Nkwanyana and Others v Mbambo and Others (5756/2005) [2007] ZAKZHC 32; [2008] 1 All SA 375 (D) (9 November 2007)

30

IN

THE HIGH COURT OF SOUTH AFRICA

(DURBAN & COAST LOCAL DIVISION)

CASE NO: 5756/2005

In the matter between:-

ELIZABETH NKWANYANA First Applicant

THABISO RODGERS DLAMINI Second Applicant

ZULUNGILE LUCILLE NDLOVU Third Applicant

MARIA MNQAYI Fourth Applicant

and

THOBILE ALICE MBAMBO First Respondent

UNILEVER SA (PTY) LTD t/a LEVER PONDS Second Respondent

THE

REGIONAL REPRESENTATIVE

DEPARTMENT OF HOME AFFAIRS Third Respondent

­­­­­­­­­­­­­­­­

JUDGMENT

­­­­­­­­­­­­­­

ROWAN AJ

[1] This matter was referred, on the 20th February 2006, for the hearing of oral evidence on the question of “whether or not the marriage between the First Respondent and the deceased that was solemnized on the 19th of January 2005 was properly conducted”.

[2] After evidence and argument had been disposed of on this issue, it was agreed following discussion between the Bar and the Bench, that I postpone the handing down of judgment in this matter until after the parties had had an opportunity to fully explore settlement.

Unfortunately settlement discussions have come to nought and I have now been asked to deliver my judgment.

[3] The first applicant in this matter is the mother of the deceased, one Hamilton, The first respondent is the woman against whom the application is directed. She claims to have married the deceased on 19th January 2005 in a ceremony conducted sometime shortly after 6 a.m. on that day, at the deceased's home by one Reverend Mbatha, a duly appointed marriage officer.

The relief sought in the event of a determination of the above issue in the applicant's favour, is:

1. That the purported marriage between the deceased and the First Respondent be and it is hereby declared null and void aboriginae:

2. That the Third Respondent is directed to give effect to the terms of the order in paragraph 1 hereof in its registers:

3. That the Second Respondent is directed not to pay the benefits in respect of the deceased to the First Respondent by virtue of the marriage certificate submitted to it by the First Respondent:

4. That the First Respondent is ordered to pay the costs of this application.

[4] At the commencement of the hearing of oral evidence Mr Mchunu for the first applicant formally applied for the joinder of three further applicants, Thabiso Rodgers Dlamini, Zulungile Lucille Ndlovu and Maria Mnqayi. The second respondent, being the employer of the deceased at the time of his death, and third respondent as registrar of marriages, are merely cited as interested parties with certain relief sought against them as demonstrated above, but with no order as to costs being sought against them. This application to join was foreshadowed in a Notice of Motion appearing in the papers dated the 16th of July 2007.

The three applicants who sought to be joined have all attested to affidavits which form part of the second bundle of documents contained in the court file indicating their wish to be so joined and their interest in the matter. The second applicant is a son of the deceased, the third applicant a mother of one of his minor children and the fourth applicant is the grandmother of a further child of the deceased, the mother having died. There was no objection from Mr Nqala for the first respondent to the joining of these applicants and during the course of the trial I made an order that they be formally joined as second, third and fourth applicants respectively.

[5] The first witness to testify in this matter was the first applicant herself Elizabeth Nkwanyana, the biological mother of the deceased. She told us (at a later stage in her evidence) that she was a 75-year-old woman with a standard 4 education and apparently in a sickly state of health.

She told the court that she resided in a house in Kwa Mashu township which was almost opposite the house where her deceased son lived. She denied categorically that her son would have indeed got married on the 19th of January 2005, that being the alleged date of the marriage, as contended for by the first respondent. The first applicant told the court that the first respondent came to see her during the morning of the 19th and asked if she could take the deceased on a visit. She told the court however that the deceased was sickly and lying in his bed and in no condition to go visiting anywhere. According to the first applicant when the first respondent came to see her she was driving in a car with a male companion, the car, she said, being full of files and file covers. She said that the first respondent came and addressed her in the bedroom where the deceased was lying in his bed. After this the first respondent and her companion drove away in the car leaving the deceased behind. She said that the deceased was very ill and that she assisted him to get up and to wash. She told the court that she had to feed him physically and that he was vomiting and talking as if he was mentally disturbed. She repeated that he was very sickly. She said that the visit had taken place during the mid-morning hours, not early in the morning and not late in the day. She also told the court that

before the first respondent drove away she, the mother of the deceased, confronted her and asked her where the identity document (ID) of the deceased was. She responded that it was with her. The mother said that the deceased had given instructions that the ID, including the bank cards should remain with her. She said that when she later became aware that the first respondent was not coming back with the ID, she decided to walk across to the first respondent’s house and demand the ID book. She said that when she got there she confronted the first respondent in her yard. She said that the first respondent refused to give the ID book to her and said it was hers. The firs applicant said she remained in the premises until her son Sipho arrived. He also demanded his brother’s ID book from the first respondent. The first applicant said that they then became aware that the companion who had been driving the vehicle was in the house writing something. She said she saw them writing out something. She said that the first respondent then went into their house and brought out the ID book and handed it to her. She said that she then walked back to her house. Whilst all this was happening she said that the deceased was at his house lying in bed very sick. Her contention is that the marriage certificate (which forms part of the application papers) was fraudulently obtained or issued.

