THE HIGH COURT OF SWAZILAND
the matter of
ELIZABETH MALAZA Applicant
LONDUMO MALAZA Respondent
THE APPLICANT Mr. Flynn
RESPONDENT Mr. Shilubane
a notice of motion filed on 16th September 1991, the applicant sought
the following relief:
order declaring that a partnership existed between her and the late
Henry Butana Malaza, in equal shares, in respect of a farm in the
Hhohho district, and directing the respondent, as the executrix
dative of Mr. Malaza's estate, to transfer her half share in the
farm to her;
restraining the respondent from dealing with the farm to the
Malaza was married to the respondent by civil rites in community of
property, in 1956. One son and three daughters, now adults, were born
of that marriage. In 1972. Mr. Malaza began to live with the
applicant. Her case is that in 1975 they were married in accordance
with Swazi law and custom.
1986 the farm (Portion 2 of Farm No. 950) was bought in Mr. Malaza's
name. He and the applicant moved to live on it and remained there
until his death in 1991. The applicant still lives there. She
contends that although the transaction was undertaken in Mr. Malaza's
name only, there was a tacit partnership in equal shares between
them, and that in various ways they each contributed equally to its
acquisition, development and upkeep.
applicant's case is that in July of 1990 or thereabouts, because of
the deteriorating state of Mr. Malaza's health, he and she agreed to
subdivide the farm in order to enable him to leave his half share to
his 4 sons (two of whom he had by a third relationship). She contends
that the remaining portion, on which the dwelling house stands, was
to be retained by her as her half interest in the property.
plan of subdivision was prepared and an application was made in 1990
to the Natural Resources Board for approval of the subdivision.
letter of application dated 1st August, 1990, and the plan, are
annexed at "C1" to the applicant's founding affidavit. The
letter refers to 4 subdivisions, each of 4 hectares. The given reason
for the subdivision is that the owner wishes to distribute land to
his sons. It is to be noted at once, I think, that according to the
plan, the effect of the subdivision is not to produce four smaller
but five, for it also shows a remaining portion of 5.5830 hectares.
This is the part of the farm claimed by the applicant as her half
share. It is also the portion on which the dwelling house stands.
application was refused by the Board on 7th December, 1990. The
letter conveying the refusal was, as it happens, sent on the day of
Mr. Malaza's death. However on 3rd April, 1991 an appeal, which was
in the event successful, was lodged. The applicant in her founding
affidavit said that this was brought by the respondent and herself
jointly, acting as Mr. Malaza's wives.
letter giving notice of the appeal is at annexure D of the affidavit.
It is a type- written document. Paragraphs (b) and (c) of the letter
are in the following terms:
The owner of the farm is now deceased. He passed away on the 8th
January, 1991, survived by 2 (two) wives and four sons from the wives
and a lady he did not marry. So for the sake of peace amongst his
polygamous family, it is advisable to subdivide the farm according to
wife is Margaret La Dlamini - son Dumsane. "Second wife is
Thandi LaDlamini - son Phesheya "Princess Lotinja - sons
Mangaliso and Jaha".
The whole family and clan was summoned by the late owner on the 28th
July, 1990 and told of the subdivision and reasons therefore. Since
he is now deceased we kindly appeal to the Board to reconsider the
issue as the farm is/and/will lead to heavy dispute amongst his
is common cause that this letter was prepared by the applicant but
signed by both parties to the present
The applicant's name has been typed on the left hand side on the
second page, in the usual place under the concluding words "Yours
faithfully", and she has signed above that. The respondent's
name has been typed opposite this on the right side of the page, and
she has signed above that.
applicant has had a managerial career in banking. The respondent was
a housewife, who had nevertheless been trained as a nurse.
respondent opposes the applicant's claim. Initially she took three
points in limine before the Honourable Mr. Justice Dunn. The first
related to the service of the application on the Master of the High
Court. It is no longer relevant. The other two were that the relief
sought by the applicant cannot be granted as it is subject to section
31 of the Transfer Duty 1902 in as much as she was not a party to the
deed of sale of the farm to Mr. Malaza; and that she is not entitled
to such relief because the universal partnership alleged by her is
immoral or illegal and contrary to section 7 of the Marriage Act 1964
(No. 47 of 1964).
