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THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO:   2015/21836

REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

In the matter between:

SALOME RAHLAGA                                                                                      Applicant

And

MODJADJI CONNIE MALATJA                                                      First Respondent

MASTER OF THE HIGH COURT                                                Second Respondent

JOHANNESBURG

NEDBANK LIMITED                                                                        Third Respondent

JUDGMENT

RATSHIBVUMO AJ:

1. Introduction: Thabiso Peter Ratlaha (the deceased) died intestate on 02 January 2013. Following his death, his sister (the applicant), launched an application in which she challenges the appointment of the respondent, the disputed wife of the deceased, as the executrix of his estate. Her application is for an order in the following terms:

1.          “That the First Respondent be restrained from distributing the deceased estate or alienating any assets of the estate pending the finalisation of the case;

2.          Cancellation of the Letter; of Executrix issued to the First Respondent by the Second Respondent;

3.          Ordering the Second Respondent to appoint the Applicant as the Executrix of the estate;

4.          Ordering the Third Respondent to freeze the First Respondent’s bank accounts opened by the First Respondent under the Third Respondent pending the finalisation of the case;

5.          Ordering the First Respondent to return all the assets of the estate which have been already distributed;

6.          Costs of suit;

7.          Further and/or alternative relief.”

2. Background: The Applicant alleges that after her brother passed away, she was admitted to hospital.  She was approached by her three sisters (the siblings) on an unspecified date whilst being in hospital, to sign an affidavit that eventually led to the appointment of the First Respondent as the executrix of the deceased’s estate. This they did following the instruction by the Master of the High Court Johannesburg (the Master), who ruled that the letter of appointment should be issued to the First Respondent since she was a spouse to the deceased. According to the applicant and the siblings, the Master reached this conclusion based on ‘a lobolo letter’[1] that the First Respondent presented. She and the siblings were not aware of the marriage or the existence of the lobolo letter until the time it was presented at the Master’s office. Despite all these, she proceeded to sign the affidavit as requested. On 09 January 2013, the First Respondent was duly appointed executrix by the Master. The copy of the affidavit alleged by the Applicant was not made available to the Court.

3. She decided to revoke her support for the nomination of the First Respondent as the executrix following an advice she received to the effect that there was no valid marriage between the First Respondent and the deceased since lobolo was not paid in full and there was no marriage certificate. It is not clear as to who advised her or when. The first letter written by her attorney to the Master was however dated 17 June 2015, some 2 years and 6 months after the appointment of the First Respondent as the executrix. In a letter dated 07 May 2013, the Master confirms that there was an objection to the appointment of the First Respondent as the executrix. He further stated that in a meeting involving “all parties” held on the date the letter was written, he was satisfied that the First Respondent was a spouse to the deceased since lobolo was paid.[2] He made no reference to the alleged affidavit referred to by the Applicant.

4. The Applicant advanced further reasons why she withdrew her support for the appointment of the First Respondent as executrix.  She stated that the lobolo letter presented by the First Respondent does not contain all the details for it to constitute a binding marital contract. She expressed her doubt on whether there was ever a lobolo negotiation. Lastly, it was her submission her submission that the First Respondent did not stay with the deceased.

5. Issues for determination:  What constitutes a valid customary marriage? What impact does failure to pay lobolo in full have on the validity of a customary marriage? The court needs to also answer whether failure to register a marriage with the Department of Home Affairs so that a marriage certificate is issued has any impact on the validity of a marriage. Thirdly, must there be a written contract when negotiating lobolo?  Fourthly, is there a requirement for the parties to stay together?

6. Requirements for a valid customary marriage:

In terms of the Recognition of Customary Marriages Act 120 of 1998 (the Act); for a customary marriage entered into after commencement of this Act to be valid:

a)     (i)  The spouses 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.

According to section 14 of the Act, the commencement date of this Act was 15 November 2000.

7. In Mabuza v Mbatha,[3] Hlophe JP summarised the requirements for a valid traditional marriage into:

(a)  Consent by the bride and the bridegroom, who should all be majors,

(b) Consent by the bride’s guardian;

(c)  Payment of lobolo;

(d) The handing over of the bride.

The court went on to observe that concrete ceremonial rituals were held according to different African nationalities. However, they could be dispensed with in appropriate cases by agreement between the parties.

8. The traditional prerequisites for a valid marriage have not vanished with the advent of the Constitutional democracy in this country. On the contrary, the Constitution of the Republic of South Africa enjoins the Courts to develop customary law and to marry it to the Constitutional order of the day. However, the misconception that lobolo should be paid in full before a consummation of a marriage is misguided and unfounded. The payment of lobolo does not have to be in full. Just as Ngwenya J (with whom Hlophe JP concurred) observed in Bhe and Others v Magistrate, Khayelitsha and Others,[4]

“[t]here is one misconception on the part of the third applicant which requires correction. She averred that had it not been the inability of the deceased to pay lobolo for her, they would have been married before he died. It has never been a prerequisite under African customary law to pay lobolo before marriage is consummated. There must be agreement, however, as regards lobolo. It may be deferred as long as circumstances do not permit payment.”

