IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
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Reportable: YES / NO Circulate to Judges: YES / NO Circulate to Magistrates: YES / NO Circulate to Regional Magistrates: YES / NO |
Case no: 2998/2020
In the matter between:
MALEBOGO CATHLEEN MOJAFI Plaintiff
and
A
BOITUMELO PERCIVAL MOMPE Defendant
JUDGMENT BY: MAHLANGU, A J
HEARD ON: 7, 8 AND 10 MARCH 2023; 14 AND 15 AUGUST 2023
DELIVERED ON: 15 NOVEMBER 2023
INTRODUCTION
[1] The Plaintiff instituted a divorce action in which she seeks a decree of divorce, custody of the minor children, maintenance for both herself and the children as well as other ancillary relief.
[2] The defendant opposed the divorce action. In terms of the plea filed on his behalf, the gravamen of the defence was that no marriage existed between the plaintiff and the defendant (the parties). The defendant’s position was simply that there was no valid customary marriage between the parties.
[3] The parties reached an agreement to separate the issues to be determined by the Court. The parties agreed that the only issue to be determined by this court was whether there was a valid customary marriage between the parties or not. The parties agreed that the issues as set out in prayers 2 to 12 of the plaintiff’s particulars of claim be separated in terms of Rule 33(4) of the Uniform Rules of Court. Those issues will become relevant only once this Court has decided that there was a valid customary marriage between the parties. An order in terms of Rule 33(4) was made.
Common cause facts
[4] The only common cause fact that this Court could pick up between the parties was that, there were two lobola negotiations that were held by the parties families. There was an agreement that R30 000 would be a reasonable amount of lobola to be paid by the defendant to the plaintiff’s family. R15 000 was paid on the first negotiation meeting which was held during August 2014 and another R15 000 was paid on 27 December 2014. That two children were born after the lobola was paid.
[5] Furthermore, annexure ‘H’ attached to the particulars of claim (annexure ‘H’) was not disputed by the parties.
Disputed facts
[6] The only issue to be determined by this Court as mentioned herein above, was whether the parties entered into a valid customary law marriage or not.
Plaintiff’s case
[7] The plaintiff testified and called 2 witnesses, Selina Mojafi (Mrs Mojafi) and Mr RA Shounyane (Mr Shounyane). Her testimony was that she met the defendant at high school and they thereafter went to the same the tertiary institution where their intimate relationship started. After school, the defendant got employment at Johannesburg and she stayed behind in the Free State Province. During 2014 the defendant initiated the lobolo negotiations. The plaintiff was represented by 4 people and the defendant was represented by five people. The plaintiff testified that, the lobolo was paid during the two negotiations that were held by the parties families. Her family invited several people to celebrate the final payment of lobolo which was on 27 December 2014. There were also several family members of the defendant that were also at her home to celebrate with them. I pause to mention that, the plaintiff testified that most of the people who were at her home to celebrate the final payment of lobolo were wearing their traditional outfits including herself and the defendant’s mother. The defendant was wearing a blue suit that matches her outfit.
[8] Few days prior to the 27 December 2014 negotiations, the plaintiff’s family slaughtered a sheep and brewed the traditional beer as it was their custom when the last lobolo money was going to be paid. They called it lobolo cleansing ceremony. They invited several members of the family to come celebrate with them. Mrs Mojafi testified that, she telephonically informed Mrs Mompe, the defendant’s mother about the ceremony. She even enquired from Mrs Mompe if there was any celebrations that were going to take place at her house, the answer was no.
[9] At the conclusion of the lobola negotiations, annexure ‘H’ was drawn up in Setswana which contained the agreement reached during the negotiation process. The content of the last paragraph on page 9 of the plaintiff’s particulars of claim reads as follows on translation: The Mojafi family accept the intentions of the Mompe in finalising the lobolo: R15 000 that was counted and paid. Both families agreed that the children will stay together after the holy matrimony. The Mojafi family takes the responsibility of arranging the church ceremony and thereafter announce the date arranged. Both families agreed.
Representatives from Mojafi family: 1. Shounyane R A;
2. Shounyane Mogomme;
3. Mojafi Oupa
4. Dithebe Marumo
Representatives from Mompe’s family: 1. Solomon Mompe;
2. Joyce Taiwe
3. Tobaka Taiwe
4. (signature)
5. Botha S.M.D
[10] All the representatives from both families signed the lobola letter, annexure ‘H’. On conclusion of the lobolo negotiations and after the full amount was paid, both families sat in a dinning set up where food and drinks were provided. The defendant and his mother joined them during lunch. Several people gave speeches including the plaintiff and the defendant. Some members of the family including the Pastor counselled the parties on how to behave in their marriage.