to the first of these other points, Dunn J. took the view that it
could not be determined until the circumstances in which the alleged
partnership arose, and the deed of sale was signed, were clarified.
the other point he also concluded that there was a need to ascertain
fully the circumstances in which the applicant said that she married
Mr. Malaza, and the understanding of the parties as to the nature of
the the alleged marriage.
he directed that the matter be referred to oral evidence on the
questions of the applicant's marriage to Mr. Malaza and the alleged
partnership agreement. It came on for hearing before me on that
addition to the points taken in limine, the respondent opposes the
application on the following grounds:
denies the existence of the alleged partnership agreement.
denies that the applicant contributed as alleged to the acquisition,
development and upkeep of the farm.
denies that the farm was subdivided on the basis asserted by the
applicant. She says instead that the purpose was solely to provide
for Mr. Malaza's sons, and that he asked her - the respondent - to
agree to it because she was married to him in community of property
and was therefore a joint owner of the farm.
specifically denies that she ever agreed that the respondent was a
partner of her husband.
is no doubt that from 1972 until his death, Mr. Malaza and the
applicant lived together as husband and wife, and that on or about
16th August, 1975 they went through a marriage ceremony in accordance
with Swazi law and custom. At the hearing, the applicant was
cross-examined to a degree about the ceremony. However, the evidence
in my view establishes clearly that they did undergo such a ceremony.
The applicant says they did. Mr. Magwaza Malaza, who gave an
affidavit on her behalf, says so. The respondent's daughter, who gave
evidence viva voce, did so. The applicant herself attached a
certificate from the customary register to that effect to her
founding affidavit, as annexure "A". The respondent's
affidavit admits the ceremony. Her position is not that it did not
that it contravened section 7 of the Marriage Actl964.
view of the time that has elapsed since the hearing, I owe it to both
parties to say that I keep in mind, expressly, that circumstance in
commenting on the credibility of the witnesses. I also wish to say
that at the time of the hearing I formed a view of the witnesses'
evidence in that regard, and that I do have a clear recollection of
applicant bears the burden of proving her claim to relief on the
balance of probabilities. Although there is a need for caution in
weighing the evidence of the parties in disputes of this domestic
nature, she did not appear to me to lack credibility at all. In the
way of things the respondent is not in a position to be able to
contradict directly some of the matters in issue here - notably the
private relations and communications between the applicant and Mr.
Malaza and the full extent to which she did or did not contribute to
the acquisition, development and running of the farm. Mr. Shilubane
did comment adversely on her failure to produce receipts for payments
she claimed to have made. I see no real reason, however, to think
that the applicant has not been candid about these things, and there
are features of the surrounding circumstances which indicate to me
that in those respects, and in others, her version of events is at
the least probably true.
was a businesswoman earning, in relative terms, a significant salary.
She was employed in a responsible position in a bank. I see no reason
to disbelieve that she was thereby, as she said, able to obtain
finance. Her evidence was that she had at first lived with Mr. Malaza
that for that purpose she arranged a mortgage from her bank. After
they had been married for some 11 years he retired. Thereafter her
salary was substantially higher than his pension. I see no reason to
doubt her evidence as to what she contributed in respect of the
acquisition and subsequent development of the farm and that Mr.
Malaza applied most of his gratuity towards the repayment of a car
loan that he had.
the extent that it is relevant, I prefer the evidence of the
applicant to that of the respondent that the latter, i.e. the
respondent, accepted the new relationship. By that I do not mean to
presume to say either that she welcomed it or was necessarily happy
about it, but I do think on the whole of the evidence, as she herself
saw things, he had acquired another wife in accordance with Swazi
acknowledged that she did visit her husband and the applicant at the
farm on occasion. The letter giving notice of appeal, to which I will
come in a moment, also indicates prima facie that this was so.
also prefer the evidence of the applicant as to what transpired at
the family meeting that Mr. Malaza held at the farm before the
subdivisional plan was lodged for approval. Mr. Magwaza Malaza, his
uncle, in his affidavit says that at this meeting his nephew informed
the gathering that the four sons were to have four lots and that the
part of the farm with the dwelling house on it, ("the half"
as he described it, although it is a good deal less than that in
area), was to be retained by the applicant as her half share in the
farm. The respondent did not seek to call Mr. Magwaza Malaza for
cross-examination at the hearing of oral evidence.
