IN THE SUPREME COURT OF SWAZILAND
Held at Mbabane Civil Appeal Case No.42/2010
Civil Appeal Case No.43/2010
In the matter between:
KNOX MSHUMAYELI NXUMALO N.O. Appellant
NELLIE SIPHIWE NDLOVU Respondent
In the consolidated case of
Case No. 3652/2006
KNOX MSHUMAYELI NXUMALO N.O. Applicant
NELLIE SIPHIWE NDLOVU 1st Respondent
THE MASTER OF THE HIGH COURT 2nd Respondent
THE REGISTRAR OF BIRTHS, DEATHS
AND MARRIAGES 3rd Respondent
THE ATTORNEY GENERAL 4th Respondent
NELLIE SIPHIWE NDLOVU Applicant
KNOX MSHUMAYELI NXUMALO N.O. 1st Respondent
THE MASTER OF THE HIGH COURT 2nd Respondent
THE ATTORNEY GENERAL 3rd Respondent
BENEFICIARIES OF THE ESTATE Co-Respondents
CORAM: FOXCROFT J.A.
For the appellant: Mr. Z.D. Jele
For the respondent: Mr. S.M. Masuku
For the Co-respondent beneficiaries: Mr. A.M. Lukhele
[Application by executor seeking declaration that a civil rights marriage concluded between deceased and respondent bigamous and therefore null and void ab initio – customary marriage conducted after civil marriage – consequences thereof – counter application by respondent declaring Will of deceased invalid – examination of customary law of marriage and divorce – desertion as ground for divorce – civil marriage declared bigamous in successful appeal – Will valid]
 In 2006 the appellant, the executor in the deceased estate of one Calvin Ndlovu, brought an application in the High Court for a declaration that the marriage of Nellie Siphiwe Ndlovu and the deceased entered into by civil rites at Pigg’s Peak on 19 August 1966 was bigamous and therefore invalid by reason of a number of pre-existing customary marriages between the deceased and three other women. I shall in this judgment refer to Nellie Ndlovu as the respondent.
 In 2009 the respondent in turn brought a counter application for a declaration that the Will and Codicils of the deceased should be declared pro non scripto, that the deceased “be declared to have died intestate, and that the estate be administered intestate in terms of the Administration of Estates Act 1902.”
The two applications were consolidated and heard by Agyemang J. who concluded that the civil marriage was a lawful one, in community of property, and that the Will of the deceased was null and void. This appeal is against those orders.
 The Court a quo recorded that it was common cause that the late Calvin Ndlovu, who died on 17 February 2001, had executed his Last Will and Testament on 28 February 1994 and had later executed four codicils. At the time of his death divorce proceedings were pending between him and the respondent, and he had other children by three women whom he had married by Swazi law and custom before his civil marriage to the respondent in 1966.
 What was also not in issue was the fact that the appellant drew up a Liquidation and Distribution Account to which the respondent lodged an objection. In her view she was entitled to half the estate, having been married in community of property to the deceased, and she contended that the account did not reflect her half-share.
 The appellant testified that in attempting to find a middle ground he drew up a second account, taking funds from a notional residue to make up the difference between the half-share claimed by the respondent and what had been bequeathed to her under the Will. Both in his founding affidavit and in his evidence, the appellant made it clear that he had been concerned about the legality of the respondent’s claim to a half-share since section 24 of the Marriage Act No.47 of 1964 seemed to him not to permit it. He was not aware of any endorsement on the Marriage Certificate of the respondent and the deceased showing an election to have their property governed by common law as opposed to Swazi law and custom. Most importantly, he had taken the view that the civil marriage was bigamous and therefore invalid since the deceased had been previously married to three other women in terms of Swazi law and custom, before his attempt to “resolve the impasse” as set out in paragraph 6.8 of his founding affidavit, which allegations are not denied by the respondent in her answering affidavit.
