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[2019] ZASCA 134
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Mbungela and Another v Mkabi and Others (820/2018) [2019] ZASCA 134; 2020 (1) SA 41 (SCA); [2020] 1 All SA 42 (SCA) (30 September 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 820/2018
In
the matter between:
PIET
MBUNGELA FIRST
APPELLANT
THOBILE
CAROL MKHONZA NO SECOND
APPELLANT
and
MADALA PHILEMON
MKABI FIRST
RESPONDENT
THE MINISTER OF
HOME AFFAIRS SECOND
RESPONDENT
THE MASTER OF THE
HIGH COURT, THIRD
RESPONDENT
(NELSPRUIT)
Neutral
citation:
Mbungela
& another v Mkabi & others
(820/2018)
[2019] ZASCA 134
(30 September 2019)
Coram:
Maya
P and Zondi, Molemela, Mokgohloa and Dlodlo JJA
Heard:
12
September 2019
Delivered:
30
September 2019
Summary
:
Customary law – s 3(1)(
b
)
of the
Recognition of Customary Marriages Act 120 of 1998
–
requirements for a valid customary marriage – customary law
dynamic, continuously evolving, flexible and pragmatic
–
ceremony of handing over of bride not necessarily a key determinant
of a valid customary marriage - its waiver of permissible
and does
not invalidate a customary marriage – appeal dismissed.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Twala AJ sitting as court of
first instance):
The
appeal is dismissed with costs.
JUDGMENT
Maya
P:
(Zondi,
Molemela, Mokgohloa and Dlodlo JJA concurring):
[1]
The crisp issue in this appeal is whether the first respondent, Mr
Madala Philemon Mkabi, and the late Ms Ntombi Eunice Mbungela
(the
deceased) complied with
s 3(1)(
b
)
of the Recognition of Customary Marriages Act 120 of 1998 (the Act)
and concluded a valid customary marriage, where the deceased’s
family did not hand her over to the first respondent’s family
in terms of custom. The Gauteng Division of the High Court,
Pretoria
(Twala AJ) held that they did. The decision is challenged with leave
of this Court and only the first respondent opposed
the appeal.
[2]
The first respondent launched action proceedings in the court a quo.
He sought an order declaring that he and the deceased concluded
a
valid customary marriage, and further orders compelling the second
respondent, the Minister of Home Affairs, to register
[1]
and
issue a certificate of registration of that customary marriage.
[2]
He
also sued (a) Mr Piet Mbungela, the deceased’s elder brother
and head of her family, who is cited in this appeal as the
first
appellant, (b) the second appellant, Ms Thobile Carol Mkhonza, the
deceased’s daughter and executrix of her estate,
and (c) the
third respondent, the Master of the High Court, Nelspruit, who issued
the second appellant’s letter of executorship.
[3]
The Minister and the Master abided the court a quo’s decision
and only the appellants opposed the litigation. The appellants
contended that Mr Mkabi and the deceased did not conclude a customary
marriage because the deceased was not handed over to the
Mkabi family
and lobola was not paid in full with the result that not all the
requirements of s 3(1)
(b)
of
the Act were met. At the commencement of the trial, Mr Mkabi withdrew
the action against the first appellant, by agreement, in
terms of
which each party would pay his own costs. In the circumstances, the
first appellant is not a party in this appeal. For
convenience,
however, I will refer to him as the first appellant in the judgment.
[4]
Mr Mkabi testified in support of his case and the appellants and Mr
Jabu Troyed Mbungela, who was raised by the deceased as
her own
child, testified for the defence.
[3]
The
background facts as gleaned from their evidence are simple. Mr Mkabi
and the deceased, who were respectively 59 and 53 years
old, started
dating in 2007. They each owned immovable property. They regularly
visited each other at their respective properties,
ie the deceased’s
house in Kanyamazane, Nelspruit, which she shared with Ms Mkhonza and
Jabu when they returned from work
on some days, and Mr Mkabi’s
home in Pienaar. The latter, however, spent significant amounts of
time at the deceased’s
home and had his washing done there on a
permanent basis.
