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Last Updated: 3 December 2005
THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
Case no: 524/2004
In the matter between:
HUGH ARNOLD WORMALD N.O. First Appellant
BURTON QUEENSTOWN CC Second Appellant
NORAH KHUPELA BADUZA Third
Appellant
and
LUNGISWA SNOWY KAMBULE
Respondent
CORAM: MPATI DP, ZULMAN, NUGENT JJA et COMBRINCK, MAYA
AJJA
HEARD: 23 AUGUST 2005
DELIVERED: 22 SEPTEMBER
2005
Summary: Application for eviction under Act 19 of 1998 (PIE)
and declarator that customary marriage void ab initio – whether
discretion conferred on court by PIE can be exercised to determine whether a
customary law wife has a claim for a
right to occupy a property against her
deceased husband’s estate – whether a customary marriage confers a
right to occupy
a specific property which is subject to a mortgage
bond.
JUDGMENT
MAYA AJA
MAYA AJA
[1] This is an appeal against a judgment of Chetty
J in the Eastern Cape Division, reported as Wormald NO and Others v Kambule
[2004] 3 All SA 392 (E). The court a quo dismissed an application
launched by the appellants seeking, firstly, to evict the respondent from
certain residential property under
the provisions of the Prevention of Illegal
Eviction from and Unlawful Occupation of Land Act 19 of 1998 (‘PIE’)
and,
secondly, an order declaring a customary marriage the respondent is alleged
to have contracted with one Mr Burton Baltimore Zitha
Baduza (‘the
deceased’), from which she claims her right to occupy the property
derives, null and void. The appeal is
with the leave of this
court.
[2] The second appellant, a close corporation which had the
deceased as its sole member, is the registered owner of the property.
The first
appellant represents his co-appellants in these proceedings in his capacity as
the executor, nomine officio, in the massed estate of the deceased
and his surviving civil law spouse, the third appellant, and consequently, the
sole member of
the second appellant in terms of s 29 of the Close Corporations
Act 69 of 1984.
[3] The background facts may be stated briefly. The
respondent has occupied the property since September 2001, shortly after its
purchase
by the second appellant. She does not hold a lease in respect of the
property and does not therefore pay any rental. The property
is subject to two
mortgage bonds with ABSA bank which are serviced by the estate on a monthly
basis in the sum of R9 451,86.
After the deceased’s death in June
2002, the first appellant attempted to collect rental from the respondent. When
she refused
to accede to this demand the first appellant informed her that the
mortgage bonds, which exceeded the property’s current market
value, were
burdensome on the estate and that, consequently, the property had been put up
for sale. She was requested to grant an
estate agent and potential purchasers
access to, and to vacate the property against an offer of alternative
accommodation at a local
hotel owned by the estate. In response, the respondent
conceded that she could not occupy the property indefinitely but demanded
that
the first appellant (i) recognize her customary marriage to the deceased, (ii)
provide her with suitable and reasonable accommodation
having regard to her
station in life and the ability of the estate to pay for such accommodation and
(iii) recognize her contemplated
claim for maintenance from the estate. The
appellants countered these demands by launching the eviction
proceedings.
[4] The appellants claim that the respondent is in unlawful
occupation of the property because it is owned by an entity with a separate
and
distinct legal personality from the deceased and that any right she might have
had to occupy it was as the deceased’s ‘housekeeper’
and
terminated upon his death. The respondent’s contention is that she
occupies the property with the express or tacit consent
of the second appellant
through which it was purchased by the deceased to provide her with accommodation
in recognition of his obligation
to do so as her husband, flowing from their
customary marriage entered into in 1985. She denies that she was the
deceased’s
‘housekeeper’.
[5] Much of the
respondent’s version was not disputed except for the very basis of her
alleged entitlement to occupy the property,
the alleged customary marriage.
There having been no request for a referral of such dispute for the hearing of
oral evidence and
these being motion proceedings, the final relief which is
sought by the appellants should be granted if the facts alleged by the
appellant
that are not denied by the respondent, together with facts asserted by the
respondent, justify such an order. Plascon-Evans Paints Limited v Van
Riebeeck Paints (Pty) Limited 1984 (3) SA 623 (A) at 634E- 635C.
[6] On
an application of this test to the facts of the case it must be accepted
that-
6.1 In 1985 the deceased proposed marriage to the respondent which she
accepted.
6.2 Subsequent thereto the deceased approached the
respondent’s father to ask for her hand in marriage and, consequent to
those
negotiations, agreed to pay lobola in the sum of
R5 000,00.
