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. Since these practices differ among the various systems of customary law in South Africa, however, it is recommended that any legislative provision should be flexible enough to allow for groups to marry according to their own customary laws.
…
8. Lobolo should not be deemed essential for the validity of customary marriages. If parties wish to give lobolo, they should be free to do so, but payment or non-payment should have no effect on the spouses' relationship or on their rights to any children born of the marriage.
…
10. Traditional wedding ceremonies and the handing over of the bride should not be considered essential for the conclusion of a valid customary marriage. Together with lobolo, however, these institutions will serve to identify a union as one celebrated according to African rites.”
[13] A court could take judicial notice of customary law in terms of section 1(1) of the Law of Evidence Amendment Act 45 of 1988 where customary law could “be ascertained readily and with sufficient certainty”. It seems accepted practice to make some use of textbooks in this regard.9 In the light of evolving customary law, this approach becomes increasingly dangerous if sole use is made of textbooks on recorded customary law. In cases of uncertainty, the customary law has to be proven. See Sigcau v Sigcau,10 which already included a caution against the use of textbooks that record past practices. The Supreme Court of Appeal11 and the Constitutional Court12 held that the courts must apply living customary law (as distinct to recorded customary law).13 One should therefore have regard to actual customs at present, and not past customs no longer followed. Still, in determining customary law, one must inevitably consider past and current customs to
9 See Hlophe v Mahlalela and Another 1998 (1) SA 449 (T) at 458D-E 10 Sigcau v Sigcau 1944 AD 67 at 76. 11 Moropane v Southon [2014] ZASCA 76 para 36. 12 MM v MN and Another 2013 (4) SA 415 (CC) para 48. 13 Gumede v President of Republic of South Africa and Others 2009 (3) SA 152 (CC) para 29-30. Page 7 of 41
evaluate evidence.14 Expert evidence could assist, but in the final instance, someone with personal knowledge should testify about current customs/customary law15 (if different to the recorded customary law).
[14] In summary, the Constitutional Court in and Shilubana and Others v Nwamitwa16 makes made the following findings on the approach that this court has to follow (footnotes omitted):
[14.1] “[49] To sum up: where there is a dispute over the legal position under customary law, a court must consider both the traditions and the present practice of the community. If development happens within the community, the court must strive to recognise and give effect to that development, to the extent consistent with adequately upholding the protection of rights. In addition, the imperative of section 39(2) must be acted on when necessary, and deference should be paid to the development by a customary community of its own laws and customs where this is possible, consistent with the continuing effective operation of the law. ...”;
[14.2] “[56] It follows that the Van Breda test cannot be applied to customary law, where the development of living law is at issue. This is not to say that past practice is not relevant. Past practice and tradition may well be of considerable importance in customary law, but as one important factor to be considered with other important factors. It is also not to say that customary law must in the ordinary course be proven before a court before it can be relied upon. The time when customary law had to be proved as foreign law in its own land is behind us. Where a norm appears from tradition, and there is no indication that a contemporary development had occurred or is occurring, past practice will be sufficient to establish a rule. But where the contemporary practice of the community suggests that change has occurred, past practice alone is not enough and does not on its own establish a right with certainty, as the three-factor test set out above makes clear.17 Past practice will also not be decisive where the Constitution requires the development of the customary law in line with constitutional values.”
[15] In Mayelane v Ngwenyama and Another18 the Constitutional Court made it clear that the determination of customary law is a matter of law, for
14 See Shilubana para 44, 46 and 49. 15 See Mbungela para 18. 16 Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC) 17 (a) The traditions of the community in the past, (b) the right of communities to develop their own law, and (c) the current practice in the community. 18 Mayelane v Ngwenyama and Another 2013 (4) SA 415 (CC) para 47-48 and 61. Page 8 of 41
determination by a court, despite the possible conflicting evidence by witnesses on living customary law.
[16] I commence by reflecting the recorded customary law on customary marriages in general (as distinct to those of the amaSwati) as the point of departure. First, see LAWSA:19 “The normal procedure is that the man or his family take the initiative in approaching the family of the girl with a view to a formal betrothal and marriage. The following steps can be distinguished:
(a) negotiations between the two family groups, or between the man and her family;
(b) the achieving of consensus in respect of the proposed marriage, particularly as to the amount of the lobolo to be paid and other wedding particulars – this leads to a formal engagement;
(c) this is followed by the marriage ceremonies whereby, ceremonially, the girl takes leave of her family, is transferred to the groom’s family and is incorporated into the family of her husband.
The traditional marriage agreement is therefore primarily an agreement between the two family groups entered into with the view to establishing a customary marriage between the two individuals and creating a new household and family. …”
[17] Similar summaries of the traditional, essential elements for a customary marriage appear in Seymour’s Customary Law in South Africa,20 and in Customary Law in South Africa.21 See too in this division, Motsoatsoa v Roro and Others22 with regard to the traditional requirements for a customary marriage:
“[16] Proving the existence of a customary marriage should not present many problems as the formalities for the coming into existence of marriage have crystallised over the years. The reasons for these are not hard to find. The institution of customary marriage is an age-old and well respected one, deeply embedded in social fabric of Africans. The formalities relating thereto are well known and find application even in the marriages of the majority of Africans who marry by civil rites as the two marriages are celebrated side by side. Any distortions and deviations to the formalities can easily be identified,
19 Volume 32, Second Edition Indigenous Law, para 89. 20 5th edition at P105. 21 1st edition, P199-217. 22 [2011] 2 All SA 324 (GSJ) Page 9 of 41
particularly by those who are well-versed with the real and true customary law.
[17] As described by the authors Maithufi I.P. and Bekker J.C., Recognition of Customary Marriages Act 1998 and its Impact on Family Law in South Africa CILSA 182 (2002) a customary marriage in true African tradition is not an event but a process that comprises a chain of events. Furthermore it is not about the bride and the groom. It involves the two families. The basic formalities which lead to a customary marriage are: emissaries are sent by the man’s family to the woman’s family to indicate interest in the possible marriage (this of course presupposes that the two parties man and woman have agreed to marry each other); a meeting of the parties’ relatives will be convened where lobolo is negotiated and the negotiated lobolo or part thereof is handed over to the woman’s family and the two families will then agree on the formalities and date on which the woman will then be handed over to the man’s family which handing over may include but not necessarily be accompanied by celebration (wedding). See also FANTI v BOTO AND OTHERS 2008 (5) SA 405 (C), CHAKALISA v MMEMO (CACLB 04106) [2008] BWCA 11 (30 January 2008).”
[18] Having looked at general, traditional, essential elements for a customary marriage, I next have regard to four judgments from eSwatini.
[19] The first judgment is Thembi Mhlanga And Alfred Mhlanga & 4 Others.23 The court on appeal accepted the following requirements for a valid customary marriage (footnotes omitted):24
“Professor Nhlapho further states the formalities of a marriage solemnized in accordance with Swazi Law and Custom as follows:
“. . . three marriage formalities must be observed before a customary marriage comes into existence:
(i) the bride must be smeared with libovu (red ochre) during the marriage ceremony (umtsimba);
(ii) Lobolo (emabheka) cattle must be delivered in full or guaranteed;
(iii) The “lugege” and “insulamnyembeti” beasts must be handed over, and, the “lugege” beast must be slaughtered.”
Nathan CJ in Rex v Fakudze and Another 1970 – 1976 SLR 422 (HC) at 423 had this to say:
23 Thembi Mhlanga And Alfred Mhlanga & 4 Others (16/2014) [2014] SZSC51 (3 December 2014), a judgment by MCB Maphalala JA (MM Ramodibedi CJ and P Levinsohn JA concurring). 24 Para 17. Page 10 of 41
“There are a number of ceremonies performed at the wedding, but the legally significant one is the anointing of the bride with red ochre (libovu). Unless and until this has been done, she is not regarded as having been married.”
