Bhembe v Bhembe (3410/2012) [2013]SZHC 70 (03 May 2013);

                  

                                                       

 

IN THE HIGH COURT OF SWAZILAND

 

JUDGMENT

                                                                                                            Case No. 304/2012

In the matter between:

 

 

PHINDILE BHEMBE (NEE DLAKUBI)                                   Applicant  

 

And

 

JOHN BHEMBE                                                                             Respondent 

 

Neutral citation:     Phindile Bhembe (nee Dlakubi) v John Bhembe (304/2012) [2013] SZHC 70 (3^rd May, 2013)

 

Coram:                      M. Dlamini J.

 

Heard:                       1^st October 2012

 

Delivered:                 3^rd May, 2013

                       

– Application for interdict order against husband by wife on basis that husband is disposing of matrimonial assets and abusive to wife – husband as an administrator of matrimonial assets lacks authority to mero motu alienate matrimonial assets at the detriment of the partnership or wife.

 

Summary:      The applicant and the respondent were married firstly under Swazi law and custom and later in terms of the civil rites marriage.  The applicant seeks for an interdict for reasons that the respondent is disposing off the matrimonial assets and is violent against her.

 

                        Evidence

 

[1]                   Both parties, through their Counsel led viva voce evidence.

 

[2]                   Applicant informed the court under oath that she met with the respondent while they were both working at Nhlangano in 1989.  Applicant was employed at Nhlangano Sun while respondent by the Police and based at Nhlangano camp.  They cohabited together and as a result a boy child was born in the same year.  In October 1989 the respondent requested that they both take the child to his parental home in order to show his parents.  At respondent’s parental home, applicant was caused to undergo traditional marriage (tekaed).  In 1992 April the parties contracted a civil rites marriage at the Magistrates’ Court, Siteki.  The couple lived together in a harmonious relationship until 2008.  Respondent became violent towards applicant to the extent that a criminal case was registered at the Magistrates’ Court and a conviction sustained against him with a 3 year wholly suspended sentence.  Respondent refused to maintain the matrimonial home.  Children’s school fees were not paid.  He would disappear from home whenever schools opened in order to avoid paying school fees .  Applicant had to solicit loans in order to pay off the children’s school fees and tuition fees.  By this time the first born was at a university in South Africa.  He would not respond to applicant’s calls.  In 2010, applicant reported respondent’s unbecoming conduct to his father.  His father caused a meeting where applicant’s mother was also present.  The parents would reason with respondent in an attempt to reconcile the two.  However, this fell on deaf ears.  A pastor was called who too caused a meeting.  In that meeting respondent confirmed having a weakness when it came to ladies.  However, he failed to change his violent behavior.

 

[3]                   On 29^th July 2011 respondent around midnight demanded duplicate keys for a motor vehicle.  He assaulted the applicant to the extent that their daughter was caught attempting suicide by hanging herself.  This motor vehicle was purchased in 2006.  The lump sum paid as deposit was money sourced by applicant. Respondent undertook to pay the balance by monthly installments.  It was applicant’s evidence that when they applied for the said motor vehicle loan, the bank official advised them that as respondent would be responsible for monthly payments, the motor vehicle should be registered in his name.  Once the loan was dissolved, a change of ownership may be effected.  She later learnt that respondent had sold the said motor vehicle and he did so without consultation with her.  It was her evidence further that she does farming where she ploughs large fields of maize.  Prior to respondent’s violent behavior, they had agreed that once the harvest is done and there is excess maize, she should take two bags of maize to her parental home and to her in-laws.  Any further excess was bartered with goats.

 

[4]                   However, in 2010, respondent would come home, take bags of maize and disappear.  On January 2012, respondent came home took a goat without a word to anyone.  The following day, applicant heard that respondent had used the said goat to conduct a traditional marriage with another woman.  This is the same woman who now lives with respondent as husband and wife.  Respondent also removed thei marriage certificate from the wall and left with it.  In 2013, respondent approached applicant’s father and requested that the applicant should file for divorce proceedings against him and he will not contest the same.

 

[5]                   Her further evidence was that respondent consistently comes home to remove groceries and maize.  He has since taken all his personal clothing.  If he finds the house locked, he uses a hammer to break not only the doors but walls and floor tiles.  He has on several times threatened her until his superiors at work decided to dispossess him of the firearm which belongs to his employer as respondent is a police officer.  Even though an interim order was in place to the effect that respondent should desist from entering the matrimonial home and removing items, respondent was not in compliance.  Respondent has threatened to burn the matrimonial homestead.