 In my view it was incorrect for the Court a quo to take the view that the questioning of the legality of the civil marriage by the appellant as executor was the result of an “about-turn at this point” by the executor. There is nothing improper in an executor’s seeking of guidance from the Court as to the legality of a course of action by the executor when attempting to carry out the wishes of the deceased. Perhaps his statement in paragraph 6.7.3 of the founding affidavit created the impression that he had decided that the civil marriage was bigamous and that he was therefore refusing to carry out the instructions of the deceased in his Will. It was also not put to him during cross-examination that he had done an “about-turn” in his conduct as executor, as found by the learned Judge a quo.
 What was put to him was that he had consulted extensively with Absalom Ndlovu, one of the beneficiaries who had been joined in the executor’s application, the suggestion being that he was advancing the cause of Absalom Ndlovu. The appellant in effect denied this suggestion saying that his own attorneys who helped him to draft the application may have consulted with Mr. Ndlovu. All that he did as executor was to advise Mr. Ndlovu what he had done. The true adversaries before the Court a quo emerged when Mr. Ndlovu was joined as a party, together with other beneficiaries of the estate as co-respondents in the counter application, and it was therefore incorrect for the Court a quo to say that
“the beneficiaries/legatees or persons otherwise affected by provisions of the Will in its present form, should have been the ones to raise same if they needed answers, rather than the executor whose powers came from an appointment that empowered him not to fight against the matters recognized in the Will he advised and drafted, but to give effect thereto, standing in the shoes of the testator.”
Once the joinder of the co-respondents occurred, the opposing parties were properly present before the Court. Furthermore, in the light of opposing legal contentions of this kind by the parties, an executor cannot, in my view, be faulted for not simply seeking refuge in the shoes of the deceased without question. No mala fides on the part of the executor is apparent to me. It was not his “suit” as the Court a quo put it. The parties who stood to gain or lose were before the Court once the co-respondents were joined, before the trial commenced.
 The central question to be determined in the Court a quo was whether the civil marriage of the respondent to the deceased in 1966 was bigamous and therefore invalid. It was common cause that the deceased had been married to three Swazi women before his civil marriage. What was disputed was whether or not these marriages had been dissolved. The deceased had taken the view that these marriages had all ended when the wives concerned had left him, never to return. The contrary position was that if any one of the three customary marriages subsisted on the 19th August, 1966 (the date of the civil marriage), then the civil marriage was bigamous. Section 7 of the Marriage Act, No.47 of 1964 makes plain that
“No person already married may marry in terms of this Act during the subsistence of the marriage, irrespective of whether that previous marriage was in accordance with Swazi law and custom or civil rites and any person who purports to enter into such a marriage shall be deemed to have committed the offence of bigamy.”
(a proviso as to re-marriage of parties already customarily married to each other which follows is not relevant to this appeal)
 In order to show that a Swazi customary marriage has come to an end it is necessary for an expert in that field to testify. It is also necessary that the assessors sitting with the learned Judge a quo in matters of this kind participate in the proceedings, giving “such assistance and advice as the Judge may require. The final decision is vested exclusively in the Judge. This is provided in Section 6(2) of the High Court Act No.20 of 1954 which goes on in section 6(3) to add that
“The agreement or disagreement of an assessor with the decision of the Judge shall be noted on the record.”
In the Court a quo no agreement or disagreement was recorded.
 It is recorded at page 29 of the judgment that at the end of the evidence adduced by the parties,
“all counsel agreed to the appointment of an expert in Swazi Law and Custom: Mr. Charles Mavuso, the Judicial Commissioner.”
