THE
HIGH COURT OF SWAZILAND
WILSON
SKOMU GULE
Applicant
And
ORAH
GULE (nee DLAMINI 1st
Respondent
THE
MASTER OF THE HIGH COURT 2nd
Respondent
HERMON
SAMBO GULE 3
rd Respondent
Civil
Case No. 735/91
Coram S.B.
MAPHALALA - J
For
the Applicant MR. MDLADLA
For
the Respondents MR. SIMELANE (For 1st
Respondent)
JUDGEMENT
(31/07/2003)
Introduction
2
This
application was brought under certificate of urgency in 1991 and
served before Hull CJ (as he then was) who directed that certain
aspects of the matter were to be referred to oral evidence. The
matter has been in abeyance until it came before me in April 2003,
for oral evidence as directed by the learned Chief Justice.
The
application dated the 8th August 1991, the Applicant sought inter
alia for an order as follows:
"Ejecting
1st and 3rs Respondent and all those holding title under them from
the house and store respectively situate on Lot No. 230, Pigg's Peak
Township, Hhohho district in Swaziland"
The
order sought seek to eject 1st Respondent was referred to oral
evidence to be led to determine the extent upon which the 1st
Respondent occupies the plot with regard to the marriage that has
been contracted between the parties.
Furthermore,
it has to be proved by 1st Respondent the extent of costs that she
has incurred for the improvements of the said plot should it be found
that she is occupying the plot unlawfully.
The
Background
The
Applicant is the husband of 1st Respondent due to a Swazi customary
marriage contracted on the 25th April 1984. It is common cause that
1st Respondent from the time her marriage was contracted she had
stayed at Lot 230 together with Applicant, who occasionally visit his
other women. The house in the Plot thereof was occupied by the
deceased wife, one Gladys Tobhiya Dlamini together with Applicant
until she died on the 31st August 1977. The deceased was an aunt to
1st Respondent because of the fact that she was a sister to the late
father (Alfred Funwako Dlamini) of the 1st Respondent. No decision at
a customary level either through the Gule family ("Lusendvo")
or at the Chiefs kraal ("umphakatsi") was taken to dissolve
the marriage between Applicant and 1st Respondent to warrant amongst
other things the return of dowry.
3
The
Applicant paid ten (10) herds of cattle as dowry to 1st Respondent's
family. Plot 230 and the house thereof has been occupied by 1st
Respondent from 1984 to date and that the wedding ceremony between
Applicant and 1st Respondent was conducted on the said plot. It is
further common cause that no other matrimonial home was ever built by
Applicant wherein the 1st Respondent was ordered to stay at other
than on the said plot. The Applicant and 1st Respondent stopped
living as husband and wife from the time around April 1990. The rates
of the plot are paid by 1st Respondent. It is also common cause that
flats were built on the property and the rent is collected by
Applicant through his sons.
The
facts in issue.
The
Applicant disputes that the 1st Respondent is a substitute wife
("inhlanti") but claims that he is an ordinary wife.
Further
it is in issue the extent upon which plot 230 can be said to be a
matrimonial home of 1st Respondent together with Applicant taking
into account that same was a home of the late aunt of 1st Respondent.
Further
it is in issue whether the marriage between the parties was dissolved
alternately if it be found that Applicant has deserted 1st Respondent
then what happens to the matrimonial home that is occupied by the
deserted wife.
Further
it is in issue that the Applicant should compensate the 1st
Respondent on the improvement that have been effected by 1st
Respondent on Plot 230 should it be found that their marriage was
dissolved. The issue of maintenance of 1st Respondent by Applicant
during the subsistence of marriage is also put in issue.
The
viva voce evidence led.
The
court heard the evidence of the Applicant who gave a lengthy account
of his version of events in this matter. Essentially his evidence is
that it is not true that the 1st Respondent was an "inhlanti".
He deposed that he married the 1st Respondent in terms of Swazi law
and custom and he smeared her with red ochre in terms of the
4
custom.
When he married her he had already married two other women and the
1st Respondent became his third wife. When the marriage was
contracted they both resided at Mshingishingini not in the disputed
property. The 1st Respondent was a teacher and would commute in a
motor vehicle from Mshingishingini to Pigg's Peak until the motor
vehicle she was using was involved in an accident such that
subsequently it was beyond repair. It was at this time that the wife
who was occupying the disputed homestead in Pigg's Peak was requested
by the family elders to come back to Mshingishingini to allow 1st
Respondent easy access. As time went on 1st Respondent did not allow
family members who from time to time used the house in Pigg's Peak.
