T v K

High court had regard to all the factors for a valid customary marriage and considered that there was no room for the argument made on behalf of the defendant that his (voluntary) absence from the wedding ceremonies was a breach of his constitutional right in terms of sec 9(3) of the Bill of Rights not to be discriminated against on the basis of his gender.

 

Essence

High court declared that customary marriage was valid and effective after considering various necessary factors. 

Decision

(WCC 21530/2016) [2021] ZAWCHC 126 (9 July 2021)

Order:

[116] Accordingly, the following order is made:
(a) It is declared that the plaintiff and the defendant entered into a valid customary marriage at eMnqaba village, Middeldrif on 16 July 2012;
(b) The defendant is to pay the plaintiff’s costs.

Judges

Lee Bozalek J

Heard: 15 – 18 March; 19 – 22; 26 April; 10 & 13 May 2021
Delivered: 9 July 2021

Reasons

“[114] Both in terms of the customary marriage ceremonies described by Prince Burns-Ncamashe and in terms of the case law as determined by the Supreme Court of Appeal in Mbungela and Ngwenyama, the parties fulfilled all the necessary elements of a customary marriage. The fact that the defendant was not present when his bride was welcomed into his family’s homestead does not, to my mind, operate as an impediment to the marriage and nor does any shortcoming as regards the defendant not being formally welcomed into the plaintiff’s family or homestead on the weekend of the lobola negotiations.

On the plaintiff’s version the defendant had full knowledge of the wedding ceremonies on 16 July 2012 and was absent by choice albeit through circumstances beyond his control. By clear implication he consented to the proceedings going ahead in his absence and it is farfetched to suggest that he was somehow married without his consent in breach of his constitutional rights. . . . “

Quotations from judgment

Note: Footnotes omitted and emphasis added

[1] This is a divorce action which commenced in November 2016 when the plaintiff issued a summons against the defendant seeking a decree of divorce and extensive ancillary proprietary relief. In her particulars of claim the plaintiff averred that during July 2012 the parties were married to each other in terms of customary rites and such marriage still subsists. She further averred that one minor child, at that stage 9 years old, was born from the marriage.

. . . . 

Discussion and the law

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[40] According to LAWSA one of the main features of a traditional African marriage is the payment by the bridegroom of marriage goods or lobola to the bride’s family. Lobola is agreed following ‘negotiations’ between emissaries of the two families and agreement on this and other wedding particulars leads to a formal engagement which is followed by the marriage ceremonies whereby the woman takes leave of her family and is transferred to the groom’s family and incorporated into it. It is customary for some of the lobola cattle to be delivered prior to the marriage.

There can be no valid customary marriage without an agreement that lobola cattle will be delivered. Customs differ amongst the different communities regarding the number, time of delivery and so on but the general rule is that at least one beast has to be delivered before the wedding ceremonies.

[41] In Tsambo v Sengadi the Supreme Court of Appeal held, after considering the views of experts in indigenous law, that

‘historically, significance was paid to the conclusion of the lobola agreement, and not necessarily the full payment of lobola’. On that basis the Court dismissed as devoid of merit the contention that the marriage could not have been concluded because part of the lobola price had yet to be paid.”

. . . . .

[63] Applying the principles in Stellenbosch Farmers Winery and Tsambo and having regard to the evidence as a whole I consider that the plaintiff has succeeded in proving, on a balance of probabilities, that the lobola negotiations concluded in an agreement that the total lobola price would be ten cows; further, that half of this amount i.e. five cows, including the ubuso bentombi cow, was paid thereby fulfilling the condition that upon payment of fifty percent of the total lobola the plaintiff would be released, or became available for release, to the defendant’s family for marriage. The plaintiff has proved furthermore to my satisfaction that five cows (in fact the monetary equivalent thereof) was duly paid.

Was the plaintiff released to the defendant’s family, were the marriage ceremonies celebrated and did the defendant consent to the marriage?

[64] This brings me to the second leg of the plaintiff’s case viz proof of her release and the marriage ceremonies and, given the defendant’s denial thereof, proof of his consent to the marriage. In LAWSA the question of whether the marriage ceremonies are essential elements of the marriage contract is discussed. The conclusion reached by the authors is that, important as these ceremonies may be from a ceremonial and ritual point of view, they cannot be regarded as essential legal requirements.

The authors continue:

‘The absence of the ceremonies, if the essential requirements have been met, does not affect the validity of the marriage – although, of course, they have probative significance in the sense that a prima facie presumption could be drawn from them that a valid marriage was concluded and that all the essential legal requirements were satisfied. Not all marriages take place with full ceremonial; the economic situation of the parties is no doubt an important factor’.

[65] This approach was endorsed in Tsambo when the Court stated:

‘[15] When dealing with customary law, it should always be borne in mind that it is a dynamic system of law. In Ngwenyama v Mayelane and Another this Court stated as follows:
“The Recognition Act does not specify the requirements for the celebration of a customary marriage. In this way, the legislature purposefully defers to the living customary law. Put differently, this requirement is fulfilled when the customary law celebrations are generally in accordance with the customs applicable in those particular circumstances. But once the three requirements have been fulfilled, a customary marriage, whether monogamous or polygamous, comes into existence.”

