintiff in the event of the dissolution of the marriage. On dissolution of the
marriage by means of a Court order, the defendant shall pay the plaintiff an
agreed amount of R4 000 000.00 in complete discharge of the defendant's
patrimonial obligations including spousal maintenance by means of five equal
instalments in the sum of R800 000.00.
Issues for determination
[8] This Court is called upon to determine (i) whether the parties were married in
terms of customary marriage and consequences thereof; (ii) whether the
5
Antenuptial Contract entered into between the parties is valid in law and
consequently, whether the parties are married out of community of property in
terms of civil union; and (iii) whether the defendant should be ordered to pay
maintenance to the plaintiff in the amount of R500 000.00 per month until her
death or remarriage, which amount is inclusive of the two minor children's claim
for maintenance and support.
Plaintiff's Case
[91 The plaintiff testified in person as a single witness and no other witnesses were
called to support her case. Her testimony was the longest as she took more than
a week in the witness stand, whilst the defendant took just over a day to testify.
The plaintiff testified that she met the defendant on or about 2011. At the time
she was a presenter on a television show , and they were doing a shoot for
another television show known as "Soul City", which was broadcast on SABC 1
television channel. She was also on the third season of a show known as
"Tshisa", which was also broadcast on SABC 1 television channel. Her status
was that of a freelancer, meaning that she was not on a permanent contract.
[10] She testified that she did not have the skill of signing contracts and descr;bed
herself as terrible at dealing with contracts. Hence, she had an agent looking at
the contracts who would relay the messages and payment terms so that she
could understand what she was signing. She would then sign the contract once
everything was explained in depth and with the assistance of her agent who was
more qualified than she was . At the time, she was 21 years old, and her highest
standard of education was matriculation ("National Senior Certificate" or "NSC").
(11] The plaintiff testified that she first met the defendant on the set of a television
show known as Tshisa and the defendant was a guest for the foregoing television
show. They met again in a show she was shooting, known as Young, gifted and
black television show. That evening the defendant sent her an inbox via
black television show. That evening the defendant sent her an inbox via
Facebook, a social media channel, and asked her out for a coffee. Due to the
defendant's persistence over time, she finally gave in and agreed to go out on a
date with the defendant for coffee or dinner. The defendant picked her up from
6
her place and on their way the defendant told her that he wanted to get her on
that date so badly and he might have told a little lie. The defendant told her that
they were not going directly to a date, but he had two gigs before they could go,
and he did not want to miss out on the opportunity to go out with her. She
explained a gig as a booking for an artist be it for DJs, acting on television shows
and/or being a Master of Ceremonies.
[12] They went to the first gig in Wattville in the East Rand and later to the second gig
in Rosebank. After the second gig they could not go to a restaurant as it was
already past the time that restaurants were serving dinner. They decided to get
something to eat from a convenient store and went to the defendant's house
where they had great conversation; and they might have spoken until the early
hours of the morning. She was then convinced that they had something solid and
when she wanted to leave that evening and go home , the defendant talked her
out of it. They spent the night together and had a conversation until the sun rose,
from that day, they became inseparable.
[13] The plaintiff testified that after she became pregnant, she was scared because
she was not ready to have a baby at her age and without being married. They
had a conversation with the defendant; she started crying and the defendant
comforted and assured her that she had nothing to worry about as there was a
plan for their future. At the time she was unsure of what that meant but she
trusted the defendant and expected no harm from him.
[14] They then started talking about a trip to Greece as that was the defendant's next
place of performance. The defendant wanted her to experience the beginnings
of his beautiful career. They travelled to Greece together in the same flight, this
was a beautiful experience for her, and she felt innocent and pure. They travelled
economy class, but this is not how they travelled later in their relationship. The
economy class, but this is not how they travelled later in their relationship. The
trip to Greece was a new experience for her as she had never travelled
internationally.
[15] On arrival in Greece, they met the defendant's friends and went to a hotel. After
the defendant's first gig, they took a trip to the island called Santorini which she
7
described as one of the most beautiful places she has ever seen. As she was
pregnant, she had cravings and she wanted a hot dog, the defendant was on
edge, and this was unlike him. They finally decided to leave without the hot dog
and went to the hotel, they decided to get a burger, and she was happy that she
finally was getting something to eat. After an argument with the defendant, she
decided to give up on the burger.
(16] The sun was setting in the background, and the defendant led her up to the peak
and they watched the sunset in silence for the longest time. The plaintiff testified
that at some point she turned towards the defendant, and he was on his knee,
he asked for her hand in marriage, and he asked for her to be his wife, she did
not expect the proposal. It felt so beautiful to feel the same way someone else
does about her. This was a beautiful moment for her, and she accepted the
proposal as she also wanted to be the defendant's wife. She was more than
excited and took honour w ith the beautiful ring which was not too big but cute
and modest. She testified that when the defendant proposed, he went down on
his knees and said 'would you make me the happiest man in the world; you have
come into my life and so much has changed, you are truly the love of my life, and
I would love for you to be my wife. So, will you marry me and be my wife'. She
had never thought that she would be a wife at the age of twenty-one, but she
accepted that the man that she was in love with wanted her to be his wife.
[17] The plaintiff testified that her understanding of the proposal was that when they
got back home , they were to start planning for the wedding. On the same evening
as the proposal, the defendant mentioned that he would like to send a letter to
her uncles for negotiations. She sent everyone a message about the
engagement , and it was important to her that the defendant put a ring on her
finger. She sent a text message to her aunt advising her that her fiancee wanted
finger. She sent a text message to her aunt advising her that her fiancee wanted
to send a letter home . The aunt advised her to speak with her mother, who was
shocked because she was young. Her mother requested to see both of them ,
later when they were doing a shoot for a television show known as Zone 14. The
plaintiff's mother went to the defendant's vehicle, they spoke for a while and when
they went out, they were both crying. They had forged a relationship and walked
8
closer together; the defendant undertook to take care of her. The plaintiff's
mother gave them her blessing for their marriage.
[18] The plaintiff testified that she spoke to the defendant about the letter that was to
be sent to her family to initiate Jobolo negotiations. The defendant and his family
assembled a negotiation team and requested the plaintiff's mother to assemble
a team from the plaintiffs family, thereafter the first letter was delivered to the
plaintiff's mother who handed it over to the plaintiffs grandfather who was
deceased at the time of the proceedings.
[19] The plaintiff testified that the lobolo negotiations commenced and the first date
was set. The defendant and her were both nervous. The negotiation team went
to the plaintiff's family home in Mofolo, Soweto where her grandmother grew up
and her mother was staying at that house at the time. She testified that the
tradition was followed, the groom stood outside of the gate and asked for
permission to come in. Her uncles were not happy that she was engaged before
the defendant had spoken to her family, but she spoke to them and requested
leniency as she was in love and that the defendant was a millionaire. She wanted
her family to be fair so that things could also be good at home .
(20] There was a delegation from both sides of the families when the Jobolo
negotiations commenced. From the defendant's side, there was his sister, and
two friends whose full names were identified during the proceedings. From the
side of the plaintiff the delegation comprised her uncle, an aunt and her husband.
She testified that there were more but could not remember everyone at the time
of the proceedings.
[21] On how the tradition was followed she explained the Zulu tradition in relation to
the lobolo negotiations. She testified that the custom is that the makoti (bride)
should not be seen when the guests arrive. She was in the property but was not
allowed to see the family members of her husband to be. She was in her mother's
allowed to see the family members of her husband to be. She was in her mother's
bedroom within the property but was in communication with the defendant about
the negotiations.
9
[22] She testified that the defendant's family and friends came to the gate and
requested to be allowed access inside so that they could start lobolo
negotiations. Her family let them inside her home and they were led to the lounge.
She was in one of the bedrooms, the defendant's family and her family met in
the lounge. The discussions started and the amount required for /obolo was
discussed, she got impression that the defendant might have been talking to
some of his family members as he would call and say 'baby, this is too expensive,
can you ask them to bring it down '. She explained that she was referring to the
dowry. She would then communicate with her mother through the window and
tell her that it is too high and the defendant cannot afford it.
[23] The plaintiff testified that the families settled at R?0 000.00, and the defendant's
family paid R8 000.00 on the day. The rest was to be paid for on a separate day.
That was the lobolo amount was agreed between the two families. She was then
led out of the bedroom where she was seated, her family had prepared a meal
for the defendant's family, and everyone who was present. After eating they all
left, the plaintiff and the defendant then discussed the next step since the first
lobolo negotiations or the first round was done.
[24] The plaintiff referred to a document on 04-10 on Caselines and identified it as a
letter of confirmation and testified that it was a day when they had umembeso
and lobolo payment was completed. The letter is signed on behalf of both
families. She read the letter for the record, and it reads as follows:
"We the undersigned representing the families of ... and . . . met on the 14 May
2011. We confirm in writing that the amount of RS 000.00 (Eight Thousand Rands
only) was received on behalf of the ... family as balance payment for the lobolo of
... In full and final settlement.
Signed on behalf of ... family
Signed on behalf of ... family
Signed on behalf of ... family
Signed on behalf of ... family
(25] The plaintiff testified regarding this document and corrected her earlier version
by testifying that in the first meeting the amount of R62 000.00 was paid and the
10
R8 000.00 was the balance for the agreed lobolo amount. The plaintiff explained
that after the first lobolo negotiations, she together with the defendant went home
in Greymont. They discussed the next step and agreed to keep everything tight
and compact as possible without overspending as finances were not in
abundance at the time. Their suggestion was that they should complete
negotiations on the same day as the wedding in Soweto to avoid wasting
people's time and because they wanted to leave as a married couple.
[26] They both spoke to their families, and a date was settled for May 14, 2011. They
spoke about what should happen and the defendant's sister had explained that
there is umembeso which means that the groom's family must give gifts to the
bride's family. The defendant's sister wrote a list of what they will have to buy for
the groom's side of the family, and she explained that the same will happen on
the groom's family and that is called umbondo. The plaintiff explained that the
purpose of umbondo is to thank the groom's family for raising him. Regarding
umbondo, the plaintiff testified that the bride's family gives gifts to the groom's
family.
[27) The plaintiff testified that they went to Durban to give gifts to the defendant's
family. They discussed that umembeso would happen on May 14, 2011, and
umbondo would happen in Oceandale in Durban on June 25, 2011. The plaintiff
referred to the document on Caselines at 04-11 and identified it as an invitation
card for both traditional weddings. She testified that the first one was to be in
Soweto in her mother's primary residence and the second one was to be held in
Durban at Treasure Beach, Oceandale. The document identified by the plaintiff
as an invitation card reads as follows:
" ... and ... Invite you to share their joy as they celebrate their traditional wedding.
Umembeso held on ... 14/05/11 ... Mfolo Central. RSVP ... Umbondo 'held in
Durban 25-06-11 ... Ocea ndale Treasure Beach Blaff. RSVP ... ".
Durban 25-06-11 ... Ocea ndale Treasure Beach Blaff. RSVP ... ".
[28] The plaintiff testified that the document is the inside of the invitation card which
specifies that the plaintiff and the defendant were inviting everyone to celebrate
their traditional weddings. At the end of the invitation, it has a description of
11
umbondo and umembeso . She testified that persons indicated for RSVPs are her
aunt and the defendant's sister. She testified that the information in the invitation
card was obtained from both families but mostly from the defendant's sister who
was taking them through the custom of the Zulu tradition, and she helped them
regarding what they were doing and where. She testified that the defendant and
the plaintiff chose the dates to ensure that whoever needed to be there was
available. She testified that the defendant and the plaintiff both understood very
well that these are weddings. They both went to get outfits for their traditional
wedd ings. They went to a fashion designer in Rivonia, and they asked him to
make their wedding outfits as their wedding was taking place one in Durban and
the second one in Soweto. She testified that the plaintiff and the defendant had
conversations on the wedding that was printed on the invitation card.
[29) Regarding the day of the umembeso as she described it, the plaintiff testified that
the defendant's family arrived at her home's entrance and after some time they
were let in after discussions with the elders of her family, as that is the traditional
Zulu custom. The defendant's family was stuck in the gate because they were
late, and they were required to pay imvulamlomo (a tee payable by the groom's
family for starting negotiations). However, her family was not strict about it, and
they were let in. This was because there was a wedd ing on the day, and they
understood that time was most important. As a bride she was again put in a
separate room.
[30] The negotiations took a while, and she was not aware of what was going on for
the longest time, but the people would come to her room to explain what was
happening and why it was taking too long. After the negotiations were done, the
plaintiff was taken to a room with elderly women from her family who did what
was called ukulaya. She testified that this is a Zulu custom of giving advice about
was called ukulaya. She testified that this is a Zulu custom of giving advice about
marriage and the elderly women told her their experience as married women in
a marriage and how to handle situations when you are married.
