IN THE HIGH COURT OF ESWATINI
JUDGMENT
HELD AT MBABANE CASE NO. 152/2019
In the matter between:
ALTA RAUTENBACH (NEE VAN ANTWERPEN) Applicant
And
PATIENCE SIKHONDZE 1st Respondent
ESTATE LATE JOHANES REIYNIER RAUTENBACH 2nd Respondent
THE MASTER OF THE HIGH COURT 3rd Respondent
THE REGISTRAR OF BIRTH MARRIAGES AND DEATH 4th Respondent
THE REGISTRAR OF MOTOR VEHICLE 5th Respondent
ATTORNEY GENERAL 6th Respondent
Neutral Citation: Alta Rautenbach (Nee Van Antwerpen) Vs Patience Sikhondze And 5 Others (152/19) [2019] SZHC 203 (10th December 2019)
Coram: MABUZA – PJ
Heard: 05th August 2019
Delivered: 10th December 2019
SUMMARY
CIVIL LAW: Applicant seeks declaration that the marriage between the 1st Respondent and the deceased is null and void and of no force and effect and further seeks an order expunging it from the marriage registry. And an order that the 1st Respondent surrender to her, the death certificate and all documents of the deceased.
HELD: The application is fraught with disputes of fact and is hereby dismissed. Each party to pay its own costs.
[1] Serving before me is an application whereby the Applicant seeks an order in the following terms:
- Declaring the purported civil rites marriage between the 1st Respondent and late JOHANNES REYNIER RAUTENBACH solemnized on the 11th April 2015 as null and void and of no force or effect in law.
- Ordering and directing the 4th Respondent to expunge from the marriage registry the marriage certificate of the deceased and 1st Respondent.
- Ordering and directing the 1st Respondent and 3rd Respondent to grant authority for the transfer of the motor vehicle, Nissan X trail station wagon, registration number QSD 819 AM, model, 2001 Engine number QR200815508A, Chassis number NT3003369 or in the name of Applicant.
- Ordering and directing 1st Respondent to surrender to the Applicant the death certificate and all documents of the deceased.
- Further and / or alternative relief.
The Parties
[2] The Applicant is an adult South African female of Durban in the Republic of South Africa currently residing at Siphofaneni area in the Lubombo District.
[3] The 1st Respondent is Patience Sikhondze an adult Swazi female of Ngomane Area, Lubombo District.
[4] The 2nd Respondent is the Estate of the late JOHANNES REYNIER RAUTENBACH, allegedly the husband to both the Applicant and the 1st Respondent.
[5] The 3rd Respondent is the Master of High Court cited herein in her official capacity as an officer responsible for the administration of Estates, situated at the Millers Mansion, Mdada Street, Mbabane District of Hhohho.
[6] The 4th Respondent is the Registrar of Births Marriages and Deaths cited herein in his official capacity as an officer responsible for registration of marriage certificates.
[7] The 5th Respondent is the Registrar of Motor Vehicles cited herein in his capacity as an officer responsible for the Registration of motor vehicles.
[8] The 6th Respondent is the Attorney General cited herein in his official capacity as the legal representation of all government departments.
[9] The application is opposed by the 1st Respondent and not by the other Respondents.
[10] The Applicant and the 1st Respondent entered into a consent agreement with regard to prayer (c) and the court need no longer decide that issue.
[11] It is apposite that before discussing the merits, I set out each parties case.
The Applicant’s Case
[12] The Applicant is an adult South African woman who currently resides at Siphofaneni area in the Lubombo District. She says that she was married in terms of civil rites to the late Johannes Reynier Rautenbach on the 2nd September 1977 in Pine Town, KwaZulu Natal. The marriage was in community of property.
[13] A certified copy of the marriage certificate annexure ‘AR1’ was filed in proof of the existence of the marriage. An original was filed during the arguments before me on the 05/08/2019. It is no GS156006 and its particulars were extracted from the population register I.R.O and was issued by the department of Home Affairs in South Africa on the 05/04/2019.
[14] One child Reynier Rautenbach was born of this marriage. He is now a major.
[15] After their marriage, she joined him at Nsoko where he was running a farming business. The farm is now called Nisela Safaris. They stayed together until they decided to relocate to Tambankulu in 2013 where they ventured in a wildlife rearing business. However, her husband deserted her and she later learnt that he was living with the 1st Respondent on land that she and her husband had acquired under Chief Mhawu Ngcamphalala at Siphofaneni.
