Posted on

Court decision: Customary marriage

The below High Court decision by the North Gauteng Court of Pretoria deasl with proof of a customary marriage.

PSC v LPM  -proof customary marriage
[2013] JOL 29847 (GNP)

Reported in: Judgments Online, a LexisNexis Electronic Law Report Series
Case No: 16496 / 2012
Judgment Date(s): 18 / 09 / 2012
Hearing Date(s): 13 / 08 / 2012
Marked as: Unmarked
Country: South Africa
Jurisdiction: High Court
Division: North Gauteng, Pretoria
Judge: Tlhapi J
Bench: VV Tlhapi J
Parties: “PSC” (At); “LPM” (1R), “DM” (2R), “EM” (3R), SV Mahlangu Attorneys (4R), The Master of the High Court, Pretoria (5R), The Road Accident Fund (6R), The Department of Home Affairs (7R)
Appearance: Phoshane Attorneys (At); Strijdom Attorneys (R)
Categories: Application – Civil – Substantive – Private
Function: Confirms Legal Principle
Relevant Legislation: Recognition of Customary Marriages Act 120 of 1998

Key Words

Persons – Marriage – Customary marriage – Proof of – Declaratory relief

Mini Summary

The applicant sought a declaratory order that she was the legitimate wife of a certain person (“the deceased”), and an order directing the seventh respondent to issue a marriage certificate in that regard. She also sought a declaration of invalidity in respect of a marriage certificate issued by the seventh respondent to the first respondent.

According to the applicant, she and the deceased entered into a customary marriage in August 1999. The deceased was killed in an accident in February 2008. The applicant’s relationship with the family of the deceased deteriorated after his death, and she learnt that the first respondent was claiming to the wife of the deceased.

Held after dismissing certain preliminary points raised by the first respondent, that the Court was unable to grant the order cancelling the first respondent’s marriage certificate, as it had to be presented with proper evidence of fraud or corruption by the relevant parties. Nevertheless, the Court expressed suspicion about the validity of the existence of a marriage between the first respondent and the deceased.

The Court had to decide whether real and genuine disputes of fact were raised by the first respondent. That question was answered against the first respondent.

Examining the evidence adduced, the Court found that the applicant had proved that she had entered into a customary marriage with the deceased. A declaratory order to that effect was issued, and the seventh respondent was directed to register such marriage.

Page 1 of [2013] JOL 29847 (GNP)

TLHAPI J:

[1] This is an application for the following relief:

“1

That the applicant be declared the legitimate wife of the deceased (“AJM”).

Page 2 of [2013] JOL 29847 (GNP)

2.

That the seventh respondent be ordered to issue out a marriage certificate to the applicant as a result of the applicant’s customary marriage to the deceased that was concluded on the 28 August 1999.

3.

To declare the marriage certificate issued by the seventh respondent to the first respondent on the 4 March 2008 null and void.

4.

To declare a claim of loss of support under case number 21531/10 that was lodged with the fourth respondent in favour of the first respondent against the sixth respondent null and void.

5.

That the letters of executorship under file number 5204/08 respectively issued to the first and second respondents by the fifth respondents to be declared null and void.

6.

Costs of application only in the event of opposition.”

The application was served on the respondents and was opposed by the first respondent.

Background

[2] The applicant entered into a customary marriage with the deceased, “AJM”, on 28 August 1999. The marriage subsisted till his death in a motor vehicle collision on 16 February 2008.

[3] According to the applicant on 28 August 1999 the applicant’s and

Page 3 of [2013] JOL 29847 (GNP)

deceased’s families met and agreed that a sum of R3 500 be paid as lobola for the applicant. The lobola receipt was annexed to the papers as “PS1”. On that day applicant was delivered to the parental home of the deceased at Mogogelo Village and there was a celebration. She was accompanied by her uncle “EC”, “CM”, “DM”, “BC” and “SC”. Prior to the union she had a child “T” born of a previous relationship. On 2 January 2005 a daughter was born of the marriage between the applicant and the deceased.

