THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 755/2012
Not Reportable

In the matter between

MOHAU JACKSON MOROPANE

APPELLANT

and

ELIZABETH SOUTHON

RESPONDENT

Neutral citation: Moropane v Southon (755/12) [2014] ZASCA 76
(29 May 2014)

Coram:
Mthiyane DP, Maya, Bosielo and Theron JJA and Van Zyl
AJA

Heard:
03 March 2014

Delivered:  29 May 2014

Summary: Customary law – Recognition of Customary Marriages Act
120 of 1998 – requirements for a valid customary marriage -
Section 3(1) – whether the requirements for a valid
customary marriage were met.

___________________________________________________________

ORDER
___________________________________________________________

On appeal from: The South Gauteng High Court, Johannesburg
(Saldulker J sitting as a court of first instance):

The appeal is dismissed with costs.

___________________________________________________________

JUDGMENT
___________________________________________________________

Bosielo JA (Mthiyane DP, Maya and Theron JJA and Van Zyl AJA
concurring):

[1] At the heart of this appeal is the question, when does a customary
marriage entered into after the commencement of the Recognition of
Customary Marriages Act 120 of 1998 (the Act) become valid? One
would have thought that the simple answer lies in s 3(1) of the Act.
However, this case proves that the answer to this question might not be as
easy as it appears.

[2] The respondent avers that on 17 April 2002, the appellant, Mr
Mohau Jackson Moropane, sent a delegation led by his brother, Mr Strike
Moropane, (Strike) to the respondent‟s, Ms Elizabeth Southon, parental
home in Seshego, Polokwane. Certain negotiations were carried out
between the two families which culminated in an agreed amount of

R6 000 being paid by the appellant‟s delegation to her family. What this
payment was for is in dispute. The respondent avers that it was for her
lobola, agreed upon by the representatives of their respective families.
The appellant disputes this vigorously. He asserts that the payment was
merely a symbolic gesture for opening negotiations (go bula molomo/go
kokota) for the respondent as his future wife.

[3] According to the respondent from 17 April 2002 until she left in
November 2009, they lived together in a common home in Johannesburg
as man and wife. The respondent avers that their cohabitation was a
customary marriage whereas the appellant asserts that it was a mere
cohabitation. This dispute culminated in a case which was heard by the
South Gauteng High Court (Saldulker J) which held that a valid
customary marriage was concluded. Aggrieved by this finding, the
appellant appeals to this Court, with leave of the high court.

[4] For a proper understanding of the dispute in this case it is necessary
to set out in full the background facts. It is common cause that the parties
met and fell in love during 1995. At that time, the appellant was still
married to his former wife whom he divorced in October 2000 after
which the respondent moved in with the appellant. From this date they
both lived together at the appellant‟s house in Morningside Manor,
Johannesburg.

[5] In early 2002, the appellant proposed marriage to the respondent,
who accepted. Although the parties are agreed on the intended marriage
they differ as to its nature. Were they going to be married according to
customary law or civil rites? The respondent maintains that it was to be

by customary law whilst the appellant stands firm that it was to be by
civil rites. The determination of this dispute is pivotal to the question
whether a customary marriage or civil marriage came about.

[6] What follows is broadly the respondent‟s evidence supported by
three witnesses. She testified that after having lived together for some
time the appellant proposed to marry her by customary rites which
proposal she accepted. Following this, the appellant, as already
mentioned, sent his emissaries, comprising of Strike, Jojo, his sister, his
father‟s sister, Mmantoa Moropane, his brother-in-law, Thipe Seema, and
his cousin Billy Moropane to respondent‟s home in Seshego, Polokwane
to enter into negotiations with her family for purpose of marrying her (go
batla sego sa metsi)1 as it is custom. Her family was represented by a
delegation of some elders led by her brother, Mameta Gilbert Mamabolo.
The delegation included her sister, Rethabile Pauline Phashe, her
mother‟s cousin, Mmaphefo Francina Malotane, Ragele Rachel Sefefe,
her uncle, Makgathi Ernest Mamabolo and a family friend Tebedi John
Mokomo.

