Dlamini v Mbhamali and Others (2125/2016) [2018] SZHC 86 (04 May 2018);

Search Summary: 

Civil Law –Law of Persons –Order sought declaring civil rites marriage concluded between Applicant and First Respondent bigamous –Order sought allegedly because at the time of its conclusion applicant was allegedly already married to someone else in terms of Swazi Law and Custom –First Respondent opposes application and denies that the civil rites marriage between them was conducted after the applicant was already married –First Respondent contends that the civil rites marriage between herself and the applicant, was conducted prior to the one by Swazi Law and Custom between applicant and his other wife.

Dispute of fact necessitates that the matter be referred to oral testimony on that point –Evidence reveals that applicant was actually advised before concluding the civil rites marriage that  it cannot be concluded by one already married nor can one married in terms of it purport to marry someone else again –Applicant willfully ignored such advice according to him and went on to marry the First Respondent according to civil rights –Whether the applicant is entitled to move such an application in the circumstances.

Counter Application sought by the First Respondent, annulling the purported Swazi Law and Custom marriages concluded by the Applicant with other two women on the grounds that such marriages were concluded after the civil rites marriage between Applicant and First Respondent and were therefore bigamous–Whether a case made for the reliefs sought in the circumstances –The law is that any marriage concluded after a civil rites marriage with one of the parties to such a marriage is bigamous and therefore a nullity –Whether that should necessarily affect adversely the property acquired by the parties to the bigamous marriage is not for decision in these proceedings and is a matter for another day in a befitting matter.

 

 

IN THE HIGH COURT OF SWAZILAND

Held at Mbabane                                                           Case No.: 2125/2016

In the matter between

HAMILTON SIPHO DLAMINI                                  Applicant

VS

EUNICE MBHAMALI                                                          1st Respondent

CIVIL REGISTRATION AND VITAL STATISTICS

DEPARTMENT, MINISTRY OF HOME AFFAIRS 2nd Respondent

THE ATTORNEY GENERAL                                   3rd Respondent

Neutral Citation:          Hamilton Sipho Dlamini Vs Eunice Mbhamali & 2 Others  (2125/2016) [2018] SZHC 86 ( 04 May 2018)

Coram:                                                                Hlophe J.

For the Applicant:                                               Mr B.J.Simelane

For the 1st Respondent:                                      Mr S.J. Simelane

For the 2nd & 3rd Respondents:                           No Appearance

Dates Heard:                                                       31/05/17; 01/06/17; 29/06/17; 16/08/17; 15/11/17; 16/11/17; 05/03/18;     06/03/18.

Date Judgement Delivered:                                04 May 2018                                               

 

Summary

Civil Law –Law of Persons –Order sought declaring civil rites marriage concluded between Applicant and First Respondent bigamous –Order sought allegedly because at the time of its conclusion applicant was allegedly already married to someone else in terms of Swazi Law and Custom –First Respondent opposes application and denies that the civil rites marriage between them was conducted after the applicant was already married –First Respondent contends that the civil rites marriage between herself and the applicant, was conducted prior to the one by Swazi Law and Custom between applicant and his other wife.

Dispute of fact necessitates that the matter be referred to oral testimony on that point –Evidence reveals that applicant was actually advised before concluding the civil rites marriage that  it cannot be concluded by one already married nor can one married in terms of it purport to marry someone else again –Applicant willfully ignored such advice according to him and went on to marry the First Respondent according to civil rights –Whether the applicant is entitled to move such an application in the circumstances.

Counter Application sought by the First Respondent, annulling the purported Swazi Law and Custom marriages concluded by the Applicant with other two women on the grounds that such marriages were concluded after the civil rites marriage between Applicant and First Respondent and were therefore bigamous–Whether a case made for the reliefs sought in the circumstances –The law is that any marriage concluded after a civil rites marriage with one of the parties to such a marriage is bigamous and therefore a nullity –Whether that should necessarily affect adversely the property acquired by the parties to the bigamous marriage is not for decision in these proceedings and is a matter for another day in a befitting matter.

