IN THE HIGH COURT OF SOUTH AFRICA (ORANGE FREE STATE PROVINCIAL DIVISION) Application No. : 6614/07 In the application between:ELLEN NTHABISENG MAANELA Applicant and MMAMPITLA (MAREJIWE) MAANELA 1st Respondent NTUKA`S FUNERAL PARLOUR 2nd Respondent and in the application between:MMAMPITLA (MAREJIWE) MAANELA Applicant and ELLEN NTHABISENG MAANELA 1st Respondent NTUKA`S FUNERAL PARLOUR 2nd Respondent SHERIFF OF THE HIGH COURT 3rd Respondent _____________________________________________________ CORAM: VAN ZYL J _____________________________________________________ HEARD ON: 19 DECEMBER 2007 _____________________________________________________ JUDGMENT BY: VAN ZYL J _____________________________________________________ DELIVERED ON: 31 DECEMBER 2007 _____________________________________________________ 2 [1] The above first mentioned application served before Court for the first time as an urgent application before WRIGHT, J on 7 December 2007. It is evident from the returns of service that the application papers were served on both respondents prior to the hearing of the application in that it was served on first respondent by means of service on her then attorneys of record, Schoeman, Kellerman & Kotzé Inc., Welkom, on 7 December 2007 at 13h55 and on second respondent by means of service at their place of business at Virginia on 7 December 2007 at 13h33. The Notice of Motion indicated that the matter was to be heard at 15h00 on 7 December 2007. [2] There appeared to have been no opposition to the obtaining of the order and Wright, J subsequently issued the following order (the wording of which was in accordance of the Notice of Motion) in favour of the applicant, Ellen Nthabiseng Maanela: ”1. The application be heard on an urgent basis in terms of Rule 6(12) of the Rules of this Honourable Court and that the applicant be granted condonation as regards to the 3 non-compliance with the forms, time limit and service as provided for in the said Rules. 2. A Rule nisi be issued calling on the 1st and 2nd respondents to show cause on 19th December 2007 why the following order should not be granted as an order of Court: 2.1 That the 1st respondent and/or any person acting under her instruction or authority be interdicted, prohibited and/or restrained from burying the corpse of the late Peter Maanela on the 8th December 2007 or any other date before the finalization of this application; 2.2 That the 2nd respondent and/or any other person acting on its instruction or authority be interdicted, and/or restrained from releasing and/or handing over the corpse of the late Peter Maanela to the 1 st respondent or any other person before the finalization of this application; 2.3 That 2nd respondent and/or any other person acting on its instruction or authority be interdicted, and/or mandated to release and/or hand over the 4 corpse of the late Peter Maanela to the applicant or her representative; 2.4 That 1st and 2nd respondents be ordered to pay the costs of this application. 3. Paragraphs 2.1, 2.2 and 2.3 serve as a temporary interdict with immediate effect. 4. The application and annexures together with the rule nisi and the court order be served on the 1st and 2nd respondents.” (sic) [3] The aforesaid court order came to the knowledge of the first respondent on 7 December 2007 subsequent to which first respondent gave her attorney of first instance, Mr Phoofolo, instructions to oppose the application. However, it then came to the knowledge of the first respondent that despite the aforesaid court order, the second respondent allegedly released the deceased`s body at 01:00 on 8 December 2007 and it furthermore came to first respondent’s knowledge that the applicant intended to bury the deceased on 9 December 2007 at 09:30, despite the aforesaid court order. First respondent consequently instructed her attorney 5 of first instance to bring an urgent application to prevent the aforesaid burial of the deceased. This application, in which the first respondent was the applicant and the applicant was the first respondent, being the second application referred to in the heading above, was subsequently brought on 8 December 2007. It is to be noted that this second urgent application was brought under the same application number as the first application. Although the Notice of Motion indicated that the application was to be heard at 18h00, it is evident from the papers before court that the court order was eventually only issued shortly before midnight on 8 December 2007. This court order, issued by Malherbe, JP, in favour of the applicant in the second application, Mmampitla (Marejiwe) Maanela, was in the following terms: “1. The application be heard on an urgent basis in terms of Rule 6(12) of the rules of this Honourable Court and that the applicant be granted condonation as regards to the non-compliance with the forms, time limit and service as provided for in the said rules. 2. A Rule Nisi be issued calling on the first and second respondents to show cause on the 19th December 2007 why 6 the following order should not be granted as an order of court: 2.1 Interdicting first respondent from burying the deceased Peter Maanela on the 9th December 2007, or any other date pending the termination of the application in case no 6614/2007. 2.2 Directing second and third respondent to retrieve the body of the deceased wherever it may be and keep it in second respondent’s mortuary until the determination of this application. 2.3 Directing the first respondent to execute the order of this Honourable Court immediately or not later than 08:00 on the 9th December 2007. 2.4 Directing first respondent to pay the costs of this application on the scale as between attorney and client. 3. Prayers 2.1, 2.2 and 2.3 to operate with immediate effect as interim interdict. 4. Paragraphs 2.3 of the court order dated 7 December 2007 is deleted. 