[11] There was singing of traditional songs and ululation when the plaintiff entered the garage, where food was served. Everyone in the garage was joyful as they celebrated what was called cleansing ceremony of lobolo. After food was served and the celebration, the defendant’s family left. The plaintiff stayed behind at her parental home.
[12] The plaintiff further testified that, during March and April 2015, her mother and the defendant’s mother agreed that she can go stay with the defendant in Johannesburg. She testified that she could not move out of her parental home without her parent’s consent. That was also confirmed by her mother. The plaintiff moved in with the defendant. During 2016, she fell pregnant and had to go back to her home in Thaba Nchu. She regarded herself as the wife to the defendant and also the family of the defendant regarded her as such. She testified that they had some personal marital problems with the defendant that were telephonically solved by their families.
[13] During 2019 she fell pregnant again, the problems between the parties escalated until the family meeting was called where the defendant’s father was in attendance. She testified that the defendant told her and her family that it would be better if they separate. That was how their relationship ended.
[14] Mr Moretlwa for the defendant, cross-examined the plaintiff at length. In cross examination, the plaintiff’s evidence did not change in material respects. She stated emphatically that she was properly married to the defendant in accordance with customary law. Mr Moretlwa put it to her that, there was no marriage between the parties as the ‘holy matrimony’ ceremony mentioned in annexure ‘H’ was not fulfilled. She answered by stating that the fact that the ‘holy matrimony’ did not take place, could not affect the validity of their marriage.
[15] During cross examination, she was asked about the letter that was drawn on 27 December 2014. She testified that she cannot say much about that letter as she was not part of the negotiations. She was adamant during cross examination that her family released her to go stay with the defendant. That she stayed with the defendant as his wife and that the defendant’s family accepted her as their daughter in law. She stood by her exam in chief.
[16] The second witness to be called by the plaintiff was the plaintiff’s mother, Mrs Mojafi. She confirmed that indeed two negotiation meetings were held between the two families were it was agreed that, R30 000 would be the appropriate amount for lobola. She further confirmed that, indeed after the lobola was paid and negotiations concluded, there was a lobola cleansing ceremony. There were family members from the Mojafi family that were invited and the Mompe family members were even present. She testified that there were also family members of the defendant were from Brandfort, in the Free State Province.
[17] She testified that, in preparation for the lobola cleansing, a sheep was slaughtered and traditional beer was brewed as part of their custom. She informed the defendant’s mother that there is going to be a celebration of the lobola cleansing. She testified that she asked the defendant’s mother of if there is going to be any celebration at her house and she told her that, they do not celebrate. After the lobolo celebration, half of the sheep that was slaughtered was given to the defendant’s mother, Mrs Mompe.
[18] Mr Moretlwa for the defendant cross-examined Mrs Mojafi at length. Mrs Mojafi testified that on the 27 December 2014, it was raining. There are two houses in her premises and the other house is a garage separated from the main house. She was busy on that day as she was a host. She testified that, she did not hear any singing nor ululation from the garage it might have happened that she was in the other house and it was raining. She testified that indeed there was food and alcohol for the celebration. Everyone was in a jovial mood. The defendant and his mother joined them for lunch as they were not part of the negotiations. She did not testify on the letter mentioned above as she was not part of the negotiation people. She testified that, the plaintiff was given permission to go and reside with the defendant by her family. She testified that, the plaintiff was married to the defendant but they had to give her permission as she was still residing in their home. She could not just pack her bags and leave without them knowing where she was going. She was adamant that, the plaintiff was still staying with them as she was not taken to the defendant’s family on 27 December 2014. The defendant’s family did not show any intentions of taking the plaintiff with them on the day of the lobola celebration.
[19] Mr Shounyane was called as a third witness by the plaintiff. He testified that he is the uncle to the plaintiff and that he was the lead negotiator in the Mojafi’s family. He corroborated the testimony of both the plaintiff and Mrs Mojafi especially on the lobola negotiations and payment.
