Mkhonta v Minister of Home Affairs and Others (539/2023) [2023] ZAMPMBHC 48 (11 August 2023)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH

AFRICA

IN THE HIGH COURT OF

SOUTH AFRICA

(MPUMALANGA DIVISION, MBOMBELA)

CASE NO: 539/2023

(1) REPORTABLE:NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: YES

SIGNATURE

DATE:11/08/2023

In the matter between:

NELISIWE

HLENGIWE LINDIWE MKHONTA

APPLICANT

and

THE

MINISTER OF HOME AFFAIRS

1ST RESPONDENT

THE MASTER OF THE HIGH COURT (MBOMBELA)

2ND RESPONDENT

ABEL

ANDRIES

MADONSELA

3RD RESPONDENT

JUDGMENT

GUMEDE AJ

1. Applicant seeks an order, declaring that the customary marriage she entered into on 2 September 2017 with one Bongani Ephraim Madonsela who is now deceased (“the deceased”), is valid in terms of section 2 of the Recognition of Customary Marriages Act (“The Act”), as well as an order directing that the said marriage be registered by the Department of Home Affairs.

2. Applicant also seeks an order directing the Master of the High Court, Mbombela, to issue her with a letter of executorship in respect of the deceased estate.

3. The application is opposed by the third respondent, Mr Abel Andries Madonsela who is the father of the deceased.

4. Applicant contends that she is the customary wife of the deceased. She alleges that the customary marriage was concluded on 2 September 2017, when the deceased family, the Madonsela family went to her parental home in Swaziland to ask for her hand in marriage in terms of culture. According to her, lobola was negotiated and agreed by both families on that day. A lobola letter is attached to the papers together with a confirmatory affidavit of one Sizwe Silinda who was part of the delegation of the Madonsela family.

5. Applicant alleges that after the lobola negotiations, both families headed to her husband’s home in Barberton where they celebrated her hand over to the Madonsela family.

6. The third respondent denies that a valid customary marriage was concluded between the applicant and the deceased. Her avers that the marriage was not celebrated in terms of custom as required in terms of section 3 of the Act and contends that the following important customs were not complied with:

a. He alleges that in order to establish a relationship between two families, a written letter must be dispatched by the groom’s family to the bride’s family, to serve as proof of the proposal to form a relationship. The bride’s family would then indicate their acceptance. According to him, applicant failed to provide proof that a written letter was sent to her family and/or how such a letter was sent;

b. He contends that lobolo negotiations must be preceded by certain steps prescribed in terms of the Swazi custom and there was no observance of those cultural practice. According to him, the letter attached by the applicant to the founding affidavit does not resemble a standard letter of lobolo and the information contained in it is not sufficient as it does not indicate that gifts, such as snuff and blankets, were exchanged. He further alleges that a lobolo letter must be signed by the negotiators and points out that the letter attached by the applicant in the papers was signed by one person only.

c. He contends that in terms of Swazi culture, the father of the bride does not participate in the lobolo negotiations and points out that the lobolo letter attached to the papers bears a name of EB Mkhonta who is said to be the father of the bride.

d. He then concludes that the Swazi culture was not observed and therefore the alleged marriage was not celebrated in terms of custom as required by the Act.

e. He denies that there was a handover of the bride and also denies that there were celebrations in that regard. He alleges that such celebrations and festivities would normally be recorded and applicant has not provided any evidence in that respect.

f. He alleges that there was no observance of custom called “insula nyembeti “which according to him, refers to a cow given to bride’s mother and “lugege” a cow slaughtered and divided into halves and equally shared among the bride’s and groom’s families.

g. He alleges that the applicant and his deceased son were involved in a cohabitative relationship without a marriage.

h. He alleges that at the time of the deceased passing, the deceased was not staying with the applicant and was involved in a fatal car accident, whilst driving a car belonging to another woman, named Prudence Mkhabela. He alleges that the deceased was romantically involved with Prudence Mkhabela and staying with her in Witbank,.

7. For a customary marriage to be valid, section 3 of the Act requires that the prospective spouses must be above 18 years of age, they must consent to marry each other in terms of custom and that the marriage must be negotiated and entered into or celebrated in accordance with customary law.