7 5. The Registrar is authorized to inform second and third respondents of this order by telephone.” (sic) [4] For the sake of clarity and efficaciousness, I will henceforth refer to the parties as cited in the first application, hence, Ellen Nthabiseng Maanela as “the applicant”, Mmampitla (Marejiwe) Maanela as “the first respondent” and Ntuka’s Funeral Parlour as “the second respondent”. [5] Despite the fact that the second respondent was telephonically advised of the court order of 8 December 2007 during late evening of 8 December 2007 and despite the fact that second respondent also received the court order by means of facsimile on 9 December 2007 at 01h18, and furthermore despite the fact that the representative of the Kroonstad Mortuary ((where the deceased`s body had in the meantime been taken) was also telephonically advised accordingly and also received a facsimile of the court order at 00h01 on 9 December 2007, the body of the deceased was still released to the applicant. However, the applicant was not served with the court order of 8 December 2007 prior to the burial of the deceased and consequently the 8 applicant buried the deceased at Kroonstad on 9 December 2007. According to the applicant she only received notice of the court order of 8 December 2007 on 11 December 2007 via a facsimile to her attorney’s office. [6] Although the first respondent initially intended anticipating the return date for the application to be heard on 14 December 2007, this intended anticipation was abandoned and the parties agreed that the matter will be heard on 19 December 2007. The applicant subsequently filed replying papers which bear the Registrar’s stamp dated 19 December 2007 and which were received by the first respondent’s attorney also only on the morning of 19 December 2007. However, despite this very late stage at which these replying papers were filed, I considered it in the interest of justice to still hear the application on 19 December 2007. Heads of argument were duly filed on behalf of the first respondent on 18 December 2007 accompanied by a letter from first respondent’s attorney of first instance, Mr Phoofolo, indicating that the heads of argument do not take account of any replying affidavit since no replying affidavit had at that stage been received by the 9 first respondent. Heads of argument on behalf of the applicant were received together with the applicant’s replying affidavit on 19 December 2007. Short supplementary heads of argument on behalf of first respondent were subsequently sent via facsimile to the High Court on Friday, 21 December 2007, which heads of argument came to my knowledge on Monday, 24 December 2007. These heads dealt with the issues raised in the applicant’s replying affidavit and the applicant’s heads of argument. After having heard the opposed application on 19 December 2007, I indicated to the parties that judgment was reserved in order for me to consider the arguments and considering that I was the Judge on recess duty having to handle other urgent applications as well, I will give judgement as soon as will be practically possible. [7] I consider it necessary to record that immediately prior to hearing of the application on 19 December 2007, I enquired from Ms Adams, who appeared on behalf of the applicant and Mr Phoofolo, who appeared on behalf of the first respondent, whether the adjudication of this application had 10 not become academic considering that the deceased had already been buried. They however advised me that the matter still had to be adjudicated in order to determine who is to be responsible for the costs of the litigation. More importantly Mr Phoofolo advised me that he had instructions from first respondent that should first respondent be successful with the current application(s), first respondent intends bringing a further application for an order permitting her to have the body of the deceased exhumed and to have it re-buried in Lesotho. Because certain relevant authorities will have to be cited in such an intended application and who are not parties to the current application, such relief will have to be sought in a new and separate application. [8] I now turn to the merits of the application(s). [9] It is evident from the founding papers that it is the applicant’s case that she is the wife of the late Peter Maamela (hereinafter referred to as “the deceased”), who died as a result of a mining accident on 26 November 2007, and that as such she is entitled to make the funeral arrangements and to decide where the deceased is (was) to be buried. She 11 resides at 1618 Gelukwaarts, KROONSTAD. She alleges that she and the deceased were married to each other customarily during November 1987 in terms of the Sesotho tradition and furthermore were married to each other civilly on 8 May 1992, as proof of which she attached a marriage certificate as annexure “B” to her founding affidavit. On face value of this document it appears to be the type of marriage certificate which is normally issued by the Department of Home Affairs on request by a relevant and as such this document was issued on 3 December 2007. She furthermore alleges that since the conclusion of the customary marriage she and the deceased had uninterruptedly stayed together as husband and wife and at the time of his death they were staying together at 1618 Gelukwaarts, KROONSTAD. One child was born from the marriage, a birth certificate pertaining to whom was annexed as annexure “C” to the founding affidavit, from which it appears that his name is Thato Wellington Maanelo, who was born on 4 March 1987. She furthermore states that prior to entering into the customary marriage with the deceased, the deceased informed her that he had three children with the first respondent, but that he was never 12 married to her. Allegedly the deceased’s elders also confirmed this after the lobola negotiations. The deceased furthermore informed her that he left the first respondent because she became pregnant with his brother’s child. [10] The aforesaid lobola negotiations took place in Ventersburg in November 1987 at the applicant’s parent’s house, whereafter the applicant moved to Lesotho for three months to conduct further custom as the first wife. After three months in Lesotho the applicant and the deceased moved back to Kroonstad where they lived until his death. The deceased visited Lesotho about three times a year for a maximum of two days at a time, for the reason that he also had assets in Lesotho. [11] After the deceased’s death on 26 November 2007 she informed his relatives about his death. On 28 November 2007 she had a meeting with the deceased’s children from the first respondent, the deceased’s younger brother and other relatives (all of whom are hereinafter referred to as “the relatives from Lesotho”). According to her the first respondent was also present at this meeting. During this 13 meeting a dispute arose between herself and the relatives from Lesotho as to where the deceased was to be buried. The relatives from Lesotho insisted that the deceased should be buried in Lesotho and according to applicant they also demanded all the assets of the deceased. She however informed them that it was the wish of the deceased to be buried either in Kroonstad or at Maboloka in Pretoria where some of his other relatives reside. When she informed them that she did not intend to exclude the three children of the deceased he had with the first respondent and that she will ensure that they will benefit from any money that will