REPUBLI C OF SO UTH A FRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
(2)
(3)
lk SIGNATUR
In the matter between:
MAKHUBELE BOTANA MAURICE
MASINGE SOPHIE REBECCA
And
MABASA WINNIE SASAVONA
KGANYAGO J
JUDGMENT
CASE NO: HCA31&32/2025
FIRST APPELLANT
SECOND APPELLANT
RESPONDENT
1
2
[1] The respondent (Sasavona) has instituted divorce proceedings against the first
appellant (Botana) alleging that she and Botana were married to each other by
customary union on 24th June 1989. As proof of lobolo Sasavona has attached
to her particulars of claim a confirmatory letter from Hlaneki Traditional Council
dated 7th February 2023 and also an affidavit deposed by her. In her divorce
papers she is seeking orders for a decree of divorce; division of the joint estate;
50% of Botana's pension interest; and R5 000.00 spousal maintenance for a
period of six months or until she remarry, whichever comes first.
[2] Botana is defending Sasavona's action. Botana has raised two special pleas.
The first one he is challenging the validity of the alleged customary marriage
between him and Sasavona . The grounds of Botana's first special plea are that
there was no customary marriage that was entered into by him and the
Sasavona; no lobolo was paid, and there was no celebration in terms of
customary law; the documents which Sasavona has attached to her particulars
of claim as confirmation of the customary marriage do not serve as proof of the
existence of customary marriage; and the lobolo letter from Hlaneki Traditional
Council has names that cannot be identified as witnesses for both Sasavona
and him.
[3] The second special plea is that of non-joinder. Botana is alleging that he is
married to another woman who has 50% share in his estate. Botana therefore,
plead that the Sasavona is claiming the share of the joint estate between him
and his wife.
[4] Sasavona had filed a replication. In her replication Sasavona is alleging that the
lobolo letter which was signed by the emissaries during lobolo negotiations was
misplaced at the time of the institution of the divorce summons and has now
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been found. Sasavona had attached an alleged lobolo letter dated 24th June
1989. As per the lobolo letter the emissaries that attended the lobolo
negotiations were Khosa Mbazima, Khosa Makhachane Daniel, Chavani
Khubane Mana and Maluleke Misowa Patracia. From the lobolo letter it is not
clear which family were the emissaries representing as they all signed as
witnesses on the lobolo letter.
[5] The second appellant (Sophie) has joined the proceedings on allegations that
she is the lawful wife of the Botana. Sophie has also raised a special plea.
According to Sophie's special plea, there was never any marriage contract
between Sasavona and Botana. There was no payment of lobolo by Botana
family to Sasavona's family, and there was no handing over made by the family
of Sasavona to Botana's family. Sophie has therefore pleaded that there was
no existence of a valid customary marriage that was concluded by the parties.
[6] At the commencement of the trial in the court a quo the parties agreed to dispose
the special pleas first. The parties further agreed to dispose the special pleas
by leading oral evidence. As Sophie has joined to the proceedings, Botana has
abandoned his special plea of non-joinder. The remainder of Botana and
Sophie's special pleas had the effect of achieving the same results. The court
a quo made an order that the onus was on the Botana and Sophie and were
therefore required to lead their witnesses first.
[7] Botana was the first witness to testify for his case. He disputed that he and
Sasavona were married to each other by customary union. He disputed that he
paid lobolo for Sasavona and also disputed knowing the emissaries that
appears as witnesses on the lobolo letter. He also disputed knowing the lobolo
letter attached to Sasavona's pleadings. Botana disputed having send
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emissaries to Sasavona's family to negotiate lobolo for him. He stated if he had
sent emissaries, in Tsonga culture, they should have sent people to deliver her,
and not to write a letter as in their culture that shows disrespect. If there was
exchange of money, the lobolo letter serves as evidence. The names of the
people who have attended the negotiations will be written on lobolo letter and
would have also signed it.
[8] Botana conceded that he was called to Hlaneki Traditional Council for a meeting
regarding their customary marriage. At that meeting Sasavona, her mother and
brother were present. During the meeting Botana disputed the existence of the
customary marriage between him and Sasavona. Later the council informed
them that it was no longer necessary to interrogate them further as the first
people whom the council held a meeting with have conceded that they have
lied to the council when it issued the first lobolo letter. The council informed
them that it had taken a decision to write a letter renouncing the first lobolo
letter. He stated that he was shocked when he read the affidavit deposed by
Chabane Maria that stated that he had passed away, and that it was Sasavona
who had informed Maria that he had passed away. Botana conceded that he is
married to Sophie.
[9] Botana was cross-examined and it was to put him that according to the
affidavit of Rebecca Masinga the lobolo negotiations of him and Sophie
was held on 19th March 2016 . The celebration was held on the same date
of lobolo negotiations , and Sophie was handed to the Makhubele family
on 2P1 March 2016. However , according to the affidavits of Maluleka
Grace and Dabula , the lobolo negotiations were held on 19th August 2016
and the handing over was done on 21 st August 2016. Botana stated that
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there were lot of things that can make a person to forget, but the fact of
the matter is that lobolo negotiations between him and Sophie have taken
place. He denied that he had brought Sophie into the court proceedings
in order for her to assist him in fighting his special plea.