[4] The applicant contended that she was allocated an RDP house at Slovo Village, Winterveldt and that she resided there with the deceased and the two minor children and the deceased was responsible for their maintenance. The deceased was employed at PUTCO and during May 2003 they purchased a house at 934 Block XX Soshanguve and then resided there. The applicant averred that on 16 February 2008 the deceased accompanied her to visit her younger sister, “VC”.

The deceased decided to visit his friends at Block P Soshanguve to watch a soccer game on TV. She then received a call later that day from deceased’s friend one “M” who informed her that the deceased had been involved in an accident on his way to collect her from her sister’s place He died at the scene of the accident. A copy of his death certificate was annexed, “PS3”.

[5] At a meeting between the applicant and deceased’s family to arrange the funeral it was agreed that the mourning session be conducted from the deceased’s parental home and that the burial take place at the family cemetery at Mogogelo Village in Hammanskraal. It was further agreed that the

Page 4 of [2013] JOL 29847 (GNP)

applicant occupy the traditional mourning mattress at the deceased’s parental home. The applicant requested to be accompanied to the home she shared with the deceased at Block XX to fetch her clothes. The applicant averred that they drove in two vehicles to the home she shared with the deceased. On the way the third respondent (sister of the deceased) informed them that the deceased’s elder brother called and instructed them not to go and open the deceased’s house. They returned to the deceased’s parental home and she sat on the mattress.

[6] While at the deceased’s parental home, the second respondent (deceased’s mother) and the third respondent started swearing at her and they accused her of using “muti” to turn the deceased into a zombie. On 20 February 2008 the deceased’s family confiscated applicant’s clothing together with those belonging to the minor children and the house keys and told her she had lost any claim she had to the house. The burial took place on 23 February 2008. The applicant contended that if indeed the first respondent was deceased’s wife she could have attended the funeral. The first respondent she did not attend.

[7] The applicant obtained a protection order on 26 February 2008 annexed as “PS4” and “PS5”. She also approached the deceased’s employer PUTCO and she was informed by them that that he had appointed her as a beneficiary of his pension benefits. The nomination form was annexed as “PS6”. The nomination form which was signed by the deceased on 15 November 2011 the applicant and her two children were nominated as dependants by the deceased, The applicant was informed that the first and the second respondents had also been there to claim his pension benefits. According to

Page 5 of [2013] JOL 29847 (GNP)

them the first respondent claimed to be the wife of the deceased. The applicant, the first and second respondents attended a subsequent meeting arranged by PUTCO officials. At this meeting the first respondent was introduced as the deceased’s wife. The applicant averred that she was “terribly shocked” by this announcement. According to her the first respondent was a cousin of the deceased because the deceased’s uncle was married to the first respondent’s aunt.

[8] The applicant’s brother “JC” became suspicious and he approached the first respondent’s mother. The first respondent’s mother admitted that the third respondent had promised her money to plot the fake marriage between the deceased and the first respondent. “JC” appointed Norton Private Investigators and a report of their investigation was annexed as. “PS5”. According to the applicant investigations were also conducted by the fifth and seventh respondents. A letter from the latter to the applicant was annexed as PS7. The applicant denied information given to the investigators of the fifth respondent that her lobola was returned by her brothers “M2” and “F” thereby signifying a divorce. She contended that she stayed with the deceased since their marriage in 1999 until his death and that she had never heard of a marriage between the deceased and the first respondent.

[9] According to the applicant the first respondent attended the trial for the loss of support matter. The issue of the fraud was argued before Kubushi J and it was agreed that the dispute about the marriages was to be determined. The applicant annexed the confirmatory affidavits of her brothers “JC” and “FC”.

Page 6 of [2013] JOL 29847 (GNP)

[10] The first respondent raised several points in limine which shall be dealt with later in this judgment. The first respondent stated that she deposed to the affidavit because she had a direct interest as wife of the deceased and had been mandated by the “M3” family, as their daughter-in–law, to depose to the answering affidavit.