[16] The Applicant and the deceased acquired this land during 1994 after they had kontaed under Chief Ngcamphalala. The deceased died on 22 June 2018. This is the date that she learned that the deceased and the 1st Respondent were married in terms of civil rites. She had been laboring under the impression that they were just lovers.
[17] After his death she reasoned with the 1st Respondent to vacate the home she had shared with the deceased because it belonged to her (Applicant) but the 1st Respondent refused to do so citing that she was married to the deceased.
[18] The Applicant says that at the end of December 2018, she needed to renew the car licence disk of her motor vehicle QSD 819 AM. Because the car was registered in the deceased name, she approached the office of the Master, Siteki to assist her. But she was advised to that her marriage to the deceased was not recognized in ESwatini. She would need to have the car transferred into her maiden name in order to get assistance. She attached Annexure “AR2”, a memorandum from the Master of the High Court Siteki dated 07/01/2019 authorising her to register the motor vehicle in her maiden name.
[19] She bemoaned the fact that she was made to run from pillar to post trying to have the car registered in her married name.
[20] She also complained that she could not obtain the marriage certificate between the deceased and the 1st Respondent from 1st and 3rd Respondent and wanted this court to compel the 1st, 3rd and 4th Respondents to furnish same to her.
[21] At the time of compiling the application, nobody had been appointed Executor/Executrix of the deceased’s estate.
The Respondent’s Case
[22] The 1st Respondent raised a point of law in respect of wrong citation of her name namely that her surname was not Mngomezulu but Sikhondze. This anomaly was duly corrected.
[23] The 1st first Respondent stated that the Applicant was never married to the deceased and that she was merely the mother of his son Reynier Rautenbach. She says that she met the deceased around 2011. They decided to construct a home at Siphofaneni where the deceased had already begun a small structure. She was introduced at the Umphakatsi. She knew the Applicant while the latter resided at Tambankulu.
[24] She says that the Applicant stayed with a boyfriend and had long separated from the deceased. And that the Applicant knew about her and the deceased and did not challenge them about their relationship nor did she approach the Umphakatsi about it.
[25] The 1st Respondent stated that the deceased died on the 22nd June 2018 and not on the 22nd January 2018 as stated by the Applicant.
[26] The 1st Respondent challenged the authenticity of the marriage certificate filed by the Applicant (Annexure “AR1”). She directed this court to her observation that on the face of it, the marriage certificate purports to have been issued on the 22nd February 2018 which was a month after the deceased’s death. It is bewildering to her why the marriage could not be registered during the deceased’s lifetime in view of the allegation that the marriage took place more than two decades ago.
[26] She stated that she and the deceased were married in ESwatini on the 10th April 2015. She attached a copy of the marriage certificate as proof of the marriage with the deceased (Annexure C).
[27] With regard to their home she says that she and the deceased decided to construct their marital home at Siphofaneni where the deceased had already began a small structure. She was properly introduced at the Umphakatsi and has always inhabited this home. She filed a confirmatory affidavit from the Indvuna, Mr Makhundu Mamba with regard to her and the deceased settling at Siphofaneni and her legal status as wife to the deceased.
[28] At paragraph 6.3 of her answering affidavit she states:
“I have been advised that the application, owing to what have been explained above, suffers from serious and material disputes of fact which render it incapable of being determine merely on the papers and such disputes were foreseeable to the Applicant at the inception of the application. It shall be urged on my behalf during the hearing of the matter that the application be dismissed on such ground. Applicant foresaw that a contrary version would be presented to her account on the nature of my status and co-existence with my late husband but insisted on proceeding by way of application.”
[29] And at paragraph 6.5 she states;
“The alleged land Applicant is referring to, is the land in which myself and my late husband built. It boggles the mind and of course illogical that I would peacefully occupy such land without any complaint being laid at the Umphakatsi because customarily another wife and/or girlfriend cannot occupy another lawful wife’s home whilst the latter is alive and in death. It has not been explained how same would have occurred as I stayed with my late husband whose whereabouts and position Applicant was always aware of. I reiterate that Applicant had been simply a girlfriend who sired a child with my husband before we got married and separated from my husband.”