Under cross-examination she advised that the deceased used to stay at his house with his children. Pressed as to who else stayed with him, she conceded that the first respondent, who was a teacher, used to stay there as well. She agreed that the deceased had been admitted to hospital on 31 December 2004 but was uncertain as to whether he had been discharged on 14 January 2005. She agreed that there was an occasion before he went to hospital when he sent people to negotiate lobola with the first respondent’s family. She had approved of that. This had taken place on the 21st November 2005. She was asked where his ID was and maintained that it was at the home of the deceased where she placed it. Asked where his ID book was when he was in hospital she advised that it was in his house in his bedroom. She stated that the first respondent used to go and visit the deceased in hospital and then come back to his house. She was asked whether, when the deceased was in hospital, there was any time when she was in possession of his ID book and bank cards. To this she answered that normally the ID book and bank cards used to be kept with her but the first respondent came and told her that she wanted to correct something at work, so she handed her the ID book. Cross-examined further she appeared to contradict herself on whether the ID book was kept by her, and maintained that the ID book and

bank cards used to remain at the deceased’s house in his room, as she had previously stated, and that she did enquire from the first respondent where this ID book had been moved to. It was put to her that the first respondent would tell the court that the deceased’s ID book and bank cards used to be kept by her, the first respondent, and that whilst the deceased was in hospital the mother and one of her other sons took away the deceased’s ID book and bank cards and forced the first respondent to give a pin code. The first applicant furthermore confirmed that on a certain day the first respondent and another male arrived in a vehicle at the deceased’s home. She said that the first respondent said she was taking the deceased away to enjoy the breeze, but did not take him. She denied that the deceased ever got married to the first respondent on that day. She said she visited the deceased’s house at about midday on that day. Asked where she was at 6 a.m. on the day she said she was at her own house, which is across from the deceased’s house. Contrary to what she had said in her affidavit about the deceased being at her home with her, she said in her evidence that he was at his own home and that the first respondent had come to her, the first applicant, to request that she take him out. She admitted that she knew of R4 000 that was paid out as lobola. She was shown a

document relating to the lobola negotiations and in which it was agreed that the deceased and the first respondent would get married on the 2nd of January 2005. She was shown a document from a marriage register. She was told that the first respondent would say that the marriage to her deceased son was solemnized at about 6:15 a.m. on 19 January 2005. She was told that the reason for solemnizing the marriage at this time was because she, the first respondent, was going to work because she was a teacher. She was asked if she knew who went in and out of the deceased’s house at about 6 a.m. to which she replied that she normally watches the deceased’s house and if anything happens across there it grabs her attention. She said that she gets up at approximately 5 a.m. and starts cleaning up, inside and outside. She said that she would have seen people going into the house at that hour. They have to go through a locked gate. It was pointed out to her that they were talking about solemnization in the house, but she denied that she saw any people going into the house on that day and stated that no one came through the locked gate. They would bang on the gate if they wanted to get her attention. Asked if she saw the first respondent going to work she repeated that the first respondent came to her and asked permission to take the deceased out. She followed up by saying that the first

respondent did not go to her place of work on that day as apparently there was something wrong with the children at the school. When it was put to her that the deceased signed the register and did not make a thumbprint she disputed that saying that he was lying in a bed and unable to do that. She said that she did not know Reverend Mbatha, but whether he was dark in complexion or otherwise or whether or not she knew him did not make any difference, as she maintained that he did not come to the premises that day. It was only the first respondent who entered the premises when she came with another person in a white and yellow motorcar. That was approximately mid-morning. But, as far as she was concerned, nothing happened at 6 a.m.

Asked by the court what the illness was that the deceased had she said his mental faculties were disturbed and he would vomit and was not eating food. He had been in hospital before that year in connection with his mental faculties. He had been to various different hospitals. She said that sometimes he could speak coherently and properly and sometimes not. She said he could not walk. She had to take him “to the toilet seat”. When he was discharged from hospital in 2005 his state of health looked better and then the illness restarted again.

Further questioned by counsel for the first respondent she agreed that the deceased was staying at his house with his children who were not “the products” of the first respondent. She said that after he had been discharged from hospital his illness restarted and they had to wash him and help him. She said the children were not permanently there and “no person is responsible like a mother”.

[6] The next witness to testify on the behalf of the plaintiff was the deceased’s younger brother Sipho Nkwanyana, and the son of the first applicant.