[5]
On 2 April 2010, Mr Mkabi sent emissaries from his family to the
deceased’s home in Bushbuckridge to ask for her hand
in
marriage in terms of custom. The deceased’s representatives
were led by the first appellant in the lobola negotiations
which
ensued. The proceedings were successful and the two families
concluded an agreement in terms of which Mr Mkabi would pay
lobola in
the sum of R12 000 and a live cow. He immediately paid R9 000,
which was accompanied by various gifts for the
deceased’s
family, namely a man’s suit, shirt, tie, socks and a pair of
shoes for her guardian, a woman’s suit
for her mother, a
blanket, a headscarf, two snuff boxes, brandy, whisky, a case of
beers and a case of soft drinks. The deceased’s
family also
gave gifts to the Mkabi emissaries. In the first appellant’s
words, the exchange of gifts ‘symbolised the
combination of a
relationship between the bride and the groom and the[ir] families’.
Mr Mkabi subsequently delivered the
cow to the deceased’s
family.
[6]
The deceased remained at her family home for a few days after the
lobola negotiations and returned to Mr Mkabi in the following
week.
They did not register their customary marriage
[4]
although
they once visited the relevant Traditional Council, in 2013, to
obtain an official letter confirming their union as they
considered
themselves married. The Traditional Council secretary was, however,
absent from the office on that day.
[7]
According to Mr Mkabi, who is a Swati, he was not familiar with the
customs of the deceased, who was a Shangaan. During the
lobola
negotiations no mention was made of a handing over or a bridal
transfer ceremony, which is not an absolute requirement to
complete a
customary marriage in Mr Mkabi’s own culture. (According to
him, payment of lobola may suffice in Swati culture,
depending on the
negotiations.) Nor was he informed that the marriage would be
complete only when the entire lobola amount was
paid. There was no
demand for the balance of R3 000 which he intended paying in due
course despite his understanding that
lobola is never paid in full.
In due course, he and the deceased had a white wedding at the
deceased’s church and they
continued living as a married
couple. To that end, he handed into evidence an extract of the
deceased’s diary in which she
listed her emergency contact
persons as Ms Mkhonza and Mr Mkabi, whom she respectively described
as her daughter and husband.
[8]
When his mother died in 2012 the deceased’s family attended her
funeral at his ancestral home in Umkomaas. Likewise, when
the
deceased’s mother passed away in October 2013 members of his
family attended the funeral. These attendances were an
acknowledgement by the two families of their relationship as in-laws
and a corresponding show of respect in accordance with African
culture.
[9]
After the funeral of the deceased’s mother, which was conducted
on a Saturday, Mr Mkabi returned home and left the deceased
with her
family. The deceased returned to her marital home on the following
Wednesday. She fell ill on the very next day whereupon
he took her to
a traditional healer. According to Mr Mkabi, the deceased’s
family objected to this form of treatment, fetched
her from the
traditional healer and had her admitted to the Mediclinic Hospital in
Nelspruit. Ms Mkhonza corroborated Mr Mkabi’s
version in this
regard, which the first appellant strenuously denied, and confirmed
that she and a friend were the ones who fetched
the deceased from the
traditional healer and took her to hospital because she was a
professional nurse and had medical aid insurance.
[10]
Mr Mkabi stated further that he visited the deceased in hospital a
few times until 3 February 2014. On that day he received
a hostile
telephone call from the first appellant who forbade him from making
any contact with the deceased until she recovered
from her illness.
He was deeply hurt by this turn of events and even reported the
matter to his traditional authority. But he obeyed
the first
appellant’s instruction out of fear and stayed away from the
deceased until he learnt of her death from the first
appellant’s
brother-in-law, Mr Fanie Makabela. The deceased’s family
thereafter ignored him, as he described it, and
did not allow him to
participate in the arrangements for her funeral, which he ultimately
did not attend for fear of his life,
and the administration of her
affairs.
[11]
The attitude of the deceased’s family prompted him to take
steps to assert his rights as her husband. Before launching
the
action proceedings, he first obtained a letter confirming the
customary marriage from the Amashangana Traditional Council,
in whose
area of jurisdiction the deceased’s family fell. The letter was
issued on the basis of a written agreement, which
was prepared and
signed by the lobola negotiators. The document fully recorded the
terms of the agreement, the amount paid towards
lobola and the
outstanding balance, the gifts that were exchanged and the identities
of the representatives.
