IN THE HIGH COURT OF SWAZILAND
JUDGMENT
Case No. 2501/10
In the matter between
FUTHI THWALA (NEE DLAMINI) Applicant
and
TENGETILE DLAMINI 1st Respondent
THE PUBLIC SERVICE PENSION FUND 2nd Respondent
THE REGISTRAR GENERAL OF
BIRTHS, MARRIAGES AND DEATHS 3rd Respondent
THE ATTORNEY GENERAL 4th Respondent
Neutral citation: Futhi Thwala (nee Dlamini) v Tengetile Dlamini (2501/08) [2012] SZHC 05 (9 January 2012)
Coram: Mamba J
Heard:
Delivered: 9 January 2012
[1] The material facts in this application are common cause. What appears to be in issue are the legal conclusions to be drawn from those facts. I summarise these facts below.
[2] The late Daniel Jabulani Thwala was born at KaBhekinkhosi in the Manzini District. When he became of age, he established his own homestead with his mother at EKutsimleni area, which is a neighbouring Chiefdom to KaBhekinkhosi. He then got married to one Lindiwe Mumcy Dlamini in accordance with Swazi Customary Law. The couple lived together at Daniel’s home and they both treated this as their matrimonial home.
[3] The solemnisation of the said marriage and its validity is acknowledged and accepted by all the parties herein. Two children, namely Constantine and Bandile Thwala were born of the said marriage. These children are still minors and are under the guardianship of the first respondent who is a sister to Mumcy Lindiwe Thwala.
[4] Sometime after their marriage, and one suspects after the birth of the two children stated above, the couple experienced a serious strain in their marriage. This resulted or culminated in Mr Thwala expelling his wife (Mumcy) from their matrimonial home. It is again common ground that overtures and deliberations by Mumcy’s people or family aimed at reconciling her with her husband failed. The evidence in this regard is unfortunately very sketchy. There is no indication, for instance, showing who was involved in these deliberations; what was the cause of the complaint by Mr Thwala and what was the sticking point or point of disagreement in those deliberations. She remained away from their marital home until she died. Again, as in all the other events or occurrences enumerated above, the date or year when such event took place is not stated in the papers before me. This deficiency or missing link in the evidence is not material herein.
[5] On 19th April 2003, Mr Thwala married the applicant. The marriage was again in terms of Swazi customary law. The validity of this marriage is also not in issue.
[6] Chronologically, the next significant occurrence in the history of the Thwala family, was the death of Mr Thwala himself in around 2008. He died pre-deceasing Mumcy who is now also deceased. But before Mumcy died, Mr Thwala’s estate was reported in the normal way to the Master’s office. In one of the meetings of the next of kin, Mumcy produced what purported to be a civil rites marriage certificate between her and Mr Thwala. I have used the word “purported” to indicate that this was no marriage certificate. It recorded that the marriage had been contracted on 20th February, 2000. It has been shown to be a forgery. It is not necessary for me to speculate why she forged this document. But benefits from Mr Thwala’s estate and the Pension Fund wherein he was a member loom large.
[7] Based on the above facts which as I have said are common cause, the applicant has applied for the following order, namely:
“1. Directing and authorising the 2nd respondent to make a payout to applicant of the amount of E47,657.46 withheld for and in favour of the late Lindiwe Mumcy Dlamini from the estate late Daniel Jabulane Thwala;
2. Declaring the applicant as the sole wife of the late Daniel Jabulane Thwala;
3. Granting costs hereof only in the event is opposed.”
The Applicant’s contention is that the marriage between Mr Thwala and Mumcy was lawfully terminated or ended when Mr Thwala expelled Mumcy from their matrimonial home and refused to accept her back when attempts to persuade him to do so by her people were made. This view is supported by Kufa Thwala, Mr Thwala’s uncle who states that following the failure to reconcile the couple, the Thwala family regarded the marriage as having been terminated. She also argues that her view is supported in this regard by the fact that after the death of Mr Thwala, Mumcy was not accorded the customary status of a widow as she was not given the customary mourning dress or robe given to widows on such occasions or eventualities. I cannot accept this argument.