any event, however, the other circumstances in my view point strongly
to the fact that the applicant's version of events at this meeting is
the correct one. The meeting was held at the farm at which she lived
with him as their home. It is common cause that the four lots of 4
hectares each were intended for Mr. Malaza's four sons. Those were
his children from three relationships - his marriage to the
respondent, his relationship with the applicant, and that with
Princess Lotinja. Although I would not regard it as conclusive,
necessarily, of the matter, it does appear to me to be rather more
likely than not that the respondent would have objected if she
regarded herself as the only legitimate wife .
paragraph 2.2 of her answering affidavit, dealing with Mr. Magwaza
Malaza's account of the meeting, the respondent asserts that her
husband expressly stated (i.e. at the meeting) that he had sought her
consent as a joint owner to the subdivision. I would not regard the
unlikeliness of that having been said in the presence of the
applicant (who was a businesswoman) without objection as being
necessarily conclusive, either. But again it does appear to me to be
less likely than not that it was said.
letter of application for the subdivision, and the plan, indicate
clearly that the portion of the farm on which the dwelling house
stands was not to be disposed off. The dwelling house served as the
home of Mr. Malaza and the applicant. Then there is the letter of
appeal against the refusal of permission to subdivide. On the
evidence it was prepared by the applicant. The respondent admits that
she signed it as well. She said at the hearing that she did not read
it. There was no real suggestion that the applicant took advantage of
her in any way to procure her signature.
am not able to accept her implication that she did not know what she
was signing. I think that she did read it, and that the account she
has given here is an attempt to explain it away.
letter, of course, is not in itself an acknowledgement by the
applicant that she had no interest in the farm. It deals with the
disposal of four lots ( being part of the farm) for the benefit of
Mr. Malaza's children. It does however acknowledge as a matter of
fact the polygamous nature of Mr. Malaza's relationships. It
acknowledges, on the respondent's part, the applicant's status as a
second wife and the fact that the latter's son was part of his
father's polygamous family.
the oral hearing, the respondent's daughter said that the meeting (at
which she had been present) was called by her father to obtain the
respondent's agreement to the subdivision. She said that the
applicant did not say anything and that her father did not say that
the remainder was intended for the applicant. She also recalled that
he had mentioned the remainder, saying it was going to be taken over
by the applicant's son. In re-examination, she said that the
applicant would stay in the dwelling house.
M. Simelane, who is a chief's runner, also gave oral evidence for the
respondent. He said that he was unrelated to any of the parties and
that he had been present at the request of Mr. Malaza at the meeting.
His recollection was that the purpose of the meeting had been for Mr.
Malaza to obtain the respondent's agreement to the subdivision, for
the benefit of the sons, and that she did agree. He said that Mr.
Malaza did not say that he had consulted the
and that he did not say, in the witness's presence, that the
applicant was a co-owner. The witness said that at the meeting Mr.
Malaza thanked "the senior wife" .
his closing submissions, Mr. Shilubane submitted that in her cross
examination the applicant repeatedly referred to the remaining lot as
being intended for herself and Mr. Malaza, so that her entitlement in
any event could only have been at most to one half of that remainder.
He also contended that, taken as a whole, her evidence (especially, I
think, under cross examination) did not refer to the existence of a
partnership. He drew attention to an apparent contradiction between
her founding affidavit, in which she said that she and Mr. Malaza
have each paid E500 towards the initial deposit of E1000 for the
farm, and her oral evidence in which she said that she had found
E3000. He also submitted that it was significant that the remaining
lot on the farm was a good deal less then one half of the total size
of the farm.
the whole of her evidence, the applicant was saying that she and Mr.