[12]
The essence of the evidence adduced by the defence witnesses was that
Mr Mkabi and the deceased were merely lovers because
essential
customary marriage rituals were not performed; they never lived
together as man and wife and merely visited each other
occasionally;
the romantic relationship fizzled out when the deceased fell ill as
Mr Mkabi abandoned her for other women whom he
drove around in her
car while she lay in hospital; and he did not attend her funeral for
reasons unknown to them although he was
quick to seek her death
certificate, presumably to access her estate.
[13]
Ms Mkhonza disputed Mr Mkabi’s version, which was not denied by
Jabu, that the couple started their romantic relationship
in 2007.
According to her, the relationship started only in 2009 when the
deceased introduced her to Mr Mkabi and never developed
into a
permanent union. Strangely though, when asked during her examination
how she knew Mr Mkabi, her answer was ‘[h]e was
my mom’s
husband’. Although Ms Mkhonza did not live with the deceased as
she worked in a different province, in Witbank
and then Ermelo from
2009, she was adamant that the couple visited each other only
sporadically even after the payment of lobola.
She alleged to have
heard the deceased telling friends who had visited her in hospital
that she wanted nothing to do with Mr Mkabi
anymore. The deceased
also instructed her to fetch one of her vehicles, which was being
used by Mr Mkabi so that it could be sold,
which she did.
[14]
The first appellant alleged to have met Mr Mkabi for the first time
on the day of lobola negotiations. But he subsequently
had to retract
that version when confronted with his own affidavit in the
proceedings in which he stated that the deceased had
previously
introduced Mr Mkabi to him as her boyfriend even before the lobola
negotiations. He insisted that he advised Mr Mkabi
that for the
marriage to be completed he would have to pay the balance of the
lobola, obtain confirmation thereof from their traditional
council,
whereupon a ceremony would be performed to hand over the deceased to
his family. He did not tell Mr Mkabi when he had
to settle the
balance of lobola and the deceased died before the outstanding
rituals were performed. Interestingly, when asked
during his
cross-examination if it was true that he prevented Mr Mkabi from
attending the deceased’s funeral as alleged,
his answer was ‘I
did not stop him, all what I did was to report to him that his wife
has passed away’.
[15]
As mentioned earlier, the court a quo found in Mr Mkabi’s
favour. It found his testimony reliable and truthful and made
adverse
credibility findings against the defence witnesses. This was
particularly so in the case of the first appellant, whom it
found
evasive and unreliable and believed to have ‘tailored his
evidence and answers to questions as the case was proceeding’.
In the court’s view, a valid customary marriage could be
concluded without the full payment of lobola in light of the
evolution
of customary law if other requirements of a customary
marriage were met, such as the payment of a portion of the lobola and
the
exchange of gifts by the two families in the instant matter.
Regarding the question of bridal transfer, the court took into
account
that couples usually postpone the ceremony as it is costly,
and that Mr Mkabi and the deceased already lived together when lobola
was negotiated. The court concluded that the bridal transfer ritual
was condoned or waived by the parties in light of Mr Mkabi’s
evidence that he was not informed that it was necessary.
[16]
Section 3(1) of the Act sets out the requirements for a valid
customary marriage as follows:
‘
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.’
[17]
As pointed out above, the appeal revolves around s 3(1)
(b)
of
the Act; the jurisdictional factors in s 3(1)
(a)
are not in issue. ‘[C]ustomary law’ is defined in s 1 of
the Act as ‘customs and usages traditionally observed
among the
indigenous African peoples of South Africa and which form part of the
culture of those peoples’. But s 3(1)
(b)
does
not stipulate the requirements of customary law which must be met to
validate a customary marriage. The reason for this is
not far to
seek. It is established that customary law is a dynamic, flexible
system, which continuously evolves within the context
of its values
and norms, consistently with the Constitution, so as to meet the
changing needs of the people who live by its norms.
[5]
The
system, therefore, requires its content to be determined with
reference to both the history and the present practice of the
community concerned.
[6]
As
this Court has pointed out, although the various African cultures
generally observe the same customs and rituals, it is not unusual
to
find variations and even ambiguities in their local practice because
of the pluralistic nature of African society.
[7]
Thus,
the legislature left it open for the various communities to give
content to s 3(1)
(b)
in accordance with their lived experiences.
