IN
THE HIGH COURT OF SWAZILAND
HELD
IN MBABANE CIVIL CASE NO.822/03
In
the matter between:
DOROTHY
SIBANDZE APPLICANT
VS
JAMESON
DLAMINI RESPONDENT
CORAM
SHABANGU AJ
FOR
APPLICANT MR V. DLAMINI
FOR
RESPONDENT MR S.C. DLAMINI
27th
May, 2004
The
Applicant commenced proceedings by way of notice of motion on 11th
April, 2003 seeking the following order;
"Declaring
the marriage in terms of Swazi Law and Custom entered into between
the Applicant and the Respondent null and void ab intio.
That
the Respondent pays the costs of this Application. "
The
basis of the application as set out in paragraphs four and five of
the founding affidavit is that the respondent had prior to the
customary marriage ceremony with the applicant, contracted a civil
rites common law marriage. The applicant has annexed to the founding
affidavit a certified copy of the marriage certificate which reflects
that on
2
26
May, 1964 the Respondent performed a civil rites marriage ceremony
with one Gladys Hlatshwayo. The certificate further reflects that the
common law is the law governing the consequences of the marriage. The
applicant states in her founding affidavit that she was smeared with
red ochre during a customary marriage ceremony performed sometime in
1976 at the Respondents' parental homestead at KaMfishane area. The
applicant states further that the Respondent paid between eleven and
thirteen herd of cattle to her parents. She says she cannot recall
the exact number of cattle paid by the Respondent to her father one
Samuel Sibandze. She also says "I must mention that I am not in
possession of the Teka certificate due tot he fact that our marriage
in terms of Swazi taw and custom was never registered." There
are two living children aged 24 and 21 born out of the Applicants'
union with the Respondent. She says she was unaware at the time the
customary marriage ceremony was performed that the Respondent was a
party to a subsisting civil rites common law marriage with the said
Gladys Hlatshwayo. The Applicant then concludes as follows in the
founding affidavit;
"I
an advised and verify believe that in the circumstances the purported
second marriage between the Respondent and I is null and void ab
initio in view of the provisions of section 7 of the Marriage Act of
1964 and also the principles of the common law that any person who is
already validly married by civil rights is incompetent or in terms of
Swazi Law and Custom whilst the former marriage remains in
existence."
The
matter was argued before me on 2nd April, 2004 on the basis of a
point in limine raised by the Respondent to the effect that the
matter was res judicata having been finally disposed of on 8th
November, 1996 when Mr Justice Sapire upheld a point in limine and
dismissed the application with costs. The point in limine as raised
in case no. 1239/96 between the same parties was formulated in the
following terms
"I
am advised and verily believe that this Honourable Court does not
have original jurisdiction in this matter as both parties are members
of the Swazi Nation and the dispute is in connection with a Swazi
customary marriage. This matter is for determination in accordance
with Swazi law and custom."
In
upholding the point Mr Justice Sapire gave only a ex tempore order to
that effect. The clear effect of his order was that the High Court of
Swaziland does not have jurisdiction to entertain a matter involving
a dispute between two members of the Swazi Nation
3
concerning
a Swazi Customary marriage. So this court determined in case numbers
1239/96 that it had no jurisdiction to entertain the matter.
The
exceptio rei iudicatae is based on the irrebutable presumption that a
final judgement upon a claim submitted to a competent court is
correct. The presumption is founded on public policy which requires
that litigation should not be endless and upon the requirement of
good faith which does not permit of the same thing being demanded
more than once. (See AFRICAN FARMS & TOWNSHIPS LTD V. CAPETOWN
MUNICPALITY 1963 (2) SA555(A)564). In spite of the fact that the
defence is known at common law as an exceptio it cannot be raised by
way of exception but must be raised in a special plea. Unless the
facts upon which the defence is based are admitted, the party raising
the defence must lead evidence to establish the defence. See LOWREY
V. STEEDMAN 1914 AD 532. If the defence is not specifically pleaded
it will be deemed that the defence has been waived. See
BLAIKIE-JOHNSTONE V. P. HOLLINGSWORTH (PTY) LTD & OTHERS 1974 (3)
SA 392 D @ 395. See also L.T.C HARMS in AIMLER'S PRECEDENTS' OF
PLEADING further observes at page 258 of the 3rd edition.
"The
judgement and order must be a final and definitive judgement and
order on the merits of the matter. For that reason an order given in
interim interdict proceedings or an order that is subject to
variation or review because of changed circumstances cannot be relied
upon. LEROUX & ANDER V LEROUX 1967(1) SA 446(A) 463, AFRICAN
WANDERERS FOOTBALL CLUB (PTY) LTD V. WANDERERS FOOTBALL CLUB 1977 (2)
SA 38(A); VERHAGEN V. ABRAMOWITZ 1960(4) SA 947(C)."