6.3 Pursuant to the agreement, the deceased paid a sum of
R1 000,00 to the respondent’s father. The balance was later paid
to
the respondent’s mother because her parents had, in the meantime separated
and were divorcing each other and her father
had left the common
home.
6.4 The third appellant was aware of, and did not approve of the
marriage. As a result the deceased made arrangements for the respondent
to
relocate from Sterkspruit, where they lived at the time and where the third
appellant still lives, to Queenstown, where the property
is situate.
6.5 The
deceased provided the respondent with accommodation in three different houses
from 1987 until his death. The first of these
properties was registered in her
name and the other two (including the property in issue) were purchased in the
name of the second
appellant and were used by her. The deceased had also made a
motor vehicle registered in his name available for her exclusive use.
6.6 The deceased made no provision for the respondent in his
will.
[7] After considering these facts and the relevant law, Chetty J
held that the deceased and the respondent had concluded a customary
marriage and
complied with all the requirements for the recognition of such a marriage; that
the deceased purchased the property
acting in his capacity as the second
appellant’s sole member and as its ‘... embodiment [and thus bound
it] to provide
the respondent with a home during the subsistence of their
customary marriage’; that the customary marriage vested the respondent,
as
the deceased’s widow, with a personal servitude of usus or
habitatio in respect of the residential property with which her deceased
spouse had provided her and that the customary marriage was not rendered
invalid
by the fact of its non-registration in accordance with the Transkei Marriage Act
21 of 1978. He concluded that the respondent
was not an unlawful occupier as
envisaged in s 1 of PIE. It is these findings that the appellants contest.
[8] It is common cause between the parties that the provisions of PIE
are applicable. Section 4 thereof governs eviction proceedings
brought by
‘the owner or person in charge’ of the land in issue and contains
both procedural
and substantive provisions. Subsections (2), (3), (4) and (5)
set out the procedural requirements which, it is common cause, the appellants
duly complied with.
[9] Subsections (6), (7) and (8) contain the
substantive provisions and read as follows:
‘(6) If an unlawful
occupier has occupied the land in question for less than six months at the time
when the proceedings are
initiated, a court may grant an order for eviction if
it is of the opinion that it is just and equitable to do so, after considering
all the relevant circumstances, including the rights and needs of the elderly,
children, disabled persons and households headed by
women.
(7) If an unlawful
occupier has occupied the land for more than six months at the time when the
proceedings are initiated, a court
may grant an order for eviction if it is of
the opinion that it is just and equitable to do so, after considering all the
relevant
circumstances, including, except where the land is sold in a sale of
execution pursuant to a mortgage, whether land has been made
available or can
reasonably be made available by a municipality or other organ of state or
another land owner for the relocation
of the unlawful occupier, and including
the rights and needs of the elderly, children, disabled persons and households
headed by
women.
(8) If the court is satisfied that all the requirements of
this section have been complied with and that no valid defence has been
raised
by the unlawful occupier, it must grant an order for the eviction of the
unlawful occupier, and determine-
(a) a just and equitable date on which the
unlawful occupier must vacate the land under the circumstances; and
(b) the
date on which an eviction order may be carried out if the unlawful occupier has
not vacated the land on the date contemplated
in paragraph
(a).’
[10] An ‘unlawful occupier’ is defined in s1 of
PIE as follows:
‘a person who occupies land without the express or
tacit consent of the owner or person in charge, or without any other right
in
law to occupy such land, excluding a person who is an occupier in terms of the
Extension of Security of Tenure Act, 1997, and
excluding a person whose informal
right to land, but for the provisions of this Act, would be protected by the
provisions of the
Interim Protection of Informal Land Rights Act, 1996 (Act 31
of 1996).’
[11] An owner is in law entitled to possession of his or
her property and to an ejectment order against a person who unlawfully occupies
the property except if that right is limited by the Constitution, another
statute, a contract or on some or other legal basis. Brisley v Drotsky
2002 (4) SA 1 (SCA). In terms of Section 26 (3) of the Constitution, from
which PIE partly derives, (Cape Killarney Property Investments (Pty) Ltd v
Mahamba and others 2001 (4) SA 1222 (SCA) at 1229E), ‘no one may be
evicted from their home without an order of court made after consideration
of
all the relevant circumstances’. PIE therefore requires a party seeking to
evict another from land to prove not only that
he or she owns such land and that
the other party occupies it unlawfully, but also that he or she has complied
with the procedural
provisions and that on a consideration of all the relevant
circumstances [and, according to the Brisley case, to qualify as relevant
the circumstances must be legally relevant], an eviction order is ‘just
and equitable’.