He was called as the Court’s witness and testified that there is in Swaziland only one system of customary marriage – the teka ceremony which includes the piercing of the ground with the spear, the smearing of the bride with red ochre, and the payment thereafter of lobolo. The witness maintained that there is no divorce under Swazi Law and custom but conceded that a marriage may be dissolved upon proof of adultery, the practice of witchcraft by the wife, desertion by a wife or showing of disrespect amounting to a form of what could be termed constructive desertion in other legal systems. In regard to desertion, he testified that desertion by a wife of a husband on the grounds of ill-treatment brings the marriage to an end, but that a wife smeared with red ochre can never be divorced, for even if she marries another man she remains the wife of the first man and must return to his homestead to mourn him upon his death. He added, in apparent contradiction, that to enable a woman smeared with red ochre to remarry, the family of the new man must pay lobolo to her family at her parental home. The apparent contradiction that divorce does not exist under Swazi law and custom yet a dissolution of the marriage is acceptable may, in part, be a linguistic contradiction. The idea of “untying” of the marriage bond, which might in other systems be treated as an annulment of the marriage, emerges in some of the writings which I shall deal with later, and was part of the argument of Mr. Masuku for the respondent. He argued that the three customary marriages in question had been “untied” by the conduct of the deserting wives and that while divorce might not have been achieved in the formal manner through a meeting of the respective families, a dissolution of all three marriages had taken place, thus allowing the deceased to enter into the civil marriage with the respondent in 1966.
 At the end of his evidence, the expert witness agreed that in terms of Swazi law and custom, a process must be set in motion for the marriage to be said to be legally at an end. His answer was
“That is why we say that if the two people are in dispute the two families must meet to talk over the matter where the husband will indicate what the problem is.”
The witness then contradicted himself by disagreeing with the proposition that a marriage cannot be said to have come to an end unless processes to end the marriage have been gone through. His next two answers appear to show a return to his view of the importance of the participation, albeit as an observer of the Chief, and the family of the husband and wife. The last two questions related specifically to the situation where a wife is fetched from her deceased husband’s kraal at his death by her family and restored to her family. The witness accepted this, adding that he insisted that “before any decision can be taken the two families must meet.”
 This is of more than its superficial importance since we have learned during the preparation and argument of this appeal that even death does not automatically bring an end to a marriage. It appears to be well accepted that a substitute husband may be provided in such a situation (known as the levirate or ukungena), so the return of a wife of a deceased husband to her family amounts in fact to dissolution of the marriage, only reachable after a family meeting and agreement.
 We have been presented with material by both sides to assist us in out efforts to try to establish, for purposes of this case, Swazi law and custom. We have also been referred to a number of High Court decisions touching on the matter. It does not appear that the Supreme Court of Swaziland has in any judgment decided what the Customary law of divorce was at any time, or in 1966 in particular when the respondent and deceased were married by civil rites.
 An important starting point is a report, provided by the respondent, on the proceedings of the Swazi (Central) Law Panel during meetings held at Lozitha from 26 to 29 May, 1964. The meetings were chaired by Mr. N. Rubin of the School of Oriental and African Studies, University of London. At page 21 of the document before us it is said under the heading
“Termination of marriage by divorce
Divorce may take place extra-judicially, i.e. as a result of agreement reached between the husband, ¹·[in consultation with his family council (lusendvo),] and the father of his wife.”
The words in brackets are found in footnote¹· relating to this passage.
The minutes record that the panel took the view that
“Such an agreement is preceded by the return of the wife to the home of her father, after which negotiations will take place between him and the husband concerning the future treatment of the cattle paid as marriage consideration.”
A further footnote records that these negotiations are directed, in the first place, towards effecting a reconciliation and only where this proves impossible, towards an agreement concerning the dissolution of the marriage and the question of lobolo.
 Grounds for divorce in this document are stated to be adultery, repeated assault leading to the return of wife to her father’s home, and witchcraft practised by either party. It is also recorded on page 24 of the minutes that
“After a marriage has been dissolved, the parties thereto are entitled to remarry.”
 In Malambe & Another v. Khoza, SLR 1970-1976, 376 at 377, Nathan C.J. held that it was a principle of Swazi law and custom that “if a husband maltreats his wife she may leave him and he has no claim to the lobolo which he handed over for her.” A compilation of notes by J.M.A. Fannin the then Judicial Commissioner dated 12 December, 1967 is referred to and a similar statement at page 125 of B.A. Marwick’s The Swazi (1940). At page 378C, Nathan C.J. goes on to say the following about the compilation of the Swazi (Central) Law Panel (1964)
“This compilation was made available to the court by Mr. Dlamini and is apparently the work of the Swazi (Central) Law Panel which held meetings at Lozitha in May 1964. The panel was under the chairmanship of Mr. N. Rubin of the School of Oriental and African Studies, University of London and consisted of a number of members of the Swazi Court of Appeal, Higher Court of Appeal and others. It appears to be authoritative.”