[7] The respondent‟s aunt Monica Malaza acted as a facilitator or go-
between (Mmaditsela) for the respondent‟s family (the Mamabolos)
whilst Strike played the same role for the appellant‟s family (the
Moropanes). Initially the respondent‟s family demanded R10 000 for
lobola. Following some intense negotiations this amount was ultimately
reduced to R6 000 which the appellant‟s family accepted and duly paid.
After the lobola was paid, the two families exchanged gifts in accordance
with the Pedi custom. The Moropanes gave the Mamabolos two blankets,

1 The literal meaning whereof is to request to marry a would be bride (my translation).

one for the respondent and the other one for her mother as well as knives
and cutlery. In terms of their Pedi culture the Moropanes should also have
brought a present for the respondent‟s father but as they did not have it,
they paid money in its stead.

[8] In the course of the day‟s event, the Mamabolos gave the
Moropanes a sheep which was then slaughtered to signify the new union
between the two families brought about by the customary marriage
between the appellant and the respondent. The sheep was shared between
the two families and the remaining portion was cooked and served to the
people who attended the ceremony.

[9] This was followed by some festivity during which the two families
and the people who had gathered at the Mamabolos‟ residence sang,
danced, ululated and partook in food and drinks in celebration of the
customary union. As it is taboo in their Pedi culture for the respondent to
be seen by her new in-laws in ordinary clothes Jojo draped her with the
blanket which the Moropanes had bought for her. This festivity was
captured in a number of photographs which were tendered and accepted
as exhibits by the court below. All these events give character to a
customary union.

[10] Later that day a closed meeting was held between the two families
when the appellant‟s delegation requested the respondent‟s family to
permit the newly wed bride (makoti) to be delivered to their home. As
part of the Pedi custom, the respondent‟s elders then counselled her (go
laiwa) regarding how she was expected to comport herself at the
appellant‟s family home as the bride (makoti). This cultural ritual as

testified to by experts who gave evidence is essential and deeply
embedded in the institution of customary marriage. Later on the
respondent was driven to the appellant‟s home in Atteridgeville, Pretoria.
She was accompanied by Ms Malotana, who acted as her envoy and
delivered her to her in-laws. Jojo travelled with them.

[11] Upon their arrival at the appellant‟s home in Atteridgeville, later
that evening, the respondent was received into the house by the
appellant‟s sisters. This was preceded by a celebratory reception with
people singing, ululating and dancing for the couple in the street. Later on
the appellant‟s sisters, Jojo and Dikeledi welcomed the respondent into
their home as the makoti and counselled her (go mo laya)2 in accordance
with their culture about how they expected her to behave in their home as
the makoti in line with their culture.

[12] After these customary rituals, the respondent left for the parties‟
common home accompanied by Ms Malotana. From this day, the couple
lived together as man and wife at the appellant‟s residence until their
marriage experienced serious problems. These culminated in the
respondent leaving the appellant permanently and returning to her home
in Polokwane during November 2009.

[13] It suffices to state that the respondent‟s version is confirmed in all
material respects by her witnesses Ms Malotane, Mameta Gilbert
Mamabolo and Monica Malaza. Essentially, all three of them testified
that a customary marriage was concluded and celebrated in terms the
customary law on 17 April 2002 between the appellant and the

2 The literal translation is to counsel or give advice on how to behave at her in-laws (own translation).

respondent. Importantly, they testified that the customary marriage was
sealed officially by the transfer of the respondent from her family and
delivery to her in-laws by Ms Malotana, acting on behalf of the
respondent‟s family that evening in Atteridgeville.

[14] Contrariwise, the appellant‟s version is as follows. In essence he
disputes that a valid customary union was negotiated and concluded
between him and the respondent as alleged by the respondent. Although
he agrees that he had sent Strike, as his emissary to the respondent‟s place
to begin exploratory discussions with them about lobola on 17 April
2002, he denies that he had instructed him to pay lobola and conclude a
customary marriage. According to him his mandate to Strike was to pay
pula molomo/go kokota,3 being the equivalent of opening negotiations
only. He testified that Strike was alone. He was emphatic that there was
no delegation which had accompanied Strike to Seshego.