He decided to take her out of the house and then rented another house
for her at the homestead of a Ginindza. He promised to buy her a plot
on which to build her a house so that his children would not bother
in the event of his death. He then asked the 1st Respondent to
collect rentals from his properties. He discovered that the 1st
Respondent was not depositing the money collected from rentals in his
bank account but was depositing it in her bank account.
Sometime
in 1990 he had gone to Pietersburg and on his return he found that
the 1st Respondent had gone back to occupy the house on Lot No. 230.
He then reported the matter to the police. The police came to
intervene in this dispute. She refused to vacate the house. She
stayed there for a week and went to stay in Mbabane and would commute
from Mbabane to Pigg's Peak. This she did for eight (8) months. She
then came back to the house on Lot 230. She then took the Applicant
to court. The matter appeared before the Mbabane magistrate court for
a peace binding order. The 1st Respondent had laid a complaint that
the Applicant had threatened to eject her from Lot 230 and also
threatened to kill her. The matter was heard for three days where the
Applicant was represented by Mr. C. Ntiwane. The Applicant won the
case. The 1st Respondent went back to the house and that is when the
Applicant filed the present application for the ejectment of the 1st
Respondent. This case has been pending since 1991.
The
Applicant reiterated that the 1st Respondent could not have been her
"inhlanti" to her late wife Gladys as the latter had
children of her own who are still alive. He further told the court
that he separated with 1st Respondent on the 20th September
5
1991.
He further deposed that it was not correct that the 1st Respondent
has effected improvements on Lot 230.
This
is about the extent of Applicant's evidence. He was cross-examined by
Mr. Simelane for the 1st Respondent as some length and I shall
traverse to the salient points of his evidence later in this
judgement.
The
Applicant then called Thembekile Gule whose evidence was brief. She
is Applicant's daughter bom of Gladys Toby Gule. She deposed that the
marriage between the Applicant and 1st Respondent took place at
Mshingishingini.
At
this point Mr. Mdladla closed the case for the Applicant.
The
1st Respondent opened her case by calling the evidence of one Mphosi
Dlamini an elderly gentleman who told the court that he was a leader
of both the "bandlancane" and the big libandla in his area.
He was well versed in Swazi law and custom. His experience in such
matter go way back to 1961. He is both an advisor and an arbitrator
on Swazi law and custom. I must also say, according to my observation
the witness exuded an impressive breath and depth of Swazi law and
custom. He told the court that an "inhlanti" emerges when a
woman is "lobolaed". The reason for the practice is that if
something happens the "inhlanti" replaces the woman as a
wife.
The
expert witness was not cross-examined by Mr. Mdladla for the
Applicant.
The
1st Respondent then took the stand. Her evidence is that she always
regarded herself as "inhlanti". She told the court that the
reason the Applicant wanted her removed from Lot 230 is because she
had been appointed executrix dative of the estate of the late Gladys.
She erected a tombstone in memory of her aunt Gladys and the
unveiling of this tombstone was done at Lot 230 in 1986 with
Applicant's permission.
She
was cross-examined by Mr. Mdladla for the Applicant where she
maintained her evidence-in-chief.
6
The
Applicant's submissions.
It
was contended on behalf of the Applicant that the 1st Respondent was
not an "inhlanti" and that even her witness who was
introduced as an expert witness could not support her claim. The
expert witness Mphosi Dlamini told the court that there were three
instances which brings rise to an "inhlanti". Firstly,
where there was "umtsimba" and a girl is chosen to take
that place; secondly, when the wife does not bear children, and
thirdly, when the wife had died. Mr. Mdladla further cited the
authorative work of Thandabantu Nhlapho, Marriage and Divorce in
Swaziland Law and Custom at page 76 on the subject.
He
argued that in casu the 1st Respondent does not fall in any of the
categories recognized in Swazi law and custom.
On
the issue of improvements Mr. Mdladla submitted that no evidence was
adduced to prove that the 1st Respondent has effected improvements on
the house at Lot 230. She only stated in evidence that she paid rates
in respect of the property.
The
1st Respondent's submissions.
Mr.
Simelane for the 1st Respondent reminded the court that the prayer
that is now sought by the Applicant is as follows:
"a) Ejecting
1st Respondent ....and all those holding title under (her) from the
house
..
.situate on Lot 230, Pigg's Peak Township, Hhohho district in
Swaziland. c) Costs of suit.
