Malope v Minister of Home Affairs and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Ratshibvumo J
• Judgment Date: 21 October 2022
• Docket Number: 2358/2021
• Citation: 2022 JDR 3265 (MN)

Ratshibvumo J:

[1]

Introduction.

Facts of this case are largely undisputed. It is the legal interpretation thereof that is in dispute. Evidence led combines recent and not so recent history in the lives of the man and the woman he chose to be his wife. The following appears from a distant history. Two young hearts were bound together by love and romance. They agreed to take their enchantment to the next level so they could be a husband and a wife. Elders from the groom's family were sent to negotiate and pay lobola for the bride. A big day of traditional celebrations was set to be some six weeks later. As fate would have it, this was not to be. The big day found the bride lying paralysed in hospital. It was just two weeks before the big day that the groom was driving his bride at night, to Kanyamazane, where he had been renting a compound; that they were involved in a car accident.

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[2]

When she was discharged from hospital, she was wheelchair bound, a position that still subsists. The two proceeded to live together as a husband and wife, without the big day celebrations they had envisaged. Life turned to be different to what they had anticipated as lovers or as a couple. About three years later, they separated and even stopped cohabiting. That is how far the distant history goes. In the not so distant history, fast-forwarded to 10 years later, the groom died. That was on 19 March 2021. The Third to the Sixth Defendant (jointly referred to as the Defendants) refuse to recognise the lady whose lobola was paid by the deceased in 2007 (the Plaintiff), as his wife.

[3]

It is for the aforementioned reason that the Plaintiff launched an application, later converted into this action through a court order, seeking the order in the following terms:

a)

That the customary marriage between the Plaintiff and the deceased, entered into on 04 November 2007 be declared valid;

b)

That the First Defendant be directed to register the customary marriage;

c)

The Second and the Third Defendants be directed to recognise the Plaintiff as the surviving spouse of the deceased;

d)

Costs of suit in the event of the same being defended.

The action is opposed by the Defendants. The First and the Second Defendants do not oppose the Plaintiff's action.

[4]

Gleaning from the above, issues to be determined are therefore limited to the following: Was there a valid marriage concluded between the Plaintiff and the deceased? If there was, did the said marriage subsist at the time of the deceased's demise. This would also entail a finding on how a traditional marriage is terminated and whether the same was done in this case.

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[5]

Three witnesses testified for the Plaintiff including the Plaintiff herself. The Third Defendant was the sole witness for the Defendants. Following is the summary of facts from the evidence that was led.

[6]

Case for the Plaintiff.

Bongiwe Pretty Malope: She is the Plaintiff in this case. She is from Pedi tribe. She testified that she fell in love with Welcome Thabo Matsane (the deceased) in 2006. At that stage she was 26 and he was 32 years old. The deceased sent a delegation of elders from his family arriving at her home on 04 November 2007, in order to negotiate and pay lobola for her. The delegation from her family's side to receive the Matsane delegates comprised of her neighbour named Isaac Simelane and her grandparents Sarah and Mbanjwa Gininda. When the Matsane delegation was there, her mother called her in to confirm if she knew them and she confirmed. The Matsane delegation asked to leave with her but her mother declined saying she would follow to their family the next day. This was to let her remain attending to the Malope visitors who were there for her lobola negotiations.

[7]

As promised, she was taken to Matsane family on 05 November 2007. Once there, the deceased's brother, Selby Matsane introduced her to members of the Matsane family. She also testified that she and the deceased had planned a big celebration on 16 December 2007 but this did not materialise as she was involved in a car accident on 01 December 2007. She was in the company of the deceased who was the driver that night. He was however not injured. She was paralysed and lost her mobility since then. She was admitted in hospital for 13 weeks and when she was discharged, she was wheelchair bound.