be paid to her as a result of the deceased’s death, the relatives of Lesotho allegedly stated that she can bury the deceased in Kroonstad on condition that she gives them half of the assets of the deceased. This meeting led to no solution. On Tuesday, 4 December 2007, she had a meeting with one Mrs Hanekom of Harmony Gold Mine, the deceased’s employer, after Mrs Hanekom phoned her, pertaining to a funeral benefit of the deceased that was to be paid out. The relatives of Lesotho were also present. The applicant alleges that Mrs Hanekom informed her that according to Harmony Gold Mine’s funeral policy the applicant was the 14 beneficiary and that the funeral benefits will be paid out to her. On Wednesday, 5 December 2007, Mrs Hanekom called the applicant again and informed her that the relatives of Lesotho approached her and informed her that they have decided otherwise and that they intend stopping the funeral as well as the payment of the benefit to the applicant. Hereafter a number of correspondence were exchanged between Messrs Schoeman Kellerman & Kotze Attorneys, acting on behalf of first respondent and Mr Moshe from Vusi Macheka Inc Attorneys, acting on behalf of the applicant. On Thursday, 6 December 2007, Mrs Hanekom eventually paid the funeral benefit to the applicant. [12] The first court order, dated 7 December 2007, was subsequently issued based on the aforesaid allegations. [13] The first respondent, in her answering papers, denies that her name is Mmampitla and states that her name is ‘Marejooe, named as such after her first son. She resides at Thaba-Tseka, Lesotho. It is the first respondent’s case that she married the deceased by customary rites in 1972 in at Ha-Makunyapane, Thaba-Tseka district, Lesotho. Although 15 she is unable to lay her hands on the lobola agreement, she alleges that she knows and saw that her parents received 10 heads of cattle to complete the lobola. In this regard she attached a supporting affidavit of one Lithakong Maanela, a 65 year old relative of the deceased. In his affidavit he states that the deceased was the son of his sister. He resides at Bobete, Thaba-Tseka, Lesotho. He furthermore states that he can remember well that in 1972 the deceased and first respondent were married by Sesotho custom at her maiden home. He was present when 10 head of cattle were delivered to the first respondent’s home by the deceased’s parents. [14] The first respondent alleges that she has six living children with the deceased, the eldest being Rejooe Maanela. In a supporting affidavit by the aforesaid Rejooe Maanela he confirms that he is the first respondent`s first son by the deceased and as such the deceased’s heir. He furthermore alleges that he is 30 years of age, married and has a child named Tumelo Maanela. He also confirms that six children were in fact born from the customary marriage between the 16 deceased and first respondent and not only three as alleged by the applicant. [15] The first respondent disputes the existence of both a customary marriage and a civil marriage between the deceased and the applicant. With regards to the customary marriage, the first respondent alleges that according to the Sesotho custom, whenever a man marries another wife, the first one is informed by the man and his family. Neither the deceased nor any of the family ever gave her such information. According to her the applicant is not known in the Maanela family and does not even know where in Lesotho they live. In this regard she points out that the applicant only alleges that she came to Lesotho to perform customary rites, without indicating where in Lesotho. She denies that lobola negotiations ever took place and that applicant ever came to Lesotho for any customary rites. She admits that the applicant and the deceased may have stayed together, but alleges that the applicant was just the deceased’s concubine in South Africa. She also disputes the allegation that the applicant and the deceased lived together uninterruptedly. Accoring to her he worked at the 17 mine and resided at the mine’s “skomplas” whilst at the mine. He visited her and his family in Lesotho whenever he could. In this regard she alleges that the deceased was at his Thaba-Tseka home with his family on leave during June 2007. According to the first respondent the child that the deceased has with the applicant is also not known to the Maanela family. She also points out that according to the birth certificate the child was born in April 1987, prior to the alleged 19 November 1987 customary marriage. No customary rites were made to accept the said child into the Maanela family. [16] In support of the aforesaid allegations, the first respondent’s eldest son, Rejooe Maanela, also confirms that the deceased came home frequently. He also denies knowing the applicant and alleges that she is not the deceased’s wife, otherwise the deceased, who used to confide in him on many family matters, would have told him so. Also Mr Lithakong Maanela, confirms in his affidavit that he does not know the applicant herein, that no lobola negotiations ever took place for her marriage with the deceased and no lobola cattle were ever paid. 18 [17] Documentation from the Consulate of the Kingdom of Lesotho, based in Welkom, also confirms that the deceased and the first respondent were married in 1972, with six children. In a further letter from the Consulate to the hostel manager of “Brand No 5 Mine”, the Consular-Attaché confirms that the deceased was a Lesotho national and should be buried in Lesotho. He also confirms that the first respondent is the sole wife of the deceased. In this regard he referred to a letter from the Chief of Tlokoeng, ThabaTseka, Lesotho, in which letter the Chief confirms that the deceased was married to the first respondent and that they have six children. I consider it necessary to record that this letter bears a stamp which confirms that he is the Chief of Lihloahloeng Ha Leruo, Thaba-Tseka. [18] The first respondent then furthermore refers to the nomination form from Harmony Gold Mine pertaining to the payment of the funeral benefit which form, inter alia, reflects the following details : 19 1. It states that the deceased marital status is “2 – Married”. 2. The deceased’s spouse`s name is indicated as “Maanela Mathato”, born on 12 April 1958. 3. The deceased’s residential address is indicated as Lihloahloeng Ha Leruo, Thaba-Tseka 550, Lesotho, Thaba-Tseka. 4. It indicates that the deceased has only one child by the name of “Maanela Tumelo”, born on 4 July 1995. 