2.
The rest of the application be and is hereby dismissed.
It is against this order that the appellant appeals.
The parties had been required to identify the issues in dispute and the issue so identified was: “The question is whether or
not there is a Marriage.” In terms of section 13(2) of the Marriage Act a person who has previously contracted a marriage in
accordance with any customary rite with a person still living may not contract a marriage under the Act unless the customary marriage
has been dissolved or annulled. Section 13(3) provides that any purported contract of Marriage prohibited by section (13(2) “shall
be void”.
The appellant’s case was that because of her customary marriage to the deceased the civil marriage between the deceased and
the respondent was void. This being the case the joint will of the deceased and the respondent has no legal force or effect. She
sought an order that she is the sole heir to the deceased’s estate.
According to the judgment delivered by Masuku J the parties agreed that if the declaratory order sought was not granted, the other
claims listed under the heading AS TO ORDER in the notice of motion would fall away. The evidence that was led by and on behalf of
the appellant was an attempt to prove that she had concluded a valid customary marriage with the deceased. In granting absolution
from the instance Masuku J held that the appellant had failed to establish a prima facie case.
Four witnesses were called on behalf of the appellant. They included the appellant herself, her sister Gaelebale Chakalisa and her
alleged sister – in - law Ntshodi Mmemo. These three witnesses described how the relationship between the appellant and the
deceased started and developed. Their evidence can be briefly summarized as follows.
In 1947 when the appellant was 13 years old the deceased’s mother, Selebatso, went to see the appellant’s father and told
him that she was looking for a wife for the deceased, then a young man. The appellant and her two sisters were shown to Selebatso
and she chose the appellant as a suitable wife for the deceased. Sometime thereafter Selebatso went back to the appellant’s
home with two presents for the appellant, namely a blanket and a mat made of skin. According to the witness Gaelabale Chakalisa this
happened a week after Selebatso’s first visit. The appellant states that she received the blanket and mat only in 1949. In
1950 the appellant’s half sister and half brother took the appellant to the deceased’s home where she remained and cohabited
with the deceased. She became pregnant and was taken back to her parent’s home. There she gave birth to a boy in 1951. Selebatso
went to see the boy and gave him the name of Golebanye. The appellant went back to the deceased’s home and she and the deceased
later lived together in a traditional house at a cattle post. In 1953 a daughter was born to them at the cattle post. The appellant
later became ill and in 1958 she was hospitalized in Rhodesia. She returned from Rhodesia in 1959 and went to stay with her father
in Tobane. She thereafter joined the deceased but she again became ill and was hospitalized in Francistown. The deceased visited
her there in 1960. After that there was no further contact between them.
The fourth witness called on behalf of the appellant was Gabriel Caesar Matlhasedi. He is referred to in the evidence as PW5 although
in fact only four witnesses gave evidence. I shall for the sake of convenience also refer to him as PW5. He was 78 years old when
he gave his evidence and he stated that the appellant was his cousin. He was called as an expert witness to give evidence on the
customary law relating to marriage. It is clear from the evidence that customary law provides for parties to become engaged prior
to being married. During this period they can cohabit and have children. The crucial question in the present case is whether anything
more than an engagement was concluded between the appellant and the deceased.
PW5 stated that he knows the appellant very well and he knew the deceased very well. He also knows the respondent, having met her
on many occasions. He was asked to describe the formalities that lead up to a customary marriage. According to his evidence the first
step is for an emissary to be sent by the young man’s family to the girl’s family to indicate their interest in a possible
marriage. After that, meetings of the parties’ relatives are convened to discuss the matter. When it has been decided that
a marriage should take place a request for the payment of lobola by the young man is communicated to him. The girl is then delivered
to the young man’s home and cohabitation between the young man and the girl is then permitted. A crucial step to be taken is
the payment of lobola by the husband to be to the girl’s parents.
The evidence in this case indicates that some of the steps leading up to a possible marriage between the appellant and the deceased
were not carried out strictly in accordance with the recognized custom. This was pointed out to PW5 and his replies to the questions
were that strict compliance with the customs is not always necessary. It was for example, put to him that the appellant, when she
was delivered to the deceased, was accompanied by young teenagers. PW5 admitted that this was not in accordance with the custom which
requires that she be accompanied by older women who are able to advise her on the duties of a wife. More importantly no lobola was
paid by the deceased. On this question PW5 stated, somewhat vaguely, that this could be paid at a later date, and even after the
death of the husband. It is not stated in the evidence that any arrangement was made for the payment of lobola. Several other steps
usually taken to indicate a marriage were admittedly also not taken by the appellant. She did not change her surname, and she did
not wear a wedding ring. When these matters were pointed out to PW5 he simply replied that such steps need not necessarily be taken.