9. Dispute of fact: Upon close observation of issues for determination, it becomes apparent that other than the question on whether lobolo needs to be paid in full for a valid marriage, the rest are factual disputes which existed long before the applicant issued the Notice of Motion. As for the question on whether there was a meeting between the deceased’s family and that of the First Respondent is answered in affirmative by four witnesses who attested to affidavits in support of the First Respondent.[5]

10. Amongst these is an affidavit deposed to by the deceased’s aunt, Ms. MJ Makgola, who also happened to be the applicant’s aunt. In it she not only alleges that she is a younger sister to the applicant’s deceased’s mother; but she alleges that “on or about the 1^st May 2012 I did form part of the witnesses tasked to negotiate and agree on a marriage between the late Ratlaha Thabiso Peter and Malatja Modjadji Connie. I further wish to confirm that the marriage agreement was reached between the two families after we paid an amount of R2 000 as a way of introducing ourselves to the Malatja family and a further R2 000 towards the balance of R13 000.” The First Respondent’s father, Mr. ME Malatja confirms the version of Ms. Makgola and concludes by averring, “…as a result, we handed our daughter to the Ratlaha family as the true and lawful daughter in law.” The initial R2 000 must have been towards what the court referred to as “imvula mlomo or mouth-opener” in Fati v Boto and Others.[6] The Applicant does not dispute this negotiation having taken place; she merely alleges that she is not aware of it and that the production of a lobolo letter came as a surprise.

11. The First Respondent alleges that she stayed with the deceased on fulltime basis in Gauteng for many years before she relocated to Limpopo after she secured an employment there, after which, they would only visit each other whenever the deceased (who was a teacher) was on school holidays. I do not see anything out of the ordinary from this practice. There are many families who live like this due to work commitments separating them geographically. I do not see how this impacts on the validity of the marriage.

12. Submission by the Applicant on why the First Respondent did not change her surname to that of the deceased can only be seen as desperate since changing a surname is not a requirement. The same can be said in respect of an attack levelled at the language used in the lobolo letter, which it is argued, it does not contain all the details of lobolo negotiation and signatures by all the parties present at the negotiation. A lobolo receipt or contract is not a requirement for a valid marriage. Where one is made and it is vague, parties who were present from both families clarified every entry made therein. And lastly, according to the Act, failure to register a marriage does not affect the validity of that marriage.[7]

13. The affidavits by people who knew the deceased[8] who now claim that the deceased told them that the First Respondent was merely a lover or a fiancé; do not take the Applicant’s case much further. This is not only because of the hearsay nature of their evidence, but also because the fact that they were told that the First Respondent was not a wife does not make it a fact. Even if this allegation was to be made by an alleged partner to a disputed marriage, it does not turn it into a fact.[9] After all, this remains disputed by the First Respondent. According to the Respondent, the Applicant was motivated by greed to launch this application.   That she did this after she had admitted to the Master that the First Respondent was the deceased’s spouse but became greedy after seeing the money Respondent stood to benefit as a surviving spouse.

14. The Plascon-Evans test: Applications of this nature are not meant for the courts to make a determination on disputed facts, but on legal interpretation based on undisputed facts. Such a determination may still be made even when there is a factual dispute, as long as the dispute would have no bearing on the relief sought by the Applicant. The approach to disputed fact in applications is well established. In Plascon-Evans Paints LTD v Van Rebeeck Paints (PTY) LTD[10] when Corbett JA held,

“It is correct that, where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant's affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order. The power of the Court to give such final relief on the papers before it is, however, not confined to such a situation. In certain instances the denial by respondent of a fact alleged by the applicant may not be such as to raise a real, genuine or bona fide dispute of fact.”

In Bhe and Others v Magistrate, Khayelitsha and Others,[11] the court applied this rule when it held, “in accordance with Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd,[12] this issue must be resolved in favour of the second respondent.” In essence, this application should be considered with all disputed facts found in favour of the First Respondent.

15. For the reasons stated above, the following order is made:

15.1The application is dismissed with costs.

                                        _____________________

                                                          T.V. RATSHIBVUMO

                               ACTING JUDGE OF THE HIGH COURT

Date Heard:                            03 May 2016

 

Judgment Delivered:              13 May 2016

 

For the Applicant:                  Adv. M Sehunane

Instructed by:                         Sehunane Attorneys

                                                        Kempton Park

 

For the Respondent:               Adv. MJ Mojela

Instructed by:                         Senyolo Attorneys – Tzaneen

                                                        C/O Nobela Attorneys

                                                        Johannesburg

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