[17] The appellant’s contentions pertaining to the rituals observed during the handing over of the bride ceremony fail to take into account that customary law is by its nature, a constantly evolving system. That customary law has always evolved is evident from the following observation made by Professor Bennett almost three decades ago and approved in many judgments:

“In contrast, customary law was always flexible and pragmatic. Strict adherence to ritual formulae was never absolutely essential in close-knit, rural communities, where certainty was neither a necessity nor a value…”

[18] It is evident from the foregoing passage that strict compliance with rituals has, in the past, been waived. The authorities cited by the respondent, mentioned earlier in the judgment, also attest to that. Clearly, customs have never been static. They develop and change along with the society in which they are practised. Given the obligation imposed on the courts to give effect to the principle of living customary law, it follows ineluctably that the failure to strictly comply with all rituals and ceremonies that were historically observed cannot invalidate a marriage that has otherwise been negotiated, concluded or celebrated in accordance with customary law.’

[66] I turn now to the evidence relating to the remaining issues, the first of which is whether, lobola having been negotiated, agreed and fifty percent thereof paid, the bride was released to the bridegroom’s family and whether the various ceremonies which can formalise a customary marriage and which denote the acceptance of the bridegroom by the bride’s family and the acceptance of the bride by the bridegroom’s family, were performed. It is necessary to review the evidence of both parties regarding this matter.

. . . . .

Prince Zolile Burns-Ncamashe

[87] In his expert evidence Prince Burns-Ncamashe testified that after the lobola negotiations are concluded a sheep is slaughtered at the suitor’s homestead. The bride arrives with a group assisting her but the gate is closed. She must offer gifts to have the gates opened. There is a similar ceremony for the welcoming of the bridegroom who arrives at the bride’s homestead and must be dressed formally and after being admitted, sleeps over. Reverting to the ceremony involving the bridegroom, one sacred element thereof is ukukisa amasa where part of the meat of the slaughtered sheep, a special cut from the leg, is put in sour milk and then handed to the bride on an olive branch.

The bride has to eat or at least taste that piece of meat. Another name for this ceremony is utsiki which is something usually done by those who are not as economically well off. It involves the same ceremony but not quite as elaborate. According to the witness the bride has to be there when the bridegroom enters her household and vice versa because this is part of the process of building affinity between the families. The bride and the bridegroom are respectively told by the elders how to conduct themselves as the new wife and husband.

The witness seemed to indicate that the bridegroom would be present when the bride went through her welcoming ceremony. The utsiki ceremony is the last ritual and seals the solemnity of the marriage. Asked about the uphindindlela ceremony the witness explained that this is when the bride comes to the homestead of the suitor and is a maternal ritual to be observed.

The witness testified further that he had not been apprised of the details of the alleged marriage the present matter but was asked merely to give general evidence about customary law and traditions as they relate to customary marriage. He accepted that in evaluating whether a customary marriage had taken place the intention of the parties was critical.

[88] Prince Burns-Ncamashe impressed as an intelligent and sophisticated man who gave erudite and clear evidence. He is obviously someone who is knowledgeable about, and closely wedded to, the system of traditional rituals, rights and customs and a strong proponent thereof. He appeared to be impartial and did not try to push one side’s case above the other and I have no hesitation in accepting his evidence in broad terms.

However, his evidence was general in nature since he had not acquainted himself with the facts of the present matter and nor did he express an opinion on the validity of the customary marriage allegedly contracted by the parties.

This detracted in no small measure from the weight of his evidence. Another reservation I have regarding Prince Burns-Ncamashe’s evidence is that he is clearly a purist as far as traditional customs and rituals are concerned and several of his statements regarding the necessary elements of a customary marriage were somewhat dogmatic and lacking an appreciation of the flexibility with which the Courts have decreed customary law must be applied.

He thus cannot be considered as the final authority on all points of customary law.

. . . . .

[108] As far as the defendant’s absence from the wedding ceremonies on 16 July 2012 are concerned, I have already pointed out that in terms of customary law the presence of the bridegroom is not necessary. In the present matter, accepting the plaintiff’s version of events, the defendant was absent by choice. He had to work in Cape Town and it was with his full agreement, and in fact on his initiative, that the two ceremonies were compressed into one and proceeded in his absence.

[109] Section 15(3) of the Bill of Rights recognises legislation sanctioning marriages concluded ‘under any tradition’, whilst sections 30 and 31 thereof recognise a person’s right to participate in the cultural life of their choice and to enjoy their culture provided that their rights are not exercised in a manner inconsistent with any provisions of the Bill of Rights.

[110] In Mbungela v Mkabi the issue before the Supreme Court of Appeal was whether a couple had concluded a valid customary marriage in circumstances where the deceased’s family did not hand her over to the first respondent’s family in terms of custom. It was held that customary law was a dynamic, continuously evolving, flexible and pragmatic system of law and that the ceremony of handing over of the bride is not necessarily a key determinant of a valid customary marriage.