 

 

JUDGMENT

 

 [1]    The Applicant who describes himself as an adult male of Lobamba Lomdzala area brought these proceedings on motion seeking primarily an order of this court declaring a civil rites marriage he claimed to have concluded with the First Respondent on the 3rd March 1981, null and void on the ground that it was allegedly bigamous.  He further prays for an order directing the Second Respondent to cancel and delete the particulars of the civil rites marriage referred to above from the Register of such mariages.

 

[2]     As a basis for the relief sought, the applicant contends that when he entered into the said civil rites marriage with the First Respondent, he was already married to one Phindile Lephlinah (Mdziniso) Mdziniso in terms of Swazi Law and Custom.  Whereas he claimed to have contracted this latter marriage to Mdziniso on the 23rd April 1979, it is not in dispute that the marriage in question was only registered on the 8th August 2002 with the certificate reflecting that it was signed on the 18th September 2002.

 

[3]     According to the applicant he had been forced by circumstances to conclude the civil rites marriage with the First Respondent.  He said this happened on the 3rd March 1981.  He was allegedly forced by the fact that the First Respondent, who was at the time a student at the William Pitcher Teachers Training College in Manzini, had fallen pregnant with their first child, which necessitated that she produced a marriage certificate as she was allegedly not allowed to continue with her studies in that state if she was unmarried.

 

[4]     He contended that when he concluded the said civil rites marriage with the First Respondent, he had thought that he would later regularize his position by seeking an appropriate Court Order and that the current application was aimed at that.  He infact said that they had agreed with the First Respondent that the civil rites marriage they were to conclude was just a pretence to enable her meet the requirements of the college.

 

 

[5]     The Applicant claims further that it was otherwise known between him and the First Respondent that he was at that point already married in terms of Swazi Law and Custom and therefore that the First Respondent was to be taken to be his second wife, married  in terms of Swazi Law and Custom.  It was in fact in recognition of this fact, he said, that sometime after the said civil rites marriage, and after he had already obtained consent and the support of his first wife, Lephlinah Mdziniso, he allegedly married the First Respondent in terms of Swazi Law and Custom, followed it by the payment of lobola to her family and eventually danced a fully fledged Swazi Law and Custom marriage with her (umtsimba).  I must indicate that there was also another wife to the applicant married in terms of Swazi Law and Custom, known as Dudu Ndzimandze (Ndzimandze).  There is no dispute that she was married after both the First Respondent and Mdziniso in terms of Swazi Law and Custom.  An issue with her arises as shall be seen herein below, with regards the counter application against her and Mdziniso.

 

[6]     The application was opposed by the First Respondent who did not only file her opposing papers but also filed a counter application in terms of which, for the reasons that will become apparent later on in this judgement, she sought an order of court not only annulling the Swazi Law and Custom marriage between the applicant and the said Lephlinah Mdziniso, but also the one between the applicant and Ndzimandze who, it is not in dispute was married by  the applicant in terms of Swazi Law and Custom.  This was clearly after their civil rites marriage, which it is undisputed is by its nature exclusive of any other marriage to a third party.

 

[7]     In her opposition to the said application the First Respondent denied that the civil rites marriage she contracted with the applicant was entered into after the latter was already married to Mdziniso or anyone else. She also denied it was a marriage of convenience.  She contended that when she and the applicant got married in terms of civil rites, the applicant and Mdziniso were not married at the time.    She clarified that although she knew about the existence of Mdziniso as a mother of the applicant’s child at the time, the two were not married.  She said that Mdziniso was a live in lover to the applicant’s home.  The marriage between the two in terms of Swazi Law and Custom, she contended was contracted after her civil rites marriage to the applicant.  The Swazi Law and Custom marriage between the applicant and Mdziniso is for that reason bigamous and was the one to be annulled in the counter application she moved, she submitted.