[15] Although he admitted that the respondent, accompanied by her
aunt, came to his home in Atteridgeville that night, he maintained that she
had brought Jojo home and not for her to be delivered as a makoti.
According to the appellant the cohabitation with the respondent
subsequent to 17 April 2002 was based on the fact that he had paid
R6 000 for her. In his understanding he had „ring-fenced‟ her which
accorded him certain privileges, including treating her as, and calling her
his wife.

[16] The appellant asserted that he could not have agreed to marry by
customary law as he does not live his life according to African customs

3 The literal translation is to open negotiations for lobala (my translation).

more so as he had been married by civil rites before. His explanation as to
why he agreed to pay lobola which is inarguably an African cultural
practice is that „it is a small part of the tradition that we take out‟
implying that it was meaningless for him.

[17] I interpose here to state that there are a number of important events
which took place between 2002 and November 2009 whilst the parties
lived together in Johannesburg which merit special consideration.
Amongst these are that the appellant bought the respondent an 18 carat
yellow ring which he arranged with a jeweller to redesign as a wedding
ring; he organised a lavish 50th birthday for her which was captured on a
DVD; he admitted that at this birthday he freely referred to her as his
customary law wife; Strike also referred to her as the appellant‟s wife at
this party; the appellant further referred to her mother as his mother-in-
law and Gilbert, as his brother-in-law; when he applied for her to be a
member of the prestigious Johannesburg Country Club, he described her
as his customary law wife and also when he applied for a protection order
against her at the Randburg Magistrates‟ Court, he described her as his
customary law wife. Crucially all these events are not in dispute.

[18] On being asked why he referred to the respondent as his wife, he
prevaricated. First, he said that it is because as a person of advanced age
it would have been embarrassing to call her his girlfriend. Secondly, he
asserted that he called her his customary law wife because he was entitled
to call her that as he had „ring-fenced‟ her.

[19] Strike then testified for the appellant. He confirmed that he went to
the respondent‟s place on 17 April 2002 as per the appellant‟s

instructions. His mandate was not to pay lobola for the respondent but to
open negotiations for lobola (go kokota/go bula molomo), so he testified.
According to him, he never had instructions from the appellant to
conclude any customary marriage with the respondent. He denied that he
was with a delegation. His evidence was that he paid R6 000, not as
lobola but as a customary token to open negotiations (go kokota/go bula
molomo). Concerning the presence of Jojo at the respondent‟s place, he
explained that she was there because she is friends with the respondent.
He denied that Jojo was part of the delegation. He also denied having
discussed the purpose of his visit there with Jojo on that day.

[20] When confronted with photographs which showed members of his
family and the respondent‟s family participating in festivity at the
respondent‟s home that day, Strike denied that there was any celebration
for a customary marriage. Similarly, he denied that there was a similar
celebration at his parental home in Atteridgeville to welcome the
respondent as the makoti later that night.

[21] The appellant and Strike were subjected to a searching cross-
examination. They were also confronted with photographs which were
taken on this day as well as the various public utterances during which
the respondent was referred to as the appellant‟s wife. It is not surprising
that they did not come out unscathed from their forensic sparring match
with the respondent‟s counsel.

[22] Strike had serious problems to explain the presence and role played
by Jojo during the ceremony at Seshego on 17 April 2002. He testified
that she was there on a frolic of her own.

[23] The falsehood in both Strike and the appellant‟s persistent denial
that the latter had sent a delegation was exposed by the appellant, who in
his answering affidavit suffered a Freudian slip when he stated that:
„A delegation had been sent as previously stated, headed by my brother who the
Applicant refers to as Strike. I was not present and do not know who was part of the
delegation.‟
It is noteworthy that Strike, despite his persistent denial that he was
accompanied by a delegation confirms the appellant‟s assertion as correct
in his confirmatory affidavit.

[24] It is clear from the record that Strike was not a reliable witness. He
came across as very arrogant, evasive, longwinded and argumentative. At
some stage when he got himself into a knot, he sought some refuge in
boasting that he has three degrees. The relevance of this response still
evades me.

