Court name
High Court of eSwatini
Case number
Civil Case 3791 of 2002

Malaza v Magagula (Civil Case 3791 of 2002) [2003] SZHC 86 (28 August 2003);

Law report citations
Media neutral citation
[2003] SZHC 86
Coram
Maphalala, J









THE
HIGH COURT OF SWAZILAND


MGCIBELO
MALAZA


Applicant


And


TIMOTHY
MAPHENDUKANE MAGAGULA


Respondent



Civil
Case No. 3791/2002


Coram S.B.
MAPHALALA - J


For
the Applicant MISS GWIJI


For
the Respondent MR. SHILUBANE


RULING


(ON
POINTS IN LIMINE)


(28/08/2003)


This
is an application where the Applicant seeks relief to nullify the
marriage certificate of the late Joyce Thandi Magagula and the
Respondent on the grounds that it was procured fraudulently.


The
material facts in support of the application are found in the
founding affidavit of the Applicant who is the natural father of the
late Joyce Thandi Malaza who died on the 15th April 2002, at the
Clinic, Mbabane. The Applicant has outlined in detail the sequence of

events
in support of his case and has also filed

supporting
documents to the application. The supporting affidavit of one Timothy
Malaza who is a brother to


2


the
deceased is also filed thereto. A further supporting affidavit of one
Nosipho Mkhabela who is a daughter of the deceased is also filed of
record. Finally, a confirmatory affidavit of one Matilda Malaza is
also filed.


In
opposition the Respondent has filed his answering affidavit where a
number of points of law in limine are raised. In turn, the Applicant
has filed a replying affidavit accompanied by supporting affidavits
of Nozipho Mkhabela and that of Matilda Malaza.


The
points of law raised which are the subject matter of the dispute are
ipsissima verba as follows;

"Points
in limine


5.1. I
am advised and verily believe that this matter is one that cannot be
resolved on affidavits as there is a host of facts in dispute.


5.2. Further
the Applicant is abusing the process of the court in that:


5.2.1. The
marriage certificate is prima facie proof

that
the marriage did take place, for once a woman is smeared with red
ochre, it becomes conclusive evidence or proof that the woman is
married to that particular person and

lobola
can be delivered at a later stage, which is what happened in the

present
case.


JURISDICTION


5.2.2. The
application is fatally defective in that the Applicant seek relief to
nullify the marriage certificate, yet this Honourable Court lacks
jurisdiction to

adjudicate
matters on Swazi law and custom unless

a
ssisted
by assessors.


CLAIM
FOR DAMAGES


5.2.3. The
Applicant seeks relief to nullify the marriage certificate on the
ground that lobola had not been paid needless to say

that
Applicant should institute action for a claim for damages to recover
the

said
lobola as a remedy.


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For
these reasons, may it please this Honourable Court to dismiss the
application with costs".

When
the matter came for arguments counsel filed Heads of Argument;


On
the first point the Respondent contends that the matter cannot be
resolved on affidavits as there is a host of facts in dispute, which
the Applicant foresaw or should have foreseen would arise, as a
result the court should dismiss the application with costs. To
support this view the court's attention was drawn to the South
African case of Room Hire Co. (Pty) vs Jeppe Street Mansions (Pty)
Ltd 1949 (3) SA. 1155 (T). Firstly, the Applicant contends that the
issue was discussed and finalized, such that the Applicant sent
people to remind the Respondent to pay the lobola which was later
delivered and rejected by Applicant; Secondly, Applicant contends
that on registration of the marriage certificate her daughter Matilda
Malaza never was in attendance same. Respondent submits that the said
Matilda Malaza was in attendance in that her name appears under
column 26 of the marriage certificate hence oral evidence would need
to be led if

she
wants to prove that she was in attendance., The Applicant on the
other hand contends that the issue of lobola was never discussed,
that no guarantee of same was made, and no lobola or part thereof was
ever delivered, contrary to Respondent's declaration of the Registry
of Births, Marriages and Deaths that 6 herd of cattle were paid for
lobola, as reflected in column 24 of the marriage certificate.


It
appears

to
me
on
the above that there

are
a

host
of
facts

in
dispute,
which the Applicant foresaw or should have foreseen would arise, and
the application on the basis of the ratio in Room Hire Co. (Pty) Ltd
(supra) ought to be dismissed on this ground.


Coming
to
the

issue
of non-joinder, it

would
appear
to
me

that
Mr.
Sholubane
is correct that the application is fatally defective in that the
Applicant has not joined the Registrar of Marriages in his
application whereas he seeks an

order
to nullify the marriage certificate.

In
terms
of Section 28 (3) of the Births,

Marriages
and
Deaths Registration; Act No. 5 of 1983, the Registrar of Marriages
had to be joined as it provides thus:.


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"Every
such certificate signed by the Register or registration officer shall
be prima facie evidence of the particulars set forth therein in all
court of law and public offices."


Had
the Respondent not complied with all the requirements as laid down in
the Births, Marriages and Deaths Registration Act No. 5 of 1983, more
specifically Sections 26 and 28, he could not have been granted the
certificate thus the need to lead viva voce evidence to prove that
the requirements, were not complied with, essentially in light of
Applicant's allegation that the registration of certificate was
procured by fraud.


On
the issue of jurisdiction on the basis of the authorities cited by
Mr. Shilubane that the court lacks the jurisdiction to adjudicate
upon the matter as a court of first instance. Further, Section 11 of
the Marriage Act creates a criminal offence for such instances.


Lastly,
on the issue of the claim for damages I agree with the. Respondent in
this regard that the Applicant should have instituted an action for a
claim for damages to

recover
the said lobola.


In
the

result,
the points of law in limine raised on behalf of the Respondent ought
to succeed and the costs

to
follow the event.


S.B.
MAP
HALALA


JUDGE