[31] The plaintiff testified that whilst she was in the room, there was a slaughtering of
an animal. She testified that there was a bile, and she was told by the defendant's
family that when you are given a bile from the slaughtered animal, it is your
12
ancestors welcoming you into the new family you are going to, and she
specifically referred to the defendant's family. The plaintiff testified that the
defendant got a bile from her family, and they were given instructions by the
defendant's family on how to do it. After the slaughtering of the animal was
complete, she changed into a Zulu regalia, her friends were called abakhaphi.
[32] She stood up together with the abakhaphi and her family and created a passage
for herself and the defendant to walk out because the defendant had come into
the room. From the moment she walked out of the bedroom, she stepped into
the lounge where there were her aunts, uncles, the defendant's representatives
as well as friends and family. She was instructed to seat down on the floor, the
groom then walked in with abakhaphi. He was asked if she is the wife and the
woman he wanted to ma rry, he responded by saying 'yes this is indeed the
woman I wanted to marry'. The defendant left the lounge together with the plaintiff
and they walked to the street.
[33] There was euphoria, they all celebrated, walked outside of the door, the two
families were standing against each other. As they got closer, the two families
merged, became one and sang a song umakoti ngowethu, meaning the bride is
ours. There were neighbours and people who caught the wind about the
wedding. In the street they had set up a seating area for people to eat and to
wa tch them throughout the course of the bringing together of the families, but
most importantly, the plaintiff and defendant as husband and wife. They walked
out of the street as two groups of people and sang extremely loudly and it was
beautiful to listen to. She testified that she held hands with the defendant and
walked back to the venue, they sat in a seating area that was made for the bride
and the groom.
[34] The plaintiff testified about her attire and identified it as a traditional Zulu outfit.
She gave a description and meaning of her attire. She testified that the
She gave a description and meaning of her attire. She testified that the
defendant's family was very strict about the outfit that she had to wear apart from
the accessories. The scarf and the beaded belt were what a bride had to wear.
The length of the skirt was important because she was married and could not
wear anything short. The hat is called isicholo and married women wear it to
13
cover their hair. She testified that the outfit she was wearing on the day is what
she was told to wear as a married woman .
[35] The plaintiff testified that after taking their seats, the family elders came up and
spoke on what was happening, they told them that it was their traditional wedding
and that it was beautiful to have two families merge and become one, the uncles,
aunts and grandparents were called up to be given gifts. The gifts comprised of
coats, blankets and various gifts were handed over to her side of the family to
thank them for raising the plaintiff. The plaintiff went into detail to testify about
the festivities for the day, including the request by the elders for her to dance for
the defendant as her husband.
[36) The plaintiff referred to a beauty pageant event held at Sun International for a Ms
South Africa beauty contest. The plaintiff testified that the defendant was one of
the judges but had to withdraw because her sister was one of the contestants.
She referred to a media statement issued by Sun International indicating that the
defendant withdrew as a judge due to conflict of interest as one of the contestants
is a half-sister to the plaintiff. The following paragraph in the media statement is
ascribed to the defendant:
"I have recused myself from the judging process for Miss South Africa 2014
because it has emerged, to my surprise, that I am actually related by marriage to
Top 33 sem ifinalist ... Ms ... M iss ... is the half-sister of my wife ... and, although
she and her half-sister have only ever met twice in person, I had never met her,
and notwithstanding that we have no relations of any kind with her, I do not wish
any perception arising to distract from the pageant".
[37] The plaintiff testified about the second event which occurred at the defendant's
home in Durban. She testified that next to the defendant was umkhaphi who was
her cousin and in accordance with the instruction given to them, umkhaphi must
her cousin and in accordance with the instruction given to them, umkhaphi must
be a married person. The instruction was given from the defendant's side of the
family. This umkhaphi's husband was seated on the far left of the picture
presented as evidence 1.
1 Caselines at 04-22.
14
[38] The plaintiff testified that she was instructed to sit on the floor w ith umkhaph i and
that the order of the day was that she would sit on the chair when her husband
had told her to come seat. The defendant asked her to sit next to him as he did
not like that she was sitting on the floor, but they had to adhere to the custom.
She sat on the floor w ith umkhaphi who is the plaintiffs cousin. The plaintiff
testified that they were instructed on the type of gifts to bring to the defendant's
family. They walked up the hill with the gifts on their heads, she testified that
unfortunately, the defendant took the computer that had all the images, and she
could not produce them in Court.
[39) The plaintiff testified that they carried gifts on their heads as the family sang up
the hill. They walked to the defendant's homestead and sang until they were
invited inside, and this was an acceptance of her to the new home as a makoti.
She was given the name of Nombeko as a makoti to the defendant's family. She
testified that after the weddings she was referred to as makoti. Her grandmother
constantly called her, prayed and told her how to be in the marital home, she
wou ld refer to the bible. She testified that they lived as husband and wife and
that the defendant referred to her as his wife. She disputed the defendant's
version that the traditional ceremonies were done for the sake of the parents and
the families. She testified that in the African culture, the elders are the ones who
run the wedding itself and that is exactly what happened, they wanted to be
married and that was it.
(40] The plaintiff argued that if the defendant did not intend for their ceremony to be
a traditional wedding, he could have stopped it and mentioned that it was not
what he wanted it to be. She testified that the defendant is the one who initiated
lobolo negotiations which includes sending the letter proposing /obolo
negotiations. The plaintiff testified that the defendant referred to her as his wife,
negotiations. The plaintiff testified that the defendant referred to her as his wife,
icherry yam i or umfazi wami. He referred to her and introduced her as his wife.
She testified that they called each other Nana or husband and wife.
[41] The plaintiff testified about their living arrangements with the defendant after the
ceremonies and averred that they wanted a home together. They spoke about
having a white wedding, but they did not find it important because they were
15
already married and that the defendant really wanted to create a home for her
outside of the property they were staying at. Their plan was to buy a piece of land
to start their new life and build a home from scratch.
[42] They went to see various properties whilst staying in Greymont. The plaintiff
referred to a property in Northcliff which is in a gated area where the defendant
intended to purchase as their home . She testified that the defendant was not
happy that the previous girlfriend had been to the house they were staying in,
and they moved to a property in Parkmore, opposite where they were staying
and rented the property for their residential purposes. This was done whilst they
were going to get funds to start building in the Northcliff piece of land and
renovate the other property. Unfortunately, the Northcliff property did not
materialize as the plaintiff had seen and liked a property in Parkmore, which is
now their matrimonial home . According to the plaintiff, this was a humble home ,
and it was for sale.
[43) The plaintiff adduced evidence in dealing with her claim for maintenance and
support of their minor children as well as her spousal support. The plaintiff
testified that the defendant was paying for everything, she had a monthly stipend,
and the defendant had a bank card for them in which he loaded R1 million every
year so that she could spend the money on odd things. She testified that the
m onthly stipend was for groceries, small things of the house and the rest she
could spend on hair, nails, treatments and children. Each time she needed
money the defendant would deposit it into the account. She testified that she was
well taken care of financially by the defendant. The plaintiff averred that the
defendant was brand conscious and would ask her to purchase designer
handbags, she then knew the standard that they had to uplift themselves to as a
couple.
[44] The plaintiff testified that they lived a luxurious lifestyle, they purchased designer
[44] The plaintiff testified that they lived a luxurious lifestyle, they purchased designer
furniture and gave an example of a couch that they purchased at R80 000.00.
When they went shopping, they would spend about R400 000.00. Regarding the
stipend amount, she testified that it was a small amount which was constantly
depleted. The defendant would give her R30 000.00 a month and as soon as the
16
amount is finished, she would go back to the defendant and make more requests
for funds. The plaintiff testified that the defendant was specific on how he wanted
the house to look like, he wanted the house to smell good, they purchased
aromica perfumes which were quite pricey. The defendant would ask her to write
down a budget of what is needed. The defendant was specific on what should
be on the menu for the house and some of the items were expensive.
[45] The plaintiff testified that they had many cars which they constantly changed.
She mentioned examples of the cars they had and mentioned a Bentley, a
Maserati and a Mercedes Benz which she described as having suicide doors and
its rims cost R200 000.00. She testified that there was constant circulation of
luxury cars, and she drove every single one of them and the defendant
considered the vehicles to be hers. There was a point where they had to park
some of the cars outside. There would be two vehicles in the garage, three in the
parking bay and one would be parked in parallel. The plaintiff estimated the value
of their estate to be approximately R100 000 000.00.
[46] The plaintiff testified that after the 2011 ceremonies, the defendant was very
uncomfortable with her line of work. Prior to the celebrations he was proud that
she was an actress, however, this changed after the ceremonies. The defendant
was no longer comfortable with her taking kissing scenes. She testified that her
mother advised her to respect her husband. The plaintiff testified that at some
point she became rebellious and took a job that had one kissing scene. She
testified that for the bulk of the time she did not take any jobs because it made
her fight with the defendant, she decided to keep peace and work towards their
marriage.
[47) The plaintiff testified that the defendant promised that when his career is up and
running, he would help chase her dreams and ambition of being an international
running, he would help chase her dreams and ambition of being an international
performer. He undertook to use his influence to assist her. She would stop
working for a while and look after the home.
[48] The plaintiff testified that her career became dormant, she worked now and then
to try and save it. She would go behind the defendant's back, sign a contract and
17
later tell the defendant about it. She testified that ma jority of the time she was not
working. She did not have a stable income apart from what she referred to in the
bank statement. The plaintiff testified that the defendant's star would not have
risen without her contribution towards household activities wh ich included her
taking care of the children and their needs. She testified that she handled the
children daily, assured that they had breakfast, meals and lunch. Somet imes she
would walk to the nursery school, pick the children up and would do everything
that had to do w ith the household. She ensured that there was food in the house,
that everyone that was hired in the house was looked after and that the defendant
was picked up from the airport, though the picking up from the airport deteriorated
over time .
[49] The plaintiff testified that around 2016 they started talking about the white
wedd ing and they identified December 2017 as a date for the wh ite wedding due
to venue change. The defendant had told her that she needed to sign a contract.
Upo n enquiry, the defendant advised her that it was just a marriage contract, and
she had nothing to stress about. The defendant assured her that it was going to
be a simple contract, and everything would be discussed with her at the office of
the lawyers who prepared the contract. She testified that in hindsight, she should
have attended the meeting to sign the contract relating to the wedding with her
legal representative. She went ahead with the signing of the contract because of
the trust she had in the defendant. She had asked the defendant if she would
need a lawyer and the defendant replied in the negative and said he did not have
a legal representative as well.
[50] The plaintiff testified that the defendant advised her that they would discuss the
contract at the lawyers' offices and there was no need to talk about it beforehand.
She had no idea of what was to be talked about. Upon arrival, they were led to a
She had no idea of what was to be talked about. Upon arrival, they were led to a
boardroom where both the plaintiff and the defendant met the lawyer who was to
assist them w ith the contract. The lawyer explained the Antenuptial Contract and
asked her if they were to separate what she would wa nt from the defendant. The
defendant proposed R4 000 000.00, and she requested him to go a bit higher.
The defendant replied by saying no and she left it at that.
18
[51] She testified that she did not have full understanding of what was being explained
but everyone in the room seemed to be moving in the same direction and the
defendant looked comfortable. At the time she held a view that if the defendant
was comfortable, she should also be comfortable as he had never done anything
to her in any way or throw her under the bus. The plaintiff testified that the next
discussion was about the vehicle and the defendant mentioned R800 000 for the
vehicle, she was a bit taken aback as the vehicles they owned were valued at
more than the amount proposed, however, she agreed to it. The plaintiff
confirmed that she signed the Antenuptial Contract.
[52] She testified that she was not aware that the implication of customary union
means that they are married in community of property. She only knew about this
when consulting with her legal representatives in relation to this matter. The
plaintiff testified that no one explained to her in the room where they signed the
Antenuptial Contract that she was married in community of property and that by
signing that document, she was no longer married in community of property.
(53) The plaintiff testified that she did not wa ive her rights in terms of the customary
union. She did not know that she had rights to waive. She testified that she
requests the Court to consider that the first wedding took place in 2011 and she
would like her fifty percent to be taken into consideration from 2011 until the day
the Antenuptial Contract was signed, should the Court find that the Antenuptial
Contract is valid.
[54) Regarding monthly expenditures, the plaintiff did an exercise of calculating
household monthly expenses and came to a figure of R120 000.00. She could
contribute an amount of R40 000.00 but unfortunately, she is not employed on a
permanent basis. She testified that during the year of her testimony, she was
only employed for three months. She is nowhere close to matching the
only employed for three months. She is nowhere close to matching the
defendant's income. When she got an au pair, she bought a Reno vehicle for the
children to be driven. She considers this to be a significant drop from what the
children are used to. Regarding maintenance of the minor children for her to
maintain the lifestyle of the minor children, an amount of R50 000.00 per child
will suffice.