PW5 did not offer an opinion as to whether in the instant case a valid marriage had been concluded between the appellant and the
deceased.
There are aspects which tend to show that a binding marriage was not concluded between the appellant and the deceased.
As stated above, it is common cause that the appellant did not take on the deceased’s surname, nor did she obtain and wear a
ring to indicate that she was married. No formal celebration was held to signify that she had finally married the deceased. She was
in 1991 made aware of the fact that the deceased had entered into a civil marriage with the respondent. In her founding affidavit
to her initial application she states that before obtaining legal advice as to the validity of the deceased’s civil marriage
to the respondent, she regarded herself as the deceased’s senior wife and the respondent as a junior wife. She admitted that
she had had no contact at all with the deceased or with the respondent after 1960. She also did not attend the deceased’s funeral.
It is only now, after hearing of the deceased’s death, that she has come forward to claim the assets in his estate, claiming
that she was his only lawful wife. Her claim that she considered herself to be lawfully married to the deceased, and that she looked
upon the respondent as being his junior wife, is inconsistent with her failure to contact either of them for a period of more than
40 years.
In ordering absolution from the instance the Judge in the court a quo relied upon what is stated in SCHAPERA’s” A Handbook
of Tswana Law and Custom” and Dr A. Molokomme’s “The woman’s guide to the Law” in his rejection of
some of the evidence given by PW5. There was, at the conclusion of the applicant’s case no witness evidence confirming the
correctness of what is stated by SCHAPERA and Dr Molokomme, and at the application for absolution stage it is not the task of a judicial
officer to make credibility findings. The test to be applied is whether upon the evidence led a court might, not should, find in
favour of the plaintiff.
See; Mazibuko v Santam Insurance Co. Ltd and Another 1982(3) S.A 125 (A) at 132 – 3; Mabutho v. Mabutho and Another 1988 B. L. R.
407 at 417.
As stated above, PW5 does not state that in his opinion a customary marriage was concluded between the appellant and the deceased.
He accepts the fact that there is a period of engagement which may or may not lead to a valid marriage and that during this period
the parties can cohabit and have children.
The facts, as presented to the court, and listed above, show that for a period of more than 40 years prior to his death the appellant
did nothing to suggest that she regarded herself as being married to the deceased. When one adds to this the facts stated above,
and in particular the fact that there was no payment of lobola, an essential ingredient of a valid customary marriage, it is my conclusion
that the appellant failed to make out a case sufficient to require an answer from the respondent. She had not produced evidence upon
which a court might find that a customary marriage between her and the deceased had been concluded. An engagement and cohabitation
resulting in the birth of two children was proved but evidence that the engagement culminated in a lawful marriage is lacking. It
therefore cannot be said that the judge in the court a quo erred in granting absolution from the instance.
In one respect the judge in the court a quo did err. He granted an order dismissing prayers (a), (b), (c) and (d) under the heading AS TO ORDER in the Notice of Motion. It is
correct that a dismissal of the declaratory order will result in the other orders also being dismissed. However, the declaratory
order was not dismissed. The order was one of absolution from the instance and a similar order should have been made in respect of
the other claims.
In a separate judgment the judge in the court a quo granted an order for a stay of execution of his earlier order in which he dismissed the appellant’s claims. This order was
granted after the appellant had filed her notice of appeal, and presumably it was granted pending the result of this appeal. In order
to avoid confusion it is necessary that that order, granted on 13 October 2006, should be set aside.
On 2 August 2004, when ordering that the matter proceed by way of trial, Gaongalelwe J. also granted the following order (numbered
3):
3.
Both Respondents (being the present respondent and the Registrar and Master of the High Court), their agents or anyone acting through
them are hereby restrained from in any manner, shape or form from disposing of, dealing with or alienating the estate of the late
Moroka Mmemo.
This order was obviously intended to apply until the conclusion of this case. It was however not so stated, and to avoid confusion
this order also needs to be set aside.
In the result the following order is made:
1.
The appeal is dismissed subject to the following. The order granted in the court a quo dismissing prayers (a), (b), (c) and (d) under the heading AS TO ORDER in the Notice of Motion is set aside, and in respect of these claims the order is also to be one of absolution from the instance.
2.
The order dated 13 October 2006 granting a stay of execution is set aside.
3.
The order, numbered 3, granted by Gaongalelwe J. on 2 August 2004 is set aside.
4. The appellant is to pay the costs of this appeal.
DELIVERED IN OPEN COURT AT LOBATSE ON THE 30TH DAY OF JANUARY 2008.
___________________
N. W. ZIETSMAN
JUDGE OF APPEAL
___________________
I agree
N. J. McNALLY
JUDGE OF APPEAL
___________________
I agree
M. M. RAMODIBEDI
JUDGE OF APPEAL
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