8. According to the applicant all the three requirements set out in the Act were complied with. The third respondent denies that a valid marriage was concluded as according to him, the marriage was not negotiated and entered into or celebrated in accordance with customary law.

9. The applicant submitted that in the case of Mbungela and Another v Mkabi and Others[1], the Supreme Court of Appeal held that s 3(1)(b) does not stipulate the requirements of customary law which must be met to validate a customary marriage. The SCA confirmed that it is established that customary law is a dynamic, flexible system, which continuously

evolves within the context of its values and norms, consistently with the Constitution, so as to meet the changing needs of the people who live by its norm. She submits that the “requirements” which have been put up by the third respondent are not legislative requirements and need not be met for the customary marriage to be valid.

10. Although it may be true that the requirements as argued for by the third respondent are not strictly required for a valid marriage in terms of the Swazi culture, neither the applicant nor the third respondent claimed to be experts in the Swazi culture. Their evidence as reflected in their respective affidavits, is not corroborated by anyone. This court is therefore unable to make a final determination on the papers without more, whether the requirements which the third respondent alleges are crucial for the Swazi marriage, fall under the category that the SCA referred to as flexible and need not be observed.

11. At the hearing of this matter, the third respondent invited the applicant to refer the matter to oral evidence. The applicant declined that invitation. It follows therefore that the normal principles to resolve factual disputes in motion proceedings where final relief is sought, apply.

12. On the question of the letter of executorship, although it is the prerogative of the Master of the High Court to appoint an executor of the deceased estate, without a will or a marriage certificate, the Master has already indicated its discomfort to appoint the applicant for this purpose. The applicant has turned to this court for an order to direct the Mater of the High Court to issue the letter of executorship.

13. It is undisputed that the applicant is the biological mother and a natural guardian of two of the deceased’ six children. The applicant was also an officer of the deceased registered company called, Vuletjeni Trading and Project Pty (Ltd) and held a position of human resource manager. It is also undisputed that following the death of the deceased, applicant spent an amount of R162 000 in order to pay the salaries of the employees of the deceased company, albeit, that the third respondent points out that this amount was paid out from the deceased life insurance proceeds that were paid to the applicant. During argument, Counsel for the third respondent conceded that this has no bearing on the issues at hand as the insurance proceeds were for the

applicant to use as she deems fit.

14. I am therefore satisfied that the applicant has sufficient interest in the administration of the deceased estate, both as the mother and the officer in the deceased business. At the hearing of this matter, Counsel for the third respondent submitted that if this court is inclined to direct the Master to appoint the applicant as an executor, the brother of the deceased should be appointed as a joint executor. The difficulty with this suggestion is that the brother of the deceased is not a party to this litigation. There is no application before me for his appointment or joint appointment. This court does not have any information on how such an appointment will assist the administration of the deceased estate.

15. In the premises, I make the following order:

1. The application to declare the customary marriage entered into between the applicant, Nelisiwe Hlengiwe Lindiwe Mkhonta and Bongani Ephraim Madonsela valid in terms of section 2 of the Recognition of Customary Marriages Act 120 of 1998, is dismissed with costs.

2. The Master of the High Court, Mbombela is ordered to issue a letter of executorship to Nelisiwe Hlengiwe Lindiwe Mkhonta or any person nominated by her, upon submission of all prescribed forms and documents in respect of the deceased estate of the late Bongani Ephraim Madonsela with identity number 8[...].

Z GUMEDE

ACTING

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

MPUMALANGA DIVISION,

MBOMBELA

This judgment was handed down electronically by circulation to the parties and/or parties’ representatives by email. The date and time for hand-down is deemed to be 11 August 2023 at 10:00.

APPEARANCES

For the applicant: Mr MM Labe Instructed by: MM Labe Attorneys, Mbombela For the Respondent : Ms S Nkosi Instructed by: Nkhwashu Magagula Attorneys, Barberton Date of hearing: 25 May 2023 Date of judgment: 11 August 2023

[1] 2020 (1) SA 41 (SCA)