[1 OJ Botana denied that he was married to Sasavona but conceded that she
and Sasavona are having two children together and that both children are
currently majors. Botana stated that during 1990 he had sent a person to
Sasavona family to go and pay damages for having impregnated
Sasavona, but that he did not pay lobolo. Botana stated that during 1993
Sasavona brought the two minor to stay with him. He stayed with these
children until they left on their own. He had stayed with the children
without Sasavona. Botana denied that he had instructed the traditional
council to write a letter revoking his marriage with Sasavona. According
to Botana, the traditional council wrote the revocation letter after they
realised that they have been lied to regarding him been married to
Sasavona.
[11] Mokajane Daniel Khosa (Daniel) testified as Botana's first witness. He
testified that he knows Sasavona. Sasavona came to his homestead and
requested him to accompany her to the tribal royal family as her husband
has passed away. At the tribal royal family they needed relatives so that
they can be able to pay her money for the passing of her husband.
Sasavona had told Daniel that the money will not be paid if one of the
Khosa family member was not present.
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[12] On arrival at the tribal council they found people waiting for them. The
chief asked Daniel how he was involved in the issue of lobolo and
whether he knew the people who were at the tribal council. Daniel told
the chief that he did not know them, and he is not even related to them.
He was involved because Sasavona came to his homestead and
requested him to accompany her to the tribal council. The brother to
Sasavona was the first person to come and talk to him requesting him to
go with them to the tribal council. He did not know the name of the brother
of Sasavona , but they attended church together and only knew him by
his surname of Khosa.
[13] Sasavona had first gone to Mbasima Khosa the brother to Daniel, and
when she could not find him, she went to Daniel. Daniel had asked
Sasavona whether she was not going to put him in trouble as he knew
nothing about the matter. Sasavona told him that a person could be
convicted or put into jail without having committed an offence. Daniel
stated that he was told to sign the lobolo letter which he signed despite
not knowing anything about the lobolo. He stated that during 1989 he was
not at his home village but came back during the year 2000. He was
surprised by all these, and how his name happens to be involved in this
matter. He is not related to Sasavona, he does not know her, and she
also does not know the names of the witnesses that appears on the lobolo
letter. Daniel disputed knowing Chabane Khubane Maria. He did not
know Botana and that he was seeing him for the first time at court.
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[14] Under cross-examination Daniel stated that he was not present when the
lobolo was paid. He stated that he was able to write his name, but
sometimes he appends his thump-print. Daniel stated that Sasavona
does not even know his name. He stated that he did not remember
whether in the year 2023 he went to the police station to make an affidavit,
and that he knew nothing about the matter. He could have made the
affidavit as he knew nothing about the matter and did not know the
contents of the affidavit. He stated that the first document that he had
signed, he was told that it was for the royal family, and the second
document that he had signed was for him to get out of trouble as he was
told that he will be arrested.
[15] He was fetched by the police officers from the tribal council to meet
Botana, he was scared and he signed so that he can get out of trouble.
On arrival at the tribal council , they showed him Botana and asked him
whether he knew him, and he said he did not know him. The tribal police
told him that he was under arrest because he had signed documents
which he knew nothing about. He told the tribal police that he had signed
because it was indicated to him that it was for the royal family.
[16] Khubani Maria Chavani (Maria) testified as Botana's second witness. She
testified that Chavani is her marital surname. She does not recall the year
in which she got married. Her maiden surname is Maluleke. She stated
that she started knowing Sasavona at court when she started attending
court proceedings . Before the court case she never came across
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Sasavona. She denied attending Sasavona's lobolo negotiations on 24
th
June 1989. She denied knowing Patracia Musola and Mkatjane Daniel
Khosa. She cannot read and write.
[17] Maria conceded that she went to Hlaneki tribal council, and the reason
for that was to receive her old age social grant. On arrival at the tribal
council, her late son who was a police officer at Hlaneki told her that there
was a letter which it is alleged that she had signed. Her son did not show
her the letter or document that she had signed but told her that she was
under arrest. She told her son that she wanted to write an affidavit to clear
her name because she did not do it. She requested her son to write that
affidavit to indicate that she knew nothing. After her son had written the
affidavit, she signed it by placing her thump print without her son reading
back to her the affidavit that he had prepared. However, what her son
had written in the affidavit is what she had told him.
[18] She at no stage talked to Sasavona and had seen her for the first time at
court. Maria stated that the first time she went to the tribal council was
when her niece Musola asked her identity document as she wanted to
use it. She did not give her niece her identity document, but she went to
the tribal office. On arrival at the tribal office, they asked her to give them
her identity document. They took her identity document together with that
of Musola and they started writing. After writing they gave back her
identity document and did not make her to sign any document. She stated
that she had changed her maiden surname to Chavani during 2018 when
9
she changed her old identity document to the smart card. She stated that
during 1989 she was still using her maiden surname. She stated that she
did not know Botana or any of his family members around Hlaneki village.
[19] Maria was cross-examined and she stated that she did not know where
the homestead of Sasavona was. She denied that she was part of the
emissaries that have negotiated Sasavona's lobolo. Maria stated that she
went to the tribal council in order to receive her old age social grant, and
that is when she met the police officer who told her that she was under
arrest. She disputed that she is the one who had signed with a mark on
the letter of confirmation of the marriage between Botana and Sasavona.