 

[6]                   On cross examination, the acts of violence by respondent were not contested.  Instead the cross-examination concentrated on the matrimonial regime that governed the parties.  It could be gathered from the manner Counsel for respondent posed question to this witness that his instructions were that even though there was a civil rites marriage contract, the parties were governed in terms of Swazi law and custom.  In the result therefore, respondent was at liberty to remove whatever items from the house and have as many wives as he pleased, so went the cross-examination.

 

[7]                   The second witness on behalf of applicant was her biological sister Bonisile Dlakubi – Sibisi who under oath informed the court that she witnessed the courtship between applicant and respondent.  She lived with them when they had their first born son.  The two were love birds.  However, trouble began when she was away in a meeting.  She received information from applicant that she was assaulted by respondent.  She went to her and caused a meeting with respondent.  However, responded never changed.  He would break walls, floor tiles and doors of their home and assault the applicant.

 

[8]                   Counsel for respondent cross-examined this witness along similar lines as applicant.  It was put to her that when respondent told applicant that he would pack her things and send her home it was according to Swazi law and custom as per their marriage.  This witness responded that no marriage regime would allow one party to forcefully remove the other.  It was further put to her that the act of applicant calling upon the parents to resolve the dispute between her and respondent was in terms of Swazi law and custom and therefore the civil rites marriage never existed except on paper.  This witness responded by stating that she too was married under civil rites but whenever she has a misunderstanding with her husband parents are invited to reconcile them.

 

[9]                   The applicant closed her case.

 

[10]                 Respondent took the witness box and under oath informed the court that he indicated from the onset that he would marry applicant in terms of Swazi law and custom.  By consent of applicant the traditional marriage was conducted in 1989.  Dowry was paid and a traditional wedding took place in 1992.  As at that time it was difficult to obtain certificates as there were no computers, a civil rites marriage was contracted.  It was his evidence that he needed the certificate to file it at work as in terms of his employment regulations one had to have a certificate.  He informed the court that the applicant never contributed a penny towards the matrimonial assets.  They conducted their affairs in terms of Swazi law and custom and therefore the assets belong to him and the children.  He acknowledged a dispute over car keys and told the court that applicant called for the police. He informed the court that a number of motor vehicles were purchased by applicant but later sold them.  He does not know what applicant did with the proceeds.  A Toyota kombi was purchased jointly where applicant contributed a high amount.  This kombi was used to operate a transport business.  They were joint signatories.  However, applicant unilaterally removed him as a signatory.

 

[11]                 He further informed the court that since 2006 applicant accused him of bewitching her.  She refused him conjugal rights.  In a meeting where their parents were present, the applicant was advised to fulfill her duties as a wife viz. to cook, wash and attend to the fields.  However, applicant failed to heed to such instructions.  Instead applicant moved out of their common bedroom to the children’s room.  He reported the matter to her parents who threw the towel saying they cannot assist any further.  Applicant’s father suggested that he marry another woman.  It was his further evidence that the misunderstanding persisted.  He was compelled to take away the motor vehicle used by applicant as she failed to come home.  He sold this motor vehicle to his second wife.

 

[12]                 In June 2012 he wedded the second wife because applicant persisted in her behavior.  In the last meeting, her parents told her to take her belongings and return home but she refused.  They also told her to withdraw the criminal charges at the Magistrates’ Court.  This too fell on deaf ears.  It was further his evidence that he did not need to inform applicant that he was selling the kia motor vehicle.

 

[13]                 Under cross-examination, it was vociferously challenged that the reason for contracting the civil rites marriage was due to pressure at work.  This was demonstrated by means of the date of the said period being April, 1992 while the certificate was obtained in October 1992.

 

[14]                 The second witness on behalf of respondent was Mboni Josiah Bhembe who under oath informed the court that the parties before court were his children.  He was an elderly man who stated that he did not know his age as his parents never told him.  The parties were married in terms of Swazi law and custom.  He informed the court that a meeting of the Bhembes was called by the applicant who informed the meeting that she no longer wanted respondent.  No reason was advanced by the applicant.  However, this meeting, according to this witness, was not in accordance with Swazi law and custom as the two families viz. from applicant and respondent did not meet.