He said that he knew the first respondent by sight, that she resides in his area and that she was in love with the deceased. He was not conscious of the date 19 January 2005 and when first asked about what happened on that date he said “I never even had a sight of the first respondent”. Prompted about an occasion when he had to fetch his deceased brother’s ID book he acknowledged that he didn’t remember that date but he did remember when he went with his mother to go and get “these documents”. He said that when he got home he was told that his mother had gone to the first respondent’s premises to fetch the ID book. When he, this witness, got there, he admitted to threatening to assault the first respondent if she did not produce the ID book. He said she did produce it and they left for home with the ID book. He said that the first respondent’s home could be about 1 km away from his home. Asked about whether he knew of a wedding ceremony that took place between the deceased and the first respondent he denied that there was ever mention of such a thing and that had never happened because “the man was so sickly he was always lying down on the bed”.

Under cross-examination he stated that his deceased brother was staying alone at his home and that he kept on drinking liquor and staying with different women. He said that “that was his business”. He denied that his deceased brother was staying there with the first respondent in that house and said that the children stayed with their own mothers. When it was put to him that sometime in 2004 his brother sent people to negotiate lobola with the family of the first respondent he said that he was not present but that he did hear about it. He said that his work duties forced him to drive around and that he does not always stay at home. He agreed that he had been told in December about the lobola and that his mother had actually approved of it. His attitude however was that he was not in agreement and suggested that it was wise for the deceased to get well first and then start negotiations. Pressed further through it being put to him that the deceased wanted to marry the first respondent, he conceded that there could have been negotiations about lobola, but that he objected to them taking cash to another house as lobola instead of using the money for his health. Despite his attitude however, the people went to pay lobola. He said that he did not see anything of the negotiations between the deceased and the family of the first respondent and that he was not aware that in those

negotiations agreement was reached to register the marriage by 2nd January 2005. He agreed that the deceased was admitted to hospital on the 31 December 2004 and that he was discharged on 14 January 2005. Asked where his ID documents were during this period he replied that his property remained at his house. Put to him that it was correct that they were being looked after by the first respondent, he said no. Asked who was looking after the deceased’s property, he said his mother. Asked if during that period the ID document had come into his possession he said no. Asked further about the bank cards he said only when he went and fetched the card from the first respondent. He said that he did not remember the date, he merely confiscated the card and put it in his pocket. He agreed that at that stage the deceased was still in hospital. When it was put to him that after the deceased returned on 14 January 2005 he came to fetch his card from his mother at her house he said that he had no knowledge but that this could have happened. He said that on the 19th of January 2005 he would have been at home within the premises, already awake at 6 a.m. When it was put to him that the first respondent will say that on that day she and his brother were married by a Reverend Mbatha of the National Baptist Church he said “nothing of the sort ever happened on that day”. He again repeated that nobody could ever get married whilst lying down in bed on a sickbed.

Asked what his brother, the deceased, suffered from he said it was HIV and meningitis. He disputed versions that were put to him to the effect that his brother was not lying in his bed on that day and that a Reverend Mbatha solemnized the marriage in the presence of two witnesses. He repeated yet again that this could never have happened because the deceased was too sick. He disputed when it was again put to him that the first respondent will say that the deceased was able to walk and sign on that day.

[7] Subject to a reservation expressed by counsel for the applicants about re-opening the applicants’ case in relation to the marriage certificate, that brought a closure to the applicants’ case.

[8] The first respondent, Thobile Alice Mbambo, was the first witness to testify in support of her case. She told the court how she started a love affair with the deceased in 2001. They first started staying together in 2002. In 2003 she gave birth to a baby boy who passed away in June that year. She said that when she and the deceased stayed together they stayed at his house, C1914 Kwa Mashu. She said that after the child had passed away their house was burgled and the deceased lost much of his valuable property. This, she said, caused mental disturbance and that was in late 2003. She mentioned various hospitals where the deceased had been admitted and maintained that when he was first admitted he was suffering from meningitis. She said that when he was last at the hospital, during the period 31 December 2004 to 14 January 2005, the deceased’s ID documents were with her. He had given them to her to keep. She said that at the time she was still staying in his house but on occasions when she feared for her safety, when no children were there, she would go and stay at her own house. When the deceased was discharged the ID and bank cards were not with her, as, as she put it, her “mother in law” and her son had confiscated these documents from her. She said they had forcefully made her write down the bank and pin code, which she did for fear of being beaten up. She said

that when the deceased was discharged and arrived home, there was no food and that they had to go and buy groceries. She told the deceased what had happened to that card and that his people had maltreated her in his absence. She said that the deceased went to his mother and brought her back with him and queried her in the first respondent’s presence. His mother then went and got the cards and handed them to the deceased.

Asked what had happened on the 19th of January 2005 she spoke of a mutual agreement between the families that there would be a marriage agreement and that there would be a private marriage ceremony at which both families would be present. The marriage was scheduled for 2nd January 2005 and it didn’t take place because, so she said at this stage of her evidence, the deceased was in hospital. She said that the marriage was eventually solemnized on 19 January 2005 at the deceased’s home by Reverend Mbatha. She said that she did not know Reverend Mbatha before that date and that “her husband” as she often referred to him, “organized that as far as I know”. She said that the appointment was for 6 a.m. because she needed to get to her place of work and the Reverend was also anxious to get to work. But the solemnization only started at about 6:15 a.m. She said that her witness at the ceremony was Hlengiwe Shabalala and the witness for her husband was his cousin. She said they merely referred to one another as “njala” which we were informed meant “cousin”. She said that she did not get to know his name. She said that the deceased was in good health and could wash and walk and could do anything. She said he was able to sign and that they both signed as well as the witnesses. She said that she received a piece of paper from the Reverend at the end of the ceremony. She

said that she got the Marriage Certificate from Home Affairs. She was shown a document which was handed in as Exhibit A. This document consisted of two pages and in the section blocked off as D on the second page, the alleged signatures of the deceased and his witness and the first respondent and her witness as well as the signature of Reverend Mbatha appeared. She confirmed all these signatures and said that after they had all signed she understood that signified that she was married to “her late husband”.

