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