The first respondent denied that the applicant was the legitimate wife of the deceased or that she resided with him for the years she alleged they were married. She contended that if indeed it was true she was married to the deceased, his family, the “M3″ could have supported her in this application. The first respondent contended that applicant could have made proper arrangements to register her marriage with the deceased and that she had failed to do so up to the launch of this application. Furthermore that the applicant had failed to provide any proof that the seventh respondent had declined to register her customary union, therefore she was not entitled to approached the Court to have the seventh respondent set aside the registration of deceased’s union with the first respondent.

[11] According to the first respondent lobola was indeed paid for the applicant in sum of R3 500, however the lobola receipt annexed to the founding affidavit was a forged document because the signatories of that document were not the correct persons on both sides of the families who, according to traditional practices, had the authority “to meet, negotiate agree and sign a lobola agreement”.

[12] The first respondent contended that the applicant fabricated and

Page 7 of [2013] JOL 29847 (GNP)

misrepresented the state of affairs at the deceased’s home on 28 August 1999. According to her there was never any celebration after lobola was paid. The celebration the applicant was referring to was the tenth birthday party for one “PM”, son of the late “MM”. The first respondent denied that applicant was present at deceased’s parental home on that day, or that she was delivered by her family to the “M3” family (my underlining).

[13] The first respondent denied that the deceased was employed at PUTCO during 2003. According to her he was employed at Central Post Office till his dismissal in 2003. The deceased purchased his house during 2003 and remained unemployed till he joined PUTCO in October of 2007. She denied that applicant resided with the deceased at 934 Block XX Soshanguve. Presently the said house was in the care of a colleague of the deceased. This colleague was in the company of the deceased and was the driver of the vehicle which was involved in the accident which resulted in the death of the deceased.

[14] The first respondent denied that applicant had ever been involved in the funeral arrangements or that she was never a “chief mourner” nor did she occupy the traditional mourning mattress. According to her the applicant attended the funeral as deceased’s girlfriend and the mother of his child. She further contended that annexure “PS6” was a report requested by “JC” and that such reports were only done at the instance of the sixth respondent or attorneys who represented a claimant. It was further contended that it was only a court which could dissolve a civil or customary marriage and only if it existed and was registered by the seventh respondent.

Page 8 of [2013] JOL 29847 (GNP)

[15] In reply the applicant contended that she approached the seventh respondent to have her marriage registered after the burial and that is where she came across information that a customary union had been fraudulently registered in respect of the first respondent and that she was advised by them to approach the Court. Furthermore that in as far as the celebrations that occurred on the day of her lobola and her delivery to the deceased’s family home, she was in possession of a DVD cassette recorded on that day and she requested indulgence of the Court that it be shown to the Court on the day that the application was argued. She confirmed that the birthday party and the handing over were on the same day. The applicant also annexed affidavits from her neighbours some of whom resided with her at Slovo Village and Block XX Soshanguve, who knew the applicant and deceased as husband and wife.

[16] With regard to house 934 Block XX Soshanguve she admitted that the deceased was dismissed but that he worked part time at Trade Centre at Hermanstad and for that reason they agreed to lease the house then to the third respondent.

[17] The first respondent raised the following points in limine:

17.1

the second respondent had been mis-joined in that she played no role in the “whole saga” and the application ought to be dismissed on that ground alone;

17.2

the applicant failed to join Mr “EM”;

Page 9 of [2013] JOL 29847 (GNP)

17.3

in respect of the fourth, the fifth, the sixth and the seventh respondents the applicant failed to indicate under what capacity and what role they were cited. In respect of the fourth respondent she should have been aware that the said firm of attorneys had withdrawn as attorneys of record in the claim lodged against the sixth respondent. In respect of the sixth respondent there was no settlement offer or settlement made to both the applicant and the first respondent who were claimants in the third party claim before it. Any order by the Court against the sixth respondent was not enforceable.

