Maluleke
Maluleke
and
JUDGMENT
TSHIQI J
[1] In this action the plaintiffs seek an order in the following terms:
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defendant.
[2] The first plaintiff who passed away during the course of the trial
who has been appointed as the executor. The second defendant and
[3] It is common cause that the deceased and the second defendant had
the agreed lobola was paid in December 2000. A further amount was
[4] The deceased passed away on 16 September 2001, before the imvume
and the second defendant were married to each other on 30 June 2001,
also reflected on the form. Two affidavits are attached to it. The first
lobola for Lindiwe Caroline Margaret Radebe and they didn’t yet get
married. The husband has pass away at this moment. They got
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(I repeat the words used without adding the customary sics to indicate
errors).
[6] The plaintiffs contend that as there was no imvume, the defendant was
not integrated into the family and was consequently not yet married
marriage.
(a)……………………………………………………….
(b) the marriage must be negotiated and entered into or celebrated in
accordance with customary law.(My emphasis)
celebrated”. The Act does not define these terms. It was not argued
alleged marriage was clearly not celebrated and the remaining issue
[9] Mr Banda testified that proof of payment of the agreed lobola amount
have evolved to the extent that some families dispense with the formal
existence of a customary union. He stated that this may even take the
courts.
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the next enquiry, applying the Act is whether there are any factors that
Act does not define the term “entered into” the court in my view has
whether the second defendant and the deceased agreed that they were
[14] In the present matter the deceased and the second defendant advanced
further than mere negotiation and payment. They fixed a date for the
who was already a divorcee, and in my view, he may well not have
felt it necessary to inform his family of his living with the second
defendant. At the time he was involved in the accident that led to his
Lehong denied knowledge of this but did not dispute it and I accept
[15] The second defendant testified that the family of the deceased
his stance on this issue. He admits that he visited the offices of the
time, according to him did not regard the second defendant as married
deceased and the second defendant were not married by civil rites, but
the death of his brother. Mtshali worked at the time in the insurance
[16] It is therefore accepted that at the time of the deceased’s death his
family regarded the second defendant as his wife. Clearly too, the
deceased and the second defendant agreed that they were husband and
defendant as his wife and the family of the deceased satisfied the
the form of imvume did not occur does not, in my judgment, detract
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Z L L TSHIQI
JUDGE OF THE HIGH COURT
ATTORNEYS
ASSOCIATED ATTORNEY’S