Under cross examination she was asked where she was on 18 January 2005. She said that she was at her place of work. She was asked where she was on the night of the 18th of January and she said that she stayed at the house of the deceased. She said that her husband organized the Marriage Officer when he came back from hospital after 14th January. She said he had phoned the priest. She said that as far as she understood, the deceased and the Marriage Officer were not known to one another. It was through a friend that the deceased had sought advice and who gave the telephone number. She said she was present when the phone call was made confirming with the Marriage Officer and she thought that this would have been on the 17th of January. She was asked why she registered and entered her address on Exhibit A as D40 Bombo Road if she was in fact staying with the deceased. She said that this was where she had been staying before she got married and this was the residential address reflected “on my ID”. She was asked what was so special about 19 January 2005 and she pointed out that the original date was 2nd January but that that date had been shifted. She said that she left everything up to “her late husband” and she was later told that he had spoken to the priest and chosen the 19th. She said she did not object. She was in favour. When further questioned about why she chose

the date when there were so many other dates open to her and they were only two days away from the weekend, and when questioned as to why it was at 6 a.m., she said the reason was, as she had pointed out, that it was her late husband who arranged everything and she went along with that. When asked whether she queried her husband on why so early in the morning she said that she did ask him and he responded that the priest had still to proceed to his place of work. She added that she also had to go to her place of work. Put to her that she could have said “we can do this over the weekend”, she maintained that the deceased had been annoyed by the actions of his family in forcefully taking away the property he had left with her. She also complained that his family had changed the date without consulting with members of her family. Asked how did they cancel the wedding she said that they decided on their own without consulting. “They only told me that they were cancelling”. She was asked whether she was talking about 2nd January. She maintained in this part of her testimony that the deceased’s family had already cancelled the 2nd January 2005 and, according to this witness, “that made the deceased to be more affected”. She agreed that when they had arranged 2nd January both families would attend. She said that when Rev Mbatha arrived they had been waiting for him and

that he arrived at about ten to quarter past six. She said he came by car and parked in the neighbour’s yard. She said that the witnesses arrived before six. She said that that house comprised four bedrooms, kitchen and dining room and a lounge, that one bedroom had an en suite bathroom and that the marriage was solemnized in the dining-room and that the front door was open and only closed by a sliding gate. She said that the ceremony took 30 minutes. She disputed whether one could see from the applicant’s house what would be happening in the deceased’s premises. She said that her house was within walking distance from the deceased’s house. She was asked why her parents and sister were not advised of this wedding so that they could come and attend and maintained that her late husband had said that she should not tell anyone and only do so once they had done the deed and got married. Asked if the marriage was hidden away, she said not from her family. “There was still going to be a marriage ceremony and then the Marriage Certificate would be available”. She said that it was not a surprise as it was known to her family but accepted that this was a contradiction of what her husband had said about no one knowing until it had been completed. She said that in not telling them she was only doing what her husband had told her to do but that she was going to show them the

certificate. She said that she saw the signature of the deceased for the first time when they were getting married and this was despite the fact that they had been together since 2002. She was shown a number of signatures on invoices Exhibits B, C, D, E and F, which it was contended were signatures of the deceased. She agreed that these looked entirely different to the signature which purported to be that of the deceased on Exhibit A. She was advised that there would be evidence that the signature on the Marriage Certificate was not that of the deceased and that the signatures on exhibits B – F were the real signatures of the deceased. She was unable to explain the differences between the signatures. Asked whether he met the applicant on the 19th of January 2005 she said that when she was on her way to her place of work she walked to her (the first applicant) and informed her that she, the first respondent, had left the house. She confirmed that this was on the same day as the solemnization of the marriage. She said that because the deceased needed to be issued with pills, she wanted the first applicant to remind the deceased take the pills. She was asked whether, when she saw the deceased’s mother that morning after the ceremony, she told her that they had just been married. She answered no, but made a request to the mother that when she came back from school (they had

arranged) that they would go out and celebrate. She said that they wanted his mother to go with them. Put to her that the first applicant must then be telling the truth when she said that “you came to her asking to take the deceased for a visit”, she replied "it was not that I was requesting to collect the deceased. I was only reporting to her that we were going to go out, as a form of respect to an elderly person". Asked, if she had this respect, why she had not told the mother that she had just married her son, the answer was that this was not a surprise and that it had been agreed upon and that it was the applicant who had said they should get married because he was a sickly man. She later said that she did everything her husband told her to do and he had said don’t report to his mother, he was going to do that himself. She said that she went to the funeral parlour to pay her last respects and that is when they asked her for the Marriage Certificate. She agreed that she had also submitted this to his place of employment but she did this because she said when she went there, they had asked what her connection was with the deceased. In answer to a question from the court she said that she did not want the death benefits previously, but now she does have a reason. Asked why she went to his place of employment she said it was because there was a doctor there that they had

