Manse v Forensic Department of Health Germiston and Another (23299/19) [2019] ZAGPJHC 367 (4 July 2019)

REPUBLIC

OF SOUTH AFRICA

IN THE HIGH COURT OF

SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 23299/19

In the matter between:

ULRIKE MANSE Applicant

and

FORENSIC

DEPARTMENT OF HEALTH 1ST Respondent

GERMISTON

GLADNESS

MAKHOSAZANA LEBOGO 2nd Respondent

J U D G M E N T

MABESELE, J:

I. Introduction

[1] This matter came before me on an urgent basis for an order to declare the Applicant to be the customary wife of the late Desmond Dada and to give the Applicant the right to bury the deceased in the manner that she deems appropriate. The matter was opposed.

[2] After I engaged both counsel and considered the arguments and the submissions made by them, I granted the order in favour of the Applicant and reserved the reasons. I now provide the reasons.

II. Background

[3] The Applicant began a romantic relationship with the deceased in October 2007. In December 2007 both the Applicant and deceased moved to Reiger Park in Boksburg and later moved to Windmill Park.

[4] In 2010 the deceased expressed his wish to formalise his relationship with the Applicant. To that effect the deceased sent his uncles and aunt to the family of the Applicant to negotiate lobolo and marriage on his behalf. At the meeting both the families of the Applicant and deceased agreed on the amount of R30 000 lobolo, which was paid over to the family of the Applicant. Subsequently both families gave the Applicant and deceased permission to live together as husband and wife.

[5] The reason for the deceased to mandate his aunt and uncles to negotiate lobolo on his behalf was that his father was late and his mother was unwilling to participate in the negotiations and accept the Applicant as her makoti or ngwetsi for reasons only known to her.

[6] Sadly, on the 16th June 2019, the deceased was shot and killed when he was robbed of his motor vehicle. He left behind the Applicant and three minor children.

III. The case for the Applicant.

[7] The Applicant was above the age of 18 years when lobolo and marriage was negotiated by her family and the family of the deceased.

She consented to the marriage. Her argument was that since lobolo was paid in full and both families blessed the marriage

between the deceased and her after the mother of the deceased refused to participate in the negotiations, she had satisfied the

requirements of Section 3(1) (b) of the Recognition of Customary Marriages[1].

IV. The case for the second Respondent.

[8] In contrast to the Applicant’s case, the second Respondent, being the mother of the deceased, argued that the marriage between the Applicant and deceased fell short of the requirements of customary marriage in terms of the law which require, amongst others, family participation, lobolo agreement and integration of the bride into the husband’s family (handing over of makoti to the husband’s family). She argued that she never participated in the negotiations, neither did she receive the Applicant as her makoti. Therefore, she should be permitted to bury the deceased as there was no valid customary marriage between the Applicant and deceased. She conceded that she was not in good terms with the Applicant before the lobolo and marriage of these two parties were negotiated.

V. The requirements for validity of customary marriage.

[9] Section 3(1) (b) provides as follows:

‘(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’.

[10] Both parties agreed that the provisions of section 3(1) (a) were complied with by the Applicant. The issue was whether section 3(1) (b) was complied with.

[11] Section 3(1) (b), in my view, should be understood in the context of the origin and development[2] of customary marriages. This will also address the concerns raised by Matlapeng AJ, in his well-reasoned judgement of Motsoatsoa v Roro[3] that section 3(1) (b) is vague as it does not specify the actual requirements for a valid customary marriage. Matlapeng argues

that section 3 (1) (b), simple as it may sound, creates serious problems regarding how to ascertain the applicable customary law.

He argues that the problem is compounded by the fact that some customary and cultural practices among the indigenous people are not homogenous.

[12] Contrary to Matlapeng’s argument, section 3(1) (b), as correctly argued in Mohau Moropane V Elizabeth Southon,[4] is clear and unambiguous. This will also be demonstrated in this judgement.

VI. The origin of customary marriages

[13] Customary marriage has always been a relationship between the families of the bride and bridegroom. In the Basotho tribe, the man expressed his intention to marry by deliberately neglecting to milk the cattle in the morning[5]. After his parents had noticed that incident the man would suggest to them the woman he wanted to marry. Depending on the discussions, the parents, particularly the mother, may suggest another woman. After the conclusion was reached the parents would then send delegation to the family of the woman to inform them of the intended visit to them by the man’s family to negotiate lobolo[6]. Once the date on which these two families agreed upon had been set, the man’s father would then make herd of cattle available as lobolo. Once the two families have agreed on the amount of cattle to be paid as lobolo, the cattle would be delivered to the woman’s family[7], followed by celebration which included slaughtering an animal which was shared between the two families to signify the new union between the families.[8] In other tribes this procedure signified also, the release of the woman to the man’s family[9]. That is why some families preferred taking the woman (ngwetsi) with them when they returned home after celebration[10] which was preceded by coaching or counselling[11]. In such instances the woman was accompanied by her family members to spend a day or two with her at her husband’s family. The other tribes on the other hand preferred to formally and physically hand over the woman to the family of the man.