[12] As previously indicated, the essential basis
for the respondent’s opposition to the eviction proceedings is the alleged
customary marriage and the deceased’s alleged intention to bind the second
appellant to provide her with lifelong use of the
property and that,
furthermore, it would not be just and equitable to evict her.
[13] Assuming but without deciding whether in fact that there was such a
marriage in the instant case, it must be considered that
whilst it is so that in
customary law a husband and, upon his death, his heir, has a duty to maintain
his wife or widow, as the case
may be, and provide her with residential and
agricultural land, she does not, at any stage, acquire real rights in such land.
The
dominium vests in the husband’s or his heir’s estate. TW
Bennett Customary Law in South Africa (2004) p 347; Xulu v Xulu
1938 NAC (N & T) 46. The wife does not, therefore, have a right to
demand to occupy any land of her choice, even to the detriment
of the estate, as
the respondent seeks to do in the present matter.
[14] Furthermore,
customary law, significantly a legal system to which the concept of a mortgage
bond is alien, makes no provision
for a situation such as the present, where a
‘widow’ is laying claim to property belonging to a third party which
is
also bonded. It would clearly be untenable in law to extend the right of a
customary law wife or widow to maintenance to confer real
rights in respect of
such property, particularly against the wishes of the bondholder. It is also
significant that there is not the
slightest indication in the papers that the
second appellant was established for the purpose of providing support to the
respondent.
All that its founding statement reflects is that it was formed with
the objective of ‘purchasing and investing in immovable
property’.
Apart from the respondent’s bare assertion that the deceased bought the
property for her (which is difficult
to reconcile with the deceased’s
omission to either register the property in her name or to grant her membership
in the second
appellant or even to provide for her in his will), there are no
allegations of an intention to donate the property to her or grant
her lifelong
use thereof or transfer any rights whatsoever in relation to the property to
her. In the absence of such evidence the
court a quo erred, in my view,
in finding that the deceased ‘bound [the second appellant] to provide the
respondent with a home during
the subsistence of their customary marriage’
and that the second appellant consequently granted her a right of
‘usus’ or ’habitatio’ to endure for her
lifetime.
[15] It must be borne in mind that the effect of PIE is not to
expropriate the landowner and that it cannot be used to expropriate
someone
indirectly. The landowner retains the protection against arbitrary deprivation
of property under s 25 of the Bill of Rights.
PIE serves merely to delay or
suspend the exercise of the landowner’s full proprietary rights until a
determination has been
made whether it is just and equitable to evict the
unlawful occupier and under what conditions. Ndlovu v Ngcobo; Bekker
and another v Jika 2003 (1) SA 113 (SCA) para 17. In the light of the
aforegoing remarks, the court a quo erred in finding that a right to
occupy the property accrued as a result of the alleged customary marriage. The
respondent’s
occupation of the property has no legal basis and is, thus,
unlawful.
[16] As regards the declaratory order that was sought by the
appellants concerning the validity of the customary marriage, it is well
established that a court has a discretion to grant or to withhold declaratory
relief and that it will not deal with abstract, hypothetical
or academic
questions in proceedings for declaratory relief. The declaratory order that was
sought is superfluous to the appellant’s
claim for eviction and no proper
reason has been advanced for us to consider granting it.
[17] It now
remains to consider whether it would be just and equitable to grant an eviction
order. Sachs J, dealing with the concept
‘just and equitable’ in the
context of PIE in Port Elizabeth Municipality v Various Occupiers 2005
(1) SA 217 (CC), referred with approval to the comments of Horn AJ in Port
Elizabeth Municipality v Peoples Dialogue on Land and Shelter and Others
2000 (2) SA 1074 (SE) stating in para 33:
‘...[I]n matters brought
under PIE, one is dealing with two diametrically opposed fundamental interests.
On the one hand, there
is the traditional real right inherent in ownership,
reserving exclusive use and protection of property by the landowner. On the
other hand, there is the genuine despair of people in dire need of adequate
accommodation...It is the duty of the court, in applying
the requirements of the
Act, to balance these opposing interests and bring out a decision that is just
and equitable...The use of
the term ‘just and equitable’ relates to
both interests, that is, what is just and equitable not only to persons who
occupied the land illegally but to the landowner as well.’