 We have been referred to two recent judgments in the High Court. In the first, Dlamini and Dlamini v. Nkambule and Others, Civil Case 3046/06 and 3822/08 Mamba J., with the assistance of assessors who agreed with him, approved, in a judgment dated 28 August 2009, of the work of Professor Thandabantu Nhlapo in his book Marriage and Divorce in Swazi Law and Custom (1992).¹· At p 100 of that work, the author concluded that Swazi marriages are capable of termination, and that
“desertion emerges…as a significant ground for divorce…But above all, the rules and processes involved in the formulation and dissolution of marriage underline the important fact that Swazi marriage is a communal, as opposed to individual affair.”
 In a ruling in February 2011, in Siphiwe Magagula v. Lindiwe Mabuza and Others, Civil Case No.4577/08, [not as yet reported but available on the internet at Swazilii.org] M.C.B. Maphalala J. held that whatever the legal position in the past, it is now settled that a marriage solemnized in terms of Swazi law and custom is capable of being dissolved at the instance of either spouse and that the dissolution is generally made during the meeting of members of the two families and not by a court of law. That accords roughly with what some writers have to say but the further statement that where the
¹· The passage quoted by the learned Judge does not appear in the work cited at pages
52-53. The passage is taken from The Legal Position of Women in Swaziland by A.K. Armstrong and R.T. Nhlapo at 52-53.
wife deserts her husband and marries another man during the lifetime of the husband the marriage automatically comes to an end whether or not a family meeting is held is not borne out by the work of Professor Nhlapo cited by the Court. Neither is that view supported by any of the authorities to which we were referred. It also goes against the most frequently quoted statement in regard to divorce in Swaziland, that of B.A. Marwick in his work entitled The Swazi (1940) that
“Divorce is extremely difficult to obtain among the Swazis - it is difficult to separate from a wife.”
Marwick gives the reason
“The Swazis have an almost illimitable capacity for compromise, and it will only be in the most stubborn cases where there is grievous cause for complaint that the separation will be effected.”
This statement is repeated by J.M.A. Fannin a Judicial Commissioner in his Preliminary Notes on Principles of Swazi Customary Law dated 12 December 1967, and in the earlier work of Hilda Kuper: The Swazi, a South African Kingdom (1963), where the writer makes the point that divorce is rare in Swazi society and that Swazi marriage is essentially a linking of the families rather than of two persons.
 At page 87 of Professor Nhlapo’s work under the heading “Desertion” one learns that it is very difficult for a wife to prove desertion on the part of a husband. Long absences by husbands away on legitimate business are common and
“Between the migratory labour system and the dynamics of polygamy a wife may not see her husband for months on end. She would need to show something extra in order to establish such absences as a matrimonial offence.”
Her only real recourse to terminate an unwanted marriage, where no other grounds are available, is to leave her husband and return to her father’s home with the intention of not returning to her husband. If the husband wishes to bring his wife back, he will first approach her parents. Her father has a duty to return her as soon as possible but if he believes that the wife’s reasons for her departure from the matrimonial home are well founded, he then has a duty to protect her from returning to suffer ill treatment such as unjustified beating, cruelty or serious neglect. In such a situation a meeting of representatives of the two families is convened to attempt a reconciliation. As Mr. Jele rightly submitted, there is consensus amongst the authors that for the dissolution to take place there must be a meeting of the families and a serious attempt to resolve the matters by the families. If this fails, a divorce can then be arranged if the differences are irreconcilable and a refund of lobolo is made, after the talks have exhausted all possibilities of a reconciliation. It is only then that the matter can be taken to the relevant Chief so that the dissolution can be formalised before the Chief, as the expert witness Mr. Mavuso testified. Such a procedure would seem to be necessary in order to make known to the public the new, unmarried status of the parties, and we are satisfied that the Chief had, in 1966, to be fully informed of the deliberation and decisions taken by the parties as to lobolo, custody of children, maintenance and other issues which arise on dissolution of a marriage. We agree with the submission of Mr. Jele that since a customary marriage must be reported to the traditional authority, a dissolution ought also to be reported so that matters of status of this kind are made public. A woman, for instance, publicly acknowledged to be properly divorced after the appropriate traditional procedures have been completed, would be free to remarry without fear of the stigma of any allegation of adultery.