19
[55) Regarding spousal maintenance, the plaintiff testified that she is accustomed to
a luxurious lifestyle and the defendant as her husband has made sure that her
lifestyle was at a certain level. She testified that the amount of R15 000.00 she
currently receives as a result of the Rule 43 Court Order is not sufficient to
maintain her lifestyle.
[56] The plaintiff explained her lifestyle by testifying that she used to get shopping
sprees of thousands of rands, Euros and Dollars. She averred that she used to
purchase the best of everything, she lived the life of luxury and requested the
Court to increase the spousal maintenance and went in detail to explain the
nature of the lifestyle she is accustomed to. She testified that she is currently a
freelance actress, and this varies from once a year to working five times a year,
one short start project, or one six-month project. She is unable to sustain herself
the way the defendant would. She is older and the roles are not always available
for an older female. In total the plaintiff testified that an amount of R500 000.00
will be sufficient for both minor children and her.
[57] The plaintiff testified that they started having difficulties in their marriage and
averred that the defendant had extra-marital affairs which resulted in the
defendant having children outside of their marriage. Both parties confirmed that
their marriage relationship has irretrievably broken down and that there are no
prospects of restoring it to a normal marriage relationship.
The defendant's case
[58] The defendant testified in his defense as the only witness. Before
commencement of the defendant's evidence in chief, the defendant's Counsel
addressed the Court regarding an offer made without prejudice to which he was
instructed to make on record. The defendant tendered to allow the plaintiff to
reside in the house that she presently resides in. The defendant will continue to
pay the bond registered over that property and the property can become the
pay the bond registered over that property and the property can become the
property of the plaintiff in full ownership.
20
[59] The defendant further tendered to pay the plaintiff the amount of R4 million set
out in the Antenuptial Contract over and above the property and he will continue
to pay maintenance for the minor children as ordered in terms of Rule 43 plus
the ancillary expenses of the children as ordered. The plaintiff's Counsel
confirmed that the foregoing offer was not accepted by the plaintiff.
[60] The defendant testified that he had love for music as a child and has always been
drawn to music and he joined a music class from junior secondary level until
Matric. When he was younger there used to be two different guys in his township
that had a mobile sound system. He would get hired to play music off a sound
system at events like weddings, birthday parties and graduations. He testified
that by the time he was in high school, he was an established DJ in his
neighbourhood. When he went to study at Natal Technicon, he was a DJ on the
side, he played in nightclubs already. He testified that after releasing his second
album, he started licensing music internationally with other small record labels.
At the time he was already an independent artist and did whatever he wanted to
do with his music. When he released his third album in 2008, he was already an
established DJ internationally. His music started being released and played by
DJs internationally.
[61) The defendant testified that he met the plaintiff in 2010 at an award ceremony
where he was nominated for an award. The plaintiff was working at that award
ceremony. He testified that he started travelling internationally for his first gig in
2007, which was in Barcelona and his second gig was in Paris in 2008 where he
met an agent who took him as one of his artists under his management.
Thereafter his career grew as an international artist.
[62] Regarding his cultural background, the defendant testified that he was born in
Kwazulu-Natal ("KZN ") from a big family. He relocated to Eastern Cape to his
Kwazulu-Natal ("KZN ") from a big family. He relocated to Eastern Cape to his
maternal grandmother's house. There was a partial difference as the then
Transkei where his maternal grandmother lived was underdeveloped. He had to
learn a new language, when he went to KZN for holidays, he would be referred
to as a Xhosana because he spoke lsixhosa. He found himself not belonging
21
anywhere because whe n he went back to Eastern Cape he wo uld be identified
as Zulu speaking.
[63] When he turned 18 years old, this was a time to go to an initiation school, things
became complicated because he is not Xhosa. Because of peer pressure he
ended up going to an initiation school without his grandmother knowing about it.
When his father heard about this, he sent his uncles who took him out before the
end of the initiation school process. He could not do the full ceremony like
everyone else of com ing out as a Xhosa boy, more so because it is not his
culture.
[64] The defendant testified that growing up in Eastern Cape he had dreams of living
a different life. This is because he grew up in a disadvantaged place which he
believes still is. He used to have dreams of living in America, that is what he
wanted to do. He wanted to be a big star. He testified that culturally, there was
nothing as his grandmother was church going and never performed any cultural
rituals. They we re raised like that and went to church every Sunday. The
defendant testified that he never had a cultural activity in his family.
[65] The defendant testified that whe n he met the plaintiff he was staying in Greymon t,
Johannesburg and he was doing very well for himself, he had a vehicle and
furniture. He testified that when he met the plaintiff, she had a car that was a little
beat up, it had damages . When the plaintiff got pregnant, she drove this vehicle,
and he decided to buy her a new car the sam e year. He believes that the
comments about him being a millionaire originate from this.
[66] The defendant testified that after the plaintiff fell pregnant, he had a trip to Greece
and invited the plaintiff to the trip. He told his friends about his plan and one of
his friends had a ring, his plan was that after doing all the shows they would go
to the island where he would propose to the plaintiff. His friends helped him to
plan the whole trip. They eventually travelled to Santorini where he planned to
plan the whole trip. They eventually travelled to Santorini where he planned to
propose. They had a big fight because he wanted them to get quickly to a very
well-known place where people go for sunset. He wanted to arrive before sunset
because they were a little bit late. The plaintiff wanted to eat but unfortunately,
22
time was not on their side, and the plaintiff did not like that. The mood was not
exactly what he wanted but he wanted to make a proposal around sunset, and it
happened. He went down on his knees and made a proposal, they went to a
chapel close by, prayed and went back to the hotel. The plaintiff started to send
text messages to her family about the proposal. He testified that the next step
was a white wedding, he explained the white wedding to be a civil union.
[67] The defendant testified that the white wedding is something they discussed with
the plaintiff. He testified that as an artist, he owns half of the songs written and
other people own the other half. If he would not marry right that means he would
have involved another person, this he testified was always his clear vision
including the love he has for other things. He did not have to always have his
partner signing every time he wanted to do a deal. They wanted to sign an
Antenuptial Contract before the white wedding as the plaintiff was an
entrepreneur as well. Before the proposal he did not involve his family.
[68] The defendant testified that the plaintiff advised her that her family was not happy
with the fact that he did this thing the western way without speaking to anyone in
the family. He then spoke to his family and asked for advice on how they were
going to move forward before they could do what they wanted to do and what
was the best way to appease the family. They wanted to make sure that things
were done the right way. He spoke to his family, and the suggestion was to do
umembeso where the families meet. He was advised that the first thing was to
send people to recognize the fact that the plaintiff is pregnant and acknowledge
the pregnancy at the same time. Thereafter they acknowledge that they needed
to have a family mee ting before they could do what they intended to do. He
testified that he never intended to have a customary marriage.
testified that he never intended to have a customary marriage.
[69] He testified that he did not know exactly what a customary marriage is. They
never discussed customary marriage as what they wanted was a white wedding.
He testified that they discussed with the plaintiff that they were going to do a
prenup before and that is what they spoke about. He testified that there was
never a conversation about a customary marriage, he does not know how it
works. The defendant testified that his understanding was that the plaintiff had
23
the same understanding, they both did not know how customary m arriage works,
which is why she told him that her family was not happy instead of saying he had
to first call her family. They were in the same space that did not understand or
know anything about the customs.
[70] The defendant testified that the first thing was for them to go to the plaintiffs
family to address the pregnancy, wh ich is a common thing and address the fact
that they had an intention of marriage together, hence the lobolo negotiations.
That is the process whe re his family went to meet the plaintiffs family in Soweto,
but he does not know what to call it. The defendant testified that it is umembeso
whe re his family went to the plaintiff's home and then plaintiffs family went to
his home to bring gifts to introduce each other. He testified that this is how he
thinks solved the situation that the uncles were not happy about, from there they
continued with their plans, and he was looking for a notary to help them at the
time.
[71] The defendant testified that the outfit he was wearing during the ceremony was
a designed two-piece suit not a traditional outfit. He disputed the plaintiffs version
that bile was put on his clothes and that bile was put on her mouth. He testified
that he would not put bile on his clothes or mouth.
[72] In explaining the time it took to do the white wedding, the defendant testified that
he was very careful about how they did things. He did not want to splash money
on a wedding when they did not have a home . He wanted to first find a place to
stay and know that they have a home to come back to after the wedding. They
started working on renovating the house, but the plaintiff became pregnant w ith
the second baby, and they decided to have their last born in America.
[73] They moved to Amer ica and stayed there for seven months. The plan was to be
away while the house was being built, and they came back after the house was
away while the house was being built, and they came back after the house was
finished. They left again because the plaintiff wanted to go to college and find
things related to acting. They moved to Los Angeles whilst the house was still
being renovated but started schooling in New York and later moved to Los
24
Angeles. The plaintiff also did some shoots in Los Angeles and came back to
South Africa after the house was complete.
[74] The defendant disputed the plaintiff's version that they are married by customary
marriage. He testified that the only time that he had ever been married with the
plaintiff was a civil marriage. They did everything that they had planned to marry
in terms of civil marriage. The defendant testified that they discussed the
Antenuptial Contract, and they went to see the notaries together. He testified that
he did not have any other representative that was there to assist him when they
went to sign the Antenuptial Contract, and they had the same notaries whom he
found through his agent.
[75] He testified that after the enquiry by the notary of what they wanted, he then
asked the plaintiff if they got to a point where their marriage dissolves, what would
she want, and she responded by saying nothing. That is how the issue of the
house and the vehicle came about and provided for in the Antenuptial Contract.
He disputed the plaintiff's version that she saw the Antenuptial Contract for the
first time when they met the notary to sign it. He testified that an email was sent
by the notary to both of them before the meeting. He referred to a document
discovered and testified that it is an email trail of the email sent to both of them
by the notary.
(76] The defendant disputed the plaintiff's version that the white wedding was a party
to celebrate the wedding they already had. He testified that this was the wedding
he had been wanting and waiting for. The defendant averred that their purpose
was either to marry in commun ity or out of community of property.
(77] Regarding his financial affairs, the defendant testified that his financial affairs
were the same before they were together and even after they got married. He
testified that he never consulted the plaintiff on how to conduct his financial
affairs. He averred that he made his own decisions with his earnings, and the
affairs. He averred that he made his own decisions with his earnings, and the
plaintiff made her own decisions w ith her earnings. The plaintiff averred that their
financial affairs were conducted separately, each party handled their affairs as
their own .
25
[78) Regarding maintenance of the minor children, the defendant testified that he
pays R50 000.00 every month in addition to school fees. He made an example
of the amount of R300 000.00 he pays for school fees of one of the children. He
testified that one of the children is in the racing academy and the fees for that
are R1 million. He testified that he pays R48 000.00 for security in the house
where the plaintiff and the children reside. He disputed the plaintiff's version that
there was a time when the children had to go hungry because of his failure to
maintain them . The defendant testified that the plaintiff does not need
maintenance from him as she is employed. He testified that the plaintiff bought
herself a • Porsche vehicle and that there is a second vehicle that he does not
know whether she got it through endorsements. He disputed the plaintiff's claim
of R500 000.00 for ma intenance.
Legal Framework and Analysis in relation to the customary union
[79] Section 1 of the Recognition of Customary Marriages Act defines customary law
and customary marriage as follows:
"Customa ry law means the customs and usages traditionally observed among the
indigenous African people of South Africa and which form part of the culture of
those peoples ...
Customary marriage means a marriage concluded in accordance with customary
law".
[80] Section 1 of the Recognition of Customary Marriages Act defines lobolo as
follows:
"me ans the property in cash or in kind, whether known as lobolo, bokgadi, bohali,
xuma, lumalo, thaka, ikhazi, Magadi, emabheka or by any other name , wh ich a
prospective husband or the head of his family undertakes to give to the head of
the prospective wife's family in consideration of a customary marriage".
26
[81] The Recognition of Customary Marriages Act sets out the requirements for
validity of a customary marriage in Section 3 as follows:
"(1) For a customary marriage entered into after commencement of this Act to be
valid-
(a) The prospective spouses-
(i) must both be above the age of 18 years; and
(ii) must both consent to be married to each other under customary law; and
(b) the marriage must be negotiated and entered into or celebrated in accordance
with customary law."
[82] Section 7(2) of the Recognition of Customary Marriages Act deals with
proprietary consequences of customary marriages and provides as follows:
(2) A customary marriage in which a spouse is not a partner in any other existing
customa ry marriage, is a marriage in community of property and of profit and loss
between the spouses, unless such consequences are specifically excluded by the
spouses in an antenuptial contract which regulates the matrimonial property
system of their marriage".
[83] Dissolution of customary marriages is dealt with in Section 8 of the Recognition
of Customary marriages Act which provides that:
"(1) A customary marriage may only be dissolved by a court by a decree of divorce
on the ground of the irretrievable breakdown of the marriage.