Points in limine: second to the seventh respondents

[18] The above respondents were served with the application, none of them have opposed and it does not appear from the papers that they have annexed any document or confirmatory affidavit authorising the first respondent to raise the points in limine on their behalf.

Counsel for the first respondents’ heads of argument only address the points in limine and nothing is said about the merits of the case.

[19] It appears that the application was launched after the issue relating to the alleged fraudulent conduct of the first respondent was investigated in a confidential report, submitted on behalf of the applicant to the sixth respondent (the Road Accident Fund). The trial in this Court came before Kubushi J in case 21531/10. It is therefore clear from the facts in this matter that there is a pending claim before the sixth respondent. Furthermore there is

Page 10 of [2013] JOL 29847 (GNP)

a deceased estate which was being administered by the fifth respondent, the Master of the High Court. The applicant and first respondent both claim to have been married to the deceased, “AJM”. The seventh respondent issued a marriage certificate to the first respondent after the burial and when the applicant went to apply for the registration of her customary union posthumously, she encountered problems. Whether the relief as claimed for will be granted or not, the joinder of the fifth to the seventh respondents was proper because they had decisions to make in as far as the rights of the applicant were going to be affected. The fourth respondents were apparently joined because at the time the application was launched they represented the first respondent in her claim against the sixth respondent. According to the founding affidavit it is very clear that the applicant averred that second and third respondents had a direct role to play in the problems encountered by the applicant after the death of her husband.

I am of the view that the points in limine raised be dismissed.

The issues

[20] The crisp issues to be dealt with relate to the relief sought in prayers 1, 2, 5 and 6 of the notice of motion. It is not competent for this Court at this stage to grant the relief sought in prayers 3 and 4.

I am not satisfied from the founding affidavit that a proper case has been made for an order for the cancellation of the marriage certificate of the first respondent in terms of section 4(7)(b) of the Recognition of Customary Marriages Act 120 of 1998. In my view, the Court must be presented with

Page 11 of [2013] JOL 29847 (GNP)

proper evidence of fraud and corruption on the part of the first respondent or members of the “M3” family and officials of the seventh respondent.

[21] However, having said that and having regard to the answering affidavit, I do express a suspicion of the validity of the existence of a marriage between the first respondent and the deceased, for the simple reason that no case is made out by her, of her marriage to the deceased (for example when and how they were married, where they lived as husband and wife, when their children were born, where she was on the day that the deceased died; and where she was or what was she doing when the dispute between the applicant and the “M3”s arose). The fact that such evidence is not present in this application should not, in my view, prevent further investigation into the matter and I encourage such investigation to be undertaken by the fifth to the seventh respondents.

It is also not for me in this application to declare null and void the claim for loss of support brought by the first respondent against the sixth respondent. The trial is still pending and it is the sixth respondent which must bring the application or present evidence in the trial as to the fraudulent conduct of the first respondent. It is further not proper for this Court to have regard to the investigation report of Horton Private Investigators.

The law

[22] It was trite that where an applicant seeks final relief in motion proceedings, the “Plascon-Evans rule” is applied, that is, if the facts as stated by the respondent together with the admitted facts in the applicant’s affidavit justify

Page 12 of [2013] JOL 29847 (GNP)

an order. In Wightman t/a JW Construction v Headfour (Pty) Ltd and another 2008 (3) SA 371 (SCA) at 375 paragraph [12] [also reported at [2008] JOL 21447 (SCA) – Ed], Heher JA stated:

“Recognizing that the truth almost always lies beyond mere linguistic determination the courts have said that an applicant who seeks final relief on motion must, in the event of conflict accept the version set up by his opponent, unless the latter’s allegations are, in the opinion of the court, not such as to raise a real, genuine or bona fide dispute of fact or are so far fetched clearly untenable that the court is justified in rejecting them merely on the papers, Plascon Evans Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 at 634E to 635C.”