[20] She stated that she only signed an affidavit to clear her name. It was put
to Maria that Botana had threatened her to come and testify at court, her
response was that it was not possible as she did not know Botana and
also did not know where he stays. It was put to Maria that she had
deposed her affidavit under duress because she was told that she will be
arrested, she conceded to that and stated that she was afraid to come
and be in trouble for something that she did not know. That concluded
the evidence for the first appellant.
[21] The second appellant Sophie Rebecca Masingi (Sophie) testified under
oath. She testified that she and Botana were married to each other
customarily during 1996. Lobolo was paid for her by the Makhubele
family. There were people who were present from her family and
Makhubele family to witness the transfer of the lobolo. A lobolo letter was
10
prepared and signed by those who attended the lobolo negotiations. She
was handed to the Makhubele family on 21 st March 2016. When the
Makhubele family accepted her, Botana did not have any other wife. She
started knowing Sasavona in court but knew that she was having children
with Botana. She was at no stage informed that Botana was married to
Sasavona.
[22] Sophie was cross-examined and she stated that she and Botana were
married to each other on 19th March 2016. She conceded that she went
to Hlaneki tribal council in order to obtain the confirmation letter of their
customary marriage, and that the reason for that was to supplement the
lobolo letter. She stated that R22 300.00 was paid as lobolo for her.
Sophie stated that the dates of the 19th and 21st August 2016 as stated in
the affidavits of Grace Maluleke and Dora Tsakani Lily were incorrect.
However, Grace and Dora knew that she and Botana were married to
each other. Sophie stated that she and Botana are having one child
together.
[23] Octavia Twala (Octavia) testified as Sophie's first witness. She testified
that Sophie is her sister-in-law child. She knows about the marriage
between Sophie and Botana. She was present when the Makhubele
family came to pay lobola for her. After payment of the lobolo there was
a ceremony which was held, and they even danced. The lobolo amount
that was paid for Sophie was R20 000.00. Thereafter Sophie was handed
to the Makhubele family. She was not aware that Botana had another
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wife at the time he was getting married to Sophie. The lobolo negotiations
were held on 19th March 2016. The date of the 19th August 2016 as it
appears in her affidavit was an error from her side.
[24] Octavia was cross-examined and when asked to explain the discrepancy
in relation to whether it was R22 300.00 or R20 000.00 which was paid
as lobolo for Sophie, she stated that she is an elderly person and it is
easy for her to forget. She denied that she was coached of which
evidence to come and testify about.
(25] Sasavona Grace Maluleke (Grace) was Sophie's second witness. She
testified that she knows Botana, they are cousins. She knows that Botana
is in a relationship with Sophie, and that she was part of the delegation
of their lobolo negotiations during 2016. After the negotiations they
enjoyed food, drank alcohol and they also danced on the beach. Sophie
was not handed to them on the same day of the lobolo negotiations , but
at a later date. She does not know Sasavona. She is aware that Botana
had other children, but do not know their mother.
(26] Grace was cross-examined and she stated that the lobolo negotiations
were held on 19th March 2016, and the handing over of Sophie was done
on 21 st March 2016. In her affidavit that she had deposed she had made
a mistake in relation to dates as she was not in possession of the lobolo
letter. She stated that the people who were present during the lobolo
negotiations of Sophie were Lazarus Makhubele, Elias Makhubele, Malai
Mavundla , Basani Twala, Nico Makhubele , Rendani Dabula, Gift
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Makhubele and herself. The lobolo that was paid including damages
amounted to R22 300.00.
[27] Jameson Chabalala (Jameson) was Sophie's third witness. He testified
that he was employed at the tribal council as a tribal clerk. His duties
entail issuing letters. He is the one who authored the confirmatory letter
of the customary marriage between Botana and Sasavona. He issued the
letter after Sasavona had requested it. However, before he issued that
letter, he had requested Sasavona to come along with two females from
the Makhubele family and two from her own family. Further that she must
come with both of her parents if they are still alive, and she told him that
it was only her mother who was still alive. After some time Sasavona
came back with those members and with the proof that he had requested.
Based on that he issued the letter and also made them to sign the letter
as proof that they were witnesses. After that they left.
[28] After they have left, Botana came to the tribal council complaining about
the letter that he had issued to Sasavona. Jameson escalated the
complaint to the council and the chief. Sasavona, her relatives together
with the witness whom she bought when the letter was issued were called
to the tribal council and they all came. Botana who was present disputed
that the witnesses that were brought were Sasavona's family members.
However, those witnesses stated that they knew Botana. Botana asked
these witnesses whether they knew him as he did not know them. These
witnesses changed their statements and said that Sasavona had just
13
invited them to come and be her witnesses. That made the chief to realize
that the letter that was issued to Sasavona was not valid. The chief then
wrote a letter revoking the letter of confirmation that was issued to
Sasavona.
[29] Jamesson stated that he wrote the confirmation letter to Sasavona on the
basis that Sasavona was having a copy of the identity document of
Botana, and she had also told him that Botana was not around and has
given her permission to obtain the letter. When he issued that letter, he
was under the impression that Botana had given Sasavona permission
to obtain the confirmation letter.