 

[8]     Accordingg to the First Respondent, proof that the Swazi Law and Custom marriage between the applicant and Mdziniso, was not contracted in 1979 as alleged by applicant nor was it contracted before her civil rites marriage to the applicant, was the fact that the certificate for that marriage was only registered on the 8th of August 2002 and was issued or signed on the 18th September 2002.

 

 [9]    The First Respondent further averred that she had personally discussed the matter of the impropriety of the applicant’s Swazi Law and Custom marriages to Lephlinah Mdziniso and Ndzimandze on numerous occasions.  She contended that on all these, it had always been applicant’s habit to seek to ignore the issue.  She submitted that she was surprised that it was now the applicant who sought to have what she alleged was her lawful marriage annulled to regularize the illegal position the applicant deliberately got himself into when he married other women despite him knowing he could not lawfully do so in law, something which she claimed applicant was warned is illegal during their marriage.

 

[10]   Subsequent to her opposing the Applicant’s application on the above ground,  the First Respondent filed a counter application in terms of which she sought an order declaring what she  referred to as the applicant’s purported marriages to Lephlinah Mdziniso and Ndzimandze null and void. She further sought another, directing the Registrar of Births, Marriages and Deaths, to expunge the said marriages from the Registers or Records of marriages in this country.

 

[11]   The basis for the First Respondent’s counter application was that the marriages in question were contracted after her civil rites marriage to the applicant which was by its very nature exclusive in that it did not allow further marriages by either of the parties after its conclusion.  These marriages were therefore bigamous according to the First Respondent and had to be annulled.

 

[12]   Ofcourse in her opposition to the main application she had raised several points of law including the non-joinder in the main application of Dudu Ndzimandze, the applicant’s other wife.  She contended as well that the application was attended by disputes of fact which she claimed were foreseeable even before the application could be instituted.   This, she contended called for the main application to be dismissed on this point alone.  She also contended that the applicant had approached this court with dirty hands in as much as the application by the applicant constituted a confession to criminality.  She argued further that the application was an attempt by the applicant to validate his criminality, which was not allowed in law.

 

[13]   When the matter was meant to be proceeded with in the course of motion court, the parties agreed that save for the point on non-joinder, which was no longer being pursued given that the counter application had brought the matter to the attention of the said party, the other points required oral evidence for their resolution.  They therefore asked that the matter be referred to oral evidence, a route that this Court agreed to.

 

[14]   When oral evidence was led, the applicant had two witnesses comprising the applicant himself and Lephlinah Mdziniso.  The point for determination was simply which one of the two marriages between the applicant and the First Respondent was contracted prior to the other.  There was also a need to decide what the purpose of the civil rites marriage concluded between the applicant and the Respondent was; including whether the parties were made aware of its effect and consequences before they concluded same.  This latter point in my view includes a determination of the propriety or otherwise of the applicant to bring the application he brought including his entitlement to seek the reliefs he sought.

 

[15]   According to the applicant in his oral testimony he first married Mdziniso in 1979 before marrying the First Respondent in terms of civil rites.  Even as he concluded the civil rites marriage he alleges he knew it was just a pretence and not a real marriage because he had always wanted his affairs to be governed by Swazi Law and Custom. He asserted that he had always looked forward to a polygamous set up.  It was put to him that in fact his civil rites marriage to the applicant was the first one and that it preceeded the one he had concluded with Mdziniso.  It was put to him that in fact Mdziniso had started staying at his parental homestead before she was married, an act attributed to the fact that she had lost her parents very early in life and that her desperation for a place to stay at had forced her to go and live at the applicant’s homestead, particularly after she had given birth applicant’s child.   She was in this sense a live in lover who was not married to the applicant at the time of her marriage to him.  He denied only that she was unmarried when she stayed at his home.  He insisted she was already married at that point.