been consulting. She said that on the 19th of January 2005 they chased her from the deceased’s house when she came back from work. She said that all was well between her and the deceased’s mother when she left for work and that when she got back she did not immediately get chased away. She said that she did not manage to take the deceased out for a celebration because the whole family was up in arms against her. She said that the ID and bank cards were taken away on two occasions. The first occasion was between the 31st December and 14th January and the second occasion was when they came to her house and demanded his property. (This, I assume, would have been on the 19th of January 2005.) She disputed that the deceased was so sick that he could not append his signature to a document.

[9] The following witness in support of the first respondent’s case was Hlengiwe Shabalala. She claimed to have known about the arrangements for the deceased and the first respondent to marry. She said she was present at the actual marriage and it was herself, Muzi (the deceased), a friend of Muzi and the first respondent and the priest. She said that she signed the marriage register after the bridegroom and bride had signed. She said the deceased was walking normally and talking normally. She said the only thing he complained of was a searing headache.

Under cross-examination she said that she had attended weddings before but had never been a witness. She was not surprised that this was being performed in a private home at six in the morning as she had heard that people do this. She said that the groom had mentioned that his family had told him to cancel and that he was not going along with that idea. She said that she arrived at about 10 to six and that the priest was the last to arrive. She said he got a book and came in and introduced himself as Reverend Mbatha, that he had travelled by car but that she only saw him when he came into the house. She went through the process of what they were required to do, starting with the blessing and then asking the groom and the bridegroom to repeat certain things after him. She said that before she got there the ID books had already been put to one side. She said that after they had signed he declared them to be husband and wife and then made a prayer. She was not surprised that the family of the first respondent was not there because she was told they would not come. She said that the only reason to have it at 6 a.m. was because the family of the deceased had cancelled the marriage for the second time. At least that is what she was told. She said that the deceased’s signature was appended in front of her and when shown his other signatures that have no likeness, she conceded this and mentioned that there were times when she had to re-do her signature.

[10] The next witness was Reverend Emmanuel Mbatha. He told the court that he was a priest in the National Baptist Church. He said that his duties entailed burials, marriages, baptismal ceremonies and preaching. He said that he had been designated as a Marriage Officer in 1994. He said he knew the first respondent and he had known the deceased. He said that the deceased had phoned him requesting him to come and solemnize his marriage. He said that the deceased had requested a date but he could not remember the date. He confirmed that he solemnized the marriage on 19th of January 2005. He said that he did not know the deceased before he phoned him and that he saw him for the first time when he solemnized the marriage. He said that when he arrived he was not sure of his house and stopped next to the house when the deceased came out and saw him and advised him where to park. He said that he found the deceased, his wife, a male witness and a female witness there. He said he started the ceremony with an opening prayer. He said when he enquired from the bridegroom and the bride whether they had been married to anyone prior to that, they said no they had not. He then said he took their ID documents and completed the form and made them sign. He said the witnesses then signed and he closed the ceremony with a prayer. He said that the deceased had looked normal and could do everything

unassisted. He said that he signed the marriage register and he confirmed the signature of the deceased and his wife in the block D19 on the form. He said that after he finished with the documents he made the declaration that they were husband and wife. He said that he issued out a manual document which was not amongst the documents he handed to both of them. He said that there were normally three of these documents and two were sent to Home Affairs, whilst a copy remains in the book.

Under cross-examination he agreed that he was due to work on the 19th and was therefore effectively unavailable. He said that he had previously solemnized a marriage at night and denied that the solemnization of this marriage at 6 a.m. was outside normal hours. He said that although marriage is normally solemnized between 8 a.m. and 4 p.m. he was allowed to do it at any other time but there had to be a reason for doing so. He said that he did not know who had referred the deceased to him. He could not remember whether he had asked this of the deceased. He said that he had a letter of appointment at his house to show that he was a priest, issued by the Minister of Home Affairs.

Cross examined he said that it was not only him who solemnized marriages in Kwa Mashu. He said that Kwa Mashu was huge and that he did not stop them from going to other offices. He was referred to the signatures on Exhibits B – F. He was told that evidence would be led that the signatures on B – F are in fact the signatures of the deceased. This witness could not dispute that. It was then contended that the deceased was so ill that he could not even feed himself. This was disputed. When it was put to him that Exhibit A was completed elsewhere and then submitted to the Department of Home Affairs, he denied this. Asked by the court about the provisions of section 30 of the Marriage Act 25 of 1961, he said that he did not follow those provisions as this was a private wedding. He was then re-examined by counsel for the first respondent regarding these provisions. He said that the way in which he conducted this marriage was the way they do it according to his denomination.

[11] The first respondent then closed her case.