[14] The woman belonged to the man’s family on the grounds that the family and not the man, paid lobolo for her. It was for that reason that the man could not divorce his wife. Upon the death of the man his family organised another man for her in that family[12]. As a result there were no widows in customary marriages.

VII. The development of customary marriages

[15] Due to growth of industries in the urban areas, some people in the rural communities migrated with their children to the urban areas for employment opportunities and better lives. On arrival, some young men and women secured employment and subsequently became financially independent. This change in status of the young men had a significant impact on customary marriages in that young men began to pay lobolo for the women of their choice, thus creating conflict between some young men and their mothers who were reluctant to recognise their son’s wives as their daughters,[13] simply because the mothers no longer had a say in the marriages of their sons. This change in status of the young men brought about the concept of divorce in the customary marriages because marriage was no longer in control of parents. In addition, the woman was free to re-marry upon the death of her husband.

VIII. The present matter

[16] In this matter the deceased sent his uncles (brothers of the second Respondent) to negotiate lobolo and marriage on his behalf because the second Respondent would not welcome the Applicant as ngwetsi. Clearly, the intention of the second Respondent initially was to frustrate the marriage of the Applicant and deceased by refusing to recognise the Applicant as ngwetsi. After her intention became unsuccessful, she subsequently opposed the application by the Applicant to bury the deceased on the basis that section 3(1) (b) was not complied with, particularly the requirement of formal handing over of the Applicant to her, as the mother of the deceased. Is this not an abuse of section 3(1) (b) by the second Respondent?

IX. Explanation of section 3(1) (b)

[17] Section 3(1) (b) provides that ‘the marriage must be negotiated and entered into or celebrated in accordance with customary law’. This simply means that (i) ‘the marriage must be negotiated and entered into’ or (ii) ‘the marriage must be negotiated and celebrated in accordance with customary law’.

The difference between (i) and (ii) is that the marriage in (i) can be concluded without celebration in accordance with customary law whereas (ii) requires conclusion of marriage and celebration which include handing over of the bride to the family of man. To my understanding, parties may follow either (i) or (ii) depending on the circumstances they find themselves in .

X. The reasons for granting the order

[18] The families of the deceased and Applicant negotiated lobolo and marriage of the deceased and Applicant. During the negotiations an amount of R30 000 which was agreed upon between the parties as lobolo was paid to the family of the Applicant. After both families were satisfied with negotiations they gave permission to the Applicant and deceased to live together as husband and wife rather than cohabit, thus concluding marriage in terms of (i) above. Clearly, the Applicant and the deceased would not conclude their marriage in terms of (ii) above simply because the second Respondent would not acknowledge the Applicant as ngwetsi as she refused to participate in the lobolo negotiations without sound reasons. Clearly, she could not be forced to participate in the negotiations. In the same breath she cannot be allowed to frustrate the applicant on the basis that the requirement of hand over was not met.

XII. Conclusion

[19] It should be emphasised that (i) above is significant in that it also accommodates the divorcees and widows who are keen to be re-married. If they are compelled to follow (ii) they will be expected to be handed over to their men’s families. To my knowledge, a woman cannot be handed over more than once, in African culture, especially after she had already conducted marriage of her daughters and welcomed into her family women from other families as her daughters or dingwetsi.

[20] It was stated earlier that customary marriage in the past protected women from divorce and becoming widows. Since this is no longer the position, to deny them and young men whose partners are not being recognised in their families as dingwetsi as in the present matter, the right to marry on the basis that the requirement of ‘hand over’ was not met, would result in an abuse of section 3(1) (b) and importantly, deny them their rights to establish families.

_________

M.M MABESELE

(Judge of the Gauteng Local Division)

Date of hearing : 4 July 2019

Date judgement : 4 July 2019

For the Applicant : Adv Makakaba

Instructed by

: Tlaka Attorney

For the respondent : Details not provided

Instructed by

: Chuene Attorneys

[1] Act 120 of 1998.

[2] Emphasis added

[3] 2010 JDR 1392 (GSJ).

[4] (755/2012) [2014] ZASCA 76 (29 May 2014).

[5] ho raha moritshwana

[6] Ho kopa mohope wa metsi

[7] hence the phrase: ‘mosadi wa dikgomo tsa ntate’

[8] see, Mohau Moropane, supra

[9] handing over of the bride to the man’s family

[10] Emphasis added

[11] ho lauwa

[12] hence the idiom: ‘ngwetsi e shwela bohading’

[13] Dingwetsi