 

                        Adjudication

 

[15]                 The duty of this court is as espoused by Ota J. A. in James Ncongwane v Swaziland Water Services Corporation (52/2012) [2012] SZSC 65 at pages 29 and 30 where she eloquently states:

 

“32.     I say this because a judgment of the Court is the reasoned and binding judicial decision of the Court delivered at the end of the trial.  It is thus mandatory that it be clear in the judgment that the Court considered all the evidence at the trial and having placed them on an imaginary scale, the balance of admissible and credible evidence tilted towards the victor.  In this venture, the Court is required to first of all put the totality of the testimony adduced by both parties on an imaginary scale.  It will put the evidence adduced by the Plaintiff on the one side of the scale and that of the Defendant on the other side and weigh them together.  It will then see which is heavier not by the number of witnesses called by each party, but the quality or the probative value of the testimony of those witnesses.

 

33.       In determining which is heavier, the judge will naturally have regard to whether the evidence is admissible, relevant, conclusive and more probable than that given by the other party.  Evidence that was rejected by the trial judge should, therefore, not be put in this imaginary scale.

 

34.       This is because although civil cases are won on a preponderance of evidence, yet it has to be preponderance of admissible, relevant and credible evidence that is conclusive, and that commands such probability that is keeping with the surrounding circumstances of the particular case.  The totality of the evidence before the Court however must be considered to determine which has weight and which has no weight.

 

35.       It is after the weighing of the evidence adduced on an imaginary scale, that the Court decides whether a certain set of facts given in evidence by one party in a civil case in which both parties appeared and testified, weighs more than another set of facts.  The Court then accepts the evidence that weighs more in preference to the other and then applies the appropriate law to it, before drawing its conclusion.”

 

[16]                 The honourable Judge then concludes at paragraph 36 of the judgment:

 

“36.     According to it the principle of weighing evidence adumbrated in the case comes into play at two stages of the trial.

 

(1)               When the Judge has to evaluate the evidence on every material issue in the case, he ought to put all the evidence called by each side on that issue on either side of an imaginary scale of justice and weigh them together, whichever side out-weighs the other in probative value ought to be accepted or believed.  If this part of the exercise is properly done, the Court will come out with a number of findings of fact.  The Court warned:

 

‘A Judge cannot abandon this duty, as it were, merely applying a magical periscope and taking refuge under the cloud of “I believe” or “I disbelieve” See Alhaji Akibu v Joseph Opaeye (1974) 11 SC 189p 203 also Samuel Oladehin v Continental Textile Mills Ltd (1978) 2SC 23’

 

(2)                After the findings, the Judge will again put those findings of either side of the balance so as to reach his ultimate decision. Not losing sight of the onus of proof, he should weigh them together to arrive at a decision, based on the facts as found, as to which of the conflicting cases before him is more probable and in view of the law applicable to the case.”

                                   

[17]                 In essence I am called to ascertain facta probanda.      

 

[18]                 The applicant seeks for orders in terms of the Notice of Motion which reads:

 

“3.1     That the Respondent be restrained from entering the matrimonial home;

 

3.2       That pending the finality and outcome of a divorce action to be instituted by the Applicant against the respondent;

                                   

3.2.1    That the Applicant’s and Respondent’s movable property described as a motor vehicle to wit:

 

                                                            REGISTRATION        :           XSD 028 AH

                                                            MAKE                         :           Kia Picanto

                                                            COLOR                       :           Grey

 

                                                            Be hereby placed under Judicial Attachment.

 

3.2.2    Further that the Respondent be restrained from removing any household items in the matrimonial home at Emkhulamini, in the Hhohho Region, and of the movable property described in clause 3.2.1 above and further restrained from conducting any transaction regarding the said property pending finalization of this application.

 

3.2.3    And further that the Respondent return all household items removed from the matrimonial home and that he be interdicted from disposing of same.”

 

[19]                 The parties to this application are married to each other both in terms of the Swazi law and custom and civil rites.  They are therefore not just ordinary parties seeking for an interdict.  Considering their relation and the prayers sought, it can be safely concluded that the nature of the orders, should they be confirmed, will result in a judicial separation.

 

[20]                 Explaining the principle of judicial separation – Hahlo, The South African Law of Husband and Wife, 4^th Ed. at page 329 writes:

 

“ – separatio a mensa et thoro, …. is a half-way house between marriage and divorce.  It does not dissolve the marriage tie but puts, for the time being, an end to the personal consequences of a marriage by suspending the reciprocal duty of the spouses to live together.”