 It is important to re-emphasise that this judgment is concerned with the state of the Swazi Customary Law in 1966. It is clear from all that we have heard and read on this subject in the limited time available that customary law in this country is not static but is continually evolving. By its very nature it is dependent upon the conduct, values and beliefs of the people of Swaziland. As T.W. Bennett has put it in his work “The Application of Customary Law in Southern Africa” at p.32
“Customary law if by nature fluid and fast- changing; but the doctrine of stare decisis is imposing an alien rigidity on the system.”
Professor Bennett warns also (p.32) against the use of anthropological material based on the assertion of a single person adding that
“Any reputable anthropological treatise in which the data was collected by careful observation, recording of local court cases and extensive interviews would offer a far better guarantee of the authenticity of a rule of customary law than the isolated opinion of assessors or witnesses.”
In our view the work of Professor Nhlapo is replete with references to many interviews, details of which are provided in the book. Moreover his view of the need for meetings of both families of the estranged couple before dissolution of their marriage can be achieved is supported by Marwick, Fannin and the minutes of the meetings of the Swazi (Central) Law Panel in May 1964.
No argument as to the constitutionality of customary law practices governing divorce would have been appropriate in this matter which is concerned with the state of customary law in 1966.
 Against this background a determination must be made as to whether any of the customary marriages of the deceased subsisted in 1966 when he went through a form of marriage with the respondent. It is not in dispute that the deceased was married by customary law to Lizzie Tfwala (Latfwala). She testified that she became the wife of the deceased after living with him for two years and bearing him two children. She added that she “was married to him through a teka ceremony and was smeared with red ochre at Mayiwane”. She had stayed with Calvin for a number of years after the “smearing with red ochre” and left him around 1963 because he was abusive and “he would beat me up”. She “left for good and he did not come back for me”. Lizzie Tfwala did not re-marry and remained at her parental home raising her children. In her mind the marriage with the deceased was never dissolved and
“I consider myself to be his wife even now.”
Most of the cross-examination of this witness was directed to a suggestion that she had left the matrimonial home because she had committed adultery, sharing the bed of another man while her husband was away. She denied this and no evidence was presented to back up the suggestion.
 The learned Judge a quo reached the conclusion that the desertion of the deceased by his wife had resulted in a termination of the marriage. The reason given for this finding was that
“Guided thus by expert testimony, I hold it to be a fact that LaThwala’s act of desertion brought her marriage to an end in 1963.”
In my view a finding of fact cannot be based on expert evidence alone. The evidence of LaTfwala that the deceased had not come to her parents’ home to take her back to his home, and that no meeting was ever held by the respective families of husband and wife was not challenged in cross-examination and must stand. Even if a wife intends to leave “for good” (on departing) the customary practice of family meetings must be observed. Obvious matters for discussion would be the wife’s allegations of abuse by her husband, the possibility of reform by the husband if the allegations were true, and the possibility of the wife forgiving him and returning to the matrimonial home. None of this happened and to hold that the marriage simply dissolved automatically in the light of a desire, upon leaving, by the wife never to return to the husband, cannot, in my view, be correct. It follows that when the deceased purported to enter into a form of civil marriage in 1966, his marriage to LaTfwala still subsisted, and the civil marriage was null and void since it was unlawful to enter into a bigamous marriage. In the light of this finding, it is unnecessary to examine the question whether the two subsequent customary law marriages still subsisted in 1966.
 It necessarily follows that since there was no civil marriage, there was no community of property, community of profit and loss, or marital power of the husband which might normally flow from such a marriage.