[84] The Constitution entrenches the right of everyone to equality, to participate in the
cultural life of their choice and to enjoy their culture. The Recognition of
Customary Marriages Act is a leaving example of enabling legislation enacted to
ensure realization of these rights. The preamble of this Act sets out its purpose
inter alia as: (i) to make provision for the recognition of customary marriages; (ii)
to specify the requirements for a valid customary marriage; . . . (iii) to provide
27
equal status and capacity of spouses of such marriages; and (iv) to regulate the
dissolution of customary marriages.
[85] This in my view is an indication that customary law is not to be treated as
secondary or subsidiary to any other law that is applied in our country. This is a
development in our legal system which demonstrates a departure from the legal
system which did not recognize the African customs and equality of South
Africans, particularly the rights of women . As the Supreme Court of Appeal
stated, this aspires to rid the customary marriage of the pariah-status and stigma
to it by the apartheid regime and accords it dignity and legal validity.2 The Court
has an important function to give careful consideration on whether customary law
is applicable when making a determination of a matter brought before Court.
[86] In Alexkor Ltd v The Richtersveld Community> the Court stated that:
"While in the past indigenous law was seen through the common-law lens, it must
now be seen as an integral part of our law. Like all laws it depends on its ultimate
force and validity on the Constitution. The courts are obliged by s 211 (3) of the
Constitution to apply customary law when it is applicable, subject to the
Constitution and any legislation that deals with customary law. In doing so the
court must have regard to the spirit, purport and objects of the Bill of R ights. Our
Constitution
' ... does not deny the existence of any other rights or freedoms that are recognized
or conferred by common law, customary law or legislation, to the extent that they
are consistent with the Bill (of Rights)'.
It is clear, therefore, that the Constitution acknowledges the originality and
distinctiveness of the indigenous law as an independent source of norms w ithin
the legal system. At the same time the Constitution, while giving force to
indigenous law , makes it clear that such law is subject to the Constitution and has
to be interpreted in the light of its values. Furthermore, like the common law,
to be interpreted in the light of its values. Furthermore, like the common law,
indigenous law is subject to any legislation, consistent with the Constitution, that
2 See Moropane v Southon (2014] ZASCA (29 May 2014) at para 44.
3 2004 (5) SA 460 (CC) at para 51.
28
specifically deals with it. In the result, indigenous law feeds into, nourishes, fuses
with and becomes part of the amalgam of South African law".
[87) Customary law is not static; it changes w ith time. A check list in the form of a tick
box approach is not the best way of determining whether parties before Court
are married in terms of customary law. As the Supreme Court of Appea l
described it, customary law is a dynamic system of our law.4 In the instant case,
the dispute lies on whether the parties intended to enter into a customary
marriage. The defendant argued that the customary rites were undertaken to
appease their families. On the contrary, the plaintiff argued that this constituted
a valid customary marriage between them.
[88) The Courts have pointed out that in dealing with issues of this nature, the answer
lies in Section 3(1) of the Recognition of Customary Marriages Act.5 This section
sets out the statutory requirements for the validity of a customary marriage. The
diversity and pluralistic nature of the African communities practicing customs,
rituals and cultures makes it impossible to develop a step-by-step description of
what may constitute comp lete requirements for a valid customary marriage. In
the instant case, the parties acknowledged their limited knowledge on customary
practices relating to a Zulu customary marriage.
[89] They both testified that they relied on their family members for advice and
guidance on what steps were to be taken. Both parties did not call an expert on
Zulu customary marriages. They also did not call any of the parties who were
present during their customary ceremony, including the defendant's sister whom
they testified was their key advisor on how to conduct the customary ceremony.
This Court is limited to what was presented as evidence to determine whether
there is a valid customary marriage between the parties.
4 See Moropane v Southon (2014] ZASCA (29 May 2014).
6 Id at para 33.
29
[90] In MM v MN6 the Court stated that:
"Section 3(1 )(a) introduces express substantive validity requirements that were not
required under pre-colonial notions of customary law: the m ajority age and the
consent of both parties to the impending marriage. This development is significant
since, in pre-colonial times, 'marriage was always a bond between families and
not between individual spouses' and the bride and groom-to-be were thus not
always the most important decision-makers with regard to their pending rituals.
Section 3(1) goes on to stipulate that 'the marriage must be negotiated and
entered into or celebrated in accordance with customary law'. Customary law may
thus impose validity requirements in addition to those set out in ss (1)(a). In order
to determine such requirements a court would have to have regard to the
customary practices of the relevant community".
[91] In Moropane v Southon, the Court stated that
"Furthermore, African law and its customs are not static but dynamic. T hey
develop and change along w ith the society in which they are practiced. This
capacity to change requires the court to investigate the customs, culture, rituals
and usages of a particular ethnic group to determine whether their marriage was
negotiated and concluded in terms of their customary law at the particular time of
their evolution. This is so particularly as the Act defines 'customary law' as the
customs and usages traditionally observed among the indigenous African peoples
of South Africa and which form part of the cultures of those people" .7
[92] The Supreme Court of Appeal8 formulated the ways in which indigenous law may
be established, namely: (i) a Court may take judicial notice of it and this can only
happen where it can read!IY be ascertained with sufficient certainty; (ii) where it
cannot be readily ascertained, expert evidence may be adduced to establish it;
and (iii) finally, a Court may consult text books and case law. In consideration of
and (iii) finally, a Court may consult text books and case law. In consideration of
. these factors, the Court still must judiciously exercise its duties and
responsibilities.
8 2013 (4) SA415 (CC) at para 29.
7 See Mo ropane v Southon para 36.
8 See Moropane v Southon at para 150.
30
[93] In MM V MN9 the Court stated that:
"Paradoxically, the strength of customary law - its adaptive inherent flexibility - is
also a potential difficulty when it comes to its application and enforcement in a
court of law . As stated by Langa DCJ in Bhe , '(t)he difficulty lies not so much in
the acceptance of the notion of "living" customary law ... but in determining its
content and testing it, as the court should, against the provisions of the Bill of
R ights".
[94] The defendant referred this Court to the decision of Shilubana & Others v
Nwam itwa10 where the Court stated that:
"It follows that the practice of a particular commun ity is relevant when determining
the content of a customary-law norm. As this court held in Richtersveld, the content
of customary law must be determined with reference to both the history and the
usage of the community concerned. 'Living' customary law is not always easy to
establish and it may sometimes not be possible to determine a new position w ith
clarity. Where there is, however, a dispute over the law of a community, parties
should strive to place evidence of the present practice of that community before
the courts, and courts have a duty to exam ine the law in the context of a community
and to acknowledge developments if they have occurred".
[95] In the instant case, it is not in dispute that the customary rites were practiced. It
is the defendant's case that the customary rites were practiced to appease their
families. The document referred to by the plaintiff relating to payment of lobolo
demonstrates that the families were in full control of the process. This is in
keeping with the traditional practice and the authorities referred to herein. The
plaintiff referred to the document signed for and on behalf of both families.11 The
document reads:
"14 May 2011
9 MM V MN at para 25.
,o 2009 (2) SA 66 (CC).
11 Caselines 04-10.
31
We the undersigned representing the families of ... family and ... family met on
the 14 May 2011. We confirm in writing that the amount of (my emphasis)
R8000.00 (Eight Thousand Rands only) was received on behalf of the ... family
as balance payment for the lobofo of ... In full and final settlement.
Signed on behalf of ... family
Signed on behalf of ... family
[96] It is common cause that the lobolo was paid on behalf of the defendant by his
family to the plaintiff's family. There is no dispute that this was in accordance with
customary law and practice. The traditional practice is that whilst the bride and
the groom are part of the practice, they take guidance from the families, the
evidence in these proceedings indicates that this is exactly what happened.
[97) The defendant in his evidence cast doubt on the fullness of the customary
activity they undertook and denied the plaintiff's version that bile was used on
him, he denied that his attire was a traditional outfit, he disputed the plaintiff's
version that there was a singing of a wedding song "umakoti ngowethu". He
disputed the plaintiff's version that the plaintiff was requested to dance (ukugida)
for him as his wife. This having been said, it was never the defendant's case that
there was non-compliance w ith the prescripts of a customary law for a valid
customary marriage to be in existence. The dispute is whether the parties were
married in terms of a valid customary marriage or in terms of civil union.
[98] There are two mutually distractive versions placed before this Court. The
plaintiff's version is that she is married to the defendant in terms of customary
marriage. The defendant's version is that he is married to the plaintiff in terms of
civil union and that an Antenuptial Contract was entered into between the parties
prior to the civil union to ensure regulation of the patrimonial regime during their
marriage. When faced with two mutually destructive versions, the Court must
32
evaluate all evidence to determine wh ich of the two versions is more probable
and meets the required standard of proof.
[99] This Court is called upon to make an evaluation of evidence adduced before it to
determine the marriage and matrimonial regime between the parties. It is
common cause that when the parties met, they fell in love. They were so in love
that they decided to take their love relationship to the next level. They were both
determined to start a family together and spend the rest of their lives as husband
and wife. What seems to be the issue is how they are married, as this brings
about the patrimonial consequences, depending on the nature of their marriage.
Consequently, the plaintiff requests that, the Court should find that she is married
to the defendant in terms of a valid customary marriage and that the Antenuptial
Contract entered into between the parties is invalid and unenforceable,
alternatively void, alternatively voidable, alternatively has been validly cancelled.
On the other hand, the defendant requests the Court to find that he is married to
the plaintiff in terms of civil marriage and that the Antenuptial Contract entered
into before their civil union is valid.
Single testimony
[100]The plaintiff and defendant's evidence is based on a single witness testimony.
Both of them did not call additional witnesses to corroborate their evidence. It is
trite that the Court is required to exercise judicial discretion regarding single
witness testimony. I have pointed out that neither of the parties called persons
who were present during performance of the customary rites, and they did not
call any expert w itness in relation to the customary rites of Zulu customary
marriages.
[101]The evidence adduced by the parties requires the Court to consider legal
principles applicable when resolving factual disputes, the Court is required to find
where the truth lies between the two mutually destructive versions.12 The Court
where the truth lies between the two mutually destructive versions.12 The Court
12 Mhlanga v Passenger Rail Agency ZAGPJHC 147 (17 April 2020).
33
in Stellenbosch Farmers' Winery Group Ltd and Another v Martell & Cie SA &
Others13 set out the following principles:
The technique generally emp loyed by courts in resolving factual disputes of this
nature may conveniently be summar ized as follows. To come to a conclusion on
the disputed issues a court must make findings on (a) the credibility of the various
factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court's
finding on the credibility of a particular w itness will depend on its impression about
the veracity of the witness ... the court will then, as a final step, determine whether
the party burdened w ith onus of proof has discharged it".
[102]The plaintiff's evidence was in my view clear and satisfactory; her evidence was
convincing in both evidence in-chief and under cross-examination. I did not find
her evasive when answering questions. Her evidence was consistent w ith the
documentary evidence that was referred to during the proceedings. The plaintiff
showed confidence and was unshaken during evidence in chief and under
cross-examination. She was truthful, answered questions fairly and honestly and
she was straightforward. I am satisfied that her evidence may be relied upon.
[103]The defendant was also clear in his evidence, and he was forthright and
straightforward in his testimony. He showed confidence and was unshaken
during his testimony, both during his evidence in-chief and under cross
examination. Under cross-examination he seemed to avoid and deny basic
questions in relation to the occurrence of events during the celebrations. It is
impossible to believe that the defendant was unaware that the celebrations were
that of a customary marriage. It is improbable that the defendant had no
knowledge of the invitation that was issued to invite guests to their traditional
wedding. The invitation card expressly invited guests to attend a traditional
wedding celebration of the plaintiff and the defendant.
13 2003 (1) SA 11 (SCA) at para 5.
34
[104] In National Employers' General Insurance Co Ltd v Jagers14 the Court stated
that
"It seems to me, w ith respect, that in any civil case, as in any criminal case, the
onus can ordinarily be discharged by adducing credible evidence to support the
case of the party on whom the onus rests. In a civil case the onus is obviously not
as heavy as it is in a criminal case, but nevertheless where the onus rests on the
plaintiff as in the present case, and where there are two mutually destructive
stories, he can only succeed if he satisfies the Court on a preponderance of
probabilities that his version is true and accurate and therefore acceptable, and
that the other version advanced by the defendant is therefore false or mistaken
and falls to be rejected. In deciding whether that evidence is true or not the Court
will weigh up and test the plaintiff's allegations against the general probabilities.
The estimate of the credibility of a w itness w ill therefore be inextricably bound up
with a consideration of the probabilities of the case and, if the balance of
probabilities favours the plaintiff, then the Court will accept his version as being
probably true. If, however, the probabilities are evenly balanced in the sense that
they do not favour the plaintiff's case any more than they do the defendant's, the
plaintiff can only succeed if the Court nevertheless believes him and is satisfied
that his evidence is true and that the defendant's version is false".