[20] Earlier25 the court stated:
“ … It is well-settled in this country that a marriage in terms of Swazi Law and Custom involves not only the individuals concerned but the two families. Furthermore, where the marriage takes place in a chiefdom, the chief is informed of such an event so that he could send a member of the Chief’s Inner Council to represent him. This is done partly to provide proof of the marriage having been solemnised and partly to ensure that peace prevails during the ceremony.”
[21] Please note the emphasis on red ochre and the role of the chief in amaSwati customary law. The second judgment, also on appeal, is Samuel Myeni Hlawe v Beatrice Tholakele Seyama and Two Others.26 The court dealt with the question of whether a customary marriage had been dissolved through customary law. It dealt with the requirements for such a dissolution and pointed out that even death does not necessarily terminate such a marriage.27 With regard to the conclusion of the marriage, the court referred to the fact that a representative of the chief has a very important role at the marriage ceremony. He must witness if the bride is a consenting party to the smearing with the red ochre.28 The court held:29
“… Society cannot be stable where marriage is ‘easy come, easy go’ – an entirely private affair. It is noted that section 26 of the Births, Marriages and Deaths Act, 1983 makes it an offence for a chief, indvuna or umgijimi who fails to transmit the information necessary to register a customary law marriage that has taken place in the chief’s area. The provision seems to anticipate the presence of the chief or indvuna or umgijimi at the marriage celebration as an official who has a specific role to play.”
[22] The court concluded:30
25 Para 14. 26 Samuel Myeni Hlawe v Beatrice Tholakele Seyama and Two Others (56/2016) [2017] SZSC 41 (9 October 2017), a judgment by MJ Dlamini JA, (RJ Cloete JA and JP Annandale JA concurring). 27 Para 14. 28 Para 11. 29 Para 12. 30 Para 33-34. Page 11 of 41
“[33] Notwithstanding the many apparent shortcomings attending this matter at the customary level, even if the parties had been in agreement the court would have had to be satisfied that there was proper dissolution of the marriage to avoid it being used to justify an irregularity. Evidence on record is that the two families did not meet as required to deal with the issue of the adultery by the respondent. The respondent’s family (and not respondent per se as appellant seems to believe) did not appear before the Thunzini umphakatsi as invited. It is enough that the Thunzini royal kraal made no determination of the issue. Since the parties did not agree a binding determination by the royal kraal was needed. The evidence of record does not state that lobola has been returned or otherwise settled. As Nhlapo says in this regard, respondent could be ‘put aside’ and built a separate homestead with the marriage continuing to subsist. Lastly but importantly and critically, the red ochre has not been washed off by any relevant ritual. Without the red ochre being removed the marital bond continues. This is not surprising considering the undisputed account that the Swazi customary marriage is virtually indissoluble.
[34] To the extent that none of the main writers on the subject ventures into the issue and Dr. Nhlapo also leaves the question of dissolution open, I would say that it is customary law and its structures, courts and councils, that must first provide the definitive answer to the question. As it is and what has so far happened, is that we have inconclusive research and no Swazi court decided case on the issue of dissolution. It is true that customary marriages do fall apart now and again. In that regard these marriages do go through a process of dissolution, but whether they completely dissolve remains unanswered. In my view the effect of this uncertainty is to sustain the continuing basic premise and starting point that the Swazi customary marriage is indissoluble as a general rule: its complete dissolution would be rare and exceptional. The ‘school of thought which holds that a Swazi customary marriage cannot be dissolved at all’ is probably closer to the truth than the opposite view.”
[23] Again, please note the references to red ochre and to the role of the chief, but more importantly, to a pre-dissolution customary law process in amaSwati customary law. The third judgment, a further judgment on appeal, is Mduduzi Masiko Dlamini vs Philile Nonhlanhla Dlamini (nee Ndzinisa).31 The court dealt with a divorce where there was both a customary marriage and a civil marriage. The customary marriage was not registered. This failure was considered a:32
31 (Mduduzi Masiko Dlamini vs Philile Nonhlanhla Dlamini (nee Ndzinisa) 33/2017) [2017] SZSC 58 (10 November 2017), a judgment by MJ Dlamini JA (Dr BJ Odoki JA and RJ Cloete JA concurring). 32 Para 5. Page 12 of 41
”… breach of the law which requires that all marriages should be registered within a specified period. Not having the marriage registered however does not mean that such marriage does not exist: it is only that it is difficult or cumbersome to prove in a court of law.”
[24] The court again referred to the smearing of the bride with red ochre.33 With regard to the requirements for a valid customary marriage, the court held:34
“… Of course, a 'ceremony', in the present context, could in one situation be a marriage in the strict sense, while in another situation it might just be a ceremony resembling but not really a marriage. For instance, a couple may go through a ceremony in church or elsewhere that appears on its face, [with the outward trappings], to be a marriage. But if the register has not been duly signed by the couple and their witnesses the ceremony would not be a marriage in terms of the Act, but just a ceremony, religious or other. The same would be true where lobolo/bayeni or umhlambiso ceremony is performed: the ceremony would not amount to a Swazi customary marriage if the red ochre ritual has not been performed. The signing of the marriage register and the smearing with red ochre are critical to the validity of the respective forms of marriage.”
[25] Lastly in Jabulani Mlangeni v Gugu Mlangeni (Nee Mkhabela) and 2 Others,35 the court held36 that a court must scrutinise the evidence tendered to determine is an applicant seeking a dissolution of a customary marriage has followed the procedure and requirements for termination of the marriage and that the alleged customary law termination was by an authority competent to give a binding decision, before relief is sought in the High Court.
[26] The traditional, validity requirements for a customary marriage have been curtailed by our courts. I deal next with the approach in our courts. As an illustration of a case dealing with amaSwati customary law, in Mabuza v Mbatha,37 the court dealt with a customary marriage. The common cause facts were:38
33 Para 4. 34 Para 22. 35 (536/2018) [2018] SZHC 43 (7 March 2019). 36 Para 4. 37 Mabuza v Mbatha 2003 (4) SA 218 (C). 38 Para 4. Page 13 of 41
“… that the plaintiff and the defendant entered into a relationship in 1989; that the plaintiff fell pregnant in September 1989; that in or about November 1989 the defendant's family approached the plaintiff's family to start negotiations for the penalty (damages) and ilobolo payments; that the penalty payment related to the fact that the plaintiff fell pregnant out of wedlock, ie before the parties got married; that agreement was reached with regard to the payment of ilobolo in the amount of R2 500 which the defendant paid in full; that plaintiff and defendant lived and wife since about 1992, when plaintiff moved into the house with the defendant; that in 1992 the plaintiff decided not to go back to the University of the North and spent her time with the defendant as though they were married as husband and wife; that in or about June 2000 and after the parties had relocated to the Western Cape, the relationship between them terminated; and that there was no reasonable prospect of their relationship being normalised.”
[27] In issue was that “ukumekeza” (which means the formal integration of the bride into the bridegroom's family) did not take place. The court held that it could be waived in appropriate cases. The judgment was somewhat sharply criticised from a traditional customary law perspective in “Requirements for the Validity of a Customary Marriage”.39 The author is of the view that “the integration of the bride is still the hallmark of an African marriage”. In setting out his argument he refers to a number of requirements of amaSwati customary law with reference to an academic work:
“… Marwick The Swazi: An ethnographic account of the natives of Swaziland Protectorate (1966) is even more important in ascertaining what ukumekeza is all about. On the basis of the latter's "essentials of marriage" (123-124), the judge could have formed a more considered opinion whether there was in fact a valid customary marriage. The author's suggested essentials are (in abbreviated form):
(a) The girl must be an ingcugce, that is, her hair must have been put up.