 

[16]   It also transpired that the applicant had not been candid when he said the child the First Respondent was pregnant with in 1981 was her first one.  It was clarified and accepted that the first one between the two of them had been born in 1979.  It was therefore put to him that the civil rites marriage was never necessitated by a requirement of a marriage certificate being required from one giving birth out of wedlock as alleged at the William Pitcher College.  If this was the case, it was argued the applicant would have obviously concluded the less cumbersome marriage, namely one in terms of Swazi Law and Custom which accommodated polygamy particularly because the applicant himself had not contended such a marriage was not recognized at the said college.

 

[17]   On what the purpose of the civil rites marriage was, he maintained that it was to secure a marriage certificate for the First Respondent as required by the William Pitcher College where she was a student given that she had fallen pregnant before marriage.  He otherwise maintained that the said marriage was a pretence by both of them.  Answering a question on whether he was made aware what the requirements of a civil rites marriage were including that one already married in terms thereof could not lawfully marry someone else, he said he was aware of it because it was explained to them before they could conclude such a marriage.

 

[18]   He admitted he did not yield that advice because he contended himself with correcting that position later on.  Although he was not graphic on how he saw this being possible, he was clear that the current proceedings were how he was correcting that position; which he called levelling his field and regularizing his marriages.

 

[19]   His version was supported by Mdziniso, who tried to clarify why if she was married in 1979, they only registered their marriage in 2002.  Mdziniso would not deny that her parents died prior to her joining the Dlamini homestead leaving her in desperation for a place to stay at.  She had agreed to her husband marrying the First Respondent in terms of Civil rites because it was going to be corrected later, she said.  The reality from this is that Mdziniso was in her own words not only aware of her husband marrying someone else in terms of civil rites when he was already married to her by civil rites but she was involved in making  the civil rites marriage concluded by her husband and  First Respondent, a mockery.

 

[20]   In her oral testimony, the First Respondent maintained that her marriage to the applicant was conducted prior to any of the marriages conducted by the applicant in terms of Swazi Law and Custom. She clarified that whereas Mdziniso did stay at the Dlamini homestead prior to her marriage she was not married to the applicant but was a live in lover.  Proof of this, she said, was the fact that Mdziniso was only built a house together with hers, years after 1979, and after her marriage to applicant in terms of civil rites.  Mdziniso, had otherwise before then, occupied the applicant’s lilawu at the Dlamini homestead.  She maintained that Mdziniso had remained only a live-in –lover until after her marriage in 1981 when she was tekaed.  This she said happened as she was at Matsanjeni, applicant’s work place where she stayed.

 

[21]   The First Respondent denied ever agreeing with the applicant to pretend to marry in terms of civil rites as applicant alleged.  To her the marriage aforesaid was complete and pure and not one of convenience as applicant suggested.  It was for this reason that ever since her marriage, the legal meaning and effect of her marriage had never been in doubt.  She knew that her in laws had not approved of her civil rites marriage which led to her being married in terms of Swazi Law and Custom (tekaed) some years later. This she argued had no effect on her civil rites marriage from her point hence her not acquiring a Swazi Law and Custom marriage certificate.

 

[22]   Her civil rites marriage had, according to the First Respondent, always been an end in itself and was never meant to be a means to other ends.  In fact the story about her marriage having been a means to enable her not be expelled from William Pitcher College was a total untruth and the applicant’s own fabrication.  It was never a requirement at the college that one could not attend and complete as a single unmarried parent.  She herself was from the very onset already a parent as at the time she enrolled at the college.  Their first child with the applicant had already been born as of at that time she enrolled there.  Furthermore, looking at the date of their marriage vis-a-vis that of her giving birth to the child she was pregnant with in 1981, it is clear that she was only 3 months pregnant.   This means that there was at the time no pressure on her for the marriage to have been conducted in haste because her pregnancy was still not visible. This makes the haste applicant attaches to the marriage appear unreal.  In that case the situation would not have been so dire so as to demand that the alleged remedy of a marriage certificate be done there and then.