[25] The appellant himself did not perform better during his cross-
examination. He, too, was evasive and unconvincing with his responses.
He also came across as being unnecessarily argumentative and
longwinded. He offered no plausible response to the damning
photographs taken at Seshego on that day save to allege that this was a
cleansing ceremony which had been arranged for the respondent by her
family, which Strike and her sister attended. However he asserted that he
was not present. He also had serious difficulties to explain why on more
than one occasion he referred to the respondent as his wife.

[26] On the other hand, the record showed the respondent to have been
an honest and candid witness. She was never evasive or hesitant in her
responses. She gave a clear and coherent account of the events. The same
can be said about all her witnesses. Crucially, they corroborated the
respondent‟s version in all its material respects.

[27] The appellant‟s counsel launched a two-pronged attack against the
judgment of the court below. In the main, he submitted that there is no
evidence that the parties had ever agreed to conclude a customary
marriage, thus suggesting that the requirement in s 3(1)(b) of the Act was
not met; second, that the appellant would not have married by custom as
neither of the parties lived their lives in accordance with customary law
or culture. Although he could not dispute that the two families met and
had negotiations, he contended that all that happened on 17 April 2012
was meant to be preliminary or exploratory discussions about lobola (go
kokota or go bula molomo) and not to conclude a customary marriage.

[28] However, the appellant‟s counsel had serious difficulty explaining
why the appellant would pay R6 000 to open negotiations for lobola (go
kokota/go bula molomo) which is admittedly an important cultural
practice integral to a customary marriage if he does not live his life
according to African culture. He contended further that as there was no
common intention between the parties to marry by customary rites, there
could never have been a valid customary marriage.

[29] Respondent‟s counsel countered this contention by submitting that
the evidence as a whole points overwhelmingly to no other conclusion
than to the existence of a valid customary marriage. He submitted that it

is clear from what occurred on 17 April 2002, that all the legal
requirements of a customary marriage as set out in s 3(1) of the Act were
met.

[30] Respondent‟s counsel submitted further that as a final step to
validate a customary marriage, the respondent was later that evening
taken to Atteridgeville at the appellant‟s home accompanied by an envoy
Mrs Malotana, her uncle‟s wife, for her to be formally handed over to the
Moropanes, her in-laws. Further, that upon her arrival at Atteridgeville,
she was welcomed by the appellant‟s sisters, who after some festivity
accompanied by singing, ululating and dancing also counselled (laya) her
in terms of their culture, this being the official seal of a customary
marriage.

[31] He also contended that as further proof of the customary marriage,
both the appellant and the respondent drove to the appellant‟s home in
Morningside late that evening, where they cohabited as man and wife
until on 16 November 2009, when she left as their marriage had broken
down irretrievably.

[32] In conclusion, he contended that the appellant‟s utterances and
behaviour towards the respondent after 17 April 2002 as fully set out
above are irrefutable testimony that the parties were married according to
customary law and, importantly, that he publicly acknowledged her as
such.

[33] Ultimately the resolution of the dispute between the parties comes
down to the question whether the high court erred in finding, on a

conspectus of the evidence, that a valid customary marriage was
concluded between the parties on 17 April 2002. To my mind, the answer
to this question lies in s 3(1) of the Act which provides that:
„For a customary marriage entered into after the commencement of the Act to be valid
–
(a) the prospective spouses –
(i) must both be above the age of 18 years; and
(ii) must both consent to be married to each other under customary law; and
(b) the marriage must be negotiated and entered into or celebrated in accordance with
customary law‟.

[34] It is clear from the above section that these are the only three basic
statutory requirements for the validity of a customary marriage, the so-
called jurisdictional requirements.

[35] The requirement in s 3(1)(b) that „the marriage must be negotiated
and entered into or celebrated in accordance with customary law‟ is clear
and unambiguous. Even the Legislature did not consider it necessary to
define it. This is understandable as customary law is as diverse as the
number of different ethnic groups we have in this beautiful country.
Although Africans in general share the majority of customs, rituals and
cultures, there are some subtle differences which, for example, pertain
exclusively to the Ngunis, Basotho, Bapedi, VhaVenda and the Vatsonga.
This is due to the pluralistic nature of African societies.