5. The nominated beneficiary is indicated as the aforesaid Mathato Maanela, being his wife, with her residential address indicated as the aforesaid Lesotho residential address of the deceased. With regard to the aforesaid, first respondent points out that the applicant, who received the financial benefit, is not known as “Mathato” as indicated on the nomination form, nor was the applicant born on the date indicated as her date of 20 birth. Furthermore, according to the first respondent, the deceased does not have a child known as Tumelo Maanela, but that this child is in fact the son of the first respondent’s eldest son, Rejooe. First respondent therefore alleges that the applicant was not entitled to have received the funeral benefits. [19] With regard to the applicant’s allegation that the first respondent attended a meeting with the applicant on 28 November 2007, the first respondent denied that she ever attended such meeting. In this regard her son, Rejooe, also confirms in his affidavit that first respondent did not attend the said meeting. He himself did attend the meeting, with his younger brother Luthunya and his uncle, during which meeting they told the applicant that they wanted the deceased to be buried in Lesotho at his home. He denies that the applicant told them about the deceased`s alleged wish to be buried either in Kroonstad or in Maboloka. They insisted that the deceased be buried in Lesotho at their Thaba-Tseka home where all their ancestors have been buried. He furthermore denies that they ever told the applicant that they wanted the assets of the deceased and 21 alleges that they actually told her that she could take all the assets that might have belonged to the deceased, as long as she allowed them to bury the deceased in Lesotho. [20] In her replying affidavit the applicant supplies certain confirmation for the allegations she made in her founding papers, which confirmation one would have expected in her founding papers already. Although Mr Phoofolo argued that these supporting allegations should be ignored in that they should have been in the founding papers, Ms Adams, on behalf of the applicant, argued that it should be allowed on the basis that the applicant did not foresee, at the stage when the founding papers were filed, that the existence of her customary marriage with the applicant will be disputed. For reasons which will be more evident later herein, I in fact did take cognisance of the allegations made in the replying affidavit. Attached to the replying affidavit was a supporting affidavit of Kosia Joseph Koena who alleges that he resides at 278 Mosiako Street, Thabong. He furthermore alleges that he has known the deceased since 1985 and that they were members of the same church. He was part of the delegation on behalf of the deceased who went and 22 negotiate lobola in respect of the deceased`s customary marriage to the applicant. The head of the allegation was one Mr Leche, who has since passed away. A customary marriage was concluded and they paid the sum of R2000.00 as lobola. A further supporting affidavit by the mother of the applicant, Daisy Moruse Tsoanyane, confirms the allegations made by the applicant in her replying affidavit and by Mr Koena in his supporting affidavit. [21] Although the relief sought (by both the applicant and the first respondent) is in the terms and form of an interdict, it actually constitutes a form of declaratory order as to whom is entitled to bury the deceased. On first glance of the papers, there appears to be several disputes of material facts. These disputes of fact pertain to the existence, or not, of the alleged customary marriage between the applicant and the deceased, the alleged civil marriage between the applicant and the deceased and the alleged customary marriage between the first respondent and the deceased. The mere fact that such factual disputes exist, do not necessarily mean that they need to be decided and/or adjudicated for purposes of the adjudication of this application. I therefore consider it 23 officious to first consider the relevant legal position applicable in the circumstances of this application in order to decide whether it is necessary to decide all of the aforesaid factual disputes. APPLICABLE LEGAL PRINCIPLES : [22] In terms of Section 1(1) of the Law of Evidence Amendment Act, 45 of 1988, a court may take judicial notice of indigenous law. This section reads as follows : “1. JUDICIAL NOTICE OF LAW OF FOREIGN STATE AND OF INDIGENOUS LAW (1) Any court may take judicial notice of the law of a foreign state and of indigenous law insofar as such law can be ascertained readily and with sufficient certainty: Provided that indigenous law shall not be opposed to the principles of public policy or natural justice: Provided further that it shall not be lawful for any court to declare that the custom of lobola or bogadi or other similar custom is repugnant to such principles.” 24 [23] To ascertain indigenous law, the following principles are applicable : “There are at least three ways in which indigenous law may be established. In the first place, a court may take judicial notice of it. This can only happen where it can readily be ascertained with sufficient certainty. Section 1(1) of the Law of Evidence Amendment Act 45 of 1988 says so. Where it cannot be readily ascertained, expert evidence may be the establishment. Finally, a court may consult text books and case law.” See : BHA AND OTHERS v MAGISTRATE, KHAYELITSHA AND OTHERS (COMMISSION FOR GENGER EQUALITY AS AMICUS CURIAE); SHIBI v SITHOLE AND OTHERS; SOUTH AFRICAN HUMAN RIGHTS COMMISSION AND ANOTHER v PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND ANOTHER, 2005 (1) SA 580 (CC) at 638 C [24] In this instance the alleged customary marriage between the deceased and applicant was concluded in Lesotho. The question now arises on what basis it is to be decided whether that was a valid customary marriage or not. The general principle of the common law is that the validity of legal acts falls to be decided under law of the place where 25 they were performed. In this regard the following has been stated in Family Law Service, Schäfer, at p.53, paragraph A69: “The principle is locus regit actum and this leads to the validity of a marriage in determent by the lex loci celebrationis or law of the place where it was celebrated or entered into. If we apply this principle, the following are the results : (1) Any marriage concluded in South Africa will only be valid if it complies with the formalities of the South African law irrespective of whether the parties were domiciled or resident in South Africa or were citizens of South Africa; and (2) A marriage concluded in any other country will, barring exceptions, be valid if it was validly concluded according to the law of that country.” Also see: KASSIM v GHUMRAN AND ANOTHER, 1981 (4) SA 79 (Z) [25] I cannot see any reason nor am I aware of any principle or reason why similar principles should not apply to customary law. 26 [26] Therefore, in the circumstances of this application, the validity, or not, of the first respondent’s alleged customary marriage with the deceased is to be decided according to the relevant customary law applicable at that stage in Lesotho. If it is to be found that according to the customary law applicable in Lesotho at that time a valid customary marriage was concluded between the first respondent and the deceased, it will also be considered by South African courts to have been a valid marriage and will thus be treated as a valid marriage in South Africa. [27] It is also important to record that customary marriages have also been given constitutional recognition and protection by Section 15 of the constitution. As stated by Hlope JP in MABUZA v MBATHA, 2003 (4) SA 218 (CPD) at 227 H : “Further constitutional protection of customary marriages is provided by s 30 of the Constitution which enshrines language and cultural rights. Furthermore s 31 protects cultural, religious and language communities and the practice of such culture and religion. As Bertelsmann J pointed out in Thembisile and Another v Thembisile and Another, 2002 (2) SA 209 (T), the 27 core values of the Constitution, namely human dignity, nonracialism and equal protection afforded to individuals and communities, underscore this fact.” [28] The requirements for a customary marriage to have been validly concluded in Lesotho are set out in Section 34(1) of Part II of the Laws of Lerotholi, as specifically confirmed in the judgment of the Lesotho High Court on 11 April 1973, by Jacobs CJ in MATSEPE SEJANAMANE v LIBENYANE NTLAMA at 216 C: “A marriage by Basuto custom in Basutoland shall be deemed to be completed when : (a) there is agreement between the parties to the marriage; (b) there is agreement between the parents of the parties or between those who stand in loco parentis to the parties as to the marriage and as to the amount of the bohali; (c) there is payment of all or part of the bohali.” [29] It appears that according to Sesotho customary law a wife’s rank is determined by the time of her marriage. In this regard the following in stated in Customary Law in South Africa, TW Bennett, at p. 244 to 245 : 28 “When a husband dies, the existence of a polygynous household has a marked effect on the order of succession. If he was married according to the so-called simple system of polygyny, which applies in the Sotho-Tswana cultures, he has one main (or great) wife. The second wife is subordinate to the great wife, and each subsequent wife is subordinate to her predecessor. …. A wife’s rank is usually determined automatically, by the time of her marriage.” This principle was also confirmed in THEMBISILE AND ANOTHER v THEMBISILE AND ANOTHER, 2002 (2) SA 209 (TPD) in which matter the applicant was the deceased’s first wife in terms of a customary marriage and the first respondent was the deceased’s second wife in terms of an alleged civil marriage which was followed by an alleged customary marriage. In that matter Bertelsmann, J, concluded as follows on 215 B – C : “It was common cause that, if the deceased did indeed enter into a customary union with the first respondent …the first applicant’s right as the first wife, and the right of her son as the first-born male heir, to bury the deceased are stronger than any claims the first respondent might have.” 29 In that instance the applicant, being the first wife, was consequently granted leave to bury the deceased. [30] In the premises and should it be found that a valid customary marriage existed between the first respondent and the deceased, and should it also be found that a valid customary marriage existed between the applicant and the deceased, the first respondent (and her son) will still have a stronger right to bury the deceased than any claim the applicant (and her son) might have. [31] A further aspect which needs to be considered, should it be found that both the applicant and the first respondent had a valid customary marriage with the deceased, is what effect, if any, the recognition of Customary Marriages Act, 120 of 1998, the commencement date of which was 15 November 2000, will have on the situation. [32] In terms of Section 2(1) of this Act a marriage which is a valid marriage at customary law and existing at the commencement of this Act, is for all purposes recognised as a marriage. In this regard Ms Adams on behalf of the 30 applicant, referred to the definition of “customary marriage” as it appears in Section 1 of the Act, which reads “means a marriage concluded in accordance with customary laws” and she therefore also referred to the definition of “customary law” as it also appears in Section 1 of the Act, which reads “means the customs and usages traditional observed among the indigenous African peoples of South Africa and which form part of the culture of those peoples.” Based on this definition, she submitted that because the alleged customary marriage between the first respondent and the deceased was concluded in Lesotho, such marriage is not recognised in terms of this Act, as the first respondent and the deceased cannot be considered to have been “peoples of South Africa” at the time when they concluded the marriage in Lesotho. [33] In my view and based on the normal and grammatical meaning of the wording of the Act, seen as a whole, the mere fact that the definition of “customary law” refers to “peoples of South Africa” is not indicative of an intention of the legislature to exclude a customary marriage which had been concluded outside the boundaries of South Africa, but which was still concluded in accordance with the customs 31 and usages traditionally observed among the indigenous African people of South Africa. I am therefore of the view that should it be found that a valid customary marriage was indeed entered into between the first respondent and the deceased, albeit in Lesotho, such a customary marriage is similarly recognised by means of Section 2(1) of the Act than one which was entered into in South Africa. [34] Even should I be wrong in my aforesaid conclusion, I do not find anything in the Act, based on the normal grammatical meaning of the wording of Act, read as a whole, to indicate that a valid customary marriage concluded in South Africa and recognised by the Act as a marriage “for all purposes” means and has the consequence that a valid customary marriage concluded outside the boundaries of South Africa (and not recognized by the Act) is in some or other way superseded by one concluded in South Africa and recognised