 

[21]                 The learned author proceeds to highlight that the aggrieved party must show:

 

“(a)     that further cohabitation with the defendant has become dangerous or intolerable…;

 

(b)        that this state of affairs was brought about by the unlawful conduct of the defendant.”

 

[22]                 Physical assault and adultery are some of the grounds for judicial separation.

 

[23]                 The applicant in her evidence before court gave elaborate instances of violence perpetrated against her by the respondent.  The respondent did not challenge this portion of evidence during cross-examination.  On the contrary when respondent gave evidence, he did allude to a misunderstanding which led to charges of assault laid against him by the applicant.  He explained away such behavior as being initiated by applicant in that she would come home late.  At any rate respondent did not dispute that he was convicted at the Magistrates’ Court for assaulting the applicant.  This conviction is clear evidence that the applicant suffered violence in the hands of the respondent.  This court is bound to accept it.

 

[24]                 Applicant gave further evidence that the respondent took away a goat from the matrimonial home and the following day heard that the respondent had married a second wife under Swazi law and custom.  Respondent did confirm the second marriage.

 

[25]                 The Marriage Act 1964 Section 7(1) reads:

 

                                    “No person already legally married may marry in terms of the 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:

 

                                    Provided that nothing contained in this section shall prevent parties married in accordance with Swazi law and custom or other rites from re-marrying one another in terms of this Act.”

 

 

[26]                 From the reading of this section, it is apparent that the legislature in our jurisdiction intended both types of marriages to be at par.  The Swazi law and custom marriage, in this country is not an indication of a union without marital consequences.  It enjoys the same force and effect as the marriage under common law.  Once a party has contracted a civil rites marriage, whether with or without the Swazi law and custom marriage, he is barred from marrying a second wife.  The Act proceed to highlight that where a party who has contracted a common law marriage, conducts another whether under Swazi law and custom marriage or similar marriage with another, such party commits bigamy.  This in our civil law is further evidence of adultery.        

            

[27]                 Respondent explained to this court that he contracted the civil rites marriage for purposes of submitting a marriage certificate which was demanded by his employer as he was not allowed to cohabit with a woman outside marriage.  He said there were at that time no computers to produce a certificate under Swazi law and custom.  This evidence by respondent defeats all logic.  It is common knowledge that all marriage certificates in this country are issued by one Ministry irrespective of the type of marriage.  It is not clear how then this Ministry could issue certificates under civil rites and then turn to say certificates under Swazi law and custom need to be produced from computers. Applicant informed the court that the marriage officer explained to respondent before conducting the civil marriage that the said marriage did not provide for polygamy.  Applicant further informed the court that respondent replied by stating that he did not approve polygamy as he was from a polygamous family.  This evidence stood unchallenged. 

 

[28]                 The applicant gave evidence that the respondent took away some of the properties belonging to their matrimonial home.  Respondent reacted by calling one of his fathers who stated that where parties are married under Swazi law and custom the property belongs to the husband and the children.  The wife, in the event of a misunderstanding is sent home with a bag of clothing.  No background foundation was laid on this witness’s understanding of Swazi law and custom nor did he tell the court that he was well versed with Swazi law and custom marriages.  In that regard, his evidence cannot be admissible.

 

[29]                 Applicant was cross examined at length on the notion that a woman married under Swazi law and custom had no right over the matrimonial assets.  Respondent fortified this position by pointing out in his evidence in-chief that applicant sold a number of motor vehicles without accounting for the proceeds.  The notion proceeds to view a woman who is married in terms of Swazi law and custom as someone who ought to cultivate the fields, cook and wash for her husband as pointed out by respondent that applicant was so warned during the family meeting.

 

[30]                 However, this was never put to applicant nor did respondent’s witnesses attest to a meeting where such was discussed.

 

[31]                 I am duty bound at this stage to point out the status of a married woman in relation to matrimonial assets.

 

[32]                 firstly, one must appreciate the dictum in Magagula (nee Nkambule) v Mabuza and Others (4577/08) [2011] SZHC 13 at page 9:

 

“  There are two forms of marriage in Swaziland, it is the marriage by Swazi Law and Custom and marriage by civil rites.  The legal status of both marriages is the same.”(my emphasis).

 

[33]                  The evidence of the respondent seeks to suggest that as the husband, he exercises marital power over the applicant and can therefore dispose of the matrimonial properties any how without consent of the applicant.