[30] Jameson was cross-examined and he stated that Sasavona had told him
that Khosa Mbazima and Khosa Mkhachane were from the Makhubele
family, and that Shabani Maria and Maluleke Patracia were from
Mabasa's family. Jameson stated that Sasavona was also in possession
of a lobolo letter dated 24th June. Jameson stated that Sasavona did not
tell him about the passing away of Botana, and that he could not tell
whether Daniel has misled the court when he testified that Sasavona told
him that Botana has passed away, as he did know what she told Daniel.
Jameson stated that Daniel had told the chief that he did not know Botana
but had just been called by Sasavona. When it was put to Jameson that
Botana has used his influence that come from the relationship he had
with the chief to influence Jameson to testify and mislead the court , he
stated that he did not know about the relationship which Botana had with
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the chief, he did not know Botana and only saw him in relation to the
dispute about the confirmation letter.
[31] Jameson stated that when chief wrote the revocation letter, he was in his
office with the parties , and he (Jameson) was not present and will not
know what transpired in that office. Jameson disputed that he came to
court to testify because Botana had threatened him by telling him that his
money was been taken by Sasavona , but that he was sent by his office
to come and explain about the letter that comes from the tribal office. That
concluded the evidence for the second appellant.
[32] Sasavona testified under oath and stated that she knows Botana and he
is her husband. They were married to each other customarily on 24th June
1989. They are having two children together and both children have
reached the age of maturity. She was residing at Makhubele homestead
at Gonongo village with both children. When there was a breakdown in
their marriage relationship , she left the children at the Makhubele
homestead as Botana had stabbed her with a knife. She left after she had
opened a case of assault GBH against Botana. She does not remember
the year that she left the Makhubele homestead . When she left these
children, they were old enough to be responsible .
[33] When she instituted the divorce proceedings against Botana, she gave
her attorneys a confirmation letter of her marriage from Hlaneki traditional
council, and her lobolo letter was at her home. During their marriage
Botana was abusing and assaulting her, and she decided to run to her
15
parental homestead. On 12th March 1993 Botana wrote a letter to
Sasavona's parents demanding that she return to their common home on
13th March 1993. The contents of the letter were in such a way that it was
a command as he was telling her to return home. In their culture if one
has been assaulted, she will run to her homestead, and both families will
come together and he will apologise. With the way Botana had written his
letter it was a command that she be brought back.
[34] With regard to the confirmatory letter from Hlaneki tribal council, she was
at the magistrate court when she learnt that Botana was going on
pension. When she made enquiries, she was referred to the tribal council
and told to go there with her identity document, two witnesses from her
family side and two witnesses from the husband's side. That is when she
called the witnesses who accompanied her to the tribal office. The
witnesses that she called were Mamaka Anna Mabasa who is her mother,
Patricia Maluleke whom they are not related, Mbazima whom they are
not related, Daniel Khosa whom they are not related and Kubane Maria
Chabane whom they are not related.
[35] Sasavona stated that the witnesses that she had called to be her
witnesses at the tribal council were the same witnesses that were present
during her lobola negotiations. Even if they were not related, it was not a
must that during lobola negotiations one must call his/her relatives, it
depends on the preference of the family. Daniel Khosa was present
16
during lobola negotiations but was being threatened by Tenico and his
brother (Botana).
[36] Later she received a letter from the tribal council inviting her to a meeting.
In that invitation letter, she was requested to come along with her
witnesses but did not specify the witnesses she must come with. She
went to the tribal office in the company of her mother and brother. On
arrival at the tribal office, she was told that the letter that was issued to
her confirming the customary marriage was fraudulent and that she must
go and fetch the other witnesses. She was able to find Daniel Khosa only
as other witnesses were not at their homesteads.
[37] The chief arrived and a meeting was held between the Mabasa and
Makhubele families. The chief told them that the Makhubele family was
alleging that the confirmation letter was fraudulent. Before her mother
could respond, Botana looked at her mother and asked her whether she
knows him and has ever seen him at her homestead. Daniel was also
threatened in Sasavona's presence. (Counsel for Sasavona placed on
record that he was not going to call a witness to corroborate her on the
issue threats. The court a quo made a ruling that the evidence of threats
against witnesses amounted to hearsay evidence and will be scrapped
from the record). Botana told them that Sasavona should not have
opened a case, if she wanted money she should have asked him and he
would have given her the money. Thereafter Botana commanded the
chief to write a letter that there was no marriage at all, and that the
17
marriage Sasavona was claiming to exist was fraudulent. The chief did
not write the letter immediately but said he will think about it. The meeting
was then adjourned .
[38] Sasavona stated that she knew nothing about the marriage between
Botana and Sophie. If it was a formal marriage, Botana would have
informed her and the children that he was going to marry another wife.
Botana was not truthful when he testified that him and her were not
married. They have stayed together for a long time at the Makhubele
family. One on their child when she got married Botana had enjoyed the
lobolo money. When Botana's aunt went to Lamana, she remained with
the aunt's children at their home.
[39] Sasavona stated that she started staying with Botana during 1986 at his
homestead, and it was because she was pregnant. After she fell pregnant
with her second child Botana made a payment of R?00.00 to her family
which was to show that he was staying with Sasavona, and for her family
if they were looking for her they will know where to find her. That Botana
paid lobolo during 1989. She stayed at Botana's homestead together with
their children.
