Lobola dispute between two execs may end up in apex court

A battle over what constitutes a traditional African marriage is headed to the Constitutional Court after an acrimonious split between two executives.

The break-up between former MTN CEO Sifiso Dabengwa and Joburg Theatre CEO Xoliswa Nduneni-Ngema led to a 10-year legal fight, with Nduneni-Ngema seeking half of the multimillionaire's estate.

She claims that successful lobola negotian and umembheso (an exchange of gifts) in March 2003 meant the pair were married.

But the high court and Supreme Court of Appeal disagree.

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Last year, Judge Colin Lamont of the High Court in Johannesburg, found that Dabengwa did not give consent to be married at the lobola celebrations and that the customary marriage was not consummated, as the bride was never handed over to the groom's family. He turned down Nduneni-Ngema's application for leave to appeal, prompting her to apply to the Supreme Court of Appeal.

But the appeal court dismissed her application, saying there was no prospect of success.

At stake is Dabengwa's substantial estate, which independent research body Who Owns Whom said was worth at least R167-million last year.

Dabengwa made the list of South Africa's 200 richest individuals based on the value of disclosed directors' holdings in JSE-listed companies covering the period from December 2015 to November 30 2016. MTN also paid him R23.7-million as part of his resignation package in 2015.

Nduneni-Ngema, who initially claimed R35,000 a month in maintenance, used to be married to playwright Mbongeni Ngema. Dabengwa proposed to her during a holiday in Dubai, where he bought her an 18- carat diamond ring worth $11,000.

Nduneni-Ngema's attorney, Ike Motloung, would not comment on the latest judgment, only saying they would "approach the Constitutional Court".

In her latest application, Nduneni-Ngema argued that Lamont had misdirected himself. "There was only one issue before the learned judge, being whether the parties were married in accordance with customary law," she said in papers before the court.

Central to her argument are lobola negotiations concluded at her home in Daveyton, as well as a "ceremony" that happened afterwards. She also argued that Lamont had erred in failing to consider the constitutionality of the requirement of delivery of the bride to the family of the groom.

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"Had the judge done so, he would have found that the practice is unfairly discriminatory against women, or alternatively that such delivery occurred indirectly after the parents of both parties allowed them to cohabit after the lobola negotiations and the subsequent ceremonies," Nduneni-Ngema said.

In papers opposing the application, Dabengwa argued that he never consented to be married by customary law. Nduneni-Ngema never raised the issue of constitutionality of the bride's handover during the trial, he added.

"I did not consent, my delegates were not mandated to consent to a customary marriage, nor did they do so, and the weight of evidence showed that after March 2003 the applicant and I conducted ourselves as unmarried persons," Dabengwa said in an affidavit.

Dabengwa's attorney, Billy Gundelfinger, said his client was pleased that he had again been vindicated by the Supreme Court of Appeal. "The litigation endured for a decade in various courts," Gundelfinger said. They would "strenuously oppose any appeal to the Constitutional Court".