(b) The girl must be smeared with red clay.
(c) The woman must mekeza, that is, she must sing the prescribed songs in the cattle kraal of the groom's village.
(d) The msulanyembethi and lugege animals must be provided at the time of the marriage and the lobolo must either be provided in full or it must be guaranteed.
39 2004 (67) THRHR by JC Bekker. Page 14 of 41
(e) The consent of the parties is theoretically necessary. (As indicated above, in South Africa the consent has all along been a requirement, albeit under European influence.)
However, the case got bogged down on the ukumekeza issue. The judge decreed that it is "probably practised differently than it was centuries ago". Ideally there should have been evidence that it is in fact practised differently or not at all. But in the whole debate, the main point was missed. It was not the ukumekeza as a ritual cast in stone, but the question whether the bride was in fact integrated into her husband's family that was in issue. A global evaluation of the requirements would have been a better yardstick than an assumption that ukumekeza is probably practised differently.”
[28] This article to some degree mirrors the judgments in eSwatini referred to earlier (but it added the singing of prescribed songs as a traditional requirement, which in the cross-cultural case before me would have been an unlikely requirement). Later herein I reflect further academic criticism of Bekker’s views and of Mabuza. Ultimately the Supreme Court of Appeal (“the SCA”) in Mbungela and Another v Mkabi and Others40 accepted the approach in Mabuza and quoted extracts from the judgment with approval. In Mbungela the SCA addressed in part the evolving nature of customary law and its localised application (footnotes omitted):
“[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. The system, therefore, requires its content to be determined with reference to both the history and the present practice of the community concerned. 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. 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
40 Mbungela and Another v Mkabi and Others 2020 (1) SA 41 (SCA) para 7. Page 15 of 41
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. 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.”
[29] An inevitable result of an evolving and flexible customary law, is that parties will have disputes about their legal positions. By way of example, the SCA in Mbungela dealt with a case also under amaSwati customary law where the bride was not handed over, and the lobolo was not paid in full (neither of which is a requirement for a customary marriage under the Customary Marriages Act). Noting a decision that bridal hand-over is an unconstitutional practice41 (but not deciding the issue) the SCA then upheld Mabuza that the handing-over may be waived.42
[30] Waiver in our law is not assumed, and clear proof must be provided.43 The conduct from which the waiver is inferred, must be unequivocal, consistent with no other hypothesis44 (such as mere non-compliance with an obligation). Still, it seems from a perusal of the cases, that waiver of the handing over is not uncommon. By way of example, see Sengadi v Tsambo; In Re: Tsambo45 para 19 before the learned judge found the requirement unconstitutional.46
[31] I found especially four further academic articles useful regarding the issues I had to resolve in this judgment and the warning lights that I had to heed. The first such article is titled “The essence vindicated? Courts and customary marriages in South Africa”.47 Relevant to this case, are the following observations in the article:
41 LS v RL 2019 (4) SA 50 (GJ). 42 Para 21. 43 Road Accident Fund v Mothupi 2000 (4) SA 38 (SCA) para 15-19. 44 Mothupi para 19. 45 Sengadi v Tsambo; In Re: Tsambo [2018] ZAGPJHC 666 46 Para 35-38. 47 (2017) 17 AHRLJ 35, by prof. Lea Mwambene. Page 16 of 41
[31.1] It seems that our courts in several instances make findings on customary law marriage applying neither “official customary law” nor “living customary law”;48 and
[31.2] When judges49 apply “official customary law”, “the inevitable result has been the invalidation of marriages”.50
[32] The last remark is disturbing, and the author remarks (footnotes omitted):51
“The discussion of cases reveals that there is a disparity in addressing the injustices of the past when official or living customary law is applied in the context of customary marriages. Vulnerable parties are protected where courts focus on the ‘essence’ of customary law and apply living customary law. They are also protected where courts develop living customary laws in line with the Constitution and the Bill of Rights. Indeed, the Constitutional Court observed in Mayelane v Ngwenyama:
This Court has accepted that the Constitution’s recognition of customary law as a legal system … requires innovation in determining its living content as opposed to the potentially stultified version contained in … legislation and court precedent.
However, as Bennett rightly points out, the challenge with this preference for living customary law ‘is how this living law is to be discovered and how it can be proved’. Indeed, in Mayelane the Constitutional Court observed these challenges and cited with approval the dictum in Bhe case that ‘the difficulty lies not so much in the acceptance of the notion of “living” customary law but in determining its content and testing it … against the provisions of the Bill of Rights’.”
[33] The second article that I found useful is titled “The Interplay Between Proving Living Customary Law and Upholding the Constitution”.52 The article commences with the following observation (footnotes omitted):
“Living customary law is generally unwritten, and proving it in court can be a difficult task. There is generally a lack of clarity in courts on how to distinguish between practices observed as a social habit and those observed out of a
48 P50-51. 49 The article earlier refers the following judgments in Gauteng: Ndlovu v Mokoena and Others 2009 (5) SA 400 (GNP), Motsoatsoa v Roro and Others [ [2011] 2 All SA 324 (GSJ), and to Mxiki v Mbata, In Re: Mbata v Department of Home Affairs and Others [2014] ZAGPPHC 825, the last mentioned is a judgment by three judges. 50 P52-53. 51 P53-54 52 (2019) 30 Stell LR 464 by TA Manthwa. Page 17 of 41
sense of obligation under customary law. Courts also sometimes hear contrasting evidence regarding either the existence or manner in which a practice is observed, which may be because of an element of self-interest by a party alleging the existence of a practice. These are important considerations in determining the content of living customary law. Against this backdrop, this analysis argues that although determining the content of living customary law is mired in difficulties, there are important considerations that the courts should focus on, which may assist the courts to make an informed decision. However, courts sometimes either ignore or fail to provide sufficient opportunity to address these considerations. For example, the court does not investigate the purpose of a practice, or whether a practice is observed out of a sense of obligation or merely as a social practice. This analysis further argues that it is important to determine if a practice is observed out of a sense of obligation or merely as a social habit. …”53
[34] In defence of judges, I do not believe that judges are unwilling to investigate the purpose of a practice, or whether a practice is observed out of a sense of obligation, or merely as a social practice or habit. In an adversarial system, the line between adjudicating the case presented for determination, and entering into the arena, must be respected. In addition, parties present their cases within their means, as they identify the issues, and often they can ill- afford a case that snowballs into something much bigger than anticipated.
[35] Later in the article, referring to the criticism of Bekker of Mabuza (referred to earlier herein), the author remarks (footnotes omitted):54
“… Transfer of the bride can therefore be viewed as an essential requirement for the validity of a customary marriage. However, courts should still recognise the impact of socio-economic changes, such as urbanisation, on the ability to comply with customary marriage requirements. The requirements for the validity of a customary marriage can be waived or relaxed owing to socio-economic changes. However, evidence should be provided in court that a practice has developed or adapted owing to socio-economic changes. Bekker argues that transfer of the bride, as a requirement for the validity of a customary marriage, cannot be entirely waived, but rituals for a customary marriage may be waived. This argument may not seem to appreciate the adaptive nature of living customary law to socio-economic changes. The
53 Later at P470 the same point is made as follows: “For a court to have a clear picture, it should investigate the purpose of a practice and determine whether the practice is observed as a social practice or out of a sense of obligation. As stated earlier, if a practice is a social practice, then it binds no one and should not be developed. If, however, a practice is observed out of a sense of obligation, then it may mean that it is a norm that cannot be deviated from without consequences. The task of the court would then be to test the norm against the Constitution for consistency.” 54 P467. Page 18 of 41
argument may further seem to subject the validity of a customary marriage to strict requirements, even though the conclusion of a customary marriage is not usually subject to strict requirements.”