[18]
The Constitutional Court has cautioned courts to be cognisant of the
fact that customary law regulates the lives of people
and that the
need for flexibility and the imperative to facilitate its development
must therefore be balanced against the value
of legal certainty,
respect for vested rights and the protection of constitutional
rights.
[8]
The
courts must strive to recognise and give effect to the principle of
living, actually observed customary law, as this constitutes
a
development in accordance with the ‘spirit, purport and
objects’ of the Constitution within the community, to the
extent consistent with adequately upholding the protection of
rights.
[9]
[19]
Although we were not asked to develop customary law by outlawing the
requirement of the handing over of a bride as a requirement
for a
valid customary law marriage, we were nevertheless referred to the
recent judgment in
LS
v RL
,
[10]
which
dealt with that question. There, the high court held that the custom
is unlawful as it unfairly and unjustly discriminates
against the
gender of the applicant as a woman and denies her the constitutional
right of dignity and equality ‘because only
women, after
consenting to enter into a customary law marriage are subject to this
unequal treatment by the custom of handing over’.
[20]
Here, reliance was placed on this decision merely to support Mr
Mkabi’s argument that the first appellant’s stance
that
bridal transfer is an absolute prerequisite for a valid customary
marriage is rigid, formalistic and inconsistent with the
spirit,
purport and objects of the Constitution. The argument was simply that
the requirement of bridal transfer was waived or
condoned in the
circumstances of the case. Furthermore, the parties did not proffer
any substantive arguments on the correctness
or otherwise of the
decision, including the reasons for distinguishing the requirement of
bridal transfer from lobola, which also
applies to women only, but is
considered to have valuable social functions, including strengthening
marriage relationships.
[11]
I,
therefore, reserve my comments on its merits at this stage.
[21]
The question whether non-observance of the bridal transfer ceremony
invalidates a customary marriage has been decisively answered
by our
courts. In
Mabuza
v Mbatha
,
[12]
the
court considered whether non-compliance with the siSwati custom of
bridal transfer,
ukumekeza
,
invalidated a customary marriage. The court held:
‘
[T]here
is no doubt that ukumekeza, like so many other customs, has somehow
evolved so much that it is probably practised differently
than it was
centuries ago . . . As Professor De Villiers testified, it is
inconceivable that ukumekeza has not evolved and that
it cannot be
waived by agreement between the parties and/or their families in
appropriate cases.
Further support for the view that
African customary law has evolved and was always flexible in
application is to be found in T W
Bennett
A Sourcebook of African
Customary Law for Southern Africa.
Professor Bennett has quite
forcefully argued (at 194):
“
In
contrast, customary law was always flexible and pragmatic. Strict
adherence to ritual formulae was never absolutely essential
in
close-knit, rural communities, where certainty was neither a
necessity nor a value. So, for instance, the ceremony to celebrate
a
man’s second marriage would normally be simplified; similarly,
the wedding might be abbreviated by reason of poverty or
the need to
expedite matters [because of a pregnancy or elopement].”
In my
judgment, there was a valid siSwati customary marriage between
plaintiff and defendant.’
[22]
Turning to the present matter, there is a dispute around the central
issue as to whether the first appellant told Mr Mkabi
that the
customary marriage would be complete only upon full payment of lobola
and the transfer of the deceased to his family.
Therefore, it must be
ascertained whether Mr Mkabi, as plaintiff, established on a balance
of probabilities, having due regard
to the credibility and
reliability of the witnesses, that his evidence is true and accurate,
and therefore acceptable, and that
the defence is false or mistaken
and therefore stands to be rejected.
[13]
As
I remarked above, the court a quo made credibility findings, which on
a consideration of the record, are well supported by the
evidence.
[23]
There is, in my view, sufficient evidence before us to resolve the
issue with relative ease. As indicated, the first appellant,
in his
own words, described the successful lobola negotiations, the payment
of a significant portion of the amount agreed upon
and a live cow and
the exchange of gifts by both families as a combination of the two
families. It is, therefore, not surprising
and of great significance
that the couple’s families subsequently sent representative
delegations to each other’s burial
ceremonies, as in-laws.