[40] Sasavona was cross-examined and she stated that Botana had told his
witnesses that she and him were not married to each other which is not
the truth. She stated that the letter that Botana has written to her family
was commanding her to return to their common homestead by Saturday,
and proofs the existence of customary marriage between her and Botana.
18
She stated that the R700.00 that was paid by Makhubele family was for
damages for Botana having impregnated her, and that payment was
made during 1989 before the lobola payment of R2 786.00 was paid that
same year.
[41] It was put to Sasavona that during 1989 Maria had not yet assumed her
marital surname of Chavani but was still using her maiden surname of
Maluleke and therefore could not have signed on the lobola letter as
Chavani. Her response was maybe she was using two surnames as she
had two identity books. It was put to Sasavona that Maria's old identity
document was issued on 9th February 2004, and her response was that
she did not know how to answer that question. She stated that during her
lobolo negotiations the witnesses from the Makhubela family were
Khubani Chavani and Daniel Khosa, and from the Mabasa family were
Mbazima Khosa and Patricia Maluleke. She conceded that none of these
witnesses were related her.
[42] Sasavona stated that after Botana had assaulted her, she ran to her
homestead and Botana wrote a letter to her people pleading with them
that she return to their common home so that she can be allowed to stay
with him again, and to take care of the children. Sasavona stated that
Botana knew the witnesses that represented the Makhubele family during
lobolo negotiations. Sasavona stated that she stayed with Botana at
Gonono village from 1986 until 2012 when she left their common home.
She further stated Botana was also staying at section A Giyani with the
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children. It was put to Sasavona that the people who attended her lobolo
negotiations were from the same family , her responds was that it depends
on how people prefers whether it is members of the same family or not,
but this is about preference of that family. She stated that she started
staying with Botana before he paid lobolo, and that he only paid R700.00
which was for damages, and she stayed with him until he paid lobolo.
She stated that after the lobolo was paid, there was no handing over
ceremony as she was already staying with Botana, and that the issue of
lobolo was done as a normal practice.
[43] Vuthlari Makhubele (Vuthlari) testified as Sasavona's first witness. She
testified that Botana and Sasavona are her parents. She was staying with
both of her parents, sibling and grandmother at Gonono village. It is not
true that Botana was not staying with Sasavona. She was born in 1987.
[44] Vuthlari was cross-examined and she stated that when she grew up, she
was staying at Makhubele homestead with both of her parents. They were
having two homes , one in Gonono village and the other in section A
Giyani, but that Sasavona was staying at Gonono village and she never
went to Giyani. When asked whether Botana was currently staying with
another woman , her response was that she knew nothing about that. She
further stated that when she visited Botana, she never found her with
another woman . She stayed with both her parents until she got married
during 2012 . When she got married both of her parents were involved in
preparations for her wedding.
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[45] Anna Mabasa (Anna) testified as Sasavona's second witness. She
testified that she does know her age. She was born a long time ago.
Sasavona is her daughter, and Botana is her son-in-law. Botana has
married Sasavona and had also paid lobolo.
[46] The witness was cross-examined and she could not tell when Botana had
paid lobolo but stated that it was long time ago. She did not know the
emissaries that came from Makhubele's family to negotiate the lobolo.
Those who represented the Mabasa family during lobolo negotiations
were her children including her son Eddy Mabasa. The emissary from the
Mabasa family who was taking messages to the Makhubele family was
Philemon Khosa but did not know the one from Makhubele family. She
takes Philemon as her grandson. She did not know Maria Kubane.
[47] She does not remember how much lobolo amount did Botana pay, but he
had paid everything and do not owe her anything. Everything was
recorded in a book. Herself and Eddy had signed that book, and do not
remember the others who have signed. On the day the lobolo was paid
she handed over Sasavona to Botana. That concluded the evidence of
Sasavona.
[48] The court a quo had found in favour of Sasavona and dismissed the
appellants' special plea. The court a quo further held that there was a
valid customary marriage between Botana and Sasavona. In dismissing
the appellants' special plea, the court a quo has held that the evidence
illustrate that both of the appellants witnesses were threatened with arrest
21
on allegation that that they involved themselves in other people's affairs.
It concluded that the evidence and demeanours of these two witnesses
pointed to the probability that their renouncement of involvement in the
lobolo negotiations was not done freely and voluntarily, but under threat
or undue influence.
[49] The appellants are appealing against the whole of the judgment and order
of the court a quo to dismiss their special plea. Amongst the grounds of
their appeal are that the court a quo erred in finding that the appellants
witnesses who have signed the lobolo letter at Hlaneki Tribal Authority
were threatened and dragged to court; the court a quo erred in
disregarding the testimony of the witnesses that they did not know
Botana, and that they were never emissaries for the Makhubele family,
and never paid lobolo on behalf of Botana; the court a quo erred in
accepting the testimony of Sasavona that Khubani Maria Chabane was
having two identity documents at the time of lobolo negotiations ; and that
the court a quo erred in finding that there was a valid customary marriage
between the Botana and Sasavona notwithstanding that Sasavona had
produced a document that was clearly fraudulent.