[36] Also, inter alia with refence to Mabuza, the author states (footnotes omitted):
“… The legal status of living customary law cannot merely depend on consistency with past practice, because there are always variations owing to socio-economic changes. Thus, relying on past practice only to establish a new practice is problematic, since it can stifle change where change has occurred. If courts do not also determine what is occurring in living customary law, they may find themselves rubberstamping practices which are not actually observed by communities on the ground, which is inconsistent with the spirit of the Constitution.
However, this does not mean that courts should merely accept that a practice has developed, without any evidence to substantiate such an assertion. Evidence should be produced to the effect that living customary law has developed or adapted to meet socio-economic changes. Furthermore, the party alleging a waiver of a practice should be able to argue that owing to socio-economic changes such as urbanisation, it was not possible to perform a ritual in its traditional form, hence a ritual or requirements for the validity of a customary marriage had to be adapted or waived. It becomes a problem when the court merely accepts that changes have taken place, simply because this conclusion is consistent with the Constitution, or when courts draw this conclusion by only relying on evidence submitted by the parties. An example is Mabuza v Mbatha (“Mabuza”), where the court accepted that the practice of ukumemeza, performed during the integration of the bride into the groom’s family, has developed to the point that it is today practised differently. However, the court had no evidence from living customary law to support this conclusion, except the evidence of two witnesses who contradicted each other.”
[37] The author identifies a danger, namely where courts in effect create customary law contrary to the actual customs in communities, their living law.55 In this regard the third article, “The Consequences of the Statutory Regulation of Customary Law: An Examination of the South African Customary Law of Succession and Marriage”56 warns against a distorted customary law based on the wrong use of precedent (footnotes omitted):
“On the other hand, some courts in determining the existence of a customary marriage gravitate towards official versions of customary law. Courts apply a finding from one case with no acknowledgment as to the differences in the
55 P470-471. 56 By F Osman, PER/PELJ 2019 (22) 1. Page 19 of 41
systems of customary law. For example, in Matlala v Dlamini, the court applied the finding from Fanti v Boto which dealt with Xhosa customary law though neither of the litigants in the Matlala case were isiXhosa. Consonant with this approach, some judgments do not even mention the system of customary law in question. The result is that the variation among systems is glossed over and customary law distorted as the practices of one community are transposed onto another. Customary law is treated - like the common law - as a single system of law undermining the rich nuances of the law. Thus, despite the Recognition Act anticipating that individuals would comply with the requirements of their respective communities, a standard set of requirements for marriage has emerged; namely, family participation, the negotiation of lobolo and handing over of the bride.
However, it is problematic where judgments are viewed as binding precedent rather than sources of law. It would mean that a court's finding sets the requirements of a marriage rather than the practices of the community. The further indiscriminate application of precedent risks distorting the law and hindering the recognition of developments in customary law. …”
[38] The fourth article that I found useful is titled “Sailing between Scylla and Charybdis: Mayelane v Ngwenyama”.57 In the matter before me one aspect addressed in the article is relevant, “the practical difficulties associated with ascertaining living customary law and problems of identifying legal versus social norms”. I merely reflect some observations in the article (footnotes omitted):
[38.1] “More importantly, and in the light of the disagreements amongst informants, the court also failed to ask the antecedent question: if there is a social normative practice of informing the first wife of the intention to conclude a further marriage(which does not look to be set in stone), then at what point does it become the basis of a legal norm with dire consequences regarding the validity of the subsequent marriage? …”58
[38.2] “If courts are not alive to the finer distinctions between behavioural norms, there is a concern that "law" and "customary law" will lose any distinctive meaning: everything will be swallowed up to become law. Here the dissenting judgment appears to provide further ballast, as it seems that the custom of one community within a cultural group (ie in rural areas) may not be echoed by others belonging to the same clan (eg with more access to urban and peri-urban areas). As the legal anthropologist
57 By H Kruuse and J Sloth-Nielsen, PER / PELJ 2014 (17) 4 1710. 58 P1721. Page 20 of 41
Galanter discusses extensively in his work, this is highly problematic in the context of social life which is full of regulation.”59
[38.3] “… As mentioned by Bekker and Koyana in the context of succession, "incidents of living customary law cannot without more ado be elevated to a general rule of law." In setting out the process of recognising customary law, they argue that a court must find that a fixed line of behaviour is followed by more or less a constant group of persons for a certain period, and in particular, "a custom, in order to be law, must be commonly believed to be obligatory".60
[38.4] “A related conclusion is that, while section 3(1) of the RCMA (the Customary Marriages Act) is laudable in its conception and its attempt to be flexible enough to adapt to living law, the Mayelane case shows how courts have had to enter the law-making arena in the family domain where the current environment (legislation is but one form) provides inadequate direction. While we can accept that this does and must happen in a constitutional democracy operating in a plural system, it is better that these matters should be subject to democratic deliberation and dealt with in a holistic way. We cannot forget that the courts have to make decisions ("law") on the narrow facts before them. …”61
[39] Legal certainty is difficult to balance against flexible, evolving, customary law rights, imprecise rights under the Customary Marriages Act, and the protection of Constitutional rights.
[40] The question arises in the light of the aforesaid, what facts a court must find in order to determine that the customary marriage was negotiated and entered into in accordance with “customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples”, as required by section 3 of the Customary Marriages Act. The degree of compliance with customary law requirements is relevant in determining if a customary marriage has been concluded on the facts of each case. A court necessarily must determine what the living customary law is, and to what degree it has been complied with. In case of non-compliance, it is the duty of the court to find that a valid customary marriage had not been concluded. By way of illustration, the Constitutional
59 P1721. 60 P1722. 61 P1732. Page 21 of 41
Court applied customary law and found that a subsequent customary law marriage was invalid for non-compliance with customary law.62
[41] I must highlight two matters to consider: (a) There must be a factual distinction between a co-habitation arrangement, and a customary marriage; and (b) all persons are entitled to equal Constitutional protection.
[42] We live in a country where tradition, cultures and modernity grind against each other. Large numbers of people in modern society live together, but are not married, and as such do not live with the legal consequences of marriage. Their friends and families may see them as being married for all intents and purposes, but they are not married. Some people by choice follow traditional customs in full, others in part (i.e. only paying lobolo and not following any other custom), others not at all (i.e. no family involvement or other customs). This range of human conduct also gives effect to freedom of belief and opinion, to equality before the law, and to participate in cultural life as chosen, which are safeguarded in the Bill of Rights and especially in sections 2, 8(1) and 39(3) of the Constitution. The Constitution as such has wider application in this matter than the constitutionality of requirements for a valid customary marriage (a matter I do not have to decide).
[43] It seems to me that a judge must approach the evidence with an eye to the test for a universal partnership between co-habitees as set out by the Supreme Court of Appeal in Butters v Mncora.63 This type of matter is instructive as often the only potential relief to a life partner, after a breakdown in the relationship, is to establish a universal partnership. The minority in the SCA held in Para 34 (the majority and the minority had no dispute on the principle to be applied as appears from para 18):64
62 Mayelane para 61 and 87. 63 Butters v Mncora 2012 (4) SA 1 (SCA). 64 “[18] In this light our courts appear to be supported by good authority when they held, either expressly or by clear implication that: (a) … (d) Where the conduct of the parties is capable of more than one inference, the test for when a tacit universal partnership can be held to exist is whether it is more probable than not that a tacit agreement had been reached. …” Page 22 of 41
“[34] This appeal is about an alleged tacit agreement. As in all such cases the court searches the evidence for manifestations of conduct by the parties that are unequivocally consistent with consensus on the issue that is the crux of the agreement and, per contram, any indication which cannot be reconciled with it. At the end of the exercise, if the party placing reliance on such an agreement is to succeed, the court must be satisfied, on a conspectus of all the evidence, that it is more probable than not that the parties were in agreement, and that a contract between them came into being in consequence of their agreement. Despite the different formulations of the onus that exist: see the discussion in Joel Melamed and Hurwitz v Cleveland Estates (Pty) Ltd [1984] ZASCA 4; 1984 (3) SA 155 (A) at 164G-165G; Christie’s The Law of Contract in South Africa, 6ed 88-89, this is the essence of the matter.”