[12] Counsel for the applicant had indicated earlier in the proceedings that he would in all probability make application to re-open the applicant's case. This indication arose from the fact that, at the time he closed the applicants' case, and through no fault of the applicants, he had not had an opportunity to fully deal with the documents handed in as Exhibit A. He advised that he may in due course require the opportunity to lead evidence in relation thereto. He applied at this stage therefore to re-open the applicants' case. The application was not opposed and leave was granted.

[13] The witness then called by the applicants was Mzwandile Nkwanyana. He is also a son of the first applicant and one of the other brothers of the deceased. He resided with his mother at Kwa Mashu. He told us that he was 28 years old when the deceased passed away, 31 years at the time of testifying. He stated that he knew the deceased's handwriting and said that he had seen documents where the deceased had signed for furniture at Morkels. He looked at block D19 on Exhibit A and said that he did not know that signature. Asked if one was to say that that was the signature of the deceased he said he would definitely deny that. He mentioned that the deceased had boasted to him that he knew no one who could forge his signature. He was then invited to look at Exhibits B - F and confirmed that the deceased's signature appeared thereon, putting a circle on each Exhibit around the signature.

Under cross-examination he conceded that all the signatures appearing on Exhibits B - E had been appended before January 2002. It was suggested to him that the signature on B was different to the signature on E, albeit that they were similar. The witness maintained that he could see no difference. It was suggested that in E the signature finished with a dot, whereas in B it finished with an "a". The witness suggested that this might have been caused by a photostat machine. The witness advised that he had a standard 10 education and worked with Human Resources.

[14] That concluded the evidence.

[15] In argument Mr Mchunu for the applicants argued that the first respondent's version was highly improbable. He argued that she contradicted herself in material respects. He referred to page 31 paragraph 18 of the papers wherein she strongly denied that she had gone to the offices of the second respondent and said "I specifically refrained from going to the second respondent's offices given the allegations surrounding my marriage to the deceased." However, as pointed out in her evidence, she admitted that she had submitted the Marriage Certificate to the employer of the deceased. Insofar as improbabilities were concerned, he argued that it was improbable that the priest, who was unknown to them, would go and solemnize a marriage at that awkward time of the day. There was also inconsistency between the evidence of the first respondent and the priest as to the reason why he was asked to conduct the ceremony on that day. The priest said it was because he was unavailable whereas the first respondent told the court that besides the fact that the priest was not available, she was not available, and, because the deceased actually wanted it to be solemnized on that day. A further inconsistency pointed to was the fact that the first respondent told the court in cross-examination that the marriage did not take place on the 2nd of January 2005 as planned because it was cancelled by the

family of the deceased and that this was done without the consent of the deceased. However in her evidence in chief she had told the court that the reason why the marriage was cancelled was because he had been admitted to hospital. Mr Mchunu furthermore referred to the signatures on Exhibits A - F and argued that it was clear that these were two different people signing. A further point raised was that, if the deceased was healthy and well, there would have been no need for the first respondent to go and visit the deceased's mother early that morning in order to ask her to remind the deceased to take his pills. He also relied strongly on the fact that the brother had confirmed the signature of the deceased and that he was acquainted with the handwriting of the deceased and his signature. He referred to the authority of Hoffmann and Zeffertt on the law of evidence dealing with the fact that any witness who knows a person's handwriting is competent to testify thereto. With regard to the time and place of the marriage he argued that this in itself arouses suspicion and proposed that the “abakhongi” being the facilitator who negotiates the lobola and the marriage from start to end, should have been present. He conceded that although this is not imperative, it would have been desirable.

[16] In argument tendered by Mr Nqala for the first respondent he contended that whereas the first applicant sought to deny that the first respondent ever lived as a husband and wife with the deceased in her affidavits, and suggested that the deceased was “at home with me", the deceased was in fact staying at his own house and the first respondent did spend nights at the deceased's house. He also pointed to contradictions regarding the children who were staying at the deceased’s house, all with a view, so he argued, to attempting to show that the first respondent never stayed with the deceased at his house, which was untrue. He said that it was clear that they intended to marry each other and they did in fact marry each other. He pointed to the fact that part of the lobola was paid and that a date for the marriage was set up. He pointed out that the first applicant said the deceased sent negotiators regarding the wedding and that this was done with their approval. He pointed to the fact that the son, (Sipho), however first said that he didn't know about this but then said he was only told by his mother. He contended that this was untrue. He pointed to the requirements of section 29 of the Marriage Act and argued that the fact that it was solemnized at 6 a.m. did not affect the validity, and, that the marriage could take place in the home. He also referred to the provisions