 What remains for determination in this appeal is the counter-application brought by the respondent to declare the Last Will of the deceased invalid, and that the deceased had died intestate.
 The respondent contended that in making the Will the deceased had bequeathed more than 50% of the assets in the joint estate notwithstanding the fact that he was only entitled to dispose of his half-share in the estate. Even if a marriage in community had existed, this argument would have been unsound. The whole Will would not fail for such a reason. The Will would only have been ineffectual to the extent that it purported to dispose of assets in excess of what was lawfully the deceased’s to bequeath. Since we have decided that there was no lawful marriage by civil rites, it follows that there is no community of property and the position of a testator disposing of more than his half-share in a civil marriage in community of property does not arise.
 The finding of the Court a quo that the Will of Calvin Ndlovu failed to take account of the fifty percent share of the respondent was founded on a wrong premise and must be set aside. It follows that the declaration by the Court a quo that the deceased died intestate is also without legal foundation and must be set aside.
 Near the end of the judgment in the Court a quo, the question of the validity of the customary marriage which had taken place after the civil ceremony between the respondent and the deceased was dealt with. It was accepted by the Court that the respondent had participated in a teka ceremony held on the day after the civil ceremony, to satisfy the Dlamini family who had insisted on a due performance of custom, to witness the respondent presenting gifts to her in-laws, the Ndlovu family. The respondent had testified that she had been smeared with red ochre, had had held a spear in one hand and a bowl of water in the other. Expert testimony was accepted as establishing that the smearing and holding of the spear were enough to qualify her as a wife. In my view the Court a quo also rightly accepted the evidence of the respondent, which was supported by two photographs marked ID1 and ID2 which were taken at the customary ceremony that she had indeed held a spear. A witness called by her, one Phineas Ndlovu, had testified in chief, that he had witnessed the civil ceremony and the customary teka ceremony in 1966 but did not mention the spear in chief. The Court a quo held that this evidence
“was belied by pictures ID1 and ID2 which he identified as pictures taken during a ceremony whereat the first respondent carried a spear; thus was he compelled to admit that the first respondent had indeed carried a spear.”
This was not correct as the witness said in cross-examination that
“The 1st respondent was tekaed and was carrying a spear”
and was not compelled to admit the spear.
The expert witness had also testified that a customary marriage must include the teka ceremony and the bride must be given a spear to pierce the ground. It was never suggested during the respondent’s evidence that she had not pierced the ground with the spear which she was holding. Morever the probabilities point strongly to the fact that she had used the spear for the purpose for which she had been given it. After some uncertainty by the expert as to the continuing validity of a marriage conducted “outside the kraal”, as this was, the expert eventually responded that the woman so married would be a lawful wife under custom. The Court a quo held, correctly in my view that it was probable that a customary marriage had resulted. One of the important, if not the most important, consequences of this correct finding is that the children born to the respondent and deceased are legitimate.
 In the result
the appeal succeeds;
the decision of the High Court
that the marriage between the deceased Calvin Ndlovu and the first respondent Nellie Siphiwe Ndlovu, contracted at Piggs Peak on 19 August 1966, was valid is set aside;
that the Last Will and Testament of the Late Calvin Ndlovu is pro non scripto and null and void is set aside;
that the late Calvin Ndlovu died intestate is set aside, and
that the Master of the High Court is to appoint a suitable and proper person to administer the said estate is set aside.
it is declared that the marriage purportedly entered intobetween the late Calvin Ndlovu and Nellie Siphiwe Ndlovu at Piggs Peak on 19 August 1966 was invalid ab initio;
the Registrar of Births, Deaths and Marriages is directed to cancel an entry in the marriage register in respect of the purported marriage between the late Calvin Ndlovu and Nellie Siphiwe Ndlovu;
Costs in the High Court and on appeal to this Court are to come out of the estate of the late Calvin Ndlovu.
JUSTICE OF APPEAL
JUSTICE OF APPEAL
JUSTICE OF APPEAL
DELIVERED IN OPEN COURT AT MBABANE ON 31ST MAY 2011.