Malaza bought the farm as a home after his retirement, in
circumstances in which she contributed at least an equal share. She
was not, as I understood her, suggesting that they ever came to a
formal understanding, orally or in writing, that they would buy the
farm in partnership in equal shares. What is contended on her behalf
is that there was an understanding between them as to why and how
they would acquire the farm and that in all the circumstances the
correct inference is that there was a. tacit partnership between them
in that regard on the basis alleged by her. It is correct that in her
answers in cross examination, the applicant did indicate that it was
contemplated that she and
Malaza would live together on the remaining lot, and that at one
point in her cross examination, she appeared to contemplate that he
would continue to live on it if she died first. But I do not consider
that she was thereby conceding necessarily that the remainder did not
represent her half share in the farm. What it does tend to show, I
think, is that it was a tacit partnership, which she regarded as
such, even by the time she came to give oral evidence in support of
her case in court. She was also saying that in the way in which
events unfolded, there came a time when Mr. Malaza was concerned
about his own health and that the plan of subdivision was thus
conceived, and she was saying too that under that arrangement, the
remainder was to represent her share in the farm. I do not consider
that the fact that the remainder constituted, in area, little more
than one fifth of the whole farm, detracts with any real force from
the applicant's position. It was the portion that had the dwelling
house on it, where they lived. In practical terms, the subdivision
whereby the sons would each receive other lots is in my view broadly
compatible with her case. I do not attach significance either to the
discrepancy, if it really is one, between the statement in her
affidavit that she paid E500 of the deposit and her testimony that
she paid E3000 in cash. I believe that she did pay E3000, however it
was applied, as she said here.
relevance of the family meeting is that it provides, as far as it
went, evidence of the nature of the relationship between Mr. Malaza
and the applicant and the respondent and of the nature of their
respective interests (such as they were) in the farm.
a balance of probabilities I believe the applicant's version as to
what transpired at that meeting, namely that
view of his failing health, Mr. Malaza wanted to obtain the approval
of his family, and in particular of the respondent as the person whom
he regarded as the senior wife in his family, to his proposal to
subdivide the farm, giving his sons four lots for themselves, and
acknowledging that the remainder and the dwelling house represented
the share of the person whom he regarded as his second wife, with
whom he had acquired the farm and with whom he lived in that dwelling
house. I also believe that he did secure the respondent's approval.
do not think that in seeking and obtaining her approval, he was
thereby in anyway recognizing her as the other joint owner- with him,
to the exclusion of the applicant - of the farm. I do not think that
it is probable that he said so, and I do not consider that it is
correct that that was the position in law.
V v De Wet NO. 1953 1 SA 612, cited on behalf of the applicant, it
was held in the case of a married man living apart from his lawful
wife with another woman that from the conduct of the couple living
together, it could be inferred, in the absence of an express
agreement, that a partnership existed between them, i.e. that a tacit
partnership might be inferred from their conduct. In Muhlman v
Muhlman 1984 3 SA 102 (AD) it was held that the test for determining
whether or not a tacit agreement for partnership has been reached is
simply whether it is more probable than not that this is so, and not
the stricter one that the conduct relied upon must be not only
consistent with the allegation of partnership but inconsistent with
any other reasonable interpretation.
agreement between a couple is clearly capable of fulfilling the
essential elements that are necessary to
a partnership - that each of "hern must bring something into it,
that the association is intended for their joint benefit, and to make
a profit, and that the agreement is a legitimate one. There is no
doubt either that a partnership may be for a single purpose - or a
single venture, such as the running of a farm.
the facts here, I infer that Mr. Malaza and the applicant did acquire
the farm under a tacit partnership agreement in equal shares, as
contended by her. I consider that the evidence establishes that she
contributed at least an equal share but on the authority of Fink v
Fink (cited in the case of De Wet) the court is able to infer that
that is so, if it is not otherwise apparent. In that regard I am
referring to the headnote to that case in which it is said that where
it is impossible to say that one has contributed more than the other,
then they are entitled to share equally. I also think that it is to
be inferred that in acquiring the legal title to the property in his
sole name he, Mr. Malaza was nevertheless acting on behalf of each of
them, as her agent in respect of her interest. She is not precluded
from relief by reason of section 31 of the Transfer Duty Act 1902.
There is nothing, in my view, that is inherently contradictory in the
fact that on the one hand, a woman may work at a vocation and earn
money that is applied to and for the benefit of a household but. on
the other hand, be prepared ( even though a businesswoman herself) to
let the formalities proceed in the sole name of the man whom she
regards as her husband. I do not think the fact that she is the sole
registered owner of the house near the golf course detracts from this
necessarily, either. He had his own home when they began to live
together. Then they moved into the
near the golf course. Then, on his retirement, they acquired the farm
to which they each contributed more or less equally. She has
explained why she was content for the transaction to be undertaken in
his name. This was a relationship, clearly, with traditional and
was saying that she felt that, as her husband,it was proper - i.e. in
the conventional sense -that the purchase should be in his name. In a
society such as modern Swaziland, in which these various elements
will arise naturally in the ordinary course of events, I think that
is quite understandable.