of section 30(3) of the Act and argued that strict compliance with the provisions relating (to) the application of “the marriage formula” was not necessary. He argued that the deceased’s physical condition did not preclude him from entering into a valid marriage. He pointed out that the deceased had been discharged no doubt because he was well enough for them to do so. He also referred to the fact that the deceased went to visit his mother after his discharge and that his brother had confirmed that the deceased had indeed gone to see his mother about his ID document which had been taken in his absence. With regard to the signature on the marriage register document, he conceded that it was clear that this was not the same as the signature of the deceased on the other documents, Exhibits B - F. He pointed out however that the last of these signatures on these Exhibits had been appended on the 28th of February 2002 whereas the signature in the marriage register was made in 2005. He also argued that the deceased was sick and that he might have been weak. He referred the court to The Law of South Africa, volume 16 at paragraph 38 and the fact that “Registration of a marriage, though required by statute in the public interest and for purposes of proof, is not essential to the validity of the marriage.” Mr Nqala also sought to argue that even if the court found that this was not a valid marriage there was nevertheless a valid customary marriage in existence based on the fact that the lobola was negotiated and that the parties intended to get married. The latter argument however was not heavily pursued, there having been no clear evidence that a customary marriage had indeed taken place.

[17] In further argument and in discussion between counsel and the bench it was agreed that in regard to the question referred for oral evidence namely "whether or not the marriage between the first respondent and the deceased that was solemnized on the 19th of January 2005 was properly conducted", the court should interpret and read as part of this decision, a determination of whether "the marriage complied with the provisions of the Marriage Act 25 of 1961 and consequently whether it constituted a valid marriage".

[18] In reply to Mr Nqala’s argument, Mr Mchunu conceded there were indeed arrangements with regard lobola and that the first respondent and the deceased were actually in love and that the first applicant had nothing against the first respondent. He contended that the only real issue in dispute was whether a marriage ceremony took place on the 19th of January 2005. He pointed out that if the first respondent agrees that the first applicant went to fetch the ID on that day of the alleged marriage, this was not consistent with her (the first respondent's) version. He said that if the deceased was up and well as the first respondent would have us believe he would have come to fetch the ID book himself. He argued that we were not dealing in this case with presumptions of marriage.

[19] On an analysis of the evidence: there was a certain amount of contradictory and somewhat uncertain evidence as between the first applicant and the first respondent about the various comings and goings of the first respondent, and the timing thereof, on 19th January 2005.

According to the first respondent she popped into the first applicant’s house on the morning of the 19th of January before she left for school to request the first applicant to in turn remind the deceased to take his pills. A question arising from this is, if the deceased was in such good health and moving around un-aided, was it really necessary for her to perform this exercise?

However, of more significance is the following. On her own version, this visit to the mother would have been shortly after the alleged marriage ceremony which she says had taken place earlier that morning before she went to school. She also told her "mother in law” (as she referred to her) when she popped in that they wanted to go out that night. Although she had the respect to tell her mother in law that she would be taking, or wanted to take, the deceased out, and although they intended to celebrate with her, (the mother), she mentioned nothing about the fact that they had just got married, or that they intended to celebrate with her, the mother, that evening. She had said that the deceased wanted to tell his mother about the marriage. But if this was so, why did he not then tell his mother later that day?

And if the sequence of events was as related by her, why did the mother and her son Sipho come to the first respondent’s own home later that day to demand the ID book? And why was she then at home and not at school? And why did she have the ID document with her at her home when the deceased was at his own home, and, according to her, in good health, and quite capable therefore of looking after his own ID book.

Furthermore, when was it that the first respondent would have been chased away from the deceased’s house if the mother and Sipho had already been to her house earlier that day threatening her and demanding the ID book?

A number of anomalies arise in this latter context. A common denominator between the first respondent and the mother is that she tells of a priest, who was a stranger, coming to the deceased’s house on that day. However, according to the first respondent the priest came to the house in a motor vehicle early in the morning, at about 6 a.m.. This, as well as the arrival of the witnesses and their later departure, would have occurred at something in the region of 7 a.m., but was not seen by the mother. This seems unlikely given the proximity of the houses, and visibility at the very least from the mother’s house through to the deceased’s gate. The mother also talks about a person, a stranger, coming to the deceased's house on that day together with the first respondent in a motor vehicle. However according to the mother, this happened approximately mid-morning. The first respondent acknowledges that the mother and one of her sons came to her usual place of residence (about a kilometer away), later that day demanding the ID book and bank cards. However, if the first respondent was at school teaching, or, if there had been no incident in the morning as alleged by the first applicant (relating to the first respondent requesting to take the deceased out that day), and, there was no incident involving a stranger coming to the deceased's house in a motor vehicle during or about mid morning (which had no doubt aroused the first applicant's suspicion), why, did the first applicant apparently storm across to the first respondent's usual place of residence, subsequently supported by her son, to demand the ID book and bank cards?

And, as already mentioned, when would this have occurred if the first respondent was at school teaching? The first respondent in her evidence tells of the fact that she was driven away from the deceased's house that day. But how does this fit in to the aforementioned evidence? On her evidence she seemed to have left for school quite peacefully that morning. Why did she get driven away by the deceased’s family later that day, seemingly after she had returned from school? What on earth would have caused this?

And if the deceased was healthy and well throughout all these events as told by her, and was angry about his family's treatment of first respondent, and had himself ordained and arranged for the wedding to take place on that day without his family's knowledge, and was walking around un-aided, and had previously had the strength and resolve to demand his ID and bank cards back from his mother, how and why did he allow all this to happen?