by the said Act. 32 [35] Consequently it is my view that should it be found that a valid customary marriage was concluded between the first respondent and the deceased in Lesotho, whether it is recognized by the Act or not does not in any way detract from the fact that the customary marriage in Lesotho was concluded before the one in South African and hence the right of the first respondent to bury the deceased is stronger than the right of the applicant. [36] A further aspect which needs consideration, should it be found that both the applicant and the first respondent had a valid customary marriage with the deceased, what effect a finding that the applicant and the deceased also concluded a civil marriage, would have on the rights of the first respondent. [37] The alleged civil marriage between the applicant and the deceased was concluded on 8 May 1992. At that time Section 1 of the Marriage and Matrimonial Property Law Amendment Act, Act 3 of 1988, which commenced on 2 December 1988, was in place, which Amendment Act, inter 33 alia, amended Sections 22(1) and 22(2) of the Black Administration Act, 38 of 1927, to read as follows : “22(1) A man and a woman between whom a customary union subsists are competent to contract a marriage with each other if the man is not also a partner in a subsisting customary union with another woman. (2) Subject to subsection (1), no person as a partner in a customary union shall be competent to contract a marriage during the subsistence of that union.” [38] In the premises, in terms of the aforesaid legislation (which has since been repealed by the Recognition of Customary Marriages Act 120 of 1998) and should it be found that the first respondent and the deceased were in a valid customary marriage at the time when the alleged civil marriage was concluded between the applicant and the deceased, the civil marriage was at the time of conclusion thereof prohibited by the aforesaid Section 22(2) and should therefore be considered to be null and void. This interpretation of the said Act was also followed in THEMBISILE AND ANOTHER v 34 TTHEMBISILE AND ANOTHER (supra), at 215 A, where it was stated that : “The civil marriage allegedly entered into between the deceased and the first respondent was concluded, purportedly, on 15 May 1996. As the customary union between the first applicant and the deceased had not been dissolved, this alleged civil marriage was a nullity.” CONSEQUENCES PRINCIPLES : OF THE AFORESAID LEGAL [39] In my view the consequences of the aforesaid legal principles are the following : 1. Should it be found that no valid customary marriage was entered into between the first respondent and the deceased, but that a valid customary marriage and/or civil marriage were entered into between the applicant and the deceased, the applicant will be entitled to bury the deceased. 2. Should it be found that a valid customary marriage was entered into between the first respondent and the 35 deceased during 1972, the first respondent will be entitled to bury the deceased, irrespective of whether a valid customary marriage was entered into between the applicant and the deceased and/or irrespective of whether a civil marriage was entered into between the applicant and the deceased. In this regard, should it be found that a valid customary marriage was entered into between the applicant and the deceased, the right of the first respondent to bury the deceased will still supersede any claim of the applicant, in that the applicant as the second wife of the deceased, is to be considered to be sub-ordinate to the first respondent as the first wife of the deceased. Should it be found that the applicant and deceased entered into a valid civil marriage, the first respondent will still be entitled to bury the deceased, as the civil marriage of the applicant and the deceased, having been concluded contrary to the provisions of Section 22(2) of the Black Administration Act, is to be considered to be a nullity. WAS A VALID CUSTOMARY MARRIAGE CONCLUDED BETWEEN THE FIRST RESPONDENT AND THE DECEASED DURING 1972? 36 [40] Because of the reasons stated above, the answer to this question in my view will determine the outcome of this application. [41] With regard to the first respondent’s allegation that she concluded a customary marriage with the deceased during 1972, which is being denied by the applicant, the following legal principles are applicable in my view. In SOFFIANTINI v MOULD, 1956 (4) SA 150 (E) at 154 G – H the following was said by Preiss, JP : “It is necessary to make a robust, common-sense approach to disputes on motion as otherwise the effective function of the Court can be hamstrung and circumvented by the most simple and blatant stratagem. The Court must not hesitate to decide an issue of fact on affidavit merely because it may be difficult to do so. Justice can be defeated or seriously impeded and delayed by an over fastidious approach to disputes raised in affidavits.” Considering that Ms Adams requested that should I not be able to make a finding in favour of the applicant, the matter should be referred to the hearing of oral evidence, I am of 37 the view that the following stated in Erasmus, Superior Court Practice, at B1-48A is applicable : “In general terms it can be said that oral evidence in terms of the subrule should be allowed if there are reasonable grounds for doubting the correctness of the allegations made by the applicant. In reaching a conclusion in this regard, facts peculiarly within the knowledge of the applicant which cannot for that reason be directly contracted or refuted by the other party are to be carefully scrutinized.” In addition to the aforesaid, it is important to understand that should the matter be referred for the hearing of oral evidence, it will not enlarge the enquiry to issues which have not been raised on the affidavits. In this regard the following is stated in The Civil Practice of the Supreme Court of South Africa, Van Winsen et al, 4th Edition at p. 386 : “The fact that the court orders oral evidence does not enlarge the scope of the enquiry; the rule provides a method of deciding conflicts of fact that are raised in the affidavits.” [42] A further general rule which is considered necessary to apply in this application, is that a decision of facts cannot properly 38 be founded on a consideration of the probabilities unless the court is satisfied that there is no real and genuine dispute on the facts in question or that viva voce evidence would not disturb the balance of probabilities appearing from the affidavits. The first rule applies not only to disputes of fact, but also to cases where the applicant seeks to obtain final relief on the