[36] Furthermore, African law and its customs are not static but
dynamic.4 They develop and change along with the society in which they
are practised. This capacity to change requires the court to investigate the

4 Bhe v Magistrate, Khayelitsha 2005 (1) SA 580 (CC).

customs, cultures, rituals and usages of a particular ethnic group to
determine whether their marriage was negotiated and concluded in terms
of their customary law at the particular time of their evolution. This is so
particularly as the Act defines „customary law‟ as the customs and usages
traditionally observed among the indigenous African peoples of South
Africa and which form part of the cultures of those people.

[37] It follows that it would be well-nigh impossible and undesirable to
attempt an exhaustive and all-inclusive definition of a phrase which is
susceptible to variations depending on which particular ethnic group it
relates to. The most salutary approach to ascertaining the real meaning of
this requirement is by examining the current cultural practices and
customary law of that particular ethnic group as the Constitutional Court
did in MM v MN.5 When confronted with the problem concerning the role
which the consent of the first wife plays in relation to the validity of her
husband‟s subsequent polygamous customary marriage of the Vatsonga
in terms of Xitsonga customary law the Constitutional Court stated as
follows at para 48:
„It is incumbent on our courts to take steps to satisfy themselves as to the content of
customary law and, where necessary, to evaluate local custom in order to ascertain the
content of the relevant rule‟.
Importantly the Constitutional Court expressed a salutary warning at para
51 as follows:
„It should also be borne in mind that customary law is not uniform‟.

[38] How then does a court determine what the current customary law,
called „the living customary law‟, applicable to a particular case is? This
question has proved to be problematic for our courts. Whilst grappling

5 MM v MN 2013 (4) SA 415 (CC) para 48.

with this polemic, the Constitutional Court lit the dark pathway in Bhe v
Magistrate, Khayelitsha above at para [150] where it stated:
„How to ascertain indigenous law?
[150] 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 Evidence
Amendment Act 45 of 1988 says so. Where it cannot be readily ascertained, expert
evidence may be adduced to establish it. Finally, a court may consult text books and
case law.
[151] Caution, however, must be exercised in relying on case law and text books. In
Alexkor we emphasised the need for caution and said:
“(not clear where this quote ends) Although a number of text books exist and there is
a considerable body of precedent, courts today have to bear in mind the extent to
which indigenous law in the pre-democratic period was influenced by the political,
administrative and judicial context in which it was applied. Bennett points out that,
although customary law is supposed to develop spontaneously in a given rural
community, during the colonial and apartheid era it became alienated from its
community origins. The result was that the term “customary law” emerged with three
quite different meanings: the official body of law employed in the courts and by the
administration (which, he points out, diverges most markedly from actual social
practice); the law used by academics for teaching purposes; and the law actually lived
by the people.
[152] It is now generally accepted that there are three forms of indigenous law: (a )
That practiced in the community; (b) that found in statutes, case law or textbooks on
indigenous law (official); and (c) academic law that is used for teaching purposes. All
of them differ. This makes it difficult to identify the true indigenous law. The
evolving nature of indigenous law only compounds the difficulty of identifying
indigenous law.
The evolving nature of indigenous law
[153] Indigenous law is dynamic system of law which is continually evolving to
meet the changing circumstances of the community in which it operates. It is not a
fixed body of classified rules. As we pointed out in Alexkor:

“In applying indigenous law, it is important to bear in mind that, unlike common law,
indigenous law is not written. It is a system of law that was known to the community,
practised and passed on from generation to generation. It is a system of law that has
its own values and norms. Throughout its history it has evolved and developed to
meet the changing needs of the community. And it will continue to evolve within the
context of its values and norms consistently with the Constitution”.‟

[39] Two expert witnesses, Mr Sekhukhune for the appellant and
Professor Mokgatswane for the respondent, were called to testify on Pedi
customary marriages in an attempt to assist the court to determine
whether the marriage between the parties was „negotiated and entered
into or celebrated in accordance with customary law‟ of the Bapedi
people. This is in line with the authority of Masenya v Seleka Tribal
Authority & another,6 and Hlophe v Mahlalela & another.7 Except for
minor and inconsequential differences on cultural rituals, both experts
were agreed that the current customary requirements for a valid
customary marriage amongst the Bapedi people include amongst others,
negotiations between the families in respect of lobola; a token for opening
the negotiations (go kokota or pula molomo); followed by asking for the
bride (go kopa sego sa metsi); an agreement on the number of beast
payable as lobola (in modern times this is replaced by money); payment
of the agreed lobola; the exchange of gifts between the families; the
slaughtering of beasts; a feast and counselling (go laiwa) of the makoti
followed by the formal handing over of the makoti to her in-laws by her
elders.