remaining question is whether her claim is defeated by the point
taken in limine that as (if it were in fact so) the ceremony between
Mr. Malaza and the applicant was not a valid marriage, she is
precluded from relying on the tacit partnership because it
constitutes an agreement contra bonos mores.
the way in which that objection is referred to in the respondent's
pleadings, i.e. in paragraph 1.5 of her affidavit, it is alleged that
the partnership was "immoral or illegal and contrary to the
provisions of section 7 of the Marriage Act No.47/1964". What is
contended is that the applicant was never validly married to Mr.
Malaza, but rather his mistress. At the time of the ceremony in 1975,
she knew that he was already married to the respondent. In seeking to
rely on Khoza v Sedibe 1963-69 S.L.R. 413 the respondent is alleging
that the applicant was knowingly a party to bigamy when she purported
to marry Mr. Malaza. For these reasons, it would be contrary to
public policy to permit her to enforce her rights under the
partnership because - again as I understand the argument - that would
be tantamount to enforcing an arrangement that was made for the
purpose of illicit future cohabitation or sexual immorality.
respect, nothing in the Marriage Act 1964 itself operates so as to
prohibit or to deem bigamous a form of marriage in accordance with
Swazi law and custom by a person who is at the time of that ceremony
still married by civil rites to some other person.
agree, with respect, with the views expressed by Nathan C.J. in Ex
Parte Ginindza and Another 1979 - 81 S.L.R. 361, at paragraph F on
page 362, that a marriage under Swazi law and custom is not a
marriage "in terms of the Marriage Act 1964, so that a man
(whether married in accordance with civil rites or Swazi law and
custom) - at least after the commencement of the Act - does not
commit bigamy if he makes a subsequent marriage in accordance with
Swazi lav/ and custom.
section 7(1) does is to deem bigamous a civil marriage contracted
under the Act by a person who is already married to someone else in
accordance with civil rites (or more precisely, I think, by a person
who is already married otherwise than in accordance with Swazi law
and custom) where the earlier marriage still subsists. The subsection
also deems to be bigamous any ceremony of "civil" marriage
(in the wider sense in which I have just described it in parentheses)
by a person who is already married in that wider sense, where the
marriage under the earlier ceremony still subsists.
the hearing of oral evidence, it was also contended that the validity
of the 1975 ceremony was governed by the common law, but no authority
was cited for the proposition that the ceremony was as such invalid,
its facts Xhoza was a case in which the parties had knowingly made a
bigamous marriage in 1963.
from the report whether or not the earlier subsisting marriage had
been contracted civilly or according to Swazi law and custom.
Ginindza was a case that was concerned with a civil marriage made
under the 1964 Act -i.e. after that had come into operation - by a
man who was at that time still married, by Swazi law and custom, to
another person. It is not apparent whether the earlier marriage took
place before or after commencement of the Act, but of course a
purported civil marriage in those circumstances would fall within the
ambit of section 7(1).
the evidence,. I am not prepared to find, as a matter of fact, that
the applicant' knowingly participated in a bigamous ceremony in 1975.
She did know that Mr. Malaza already had another wife.
herself says that she did not know that the subsisting marriage had
been contracted civilly. The traditional ceremony that she took part
in was conducted openly. She lived with Mr, Malaza openly as his
second wife. On the evidence, the respondent acknowledged that she
was the second wife. If Mr. Malaza's first civil marriage had been
celebrated after the commencement of the 1964 Act but before 1975,
there could be no question about the validity of the applicant's
marriage to him. A certificate of marriage was issued to her in any
event from the customary registry.
my view , in this case, the maxim ex turpi causa non oritur is not
applicable and the point in limine is not a bar to the applicant's
these reasons I propose to allow the claim with costs. When the
matter was argued before me, a reservation was expressed as to the
appropriate relief, and I realise that there has been undue delay on
my part.....I know that Mr.
is not available and before I make the final order dealing with
relief (because reservations were expressed about paragraph (b)) I
would like to stand this matter over, if counsel will agree, until he
returns, so that I can hear both Mr. Shilubane and Mr. Flynn on the
precise terms of the order to be made.
to 21st May 1993 accordingly, at which time costs also to be dealt