[8] About two years ago speaking of divorce under the dictates of Swazi Law and Custom I had occasion to say:
“Very often, where eMabheka or part thereof have been given, the husband’s representative (Umyeni) in that transaction also accompanies the woman on her journey to her people. This sending off of the wife home …does not constitute a divorce but it is perhaps the first formal step in the dissolution proceedings at the instance of the man. …
On arrival at her home the woman relates to her father or guardian the reasons for her return. He guardian is expected to respond to this by taking her back to her in-laws in order to allow the two families to formally deliberate on the matter. Where the matter is resolved without the marriage being dissolved, the Chief’s kraal is not brought into the matter. However, where the decision is that the marriage should be terminated, the relevant Chief’s kraals (umphakatsi) representatives, if more than one should be invited and be fully informed of the deliberations and decisions taken, e.g. pertaining to the issue of emalobolo, custody of the children born in the marriage… .
The joint family court decision is decisive and not an unilateral act by one of the protagonists before such a decision is made.”
That occasion was Matry Nompumelelo Dlamini and Another v Musa Clement Nkambule and 4 others, cases 3046/06 and 3822/08, unreported judgment delivered on 28th August 2009 at para 14-16.
From the above excerpt it is plain that it is not enough for the couple or just either of them to walk away as it were from the marriage, to constitute a decree of divorce or to have the marriage dissolved or undone. For the joint family court or council to convene or seat, there must exist a dispute between the couple. This dispute or the cause thereof must be serious enough to constitute a ground for divorce. The family council must first identify the complaint and then decide or determine its truthfulness or veracity. If the complaint is found to be true or proven the next step in the inquiry is to try to reconcile the couple specifically and the two families in general. Where reconciliation is achieved, usually punishment in the form of a fine may be imposed on the offending party. It is only where reconciliation is not achieved that the parties consider terminating the marriage. This is formally communicated to the couple’s respective imiphakatsi. Again, it is the joint family council that makes the decision to end the marriage. Ideally, a representative of the husband’s Umphakatsi is invited to observe the deliberations and to eventually formally report the divorce at his Umphakatsi. The absence of the Umphakatsi’s represented in the deliberations is not fatal or strictly necessary as a report to the Umphakatsi may be made after the event (ex post facto).
[9] In the instant case the only inkling one gets as to how the misunderstanding between the couple was handled, is what Kufa Thwala says:
“8. As the elders in the family, we intervened and she was brought back to her husband by her family but my nephew refused to let her come back. …
10. Since our deliberations as elders failed to reconcile the two, as a family at Ekutsimleni, we regarded the marriage dissolved thus even at the death of my nephew we never bothered to give Lindiwe Mumcy Dlamini the mourning gowns as a wife but only gave to the applicant.”
[10] It is clear to me from what Kufa says that the decision to regard the marriage as having been dissolved was unilaterally taken by the Thwala family. Indeed it does not appear to me that the two families ever deliberated on the matter jointly. At first, an attempt by Mumcy’s family to take her back to her matrimonial home was rebuffed by her husband. This does not, in my judgment equate to holding talks on reconciliation or divorce, as required by the applicable law. Further, there is no mention of what the complaint was against Mumcy and there is no indication that a report was ever made to any of the imiphakatsi involved that the couple had been declared divorced. (Mumcy was from Ludzeludze and presumably that was her umphakatsi).
11. For the above reasons, whilst Mumcy and Mr Thwala were living apart when the latter died, they were still married under Swazi Law and Custom and the 2nd respondent is to treat or regard the former as a wife at the latter’s death. Thus the application is dismissed with costs to the first respondent only, the 2nd respondent abiding the decision of the court.
MAMBA J
(Ex tempore judgment on 09/01/2012)
FOR APPLICANT Mr. B. Zwane
FOR 1ST RESPONDENT Mr. Z. Magagula
FOR 2ND RESPONDENT Mr. K. Motsa (abiding
decision of the court)
FOR 3RD & 4th RESPONDENT No appearance
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