[105] Having considered the plaintiff's evidence on whether she is married to the
defendant in terms of customary marriage, I do not believe that she made up
evidence to conceal the truth about their matrimon ial regime. She is clear about
what happened when the customary rites were practiced. The balance of
probabilities favours the plaintiff that she is married to the defendant in terms of
customary marriage and I accept her evidence as probable and true.
[106] Whilst I find the defendant's evidence clear and unshaking, the balance of
[106] Whilst I find the defendant's evidence clear and unshaking, the balance of
probabilities does not favour the defendant in dispute of the marriage in terms of
customary marriage between him and the plaintiff. In my view, the evidence
indicates that the statutory requirements; customs and usages traditionally
14 1984 (4) 437 (E) at 440D.
35
observed for a valid customary union in accordance with the Zulu tradition have
been followed. I find the defendant's version as improbable, untrue and it falls to
be rejected.
Onus
[107] The plaintiff bears the onus to prove existence of a valid customary marriage
between her and the defendant. She must prove that the statutory requirements
for existence of a valid customary marriage have been complied with and that
the required customs for a valid customary marriage were observed. In M v M
and Others15 the Court stated that:
To prove the existence of the marriage, the respondent had to advance
collateral evidence that there was a marriage. The respondent was obliged to
show that all legal and customary requirements we re adhered to•.
(108] In South Cape Corporation (Pty) Ltd v Engineering Management SeNices (Pty)
Ltd16 the Court stated that:
"As was pointed by Davis, A.J.A. in Pillay v Krishna and Another, 1946 at pp. 952-
3, the word onus has often been used to denote, inter alia, two distinct concepts:
(i) the duty which is cast on the particular litigant, in order to be successful, of
finally satisfying the Court that he is entitled to succeed on his claim or defense,
as the case may be, and (ii) the duty cast upon a litigant to adduce evidence in
order to com bat a prima facie case made by his opponent. On ly the first of these
concepts represents onus in its true and original sense".
[109] In Motsoatsoa v Roro and Others17 the Court stated that:
"Proving the existence of a customary marriage should not present many problems
as the formalities for the coming into existence of marriage have crystallised over
the years. The reasons for these are not hard to find. The institution of customary
marriage is an old-age and well respected one, deeply embedded in social fabric
of Africans. The formalities relating thereto are well known and find application
15 [2025] ZSCA 10 (10 February 2025).
19 1977 (3) SA 534 (A) at 548.
17 (2011] 2 All SA 324 (GSJ) (1 November 2010) at para 16.
36
even in the marriages of Africans who ma rry by civil rites as the two marriages are
celebrated side by side. Any distortions and deviations to the formalities can easily
be identified, particularly by those who are well-versed with the real and true
customary law".
[11 O] The Court18 went further to state that:
"As described by the authors Maithufi I.P. and Bekker J.C., Recognition of
Customary Marriages Act 1998 and its Impact on Fam ily Law in South Africa
Cl LSA 182 (2002) a customary marriage in true African tradition is not an event
but a process that comprises a chain of events. Furthermore, it is not about the
bride and the groom. It involves the two families. The basic formalities which lead
to a customary marriage are: emissaries are sent by the man's family to the
woman 's family to indicate interest in the possible marriage, this of course
presupposes that the two parties man and woman have agreed to marry each
other: a meeting of the parties' relatives will be convened where lob of o is
negotiated and the negotiated lobolo or part thereof is handed over to the woman 's
family and the two families will then agree on the formalities and date on which the
woman w ill then be handed over to the man's family which handing over may
include but not necessarily be accompanied by celebration of the wedding".
[111]The defendant argued that case law directs that Courts must distinguish between
allegation, fact and suspicion. The plaintiff must satisfy the Court that she has
discharged the onus of proving her case. The plaintiff testified as the only
w itness, and this requires the Co urt to exercise judicial discretion when
evaluating her testimony. It is trite that such testimony should be clear and
satisfactory in all material respects.19
[112] The plaintiff provided full account of what was followed by both families after her
family indicated unhappiness about the fact that the defendant had proposed to
family indicated unhappiness about the fact that the defendant had proposed to
her without seeking their permission. Thereafter, customary rites were practiced
in accordance w ith the customary rites relating to the Zulu tradition. I am satisfied
that the plaintiff has proved on a balance of probabilities that the statutory
16 Id at para 17.
19 See S v Artman and Another 1968 (3) SA 339 (AD) and R v Mokoena 1956 (3) SA 81 AD .
37
requirements, customs and usages traditionally observed for a valid customary
union in accordance with the Zulu tradition have been followed.
Intention
[113]The defendant argued that this Court must determine whether it was the real
intention of the parties to enter into a customary marriage as required in terms of
Section 3(1 )(a)(ii) of the Recogn ition of Customary Marriages Act. The defendant
further argued that the Court must determine whether the evidence that the
parties concluded the rites as pleaded by the plaintiff and the exchange of lobolo
constitute and/or lead to the conclusion of a customary marriage. To be able to
resolve this issue, the Court must evaluate the facts and the law applicable.
[114] In MM V MN2- 0 the Court stated that:
" ... First a court is obliged to satisfy itself, as a matter of law, on the content of
customary law, and its task in this regard may be more onerous where the
customary-law rule at stake is a matter of controversy. With the Constitutional
recognition of customary law, this has become a responsibility of the courts. It is
incumbent on our courts to take steps to satisfy themselves as to the content of
customary law and, where necessary, to evaluate local custom in order to
ascertain the content of the relevant legal rule.
Second, the courts must understand concepts such as 'consent' to further
customary marriages within the framework of customary law and must be careful
not to impose common-law or other understandings of that concept. Courts must
also not assume that such a notion as 'consent' will have a universal meaning
across all sources of law".
[115] Section 3(1) of the Recognition of Customary Ma rriages Act requires that the
parties must both consent to be married to each other under customary law and
that the marriage must be negotiated, entered into and celebrated in accordance
with customary law. The defendant argued that the plaintiff must prove these
20 MM V MN at paras 48-49.
38
requirements. In essence the defendant argued that the plaintiff must prove the
agreement to be married in terms of customary law; celebration of the marriage
in terms of the customary law; and applicable customary law. The authorities I
referred to herein point to the dynamic nature and flexibility of customary law.
Emphasis is placed on comm unal values and that the families and communal
values take the center stage more than the individualistic interests. As it is
pointed out, customary marriage is more than the individual bride and the groom.
The Co urt in its evaluation must take this into consideration.
Conclusion on existence of Customary Marriage between the parties
[116] The defendant argued that the parties became engaged and agreed to be
married in terms of civil marriage after completion of a residential house for the
parties. The customary rites which were followed were due to the insistence of
the plaintiffs family who were unhappy about the fact that the defendant
proposed without the permission of the family of the plaintiff. The parties became
engaged before the traditional rites were followed. The engagement is a western
tradition normally pre-empting a civil marriage and is not a customary marriage.
[117]The plaintiff insisted that they are married in terms of customary marriage. Her
evidence is that after receiving the engagement ring from the defendant, she
started sending messages to her family to relate the good news of being
engaged. Things took a turn when her family expressed unhappiness about the
fact that the defendant proposed without seeking permission from her family. The
defendant thereafter consulted his family on what should be done to keep the
family of the woman she wanted to be married to happy. The defendant's sister
played a central role in advising them on the steps to be followed in accordance
with a Zulu tradition of getting married.
[11 S]This in my view set in motion what would be a journey to customary marriage
[11 S]This in my view set in motion what would be a journey to customary marriage
between the parties. A letter was sent by the defendant's family to the plaintiff's
family to initiate lobolo negotiations. The Jobolo negotiations took place on two
occasions. On the first day an amount of R62 000.00 was paid towards the
39
agreed amount of R? 0 000.00. The families agreed that the balance of R8000 .00
will be paid on the day that umembeso would be performed. On the second
occasion, the outstanding balance of lobolo was paid and it is on the same day
that umembeso was performed, this being May 14, 2011. Prior to the second
occasion, an invitation was issued, and it is specifically mentioned in the invitation
card that plaintiff and defendant invited guests 'to share their joy as they
celebrate their traditional wedding'. The third occasion was umbondo which was
undertaken at the defendant's home in Durban. There was a slaughtering of an
animal and the dispute between the parties is whether a bile was put on the
plaintiff's mouth and defendant's pocket. Defendant specifically testified that he
would not have drunk the bile.
[119]The parties stayed together as husband and wife after the traditional rites were
performed. The defendant took care of the plaintiff and the minor children born
between the two of them. The defendant took full responsibility for their financial
and household needs.
[120]The defendant withdrew as a judge from a beauty pageant where the plaintiff's
half-sister was a contestant. This was done to avoid conflict of interest. A
statement was issued by Sun International regarding the defendant's withdrawal
and the statement specifically indicated the reason for his withdrawal being that
the defendant recused himself because he is related to one of the contestants
who is a half-sister to his wife. There is no evidence that the defendant refuted
the statement that was attributed to him in the media statement issued by Sun
International. Reference was made during the defendant's cross-examination to
an affidavit he deposed to in support of the separation application and Rule 43
affidavit where it is stated in the foregoing affidavits that he is married to the
plaintiff in terms of customary union.
[121]During argument, the defendant's Counsel pointed to the contradiction between
[121]During argument, the defendant's Counsel pointed to the contradiction between
the preamble and the affidavit as well as the pleadings which dispute the
existence of a customary marriage. The legal representatives who assisted the
plaintiff in the separation and Rule 43 applications, were not called to explain the
40
reason for indicating in the affidavits that the plaintiff and the defendant are
married to each other in terms of customary union. The affidavit supporting the
separation application was deposed to on June 23, 2020, and the affidavit
supporting the Rule 43(6) application was deposed to on December 6, 2023.
These affidavits are deposed to by the defendant.
(122] The defendant argued that the 'admissions' as relied upon by the plaintiff during
the proceedings, goes against the grain of the plaintiffs pleadings since the
inception of the matter. In Unit 15 Rondevoux CC tla Done Rite Services v
Makgabo21 the Court stated that:
"It is trite that a party will be strictly kept to its pleadings "where any departure
would cause prejudice or would prevent full enquiry" (Rob inson v Randfontein
Estates GM Co Ltd 1925 AD 173 at 198). How ever, where the evidence covers an
unpleaded claim fully, "that is, where there is no reasonable ground for thinking
that further examination of the facts might lead to a different conclusion, the Court
is entitled to, and generally should, treat the issue as if it had been expressly and
timeously raised" (M iddelton v Car 1949 (2) SA 374 (A) at 385). The Supreme
Cou rt of Appea l has recently re-affirmed this approach to unpleaded issues, albeit
while disallowing an unpleaded claim (see MJ K v II K [2022] ZASCA 116 (28 July
2022) at paragraphs 21 to 23)".
[123] The pleadings assist a counterparty to the proceedings to know well in advance
of the case that he or she is expected to answer. This affords equal opportunity
for the parties to prepare their case and evidence necessary to counter the case
of their opponents in the proceedings. The Court must make an evaluation of the
nature of the evidence com plained about and weigh prejudice that will follow,
considering the interests of both parties in the proceedings. In the instant case,
it is clear from the pleadings that the dispute lies on whether the parties were
it is clear from the pleadings that the dispute lies on whether the parties were
married in customary union or civil union. In my view, the affidavits relied on by
the plaintiff did not introduce evidence outside of her pleaded case. This was an
expansion of the pleaded case of the plaintiff. I therefore see no prejudice against
21 (2022) ZAGPJHC 627 (1 September 2022) at para 18.
41
the defendant. The affidavits referred to were deposed to by the defendant, it is
nothing new to the defendant.
[124] The defendant instructed his family to send a letter to the plaintiffs family to
commence lobolo negotiations. The emissaries were sent to the plaintiff's family
to commence lobolo negotiations on his behalf. The defendant was in full
attendance and participated in the umembeso and umbondo celebrations. The
decorations during the ceremonies were in accordance with the Zulu tradition.
The plaintiff's attire was that of a makoti, which she testified that she was advised
that it must be worn by a bride in terms of a Zulu tradition. The defendant gave
consent to the customary rites that were practiced which gave effect to a valid
customary marriage between himself and the plaintiff. I find the defendant's
version that the customary rites that were followed to appease their families
unsustainable for this Court to make an invalidity finding on the customary
marriage between the plaintiff and the defendant. The defendant's evidence
seems to downplay the customary rites followed as merely practices to appease
their families. This flies in the face of the Constitution which guarantees human
dignity, equality and right to cultural and religious practices. This is unfortunate
as this may be a regression from the achievements of the Constitution.
[125]The parties may have discussed to be married in terms of civil union and enter
into an Antenuptial Contract to regulate their patrimonial regime. This was
however overtaken by events; the moment they decided to practice and observe
customary rites relating to entering and celebration of a customary marriage in
terms of a Zulu tradition, a customary marriage regime was set in motion.
