18404/2018 in the Matter Between

IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG CASE NO: 18404/2018 1. Reportable: No 2. Of interest to other judges: No 3. Revised: Yes, 12 May 2020 ____________________ In the matter between: D, N Plaintiff and M M Defendant Customary marriage in issue in divorce proceedings, absolution ordered. JUDGMENT ___________________________________________________________________ Page 2 of 41 DE VILLIERS, AJ [1] The matter came before me as an action for divorce where the alleged marriage was a customary marriage. The plaintiff initially was formally unrepresented, but was clearly assisted by a lawyer in formulating her claims. The particulars of claim alleged that a customary marriage was concluded between the parties “during 2011” at Steelpoort, South Africa. The material facts relied upon in the particulars of claim for the conclusion of the customary marriage were that: [1.1] The negotiated lobolo was paid on 3 September 2011. In the plaintiff’s affidavit attached to the summons, she stated that the defendant’s family, the M family, went to her family’s place of residence (in the Kingdom of eSwatini)1 for the “purposes of negotiating and subsequently paying lobolo”.2 She omitted to mention a version that the visit was to attend a wedding. It was common cause at the end of the matter that only a portion of the negotiated lobolo was paid, 15 cows out of an agreed total of 25; [1.2] The plaintiff was delivered in terms of Bapedi3 custom to the defendant’s family on 4 September 2011 (at Steelpoort). The plaintiff’s affidavit attached to the summons stated that on 4 September 2011 the M family took her to their family home in Steelpoort “where they held a welcoming event for my arrival”. The evidence that the plaintiff presented focused on a wedding ceremony in the Kingdom of eSwatini (“eSwatinini”); and [1.3] Both parties consented to the customary marriage. When and where this happened, was not pleaded. [2] The plaintiff’s affidavit attached to the summons stated that “subsequent to the payment of the negotiated lobolo … the two families celebrated by 1 The witnesses in this matter usually referred to “Swaziland” and “Swazi” in their testimonies. I made enquiries from a witness in the matter, as well as afterwards. Upon reflection, I will use “amaSwati”, “eSwatini” and “siSwati”, as the reader may not have been present at the hearing. 2 I too use the spelling “lobolo” in this judgment. 3 The witnesses in this matter usually referred to “Pedi” in their testimonies. Again, upon refection I will use the term “Bapedi”. Page 3 of 41 slaughtering of two cows which is a symbol of welcoming and appreciating what the M family has been paid”. She omitted to mention a version that the cows were slaughtered to celebrate a customary marriage. Her evidence later was that lobolo and marriage were the same thing. [3] The defendant in breach of Uniform Rule 18(4) pleaded a bald denial to the averments in the particulars of claim in a document in error called “Defendant’s Reply to the Plaintiff’s Plea”. No party sought further particulars, whether formally, or at the pre-trial conference. The defendant’s present attorneys came on record in January 2019. The plaintiff’s present attorneys came on record in January 2020. Both parties were represented before me. [4] When the matter was called before me, a maintenance order was already in place regarding the minor children, and their welfare was not a pressing issue. The matter was not ripe for hearing as no financial records had been discovered. It appeared from the pleadings that one aspect could be dealt with as a separated issue, namely if the plaintiff and the defendant were married under customary law or not. The matter proceeded on this separated issue. In hindsight, it was a mistake to have made this determination. It was unbeknown to me that when the evidence was completed, this Court’s jurisdiction would become an issue. At the end of the matter it seemed to me that, at best for the plaintiff, a customary marriage was concluded in eSwatini. Such a finding would raise the issue of the jurisdiction of this Court. I can and must raise this to prevent my judgment being a nullity.4 [5] The customs of the community to which a party belongs is the proper source of customary law.5 The parties did not plead which community’s customs should be followed, but it seemed common cause that the amaSwati customs had to be applied. Within amaSwati customs there could be further customs of smaller communities that could have become customary law. The evidence before me drew no such distinction. I could ascertain recorded and 4 See Communication Workers Union and Another v Telkom SA Ltd and Another 1999 (2) SA 586 (T) at 593G-J and the cases summarised therein. 5 See Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC) para 42-49 and para 56-57. Page 4 of 41 recently applied amaSwati customary law, but the customs described by the plaintiff and her witnesses differed from those, as will appear later herein. [6] The plaintiff based her case upon section 3(1) of the South African Recognition of Customary Marriages Act 120 of 1998 (“the Customary Marriages Act” or “the Act”): “3 Requirements for validity of customary marriages (1) 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.” [7] It is stated in academic circles that customary law could be defined as an established system of immemorial rules which had evolved from the way of life of people.6 It also could be defined as being practices that a community accepts as obligatory.7 Such descriptions would distinguish custom and customary law. LAWSA8 makes the point that no standard definition exists for customary law, law distinct from custom (footnotes omitted): “No generally accepted definition of customary law exists. Various South African authors discuss its contents and distinguish it from custom as such without formulating a definition. …” [8] The lack of a clear definition of customary law has been carried forward into the Customary Marriages Act. The Act draws no distinction between a custom and customary law. As such, “customary law” is defined in the Act as meaning “the customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture 6 Seymour’s Customary Law in South Africa, prof. JC Bekker, 5th edition at P11. 7 Customary Law in South Africa, prof. TW Bennett, 1st edition, P1. 8 Vol. 32, 2nd edition, Indigenous Law, by NJJ Olivier, J Church, RB Mqeke, JC Bekker, L Mwambene, C Rautenbach and W Du Plessis, para 1. Page 5 of 41 of those peoples” and “customary marriage” is defined as a “marriage concluded in accordance with customary law”. I was not referred to any distinction between a “custom” and a “usage” in language or in customary law, and assume that the two concepts are intended as one concept in the Act. Please note that the definition limits the application of the Act to South African customary law. [9] The addition of the words “or celebrated” in section 3(1)(b) does not assist in giving effect to section 3 of the Customary Marriages Act. A celebration is not a requirement for a valid customary marriage, as will appear below. Notably within section 3 of the Act are also the omissions of agreement on lobolo, or the payment in part or full or in part of lobolo, or the handing-over of the bride, as requirements for a valid customary marriage. [10] Registration of a customary marriage is also not a validity requirement for a customary marriage. See section 4(9) of the Act. Both spouses have a duty to register the marriage in terms of section 4(1) of the Act, and either may do so in terms of section 4(2) of the Act, but the failure to comply with the duty only has the consequence of the spouses forfeiting the prima facie proof of the marriage that the certificate would bring in terms of section 4(8) of the Act. Registration was not a traditional custom or usage, but off course is of great benefit to a spouse who regularly may have to submit proof of a marriage in concluding transactions in a modern economy. [11] The wording of section 3 of the Act suggests that a customary marriage must be proven by way of proving compliance of such a marriage with “customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples”. [12] The requirements for a valid customary marriage have deliberately been kept imprecise in the Customary Marriages Act (in accordance with the more informal nature of customary law). The Act followed on a report on customary marriages by the South African Law Commission in August 1998. That report made inter alia the following recommendations: Page 6 of 41 “… 4. In order to define customary marriage it is recommended that legislative provision be made for a minimum set of essential requirements, chief amongst which should be the consent of the prospective spouses. In most cases the ‘customary’ nature of a marriage may be inferred from the inclusion of certain typical practices, such as a lobolo agreement, a traditional wedding ceremony or the involvement of the spouses’ families.

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