Furthermore, it is striking that both the first appellant, who was
rightly found an evasive and unreliable
witness, and Ms Mkhonza
referred to the couple as husband and wife during unguarded moments
as they testified. These were patent
Freudian slips that truthfully
indicated that they accepted that the couple was indeed married. And
it is not insignificant too
that the deceased recorded Mr Mkabi as
her husband in a valuable document which informed the world of her
important next of kin.
[24]
Professor Bennett has, in citing examples of traditional wedding
ceremonies that were simplified or abridged without affecting
the
validity of a marriage, pointed out that ‘Western and Christian
innovations have been combined with the traditional rituals
…
[h]ence a wedding ring may be used in place of the traditional gall
bladder or slaughtered beast, and, for many,
a
church ceremony is now the main event
’.
[14]
(Emphasis
added.) This seems to be precisely what happened here. To my mind,
there can be no greater expression of the couple’s
consummation
of their marriage than their undisputed church wedding.
[15]
[25]
It is important to bear in mind that the ritual of handing over of a
bride is simply a means of introducing a bride to her
new family and
signify the start of the marital consortium.
[16]
Here,
the deceased and Mr Mkabi had an intimate relationship and cohabited
for three years before Mr Mkabi started the marriage
process. After
the lobola negotiations, the deceased immediately resumed her life
with Mr Mkabi without censure from her family.
According to J C
Bekker,
[17]
the
handing over need not be a formal ceremony; for example, upon
delivery of lobola or a fine for seduction only, the subsequent
thwala
ie the abduction of the maiden to the groom’s home
without
her guardian’s consent, consummates the customary marriage, if
her guardian then allows her to remain with her suitor
on the
understanding that further lobola will be paid due course. And proof
of cohabitation alone may raise a presumption that
a marriage exists,
especially where the bride’s family has raised no objection nor
showed disapproval, by, for example, demanding
a fine from the
groom’s family.
[18]
[26]
No objection at all was raised here. Instead, there is overwhelming
evidence that the families, including the deceased’s
‘guardian’, considered the couple as husband and wife for
all intents and purposes. The evidence ineluctably leads
to the
conclusion that the bridal transfer ritual was waived. This finding,
in my opinion, does not offend the spirit, purport
and objects of the
Bill of Rights and recognises the living law truly observed by the
parties and the actual demands of contemporary
society.
[27]
The importance of the observance of traditional customs and usages
that constitute and define the provenance of African culture
cannot
be understated. Neither can the value of the custom of bridal
transfer be denied. But it must also be recognised that an
inflexible
rule that there is no valid customary marriage if just this one
ritual has not been observed, even if the other requirements
of s
3(1) of the Act, especially spousal consent, have been met, in
circumstances such as the present ones, could yield untenable
results.
[28]
Thus, for example, a woman could consent to a customary marriage,
followed by payment of lobola, after which she cohabited,
built a
home with her suitor, and bore him children, with the full knowledge
of his family. When the man died, she and those children
could be
rejected and disinherited by his family simply on the basis she was
not handed over or properly introduced to his family
and was
therefore not his lawful wife and that the children were
illegitimate. Needless to say, that consequence would be incongruous
with customary law’s inherent flexibility and pragmatism which
allows even the possibility of compromise settlements among
affected
parties (contemplated in cases such as
Bhe
),
[19]
in
order to safeguard protected rights, avoid unfair discrimination and
the violation of the dignity of the affected individuals.
[29]
Professor Bennett argues in
Customary
Law in South Africa
,
[20]
that
the bridal transfer ceremony should be treated as an optional element
of a customary marriage, which the parties would be free
to observe
if they chose to celebrate their marriage according to a particular
tradition. He places reliance for this view on a
suggestion made by
the South African Law Commission’s Special Project Committee on
Customary Law in its Report on Customary
Marriages,
[21]
which
considered the effect of wedding ceremonies and transferring the
bride, and found that the variations in local practice and
the
ambiguities inherent in them suggested that neither should be deemed
essential for the creation of a customary marriage. This
opinion, to
my mind, is not constitutionally reprehensible or repugnant to
‘living’ customary law of marriage as actually
practised
by the continuously evolving society, as the Law Commission itself
clearly determined. Its recognition would constitute
a development of
the system and protect the interests of vulnerable affected parties,
in the appropriate case, in accordance with
the spirit, purport and
objects of the Constitution.