The
argument advanced is that the court cannot grant the above order on
the basis of the doctrine of effectiveness. To buttress this point
the court was referred to the case of Steytler vs Fitzgerald 1911 AD
295 at 346. In the present case the application and what transpired
during the trial it is quite clear that the Applicant wanted to eject
the 1st Respondent from the house that she had occupied as a marital
house because the Applicant wanted to lease the same to one John
Mandla Shongwe. In fact the
7
proceedings
were brought on the 16th August 1991 and the 1st Respondent was
supposed to have long left by the 1st of March 1991. The lease
agreement between the Applicant and the said John Mandla Shongwe was
to run for a period of 6 years terminating on 1st March 1997 and the
said John Mandla Shongwe had an option to renew the same for a
further period of three years. The lease agreement which form the
basis for the cause of action has lapsed hence whatever prayer is
sought by the Applicant is now academic. The Applicant should have
withdrawn the application in order for the lis to come to an end
after seeing that the cause of action has lapsed.
Mr.
Simelane further argued in this connection that the position has not
changed that these are motion proceedings.
"Even
if evidence is allowed under Rule 6 (18) the proceedings remain
motion proceedings and do not become a rauw actie (action in the
first instance)".
The
court was referred to the case of Cornbrinck/Routenbach and another
1951 (4) S.A. 357 at 359 G - H on the above-cited proposition.
Further, the case of Royal Swaziland Sugar Corporation Limited T/A
Simunye Swaziland Agricultural and Plantation Workers Union and
others, (unreported) High Court Case No. 2959/97 at page 3 - 4 in
this regard.
The
second argument advanced on behalf of the 1st Respondent essentially
is that the 1st Respondent cannot be ejected from Lot 230 as she is
an "inhlanti" and the said property has always been the
matrimonial home. The parties have not divorced in terms of Swazi law
and custom and as such for all intents and purposes the marriage
between them still subsists. In any event, it is argued that the
issue of divorce is not part of the Application before court hence
the court is asked to disregard it and the parties be ordered to
follow the proper channels to obtain same as the Applicant stated
that they are not through because the brother of 1st Respondent
objected to them proceeding until the disposal of this matter.
The
third argument is premised on the proposition that this court as a
guardian of minors and married women who assume the status of minors
should come in and protect the 1st Respondent. The 1st Respondent has
control over the property in that
8
the
electricity and water bills are her name. She is further responsible
for paying rates. This she does, despite the fact that the Applicant
does not maintain her and he keeps the rent from the tenants of the
flats that were built by 1st Respondent. It is submitted that as much
as he has discarded his wife, he has also discarded the house that is
occupied by 1st Respondent hence an application to have the property
transferred into the name of the 1st Respondent shall be in order.
The
court's analysis and conclusions thereon.
Hull
CJ (as he then was) in his order dated the 26th February 1993,
ordered inter alia as follows; at page 2 of the judgment: and I
quote:
"As
far as her opposition to the order which is sought for her ejectment
from the house on the Lot is concerned, it appears to me from the
affidavits that there are real and genuine issues of fact in dispute
between her and the Applicant. These relate to the purposes for which
the house is being used and in particular the extent to which it is
the 1st Respondent's home: They also relate to the extent to which
the 1st Respondent has contributed to the costs or improvement of the
house. The determination of these facts may then well give rise to
questions of law as to her rights as a wife (possibly as a former
wife) in Swazi customary law of the Applicant - indeed it seems
apparent to me that they will do so. That in turn might lead
eventually to a ruling by this court that the dispute falls properly
within the customary jurisdiction". (my emphasis).
The
thrust of the 1st Respondent's case is that she is an "inhlanti"
of the Applicant's first wife Gladys who is now deceased. On the
death of the wife she assumed her role as a substitute wife in terms
of Swazi law and custom. She called an expert witness to testify in
this regard. It appeared from the evidence of the expert witness that
the 1st Respondent did not fall within the rubric of being an
"inhlanti". The expert witness Mphosi Dlamini confirmed
what is stated by the learned writer Thandabantu Nhlapho, Marriage
and Divorce in Swazi Law and Custom (supra). The learned author
wrote, and I quote from page 76 in fin 77:
"On
death of a wife.
In
customary law when a wife dies the tie between her family and her
husband continues and the marriage itself may continue to subsist of
the latter accept a substitute wife (inhlanti) from the former. The
word inhlanti and the English phrases "substitute wife" or
"substitute
9
marriage"
are often used, rather confusingly, to denote two distinct types of
arrangement. The first, inhlanti properly so called, is when a man's
wife is unable to bear children or dies without issue. The girl
designated as her substitute during the wedding ceremonies now takes
her place as wife, to bear the man children on her sister's behalf.