The
learned authors go on to describe the requirements which must be met
by a defendant or respondent if the plea of the exceptio rei
iudicatae is to succeed. He says "the judgement relied upon must
be a judgement given in ligation to which the present parties or
their privies were parties. This would not, however, apply to a
judgement in rem. LE ROUX supra. ...The cause of action in both cases
mus the the same and the same thing (relief) must have been claimed
or may have been claimed in both cases, AFRICAN FARMS case supra at
562. GOLDFIELDS LABORATORIES (PTY) LTD V. PMATE ENGINEERING (PTY) LTD
1983 (3) SA 197 (W). LILEY V. JOHANNESBURG TURF CLUB 1983(4) SA
548(W)55I. "
See
also HOFFMAN & ZEFFERT, THE S.A. LAW OF EVIDENCE.
4
Applying
the above principles to the facts of the present matter, it is clear
that (a) present proceedings are between the same parties as in the
previous proceedings in case number 1239/96. (b) The same thing or
relief is claimed by the applicant in both matters, namely an order
declaring or nullifying what is described as marriage between the
parties, (c) the cause of action in both cases is the same, namely,
that when the customary law "marriage" ceremony was
performed there was already in existence a subsisting common law
civil rites marriage between the respondent and the said Gladys
Hlatshwayo. However it is also clear that in the previous proceedings
this court refused to entertain the matter upholding the point in
limine to the effect that it had no jurisdiction. The argument may be
made, therefore, that this court has finally determined and disposed
of the issue whether it has jurisdiction to entertain the matter and
grant the relief sought. On the other hand this court in declining to
entertain the matter did not give a judgement on the merits of the
matter and therefore its ex tempore order on the issue whether it has
jurisdiction to entertain the matter does not render the matter to be
res judicata. It has in any event been said that issue estoppel as a
doctrine is not part of the Roman Dutch law. It does seem to be
accepted that one of the essential requirements for the plea of res
judicata to succeed is that the prior judgement has to be on the
merits. I have already referred to L.T.C HARMS', AIMLER'S PRECEDENTS
OF PLEADINGS 3rd Edition at page 258 in support of this legal
proposition. Similarly, HOFFMAN AND ZEFFERT S.A. LAW OF EVIDENCE 3rd
Edition at page sixty three, observe;
"The
judgement on the merits of any court, including a foreign court can
found a plea of res judicata provided that the court had jurisdiction
in the matter and the judgement is a final one. For this purpose a
judgement is final if it has determined the substantive rights of the
parties even if it could be reversed on appeal or rescinded, it is
binding until it has been actually reversed or rescinded... The
judgement has to be on the merits. An order refusing an application
is a final order, and when it has been made on the merits, can ground
the exceptio. The requirement that the prior judgement has to be on
the merits does not signify that the proceedings have to be
contested: a default judgement may ground the exceptio. " The
underlining is mine.
See
also : AFRICAN FARMS & TOWNSHIPS LTD V. CAPETOWN MUNICIPALITY
supra.
5
The
point raised by the respondent therefore would fail in light of the
abovequoted passage because the prior order raised by the respondent
in support of the contention based on res judicta was not on the
merits, A related question which arises is whether the applicant is
not estopped from again disputing the issue of law which this court
decided in case number 1239/96, namely that this "court does not
have original jurisdiction" to entertain the matter because of
both the fact that both parties are members of the Swazi Nation and
the fact that the dispute is in connection with a swazi customary
marriage. In English law a judgement does not operate only by way of
consumption and novation of the cause of action. It also estops the
parties from later disputing any point of fact or law which was
essential to the decision. This is known as the doctrine of issue
estoppel. However as HOFFMAN & ZEFFERT in the SOUTH AFRICAN LAW
OF EVIDENCE 3rd edition at page 265, observe "there was no
doctrine of issue estoppel in Roman Dutch law. The requirement that
the same thing must have been claimed, which all the authorities
insist was essential to the exceptio rei judicatae, would be
inconsistent with such a rale. There do not seem to be any cases of
issue estoppel mentioned by the Roman Dutch writers, and the Roman
maxim resjudicata pro veritate accipitur does not appear to have
meant more than that litigation could not be reopened after the
condemnatio had been pronounced."
Therefore
in light of the aforegoing reasons the applicant is not barred from
bringing the present proceedings. The preliminary point taken by the
respondent is therefore dismissed with costs.
ALEX
S. SHABANGU
ACTING
JUDGE
