South Africa: North West High Court, Mafikeng

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Makume v Director General of the Department of Home Affairs and Others (1622/2019B) [2019] ZANWHC 49 (29 August 2019)

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IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO: 1622/2019B

In the matter between:

VUYELWA JOSEPHINE MAKUME Plaintiff

and

THE DIRECTOR GENERAL OF THE 1^st Defendant

DEPARTMENT OF HOME AFFAIRS

THE MASTER OF THE HIGH COURT, 2^nd Defendant

NORTH WEST HIGH COURT

NTSIKELELO MABUDA 3^rd Defendant

ANSTELLE TRUSTEES CC 4^th Defendant

DATE OF HEARING : 08 AUGUST 2019

DATE OF JUDGMENT : 29 AUGUST 2019

FOR THE APPLICANT : ADV. STANDER

FOR THE RESPONDENTS : NO APPEARANCE

ORDER

That: 1. Vuyelwa Josephine Makume (Plaintiff), ID nr. 801[…] is validly married to Sipho Gift Mabuda, ID nr. 670[…], according to customary law on the 24^th December 2016 at Adamay View, Klerksdorp.

That: 2. The Director General of the Department of Home Affairs (first Defendant) is ordered to register the marriage of Vuyelwa Josephine Makume ID nr. 801[…] and Sipho Gift Mabuda ID nr. 670[…] in the records of the Department of Home Affairs and issue an appropriate marriage certificate.

JUDGMENT

HENDRICKS ADJP

Introduction

[1] Vuyelwa Josephine Makume (the plaintiff) issued summons against the Director General of the Department of Home Affairs (1^st defendant) for the legalization of her customary marriage. The Master of the North West High Court (2^nd defendant); Ntsikelelo Mabuda (3^rd respondent) and Anstelle Trustees CC (4^th defendant) are cited as interested parties. The summons were duly served on the defendants on the 30^th May 2019. No notice of intention to defend was filed by any of the defendants. After the expiry of the dies, the matter was enrolled and set down on the unopposed motion court roll of the 08^th August 2019. Evidence was led by three witnesses in order to prove plaintiff’s claim that she was customarily married.

The Evidence

[2] The plaintiff testified that she is a Basotho national. She was in a relationship with Sipho Gift Mabuda and that they lived together as husband and wife. Sipho was a Xhosa. They decided to formalize their relationship and get married in terms of customary law. On 24^th December 2016, she and her family were at home. Sipho’s family arrived at their house. She was in her bedroom whilst they were in the lounge. They paid lobola. The lobola negotiations were recorded in writing. Her mother called her and said that they were finish with the lobola negotiations and that she should go to the lounge and greed the Mabuda family members. The Mabuda family members confirmed that they had paid lobola. A feast was held and a sheep was slaughtered. She was formally introduced and handed over to the Mabuda family. In terms of their tradition, she should also be introduced to the ancestors of the Mabuda family.

[3] The Mabuda family asked her to go with them. This request was made by Meshack Mabuda. Her grandmother, Mrs. Sarah Lefoka, was also present. The plaintiff was wearing her traditional clothes including a dress called ‘shweshwe’, to show respect. Late that afternoon, she and her family went to the house of the Mabuda family. They drove in two motor vehicles to the Mabuda family residence.

[4] Upon their arrival at the Mabuda family residence, she and her family alighted from their motor vehicles. They were dancing, singing and were very happy. The Mabuda’s were singing their own song. The gates were opened and they all went inside the premises and sang one song. She and her family entered into the lounge. Sipho and his family were present in the lounge. The Mabuda family requested to give her other clothes. These were Xhosa traditional clothes and consist of inter alia a Xhosa dress called ‘mbaqo’. She changed clothes. A meeting was held in which Sipho was also included. She was given a new name, namely ‘Nosekhele’ meaning that she was there to build that family. The elderly ladies of both families gave them a lecture.

[5] Her family told Sipho’s family that as from that day they brought this child referring to her, to that family. The Mabuda family welcomed her and a pronouncement of marriage ‘go gorosa ngwetsi’ was made. A feast was then held. Another sheep was slaughtered as an indication that they are welcoming her into the Mabuda family. This sheep was shared half (½) – half (½) between the two families.

[6] Mrs. Sarah Lefuka testified that she is a member of the Makume family. She was present during the proceedings of the customary marriage on 24^th December 2016. She also participated. The people who were present are those mentioned on the marriage document, which recorded the lobola negotiations and that lobola was paid. The plaintiff was in the bedroom during the lobola negotiations. She came to the lounge after the payment of lobola. A sheep was slaughtered and a feast was held. Around 17H00 that afternoon, the plaintiff was taken and delivered to the Mabuda family.

[7] She testified that there was a lot of singing and jubiliation. The plaintiff was dressed in ‘seshweshwe’ the Basotho way. After she was received by the Mabuda family, she put on the ‘mbaqo’, to be dressed the Xhosa way. They were handing over their daughter to the Mabuda family. The lecturing then took place and the plaintiff was told that she is no longer a daughter, but a wife. The members of both families lectured them. Esie Tshetlhe as well as Sipho Mabuda were present. A feast was held. They were now married. ‘Go gorosa ngwetsi’ (marriage) was pronounced and a sheep was slaughtered.