[20] Mr Shounyane testified that, he wrote the letter attached as annexure ‘H’. He testified that, during the first negotiations, it was explained to the defendant’s family that, on the day the final lobola payment is going to be made, they will have a cleansing ceremony of the lobola. He further stated that, they further explained to the defendant’s family that, it is their custom that the parties should be married at church as it is their custom whereafter the plaintiff would be released to the defendant. He testified that, according to him, the parties got married to each other after the final lobola payment was made.
[21] Mr Shounyane testified that, the lobola cleansing ceremony is very important culture in the Mojafi family. After receiving a letter from the defendant’s family informing them that they are coming to make the final payment of the lobola on 27 December 2014, the plaintiff’s family called a meeting to discuss the letter. At the meeting the arrangements were made for the lobola cleansing. Part of the arrangement was to slaughter a sheep and to brew traditional beer. It was also agreed that some family members of the plaintiff would be invited.
[22] After the lobola payment the defendant’s family requested to see plaintiff, she was presented in the negotiation room by her aunt. Thereafter food and liquor was served and the celebration started. The plaintiff joined the families in the garage where food was served. The plaintiff and the defendant were also presented in the garage. The plaintiff was counselled and told how to behave as a wife. He testified that, there were singing and celebration of traditional wedding songs and ululation. The plaintiff did no go with the Mompe’s family after the final payment of the lobolo.
[23] During cross examination, Mr Shounyane testified that, it was explained to the Mompe’s family that the parties would be allowed to stay together after the holy matrimony. He stated that the marriage between plaintiff and defendant is valid even if the ‘holy matrimony’ was not made.
[24] Mr Shounyane testified that he did ask Mr Taiwe, the uncle to the defendant if the plaintiff would be handed over after the final payment of the lobola. Mr Shounyane was told by Mr Taiwe not to rush things and they were further told that the Mompe’s family does not practice that tradition. He further testified that, the defendant’s family never told them their traditions during the negotiation process. He was adamant that there was singing in the garage and he was one of the people that sang on that day. He testified that several people in the garage gave speeches including the plaintiff and the defendant.
DEFENDANT’S CASE
[25] The defendant’s father, Solomon Mompe, was the first witness to testify on behalf of the defendant. His evidence-in-chief was that the defendant is not married to the plaintiff because the lobolo negotiations between the parties were not finalised. He did corroborate the plaintiff’s witnesses that the two lobolo negotiations were held and that R30 000 that was agreed upon was paid on 27 December 2014. It was his testimony that during the lobola negotiation meeting that was held on 27 December 2014, it was agreed that the parties would only be married after the holy matrimony that should be held at Church. He testified that, the holy matrimony is not his custom but had to compromise as the plaintiff’s family wanted it.
[26] He denied that there was a celebration after the final payment of lobola on 27 December 2016. He admitted that he called his wife and the defendant to come join them for lunch but was adamant that, it was not a celebration. He could not remember if any speeches were given by any of the parties not any attire that was worn on that day. He could not remember if there was traditional beer or if there was any part of the sheep given to his family.
[27] Mr Mompe testified that, during the negotiations, he did not explain his custom to the plaintiff’s family. He testified that, according to his custom, after the lobolo has been finalised, there is a celebration called ‘dikapeso’ in which the families will exchange gifts. After ‘dikapeso’ it is then that an arrangement would be made for the plaintiff’s family to hand the plaintiff over to his home. He testified that both processes could not be made as they were still waiting for the ‘holy matrimony’ ceremony to be finalised at Church.
[28] During cross examination, Mr Mompe testified that they did not object to the issue of the ‘holy matrimony’ even if it is not their custom. He further stated that, they signed the letter dated 27 December 2014 as a compromise to what the plaintiff’s family wanted. Despite having paid the R30 000 lobolo money, he denied that the plaintiff was married to the defendant, he was adamant that the plaintiff could not be said to have been married without the ‘dikapeso’ and the handing over process.
[29] Mr Mompe during cross examination testified that, he denied that the parties stayed together as husband and wife after the payment of lobolo. According to his knowledge the plaintiff was only visiting the defendant. I got the firm impression that Mr Mompe was being economical with the truth. He did not remember what happened on the 27 December 2014 especially whilst they were having lunch. He could not remember the singing and he denied that any speeches were given on that day. He was visibly being irritated by certain questions during cross examination and was being untruthful to the Court in material respects which have been alluded to above.
[30] The defendant, Mr Boitumelo Mompe, testified on his behalf. He testified that the plaintiff was his partner and the mother of his two kids. He corroborated the evidence before court especially relating to the lobolo negotiations and its payment.