The learned
judge continued at paras 36 and 37:
‘[36] The court is thus called upon
to go beyond its normal functions and to engage in active judicial management
according
to equitable principles of an ongoing, stressful and law-governed
social process. This has major implications for the manner in which
it must deal
with the issues before it, how it should approach questions of evidence, the
procedures it may adopt, the way in which
it exercises its powers and the orders
it might make. The Constitution and PIE require that, in addition to considering
the lawfulness
of the occupation, the court must have regard to the interests
and circumstances of the occupier and pay due regard to broader considerations
of fairness and other constitutional values, so as to produce a just and
equitable result.
[37] Thus, PIE expressly requires the court to infuse
elements of grace and compassion into the formal structures of the law. It is
called upon to balance competing interests in a principled way and to promote
the constitutional vision of a caring society based
on good neighbourliness and
shared concern. The Constitution and PIE confirm that we are not islands unto
ourselves. The spirit of
ubuntu, part of a deep cultural heritage of the
majority of the population, suffuses the whole constitutional order. It combines
individual
rights with a communitarian philosophy. It is a unifying motif of the
Bill of Rights, which is nothing if not a structured, institutionalised
and
operational declaration in our evolving new society of the need for human
interdependence, respect and concern.’
See also Land en
Landbouontwikkelingsbank van Suid-Afrika v Conradie 2005 (4) SA 506 (SCA) at
513C.
[18] The nature of the discretion which a court employs in this
exercise is described in the Bekker case (supra) where Harms JA held at
para 18:
‘The court, in determining whether or not to grant an order or
in determining the date on which the property has to be vacated
(s 4(8)), has to
exercise a discretion based upon what is just and equitable. The discretion is
one in the wide and not narrow sense
(cf Media Workers Association of South
Africa and others v Press Corporation of South Africa Ltd
(‘Perskor’) 1992 (4) SA 791 (A) at 800, Knox D’Arcy Ltd
and others v Jamieson and others 1996 (4) SA 348 (A) at 360G-362G). [Port
Elizabeth Municipality v Various Occupiers supra at para 31]. A court of
first instance, consequently, does not have a free hand to do whatever it wishes
to do and a Court of
appeal is not hamstrung by the traditional grounds of
whether the court exercised its discretion capriciously or upon a wrong
principle,
or that it did not bring its unbiased judgment to bear on the
question, or that it acted without substantial reasons.’
[19] Apart from relying on the alleged customary marriage, the only
averment made by the respondent to counter the eviction is that
she is a 59
year-old single woman. The appellants’ allegation that she has no
dependants was not placed in dispute. No suggestion
was made that she is
indigent. The contrary may, in fact, be inferred from her demand for
‘suitable and reasonable alternative
accommodation having regard to her
station in life’. As indicated above, the appellants tendered, even before
the eviction
proceedings were launched, to provide her with a two bedroomed
flat, in a local hotel owned by the estate. This offer was rejected
on the basis
that the flat was in a dilapidated condition. A similar offer of a
‘renovated’ flat was repeated during
the hearing in this court. It
was also rejected, out of hand. Whilst the value and financial status of the
estate (and the second
appellant) and whether it can continue with the bond
repayments is unknown, the respondent, except for a vague, unsubstantiated
contention
that the deceased was a wealthy man, bearing in mind that the entire
purchase price of the property was financed by a bank, did not
deny the
appellants’ allegations that the debt exceeds the current market value of
the property and that such repayments are
prejudicing the estate. Her concession
that she cannot occupy the property indefinitely seems to support these
allegations.
[20] It is clear that she is not in dire need of
accommodation and does not belong to the poor and vulnerable class of persons
whose
protection was obviously foremost in the Legislature’s mind when it
enacted PIE. To my mind, her situation is essentially no
different from that of
the ‘affluent tenant’ occupying luxurious premises, who is holding
over, discussed in the Bekker case (para 17), in respect of whom the
court held that the ‘relevant circumstances’ prescribed in s 4(7) of
PIE do not
arise ‘save that the applicant is the owner, that the lease has
come to an end and that the tenant is holding over’.