[50] Before this court counsel for the appellants submitted that the judgment
of the court a quo is factually unsustainable as it relies on documentary
evidence (lobolo book) that is demonstrably fabricated. Forensic
evidence established that the witness Chabani only adopted that
surname during 2018, rendering her signature under that name in a 1989
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document historically impossible. Sasavona's evidence regarding the
identity of Botana's emissaries is that of a single witness, and her
testimony was materially contradicted by her own mother regarding the
family relationship of the witnesses. The finding that independent
witnesses were threatened was unsupported by the record; conversely,
the record shows they were tricked by Sasavona who claimed Botana
was deceased. During the trial the court a quo ruled that the evidence by
Sasavona that the witnesses of Botana were threatened to come and
testify favourably to Botana was hearsay and therefore inadmissible.
However, in its judgment the court a quo relied on that evidence it had
ruled inadmissible. The requirements of a valid customary marriage were
not met.
[51] Sasavona through her counsel submitted that the 1989 lobolo letter was
sufficient to conclude that there was a valid customary marriage between
Botana and Sasavona. Sasavona never gave consent to Botana to marry
Sophie. Therefore , the marriage between Botana and Sophie was null
and void ab initio. The record shows that the two witnesses who testified
for Botana were threatened and were under duress when they changed
their earlier positions. These witnesses were elderly people, and
whatever made them to change their minds was as a result of threats on
them. These witnesses were also threatened to attend court. The witness
Chavani was popularly known as Chavani though she only changed her
identity document during 2018. Chavani did not recall when she got
married to her husband.
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[52] The questions which this court must determine is whether lobolo
negotiations were held. If it is found that lobolo negotiations have been
held, it must be determined whether it has been established that Botana
and Sasavona were married to each other by customary union. The onus
rest on Sasavona to establish the two issues, and not on Botana and
Sophie as held by the court a quo.
[53] It is trite that customary marriage is not an event, but a process that
comprise of a chain of events, and it also involves the two families of the
parties intending to marry each other. That marriage must also be
concluded in terms of the customs and usages traditionally observed by
the parties involved.
[54] Section 3(1) of the Recognition of Customary Marriages Act1 (Recognition
Act) provides:
"For a customary marriage entered into after the commencement of this Act to be valid-
(a) the prospective spouses-
(i) must both be above the age of 18 years; and
(ii) must both consent to be married to each other under customary law; and
(b) the marriage must be negotiated and entered into or celebrated in accordance with
customary law".
[55] In Tsambo v Segadi2 Molemela JA said:
1 120 of 1998
2 [2020] ZASCA 46 (30 April 2020) at para 15
24
"When dealing with customary law, it should always be borne in mind that it is a dynamic
system of law. In Ngwenyama v Mayelane and Another this Court stated as follows:
'The Recognition Act does not specify the requirements for the celebration of a customary
marriage. In this way, the legislature purposefully defers to the living customary law. Put it
differently, this requirement is fulfilled when the customary law celebrations are generally in
accordance with the customs applicable in those particular circumstances. But once the three
requirements have been fulfilled, a customary marriage, whether monogamous or polygamous,
comes into existence".
[56] Botana and Sasavona were allegedly married to each other before the coming
into operation of the Recognition Act. Before the coming into operation of the
Recognition Act marriages of black people were regulated by the Black
Administration Acf3. In Manwadu v Manwadu and Others4 Weiner JA said:
"(17] According to Nkuna-Mavutane ME and Jamneck J, under customary law, the following
were accepted as essential elements for a customary marriage to be viewed as concluded and
binding: consent of the bride and bridegroom (spouses), consent of the bride's father or
guardian (parents), payment of lobolo, and the handing over of the bride.
[18] The RCMA added further requirements which address formal and customary law
requirements. Both prospective spouses must have consented to getting married in terms of
customary law. These requirements are peremptory. The customary law requirements relate to
the negotiation and celebration of such marriage".
[57] Before a customary marriage is celebrated it should have been negotiated and
when agreement is reached, payment of lobolo will be made which will be in
the form of money or live cattle. Normally this process would have started after
the bride and bridegroom have agreed to be married to each other in
accordance with customary law. The bridegroom will notify his parents about
3 38 of 1927
accordance with customary law. The bridegroom will notify his parents about
3 38 of 1927
4 [2025] ZASCA 10; [2025 ] All SA 27 (SCA); 2025 (3) SA 410 (SCA) (10 February 2025) at paras 17 and 18
25
the person he intends to marry. The bridegroom's parents will introduce
themselves to the bride's family. After the two families have met, the
bridegroom's parents will call a meeting of their close family members of which
the uncles (brothers of bridegroom's mother) and aunts (sisters of bridegroom's
father) play a crucial role. During that meeting a date will be set for lobolo
negotiations and it will also be decided who will represent the family as
emissaries. After that a letter or a messenger will be sent to bride's family to
inform them of the date they will be coming for lobolo negotiations. The bride's
family on receipt of the letter or message will call a meeting of close family
members in the same way the bridegroom has done. In culture, a child is not
that of his/her biological parents only, but also belongs to the extended family
members, hence close family members will be involved in his/her lobolo
arrangements. It will be uncles and aunts who take charge of negotiations
reporting to the biological parents, as in terms of culture, parents of both the
bride and bridegroom are not directly involved in lobolo negotiations.