[126] In my view, both parties have consented to be married to each other under
customary union. They negotiated, entered into and celebrated their marriage in
accordance with customary law. The Recognition of Customary Marriages Act
accordance with customary law. The Recognition of Customary Marriages Act
clearly sets out the proprietary consequences and in the case of a spouse who
is not a partner in any other existing marriage, the marriage is a marriage in
community of property, unless this is specifically excluded by the spouses in an
Antenuptial Contract, wh ich w ill regulate the matrimonial property system of their
42
marriage. The plaintiff and defendant elected not to enter into an Antenuptial
Contract prior to the conclusion of their customary marriage. This unfortunately
cannot be done post their customary marriage without following the prescribed
procedure.
[127] Having considered the conspectus of evidence, the statutory requirements for a
valid customary marriage, the customary rites performed by the plaintiff and
defendant, the customs observed in relation to the Zulu tradition for a valid
customary marriage, the case law which gave guidance on the dynamic nature
of customary law and its flexibility, the weight accorded to the community rather
than placing a limit to individualistic bride and the groom . I am satisfied that the
plaintiff has proven on a balance of probabilities that she is ma rried to the
defendant in terms of a valid customary marriage. O n the evaluation of evidence
adduced by the plaintiff, I find that the plaintiff has discharged the onus of proving
that she is married to the defendant in terms of a valid customary marriage. I find
that the customs necessary for a valid customary marriage, particularly the Zulu
customs, were performed. The parties stayed together before and after the
customary rites were performed .
[128] Notwithstanding the defendant's denial of the customary marriage between
himself and the plaintiff, I find his denial to be unsustainable, untenable and that
it must be rejected. The defendant's conduct clearly demonstrates that he has
consented and concluded a valid customary marriage as envisaged in terms of
Section 3(1) of the Recogn ition of Customary Marriages Act.
The Antenuptia/ Contract
[129] In the pleadings and during the proceedings, the parties extensively referred to
the Antenuptial Contract entered into between the parties. Both the plaintiff and
the defendant led evidence in relation to the Antenuptial Contract. It is common
cause that the parties signed an Antenuptial Contract on December 21 , 2016.22
22 Caselines 01-76 to 01 -79.
43
The Ante'nuptial Contract indicates that the parties have declared that a marriage
has been agreed upon and is intended to be solemnized between the plaintiff
and the defendant. The terms of the Antenuptial Contact are as follows:
"1. There shall be no community of property between them. 2. There shall be no
community of profit or loss between them. 3. The marriage shall not be subject to
accrual system in terms of the provisions of Chapter 1 of the Matrimonial Property
Act, 1984 (NO . 88 of 1984) and the accrual system is hereby expressly excluded.
4. Upon dissolution of the marriage by means of a Court Order ... shall pay ... the
agreed total sum of R4 000 000.00 (Four Million Rand) in complete discharge of
all his patrimonial obligations to . . . including spousal maintenance, which ...
hereby accepts, by means of 5 (five) equal annual instalments in the sum of
R800 000.00 (Eight Hundred Thousand Rand}, the first instalment becoming
payable on the date of dissolution of the marriage by means of a Court Order to
such effect, and subsequent annual instalments being payable on the succeeding
anniversary dates of such date of dissolution, until the agreed amount has been
liquidated in full. 5. Any monetary values in this contract shall be calculated w ith
due allowance for any difference which may exist in the value of money at the
commencement and dissolution of this marriage and for that purpose the weighted
average of the consumer price index as published from time to time in the
Government Gazette shall be the agreed method of determination thereof'.
[130] The reference to the Antenuptial Contract by the parties during the proceedings
requires this Court make a determination on its legal status. In the pleadings, the
parties prayed for the Court to determine validity and/or invalidity of their Antenuptial
Contract. The purpose of Antenuptial Contract is to regulate the matrimonial property
regime of the parties intending to get married, and this cannot be done postnuptially
regime of the parties intending to get married, and this cannot be done postnuptially
without complying with the proper procedure for changing a matrimonial property
regime .23 In Mathabathe v Mathabathe24 the Court stated that:
"Every seriously intended promise of marriage, or contract of betrothal, or
engagement to be married, has potential legal consequences and is literally an
23 J Heaton et al, South African Fam ily Law 4 ed at 83.
24 1987 (3) SA 45 (WLD).
44
'antenuptial contract' when that expression is used, as it properly may be, to refer
to every kind of pre-marital agreement".
[131) Section 7(2) of the Recognition of Customary Marriages Act provides that:
"A customary marriage in which a spouse is not a partner in any other existing
customary marriage, is a marriage in community of property and of profit and loss
between the spouses, unless such consequences are specifically excluded by the
in an Antenuptial Contract which regulates the matrimonial property system of their
marriage".
[132) Section 21 (1) of the Matrimonial Property Act 88 of 1988 deals with change of
matrimonial system and provides that:
"(1) A husband and wife, whether married before or after the commencement of
this Act, may jointly apply to a Court for leave to change the matrimonial property
system, including the marital power, which applies to their marriage, and the Court
may , if satisfied that -
(a) there are sound reasons for the proposed change:
(b) sufficient notice of the proposed change has been given to all the creditors of
the spouses: and
(c) no other person will be prejudiced by the proposed change,
order that such matrimonial property system shall no longer apply to their marriage
and authorize them to enter into a notarial contract by which their future
matrimonial property system is regulated on such conditions as the court may think
fit".
[133]When dealing with the issue of whether the spouses can postnuptially alter their
marriage from one in community of property to one out of community of property,
the Court in Honey v Honey'25 followed the decision of Ex parte Marx et Uxo~ 6
where it was held that ' ... parties who are married in community of property
cannot by postnuptial agreement change to a marriage out of community of
251992 (3) SA 609 (WLD).
26/d at page 614 E-G . See also Ex Parle Marx et Uxor 1936 (2) CPD 499.
45
property 'for the very simple reason that according to our law a change from a
communal marriage to a marriage out of community amounts to a donation
between the spouses".
[134) In Honey v Honey27 the Court stated that:
"It is therefore concluded that the mere repeal of the prohibition against donations
between the spouses did not automatically abrogate the rule that parties may not
postnuptially amend an antenuptial contract whether such amendment is intended
to have effect inter part es only or not".
[135] The Court in Honey v Honey held that the contract between the parties purporting
to vary their Antenuptial Contract is void and unenforceable as between the
parties inter se.
[136]The Court in Mathabathe v Mathabathe28 considered the method for changing
the existing matrimonial property and stated that:
"The procedure for introducing the accrual system to an existing marriage that is
provided by s 21(2) will only be available for the two-year period ending on 31
October 1986. Thereafter the only method of changing an existing matrimonial
property system will involve the procedure provided for bys 21(1). That procedure
requires an application to Court".
[137]The plaintiff argued that Section 21(1) of the Matrimonial Property Act
presupposes that there must be judicial instruction and if that did not happen, the
Antenuptial Contract is invalid. It was argued further that the power dynamics in
the marriage between the plaintiff and the defendant are in a skewed manner.
She was bamboozled into signing the Antenuptial Contract. The plaintiff argued
that she was preoccupied with preparation for a civil marriage, which she
described as a celebration of her wedding.
27 Honey v Honey at page 614G-H.
28 Mathabathe v Mathabathe at page 57F-G.
46
[138] The plaintiff described their white wedding as a fairy tale. She testified that to her
mind the white wedding was for her to wear a wedding dress and walk down the
aisle. The plaintiff argued for the Court to find the Antenuptial Contract as
oppressive to women and that she never acquiesced or waived her claim to the
joint estate. The plaintiff argued that she played no part in the agreement that
was supposedly going to deprive her of 50% of the joint estate. She averred that
she signed the agreement to maintain peace, she was young, gullible and did
not know the consequences of the agreement. All her life people had to simplify
the contracts for her to sign.
[139] The defendant argued against the plaintiffs averment regarding defendant's
conduct of being fraudulent, unbecoming of an intended husband to his wife to
be and having ulterior motive in entering into an Antenuptial Contract, based on
immoral grounds. The defendant argued that the plaintiff failed to disclose factual
basis upon which these averments were made. The Court was indeed not
provided with evidence supporting these averments and no finding can be made
against the defendant regarding the allegations made by the plaintiff against the
defendant. The Antenuptial Contract was drafted by a notary who is a legal
practitioner. There w~s a discussion of the contract on the first day and it was
not signed on the same day; it was signed on the day of the second meeting with
the notary. The averments made in the particulars of claim against the defendant
are not sustained by any evidence.
[140]The defendant argued that when plaintiff signed the Antenuptial Contract she did
not raise an issue that she is married to the defendant in terms of customary
union. It is common cause that both parties did not know that they were married
in community of property at the time they signed the Antenuptial Contract. The
defendant argued that the plaintiff is trying to evade the consequences of an
defendant argued that the plaintiff is trying to evade the consequences of an
Antenuptial Contract, and the Court cannot apply equity, instead, the Court must
apply the law. It was further argued by the defendant that there was a discussion
of the Antenuptial Contract before the date that it was signed. The defendant
argued that they were not married at the time that the Antenuptial Contract was
signed.
47
(141]The defendant argued that the provisions of Section 10(2) of the Recognition of
Customary Marriages Act provide for the parties to an existing customary
marriage the legal right to enter into an Antenuptial Contract prior to entering into
a civil marriage, and that such Antenuptial Contract will then regulate the
matrimonial property system of their marriage. The defendant argued that
Section 10 of the Recognition of Customary Marriages Act disposes of the
plaintiff's claim as formulated in paragraph 4 of the plaintiff's amended particulars
of claim. In dealing with the provisions of Section 10(2) of the Recognition of
Customary Ma rriages Act, the Court in J.R.M v V. V.C and Others29 held that:
"Section 10(2) of the Recognition of Customary Marriages Act is declared to be
inconsistent w ith section 9( 1) of the Constitution and invalid to the extent th at it
permits the conclusion of contracts that seek to change the parties' matrimonial
property regimes and thereby regulate their proprietary consequences after such
parties' have concluded customary marriages without judicial oversights.
Section 10(2) of the Recognition of Customary Marriages Act is declared to be
inconsistent w ith section 25(1) of the Constitution and invalid to the extent that it
permits arbitrary deprivation of financially weaker spouses' ownership rights over
assets that form part of their joint estates established by their customary
marriages, when post their marriages they are led to sign contracts that change
their matrimonial regimes from com mun ity of property to out of community of
property without judicial oversight.
Should the Legislature fail to correct the defect within this period, the words
'existing' and 'customary' will be read in to section 10(2) of The Recognition of
Customary Marriages Act as follows:
'When a marriage is concluded as contemplated in subsection (1) the marriage is in
commun ity of property and of profit and loss unless such consequences are
commun ity of property and of profit and loss unless such consequences are
specifically excluded in an existing antenuptial contract which regulates the
matrimonial property system of their customary marriage'".
211 [2024] 3 All SA 853 (GP) (10 June 2024).
48
[142]The default position is that the change of matrimonial property regime requires
judicial oversight. Rega rding the interpretation of the provisions of Section 10(2)
of the Recognition of Customary Marriages Act, I align with the decision of
J. R. M v V. V. C and Others30 whose order was referred to the Constitutional Court
in terms of Section 172(2)(a) of the Constitution for confirmation. The discussion
on alteration of ma trimonial property regime also appears in LAWSA 31 where it
is stated that:
"However, the courts have held that the immutability principle with regard to choice
of matrim ony property regime is separate from the relaxation of the prohibition on
the donations between spouses. The immutability system mean s that all
postnuptial variations by spouses of the matrimonial property regime are invalid,
and contracts concluded between the parties on that basis cannot be enforced,
even as between the parties themselves".
[143]The existing legal system recognizes the African customs and traditions based
on the values of the Constitution. In the instant case I have made a finding that
the parties are married to each other in terms of a valid customary marriage.
Their matrimonial property system is regulated in terms of the provisions of the
Recognition of Customary Marriages Act. I am unable to accept the defendant's
submission that Section 10(2) of the Recognition of Customary Marriages Act
disposes of the defendant's claim for declaration of the Antenuptial Contract
entered into between the parties as invalid and unenforceable. A ccepting the
defendant's submission will create legal uncertainty on the matrimonial property
system of parties ma rried in terms of a valid customary marriage.
(144] There is a dispute of facts in the instant case on whether there was an agreement
prior to the marriage that the parties will enter into an Antenuptial Contract. The
defendant testified that they spoke about the Antenuptial Contract at the
defendant testified that they spoke about the Antenuptial Contract at the
beginning of their relationship. The plaintiff's version is that there was never a
discussion about the Antenuptial Contract and that the only discussion they had
was that in future there would be a white wedd ing celebration. The plaintiffs
30 Id.
31 LAWSA Vol 28(2) 3 ed at para 124.
49
evidence is that after the proposal, she sent a message to her family advising
them that she is engaged. In return, the plaintiff's family indicated unhappiness
about the fact that the defendant proposed the plaintiff without seeking their
permission. The defendant sought advice from his family, and they were advised
on how to go about performing the customary rites which they followed w ith the
guidance of the families. It is not clear to me at what stage did the parties discuss
and agree that they will sign an Antenuptial Contract. I have already referred to
the evidence on how the Antenuptial Contract was signed, considering the
dispute of facts. I am not persuaded that there was an agreement between the
parties before performance of the customary rites leading to the conclusion of
the valid customary marriage between the parties.