[44] The more-probable-than-not approach is the one formulated by Denning J in Miller v Minister of Pensions65 as the degree of proof:
“… That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: “We think it more probable than not,” the burden is discharged, but, if the probabilities are equal, it is not.”
[45] Although I do not have determine the existence of a contract as in the case of a universal partnership, the more-probable-than-not test is applicable in evaluating the degree of compliance with customary law. It seems to me that a court still must be satisfied that there was substantial compliance with the material customary law requirements before it could find that a valid customary wedding was concluded, unless it finds that it could overlook any non-compliance based on:
[45.1] Constitutional grounds (including any development of customary law);
[45.2] The non-compliance being immaterial; or
[45.3] A factual finding of waiver.
[46] This seems to me the only approach to keep a court within the limits of its function, to decide matters based on an application of established facts to legal principles.
65 [1947] 2 All ER 372 (KB) at 373. Page 23 of 41
[47] Against this background, the pleadings revealed that the plaintiff is an accountant, and the defendant a project manager. The evidence revealed that both studied at a university. Their educational levels and understanding of the legal requirements for the personal and patrimonial consequences of marriage, were not addressed in evidence.
[48] The plaintiff called three witnesses: She testified, as well as her father (“Mr D Snr”) and her uncle (“Mr M D”). The defendant testified and also called a close friend to testify (“Mr Madire”). All witnesses were not independent.
[49] No evidence was presented of any formal development of recorded or traditional customary law by the community concerned. No evidence really was tendered about principles and values upon which the customary law in issue is based and could be developed. As will appear later herein, evidence was tendered of customs followed by the plaintiff’s family at least, but it is unclear how widespread those customs are given effect to in as far they reflect living customary law. Little distinction was drawn in the evidence between custom and an obligatory custom.
[50] I first address the plaintiff’s evidence. A troublesome matter was that most of the evidence was not contested in cross-examination. In the exceptional case where evidence was contested, I reflect it in the summary that follows. The evidence did not mention red ochre, any role played by the chief, or the singing of prescribed songs as elements of the customary marriage. I have referred to those requirements addressed in the eSwatini judgments, and inter alia by Bekker. The plaintiff did not mention a traditional ceremony involving bile, or a formal handing over by her family to the defendant’s family in eSwatini or indeed in South Africa. Her father gave some evidence in this regard:
[50.1] The plaintiff testified that she and the defendant commenced with a relationship in December 2008. The plaintiff testified during cross- examination that she had fallen pregnant in early April 2011. She did not testify about a decision to get married to the defendant, as she should have done; Page 24 of 41
[50.2] Mr D Snr testified under cross-examination that a prior meeting took place when three people visited his home to arrange a lobolo meeting. The defendant formed part of the delegation, and they needed an indication of the lobolo that would be payable. Mr D Snr testified under cross-examination that the delegation also asked about the cultural customs and that these were explained to them. The details of this discussion were not explored in evidence or in cross-examination;
[50.3] Mr D Snr further testified under cross-examination that he did not ask for gifts in addition to lobolo. Such gifts, he testified, must be brought (in terms of custom) to show that the two families accept each other. This, the first meeting, might have taken place in July 2011;
[50.4] Mr D Snr testified under cross-examination that it was agreed during this meeting that the customary marriage would take place when the lobolo was paid;
[50.5] During cross-examination the plaintiff testified that it was normal for the lobolo negotiations to happen and the wedding ceremony to take place at the same time. In cross-examination Mr D Snr confirmed that there was usually no delay between payment of lobolo and the wedding ceremony. The events (for instance) may happen on successive days. Mr M D testified during cross- examination that the ceremony usually immediately follows upon payment of lobolo;
[50.6] The plaintiff testified that the M family arrived on Friday 2 September 2011 at her father’s home in eSwatini. Mr D Snr testified that the M delegation had to, and did, shout from outside the gate that they were there “to lobolo”. The children had to, and did, take them to the grandmother’s house where the M delegation slept before starting the next morning with the lobolo negotiations. The Page 25 of 41
plaintiff testified that the M delegation consisted of about ten people;
[50.7] The plaintiff testified that the purpose of the visit was “to pay lobolo” (and did not testify that it was for an agreed wedding ceremony). During cross-examination the plaintiff testified that the purpose “was to pay lobolo which is part of marriage” and that the M family came “to negotiate and pay lobolo” (again she did not testify that it was for an agreed wedding ceremony). When asked in cross- examination to explain the omission, the plaintiff testified-
“… , lobolo is marriage in my culture. So, it cannot be like a civil. It is not civil where you have to wear white dresses. So, the lobolo it is marriage. So, he came there to pay lobolo and have a wife. ...”
[50.8] This evidence seems conflict with the evidence by her father and uncle, and the authorities I have referred to. There is more to a customary marriage than lobolo;
[50.9] The plaintiff testified that she did not participate in the lobolo negotiations on Saturday 3 September 2011, but she testified that the outcome was the following-
“So after they had agreed with the lobolo of which was R50 000,00 and the D (family) were happy with it, the M’s gave gifts like coats to the men which were my uncles and they dressed me with a Pedi tradition to show that now I am the wife of, I belong to the M family and they gave gifts to my aunts which were blankets and scarves”;
[50.10] No evidence was advanced as to why the plaintiff would be familiar with Bapedi culture. If her evidence was to convey that the exchanges sealed the wedding, then (a) the wedding was concluded in eSwatini and (b) the plaintiff’s evidence is in conflict with recorded customary law and the evidence by her father and uncle. The above quoted evidence addressed three distinct matters: lobolo, the handing over of gifts, and the plaintiff being dressed according to Bapedi tradition- Page 26 of 41
[50.10.1] During cross-examination the plaintiff testified that the whole lobolo need not to be paid to be married. A large enough portion needs to be paid. Such a portion of the lobolo was paid, and therefore a cow was slaughtered and she was dressed according to Bapedi culture. Mr D Snr testified that a part of the agreed lobolo was paid with a cheque for R50 000.00. Mr D Snr testified under cross-examination that the payment was ten cows short, which would have been delivered at a future date. This short payment did not stand in the way of the wedding. Mr M D confirmed this evidence under cross- examination. No one testified that the balance of the lobolo was ever demanded (in the light of a wedding having taken place, one would have expected such a demand);
[50.10.2] Mr D Snr testified under cross-examination that the M family and the defendant gave him a coat, two wooden dishes, and a knobkierie, and that they gave blankets to the mothers of the D family. This evidence slightly differed from the evidence of the plaintiff. Mr M D inter alia testified that he was given a coat, that Mr D Snr received one too, and a knobkierie, and the plaintiff’s mother received a blanket and a headscarf. This evidence slightly differed from the evidence of the plaintiff and of Mr D Snr;
[50.10.3] Referring to photographs taken on Saturday 3 September 2011, the plaintiff stated that she was dressed in traditional, colourful Bapedi clothes. She was given these by the M family to show that she had become part of their family. This, she testified, happened after the lobolo was agreed upon. If so, one would have expected the dressing in Bapedi clothes to Page 27 of 41
have taken place after the customary wedding was concluded, which is how I understood her initial evidence;
[50.10.4] Mr D Snr testified under cross-examination that by giving him the two wooden dishes and the knobkierie, the defendant showed that he was happy and that he had accepted that he has married the plaintiff;
[50.10.5] Mr D Snr testified under cross-examination that he gave the defendant a goat as a blessing. Mr M D testified that Mr D Snr gave a goat to the defendant to show that he was accepted as a son-in-law;
[50.11] The slaughtering of cattle, a traditional ceremony involving bile, and the handing over of the bride played further important roles in the evidence on behalf of the plaintiff. The plaintiff testified only in part about the slaughtering of cattle and testified that-
“Then after that there was (slaughtering of the cows) of which the other is called Lugeke (Lugege) and there was another cow just for the people who were around which is part of the celebration of the ceremony. The Lugeke means if you slaughter that cow it means now we welcome the M’s to the D family. The following day, on the same day the M’s ask that they will go with me as part of their culture to introduce me to the M family as Makoti or a bride. So, on a Sunday on the fourth (of September 2011 that) I left with the Ms to Steelpoort.”