[58] According to the alleged lobolo letter by Sasavona, her lobolo negotiations were
held on 24th June 1989. The lobolo payment was coming from the Makhubela
family to Mabasa family. What has been recorded in the letter are the following:
(a) opening of the mouth R20.00; (b) two containers of snuff R10.00; (c) the
father's coat R50.00; (d) the blanket for the mother R50.00; (e) we are asking
for surname R30.00; (f) the cattle are coming back to the kraal R100.00; (g)
money for the maidens R 150.00; we are asking for water R200.00; money
coming from Makhubele is R2 786.00. Thereafter the witnesses who allegedly
signed the lobola letter were Khosa Mbazima. Khosa Makhachane Daniel,
Chavani Khubane Mana and Maluleke Misowa Patracia. From the signed letter
it has not been specified which family were these witnesses representing, but
26
all have signed under one heading titled 'witness'. When Sasavona testified she
stated that Khubani Chabani and Daniel Khosa were emissaries from the
Makhubela family whilst Mabasa family was represented Mbazima Khosa and
Patracia Maluleka. Sasavona conceded that Mbazima and Patricia are not
related to Mabasa family.
[59] It is not in dispute that Botana had impregnated Sasavona twice and they are
having two children who are now all majors. When the second child was born,
Botana paid damages in the amount of R700.00 to Mabasa family for having
impregnated their daughter and also to know where she was staying. At some
stage Botana and Sasavona were living together in one of their homesteads in
Gonono village whilst sometime Botana will stay with their children in their other
homestead in Giyani.
[60] The first question to be determined is whether the lobolo negotiations were held
which would have culminated into lobolo money being paid. On this issue the
facts of this case are somehow unusual. The witnesses whom it is alleged were
emissaries from the Makhubele family dispute having attended the lobolo
negotiations and also dispute knowing Botana. According to the evidence of
Daniel the alleged emissaries from the Makhubele family, Mbazima Khosa who
allegedly represented the Mabasa family is his brother. When Sasavona
instituted her divorce action, the lobolo letter was not attached to her particulars
of claim but only came into picture after Botana had filed his special plea. Maria
Chavani testified that during 1989 she was still using her maiden surname of
Maluleke, and that she assumed her marital surname of Chavani during 2018.
It could not be explained how it came about that she signed as Chavani during
1989 before she could assume that surname.
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[61] Sasavona has conceded that the witnesses whom it is alleged were representing
the Mabasa family, were not related to her and her family. It has not been
explained how it came about that the Mabasa family were being represented
by strangers during this important cultural event which brings two families
together. This court is alive to the fact that customary law is by its nature, a
constantly evolving system. However, it is not being explained which custom
was the Mabasa family following when it chose strangers to represent them
during lobolo negotiations , or whether it was the current custom that was been
practiced and observed by the community they live in at the time.
[62] The two witnesses for Botana whom it is alleged by Sasavona that were
emissaries from the Makhubele family are disputing that. Sasavona was not
part of the lo bolo negotiations. Sasavona's mother Anna when she testified did
not state that she was part of the lobolo negotiations and that she knew how
the lobolo letter came into existence. All that she has stated was that Botana
was her son-in-law , has paid lobolo and was married to Botana. Sasavona did
not call any of the witnesses who were representing the Mabasa family and
were part of those who have signed the lobolo letter. No explanation was given
why she did not call any of those witnesses since the alleged emissaries from
the Makhubele family were disputing knowing Botana and also being part of the
lobolo negotiations on 24th June 1989.
[63] According to Sasavona, the witnesses who were allegedly emissaries from the
Makhubela family were threatened by Botana to change their version and state
that they were not part of the emissaries from the Makhubele family and did not
know Botana. During the trial the court a quo had dealt with this issue, ruled it
to be hearsay evidence which was not admissible, and scrapped it from the
28
record. By scrapping that part of the evidence from the record it means that
piece of evidence no longer exists and therefore could not form part of the
record.
[64] However, in its judgment, the court a quo held that the evidence illustrate that
both witnesses were threatened with arrest on allegation that they involved
themselves in other people's affairs. It therefore came to the conclusion that the
evidence and demeanours of these two witnesses pointed to the probability that
their renouncement of involvement in the lobolo negotiations was not done
freely and voluntarily, but under threat or undue influence. The court a quo by
relying on the evidence which it had scrapped from the record had erred. Even
if the court a quo has not scrapped that part of the evidence from the record,
during questions by the court a quo, Maria had clarified why she had submitted
an affidavit disputing having attended lobolo negotiations and also why she
came to court to testify. Her reasons for submitting the affidavit and coming to
court to testify was that they have lied about her and she wanted to clear her
name. All these she did out of her own free will without been threatened, but
with the sole purpose of clearing her name.
[65] The court a quo in dismissing the appellants' special plea relied also on the
lobolo letter of 24th June 1989 by finding that it was original, Sasavona and her
mother Anna had testified about it, their evidence illustrate that both were
present during the negotiations, and therefore the lobolo letter was within their
personal knowledge. That there was no acceptable evidence to challenge the
authenticity or reliability of the lobolo letter except for the surname of Ms
Chabani. It further found that the appellants· argument that the lobolo
agreement was fraudulent could not be sustained by evidence. Therefore, the
29
letter remains prima facie proof of the negotiated agreement between the two
families paving the customary marriage between Mr Makhubele and Ms
Mabasa.