 

[23]   If what applicant had said was true, she argued, nothing would have stopped him from contracting his and her marriage in terms of customary law, as that was recognized as a lawful marriage which never exposed him to any controversies.  According to First Respondent the application by the applicant was not founded on proper grounds.  It was in fact allegedly caused by some disputes that had ensued between her and the applicant.  They were at the time of its institution involved in a feud in terms of which the applicant had begun resenting her to such an extent he had refused to allow her to build a house at her home.  In fact she said she was subjected to great ill treatment by the applicant and his other wife, Mdziniso; just as the two of them had allegedly colluded in supporting each other in Court, or words to that effect.

 

[24]   Speaking for my own, there is an insurmountable hurdle in the way of the applicant.  It starts with the true position of his marriage to the First Respondent vis-a-vis that to Mdziniso.  The applicant does not dispute his being aware that marrying the First Respondent in terms of Swazi Law and Custom would have been not only lawful and needing no correction afterwards but would have resolved his supposed problem instantly.  I therefore do not agree that he had concluded the civil rites marriage as a sham aimed at enabling First Respondent obtain a marriage certificate.  I am convinced that it is a shear fabrication that the Swazi Law and Custom marriage between applicant and Mdziniso was the first one.  I agree it just a ploy to prepare a ground for the application.  It is used as a basis to annul the civil rites marriage because applicant and Mdziniso are very clear of its effect on their own Swazi Law and Custom marriage, if it remained in place.

 

[25]   From hearing and observing the parties and their witnesses I prefer the evidence of Eunice Mbhamali to that of her husband and Mdziniso.  She was to me more credible in what she said than what these two said.  It is clear that there would have been no need for the applicant to first conclude a civil rites marriage to correct later, and after 36 years of its existence even assuming that a marriage certificate was ever a requirement at William Pitcher College.  I am not accepting that there was ever such a requirement at that college and I think applicant would have been able to prove that if it was ever a Policy as that college is still there.  My conviction is emboldened by the fact that with a Swazi Law and Custom marriage, she would never have been required to make any corrections later on.  It does not make sense why one would go about correcting a situation in the most complicated of ways if he had an option to avoid it in the first place.  I reject the contention that the Swazi Law and Custom marriage was going to be expensive for him.  I have no doubt that argument is not real.  It is a stratagem exploited to justify applicant’s case.

 

[26]   Furthermore I am of the view that of the two, the Applicant is the one who had completely no scruples. He was in his own words prepared to conclude a marriage that was a sham for his subsequent benefit.  It is even worse that  he entered into the position he did, notwithstanding his having been, in his own words, warned or advised it would be unlawful to conclude such a marriage including the meaning and effect of such a marriage having been explained to him.  This brings the application of the old principle of our law to the effect that “falsus in uno, falus in omnibus” which means that if you tell a “falsehood once, you should be taken to be one who always tells falsehoods.”   I accordingly find that the applicant is not trustworthy. 

 

[27]   I have accepted therefore that the civil rites marriage between the applicant and the First Respondent was concluded prior to the customary law marriage between the applicant and Mdziniso.  This means that the applicant’s marriage to Mdziniso is the bigamous one between the two marriages just as is the one between the applicant and Ndzimandze.  The applicant’s application should therefore not succeed.

 

[28]   There is an even more fundamental reason why the applicant’s application cannot succeed.  The applicant has informed the court that as at the time he contracted the civil rites marriage, he already knew it was illegal to do so.  Clearly when he went on to contract the unlawful marriage in the face of such awareness, he was making his bed on which he should lie.  It therefore cannot avail him to now want to extricate himself from a position he deliberately put himself in by dragging the courts thereto.  He surely cannot lift himself with his own boot straps.  The First Respondent’s counsel wanted to see this as the application of the Principle of clean hands.  I do not necessarily see it as such except that I know one cannot deliberately put himself in an illegal position for a short term benefit to himself only to use the law to get himself out of that position later on. That is against public policy hence the adage that one cannot “lift himself with his own bootstraps.  The applicant wanted to justify his actions by citing the case of Ex parte Ginindza 1981 SLR 361. Clearly that case is distinguishable from this one.  Ginindza was found by the court to have been genuinely unaware of the meaning and effect of such a marriage, unlike applicant who in his own words was fully aware of its unlawfulness as at the time he contracted it.