[50.12] The plaintiff testified under cross-examination that the parties must agree on lobolo and celebrate the marriage. She testified that the slaughtering of the cows was the celebration, which continued in Steelpoort with half of the meat. According to her, the bride needs to be handed over to the groom’s family. This according to her happened as follows-
“To me it is a symbol. The fact that I was dressed in Pedi and they asked that I go with them, and then my family agreed on that and I went with them to Steelpoort”; Page 28 of 41
[50.13] Her evidence contradicts the evidence by her father. Despite several questions under cross-examination, the plaintiff was unable to volunteer information about a symbolic hand-over in cross- examination;
[50.14] Mr D Snr described that three cows were involved. The one cow, the “Geke” had to be slaughtered and its slaughter connected the two families. This confirmed the plaintiff’s version of the purpose of the slaughtering and confirms a wedding concluded in eSwatini. Another cow, was given to the plaintiff’s mother. This was confirmed by Mr M D but did not form part of the plaintiff’s evidence. Both these cows were purchased from Mr D Snr as part of the lobolo negotiations, and had to be “on the hoof”. A third cow was slaughtered, which was to welcome the wedding guests and had to be eaten. There were about 200 guests. Half of this cow was to be given to the M family who had to take it home to “show their families that they had been accepted by our family, and to show the other family members their wife”. This then happened, but reflects a concluded marriage ceremony;
[50.15] In confirmation of a concluded wedding, Mr D Snr testified that as the father of plaintiff, he handed over his child to the M family and he told them that she is “now their bride”. The plaintiff had not mentioned this ceremonial hand-over, and neither did Mr M D;
[50.16] During cross-examination Mr D Snr testified that for a valid customary marriage the “Geke” (Lugege) must be slaughtered, traditional beer must be available, lobolo must be paid, bile most be poured on the couple, and the bride must be handed over by him saying: “Here is your bride. I am giving her to you.” The other family then take the bride with them when they leave, i.e. a concluded wedding. He did not testify about any further integration of the bride into the groom’s family, or any customs pertaining thereto; Page 29 of 41
[50.17] It was put to the plaintiff during cross-examination that “a request by the defendant’s family to take (the plaintiff) to (the defendant’s) family in Steelpoort to introduce (her) there was obviously granted”, and she agreed. It is what she had testified too. During cross- examination Mr D Snr testified that the request was made after the lobolo was paid. Why was the request made if she was married? Mr M D during cross-examination had the following to say about the handing-over of the bride-
“MR CRONJE: Alright and then what do you have to say about handing over of the bride?
MR M D: If the bile had been poured and there was slaughtering, we are finished and they can take the bride. The bride belongs to them and the groom will have received a goat. According to our culture, we are finished and the bride belongs to that family”;
[50.18] Despite several questions, Mr M D did not testify about any actual handing-over of the bride. He testified in cross-examination that the father does not hold the bride with his hands “and tell them, here is your bride”. This evidence contradicts the evidence of his brother;
[50.19] The ceremony pertaining to the pouring of bile played an important role according to two witnesses for the plaintiff (but was not mentioned by the plaintiff)-
[50.19.1] Mr D Snr testified that Mr M D poured the bile of the Lugege, in the mouths of the bridal couple and on their wrists. Thereafter the M family dressed the bride with cultural attire that they had brought along to show that she is “now their bride”. This evidence differed from the evidence of the plaintiff on the timing of her being dressed in Bapedi clothes. Mr D Snr testified under cross-examination that his daughter was dressed in cultural attire before the ceremony involving the bile. Mr D Snr further testified that the taking of photographs of the bile ceremony was culturally forbidden; Page 30 of 41
[50.19.2] Mr M D testified that he poured the bile over the couple to combine them in marriage, and that two cows were slaughtered to combine the two families. His evidence differed from that of Mr D Snr in that he said that the bile was poured in the mouths of the couple, on their heads and on their joints (top of the wrists, on the knees, and on the ankles);
[50.20] The plaintiff testified that when they arrived in Steelpoort, the plaintiff was dressed in a white traditional Bapedi outfit, given a traditional small blanket with tassels to show that she was the bride. During re-examination the plaintiff contradicted her earlier evidence about the dress she wore when arriving at Steelpoort. She testified that it was the same dress she wore the previous day;
[50.21] The plaintiff testified that when they arrived in Steelpoort there was singing, she was introduced as the bride and they had a meal. During cross-examination the plaintiff testified that she was welcomed with ululation, which is done (inter alia) when a bride is welcomed. At the defendant’s house during this introduction were his mother, the delegation who travelled to eSwatini and other relatives;
[50.22] During cross-examination the plaintiff testified that a child was born from the relationship between the parties on 28 December 2011. The child was registered under the M surname, against the wishes of the plaintiff (and seemingly against her evidence). Her seemingly contradictory testimony was -
“… I wanted us to register the customary marriage. Even after the child was born. Immediately. Then as I said put the name as D. He fought for it. He said he has paid lobolo. This child must be called M. But because I did not want to fight with him, then that is how the kids got the surname.”
[50.23] The plaintiff testified that she was living in Midrand at the time of the marriage and the defendant in Lephalale (where he worked). Before Page 31 of 41
the marriage the parties saw each other once a month, and every second week after the marriage. The plaintiff testified that the parties started living together from 2012 in a property rented by the defendant;
[50.24] During 2013 the defendant purchased an immovable property. The suggestion in the evidence was that he did so in his own name (and not in the joint names of the parties), and had a mortgage bond registered against it;
[50.25] The plaintiff testified that the parties had a second child during December 2017, also bearing the M surname;
[50.26] During cross-examination the plaintiff testified that the parties had agreed that they would not have a so-called white wedding, it would have been too expensive. They also never discussed getting married in court. This version was contested in cross-examination;
[50.27] The plaintiff spent some time in her evidence-in-chief to explain WhatsApp messages she sent to the defendant. She stated in these messages that the parties were “not legally married”, or “not even married”. She explained that she was referring to the fact that the parties had not registered their marriage;
[50.28] The plaintiff also spent some time in her evidence-in-chief regarding e-mails where the defendant referred to her as his “lovely wife”, and as his “beautiful wife”. The plaintiff testified that these references to her being the defendant’s wife only started after the wedding;
[50.29] The plaintiff also in her evidence-in-chief, referred to correspondence with a cellular phone provider wherein the defendant referred to her as his wife, and he applied to have her registered on his medical aid as his spouse. They had a joint investment in which the defendant referred to her as his wife; and Page 32 of 41
[50.30] The plaintiff in her evidence-in-chief referred to a WhatsApp message to her in 2016 by the defendant’s mother: “Happy birthday my beautiful daughter in law.”