[40] Importantly, the two experts agreed that the handing over of the
makoti to her in-laws is the most crucial part of a customary marriage.

6 Masenya v Seleka Tribal Authority & another 1981 (1) SA 522 (TPD) at 524;
7 Hlophe v Mahlalela & another 1998 (1) SA 449 (TPD) at 457E-F.

This is so as it is through this symbolic customary practice that the
makoti is finally welcomed and integrated into the groom‟s family which
henceforth becomes her new family. See Motsotsoa v Roro & another8
and The Current Legal Status of Customary Marriages in South Africa, I.
P. Maithufi and GBM Moloi, Journal of SA Law, 2002, p599, and
Bennett (above) at p217.

[41] However, the two experts had some differences of opinion on
certain cultural practices of the Bapedi concerning customary marriages.
They filed a joint minute recording their differences. To my mind, these
are insignificant variations which do not detract from the validity of a
customary marriage. These relate to amongst others, whether money can
be used as lobola in the place of cattle; whether it was in accordance with
Pedi culture to slaughter a sheep instead of a cow; whether the ribs
(letlhakore) was given to the tribal Chief; whether the groom‟s people
were given the front limb (letsogo); whether a calabash of African beer
was given to the groom‟s people.

[42] Mr Sekhukhune testified to a large extent about the Bapedi
customary marriage as it is practised and observed in rural areas, in other
words a traditional Pedi customary marriage which has not been
influenced by modern developments like urbanisation, western culture
and the all-pervasive Christianity. He conceded, however, that the
position in urban areas is different as the people there are „sort of
cosmopolitan type of African people‟.

8 Motsotsoa v Roro & another [2011] All SA 324 (GSJ).

[43] On the other hand, the testimony of Professor Mokgatswane, was
more about current customary practices which apply in „modern
cosmopolitan times in the cities‟. Essentially, his evidence was that
traditional customary practices have evolved over time as Africans left
rural villages and migrated to urban areas and became exposed to other
cultures.

[44] Some brief comments on the Act are apposite. It has great
significance for the African people in general. As its Preamble clearly
specifies, its primary objective is to give customary marriages recognition
which was not the case under the past odious apartheid regime. It aspires
to rid customary marriage of the pariah-status and stigma attached to it by
the apartheid regime and accord it dignity and legal validity. As the
Constitutional Court remarked rather poignantly in Gumede v President
of Republic of South Africa & others:9
„… it [the Recognition Act] represents a belated but welcome and ambitious
legislative effort to remedy the historical humiliation and exclusion meted out to
spouses in marriages which were entered into in accordance with the law and culture
of the indigenous African people of this country‟.

[45] That customary law and it various institutions, including marriage
is the subject of an evolutionary process and continues to be so, to which
factors such as urbanisation, exposure to western culture and other
religious practices contributed, is correct. This important characteristic of
African law as a living law is widely acknowledged by our courts and
some academic writers like T. W. Bennett: A Sourcebook of African
Customary Law of Southern Africa at p204-223; Mabena v Letswalo

9 Gumede v President of Republic of South Africa & others 2009 (3) SA 152 (CC) at 160B.

1998 (2) SA 1068 T(PD) at p1074H-J and the Constitutional Court in Bhe
v Magistrate, Khayelitsha (above) para [154].

