THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Cases no:  487/01 and 495/01
REPORTABLE

In the matter between:

ROAD ACCIDENT FUND

Appellant

and

MONGALO, M E

Respondent

In the matter between:

NKABINDE, Palesa Joyce

Appellant

and

ROAD ACCIDENT FUND

Respondent

Before:
Vivier JA, Olivier JA, Cameron JA, Navsa JA and
Mpati JA
Heard:

14 November 2002
Judgment:
2 December 2002

Certificate under Act 76 of 1963 – ‘Conclusive proof’ of customary
union – Can be impugned if obtained by fraud

JUDGMENT
_______________________________________________________

CAMERON JA:

[1] The Road Accident Fund (the Fund) is the statutory body that
deals with compensation for motor vehicle injuries.1  At its request
these two appeals were enrolled for hearing on the same day.
They raise the same law point: whether the statutory provision
that a certificate issued by a Commissioner2 ‘shall be accepted as
conclusive proof of the existence of a customary union’ excludes
the admission of evidence that the certificate was obtained by
fraud.3
[2] In each matter, the plaintiff alleged that she was the widow by
customary union of a deceased road accident victim and claimed
damages for loss of support.  In both, the Fund admitted liability
for damages resulting from the death of the deceased, and the
only outstanding issue was whether the plaintiff was a partner to a
customary union with the deceased when the collision occurred.
[3] Mongalo involved a ruling on a point of law.  The parties in the
Court below asked Lewis J to rule under Rule 33(4)4 on ‘the

1 Road Accident Fund Act 56 of 1996, s 2(1).
2 Under the Black Administration Act 38 of 1927.
3 Black Laws Amendment Act 76 of 1963, s 31(2A). The sub-section was inserted by s 5 of Act 83
of 1984.
4 Rule 33(4) of the Uniform Rules of Court provides that ‘If, in any pending action, it appears to

status of a certificate’ issued in terms of the Black Laws
Amendment Act 76 of 1963 (the 1963 Act).5  Section 31 provides:
Right of a partner to a customary union to claim damages from
person unlawfully causing death of other partner
(1) A partner to a customary union as defined in section thirty-five of the
Black Administration Act, 1927 (Act 38 of 1927), shall, subject to the
provisions of this section, be entitled to claim damages for loss of support
from any person who unlawfully causes the death of the other partner to
such union or is legally liable in respect thereof, provided such partner or
such other partner is not at the time of such death a party to a subsisting
marriage.
(2) No such claim for damages shall be enforceable by any person who
claims to be a partner to a customary union with such deceased partner,
unless-
(a) such person produces a certificate issued by a Commissioner stating
the name of the partner, or in the case of a union with more than one
woman, the names of the partners, with whom the deceased partner had
entered into a customary union which was still in existence at the time of
death of the deceased partner; and
(b) such person's name appears on such certificate.
(2A) A certificate referred to in subsection (2) shall be accepted as
conclusive proof of the existence of a customary union of the deceased
partner and the partner or, in the case of a union with more than one
woman, the partners whose name or names appear on such certificate.
(3) Where it appears from the certificate referred to in subsection (2) that
the deceased partner was survived by more than one partner to a
customary union, all such surviving partners who desire to claim damages
for loss of support, shall be joined as plaintiffs in one action.
(4) (a) Where any action is instituted under this section against any person
by a partner to a customary union and it appears from the certificate
referred to in subsection (2) that the deceased partner was survived by a
partner to a customary union who has not been joined as a plaintiff, such
person may serve a notice on such partner who has not been joined as a
plaintiff to intervene in the action as a co-plaintiff within a period of not less
than fourteen days nor more than one month specified in such notice, and
thereupon the action shall be stayed for the period so specified.

the court mero motu that there is a question of law or fact which may conveniently be decided
either before any evidence is led or separately from any other question, the court may make an
order directing the disposal of such question in such manner as it may deem fit and may order
that all further proceedings be stayed until such question has been disposed of, and the court
shall on the application of any party make such order unless it appears that the questions cannot
be conveniently decided separately’.
5  Apart from the short title provision (s 33) and s 31, the rest of the statute has been repealed.