[145] In addition to the provisions of Section 21 of the Matrimonial, Section 88 of the
Deeds Registries Act 47 of 1937 deals with postnuptial execution of Antenuptial
Contracts. It is specifically provided for the Court to authorize the postnuptial
execution of the Antenuptial Contract, including registration of such a postnuptial
contract within the time limits that may be determined by the Court. It was never
the defendant's case that the Antenuptial Contract between the parties is
postnuptial, I am mentioning the provisions of the Deeds Registries Act to
demonstrate the default position that once parties are validly married, they
cannot change their matrimonial property system without judicial oversight.
[146) In the instant case, there is neither compliance w ith Section 21 of the Matrimonial
Property Act nor Section 88 of the Deeds Registries Act. Having considered the
legislative requirements applicable to change of matrimonial property system,
case law and facts of this case, I find that the Antenuptial Contract entered into
between the plaintiff and the defendant on December 21 , 2021, is invalid and
between the plaintiff and the defendant on December 21 , 2021, is invalid and
void ab initio. The plaintiff and defendant are married to each other in terms of a
valid customary marriage effective on May 14, 2011, and the matrimonial
property system applicable to their customary marriage is one in community of
property and profit and loss.
50
Maintenance Claim
[147] In the amended particulars of claim, the plaintiff claims for maintenance of the
minor children in the sum of R40 000.00 per month, per child as well as
R80 000.00 per month in respect of spousal maintenance. There is no dispute
regarding the claim for maintenance of the minor children. The defendant
accepted responsibility for paying maintenance for the minor children. He
testified that maintenance of the m inor children is his priority and that is what he
is working for. The defendant tendered to continue paying maintenance for the
minor children as ordered in terms of Rule 43 plus the ancillary expenses of the
children as ordered. In her argument the plaintiff submitted that in her particulars
of claim an amount of R50 000.00 per month per child is sought and that this has
never been disputed by the defendant.
[148]The reference to the amount of R50 000.00 in her heads of argument may be an
error as the amount in the amended particulars of claim is indicated as
R40 000.00.32 The defendant in his argument persisted with a prayer for an order
directing him to pay maintenance towards the minor children as was ordered in
terms of the Rule 43 order. In the Rule 43 application, the Court ordered the
defendant to pay R25 000.00 per month, per child and R15 000.00 per month to
the plaintiff.
[149]When dealing with maintenance claim, the Court first has to determine the
claimant's income for past and future earnings. That will assist in determining
how the parties will sustain their lifestyle post dissolution of their marriage. The
Court must determine whether the party against whom maintenance is claimed
has sufficient earning capacity to pay the amount claimed, taking into account
the needs of the defendant. The difficulty is that monthly expenses vary from
month to month, but the basic needs and reasonable demand is taken into
account. The Court must be presented with sufficient evidence to enable it to
account. The Court must be presented with sufficient evidence to enable it to
arrive at a just determination. The golden rule is that the claimant bears the onus
32 Caselines 01-73.
51
to prove that she is in need of support and must provide evidence to support her
claim.
[150] The plaintiff testified that she is in need of spousal maintenance to maintain the
lifestyle she was accustomed to. She testified that the amount of R15 000.00
ordered by the Court in terms of the Rule 43 application for her spousal
maintenance is not enough to defray her expenses. She testified that she is
accustomed to luxurious lifestyle which includes purchasing designer clothes,
driving luxurious vehicles, taking international trips and purchasing hair from
international sites to get the best quality. She is used to shopping sprees of
thousands of rands, Euros and Dollars. She is used to purchasing the best of
everything. She wants to maintain her status as a public persona. She made
examples of instances where she bought two handbags for the sum of
R100 000.00 and a dress for the sum of R400 000.00. The defendant habitually
paid her a monthly stipend of R30 000.00 which she used on household needs.
The defendant used to top up her Standard Bank card with R1 Million per year,
for bigger things in the house and to spend on herself.
[151]The plaintiff testified that she is currently studying for a degree, but she can only
afford to register for small modules as she is financially struggling. Regarding her
capacity to earn income, she testified that she is a freelance actress, and this
varies from working once a year, to working five times a year, to having one short
stat project, or one 6-month project. She is unable to sustain herself the way the
defendant would. I have earlier referred to the plaintiffs evidence regarding the
defendant's discomfort in the plaintiff taking acting roles that have kissing
scenes; and she testified that this affected her capacity to earn income. The
plaintiff took the Court through her bank statements to demonstrate her earning
capacity. She testified that she does not have another bank account where she
receives funds.
capacity. She testified that she does not have another bank account where she
receives funds.
[152]According to her evidence, the total household expenses are R68 000.00, with
electricity expenses fluctuating depending on seasons. She calculated her
monthly personal expenses to an amount of R49 167.00. She testified that in
52
addition, she would need funds for holiday travels with the minor children and
international trips that they were accustomed to during the marriage with the
defendant. She testified that their children attend school in private schools, and
it breaks her heart to hear them saying 'oh I was born in New York, and I used to
travel there'. She cannot ask the defendant to assist w ith as he would decline.
The plaintiff testified that sometimes she would borrow money from friends to
keep up with her expenses.
[ 153] The plaintiff testified that she contributed to the estate, this was however disputed
by the defendant. However, the evidence indicates that the defendant was
always away from home and had numerous international trips. This left the
plaintiff to be at home to monitor how things we re in the household. The
defendant argued that he employed domestic staff to take care of the household.
This in my view does not take away the fact that as a mother in the household,
the plaintiff had a significant role to play. There was a dispute of facts between
the plaintiff and the defendant on whether she cooked and drove the children to
school.
[154]The plaintiff argued that her prolonged and unstable employment was
exacerbated by the defendant's demand for her to cut off certain gigs she used
to do; the instability of her industry; the fact that she could no longer take gigs at
all to keep peace in the household; her looking after the house; packing
defendant's clothes; feeding him; and massaging the defendant's injured hand.
The plaintiff argued that this directly increased the matrimonial estate of the
parties as this allowed the defendant to continue working and generating wealth,
undisturbed.
[155]The defendant testified that he pays for the house where the plaintiff and the
minor children reside. He pays for security in the house and the maintenance of
the garden. The only thing he does not pay for is electricity charges. He testified
the garden. The only thing he does not pay for is electricity charges. He testified
that the impression he has is that the plaintiff is not financially destitute. He
averred that it is public knowledge that the plaintiff is a well celebrated actress.
Regarding the plaintiffs maintenance claim in the sum of R500 000.00, the
53
defendant testified that he does not know what the amount claimed is for. The
defendant is opposing the plaintiff's claim for spousal maintenance on the basis
that she can afford the lifestyle she lives.
[156] The spousal maintenance is regulated by section 7(2) of the Divorce Act 70 of
1979 which provides that:
"In the absence of an order made in term s of subsection (1) with regard to the
payment of maintenance by one spouse to the other, the court may , having regard
to the existing or prospective means of each of the parties, their respective earning
capacities, financial needs and obligations, the age of each of the parties, the
duration of the marriage, the standard of living of the parties prior to the divorce,
their conduct in so far as it may be relevant to the break-down of the marriage, an
order in terms of subsection (3) and any other factor which in the opinion of the
court should be taken into account, make an order which the court finds just in
respect of the paymen t of ma intenance by the one party to the other for any period
until the death or remarriage of the party in whose favour the order is given,
whichever event may first occur".
[157]The defendant referred to the decision of Botha v Botha33 where the Court stated
that:
"It is an accepted principle of South African law that neither spouse has a right to
ma intenance upon divorce.
The payment of ma intenance to a spouse upon divorce is the creation of statute.
The matrimonial Affairs Act 37 of 1953 permitted a court to make an award against
the guilty spouse for the maintenance of an innocent spouse. The current Divorce
Act 70 of 1979 permits a court to make an award which it finds 'just' for
maintenance by one party of the other".
33 2009 (3) SA 89 (WLO) at paras 29-30. See also Strauss v Strauss 1974 (3) SA 79 (A).
54
[158] In V v V34 the Court stated that:
"It is trite principle of our law that neither spouse has a right to spousal
ma intenance upon divorce. The court does, however, have discretionary power to
make an award for spousal maintenance if necessary. In deciding whether a party
is entitled to spousal maintenance the court considers the need for maintenance
by the one party on the one hand and the ability to pay ma intenance by the other
party on the other hand".
[159] The Court in V v V followed the decision of EH v SH3 5 where it was stated that:
"It is trite principle that the person claiming maintenance must establish a need to
be supported. If no such need is established, it would not be 'just' as required by
this section for a maintenance order to be issuedn.
[160] In Rousalis v Rousalis36 the Court stated that:
"A wife of long standing who has assisted her husband materially in building up
his separate estate wou ld in my view in justice be entitled to far more by way of
ma intenance, in terms of this section, than one who did not more for a few years
than share his bed and keep his house".
[161]The legislative framework sets out factors to be taken into consideration by the
Court when determining the dispute on spousal maintenance. These factors
must be considered in totality in order to make a just determination, having regard
to particular circumstances of the case. The Court must make a fair and just
decision to balance the interests of both parties, taking into account the need for
maintenance from the claimant and the ability to pay by the party against whom
the maintenance claim is made. 37
34 [2017] ZAGPPHC 545 (30 August 201117) at para 11.
35 2012 (4) SA 164 (SCA ) at para 11.
36 1980 (3) SA 447 (C) at page 450 G -H.
37 Botha v Botha at para 49. See also Grasso v Grasso 1987 ( 1) SA 48 C
55
[162) The defendant argued that the plaintiff did not introduce a list of expenses or lead
credible evidence supported by documents or lay a basis that any funds which
she presently receive were insufficient to meet her reasonable needs based on
the factors enumerated in Section 7(2) of the Divorce Act, rather, her claim is
based on general propositions that she enjoyed an extremely luxurious style of
leaving. The defendant argued that, on this basis, the Court cannot exercise
discretion in favour of the plaintiff. The defendant referred to the decisions of D,
A.E. v D, A. J38 where the Court stated that:
"In an application for spousal maintenance the applicant must demonstrate that
the respondent owes her a duty of support, the applicant must establish the need
to be maintained and that the respondent has adequate resources to discharge
this duty. In my view, the applicant has not established the need to be maintained.
Apart from the applicant's material non-disclosure of her income and earnings, the
applicant has also throughout failed to state what her live-in partner's contributions
are, if any".
[163]The defendant further referred to the decision of T.S. v M .LS39 where the Court
stated that:
"Except that it is common cause that the Plaintiff earns more money than the
Defendant, of paramount importance is that there is no evidence on record
indicating how much the Plaintiff earns on a monthly basis, and whether she w ill
afford to pay the sought amount of R15 000. The Defendant seeks to maintain the
lifestyle enjoyed by both parties during the marriage, yet he proffered no evidence
to prove the type of lifestyle they enjoyed during their marriage. Nor did the
Defendant tender evidence to prove his financial needs and obligations on a
monthly basis in order to justify his claim for R 15 000. 00 per month".
[164] The married couple traditionally enjoy maintenance and support during the
subsistence of their marriage. The historical background in our society has over
subsistence of their marriage. The historical background in our society has over
the years created a situation where the male spouses are placed in a stronger
38 [2023] ZAGPJHC 528 (19May 2023) at para 75.
39 [2024] ZAGPPHC 289 (19 March 2024).
56
financial position than their female spousal counterparts. This is a reality of our
society that cannot be ignored. Female spouses are mostly the ones who depend
on their male counterparts for financial support during the subsistence of the
marriage. Our law has developed over the years to recognize that maintenance
should not cease with the dissolution of marriage.
[165]The legislative framework is an intervention that provides safeguards for spousal
maintenance post-dissolution of marriage. In addition to the factors set out in the
Divorce Act, the Court has a discretion to exercise when making a determination
on whether to make an order for spousal maintenance in favour of the claimant.
In addition to the factors set out in the legislative framework, the Court considers
contribution of each spouse to the matrimonial estate. Other than financial
contribution, the Court considers domestic contributions made by the other
spouse who had no financial means to contribute, these may include but not
limited, domestic care and maintenance of the household, cleaning, cooking,
doing laundry, taking care of the children of the spouses and managing the
domestic home in general.
[166] It is trite that spousal ma intenance is not an automatic right, the person claiming
maintenance must establish the need to be supported. The plaintiff adduced
evidence to demonstrate that her earning capacity is less than the defendant's
earning capacity. The difficulty is that this Court does not have the benefit of the
defendant's financial position as no evidence was adduced other than estimated
earning capacity. The plaintiff expressed difficulty in obtaining the defendant's
financial status, it was submitted that the defendant refused to cooperate with
the request for his financial information.