[46] I can only hope that this unashamedly aspirational piece of
legislation will serve the laudable purpose of freeing people from the
shackles of colonial tendencies which sought to relegate marriages
negotiated, concluded and celebrated in accordance with customary law
to a status less than that of marriages concluded and solemnised by civil
rites. African customary marriages deserve to be put on the same pedestal
as civil marriages. These same sentiments were echoed by the
Constitutional Court in Gumede (above) at para [22] as follows:
„… Secondly, the adaptation would salvage and free customary law from its stunted
and deprived post. And lastly, it would fulfil and reaffirm the historically plural
character of our legal system, which now sits under the umbrella of one controlling
law – the Constitution. In this regard we must remain mindful that an important
objective of our constitutional enterprise is to be united in our diversity. In its desire
to find social cohesion, our Constitution protects and celebrates difference…‟

[47] To sum up, it is not in dispute that both parties are above the age of
18 years. The only two issues which are seriously contested are lack of
consent by the appellant to marry by customary law (s 3(1)(a)(ii) of the
Act) and, whether the marriage was negotiated and entered into in
accordance with customary law (s 3(1)(b) of the Act).

[48] How then does one resolve these two contentious issues which the
appellant placed in dispute? Sufficient evidence was adduced by both
parties regarding amongst others, their relationship, the circumstances
and events which took place on 17 April 2002, and importantly, the
behaviour of the parties after this day. In addition some photographs

recording the events of 17 April 2002 and a video cassette showing a
celebration of respondent‟s 50th birthday were accepted as exhibits.

[49] Contrary to the evidence by both the appellant and his brother
Strike, that there was no delegation, it is clear from the evidence and
photographs which were admitted as exhibits that there was a strong
delegation of the appellant‟s family which travelled from Atteridgeville to
the respondent‟s home in Seshego on 17 April 2002. Furthermore, it is
not in dispute that there were negotiations between the two families as a
consequence of which an amount of R6 000 was paid by the Moropanes
to the Mamabolos. Crucially, photographs show the appellant‟s sister,
Jojo draping the bride with a blanket and clear evidence of celebration.

[50] It is clear that the versions of the appellant and the respondent are
incompatible. In order to resolve this impasse, the trial judge had to
consider and weigh the probabilities to determine which version is more
probable than the other. She also had to consider the credibility and
reliability of the various witnesses. The test to be applied in such a case
was enunciated lucidly as follows in National Employers’ General
Insurance v Jagers:10
„It seems to me, with respect, that in any civil case, as in any criminal case, the onus
can ordinarily only be discharged by adducing credible evidence to support the case of
the party on whom the onus rests. In a civil case the onus is obviously not as heavy as
it is in a criminal case, but nevertheless where the onus rests on the plaintiff as in the
present case, and where there are two mutually destructive stories, he can only
succeed if he satisfies the court on a preponderance of probabilities that his version is
true and accurate and therefore acceptable, and that the other version advanced by the
defendant is therefore false or mistaken and falls to be rejected. In deciding whether

10 National Employers’ General Insurance v Jagers 1984 (4) SA 437 (ECD) at 440D-441A.

that evidence is true or not the court will weigh up and test the plaintiff‟s allegations
against the general probabilities. The estimate of the credibility of a witness will
therefore be inextricably bound up with a consideration of the probabilities of the case
and, if the balance of probabilities favours the plaintiff, then the court will accept his
version as being probably true. If however the probabilities are evenly balanced in the
sense that they do not favour the plaintiff‟s case any more than they do the
defendant‟s, the plaintiff can only succeed if the court nevertheless believes him and
is satisfied that his evidence is true and that the defendant‟s version is false.
This view seems to me to be in general accordance with the views expressed by
Coetzee J in Koster Ko-operatiewe Landboumaatskappy Bpk v Suid-Afrikaanse
Spoorwee en Hawens (supra) and African Eagle Assurance Co Ltd v Cainer (supra). I
would merely stress however that when in such circumstances one talks about a
plaintiff having discharged the onus which rested upon him on a balance of
probabilities that means that he was telling the truth and that his version was therefore
acceptable. It does not seem to me to be desirable for a court first to consider the
question of the credibility of the witnesses as the trial Judge did in the present case,
and then having concluded that enquiry, to consider the probabilities of the case., as
though the two aspects constitutes separate fields of enquiry. In fact, as I have pointed
out, it is only where a consideration of the probabilities fails to indicate where the
truth probably lies, that recourse is had to an estimate of relative credibility apart from
the probabilities.‟

[51] Having regard to the above dictum, the finding by the trial judge of
serious improbabilities in the appellant‟s version was correct. For
instance, as indicated above, a series of photographs proved without
doubt that there were some people at the respondent‟s home on this day;
Jojo, the appellant‟s sister is depicted draping the respondent with a
blanket; some photographs showed clear evidence of some celebration at
the respondent‟s home on that day. Importantly, it is common cause that
an amount of R6 000 was paid to the Mamabolos by the Moropanes on
that day. The appellant‟s version that this was a mere token to open

negotiations is discredited by the combined version of the two experts,
Mr Sekhukhune and Professor Mokgatswane to the effect that only a
nominal amount is normally paid go kokota/go bula molomo.