[51] During cross-examination the plaintiff was told that the defendant would testify that:
[51.1] Usually the lobolo negotiations is one event, and then there is another (later) event for the (marriage) ceremony. It is unusual for the lobolo (payment) and the (marriage) ceremony to happen at the same time. She disputed the version;
[51.2] The defendant suggested a marriage in a court, but the plaintiff refused. She wanted a white wedding. As a Christian, she wanted a pastor to bless the marriage. The defendant informed the plaintiff that if she wanted a white wedding, he would have to save. He needed to complete the lobolo payment first, then save money for a white wedding. In the end he “applied to increase his bond on the house” to raise the money, but the parties then decided to use the money to purchase a motor vehicle for the plaintiff (and never got married). The plaintiff denied that she had insisted on a white wedding;
[51.3] The plaintiff reminded the defendant almost every day that they were not yet married. This matter led to strife between them. She disputed the version;
[51.4] There were several meetings with the plaintiff’s father. Her father also discussed this issue of not finalising this marriage with the defendant. He suggested a marriage in court. She disputed the version.
[52] During cross-examination Mr D Snr inter alia was told that the defendant would testify that: Page 33 of 41
[52.1] The prior meeting took place on 30 July 2011 when he and three other gentlemen met Mr D Snr. As reflected earlier, Mr D Snr did not dispute the version; and
[52.2] He met Mr D Snr at the eSwatini border on 29 December 2017 to collect his son who had been visiting the D family. At this meeting Mr D Snr instructed the defendant to finalise the marriage with the plaintiff. Mr D Snr denied that such a meeting took place.
[53] The defendant failed to plead a version. In fact, the defendant had a completely different version. In hindsight, obviously that version was the motivation for some questions put in cross-examination, but the defendant’s lawyer stopped short of putting a contradictory version to witnesses for their comment. If evidence on an aspect is left unchallenged during cross- examination, the other party is entitled to assume that the unchallenged testimony is accepted as correct.66 In addition, a witness is entitled to a fair opportunity to refute a later suggestion in argument that he or she had lied about an event. The witness must be told that it will be argued that she or he should be disbelieved, including how the evidence in issue will be challenged. He or she must have an opportunity to refute such an argument, including to be told how the evidence is to be challenged.67
[54] The plaintiff did not close its case after the evidence by the plaintiff was left unchallenged. Instead the plaintiff led two more witnesses. Their evidence was led in full, as if all matters were in dispute. In addition, the plaintiff also did not object to the evidence on behalf of the defendant on the basis that such evidence had not been pleaded or put to witnesses for comment. In order to ensure a just outcome in this matter, I cannot simply ignore the defendant’s evidence as if it was not heard. As a result, I cannot see any prejudice caused to the plaintiff by the omission to put the defendant’s version to the plaintiff and her witnesses, if I apply two cautions: (a) evidence about what the witnesses told the defendant (and not put to them), should be
66 See Small v Smith 1954 (3) SA 434 (SWA) at 438E-H 67 See President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) para 61-65. Page 34 of 41
disregarded, and (b) I should not make a finding that the plaintiff and her witnesses were untruthful where fairness required notice to them.
[55] The first witness called by the defendant was a childhood and university friend, Mr Madire, who was part of the M delegation in September 2011. He knows the plaintiff as the “partner” of the defendant. In conflict with the evidence by the plaintiff’s witnesses he testified that they arrived on the Saturday morning and not the Friday evening. The lobolo negotiations were only concluded by about 15H00 or 16H00 and as a result they had to change their plans to return to South Africa the same day. Lobolo was agreed to as payment for 25 cows, but only 15 were paid. A cow called “Geke” (Lugege) was slaughtered, and that they were fed. He further confirmed in his evidence-in-chief that they had brought gifts for the D family. He denied that a wedding ceremony had taken place. The next day they requested to return to South Africa with the plaintiff, which request was granted. They arrived at Steelpoort in the afternoon. He later in 2014 tried to assist the parties to resolve their differences. During this interaction the plaintiff made it clear that they would only be married in a ceremony officiated by a priest or a pastor. Cross-examination did not reveal any inherent difficulties in the evidence.
[56] The defendant testified. His version contradicted the version of the plaintiff and her witnesses:
[56.1] He met the plaintiff in 2006 at university. The plaintiff visited him in Durban in December 2008 and a relationship commenced. The plaintiff fell pregnant in April 2011. In order to avoid the payment of damages, they agreed to get married and the he would pay lobolo;
[56.2] Their cultures were different and his family did not know what they had to do. As a result, he was part of a delegation that went to eSwatini on 30 July 2011 to enquire about the customs. During that visit the D family gave them a stick marked with 27 cows and a list of gifts that they need to bring. These gifts were indeed requirements and had to be brought when lobolo is negotiated. Only lobolo would be negotiated at the next meeting; Page 35 of 41
[56.3] The M delegation arrived on Saturday 3 September 2011 only to negotiate lobolo. He and the plaintiff had no intention to get married that day. The lobolo was fixed late on that day at 25 cows, he paid for 15. They had to change their plans to return to South Africa the same day due to the long negotiations;
[56.4] Two cows were slaughtered, and guests arrived and were fed. Under cross-examination he testified that they were celebrating (or he believed that they were celebrating) the conclusion of lobolo negotiations. During cross-examination he testified that the M delegation was given some cooked meat, not half of a cow, not even a quarter of a cow;
[56.5] On the Sunday they requested that the plaintiff return with them via Steelpoort to Johannesburg. This would give them the opportunity to introduce the plaintiff to the people at Steelpoort as the person they went to pay lobola for and whom they want to make the defendant’s bride. His parents could then also meet the plaintiff. The request was granted. Mr D Snr told the defendant’s uncle that the rest of the lobolo must be paid and that the parties must get married soon;
[56.6] Without specifying who made the statement, the defendant testified as to the events on 3 September 2011-
“The purpose of that day was to negotiate lobola and then which took place. They were happy with what we gave them, hence they said you are now, you can go ahead and get married. We are giving our blessings. We are happy with what you gave us, but the marriage did not take place on that day. I heard the mentioned the rituals. I have never heard of that and myself and the plaintiff, we do not actually even believe in rituals. So it is not something that would have happened. So I have also heard that they gave me a goat, which I have no idea where was the goat given to me when and where is the goat. What did I do with the goat? So I have not heard of that story before and in our culture as well, those rituals, like the way they were explaining, it was like they were marrying me, because we have been to Swaziland and that Page 36 of 41
they have done the rituals everything in Swaziland without my parents being there and then the marriage was concluded and one thing which I also did not understand, if they say rituals were done, hand over was done, I do not understand why we had to request for a permission to come with us so that we can introduce to those who could not manage to come to Swaziland so they can see the person we willing to make her a wife. She is this one, because they did say rituals, everything was completed. The wife was our wife, but at the same time in their letter they are saying, we did request to go with her and when they hand over makoti, they hand makoti over at the man’s place. Not at the women’s place. So which, it did not happen. Even when she came with us, she was just alone. None of her family member came with us to Steelpoort.”