Heher JA went on to say at 375 paragraph [13]:

“A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirement because there is no other way open to the disputing party and nothing more can therefore be expected of him. But even that may not be sufficient if the fact averred lies purely within the knowledge of the averring party and no basis is laid for disputing the veracity or accuracy of the averment. When the facts averred are such that the disputing party must necessarily possess knowledge of them and be able to provide an answer (or countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case on

Page 13 of [2013] JOL 29847 (GNP)

a bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied. I say ‘generally’ because factual averments seldom stand apart from a broader matrix of circumstances all of which needs to be borne in mind when arriving at a decision. A litigant may not necessarily recognize or understand the nuances of a bare or general denial as against a real attempt to grapple with all relevant factual allegations made by the other party. But when he signs the answering affidavit, he commits himself to its contents, inadequate as they may be, and will only in exceptional circumstances be permitted to disavow them. There is thus a serious duty imposed upon a legal adviser who settles an answering affidavit to ascertain and engage with facts which his client disputes and to reflect such disputes fully and accurately in the answering affidavit. If that does not happen it should not come as a surprise that the court takes a robust view of the matter.”

[23] In National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) at 290 paragraph [26] [also reported at [2009] JOL 22975 (SCA) – Ed] Harms DP reiterated the Plascon-Evans rule and added that a final order can be granted notwithstanding such dispute of facts in cases where:

1.

the respondent’s version consisted of bald and uncreditworthy denials; or

2.

raised fictitious disputes of fact; or

3.

was palpably implausible; or

4.

was so far-fetched or clearly untenable that the Court was justified in rejecting it merely on the papers.

Page 14 of [2013] JOL 29847 (GNP)

[24] The question to be asked in this matter is whether there are real genuine and bona fide disputes of fact raised by the first respondent. Even though she was not present, she admitted that lobola was paid in sum of R3 500 however, she disputed the lobola receipt. It is not clear in which respect it was alleged by her that the receipt and the signatures were a forgery. There is no evidence in this regard from any of the parties whose names appear on the receipt. What is clear from the receipt is that lobola was paid to the applicant’s family on 28 August 1999, it recorded:

“This is to certify that the “M3” family have paid the amount of R3500.00 to the “C” for the lobola . . . hope and trust that our relationship will always prevail.”

[25] It was denied by the first respondent that a celebration took place at the deceased’s parental home on 28 August 1999. The first respondent stated that the applicant was never at the parental home of the deceased on that day and yet no evidence is advanced by her why she disputed the presence of the applicant at the deceased’s home on that day. In response to this in the replying affidavit the applicant requested permission for the viewing of a DVD cassette recording of the celebrations at the deceased’s parental home. The Court adjourned to allow counsel for the respondent to view the recording first. I gave permission for the DVD cassette of the celebration to be viewed in court. It must be noted that the viewing of the recording was not new evidence tendered by the applicant in the replying affidavit. It merely confirmed what applicant averred in the founding affidavit.

Page 15 of [2013] JOL 29847 (GNP)

[26] The date 28 August 1999 appeared on the screen. A tent was pitched for the birthday party of the 10-year-old “PM”. His friends were present and there were elders too. Then later the arrival of the applicant and her entourage was recorded. She was wearing traditional attire and had a big blanket wrapped around her. Some people were carrying blankets wrapped in plastic bags and they were singing traditional wedding songs in Setswana and Zulu. The applicant was taken into the house, she was made to sit on the floor and the family members of the deceased were dancing and ululating. The celebrations as seen on the recording can never be interpreted to be that of a girlfriend (the applicant) who was visiting her boyfriend (the deceased) as was submitted by Mr Masango, counsel for the first respondent. There were further no averments of this nature in the answering affidavit. Besides the denial there was no explanation from the second and third respondents of the presence of the applicant at deceased’s parental home on that day. They did not oppose the application. It was submitted by Mr Masango that the applicant was not properly welcomed by the “M3” family on that day. There was no averment to such fact in the answering affidavit. It seemed to me that he had forgotten that the first respondent alleged that applicant was not present at the deceased’s home on 28 August 1999.

