Methula v Khoza and Others (2413 of 2008) [2008] SZHC 189 (3 October 2008)



IN THE HIGH COURT OF SWAZILAND



HELD AT MBABANE Civil Case No. 2413/2008



PHUMZILE METHULA Applicant



And



SIKHUMBUZO JOHAN KHOZA 1st Respondent
REGISTRAR OF BIRTHS, MARRIAGES

AND DEATH 2nd Respondent

THE ATTORNEY GENERAL 3rd Respondent



Coram S.B. MAPHALALA - J

For the Applicant MR. S.MNGOMEZULU
For the Respondent




JUDGMENT


3rd October 2008

[1] The Applicant filed an application in the long form for an order directing the 2nd Respondent to forthwith delete and/or cancel Marriage Certificate No. 2361 from the Registrar of Marriages solemnized in the Kingdom of Swaziland. Further directing the 1st Respondent to pay the costs of this application.



[2] The Founding Affidavit of the Applicant is filed in support of the application with pertinent annexures. A confirmatory affidavit of one Sikhumbuzo Johane Khoza is also filed.



[3] The Respondents have not filed any opposition to the application.



[4] On the 25th July 2008, the matter appeared before Mabuza J who extended a rule nisi which had been granted by Monageng J on the 11th July 2008. The learned Judge then posed a question in the following terms:


"Does this court have jurisdiction to dissolve customary marriages? If not such orders are empty and will ultimately bring the administration of justice into disrepute and High Court".



[5] On the 1st August 2008, the matter appeared before me in the 8.30a.m roll where I requested the attorney for the Applicant to file comprehensive Heads of Arguments in this very important case. Indeed on the 6th August 2008, Counsel filed these Heads of Arguments for which I am grateful to Counsel.



[6] The crux of the argument in the Heads of Arguments by the Applicant is that this court is competent to grant the order sought by the Applicant in as much as Applicant does not seek an order cancelling and/or annulling her marriage to the 1st Respondent. That this court duly granted the order sought by the Applicant in casu in the case of Ex parte Ginindza and Another 1979 - 81 S.L.R. 361 at 363.

[7] I order to unravel this mystery pointed out by Mabuza J above at paragraph [4] of this judgment it is important hereunder to sketch the material facts in this case.



[8] On or about the 26th February 1996, the Applicant was married to the 1st Respondent herein by Swazi law and custom at Malibeni within the Hhohho Region. On child was born of the marriage relationship. Her name is Delisile Khoza and she is a minor of eight years old and resides with her. The 1st Respondent had from the year 2000 engaged in numerous extra-marital affairs hence their relationship irretrievably broke down.



[9] The 1st Respondent has perpetually committed adultery with one Tanele Zibuko and Applicant has at all times material hereto not condoned the adultery.



[10] On or about November 2007, the 1st Respondent proceeded to the Manzini District Commissioner whereat he duly entered into a marriage by civil rites to the aforesaid Tanele Zibuko.



[11] By the time the 1st Respondent married Tanele Zibuko, they had duly dissolved their marriage in terms of the Swazi custom known as "kugeza libovu" (cleaning the red ochre).



[12] On or about March 2004 her family and that of the 1st Respondent duly held a meeting at her parental home whereat both families agreed that the marriage relationship was duly dissolved. Her family made an undertaking to return to the 1st Respondent and his family a cow paid in respect of "insulamnyembeti". The Respondent paid a sum of El, 200­00 in lieu of such cow hence the said amount will be refunded to him in full.



[13] The Applicant further brought to the court's attention that the 1st Respondent had not paid any dowry (lobola) hence there are no cows to be refunded to 1st Respondent in that regard.

[14] The 2nd Respondent herein duly registered their marriage in the Marriages Register kept by him. The Manzini District Commissioner also advised the 1st Respondent that the entry in the Marriage Register has to be cancelled and/or deleted as the customary marriage between herself and him was dissolved as per Swazi law and custom. The 1st Respondent duly approached her as the Marriage Certificate has always been, in her custody, and requested that they cancel the Marriage Certificate accordingly.



[15] It is stated that the present application is not opposed by the 1st Respondent. A certificate of consent hereto is annexed marked "B". Applicant further contends that the cancellation of the Marriage Certificate will amount to a confirmation that the customary marriage between her and the 1st Respondent was annulled. The 1st Respondent and she have duly accepted the cancellation and/or annulment of their marriage and they are both prepared to go separate ways.

[16] The Applicant's Counsel argued before me that on the 25th July 2008, the court queried whether it had jurisdiction to dissolve Swazi law and custom marriages whereas no order for the dissolution of any marriage was sought before it.



[17] Having considered the facts of the matter and the dictum in the High Court of Ex parte Ginindza (supra) it would appear to me that the Applicant is correct that the cause of action in the present case is not the dissolution of a Swazi law and custom marriage but that 2nd Respondent forthwith delete and/or cancel Marriage Certificate No. 2361 from the Registrar of Marriages solemnized in the Kingdom of Swaziland. This finds support in Ex parte Ginindza (supra) which is at all fours with the present case.



[18] In the result, the application is granted in terms of prayer (a) of the Notice of Motion. I make no order as to costs as 1st Respondent has not opposed this application.


S.B. MAPHALALA

JUDGE


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