(b) If any partner to a customary union upon whom a notice has been
served in terms of paragraph (a), fails to intervene in the action within the
period specified in such notice or within such extended period as the court
on good cause shown may allow, such partner shall be deemed to have
abandoned her claim.
(5) If a deceased partner to a customary union is survived by more than
one partner to such a union, the aggregate of the amounts of the damages
to be awarded to such partners in terms of this section shall under no
circumstances exceed the amount which would have been awarded had
the deceased partner been survived by only one partner to a customary
union.
(6) A partner to a customary union whose name has been omitted from a
certificate issued by a Commissioner in terms of subsection (2) shall not
by reason of such omission have any claim against the Government of the
Republic or the Commissioner if such omission was made bona fide.
(7) Nothing in this section contained shall be construed as affecting in any
manner the procedure prescribed in any other law to be followed in the
institution of a claim for damages for loss of support.

[4] The only point the Fund raised at that stage before Lewis J was
the contention that s 31 of the 1963 Act had been superseded by
s 4 of the Recognition of Customary Marriages Act 120 of 19986
(which provides that a customary marriage certificate ‘constitutes
prima facie proof’ of the existence of such a marriage).7  Lewis J
rejected this argument and, following the decision of Flemming
DJP in Finlay and Another v Kutoane8 that a customary marriage
was ‘incontrovertibly evidenced’ by a certificate, whose finality
‘eliminates the need for evidence’ about the union, ruled that the
Fund was not entitled to lead evidence to rebut its validity.  Since

6 The 1998 Act came into force on 15 November 2000.
7 Section 4(8): ‘A certificate of registration of a customary marriage issued under this section or
any other law providing for the registration of customary marriages constitutes prima facie proof

this ruling entailed that there would be judgment for the plaintiff on
the merits of her claim, it was clearly appealable,9 and Lewis J
later granted the necessary leave.
[5] In Nkabinde, similarly, the parties in the Court below asked
Snyders J to rule under Rule 33(4) on the question whether the
plaintiff was a partner to a customary union with the deceased at
the time of the collision.  Both parties led evidence on the issue.
Snyders J after an examination of the authorities held that it could
never have been the intention of the legislature to elevate a
fraudulently obtained certificate to conclusive proof of an untruth,
and that the Fund could lead evidence to attack the certificate on
the basis of fraud.10  On the evidence, Snyders J found that the
certificate tendered had been fraudulently procured, and granted
absolution from the instance with costs.  She refused the plaintiff
leave to appeal on both the law point and her factual conclusions,
but this Court later granted the necessary leave.

‘CONCLUSIVE PROOF’ AND FRAUD

of the existence of the customary marriage and of the particulars contained in the certificate.’
8 1993 (4) SA 675 (W) 684A-B, 685H-I.
9 See Harms Civil Procedure in the Superior Courts  C1.16 ‘Judgment or order’.
10 Reported at [2001] 3 All SA 611 (W).

[6] The starting point in establishing the meaning of ‘conclusive proof’
must be principle.  This Court stated the principle in question in
African and European Investment Co Ltd v Warren and Others.11
A statute of the Transvaal Republic provided that a surveying
diagram signed by the State President was to be ‘een wettig en
onwederlegbaar
document’
(a
lawful
and
unimpeachable
document).  De Villiers JA observed:
‘But there is no document in law which is wholly unimpeachable.  Any
document can be upset on the ground of fraud.’
[7] Powerful policy reasons underlie this principle.  Deliberate deceit
in the procurement of a document must taint its entire subsequent
existence, and the law cannot permit propagation of the fruits of
dishonesty.  The intrinsic meaning of ‘conclusive’ does not impede
this conclusion.  ‘Conclusive’ means ‘decisive, convincing’
(Concise Oxford Dictionary).  It suggests that the condition or
state it qualifies brings something to a conclusion.  It does not
mean that the conclusion in question must in all circumstances be
unimpeachable or unassailable.  In principle, therefore, a statutory
provision that a document constitutes ‘conclusive proof’ of a state

11 1924 AD 308 325.

of affairs cannot immunise the document from attack on the basis
that it was procured fraudulently.
[8] This approach accords with authority.  In Registrar of Asiatics v
Salajee,12 the statute provided that a certificate of registration
‘shall be accepted as conclusive evidence’ that its lawful holder
was entitled to enter and reside in the Transvaal.  The certificate
had been obtained by the admitted fraud of one Fakir, who falsely
stated that Salajee, then a boy of 16, was his son.  For the
purposes of the appeal it was accepted that Salajee believed that
Fakir was his father and was not a party to the fraud.  The Full
Court (Curlewis JP, Stratford and Tindall JJ) held that the
certificate could be annulled only if the holder (Fakir) was proved
to have been guilty of fraud in its procurement.  Stratford J stated:
‘But to say that a certificate is to be conclusive proof of the facts to which it
speaks is not the same thing as saying that the certificate cannot itself be
attacked on the ground of fraud in its procurement.’13
Tindall J put it thus:
‘Where an applicant himself was a party to a fraud by means of which the
certificate was obtained, it is against the policy of our law to allow him to