 

[34]                  H. R. Hahlo, The South African Law of Husband and Wife, 4^th Ed. At page 215 describes the position submitted by respondent as the second view on the matrimonial property.  He writes:

 

“According to a second view, the husband is the sole owner of the community, and the wife has merely a claim to participate in it on its dissolution.”

 

[35]                  The learned author proceeds to refer to Justice Van den Heever in Oberholzer  and states:

 

“…he declared that the doctrine that the husband was merely the syndicus of the joint estate, of a half of which the wife was the owner, was not in accordance with the principles of our law.  In connection he referred to a passage in Sande’s Decisiones Frisicae which he paraphrased thus: during the subsistence of the marriage….the wife’s ownership is in a state of suspense.  It is only a conceptual kind of ownership or quasi-ownership (in habitu non in actu) which becomes kinetic only puon dissolution of the marriage – only then exit ipso iure actum, et in veram atque actualem dominii et possessionis communionem.”

 

[36]                 On the above assertion the learned author wisely concludes:

“It is submitted that if this statement is meant to convey that the husband alone owns the community property during the subsistence of the marriage, and that the wife’s interest in it is a mere expectancy or spes, it does not correctly reflect our law.”

 

[37]                 I agree in toto with the conclusion of the learned author.  This second view on the status of matrimonial assets must be rejected in its entirety.

 

[38]                 The position of our law is as propounded in Thom v Worthmann, N.O. and Another 1962 (4) S.A. 83 at 88 where the honourable Henochsberg J.

                        held:

 

                                    “When two parties are married in community of property, the marriage creates a universal partnership between husband and wife, under the sole administrative of the husband, in all property movable or immovable, belonging to either of them before marriage, until the date of its dissolution.  Speaking generally, neither spouse can own separate property and the common estate benefits by any property accruing to either spouse, and is depreciated, by any loss suffered by either spouse, …”

 

[39]                 I have demonstrated from the wise words of the learned judge Henochsberg J. that spouses in community of property as in casu, enjoy equal ownership of the marriage assets. That the husband is the administrator of the joint estate does not give him a better title over the marriage property.  His function as the administrator cannot stretch beyond his administrative powers.  He cannot mero motu alienate the matrimonial assets at the detriment of the wife or the partnership.  If he does so, he should be compelled to give an account failing which be restrained.

 

[40]                 It is for this reason that the learned author H.R. Hahlo  supra at page 164  discusses remedies available to a wife whose husband had misappropriated the matrimonial assets or abused his powers as the administrator.  He points as follows having titled his discussion as “Protection against a dishonest, foolish or spendthrift husband”:

 

“Depending on the circumstances, the remedies available to the wife are boedelscheiding, termination, suspension or restriction of the marital power, and interdicts.”

 

[41]                 I have highlighted the evidence adduced herein on behalf of applicant and respondent.  I have found that in the totality of the facta probanda  the respondent has abused his marital powers.  It is unthinkable that a man of sober senses would come home and break walls and floors for reason that the house is locked.  It defeats all logic that he would proceed to remove goods and use the same to commit bigamy as the evidence shows that he took a goat and used it to marry the second “wife”.  He also took away the matrimonial motor vehicle and gave it to his new found.  I reject the evidence that it was sold to the second wife.  If he did, he should have brought back the proceeds of the sale to the joint estate.  As an administrator, he should account for his actions, otherwise the spirit of partnership will be defeated. Further, if ever it was sold, it was just a sham meant to frustrate the applicant herein who paid a substantial amount of the purchase price.

 

[42]                 The applicant has sought for an interdict and this as demonstrated from the authorities above is an appropriate remedy in the circumstances of this case.

 

[43]                 It is my considered view that following the dictum in James Ncongwane, on the preponderance of balance, the scales of justice weigh in favour of the applicant.

 

[44]                 In the result the following orders are entered:

 

1.      The interim order granted by this Court on 23^rd February 2012 is hereby confirmed.

 

2.      The motor vehicle XSD 028 AH Kia Picanto, grey placed under judicial attachment on 23^rd February 2012 is released to the applicant.

 

3.      Respondent is ordered to pay costs of suit including those of Senior Counsel.

 

 

 

 

________________________

M. DLAMINI

JUDGE

 

For Applicant          :           Mr. M. Mabuza

For Respondent       :           Mr. I. Carmichael instructed by M. S. Simelane Attorneys