[66] I do not agree with the analysis by the court a quo of the evidence placed before
it and its findings. From the entire record, there is no evidence showing that
Sasavona and Anna were part of the lobolo negotiations. I have already pointed
out in paragraph 62 above that in terms of customs and usages, the bride and
her mother do not form part of the lobolo negotiations. As there is no evidence
that both Sasavona and Anna were part of the lobolo negotiations, the lobolo
letter was not within their personal knowledge. The two witnesses whom
Sasavona had alleged were part of the lobolo negotiations have disputed that,
and Sasavona failed to call the two witnesses from the Mabasa family without
offering any explanation . There was no evidence presented that two witnesses
were no longer available to come and testify. The only inference to be drawn is
that Sasavona was afraid that should she call them to testify, they were going
to contradict her version. The court a quo has therefore erred in finding that the
lobolo letter was within personal knowledge of Sasavona and Anna.
[67] The evidence of Daniel was that when Sasavona asked him to accompany her
to the tribal office, she told him that it was because her husband has passed
away, and at the tribal office they wanted one of the deceased relatives so that
money can be released. Further that he had signed the lobolo letter after
Sasavona had assured him that he was not going to be in any trouble, and
thereafter he signed the lobolo letter despite not knowing anything about the
lobolo. Maria also disputed been part of the lobolo negotiations. None of the
witnesses from the Mabasa family who were allegedly part of the lobolo
30
negotiations were called to rebut Daniel and Maria's versions which they are
corroborating each other. Maria went further to testify that during 1989 she was
still using her maiden surname of Maluleke, and she only changed to her marital
surname of Chavani during 2018. Even if Maria does not remember when she
got married to the Chavani family, there no evidence that she was married
before 1989 and has been using the Chabani surname even though she had
not yet formally assumed it. There is sufficient evidence to challenge the
authenticity or reliability of the lobolo letter, and the court a quo erred in finding
the opposite.
[68] The court a quo has ruled that the confirmatory letter of the alleged customary
marriage between Sasavona and Botana issued by the council amounted to
hearsay evidence. The second appellant Sophie has called Jameson the tribal
clerk as her witness . Jameson confirmed that he is the author of the of the
confirmatory letter issued by the council. Therefore, that letter would not amount
to hearsay evidence since its author was called to testify about it. The court a
quo has therefore erred in holding that the confirmatory letter amounted to
hearsay evidence.
[69] Even though the council had later revoked that letter, the circumstances under
which Sasavona had obtained it and the circumstances in which it was revoked
by the council in vital to this case and cannot be simply overlooked. This is the
letter which forms the basis of Sasavona cause of action when she instituted
the divorce action against Botana. Jameson had told Sasavona to come along
with two female persons from the Makhubele family, and two from her own
family before he could issue that letter. Further that she must come with both
of her parents if they are still alive. Sasavona left and came back with people
31
that she pretended to Jameson that they were from the Makhubele family, whilst
they were not and also knew nothing about the alleged lobolo negotiations of
the 24th June 1989. Sasavona has therefore deliberately misled Jameson in
issuing the confirmatory letter of the customary marriage between her and
Botana.
[70] The misrepresentation of the witnesses to Jameson by Sasavona is what led to
the revocation of the confirmatory letter when the two witnesses disavow what
they earlier attested to. Sasavona was therefore not honest with Jameson. This
in itself proves that Sasavona had fraudulently obtained the confirmatory letter
from Jameson. The only conclusion to reach is that Sasavona devised some
means to obtain the fraudulent letter as there were no lobolo negotiations which
were ever held, hence during the trial in the court a quo she was unable to call
a single witness who was representing her family during the alleged lobolo
negotiations. Without lobolo negotiations been held and no lobolo money could
have been paid to the bride's family by the bridegroom . A customary marriage
will not come into existence without lobolo negotiations been held. The court a
quo has therefore erred in finding that the alleged lobolo letter of the 24th June
1989 remains prima facie proof of the negotiated agreement between the two
families paving the customary marriage between Mr Makhubele and Ms
Mabasa.
[71] The alleged lobolo letter of the 24th June 1989 only surfaced after the Botana
had filed his special plea disputing the existence of the customary marriage
between him and Sasavona. In my view, the lololo letter of the 24th June 1989
was just created to try and supplement the one that was revoked by the council.
Sasavona has therefore failed to discharge the onus to prove the existence of
,
32
the customary marriage between herself and Botana. The appeal must
therefore succeed.
[7_2] According ly the following order is granted:
1. The appeal is upheld with costs.
2. The order of the court a quo is set aside and substituted with the following:
'The defendants' special plea regarding the non-existence of a customary
marriage between Botana and Sasavona is upheld with costs'
JlJDGE OF THE IilGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION,
POLOKWANE
I AGREE
APPEARANCES:
- ---·-- ----
ACTING JUDGE OF THE HIGH COl.JRT OF
SOUTH AFRICA, LJMPOPO DIVISION,
POLOKWANE
Counsel for the first appellant
Instructed by
Counsel for second appellant
Instructed by
Counsel for the respondent
Instructed by
Date heard
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