12 1925 TPD 71.
13 At 72.

retain the certificate, no matter what interests he may have acquired in the
country in the meantime.’14
[9] What is material is the clear conclusion of all the judges in Salajee
that the holder’s own fraud could be proved to invalidate the
certificate despite the statutory provision that it was ‘conclusive’.15
The judges there were at pains to protect the rights of the
innocent youth who had subsequently relied on rights acquired
through the false declaration of his professed parent.  This they
did by distinguishing between the holder of the certificate and
other parties.  These considerations do not arise in the present
case.  No distinction between the holder of the customary union
certificate and any other person who may be entitled to derive
rights from it arises.  Fraud in obtaining a certificate, whether by
the holder or any other person, renders the certificate assailable.
[10] But statements this Court made in S v Moroney16 appear to
stand in the way of this conclusion.  At issue was a statutory
provision that a notice in the Government Gazette that a
publications committee had declared a publication ‘undesirable’

14 At 76.
15 See too Glenfield and Others v Zebediela Employees’ Co-operative Trading Society Ltd and
Another 1950 (2) SA 155 (T) per Murray J at 165.
16 1978 (4) SA 389 (A).

was ‘sufficient proof’ of its undesirability.  The appellant was
charged with producing an undesirable publication.  At the trial the
State led no evidence, but merely produced the Government
Gazette notice.  This Court held that this was not enough to
establish the accused’s guilt.  The decision turned on the
distinction between ‘sufficient’ and ‘conclusive’ proof.  Had the
statute provided that the notice would be ‘conclusive’, the Court
held, its mere production would establish the accused’s guilt
beyond reasonable doubt.17  Van Winsen AJA (with whom
Wessels ACJ and Corbett JA concurred) said in this context that
‘conclusive proof’ of a fact ‘connotes proof which a court is obliged
to accept, to the exclusion of all countervailing evidence, as
establishing that fact’, and that the effect of such an enactment
was ‘to create a presumptio iuris et de jure that the document or
certificate establishes incontrovertibly the truth of that fact’.  ‘No
evidence’, he said ‘may be led to controvert it.’18
[11] In emphasising the greater leeway that ‘sufficient proof’ left,
Van Winsen AJA referred to certain South African authorities as
establishing the distinction between ‘sufficient’ and ‘conclusive’

17 per Wessels ACJ at 399H.

proof.19 But none of the authorities he cited offers support for the
suggestion that in the case of ‘conclusive’ proof’ ‘all countervailing
evidence’ must be excluded, if that was intended to embrace also
evidence of fraud.  Salajee is in fact to the contrary, and I consider
that the statements about the meaning of ‘conclusive proof’ in
Moroney (which were not necessary to decide the meaning of
‘sufficient proof’) must be disclaimed now as erroneously over-
broad.
[12] ‘Conclusive proof’ in s 31(2A) therefore does not mean that
evidence of fraud cannot be led to impugn the certificate.  Apart
from principle, the remaining provisions of s 31 show how unjust
the opposite conclusion would be.  The section creates an
entitlement on the part of the partner to a customary union to
claim damages for loss of support from any person who unlawfully
causes the death of the other partner (s 31(1)).20  Where it
appears from the certificate that more than one customary union
partner has survived the deceased, ‘all such surviving partners

18 406F-H.
19 Salajee (above), Glenfield (above), and SA Army Fund v Umdloti Beach Health Committee
1974 (4) SA 948 (N) 954C-H and African and European Investments (above).
20 Section 31 was enacted to remedy the decision in Suid-Afrikaanse Nasionale Trust en
Assuransie Maatskappy Bpk v Fondo 1960 (2) SA 467 (A) that a partner to customary union does
not under the common law have a claim for damages for loss of support.

who desire to claim damages for loss of support, shall be joined
as plaintiffs in one action’ (s 31(3)) (though such a person may
later join as a co-plaintiff (s 31(4)(a))).  The nub is the provision
that the surviving partners must share the damages between
them (s 31(5)).  The effect of a fraudulently obtained certificate on
the genuine customary union partner or partners could therefore
be most materially adverse.  As Snyders J pointed out, it could
never have been the intention of the legislation to license injustice
of this kind through fraud.
[13] It follows that the decision of Snyders J on the law point21 was
correct, and the ruling of Lewis J incorrect.  It remains to add that
the decision in Finlay and Another v Kutoane22 (by which Lewis J
considered herself bound) is also incorrect on the points in issue
in this appeal, as is in my view also Flemming DJP’s disapproval
of the decision of Didcott J in Hlela v Commercial Union
Assurance Co of South Africa Ltd,23 which seems to me to be
clearly correct.