No further lobolo is paid for her, as a rule.
The
second situation expresses the Swazi notion that where a man has
taken a wife, he has in any case a preferential claim to her sisters,
quite apart from any questions of barrenness. A sister (also called
inhlanti) taken as a wife in these circumstances is married in the
usual way and full lobolo is paid for her. She then becomes a wife in
her own right and does not join the husband's and does not join the
husband's household to substitute or represent her sister.
In
the present case the facts as established show that the 1st
Respondent could not have been an "inhlanti" for the
deceased wife. The 1st Respondent was not designated as her
substitute during the wedding ceremony between the Applicant and the
deceased. It is also abundantly clear that the deceased was not
barren. However, on this point the 1st Respondent's averments in her
founding affidavit in support of her counter-claim gives a different
sheen to these proceedings. She deposes at paragraph 4 inter alia as
follows:
"I
have always known both the Applicant and the deceased whilst the
deceased who was my aunt was alive. The deceased and the Applicant
lived together as husband and wife and they have always given the
impression and explained that they were married according to civil
rites and I have always known them as such people. Though the
Applicant later left the Nazarene Church, the deceased remained a
devout Christian of the Nazarene Church until she passed away or died
in 1977. The Applicant and deceased have always been known by members
of the community where they resided and their relatives to have
contracted a marriage by civil rites. The marriage between Applicant
and deceased was contracted by civil rites in accordance with the
philosophy of the church of the Nazarene of which they were devout
members. The Applicant has always told me and showed what I have
always though was the marriage certificates but which was in fact the
marriage information form BMD3 which recorded the marriage between
the Applicant and the deceased. This form was in the house which I
occupy at Lot No. 230 at Pigg's Peak which was also occupied by the
deceased and where most of her things were. The Applicant had some
time at the beginning of 1990 asked for the form.
But
what boggles the mind is to why the 1st Respondent has somersaulted
to say she is an "inhlanti" to the deceased on the basis of
what she said previously on affidavit
10
under
oath. This calls to question her bona fides in this matter. I
have
come to the considered conclusion that she is not and was never an
"inhlanti" to the Applicant's wife. This is an afterthought
She cannot therefore claim right over Lot 230 by virtue of being an
"inhlanti".
The
second question raised by the judgment of the learned Chief Justice
Hull is whether the 1st Respondent "has contributed to the costs
or improvement of the house".
The
Applicant denied that the 1st Respondent has effected improvements on
the property. The 1st Respondent has not led evidence to show that
she has made improvements. She only stated that she has been paying
the bills including, rates, electricity bill, etc. Nothing was said
about improvements as the flats she mentioned are not the house. For
the reasons I have advanced the court is unable to find that the 1st
Respondent contributed towards improvements of Lot 230.
Coming
to the doctrine of effectiveness as argued by Mr. Simelane that
whatever order the court may issue will be merely academic at this
stage. He cited the case of Steyler No. vs Fitzgerald (supra) at 345
to support his point.
Mr,
Mdladla on the other hand holds the view that a cause of action is
not the reason to institute an action but it is a legal right. I
agree with Mr. Mdladla in this regard.
Now
coming to the most crucial issue as to whether the court can grant
the order for ejectment in the circumstances. There, is considerable
force in the arguments advanced by Mr. Simelane that the parties for
all intents and purposes are still married to each other in terms of
customary law. This court cannot determine or order dissolution of a
Swazi customary marriage as it is determined by custom for such a
marriage is communal and not between the husband and wife. A married
woman like a minor is also regarded as a minor in law. I agree with
Mr. Simelane that the Applicant in the circumstances cannot simply
eject his wife without providing alternative accommodation.
11
The
property is presently under the control of the 1st Respondent. It is
my considered view that the rights and/or obligations arising from
their marriage in terms of Swazi law and custom vis a vis the
property concerned can be properly be determined within the customary
jurisdiction. Hull CJ (as he then was) as far back as 1993 predicted
the present scenario in the following language, and I quote at page 3
of his order dated the 26th February 1993; thus:
"..
.The determination of these facts may then well give rise to
questions of law as to her rights as a wife (or possibly as a former
wife) in Swazi customary law of the Applicant - indeed it seems
apparent to me that they will do so. That in turn might lead
eventually to a ruling by this court that dispute falls properly
within the customary jurisdiction" (my emphasis).
For
the above mentioned reasons I will not make any order in this matter
and would refer the matter to be determined within the customary
jurisdiction.
I
also rule that each party to pay his/her costs.
S.B.
MAPHALALA
JUDGE