[8] Mrs. Jane Mtshaulana, the eldest sister to Sipho Mabuda testified as a Mabuda family member. She was present at their homestead preparing food for the feast. She confirmed that the plaintiff and Sipho Mabuda were customarily married in terms of their tradition on the 24^th day of December 2016. The aforementioned evidence was presented in order to prove that there was compliance with the prescripts of the Recognition of Customary Marriages Act 120 of 1998. This Court need to determine whether, on the evidence presented, a valid customary marriage came into existence.

The Law

[9] The preamble of the Recognition of Customary Marriages Act 120 of 1998 reads thus:

“To make provision for the recognition of customary marriages, to specify the requirements for a valid customary marriage, to regulate the registration of customary marriages….”

Section 3(1) of the Recognition of Customary Marriages Act 120 of 1998 deals with the requirements for validity of a customary marriage and provides:

“For a customary marriage entered into after the commencement of this Act to be valid- 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”

In terms of section 4 (7) (a) of the Recognition of Customary Marriage Act 1998, the following is stated:

“4. (7)(a) a court may, upon application made to that court and upon investigation instituted by that court, order-

(a) the registration of any customary marriage; …”

[10] The requirements of a customary marriage have been set out by Olivier, Bekker and Others in their work Indigenous Law (LexisNexis) as:

“ i a consensual agreement between two (2) family groups with respect to the two individuals who are to be married and the lobolo to be paid;

ii. the transfer of the bride by her family group to the family of the man.”

[11] In Fanti v Boto and Others 2008 (5) SA 405 (C) at paragraph [22] it was held that:

“….. all authorities are in agreement that a valid customary only comes about when the girl (in this case the deceased) has been formerly transferred or handed over to her husband or his family. Once that is done severance of ties between her and her family happens. Her acceptance by the groom’s husband and her incorporation into his family is ordinarily accompanied by well-known extensive ritual and ceremonies involving both families”

[12] In the matter of Motsoatsoa v Roro and Others (46316/09) [2010] ZAGPJHC 122; [2011] 2 ALL SA 324 (GSJ) at paragraph [17] Matlapeng AJ, stated as follows:

“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).”

[13] Furthermore, in Motsoatsoa v Roro and Others, supra, at paragraph [19] and [20] it was held that:

“[19] One of the crucial elements of a customary marriage is the handing over of the bride by her family to her new family namely that of the groom. As the man’s family gained a daughter through the marriage, from her family, the bride is invariably handed over to him at his family’s residence. Handing over of the bride (go gorosa ngwetsi(Tswana)/ ukusiwa ko makoti e mzini e hamba noduli (Xhosa)) is not only about celebration with the attendant feast and rituals. It encompasses the most important aspect associated with married state namely go laya/ukuyala/ukulaya in vernacular. There is no English equivalent of this word or process but loosely translated it implies “coaching” which includes the education and counselling both the bride and groom by the elders of their rights, duties and obligations which a married state imposes on them. This is the most important and final step in the chain of events and happens in the presence of both the bride and the groom’s families. One can describe this as the official seal in the African context, of the customary marriage.

[20] The handing over of the bride is what distinguishes mere cohabitation from marriage. Until the bride has formally and officially handed over to the groom’s people there can be no valid customary marriage. T. W. Bennet, Customary Law in South Africa 18^th Edition states at 217 that:

“Hence, when the Recognition of Customary Marriages Act provides that, in order to qualify as customary, a marriage must be ‘negotiated and entered into or celebrated in accordance with customary law’, the form of negotiations, the handing over of a bride and the wedding are all relevant to giving the union the character of a customary marriage. It may then be distinguished, on the one hand, from an informal partnership and, on the other, from a marriage according to other cultural or religious traditions. In terms of practised or living customary law the bride cannot hand herself over to the groom’s family. She has to be accompanied by relatives.”

(emphasis added)

Conclusion

[14] The plaintiff bears the onus to prove that a valid customary marriage between her and the Sipho Mabuda was concluded. Having regard to the evidence presented by the plaintiff, Mrs. Lefuka and Mrs. Matshaulana, I am satisfied that all the requirements for a valid customary marriage had been met. The formal handing over of the plaintiff as a bride to the Makume family “as the most important and final step in the chain of events”, did take place. To reiterate, it is apparent from the aforementioned authorities that a customary marriage was concluded, as “the most important and final step in the chain of events and happens in the presence of both the bride and the groom’s families. One can describe this as the official seal in the African context, of the customary marriage.”

See: Motsotsoa vs Roro, supra.

Order

[15] Consequently, the following order is made:

That: 1. Vuyelwa Josephine Makume, (Plaintiff), ID nr. 801[…] is validly married to Sipho Gift Mabuda, ID nr. 670[…], according to customary law on the 24^th December 2016 at Adamay View, Klerksdorp.

_______________

R D HENDRICKS

ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG