The complex nature of customary marriages played out in the KwaZulu-Natal High Court in Pietermaritzburg, where Lulama Felicity Primrose Keth Kunene was claiming loss of support from the Road Accident Fund (RAF) following the death of the father of her two children, Mphumeleli Edmund Nkosi, in a motor vehicle collision in 2017.
However, during proceedings, Kunene conceded that Nkosi did not marry her and that the marriage remained an unfulfilled promise in the 13 years after the lobolo was paid. Nkosi was married to someone else when he met Kunene, and that marriage was still in existence at the time of his death.
Kunene called two witnesses: her cousin Siyabonga Simphiwe Kunene, a practicing attorney, and her mother Maritha Patricia Thato Kunene. The RAF, while disputing that a relationship giving rise to a legal duty of support existed between Kunene and Nkosi, did not call any witnesses.
Kunene and Nkosi started a romantic relationship while she was a teacher at Tambolini School in Eskhawini in 1998. Nkosi worked as a magistrate in Nqutu and had business interests. Nkosi sent a lobolo delegation to the Kunene home on 4 November 2004, and after negotiations, a sum of R20,000 was paid. She had her first child with Nkosi in 2005 and lived in the flat she had purchased in 2002.
After the birth of their first child, Nkosi bought a flat in which he "lived" with Kunene, while her apartment was leased out and eventually transferred to him on the basis that she was part of the Nkosi family after the payment of lobolo. In 2007, after the birth of their second child, Nkosi decided that the flat he had purchased for them was too small and consequently bought a bigger house in Richards Bay. Kunene's mother was invited to come and live with the family so that the minor children could have a relationship with their grandmother.
Kunene paid for rates, security services, and municipal services as her contribution to the household. She resigned from her employment as a teacher in 2010, at Nkosi's instruction, to look after the children and paid over her pension payout to him to invest.
Kunene and her children were moved to Pietermaritzburg by Nkosi in 2013 in search of a good education for the children. They were both registered at St Charles College. He paid for all their educational, medical, transport, and accommodation costs and also gave her a cash allowance of R6,000 per month, which he increased to R8,000 in 2014.
Under cross-examination, it was suggested to Kunene that the payment of R20,000 was not lobolo but a seduction fine, as she was already pregnant. She denied this. It was further suggested that even if the payment was indeed lobolo, it did not make her a customary law wife, but rather constituted a promise to marry, as the other customary law requirements were not met. In response, she accepted that the other requirements were not fulfilled but insisted that they nonetheless lived as husband and wife.
It was also put to her that Nkosi actually lived with his wife and only visited during the weekends, to which Kunene replied that he intended to take her as his second wife and "promised to marry her when he asked her to be his wife in front of their friends and gave her an engagement ring."
It also emerged that Kunene was unaware if the first wife knew about the relationship she had with Nkosi, and that she was never introduced to the first wife’s family.
When challenged about being an outsider to the deceased’s family, Kunene testified that she was known to his cousin who lived in Eswatini, his oldest son not born of the first wife, and to his friends.
She stated that the support she received from Nkosi was intended to ensure the security of the children and for her as a life partner and future second wife. She added that he did not want her to return to work and even offered to pay her an amount equivalent to a teacher’s salary so that she could continue being a full-time mother.
The cousin testified that he was requested to take notes at the lobolo negotiations, and the payment was the total amount requested by the Kunenes. However, this was contradicted by Kunene's mother. The cousin said he learned for the first time at the lobolo negotiations that Nkosi was married and intended to make Kunene his second wife. While he referred to Nkosi as his brother-in-law, there was no celebration of a traditional ceremony after the lobolo payment. He told the court that Nkosi came to Kunene's residence on weekends, and he would interact with him during those visits.
When she took to the stand, the mother conceded that lobolo indicates an intention to marry and does not, without more, complete a customary marriage. She further conceded that there were no additional traditional celebrations held to conclude a customary marriage. Furthermore, the mother explained that the marriage did not take place because Nkosi had other financial commitments and did not send his delegation back to complete the lobolo negotiations and pay the outstanding amount. She said he intended to retire so that he could use his pension to pay the rest of the lobolo that was still to be negotiated but stressed that he intended to marry her.
The court found that although R20, 000 was paid, other elements of customary marriages were not fullfilled.
In the judgment, Judge J Nako said it is clear that the deceased was, in fact, married to someone else. "In the opening address by the plaintiff’s legal representative, it was alleged that the deceased’s first marriage was also by customary law, and as such, he was competent to enter into a further customary marriage. This point, however, was not pursued in evidence. To the contrary, it emerged that the plaintiff knows very little, if anything, about the first wife for someone who was to be taken as a second wife and who was to form part of the larger family of the deceased.
"Furthermore, while the plaintiff was able to demonstrate that there was payment of lobolo, it is clear that no other ceremony was performed. There was no celebration of the union. The plaintiff and the deceased did not live as husband and wife: the plaintiff lived with the children, and the deceased would be with them during weekends and some planned holidays. While there was no formal handover, there was also no waiver of other traditional ceremonies. The plaintiff was waiting on the promised marriage, while the deceased continued to live with his wife.
"A further demonstration that there was no waiver of other traditional ceremonies was the fact that the plaintiff’s mother was expecting the deceased’s delegation to return to conclude lobolo negotiations so that the plaintiff could become the second wife… If the plaintiff and the deceased had in fact lived together as husband and wife, perhaps a customary marriage would have existed."
The judge ruled it is unavoidable to conclude that, on the facts of this case, there was no customary marriage in existence at the time of the passing of the deceased." The deceased was, in fact, not competent to enter into a further customary law marriage as he did not seek the permission of his first wife, if they were in a customary law marriage, or because he was already in a civil marriage, if his first marriage was in terms of the Marriage Act.
"Perhaps realising that the compulsory requirements for a customary marriage were not met in her case, the plaintiff also argued that the relationship she had with the deceased was a life partnership, or alternatively that she was the deceased’s common law wife because they lived together as husband and wife while the deceased provided all the financial support.
"The plaintiff claimed maintenance from the estate, and her claim failed on the grounds that she was not married to the deceased or in a relationship that entitled her to maintenance. Similarly, the plaintiff did not inherit from the deceased’s estate on the same basis, and yet, she approached this court knowing that her claim to be the customary law wife and/or life partner of the deceased was baseless."