[31] After the negotiations were finalised, the defendant, his mother and his family that were at his house, went to the plaintiff’s place to join them for lunch. His father, Mr Mompe informed them that the negotiations were finalised and that the plaintiff’s family has prepared food. On arrival at the Mojafi family, they found several people that they knew from the community.
[32] He was called into the garage together with some of his family members to join the Mojafi family. The other family members were seated inside the house. The plaintiff joined her inside the garage and stood next to the plaintiff. They had lunch that was served in the garage. Himself and the plaintiff thereafter went into the house to meet family members. He testified that it was a good mood and everyone was happy.
[33] He testified that the plaintiff used to visit him in Johannesburg, they never stayed together. He was adamant that he is not married to the plaintiff, that the lobolo process was not finalised. In terms of his family custom belief, a sheep could have between slaughtered and the gifts be exchanged between the families as an indication of the conclusion of the customary marriage.
[34] His main evidence-in-chief was that there is no marriage between himself and the plaintiff as the ‘holy matrimony’ celebration was not fulfilled.
[35] During cross examination, he testified that, he was not married to plaintiff because all the requirements of lobolo were not completed for example, the marriage was not completed as it did not take place in church as per annexure ‘H’, they never stayed together, that the payment of lobolo alone is not marriage and the plaintiff was not handed over to his family.
[36] He testified during cross examination that, his family was not ready to welcome the plaintiff as a new bride but a date was to be set on which he was to be handed over and celebrate her coming. He was referred to his plea and he testified that he was not aware that the defence of handing over the plaintiff was not mentioned in the plea.
[37] He testified that, both their families were aware that the plaintiff is visiting her. Counsel for the plaintiff put it to him that he was customarily married to the plaintiff which was denied by the defendant. He admitted that he fathered two children with the plaintiff after the lobolo was paid.
[38] The gist of the defendant’s evidence was that for the customary marriage to be valid, the ‘holy matrimony’ celebration had to be fulfilled. The other requirements such as payment of lobolo and consent to parties were not so material according to the defendant. Upon being asked about why he says there is no in customary marriage between himself and the plaintiff, his answer was that because there is no ‘holy matrimony’ according to annexure ‘H’.
THE LAW
[39] Section 3(1) of the Recognition of Customary Marriages Act 120 of 1998 (the Act) provides as follows:
“Requirements for validity of customary marriages
(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.”
[40] The parties were both over 18 and both consented to be married to each other under customary law, which culminated in the two lobola negotiations where lobola was finally paid on 27 December 2014. The point of departure is the defendant’s contention that the marriage was not celebrated according to custom and that the plaintiff was not handed over to his family.
[41] I pause to mention that the Act does not mention ‘holy matrimony’ as a requirement for the existence of the customary marriage.
[42] The plaintiff referred the court to the case of Mbungela and another v Mkabi and others 2020(1) SA 41 (SCA) (Mbungela) in which the following was said regarding section 3(1)(b):
“But section 3(1)(b) does not stipulate the requirements of customary law which must be met to validate a customary marriage. The reason for this is not far to seek. 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 changes and needs of the people who live by its norms. The system, therefore, requires its content to be determined with reference to both the history and the present practice of the community concerned. As this court has pointed out, although the various African Cultures generally observe the same customs and rituals, it is not unusual to find variations and even unambiguous in their local practice because of the blue realistic nature of the African society. Thus, the legislation left it open for the various communities to give content to section 3(1)(b) in accordance with their leaved experiences”.
[43] The interpretation of section 3(1)(b) of the Act in the Mbungela matter is wide. It is evident that various factors are to be taken into consideration in determining whether a marriage has been validly concluded or not. The first two requirements of section 3 of the Act are fairly easy to prove, namely that the parties must be over 18 and that the parties must consent to enter into the customary marriage. Section 3(1)(b) is always faced with the controversy which the courts always grabble with. The main controversy in this matter is what is stated in annexure ‘H’ that, the ‘holy matrimony’ is not fulfilled.
[44] In his plea, the defendant raised only one defence which was that, a valid customary marriage was not concluded because the request by the plaintiff’s family that there be a ‘holy matrimony’ was never fulfilled. He never pleaded that the customary marriage was not concluded because there was no bridal transfer. I got a firm impression that the defendant was not being truthful to the Court in so far as he based his defence on the fulfilment of the ‘holy matrimony’.