basis of the undisputed facts together with the facts contained in the respondent’s affidavit. See : ADMINISTATOR, TRANSVAAL v THELETSANE, 1991 (2) SA 192 (A) at 197 A – C; PLASCON-EVANS PAINTS LTD v VAN RIEBEECK PAINTS (PTY) LTD, 1984 (3) SA 623 (A) at 634 H – 635 C [43] With the aforesaid principles in mind, I once again turn to the factual allegations contained in the papers. The first respondent alleges that she concluded a customary marriage with the deceased during 1972, during which a lobola agreement was concluded and her parents received 10 head 39 of cattle to complete the lobola. These allegations are being supported by the family member, Lithakong Maanela in his supporting affidavit. To a lesser extend these allegations are also supported by the letters from the Consulate of the Kingdom of Lesotho, read with the letter from the Chief of Tlokoeng Thaba-Tseka. [44] The aforesaid acts allegedly so performed, would have resulted in a valid customary marriage having been concluded in accordance with the requirements for such a marriage referred to herein earlier in terms of the Laws of Lerotholi, as confirmed in the judgment in Matsepe Sejanamane v Libenyane Ntlama (supra). [45] From the totality of the papers it is evident that the applicant has all-along had knowledge of the existence of the first respondent as well as the fact that she had children with the deceased, although the applicant apparently had the wrong information pertaining to the number of children. The only basis upon which the applicant disputes the existence of the alleged customary marriage between the first respondent and the deceased, is the fact that the deceased allegedly 40 told her that he was not married to the first respondent. Even if I accept the version of the applicant, the mere fact that the deceased told her so, in my view, is not an indication of this fact being the truth. Considering that on the first respondent’s version the deceased also did not tell the first respondent about the applicant’s existence, it is, my view, quite evident that the deceased did not want the applicant and the first respondent to know of one another, nor to know what type of relationship he had with them respectively. Considering that the alleged customary marriage between the deceased and the first respondent already took place during 1972, it does not appear from the papers before me that the applicant has any other evidence or witnesses with which she can refute the allegations made by the first respondent in this regard. [46] In my view further corroboration of the first respondent’s version is found in the nomination form attached to the answering affidavit. Although this nomination form indicates the name of a spouse which on face value thereof does not refer to either the applicant or the first respondent, the 41 deceased indicated his residential (home) address as being his address in Lesotho and not the address at which he resided with the applicant. He furthermore indicated (probably wrongly so) that he had a child by the name of Thumelo Maanela. Although this child seems to be neither the child of the applicant, nor of the first respondent, the undisputed fact is that this is a reference to the grandchild of the deceased, being the son of the eldest son whom the deceased had with the first respondent. This once again is indicative, in my view, of a closer connection between the deceased and the first respondent than between the deceased and the applicant. [47] Consequently it seems that there is no real and genuine dispute on the facts pertaining to the question of the conclusion of a customary marriage between the first respondent and the deceased. In my view viva voce evidence would not disturbed the balance of probabilities appearing from the affidavits as stated in the aforesaid paragraphs. Based on the facts contained in respondent’s affidavits, read together with the undisputed facts, I am convinced on a consideration of the probabilities that the first 42 respondent and the deceased in fact entered into a valid customary marriage in Lesotho during 1972. CONSEQUENCES OF THE CONCLUSION THAT A VALID CUSTOMARY MARRIAGE EXISTED BETWEEN THE FIRST RESPONDENT AND THE DECEASED: [48] As a result of this conclusion, and considering the applicable principles stated above, it becomes irrelevant to decide whether the applicant and the deceased in fact entered into a valid customary marriage and/or a civil marriage. For purposes of this application, even should I accept that applicant in fact concluded a valid customary marriage and/or a civil marriage with the deceased (which I do not decide, but accept for purposes of this application), it will have no effect on the fact that in accordance with the legal principles and case law already stated, the first respondent, as the first wife, and the right of her son, as the first-born male heir, are stronger to bury the deceased than any claims the applicant and her son might have. 43 [49] I am consequently of the view that the second rule nisi issued on 8 December 2007, should be confirmed and that the first rule nisi, issued on 7 December 2007, should be discharged. However, due to the fact that the deceased has since been buried, I consider it necessary and appropriate to amend the wording of the rule nisi which I intend to confirm. COSTS [50] Although I tend to accept that the applicant was probably bona fide in her belief that she was the only wife of the deceased and consequently entitled to make the funeral arrangements and to bury him, with the further consequence that she brought the initial first application, that, in my view, does not detract from the fact that vis-a-vis the first respondent the applicant, as the loosing party, has to bear the costs of the application brought by herself on 7 December 2007. [51] With regard to the subsequent conduct of the applicant by claiming the deceased’s body after having obtained the court order on 7 December 2007, apparently as a consequence of 44 the unfortunate wording of paragraph 2.3 of the said court order, the applicant did not provide any explanation in the papers for her conduct. This is despite numerous challenges that were put to her with regard to her lack of bona fides in the answering papers of the first respondent as well as in the urgent application lodged by the first respondent on 8 December 2007. In this regard it is necessary to record that the first respondent, in her urgent application of 8 December 2007, specifically requested that the applicant should advance reasons why she should not be ordered to pay the costs of that application on an attorney and client scale. The rule nisi which was consequently issued on 8 December 