[30] With regard to the issue of the motor vehicle SD QSD 819 AM, the 1st Respondent says that the directive that the Applicant could transfer the motor vehicle into her maiden name emanated from her. She instructed the Master to draw Annexure “AR2”. And this was because the deceased had allowed the Applicant to have that motor vehicle.
[31] The 1st Respondent denied that the Applicant had been sent from pillar to post in the quest to have the car registered in her “married” name. The 1st Respondent says that in good faith she agreed to the transfer only for the Applicant to antagonise relations further between them by making incessant, mundane and unjust demands.
[32] The 1st Respondent disclosed that she was appointed Executrix of the deceased estate. She referred the court to Annexure E, which are Letters of Administration issued by the Master of the High Court no. SEL 24/2018 dated 10th January 2018.
[33] She also stated that she was entitled to retain the deceased’s death certificate because of her marriage to him. She believed that the Applicant wished to have access to the estate in order to deplete its assets.
[34] Indvuna Makhundu Mamba deposed to a confirmatory affidavit to that of the 1st Respondent. He stated that he was an Indvuna of the area under Chief Mshikashika.
[35] He confirmed that the lawfully recognized wife of the deceased at the Umphakatsi is the 1st Respondent who was lawfully introduced by the deceased with whom they built a home situate within the community.
[36] He also confirmed that the 1st Respondent has at all material times remained in continuous occupation of such home and that the Umphakatsi received no challenge nor complaint from Applicant, her agent or any third party on the status of the 1st Respondent as a wife or a claim on the title to the home or the land on which it is built or her occupation thereof.
[37] He further stated that at some point whilst the deceased and the 1st Respondent were staying together, the Applicant approached Umphakatsi to Khonta. And that applicant stated that her son’s proximity to her former lover presented no difficulty as the Applicant and the deceased were not married and had separated as lovers peacefully. And that to the Umphakatsi’s knowledge and on Applicant’s admission she is the mother to the deceased’s son and not a wife.
Applicant’s Reply
[38] In her replying affidavit the Applicant mainly re- iterated what she had stated in her founding affidavit. Crucially was the point that she made on advisement, that the onus of proving the authenticity of the marriage certificate is on the 1st Respondent for the general principle of the law that whoever avers must prove.
[39] She also explained that the marriage certificate was retrieved from the South African Home Affairs Department on the 22nd February 2018 that was when she applied to be granted a copy of the marriage certificate which marriage was solemnized in 1977.
[40] Applicant also stated that during 2011 when the 1st Respondent met the deceased, the deceased was living with her. She further recognized the small home structure that the 1st Respondent refers to as having been built by the deceased and herself on ESwatini National land during 2009.
[41] She denied any knowledge of the marriage between the 1st Respondent and the deceased. She also denied staying with a boyfriend.
[42] To the allegation that this matter was fraught with serious and material disputes of fact and being incapable of being determined merely on the papers, such disputes having been foreseeable, she responded by denying that allegation and pointing out that the legal problem in the present application is the annulment of the 1st Respondents purported marriage to the deceased. And that the land issue can be deliberated on other forums and was irrelevant to determining the present application.
[43] She also explained that she had sent her son who is an Attorney in South Africa to procure the marriage certificate for her. She reiterated that she did not know that the 1st Respondent was the Executrix to the deceased’s estate.
Conclusion
[44] It is clear from the evidence outlined above that this application is fraught with serious and material disputes of fact which render it incapable of being merely determined on the papers before me; such disputes were foreseeable to the Applicant when she launched the application.
[45] For example;
- The actual existence of the marriage between the Applicant and the deceased is disputed;
- The recognition of foreign marriages in this jurisdiction is by implication in issue;
- The actual existence of the marriage between the deceased and the 1st Respondent is in dispute.
[46] Each lady insists that the deceased is her lawful husband and in order to determine which lady is the lawful wife, oral evidence has to be led.
[47] It seems to me that it is the deceased who is the author of this unfortunate situation and I cannot order either lady to pay costs.
[48] In the event the application is dismissed; each party to pay its own costs.
_______________________
Q.M. MABUZA
PRINCIPAL JUDGE
For the Applicant : Mr S. Jele
For 1st Respondent : Mr S. J. Simelane