[45] In my judgement, there was a valid customary marriage entered into between the parties in terms of the Act. It is therefore my view that, the defendant’s contention that there was no such marriage between the parties is entirely without substance.
EVALUATION
[46] I am therefore satisfied that the requirements of section 3(1)(a) of the Act have been complied with. Section 3(1)(b) does not specifically mention lobola but it is trite that the payment of lobola is an essential requirement to customary marriage. It is therefore my judgement that the marriage between the plaintiff and the defendant has been negotiated and entered into in accordance with section 3(1)(b) of the Act.
[47] It is my view that on 27 December 2014, lobola was paid in full, there was a celebration at the plaintiff’s home after the payment was paid, the plaintiff was presented to the defendant’s family by her aunt and some members of the two families including the parties, gave speeches inside the garage where lunch was served and there was singing and ululation during the celebration.
[48] The defendant was adamant in his testimony that, he is not married to the plaintiff as the ‘holy matrimony’ mentioned in annexure ‘H’ was not fulfilled. He further testified that, he never cohabitated with the plaintiff, the plaintiff would only visit him at his house.
[49] I got a firm impression that the plaintiff was honest and reliable witness. She was truthful in her evidence and testified in a remarkably straightforward manner. She was not evasive at all. She answered questions fairly and honestly. I am satisfied that her evidence maybe safely relied on. The plaintiff’s mother and her uncle had impressed me as good reliable witnesses. They corroborated each other notwithstanding the lengthy and excruciating cross-examination their versions remained unaffected. They corroborated one another in every material respect and further their versions are corroborated by neutral facts.
[50] Unfortunately same cannot be said about the defendant and his witness. They are adamant that the plaintiff and the defendant are not married in terms of the Act. The defendant was adamant that a valid customary marriage was not concluded because the request by the plaintiff’s family that there be ‘a holy matrimony’ was never fulfilled. The defendant’s father, Mr Mompe, testified that, the request of a ‘holy matrimony’ by the plaintiff’s family was not an important issue because even if that ceremony had happened, there would still be no marriage between the parties until such time as the plaintiff was handed over to the defendant’s family and sprinkled with or smeared with bile. He further testified that, even if the parties had signed at Home Affairs to conclude a civil marriage, the plaintiff would still not be recognised as the defendant’s wife until she is handed over and some rituals be observed. The defendant was an evasive witness who contradicted himself in various aspects.
[51] I pause to mention that the defendant did not plead that there was no customary marriage between himself and the plaintiff because the plaintiff was not handed over by his family. The issue of the handing over of the bride was just an afterthought on the part of the defendant on realising that he has no defence and that there is a customary marriage between himself and the plaintiff. I am of a view that, even if the issue of the handing over of the plaintiff was pleaded, by the defendant, it is clear from the authorities that non-observance of that custom does not lead to the conclusion that there is no valid customary marriage.
Conclusion
[52] As indicated earlier, the compliance with section 3(1)(a) and (b) is not an issue, the main contention in this matter is the fulfilment of the ‘holy matrimony’ as per annexure ‘H’ of the particulars of claim. I am of a view that ‘holy matrimony’ is not an essential requirement of a customary marriage. Section 3(1)(b) provides that:
“The marriage must be negotiated and entered into or celebrated in accordance with customary law.”
[53] Thus for example, a woman could consent to a customary marriage, followed by the payment of lobola after which she cohabitate or stayed with her husband with the knowledge of her parents, bore children for the husband with the full knowledge of both their parents.
[54] It is therefore my view that this ‘holy matrimony’ is not part of customary law and as indicated earlier, non-compliance with it would not vitiate a customary marriage. There is therefore a valid customary marriage that has been entered into between the parties. It follows that, the defendant’s contention that there was no customary marriage between the parties is without substance.
[55] In the circumstances, I therefore make the following order:
(i) The customary marriage entered into between the parties on 27 December 2014 is declared to be valid and of effect in terms of the Recognition of Customary Marriages Act 120 of 1998;
(ii) The defendant is ordered to pay costs.
___________________
M. E Mahlangu, AJ
On behalf of Plaintiff: Adv M.S Mazibuko
Instructed by: Honey attorneys
Bloemfontein
On behalf of Defendant: Adv T Moretlwe
Instructed by: C/O Phatshoane Henney Attorneys
Bloemfontein