 

[29]   The same thing applies to Lephlinah Mdziniso.  She claims to have agreed with her husband to conclude the civil rites marriage he had concluded with the First Respondent.  It cannot be therefore that she can now wish to have this court involved itself in setting aside an illegality they jointly and deliberately connived to come up with for their own benefit then.  The application by the applicant cannot succeed for this reason in my view and it should be dismissed therefore.

 

[30]   Having concluded as I have on the main application, the question would be what that means for the counter application.  The First Respondent who instituted it was unequivocal that the counter application should be granted.  Other than asserting that the said marriage had been preceded by the customary one between the applicant and Lephlinah Mdziniso, the applicant did not put forward any sound reason why it should not follow that I grant the counter application if I concluded that the civil rites marriage was concluded prior to the Swazi Law and Custom one between the applicant and Mdziniso.

 

[31]   There was no disputing that by its very nature a civil rites marriage is exclusive or monogamous.  Whether the subsequent marriage to it is by civil rites or by Swazi Law is immaterial.  It in fact stops a person already married in terms of any other law from marrying in terms of it.  In this case, it was wrong and in fact unlawful for the applicant to have purported to marry in terms of it when he was aware he could not do it in law.

 

[32]   This means that this court having come to the conclusion that the Swazi Law and Custom marriage to the First Respondent, who instituted the counter application, was conducted prior to all these other marriages, it should per force follow that those subsequent marriages by the applicant to both Phindile Lephlinah Mdziniso and Dudu Ndzimandze, are bigamous.  If they are bigamous the simple legal position is that they cannot be allowed to stand in law.  For these reasons I have come to the conclusion that whilst the applicant’s application cannot succeed, there is nothing in law to prevent the counter application from succeeding.  I should however make myself clear that I make no comment from the facts of the matter on the proprietary consequences of the marriages I have found to have been bigamous.  I say this because, in her own words the First Respondent became aware of her husband’s marriages aforesaid from the onset.  She seems to have accepted them, thus indirectly allowing the women concerned to live together with her in a setting that depicted polygamy and for them to contribute what they could to the applicant and those relevant aspects of his estate as they could prove.  Clearly, the proprietary consequences of the said marriages are not an issue for determination at this point and in these proceedings.  As none of the parties raised it and as it was never addressed it is advisable not to decide it herein.  Consequently I make the following order :-

1.       The Applicant’s application seeking to have the civil rites marriage concluded between the applicant and the First Respondent declared null and void, be and is hereby dismissed.

2.       The Civil Rites Marriage contracted between the applicant and the First Respondent be and is hereby found to have been concluded prior to any of the two customary law marriages concluded between the applicant and his other purported wives, Phindile Lephlinah Mdziniso and Dudu Ndzimandze.

3.       In line with the First Respondent’s counter application, the customary marriages between the applicant and his hitherto two wives, Phindile Lephlinah Mdziniso and Dudu Ndzimandze, be and are hereby declared bigamous and are null and void.

4.       The 2nd Respondent be and is hereby ordered to expunge from her records the said Swazi Law and Custom marriages as purported to have been contracted between the applicant on the one hand and Phindile Lephlinah Mdziniso and Dudu Ndzimandze on the other hand.

5.       For the removal of doubt this judgement has not decided the proprietary consequences of what I have found to be the bigamous marriages in this matter.

6.       The Applicant is to pay the costs of these proceedings.

 

 

 

                                                                             ______________________

N. J. HLOPHE

JUDGE – HIGH COURT