[8]

Prior to the car accident, she used to visit the deceased at his place. They only started staying together as a husband and a wife from June 2008 following her

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discharge from hospital. In August 2008, she moved to Daggakraal because she had secured a new job as a nurse there. The two however remained committed to their marriage as in December 2009, she left her job and came back to their marital home in White River. They continued staying together until 2011 when the deceased moved out to go and reside in Barberton, in a house that he bought in 2009 through an auction. That marked the beginning of their separation, never to be together as a family again. She confirmed that during their years of separation, she had a lover named Cavallo. Out of this relationship, a child was born. That was in 2014. She however never stayed together with Cavallo. She was never married to anyone else except the deceased.

[9]

As introduction to the cross examination, lights were dimmed and the court was treated to a moment of watching a powerful and motivating documentary called My First. This is an SABC 1 production which is also accessible on YouTube on this website: https://www.youtube.com/watch?v=1JutqA4xSaQ. It was aired by the SABC on 18 December 2017. It focused on the Plaintiff as a person overcoming her disability and resolving to open a private clinic against all odds. People close to her like her mother and friends were interviewed talking about the Plaintiff's upbringing, her strengths and her strong will.

[10]

Only few snippets of the documentary were relevant for this trial. In the documentary, the Plaintiff avers that she was traditionally married and she refers to the person she was married to, as her ex-husband. The Plaintiff's mother confirms in this documentary that lobola was paid for her. She however adds that she had planned to take the Plaintiff to her in-laws on the 16th December 2007. This however did not happen as she was involved in a car accident. Lastly, the Plaintiff states in the documentary, just as she testified,

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that after she was discharged, she stayed with her husband in White River and that things did not work out between her and the husband. She finally called her mother to say she will be leaving her marital home in White River, which she eventually did.

[11]

In cross examination, the Plaintiff confirmed the documentary as reflecting what was recorded and aired by the SABC. She was steadfast in her version to the effect that she was introduced to her in-laws on 05 November 2007 and that there was no need for her to be handed over by her mother as she said she planned to do on 16 December 2007 in the documentary. She also indicated that she referred to her marriage in the past tense although she was only separated from her husband as she had moved on and she was not going to be able to prove the existence of that marriage.

[12]

She was further referred to a document that she completed in applying for home loan where she had indicated her marital status as single. [1] She confirmed this to have been a document processed when she applied for home loan finance and that she had to write that she was single as she would not have been able to produce a marriage certificate if she had indicated that she was married and they asked for proof. This was because their marriage was not registered with the Department of Home Affairs. She gave the same explanation on why her status in the companies where she served as a director is reflected as being single. She also confirmed that she is the one who walked out of the marriage when she left the marital home. She did not attend the deceased's funeral because her in-laws did not come to collect her as they had promised.

[13]

Of some great importance is a document presented to the plaintiff by the Defendant's counsel which happened to be the deceased's will. The will is not

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disputed by any of the parties. In fact, it is because of the will that the Third Defendant finds herself with the requisite locus standi as she had been nominated by the beneficiaries listed in it, including the Plaintiff. It is apposite though to indicate at this stage that the Plaintiff denied having nominated the Third Defendant as the executor of the deceased's estate. According to her, she was asked by the Third Defendant to simply sign a document and to write that she was an ex-wife.

[14]

In the opening paragraphs of the deceased's will, dated 13 November 2009 which remains valid to this day, the deceased stated as follows:

"I Welcome Thabo Matsane (Identity number 750514 5313 087), declare this to be my Last Will and Testament, and I hereby revoke, cancel and annul all wills, codicils or other testamentary dispositions previously made by me.

1.

It is my wish and desire that if practicable my body shall be buried.

2.

I bequeath my estate as follows:

a)

25% (Twenty five percent) to my wife Bongiwe Pretty Malope (ID 811104 0315 084). . ."

He then proceeded to bequeath the remainder of 75% to other persons including his children and his parents.

[15]

The purpose of introducing the will was to show that the Third Defendant, who was defending the action on behalf of the Fourth to the Sixth Defendants, was willing to release 25% share of the estate to her, but that should be it. Another reason for referring to the will was...