[30]
To sum up: The purpose of the ceremony of the handing over of a bride
is to mark the beginning of a couple’s customary
marriage and
introduce the bride to the groom’s family. It
is
not an important but not necessarily a key a determinant of a valid
customary marriage. Thus, it
cannot
be placed above the couple’s clear volition and intent where,
as happened in this case, their families, who come from
different
ethnic groups, were involved in, and acknowledged the formalisation
of their marital partnership and did not specify
that the marriage
would be validated only upon bridal transfer. I am satisfied in all
the circumstances that the essential requirements
for a valid
customary marriage were met. The appeal must accordingly fail.
[31]
In the result, the following order is made:
The
appeal is dismissed with costs.
________________________
MML Maya
President of the
Supreme Court of Appeal
APPEARANCES:
For
Appellants: M Joubert
Instructed
by: Sambo-Mlahleki Attorneys, Pretoria
Phatshoane
Henney Attorneys, Bloemfontein
For
First Respondent: C M Rip (with R M Molea)
Instructed
by: Loubser Van der Walt Inc, Pretoria
Jacobs
Fourie Attorneys, Bloemfontein
[1]
In terms of s
4(7)(
a
)
of the Recognition of Customary Marriages Act 120 of 1998 (the Act).
[2]
In terms of s
4(8) of the Act.
[3]
Expert
evidence was not led in the matter. But that is of no moment in
light of the direct evidence adduced by the affected parties
who
actually observe the ‘living law’ and the caution by the
courts against unquestioning reliance on textbooks,
case law and
expert views, which may yield conflicting views, where the custom in
issue may be readily ascertained from direct,
reliable evidence.
See, for example,
Richtersveld
Community & others v Alexkor Ltd & another
2003
(6) SA 104
(SCA) para 54.
[4]
As
contemplated by s 4 of the Act.
[5]
Richtersveld Community
fn
3 paras 52-53;
Bhe &
others v Magistrate, Khayelitsha, & others (Commission for
Gender Equality as Amicus Curiae); Shibi v Sithole &
others;
South African Human Rights Commission & another v President of
the Republic of South Africa
[2004] ZACC 17
;
2005
(1) SA 580
(CC) paras 81 and 86-87.
[6]
Shilubana & others v
Nwamitwa
[2008] ZACC
9
;
2008 (9) BCLR 914
(CC);
2009 (2) SA 66
(CC) paras 44-46;
[7]
See, for example,
Moropane
v Southon
[2014]
ZASCA 76
paras 35-36.
[8]
Shilubana,
fn
6 para 47;
Bhe
fn
5 paras 110-113 and 130.
[9]
Shilubana
fn
6 para 49
.
[10]
LS v RL
[2018]
ZAGPJHC 613; [2019] 1 All SA 569 (GJ); 2019 (4) SA 50 (GJ).
[11]
See, for example, C R M Dlamini
A Juridical Analysis
and Critical Evaluation of Ilobolo in a Changing Zulu Society
(1983)
at 90-93; T W Bennett
Customary
Law in South Africa
(2004)
at 221.
[12]
Mabuza v
Mbatha
2003 (4) SA 218
(C) paras 25-26.
[13]
National Employers’
General Insurance Co Ltd v Jagers
1984
(4) SA 437
(E) at 440D-441A;
Stellenbosch
Farmers’ Winery Group Ltd & another v Martell ET Cie &
others
2003 (1) SA 11
(SCA) para 5.
[14]
T W Bennett fn 11 at 215.
[15]
It is regrettable that the legal
representatives omitted to properly explore critical aspects of the
parties’ conduct at
various stages, including the details of
the wedding ceremony eg who attended it, which would have shone a
brighter light on
the state of mind and attitude of the respective
families towards the couple’s union. Nevertheless, that does
not detract
from the weight of available evidence.
[16]
T W
Bennett
fn 11 at 213.
[17]
J C
Bekker
Seymour’s
Customary Law in Southern Africa
5
ed (1989) at 108-109.
[18]
J C
Bekker
ibid, at 116.
[19]
Bhe
fn
5 paras 110-111.
[20]
T W Bennett
fn 11 at 216.
[21]
Marriages and
Unions of Black Persons
;
Working Paper 10 Project 51 Government Printer, 1986 Pretoria para
4.4.10.