[21] For all
the above reasons, it seems to me that it would be just and equitable to grant
the eviction order. Having said that,
it must be emphasized that if the
respondent is able to establish that she was indeed married to the deceased by
customary law, that
fact would be a valid basis for a maintenance claim against
the estate. In that case, even if the estate, through the executor, has
evinced
a negative attitude towards her intended maintenance claim, nothing precludes
her from pursuing this option in an appropriate
forum. It seems proper, in all
the circumstances, to allow her to remain on the property for a reasonable
period whilst she pursues
such a claim, should she so wish. It appears to me,
due regard being had to the estate’s tender to provide her with
refurbished
accommodation (for life if it was found that she was married to the
deceased, or for six months to a year if it was found there was
no marriage) and
the expense that it would incur towards that end, that the estate would not be
unduly prejudiced by such an order.
[22] As counsel correctly submitted,
it seems fair in all the circumstances of the case that the estate should bear
the costs of the
proceedings. I am further satisfied, and counsel did not
contend otherwise, that the employment of two counsel was warranted.
[23] In the result I make the following order:
23.1 The appeal
against the court a quo’s refusal of the eviction order succeeds
and the appeal against the refusal of the declaratory order sought is dismissed,
with
costs, such costs to include the costs of two counsel, to be borne by the
estate of the late Burton Baltimore Zitha Baduza and his
surviving spouse, Norah
Khupela Baduza.
23.2 The order of the court a quo is set aside and
the respondent is ordered to vacate Erf 2989 situate at 44 Longview Crescent,
Queenstown within 12 months of the
date of this order, failing which the Sheriff
for the district of Albany is authorized to remove her and all persons under her
control,
together with their possessions, from the said property on 30 September
2006.
____________________
MML MAYA
ACTING JUDGE OF APPEAL
Concur: Mpati DP
Zulman JA
Nugent JA
COMBRINCK AJA:
[24] I agree that the appeal must succeed and that the eviction order in the
form set out in the judgment of Maya AJA should issue. I have however
followed a different route in coming to the same conclusion. Because of the
approach I have adopted adjudication on the appeal against the refusal of the
declaratory order contained in paragraph 3 of the Notice of Motion will of
necessity result.
[25] In the Court a quo
Chetty J came to the conclusion that the respondent was not an unlawful
occupier. He based his conclusion on the following findings:
(a) that
factually the respondent had entered into a customary marriage with the
deceased;
(b) that that marriage had been concluded in accordance with
customary law in that all the requirements for a union in accordance
with that
system of law had been complied with;
(c) that customary law had to be
applied when determining the rights of the wife to matrimonial assets on the
death of her husband;
(d) that in terms of customary law the widow enjoys a
type of personal servitude of usus or habitatio in respect of the
residence which her husband allowed her to occupy during the subsistence of the
union;
(e) that the fact that the marriage was not registered in terms of the
Transkei Marriage Act did not invalidate it.
[26] Accepting
without deciding that the learned Judge was correct in his findings in respect
of (a), (b), (c) and (d) above, if he was
wrong in respect of (e) – the
validity of the marriage despite non-registration – and the marriage was
indeed invalid,
then the source of the respondent’s rights to occupation
falls away and she must be regarded as an unlawful
occupier.
[27] There are two conflicting decisions in the Transkei
as to whether registration under the Transkei Marriage Act is a prerequisite to
validity of a customary marriage. The one is Kwitshane v Magalela 1999
(4) SA 610 (Tk) and the other a judgment of Jafta AJP in Shwalakhe Sokhewu
and Another v Minister of Police (unreported-Transkei Division case number
293/94). In the former case it was held that registration was essential to a
valid customary
marriage whereas the latter decided the contrary. The court a
quo considered both judgments and concluded that Kwitshane had been
wrongly decided and, that the Sokhewu’s judgment was correct and
should be followed.
[28] Because the sections of the Transkei
Marriage Act (Act 21 of 1978) which I consider are decisive of the issue were
not considered
in the two cases referred to I do not intend analyzing each of
them and dealing with the reasons given by the learned Judges as to
why they
came to their respective conclusions.
[29] Section 33 of the
Marriage Act is the section which requires that a customary marriage be
registered. It reads thus:
‘The parties to a customary marriage and the
father or guardian of any such party who is under the age of twenty-one years
shall
as soon as possible after the consummation of such customary marriage
appear before the magistrate of the district in which such
customary marriage
was consummated and furnish to such magistrate such information as may be
required by him for the registration
of such customary
marriage.’
[30] A civil marriage is also required to be
registered in terms of the aforesaid Act. The relevant sections are secs 25 and
26. Section
25 reads as follows:
‘A marriage officer solemnizing any
civil marriage in terms of the provisions of this Act, the parties to such civil
marriage
and at least two competent witnesses shall sign the civil marriage
register and the duplicates referred to in section 24(b) before
they leave the
premises where the civil marriage was
solemnized.’