It would be appropriate for me to order that copies of this DVD cassette be availed to the fifth, sixth and seventh respondents to show that indeed a traditional wedding ceremony did take place and that there was no better evidence than the recording and it gives credence to the version of the applicant.

[27] In the founding affidavit serious allegations levelled against the second and

Page 16 of [2013] JOL 29847 (GNP)

third respondents of what happened to the applicant immediately after the death, before and after the burial. They did not oppose the application. Except for denying the allegation the first respondent does not give her version of what transpired during this period. It does not appear to me that the first respondent was present when the following events occurred:

27.1

when there were discussions relating to the burial between the applicant and deceased’s family;

27.2

when applicant was accompanied in two vehicles, in the presence of the third respondent, to fetch her clothing from 934 Block XX Soshanguve and that while on the way the third respondent stopped them and informed the applicant that she was given orders not to open the deceased’s house and they had to return to the deceased’s home;

27.3

when the applicant was occupying the mourning mattress and was being insulted by the second and third respondents that she was using muti to turn the deceased into a zombie;

27.4

when the applicant’s clothing and that of her children and house keys were confiscated and she lost claim to the house. A domestic violence complaint was lodge with the Magistrate Ga-Rankuwa against the third respondent and “EM”.

[28] The question is, where was the first respondent when these incidents occurred, what role as wife of the deceased did she play? The applicant attended the funeral and stated that the first respondent was not present at

Page 17 of [2013] JOL 29847 (GNP)

the funeral. It was submitted that the presence of the first respondent or recognition as a spouse and that of her children was not acknowledged at the burial by the “M3” family. The first respondent’s answer was that there were more than 500 people attending the funeral and the applicant did not know her. She does not address the contention of the applicant that at the burial there was no other wife of the deceased present.

[29] It was evident from the letter dated 8 August 2008 from the seventh respondent and annexed to the founding affidavit that the applicant experienced problems when she approached them for the posthumous registration of the customary union. She was given the following advice:

“You are advised to approach the Court through Lawyers, University Law Clinic or Legal Aid Board for assistance at your own cost in order to evoke Section 4(7) for the application to the Court and upon which an investigation will be instituted by the Court and after the investigation a Court order will be issued either ordering the Department of Home Affairs to register the Customary marriage or to deregister, is only the court, family court or divorce court has the authority to give a declaratory order to that effect.”

In the answering affidavit the first respondent questions why the applicant failed to register the marriage before death. It seems she had forgotten that if she was the wife of the deceased she too approached the seventh respondent after the death of the deceased.

Page 18 of [2013] JOL 29847 (GNP)

[30] I am satisfied that the applicant has proved that she had entered into a customary marriage with the deceased. An order that she be declared a legitimate wife of the deceased is justified and that the seventh respondent be ordered to register the marriage. It is also justified to direct the Master of the High Court to remove the first respondent and second respondent as executors appointed in the deceased estate under file 5204/08. Their failure to respond to the serious allegations levelled against them, in my view, disqualifies them as executors.

[31] In the result the following order is granted:

1.

The applicant is declared a legitimate wife of the deceased, “AJM”;

2.

The seventh respondent is ordered to register the customary marriage in terms of section 4(7)(a) of the Recognition of Customary Marriages Act 120 of 1998;

3.

The fifth respondent is directed to cancel the letters of executorship and to remove the first and second respondents as executors under file 5204/2008. The fifth respondent is further directed to hold a meeting for the appointment of an executor who is not related to the applicant or the deceased family and that security be given for such executor’s execution of the administration of the deceased estate;

Page 19 of [2013] JOL 29847 (GNP)

4.

The first respondent is ordered to pay costs of this application.

[Editorial Note: Please be advised that all names have been removed from this judgment, by LexisNexis, in order to protect the identities of the minor children involved].

Leave a Reply

Your email address will not be published. Required fields are marked *