Kunene v Bangaza and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Notyesi AJ
• Judgment Date: 04 July 2023
• Docket Number: 1808/2023
• Hearing Date: 11 May 2023
• Court: Eastern Cape Division

Notyesi AJ:

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Notyesi AJ

Introduction

[1]

Ms Zifikile Kunene, a daughter of the late Thabile Kunene (the deceased), born out of wedlock with Sindiswa Ndzeku, seeks for a declaratory order that the customary marriage entered into between the deceased and Monalisa Bangaza be declared invalid on the grounds of non-compliance with section 3(1)(b) of the Recognition of Customary Marriages Act 120 of 1998 (‘the Act’). She is contending that there was no handing over of Monalisa Bangaza to the deceased’s family and that the lobola negotiations were conducted by emissaries who were not members of her family.

[2]

On the contrary, Monalisa Bangaza is contending that she was lawfully married to the deceased and that her marriage had complied with all the requirements for a valid customary marriage as set out in section 3 of the Act. [1] Accordingly, she disputed that there was non-compliance with the provisions of section 3(1)(b) of the Act.

[3]

The crisp issue, therefore, is whether the deceased and Ms Bangaza complied with section 3(1)(b) of the Act and concluded a valid marriage, where the Bangaza family did not hand her over to the deceased’s family and in circumstances where the emissaries, during lobola negotiations, were not members of the deceased’s family.

The parties

[4]

The parties shall be referred to simply as Zifikile Kunene and Monalisa Bangaza. The father of Zifikile Kunene, or husband of Monalisa Bangaza, is referred to as the deceased.

Background

[5]

Zifikile Kunene, born out of wedlock, is a daughter of the deceased and one Sindiswa Ndzeku, who is also late. Ms Kunene launched these proceedings on an urgent basis. The dispute concerns two issues; the burial rights of the deceased and

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the validity of the marriage. The question pertaining to burial rights was resolved amicably as the parties agreed to separate the issues. They further agreed to conduct the burial of the deceased jointly. The only issue which remains to be determined by the court concerns the validity of the customary marriage between the deceased and Ms Bangaza.

[6]

Regarding the validity of the customary marriage, Ms Kunene had made various contentions in her founding affidavit. In summary, she alleged that she was born out of wedlock by the deceased and her mother, Sindiswa Ndzeku. Her mother passed on during the late 80s. She was then moved from her maternal home to the deceased’s family. She thereafter resided with the deceased since the late 80s. They were close to each other. The deceased, according to her, was never married at all during his lifetime. Even with her late mother, the deceased only had an intimate relationship. The deceased, to her knowledge, was only in an intimate relationship with Ms Bangaza.

[7]

She was recently informed that the deceased, without informing her, purportedly concluded a customary marriage with Monalisa Bangaza. She viewed such customary marriage between the deceased and Monalisa Bangaza as invalid for reasons that it did not meet the prescripts of the law. She made those conclusions about the invalidity of the customary marriage for these reasons–

(a)

A woman can only enter into a valid customary marriage when the two families (husband and prospective wife) enter into negotiations and agree about lobola, and according to her, the Kunene family and Bangaza family did not engage in such negotiations. None of the Kunene family members was present during the lobola negotiations in respect of the customary marriage between the deceased and Monalisa Bangaza.

(b)

She alleged that the marriage is unknown to the deceased’s family.

(c)

She further contended that the law requires that there must be a handing over of the bride to the groom’s family. That process, according to her,

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must be done by the elders of the Kunene family. This, she contended, did not occur.

(d)

In addition to the above grounds, Ms Kunene contended that there was no celebration of the customary marriage between the deceased and Monalisa Bangaza.

[8]

In support of her application, Ms Kunene filed several confirmatory affidavits by some members of the Kunene family and close relatives. Amongst those who filed confirmatory affidavits is Patrick Nzukiso Nkalane. Mr Nkalane made these allegations in his confirmatory affidavit that he visited the deceased. On his visit, the deceased informed him that on 11 November 2022, as Amatolo, they would visit the home of his girlfriend, Monalisa Bangaza. The purpose of the visit would be to pay lobola, which would be followed on 26 November 2022 by a wedding. When he discussed lobola with the deceased, they were all men.

[9]

He observed that the deceased was not well and tried to stop him from thinking about marriage. However, the deceased insisted and advised them that he would send Dr Nuku and another man to go and pay lobola for him if they refused. After the aforesaid discussion, they went out and held a meeting in the absence of the deceased. In that meeting, it was agreed that they would not proceed with the payment of lobola on behalf of the deceased because he was mentally disturbed, confused and of unsound mind. In their view, the deceased was not a fit person to conclude a marriage.

[10]

Another confirmatory affidavit filed in support of Ms Kunene is by Thando Kunene. According to Thando Kunene, he received a telephone call from Monalisa Bangaza advising him that the utsiki ceremony was going to be performed for her at the Xilinxa, the homestead of the deceased. At the time of the telephone discussion with Ms Bangaza, he was in Gauteng. A few days thereafter, he received another call from his wife, Sichumise, advising him that his sheep were dying and that he should return home. He returned, and upon arrival at home, he noticed several people at the deceased’s homestead. He was advised that the deceased had a traditional beer ceremony. According to the deceased, he was thanking his ancestors for giving him a

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further life, and he was discharged from the hospital. At about 13h30 pm, the deceased called him aside and informed him that he was going to book a bed and breakfast where they would conduct an utsiki ceremony for himself and Monalisa Bangaza. Indeed, at about 17h00, he learned that the deceased had conducted the utsiki customary marriage ceremony and thanksgiving.

[11]

Another confirmatory affidavit filed on behalf of the applicant was by Singatha Kunene. She confirmed that on 26 November 2022, there was a traditional ceremony at the deceased’s homestead. The deceased tendered an apology to her for not timeously advising that he had sent people to pay lobola on his behalf. She asked the deceased for the names of the emissaries. The deceased advised her that he sent Dr Nuku and Mr Mkhokeli Bovungana. According to her, this was strange because both names were not from their family. The deceased had also informed him that he was conducting a utsiki ceremony. He was referring to the traditional beer ceremony as utsiki. This witness disputed that the aforesaid utsiki ceremony was in accordance with the tradition of their family.

[12]

Another witness who filed a confirmatory affidavit in support of Ms Kunene was Ntombenkosi Vivian Dinizulu. She confirmed that on 26 November 2022, there was a traditional beer ceremony at the Kunene family. She was informed by one Nothobela Kunene that the deceased was performing a utsiki ceremony, although the deceased never confirmed to her.

[13]

She saw Monalisa Bangaza being dressed as a newlywed woman, although she had no further details.

[14]

It bears mentioning that Ms Kunene and all her witnesses confirmed that the deceased and Monalisa...