[31] Crucial to the determination of the
central issue of the effect of registration is to contrast the sections dealing
with objections
to a marriage in terms of civil law and objections in the case
of customary marriage.
Section 12 deals with objections to a civil marriage.
The section reads:
‘(1) Any person who objects to a proposed civil
marriage shall lodge his objection with the marriage officer who is to solemnize
such marriage.
(2) Upon receipt of such objection the marriage officer
concerned shall enquire into the grounds of the objection and if he is satisfied
that there is no lawful impediment to the proposed civil marriage, he may
solemnize the civil marriage in accordance with the provisions
of this
Act.
(3) If he is not so satisfied, the marriage officer shall refuse to
solemnize the civil marriage.’
Hence objections have first to be dealt
with and disposed of before the ceremony or solemnization which brings about
validity of the
marriage.
[32] If one now looks at the
corresponding section dealing with objections to a customary marriage one finds
the following in section 36:
‘(1) Any person who objects to the
registration of a customary marriage shall personally or through his legal
representative
lodge his objection with the magistrate who is to register such
customary marriage.
(2) Upon receipt of such objection the magistrate shall
enquire into the grounds of the objection and if he is satisfied that in terms
of the customary law applicable to such customary marriage or any other law
there is no lawful impediment to such customary marriage,
he may register the
customary marriage when the parties thereto report to him for the registration
thereof in terms of section 33.
(3) If he is not so satisfied, he shall
refuse to register the customary marriage when the parties report to him for the
registration
thereof in terms of section 33.’
Subsections 5 and 6 then
provide for an appeal against the decision of the magistrate if he were to
refuse to register a marriage.
The appeal is to the Secretary for Interior and
Social Services and his decision is to be regarded as
final.
[33] The last mentioned section makes it in my view
abundantly clear that there can be no valid marriage until registration takes
place.
It would make no sense for a marriage to be regarded as valid before
registration and then upon registration being sought the magistrate
finds that
there was indeed a lawful impediment to the conclusion of the marriage. Must the
parties now go through the procedure
of having the marriage annulled or
dissolved by a court? Assume by way of example that a customary marriage takes
place between parties
who are related within the prohibited degrees of
consanguinity or one or both of them is (are) under age or one or both is (are)
feeble-minded. If registration were not a prerequisite for validity it would
matter not that objection is lodged because even if
good the marriage remains
valid until annulled. This can surely not be so. It seems to me to be clear that
as in the case of civil
marriages, objections must first be disposed of before
registration which then brings about validity.
[34] It is perhaps
because there is no marriage officer presiding at the conclusion of a customary
marriage to whom objections can be made
prior to such conclusion that the
Legislature deemed it expedient to require registration so that a magistrate may
deal with any
objections to the proposed marriage.
[35] Further
support for the interpretation above is in my view to be found in sec 37 of the
Act under the chapter dealing with ‘Consequences
of marriage’. The
section reads thus:
‘Notwithstanding anything to the contrary contained
in any law, a woman married in terms of the provisions of this Act shall
–
(a) in the case of a civil marriage, upon the solemnization thereof,
and
(b) in the case of a customary marriage, upon the registration thereof in
terms of the provisions of Part 2 of Chapter 3,
be under the guardianship of
her husband, for the duration of such marriage.’
This seems to me to
indicate that the legal consequences of a customary marriage will only flow
after registration thereof.
[36] I conclude therefore that the
respondent’s marriage to the deceased was invalid in that it was not
registered in accordance
with the provisions of the Transkei Marriage Act. She
is therefore an unlawful occupier. It further follows that the conclusion I
have
reached also resolves the issue of the declaratory order sought in para 3 of the
Notice of Motion. For the reasons given above
the declaratory order should have
been granted by the Court a quo.
[37] In conclusion I need
to mention that sec 4(9) of the Recognition of Customary Marriages Act (Act 120
of 1998) provides that registration
of a customary marriage is not essential to
its validity. Counsel were however (correctly in my view) agreed that the Act
only applies
to marriages concluded after the 15th November 2000 (the
commencement date of the Act).
[38] In addition to the order
proposed by Maya AJA I would allow the appeal against the refusal of the order
sought in para 3 of the Notice
of Motion and substitute an order granting the
order sought.
__________________________
P C COMBRINCK
ACTING
JUDGE OF APPEAL
SAFLII:
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