[56.7] Referring to the photographs taken on 3 September 2011, the defendant testified that he would not have been dressed in sneakers and jeans if traditional wedding was performed on that day. The dress that the plaintiff wore, is not a bridal one, but the same one as the one worn by his sister in the photographs. There was no cultural significance to the dress given to the plaintiff, it was a gift that showed that they were Bapedi people;
[56.8] He always intended to marry the plaintiff. Problems started soon after the 3 September 2011. The plaintiff wanted a white wedding and believed that the defendant would be able to afford one. She was not prepared to go to court or to the Department of Home Affairs to register the marriage, and then later have a white wedding;
[56.9] During cross-examination he testified that he bought an immovable property in Kempton Park in 2013. In 2014 or 2015 he borrowed against the mortgage bond for a white wedding, but the plaintiff was doing articles and needed a motor vehicle. They agreed to use the money to buy the vehicle and the wedding did not take place;
[56.10] On the advice of a pastor the plaintiff left the common home at some stage, as she was not married. The plaintiff refused the defendant sexual intercourse as she believed she was not legally Page 37 of 41
married. According to her Christian beliefs, the payment of lobolo is not the same as being married. She was committing a sin by having sex without being married;
[56.11] On 29 December 2017 he went to fetch his son at the Oshoek border post from Mr D Snr. They had a quick meeting. Mr D Snr told him that the D family felt that it has been a long time and that it is about time for the parties to get married. Mr D Snr told him that his daughter was frustrated and insecure. She did not know where she stood, and that it would be better to go to court or to the Department of Home Affairs and get married;
[56.12] The same day the defendant discussed the issue with the plaintiff leading to her WhatsApp message the following day (30 December 2017) that she would never get married to him in community of property (the normal consequence of a customary marriage);
[56.13] On the same date that he received the divorce summons, he travelled to Soweto to the house of the plaintiff’s uncle, He showed him the summons, because he was surprised. As far as he knew, he was not married;
[56.14] He addressed the plaintiff as his wife in e-mails, as she wanted to be addressed as such. The same explanation was given in respect of the complaint to the cellular phone provider. He had to reflect her as his spouse to have her registered on his medical aid scheme. Old Mutual, in error, referred to the plaintiff as M. She never took his surname as they were not married; and
[56.15] It was never discussed the customary marriage must be registered, as the parties were not married. They discussed getting married at the Department of Home Affairs.
[57] The defendant’s evidence was not inherently contradictory, and the cross- examination did not reveal any clear false versions. Assuming that this court does have jurisdiction and that the customary law had been established, I Page 38 of 41
was faced with two irreconcilable versions on the facts of the events in question:
[57.1] The plaintiff avers that a customary marriage had taken place, including a traditional ceremony and the handing-over of the bride; and
[57.2] The defendant avers that only lobolo had been negotiated, agreed upon, and paid in part, but that no customary wedding had taken place, as there was no traditional ceremony or a handing-over of the bride.
[58] If the one version is true, the other must be false or mistaken. The approach to irreconcilable versions has been fully set out in National Employers' General Insurance Co Ltd v Jagers68 and in Stellenbosch Farmers' Winery Group Ltd and Another v Martell et Cie and Others.69 The onus is on the plaintiff to establish on a balance of probabilities, having regard to the credibility and reliability of the witnesses, that the evidence on her behalf is true and accurate, and that the evidence on behalf of the defence is false or mistaken, and accordingly falls to be rejected.
[59] The assessment of the evidence of a witness is inextricably bound up to a consideration of the probabilities of the case. If the probabilities are evenly balanced (in the sense that they do not favour the plaintiff's case any more than they favour the defendant's case), the plaintiff can only succeed if the court believes her and is satisfied that her evidence is true and that the defendant's version is false or mistaken. There are probabilities in favour of both versions as the summary of the evidence would have reflected. The outcome of this case would make a further analysis at this stage, undesirable. Similarly, it would be undesirable to make comments on the impression that witnesses made on me, witnesses who may have to testify again before a different judge.
68 National Employers' General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E) at 440D-H. 69 Stellenbosch Farmers' Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA) para 5. Page 39 of 41
[60] Having regard to all of the aforesaid:
[60.1] I believe that managed to establish the recorded and recently applied customary law of the amaSwati. I cannot make a finding what the living customary law in this case was, if different. Neither the evidence, nor the cross-examination, addressed that aspect sufficiently. The evidence by the plaintiff and her witnesses differed on the alleged customs followed (including in that the plaintiff omitted to testify about the role of bile), and that evidence differed from what is recorded in recent judgments in eSwatini (especially with regard to the important role red ochre plays). As will appear below, I have decided in this case not to call for further evidence on the law at this stage;
[60.2] Even assuming that the plaintiff’s evidence is to be accepted on living customary law, I also cannot make a finding that I have jurisdiction to hear this matter. The plaintiff’s evidence suggests that the customary wedding was concluded in eSwatini:
[60.2.1] In our law, the validity requirements for such a marriage would be determined by lex loci celebrationis, the law of eSwatini where the wedding was celebrated.70 I have dealt with the requirements in that country that were not followed in the present case, especially with regard to red ochre. Such foreign law has to be proven by the party relying on it;
[60.2.2] I also would have been unable to grant the relief that the plaintiff seeks under the Customary Marriages Act, the cause of action the plaintiff relied upon as the Customary Marriages Act do not apply (a) as it is a marriage in a foreign country and (b) due to the
70 Ngqobela v Sihele (1893) 10 SC 346 at 352-353; Seedat's Executors v The Master (Natal) 1917 AD 302 at 307; Pretorius v Pretorius 1948 (4) SA 144 (O at 147-149. Page 40 of 41
definition of customary law in the Customary Marriages Act limited to South African customary law;
[60.2.3] If the proper law pertaining to the marriage is eSwatini law, I also may have no jurisdiction to order a divorce in the case of a customary marriage concluded in eSwatini (dependent on its status in that country as an official marriage), or may not have such jurisdiction before a customary law dissolution has taken place. The authorities that I referred to suggest that a customary marriage concluded in eSwatini could only be dissolved in a civil court in that country after following the customary law (and then it is a dissolution and not a divorce that serves before the High Court in that country);
[60.3] Even assuming that the plaintiff’s evidence is to be accepted on customary law and that this court has jurisdiction, I also cannot make a finding that it is more probable than not that a customary marriage was concluded with regard to the compliance with living customary law, and especially with regard to the requirement that the defendant had to consent to such a marriage in terms of section 3(1)(a)(ii) of the Customary Marriages Act.
[61] Under these circumstances, an order of absolution from the instance would be the appropriate order and not a dismissal of the action.71 The main issues that were dealt with in this judgment were not addressed adequately or at all in the pleadings or in the evidence. The matter before me was always but one step in the litigation. The parties intended to return to court. It is possible that the plaintiff could plead and lead evidence to address the shortcomings in her case. Although my judgment favours the defendant, his failure to plead and put his version to the plaintiff played an important role in my decision
71 Corbridge v Welch (1891-1892) 9 SC 277 at 279. Page 41 of 41
why absolution is ordered (and not a dismissal of the action). I therefore do not follow the normal rule72 and find that each party should pay its own costs.
[62] The outcome of this matter will be unsatisfactory for all persons who were involved in the matter. It is for me too. The parties still do not know if they are married or not. The attempt to make progress in the matter through the separation of an issue, failed. I make the following order:
1. Absolution from the instance is ordered on the separated issue of whether the plaintiff and the defendant are married under customary law.
2. Each party is to pay its own costs, including all reserved costs.
______DP de Villiers AJ
Heard on: 11 to 13 March 2020 Delivered on: 12 May 2020 electronically, by e-mail On behalf of the Plaintiff: Adv M Mthombeni Instructed by: ES & Associates On behalf of the Respondents: Mr AL Cronje Instructed by: McKenzie Van der Merwe and Willemse Inc
72 General Wholesale Suppliers (Pvt) Ltd v Aims Distributors 1975 (1) SA 600 (RA) at 601 A-B.