- A woman’s divorce claim for a share of her former partner’s pension, their joint estate and spousal maintenance was dismissed.
- The appeal court found that the lobolo letter and the traditional council’s confirmation were not reliable or sufficient to prove a customary marriage.
- The earlier judgment recognising the marriage was overturned, and the appellants won their appeal.
A woman’s bid to secure a divorce, half of her former partner’s pension interest, a share of what she claimed was their joint estate and temporary spousal maintenance has failed after the High Court in Polokwane found she did not prove that they were ever married under customary law.
Judge M Kganyago, with Acting Judge AJ Burnett concurring, upheld an appeal by Maurice Botana Makhubele and Sophie Rebecca Masinge, overturning an earlier judgment that had recognised a customary marriage between Makhubele and Winnie Sasavona Mabasa.
Divorce claim sparked legal battle
The dispute began when Mabasa instituted divorce proceedings against Makhubele, alleging they had entered into a customary marriage on 24 June 1989. She sought a decree of divorce, division of the joint estate, 50% of Makhubele’s pension interest and spousal maintenance of R5 000 per month for six months or until she remarried.
To support her claim, she relied on a confirmation letter issued by the Hlaneki Traditional Council and an alleged lobolo letter said to record the marriage negotiations.
Makhubele denied that any customary marriage had ever existed. He raised a special plea challenging the validity of the alleged marriage, contending that no lobolo had been paid, no customary marriage had been celebrated and that the documents relied upon by Mabasa did not prove the existence of such a marriage.
The dispute became more complex when Sophie Rebecca Masinge joined the proceedings, claiming she was Makhubele’s lawful customary wife and also denying that Mabasa had ever been married to him.
Witnesses disputed alleged lobolo negotiations
The appeal court heard that several people whose names appeared on the alleged 1989 lobolo letter denied participating in any negotiations.
Daniel Khosa testified that Mabasa had approached him years later to accompany her to the traditional council, where he signed documents without knowing what they related to. Maria Chavani similarly denied attending any lobolo negotiations and said she had not even used the surname “Chavani” in 1989, casting doubt on the authenticity of the document.
Mabasa maintained that these witnesses had been present during the negotiations but later changed their versions after being threatened. However, the appeal court noted that the trial court had already ruled that evidence concerning those alleged threats was hearsay and inadmissible.
Appeal court criticises trial court’s findings
Judge Kganyago found that the lower court committed a material error by relying on evidence it had previously ruled inadmissible. “The court a quo by relying on the evidence which it had scrapped from the record had erred,” the judge said.
The judge also disagreed with the lower court’s finding that the alleged lobolo letter constituted reliable proof of a customary marriage.
“I do not agree with the analysis by the court a quo of the evidence placed before it and its findings,” Judge Kganyago said.
The court found there was no evidence that Mabasa or her mother had participated in the alleged negotiations and noted that none of the witnesses who allegedly represented Mabasa’s family during those negotiations had been called to testify.
Traditional council letter also rejected
The appeal court also examined the confirmation letter issued by the Hlaneki Traditional Council. Evidence from Jameson Chabalala, the traditional council clerk who authored the letter, showed it had later been revoked after individuals presented as representatives of Makhubele’s family denied knowing anything about the alleged marriage.
Judge Kganyago found that Mabasa had misrepresented the identity of witnesses when seeking the confirmation letter. “Sasavona has therefore deliberately misled Jameson in issuing the confirmatory letter of the customary marriage between her and Botana,” the judge said.
The judge concluded that the evidence pointed to the absence of any genuine lobolo negotiations. “The only conclusion to reach is that Sasavona devised some means to obtain the fraudulent letter as there were no lobolo negotiations which were ever held,” the judgment states.
Appeal upheld
Judge Kganyago held that the burden rested on Mabasa to prove both that lobolo negotiations had taken place and that a valid customary marriage had been concluded. The court found she had failed to discharge that burden.
The appeal was upheld with costs, and the order of the lower court was replaced with one upholding the appellants’ special plea that no customary marriage existed between Makhubele and Mabasa.
Get your news on the go. Click here to follow the Conviction WhatsApp channel.