The Court held further that the waiver of that ceremony or requirement was permissible and thus did not invalidate a customary marriage.

The Court, per Maya P, stated as follows :

‘[17] As pointed out above, the appeal revolves around s 3(1)(b) of the Act; the jurisdictional factors in s 3(1)(a) are not in issue. ‘[C]ustomary law’ is defined in s 1 of the Act as “customs and usages traditionally observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples”. But s 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 changing 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 ambiguities in their local practice because of the pluralistic nature of African society. Thus, the legislature left it open for the various communities to give content to s 3(1)(b) in accordance with their lived experiences.

[18] The Constitutional Court has cautioned courts to be cognisant of the fact that customary law regulates the lives of people and that the need for flexibility and the imperative to facilitate its development must therefore be balanced against the value of legal certainty, respect for vested rights and the protection of constitutional rights. The courts must strive to recognise and give effect to the principle of living, actually observed customary law, as this constitutes a development in accordance with the “spirit, purport and objects” of the Constitution within the community, to the extent consistent with adequately upholding the protection of rights.’

[111] In my view the arguments that the deviation from the custom of welcoming the groom into the bride’s homestead after conclusion of the lobola negotiations and that the groom’s absence from the utsiki ceremony, invalidated any customary marriage are without any merit. The evidence of the defendant’s own expert witness,

Prince Burns-Ncamashe as well as established case law makes it clear that the ceremonies and procedures involved in a customary marriage are part of a flexible system, elements of which can be compressed or even left out depending on the circumstances of the matter and the exigencies of the situations in which the parties find themselves. In LAWSA the authors note that the son does not necessarily have to be present at the formal wedding ceremony and may be represented. Regarding the groom’s consent, this, given either explicitly or otherwise (for example by acquiescence), is essential.

[112] In my view, having regard to the evidence as a whole and the credibility of the parties and the witnesses, the probabilities are overwhelming that the plaintiff’s version that a customary marriage was indeed contracted is what in fact took place. It follows from what I have said that, in relation to those issues where there is a dispute between the versions of the plaintiff and the defendant (save for the question of on which day the defendant caught the bus to Cape Town), I prefer and accept that evidence of the plaintiff.

[113] On the plaintiff’s version, which I accept, there were full lobola negotiations and agreement on a lobola price was reached, namely, ten cows. There was further agreement that the bride would be released upon payment of half this amount and that duly occurred. There was evidence that the Tshongweni family, or the elders of their greater family, agreed to the release of the plaintiff. The parties then went through with both the utsiki ceremony and the uphindindlela ceremonies, albeit compressing these two together into the five-day stay which the plaintiff spent at the defendant’s homestead.

There she was accompanied, as is customary, by a female family member and another older woman from her community and arrived with all the necessary gifts and household utensils. When she arrived she was welcomed and received into the homestead. She was dressed in makoti attire and a sheep, which could only have been produced by the defendant’s family, was slaughtered and cooked. Thereafter the plaintiff ate or tasted the special part of the sheep, umshwamo, and received guidance from the female elders of the amaTshawe clan into how she must behave or conduct herself as a wife.

The plaintiff then demonstrated her commitment to her new family by spending five days in the homestead performing household tasks and ministering to the needs of the defendant’s family at the behest of his mother, Mrs Funeka Kwankwa. She returned home to Cape Town dressed in makoti attire which she wore for a substantial period.

[114] Both in terms of the customary marriage ceremonies described by Prince Burns-Ncamashe and in terms of the case law as determined by the Supreme Court of Appeal in Mbungela and Ngwenyama, the parties fulfilled all the necessary elements of a customary marriage. The fact that the defendant was not present when his bride was welcomed into his family’s homestead does not, to my mind, operate as an impediment to the marriage and nor does any shortcoming as regards the defendant not being formally welcomed into the plaintiff’s family or homestead on the weekend of the lobola negotiations.

On the plaintiff’s version the defendant had full knowledge of the wedding ceremonies on 16 July 2012 and was absent by choice albeit through circumstances beyond his control. By clear implication he consented to the proceedings going ahead in his absence and it is farfetched to suggest that he was somehow married without his consent in breach of his constitutional rights. Having regard to all these factors, I consider that there is no room for the argument made on behalf of the defendant that his (voluntary) absence from the wedding ceremonies was a breach of his constitutional right in terms of sec 9(3) of the Bill of Rights not to be discriminated against on the basis of his gender.

[115] For these reasons I find that the plaintiff has succeeded in proving her case that during July 2012 a valid customary marriage was concluded between the plaintiff and the defendant. It follows that the plaintiff is entitled to the costs of this action.

[116] Accordingly, the following order is made:

(a) It is declared that the plaintiff and the defendant entered into a valid customary marriage at eMnqaba village, Middeldrif on 16 July 2012;
(b) The defendant is to pay the plaintiff’s costs.

Court summary

Summary