THE TRIAL JUDGE’S FACTUAL FINDINGS IN NKABINDE

21 [2001] 3 All SA 611 (W) 616-617.

[14] At the trial in Nkabinde, the plaintiff called a magistrate, Mr
Sepenyane.  As an additional commissioner he issued the
certificate upon which the plaintiff relied to prove her customary
union with the deceased.  The Fund then led evidence from the
mother and father of the deceased.  Thereafter the plaintiff herself
testified in support of the existence of the customary union.
[15] Magistrate Sepenyane had no recollection of the actual
certificate, which he issued on 17 June 1998, some ten weeks
after the fatal collision, and which asserted that the plaintiff and
the deceased had entered into a customary union in about May
1997.  But his unchallenged testimony established his method of
scrutinising applications for customary union certificates where
one of the parties was deceased.  This was to inquire from the
‘closest next of kin’ of both the husband and the widow, who
would necessarily in the first instance be the parents of both, as
well as the widow herself.
[16] Magistrate Sepenyane’s was the only disinterested evidence on
the question of payment of lobolo (or bride price)24 in a customary

22 1993 (4) SA 675 (W) 684A-B, 685H-I.
23 1990 (2) SA 503 (N).
24 The Recognition of Customary Marriages Act 120 of 1998 s 1 contains the following definition
of ‘lobolo’: ‘the property in cash or in kind, whether known as lobolo, bogadi, bohali, xuma,

union.  He explained that to ascertain whether a customary union
existed, he would inquire whether there was ‘any lobolo paid or
were there negotiations towards lobolo prior to the paying of the
lobolo’.  He emphasised that –
‘of necessity, in some instances, you would find that not all the lobolo had
been paid at the time of death say for instance in this case, the husband,
but I would have satisfied myself that there were negotiations towards
lobolo and lobolo was paid’.
[17] The deceased’s parents then testified.  They both denied that
their son had contracted a customary union with the plaintiff.    It
was common cause that the Nkabinde family had in about May
1997 paid an amount of R200 to the plaintiff’s family.  This, they
insisted, was ‘damages’ because their son was sleeping with the
plaintiff.   At the instance of an intermediary acting on behalf of the
plaintiff’s attorneys, the deceased’s father, the plaintiff and her
mother had appeared before Magistrate Sepenyane.  The
deceased’s father asserted that it was the plaintiff’s mother who
told the magistrate that lobolo had been paid.  For his own part he
merely remained silent.

lumalo, thaka, ikhazi, magadi, emabheka or by any other name, which a prospective husband or
the head of his family undertakes to give to the head of the prospective wife's family in
consideration of a customary marriage’.

[18] Snyders J accepted the evidence of the deceased’s parents
and rejected that of the plaintiff.  She found that the deceased’s
father perpetrated a fraud in the procurement of the certificate,
and that the plaintiff, with the knowledge that there was no
customary union, assisted in the fraud.  She therefore found that
the Fund had discharged the burden of proving that the certificate
had been obtained fraudulently.25
[19] It is well established that an appeal court will intervene only
sparingly in factual and credibility findings of a trial court, which
has the advantage of seeing the witnesses and of assessing first-
hand their commitment to truth.  In the present matter, however, it
seems to me that Snyders J erred in her factual conclusions.
19.1 First, the Fund set out to prove a fraud.  While the standard of
proof remains a balance of probabilities, evidence seeking to
establish dishonest conduct is necessarily always subjected to
careful scrutiny.  That scrutiny in the present case shows, in my
view, that the fraud asserted was not proved.
19.2 Second, the father of the deceased, who denied the customary
union, was a most unsatisfactory witness.  By his own admission

25 [2001] 3 All SA 611 (W) 618-619.