One of the more striking features of this matter is that, if the deceased was as well and healthy as the first respondent and the witness Hlengiwe Shabalala and Reverend Mbatha will have the court believe, why would he choose his own home, under his mother’s and his objecting brother’s very noses to have this private and confidential and rather secret ceremony conducted? Why did he not merely proceed to the first respondent's home or to a church or to some other private place?

Apart from the aforegoing, what drives the wheel of suspicion against the first respondent and her version of the events with even greater force is the fact that Exhibit A contains a signature which purports to be that of the deceased, but which, even on a mere cursory inspection, is totally at variance with other signatures proved to have been made by him, as per Exhibits B - F. There was no need for a handwriting expert on this score. It is patently clear to the naked eye. The signatures could simply not have been made by the same person. Mr Nqala’s valiantly attempted to explain the transparent differences away. He suggested that the differences in time between when the signature on A and those on B – F were made could explain the variation. But the style of writing was so vastly different that this explanation could not be seriously countenanced. He also suggested that that the deceased was sick and that he might have been weak. But this runs counter to the very case presented by the witnesses he called. He was fit and well according to them and even went out to greet the priest on his arrival and tell him where to park.

There were certain contradictions in the first applicant’s evidence as argued, and I acknowledge these. Insofar as demeanour is concerned, and save for the fact that the first applicant, in stark contrast to the first respondent, was minimally educated and unsophisticated and seemed incapable of easily contriving and fabricating, I found little in the demeanour of any of the witnesses which significantly detracted or added value to their evidence. I did note, however, that the first respondent appeared to opportunistically punctuate her evidence with references to “her late husband” and her “mother in law”.

It became clear, and sadly so, that this case was all about money. A finding in favour of the applicants would probably preclude the first respondent from inheriting from the deceased, and vice versa. As already stated, in answer to a question from the court, the first respondent had previously said that she did not want the death benefits arising from the death of the deceased, “but now she does have a reason”. This was hardly convincing. Why did she deliver a copy of the marriage certificate to the deceased’s erstwhile employers? Why suddenly, because of the animosity the marriage ceremony had aroused amongst the deceased’s family and their attitude towards her, should she change her convictions. If her sole desire was to be content with a valid marriage and a marriage certificate to show that she had married the man she loved, why had she not waived any rights to the estate in favour of the deceased’s family? The entire manner in which this ceremony was said to be conducted, early in the morning, at the deceased’s home, under the nose of his mother without telling her or wanting her to know, by a stranger, simply for the somewhat unconvincing reason that it had to be done before they went to work, with a witness to the deceased who the first respondent did not know, without telling the first respondent’s parents or family, without the involvement of the

“abakhongi” who had already taken the matter so far, with a signature contained on the declaration purporting to be the deceased’s but which was conspicuously not his, where, whatever the first respondent and her witnesses might say, the deceased was surely in a parlous state of health (he died some 3 weeks after the alleged ceremony), and, with all the other given anomalies mentioned above, have lead me to believe that the ceremony did not take place as the first respondent has maintained. The more likely scenario is that the first respondent did in fact want to take the deceased away from his home on the morning of the 19th January 2005, that he was in an extremely poor state of health, that she asked his mother for permission having already engaged the priest, that they came to the deceased’s house as described by the mother and that when she refused to allow the deceased to be removed from his home, she and the priest and others who signed as witnesses completed Exhibit A at her home using the deceased’s ID document which the mother and Sipho later came to demand. I say it again, what was the ID document doing at the first respondent’s house in her possession when the healthy and well deceased was back at his house and should have had it in his possession? This scenario too would explain the different signatures and the evidence of the mother that she was kept waiting at the first respondent’s house after she demanded the ID and that she saw the stranger in the house seemingly writing something.

[20] I am satisfied on the evidence placed before me that there was no marriage ceremony conducted on 19th February 2005 whether properly, or in terms of the Marriage Act, or at all.

Having made this finding it is unnecessary for me to have to determine whether, if a marriage ceremony was conducted, it complied with provisions of the Marriage Act

[21] I accordingly make an order as follows:

1. That the purported marriage between the deceased, HAMILTON MZIKAWUPHELI NKWANYANA and the First Respondent THOBILE ALICE MBAMBO on 19th January 2005 be and is hereby declared null and void ab origine:

4. That the First Respondent is ordered to pay the costs of the application and the hearing of oral evidence.

_____

ROWAN AJ

ACTING JUDGE OF THE HIGH COURT

DURBAN AND COAST LOCAL

DIVISION

Date of Hearing : 20, 23, 29, 31 August 2007

Date of Judgment : 9 November 2007

Counsel for Applicants : Mr T W Mchunu

Instructed by:

Sibeko & Associates

Applicant’s Attorneys

819 – 821 Sangro House

417 Smith Street

DURBAN

Ref:

TWM

Counsel for First Respondent : Mr C M Nqala

Instructed by:

Ngubane & Partners Inc

Respondent’s Attorneys

502 Southern Life House

88 Field Street

Ref:

There was no appearance on behalf of remaining Respondents