2007, also specifically included such an order. [52] Although I took cognisance of the fact that the applicant was not served with the propitiatory interdict issued on 8 December 2007 by Malherbe, JP, and consequently had no knowledge thereof, it still does not explain why she decided to have the deceased buried pursuant to having obtained the court order on 7 December 2007, whilst the court order of 7 December 2007 specifically provided for a return date before which the first respondent had the right to 45 still oppose the confirmation of the rule nisi. From the totality of the circumstances portrayed in the relevant papers filed in this application, I cannot but conclude that the applicant was mala fide in continuing with the funeral arrangements and the burial of the deceased despite the court order issued on 7 December 2007. This conduct of hers was also the very reason why the first respondent had no other option but to have brought the second urgent application on 8 December 2007. Because of the applicant’s mala fide conduct, I conclude in my discretion that it is fair and reasonable under the circumstances that the applicant, vis-à-vis the first respondent, should pay the costs of the application on an attorney and client scale, which costs include not only the costs of the initial application launched by the applicant, but also of the urgent application launched by the first respondent. [53] However, it is furthermore evident from the allegations made in the urgent application launched by the first respondent on 8 December 2007, read with the answering papers filed on behalf of the first respondent, that the second respondent, despite having knowledge of both the court orders, 46 intentionally and in direct conflict with both the prohibitory interdicts, still released the body of the deceased. This borders on contempt of court. Under the circumstances I am prima facie of the view that the second respondent should be ordered to pay the costs of both the applications, on an attorney and client scale, jointly and severally with the applicant, payment by the one the other to be absolved. However, it is trite law that such an order should not be made against a party unless that party have been afforded the opportunity to advance reasons as to why such an order of costs should not be made against him. In this regard I realise that the second respondent cannot be burdened with the costs of the drafting of the initial application launched on behalf of the applicant and the costs of the appearance on 7 December 2007, as the second respondent was at that stage only an interested party to the proceedings and played no active role in the dispute. However, after the order of 7 December 2007 was granted and during the subsequent events which occurred and resulted in the burial of the deceased, I am prima facie of the view that the second respondent can and ought to be held jointly responsible 47 together with the applicant for the further legal costs incurred. [54] I am consequently of the intention to grant an order which gives the second respondent the opportunity to advance reasons why he should not be ordered to pay the costs of both the applications on an attorney and client scale, jointly and severally with the applicant, payment by the one the other to be absolved, excluding the costs of the drafting of the first urgent application and the appearance on 7 December 2007. After having received such reasons from the second respondent in the determined time, or in the absence of the such reasons, I will make a final decision on the issue of costs. [55] From a practical point of view it needs to be recorded that due to the fact that the second respondent did not oppose the application, not all the papers filed in this application were served upon the second respondent. In order to put the second respondent in a proper position to advance reasons why it should not be ordered to pay the costs as aforesaid, it is necessary that second respondent obtains 48 copies of all the relevant papers filed in this application. Because I am of the view that the applicant has a substantial interest in the eventual order which I make pertaining to costs, I intend burdening the applicant with the obligation to see to it that the second respondent be served with all the papers filed in this application, as well as with a copy of this judgment, the costs of which service will be considered to be costs in the application. [56] The following order is made : 1. The rule nisi issued on 7 December 2007, is discharged. 2. The rule nisi issued on 8 December, is confirmed in the following amended wording: It is declared that first respondent, Mmampitla (Marejiwe) Maanela, was and is entitled to bury the deceased, Peter Maanela. The applicant, Ellen Nthabiseng Maanela, or any person acting under her instruction or authority, is interdicted, prohibited and restrained from interfering with first respondent`s right and entitlement to bury the deceased. 3. The costs of drafting the urgent application pertaining to which the first rule nisi was issued on 7 December 2007, 49 as well as the costs of appearance on 7 December 2007, are to be paid by the applicant. 4. The further costs of both the applications, excluding the costs referred to in 3 above, are to be paid by the applicant and the second respondent on an attorney and client scale jointly and severally, payment by the one the other to be absolved; alternatively, by the applicant on an attorney and client scale, the determination of which (between the aforesaid two alternatives) stand over to be determined in a court order to be issued on or before 7 February 2008. 5. For purposes of the order granted in 4 above, the applicant is ordered to see to it that a copy of both the applications (including the urgent application launched by the first respondent on 8 December 2007), as well as a copy of this judgment, be served upon the second respondent by Sheriff on or before 16 January 2008 and that the return of service be filed at court, the costs of which service will be costs in the application. 6. For purposes of the order granted in 4 above, leave is granted to second respondent to file an affidavit, should it so wish, on or before 4 February 2008 setting forth 50 reasons why it should not be ordered to pay the costs referred to in 4 above jointly and severally with the applicant, which affidavit only needs to be filed at Court. ____________ C. VAN ZYL, J On behalf of applicant: Adv. L.H. Adams Instructed by: Fusi Macheka Inc (Kroonstad) C/o Fusi Macheka Inc (Bloemfontein) Bloemfontein On behalf of 1st respondent: E.H. Phoofolo Instructed by: E.H. Phoofolo & Co. C/o Bokwa Attorneys Bloemfontein