he was doubly dishonest.  And he was a far from disinterested
witness.
(a) He at the very least colluded (even on his own version) in
misleading the magistrate about the existence of a
customary union between his son and the plaintiff.  His
attempt to minimise his role in the proceedings before the
magistrate was most implausible.  He asserted that the
magistrate had asked him no questions, but had questioned
only the plaintiff’s mother about payment of lobolo.  Not only
would such a course have been inherently improbable, but it
was directly at variance with Magistrate Sepenyane’s
unchallenged affirmation that he always questioned both sets
of parents before concluding that a customary union existed.
(b) He was also dishonest in that he colluded with the plaintiff in
lodging a false claim against the Fund for a non-existent child
of the deceased.
(c) Finally, when he came to testify, the deceased’s father may
have had a material interest in disclaiming the possibility of a
customary union between the plaintiff and his son (in so far
as the deceased’s means of supporting dependants, and

thus their total potential claims against the Fund) would have
been limited.  He was by that stage himself a claimant
against the Fund, in both his own name and as the
grandfather of the deceased’s dependant.
The problems of proving a fraud by relying on evidence of this
calibre are evident.
19.3 Third, it is correct that the deceased’s mother also denied the
customary union.  She unlike the deceased’s father did not
appear before the magistrate, and she was not party to the
fraudulent claim against the Fund.  However, she appeared to
prevaricate on crucial aspects of her testimony, and her
connection with her spouse and resultant interest in the
dismissal of the plaintiff’s claim attenuates the reliance that can
be placed on her evidence.
19.4 Fourth, Snyders J in my view erred in her assessment of the
evidence of the plaintiff.
(a) The learned judge wrongly found that the plaintiff had testified
that the deceased’s father had told her that a customary union
came into being only after the last amount of lobolo had been
paid and after a family feast was held.  The judge erroneously

concluded on this basis that on the plaintiff’s own version no
customary union could have come into existence.  In fact the
plaintiff consistently stated that she believed that money had
been paid ‘as a deposit for my lobolo’, and that a customary
union had in fact been contracted.  The details of further
lobolo payments she could not attest to, because the men
determined these.  The plaintiff’s belief and assertion that a
customary union could arise even though lobolo had been
only partly paid are congruent with the evidence of Magistrate
Sepenyane.
(b) It was (as previously mentioned) common cause that the
deceased’s family had paid the plaintiff’s family R200.  The
document evidencing the payment recites that the R200 was
‘for Palesa’ [the plaintiff].  The deceased’s parents’ insistence
that this was ‘damages’ for their son’s sleeping with the
plaintiff becomes unconvincing when the following is borne in
mind.  They tried to maintain that the plaintiff stayed with them
only when their son returned home at weekends and for
holidays.  Yet from other portions of the evidence of both
parents it is plain that the plaintiff was staying continuously

with them as part of their family.  This also gives significance
to the admitted fact that when before the deceased’s death
the plaintiff returned to her parents, it was the family of the
deceased who were sent out to procure her return.  Against
this background, the plaintiff’s assertion that the R200
payment was intended to constitute part payment of lobolo is
by no means implausible.
[20] In all these circumstances – the poor quality of the evidence of
especially the deceased’s father; and the persuasive features in
the plaintiff’s own account – the conclusion is inevitable that the
Fund failed to discharge the burden resting on it of proving that
the certificate was procured by fraud.  This makes it unnecessary
to consider some difficult questions about when a customary
union comes into existence and how it is evidenced.  Whatever
the answer to those questions might be, the Fund has failed to
prove that the certificate evidencing the customary union between
the plaintiff and the deceased was fraudulently procured.
[21] In these circumstances the plaintiff in Nkabinde was entitled to
judgment on the merits of her claim.

[22] There was some suggestion in the Mongalo matter that
because of the course the Fund’s argument took before Lewis J
the Fund should be deprived of part of its costs, but in my view no
sufficient justification has been advanced to vary the usual order.
[23] There are accordingly orders in the following terms:

A
In the Mongalo matter:

(1)
The appeal succeeds with costs, including the costs of
two counsel.

(2)
The ruling of the Court below is set aside.

(3)
In its place there is substituted:

‘(i) The defendant is entitled to lead evidence impugning
the validity of the plaintiff’s certificate in terms of s 31 of
Act 76 of 1963 on the basis of fraud.
(ii)
The plaintiff is to pay the costs of the argument on
the ruling.’

B
In the Nkabinde matter:

1. The appeal succeeds with costs.

2. The judgment and order of the court below is set aside.

3. In its place there is substituted:

‘(i)
The defendant is liable for any damages the plaintiff
may be able to prove.

(iii)
The defendant is to pay the costs of the action.’

E CAMERON
JUDGE OF APPEAL

VIVIER JA
)
OLIVIER JA
)
CONCUR
NAVSA JA
)
MPATI JA
)