[52] The following questions remain unanswered if the appellant‟s
version is to be believed: why was there such a big delegation of the
appellant at the respondent‟s place on the day; If this was not a customary
marriage why did the families exchange gifts; why did Jojo drape the
respondent in a blanket; why was a sheep slaughtered; why was the
respondent counselled (go laiwa) that night; why was the respondent
delivered to the appellant‟s home that night; why would the respondent
cohabit with the appellant as husband and wife for almost 8 years; why
would the appellant, on his own, on diverse occasions and in public refer
to the respondent as his customary law wife; why would the appellant buy
the respondent a wedding ring valued at R91 850 if he did not regard her
as his customary law wife and, finally, why did the appellant organise
such a lavish 50th birthday party for her where he referred to her in public
as his customary law wife? It is not surprising that the appellant could not
proffer any satisfactory or credible answer to these questions.

[53] The trial judge made positive findings on the credibility of the
respondent and her witnesses. On the contrary, she found the evidence of
the appellant and his witnesses unreliable and not credible. The trial judge
had the advantage of observing the various witnesses whilst they testified
before her. This gave her an advantage which this Court, sitting as a court
of appeal, does not have. As the saying goes, she was steeped in the
atmosphere of the trial. Absent any evidence of a misdirection, I am
therefore not at large to interfere with her findings even more so that I

cannot find any fault with her assessment and evaluation of the evidence
in its totality.

[54] I
have
already
pointed
out
serious
contradictions
and
improbabilities in the version of the appellant and Strike as dealt with by
the trial judge. These contradictions go to the heart of this matter.
Another telling blow is the letter dated 21 December 2007 which the
appellant wrote to the respondent which is replete with expressions like
„to my darling wife‟; „my beautiful and ever looking your wife‟; „my
lovely wife‟; „our wedding ring‟. This letter refers to the ring which the
appellant admitted he had instructed a jeweller to restyle as a wedding
ring. To my mind, this is the proverbial nail in the appellant‟s coffin. It
suffices to state that the appellant‟s mendacity was exposed by his
various references in various places and the video recording of her 50th
birthday party to the respondent as his wife.

[55] Against this backdrop, I am satisfied that the essential requirements
for a valid customary marriage according to the customary law of the
Bapedi people have been met. To my mind, this is in line with the
requirements in s 3(1) of the Act.

[56] To sum up, having analysed the evidence carefully, I find the
respondent‟s version, as fully corroborated by her witnesses, the
independent and objective evidence of photographs and the behaviour of
the parties from 17 April 2002 until she left in November 2009, and
importantly the evidence of the two expert witnesses, to be consistent
with the existence of a valid customary marriage.

[57] Consequently, I find the respondent‟s version not only more
probable but reliable and credible and that of the appellant to be so
seriously improbable to be false. I agree with the conclusion reached by
the judge a quo. It follows that the appeal is without merit.

[58] A brief comment about the status of the appeal record is necessary.
Portions of the record represented a reconstruction of the evidence. At the
hearing of the appeal this was raised with counsel for the respective
parties. They both assured us that they were satisfied with the record as is
and that it can be accepted as correctly reflecting the evidence placed
before the trial court.

[59] In the result, the appeal is dismissed with costs.

_________________

L.O. BOSIELO

JUDGE OF APPEAL

Appearances:
For Appellant
:
M Khoza SC (with him Z Gumede)

Instructed by:
Routledge Modise Inc; Johannesburg

Lovius Block Attorneys, Bloemfontein

For Respondent
:
FJ Nalane

Instructed by:

Maesela Incorporated; Johannesburg

NW Phalatsi & Partners; Bloemfontein