(167] During the proceedings, the defendant was not forthright about his financial
information. The Court gained impression that he was concealing his financial
information. The Court gained impression that he was concealing his financial
information. This is unfortunate as this was not assisting the Court in getting a
clear picture of the defendant's financial status. Section 7 of the Matrimonial
Property Act provides that:
57
"When it is necessary to determine the accrual of the estate of a spouse or a
deceased spouse that spouse or the executor of the estate of the deceased
spouse, as the case may be, shall w ithin a reasonable time at the request of the
other spouse or the executor of the estate of the other spouse, as the case may
be, furnish full particulars of the value of that estate".
[168]The Court in ST v CT40 followed the decision of MB v D8 41 where it was stated
that:
"In my view litigation is not a game where the parties are able to play their cards
close to their chest in order to obtain a technical advantage to the prejudice of the
other party. This is even more so in matrimonial matters where the lives of the
parties have been inextricably bound together ... ".
[ 169) In MB v D8 42 the Court followed the English decision of Prest v Petrodel
Resources and Others43 where it was stated that:
"There is a public interest in the proper maintenance of the wife by her former
husband, especially (but not only) where the interests of the children are engaged.
Partly for this reason, the proceedings, although in form adversarial have a
substantial inquisitorial element. The family finances will commonly have been the
responsibility of the husband, so that although technically a claimant, the wife is in
reality dependent on the disclosure and evidence of the husband to ascertain the
extent of her proper claim. The concept of burden of proof, which has always been
one of the main factors inhibiting the drawing of adverse inferences from the
absence of evidence or disclosure, cannot be applied in the same way to
proceedings of this kind as it is in ordinary civil litigation. These considerations are
not a license to engage in pure speculation. But judges exercising family
jurisdiction are entitled to draw on their experience and to take notice of the
inherent probabilities when deciding what an uncommun icative husband is likely
to be concealing. I refer to the husband because the husband is usually the
to be concealing. I refer to the husband because the husband is usually the
economically dominant party, but of course the same applies to the economically
dominant spouse whoever it is".
40 2018 (5) SA 479 (SCA) at para 34.
41 2013 (6) SA 86 (KZD) at para 39.
42 /d at page 101 C-F.
43 [2013] UKSC 34 at para 45.
58
[170] It is unclear as to how the amount of R500 000.00 claimed by the plaintiff was
arrived at. The plaintiff has failed to give evidence substantiating that the amount
of R500 000.00 constitutes reasonable and necessary monthly expenses for
herself. The monthly expenses provided by the plaintiff do not come anywhere
close to the amount of R500 000.00. There is no evidence indicating whether the
defendant has financial means to afford paying a monthly spousal maintenance
in the sum of R500 000.00. The Court does not make a finding against the
plaintiff's inability to provide evidence of the defendant's ability to pay the amount
claimed, due to the defendant's uncommunicative conduct. What was proffered
by the plaintiff is that they lived a luxurious and opulent lifestyle.
[171]The generally acceptable principle is that neither spouse is entitled to maintain
the same standard they enjoyed during the subsistence of the marriage, unless
money is no object. The plaintiff has a duty to provide evidence to persuade the
Court to exercise its discretion and make a finding in her favour. She bears the
onus to prove entitlement to the maintenance she is claiming. There must be
sufficient evidence depicting the lifestyle they enjoyed whilst together. The
plaintiff's evidence that they enjoyed a luxurious and opulent lifestyle has not
been proven. The defendant testified that he could not describe their marriage
lifestyle as luxurious as he believed that he lived the lifestyle he deserved due to
his hard work.
[172] There is no evidence to prove that the plaintiff's income requires adjustment to
the sum of R500 000.00 per month. Regarding the holidays and international
trips, the Court has a difficulty in finding that these are the expenses that meet
the requirements of need for support, the evidence is unclear on how often did
the plaintiff and defendant travel for holidays and internationally. There is no clear
evidence indicating that they regularly traveled during school holidays with the
evidence indicating that they regularly traveled during school holidays with the
children. There is also no evidence of how much it would cost for such holiday
travels, the Court has difficulty in quantifying this claim without evidence from the
plaintiff. The claim seems to be generalized and lacks sufficient particularity.
59
[173] Having considered the plaintiff's claim for spousal maintenance, I am unable to
find that there is reasonable and just duty on the part of the defendant in respect
of the spousal ma intenance in the sum of R500 000.00. However, the plaintiff is
entitled to a lesser amount for spousal ma intenance to rebuild and sustain her
life. Like majority of women in South Africa, she is in a financially weak position,
and the Court has a duty to take this into consideration. The plaintiff has
established the need for support by the defendant, for an amount less than
R500 000.00.
[17 4] The plaintiff's evidence regarding her monthly personal expenses totals to the
sum of R49 167.00 and R68 000.00 for household expenses. I have considered
the expenses provided by the plaintiff, albeit not substantiated. The plaintiff is
therefore entitled to spousal maintenance in the sum of R67 167.00 wh ich is
calculated by considering the total amount she was able to prove for personal
expenses plus the difference between the amount she proved as household
expenses minus the child maintenance amount as ordered in terms of Rule 43.
[175]The expenses accounted for by the plaintiff appear to be reasonable and
necessary. I have taken into account that the plaintiff's contribution to the estate
was more than warming the bed, she invested a great amount of time in
supporting the defendant and their children. Her earning capacity was restricted
by the defendant's prohibition of her taking certain acting roles, particularly the
kissing scenes. She has lost prime time in her acting career. She took care of
the children, including assisting them with schooling activities; and managed the
household whilst the defendant was increasing his net worth. This is disputed by
the defendant, however, it is common cause that the defendant spent most of
the time travelling in the country and internationally to advance his career, wh ilst
the plaintiff remained at home, save for few instances that they travelled together.
the plaintiff remained at home, save for few instances that they travelled together.
[176]The plaintiffs bank statements demonstrate that she does not have stable
monthly income save for instances where she is engaged in short-term-contract
projects. Whilst there was no evidence regarding the defendant's earning
capacity, it is common cause that money is no object. The defendant's current
60
and expected earning capacity is substantially better than the plaintiff. The
defendant has the ability to make financial contribution towards the plaintiff's
living expenses. The defendant has spent the better part of his life advancing his
career whilst the plaintiff was hindered by the circumstances mentioned herein.
Costs
[177]The general rule is that the award for costs is at the discretion of the judicial
officer, and the second principle is that the successful party should, as a general
rule, have his or her costs.44 However, Section 10 of the Divorce Act provides
that:
"In a divorce action the court shall not be bound to make an order for costs in
favour of the successful party, but the court may , having regard to the means of
the parties, and their conduct in so far as it may be relevant, make such order as
it considers just, and the court may order the costs of the proceedings be
apportioned between the parties".
[178]The defendant complained about the length of the plaintiffs heads amounting to
159 pages and requested the Court to make a costs order of an attorney-and
client scale against the plaintiff in respect of defendant's perusal costs of the
heads. The Court agrees that the plaintiffs heads are longer than what is
expected, considering that the parties had opportunity to submit oral argument.
The defendant also complained about the tone and seemingly strong language
used in the plaintiffs heads against the defendant. Parties are reminded that the
purpose of Court proceedings is to assist parties to resolve their disputes and
are cautioned to be courteous and show respect to each other, taking into
consideration the Court's decorum.
[ 179] I have taken into consideration the personal circumstances of the parties
including their comparative financial abilities. The plaintiff is in a weaker financial
position compared to the defendant. As a successful party, I am of the view that
the costs should follow the results. The defendant should therefore pay the
the costs should follow the results. The defendant should therefore pay the
44 Ferreira v Levin NO and Others 1996 (2) SA 621 (CC).
61
plaintiffs costs; however, the defendant should only pay half the costs in relation
to the plaintiffs heads.
Order
[180] I therefore make the following order:
1. It is declared that:
1.1 the plaintiff and the defendant entered into a valid customary law
marriage on or about May 14, 2011;
1.2 the customary law marriage between the plaintiff and the defendant is
in community of property and of profit and loss; and
1.3 the Antenuptial Contract concluded between the plaintiff and the
defendant on or about December 21 , 2016, attached to the plaintiffs
particulars of claim as Annexure "A", is invalid and unenforceable,
alternatively void, alternatively voidable and has been validly cancelled.
1 .4 The civil marriage entered into between plaintiff and defendant on
January 5, 2017 is declared invalid.
2. A decree of divorce is accordingly granted.
3. Division of the joint estate.
4. A Receiver and Liquidator to be nominated by the parties is hereby
appointed.
5. Parental responsibilities and rights (as envisaged in terms of Section 18(2)
and Section 18(3) of the Children's Act 38 of 2005) pertaining to the 2 (two)
minor children are awarded to plaintiff and defendant jointly subject to the
following:
62
5.1 the plaintiff shall have primary residence and custody in respect of the
minor children;
5.2the defendant shall be entitled to reasonable contact with the m inor
children, including (but not limited to) the following:
5.2.1 the right to remove the minor children each weekend when he is
in Johannesburg, on a weekday from 14h30 until 18h30 and from
Friday 16h00 until Sunday at 17h30 or on 48 hours' notice by text
message or WhatsApp w ith the notice to set out for what period
the Respondent expects the minor children to be with him;
5.2.2 that during the children's school term the defendant is to ensure
that the minor children attend school and that they are returned
home by 20h30 on a school night;
5.2.3 the defendant is to notify the plaintiff as to who is caring for the
minor child A. .. e until he turns 7 years of age and it must be a
caregiver agreed to between the parties and known to the
children;
5.2.4 the right to have the children w ith the defendant for one half of
each school holiday, with the provision that the December
holidays shall be shared on such a basis between the parties and
that the minor children shall spend an alternative Christmas with
each parent;
5.2.5 the right to remove the m inor children on Father's Day and on the
defendant's birthday;
5.2.6 should the birthday of any of the children not fall over a weekend
and/or school holiday which the children spend with the
defendant, the defendant shall be entitled to contact each child on
his birthday at least 2 hours;
63
5.2.7 both parties shall consent in writing to any major decision
involving each of the children as stipulated in terms of the
provisions of Section 31(1)(b) of the Children's Act No . 38 of 2005,
and in the event that the parties cannot agree on any such major
decision involving any of the children, such issues shall
immediately be referred to mediation;
5.2.8 In the event that the defendant intends to make arrangements to
have the minor children join the defendant whilst the defendant is
overseas during any such period when the defendant is entitled
to exercise his right of contact to the minor children and/or when
the defendant intends to proceed overseas on holiday with the
two minor children wh ilst exercising his right of contact to the
minor children, the plaintiff shall provide her written consent as
required in terms of any law to enable the minor children to
accompany the defendant overseas for holiday purposes;
5.2.9 The plaintiff shall at all reasonable times provide her full
corporation to enable the minor children to be placed in
possession of a valid passport for travel purposes, and shall sign
any and all necessary documentation on demand to enable the
issue of a passport for travel purposes to any of the two minor
children;
5.2.10 The defendant shall pay maintenance for the minor children in the
sum of R25 000.00 per month per child, escalating annually by an
amount equal to CPI (Consumer Price Index) on the anniversary
date of this Order, until the minor children are self-supporting;
5.2.11 The amounts aforesaid will be payable on or before the first day
of each and every month directly into a bank account the
particulars of which the plaintiff will advise the defendant in
writing;
64
5.2.12 The defendant shall pay any and all reasonable medical
expenses incurred for and on behalf of the minor children and for
which purposes the defendant will retain the m inor children on a
medical aid fund and pay all premiums and shortfalls in respect of
such med ical aid fund on demand ;
5.2.13 The defendant shall pay for any and all reasonable scholastic
and extra-mural activities in respect of the minor children;
6. The defendant shall pay spousal maintenance to the plaintiff until her death
or re-marriage, wh ichever occurs first in the sum of R67 167.00 per month,
payable on or before the first day of every month into a bank account to be
nominated by the plaintiff, and wh ich amount w ill escalate yearly on the
anniversary date of this Order at a rate equal to the average rate of the
Consumer Price Index for the preceding twelve months.
7. The defendant is ordered to pay plaintiff's costs including the costs of
Rule 43 application as well as the costs of two Counse ls on a party and party
Scale C . The defendant is to pay half of the plaintiff's costs of preparation of
the Heads of argument.
Date of Hearing:
Date of Judgment:
Appearances
11 July, 2025
M NTANGA
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG
10 October 2025
65
Plaintiffs Counsel:
Instructed by:
Defendant's Counsel:
Instructed by:
Adv T J Machaba SC
Adv SG Maritz SC
Jerry Nkeli & Associates Inc.
Adv Van Niekerk SC
Adv Ledwaba
KS Dinaka Attorneys
66