Botha v Steyn (13326/2014) [2021] ZAKZDHC 23; [2021] 4 All SA 87 (KZD) (2 August 2021)

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[2021] ZAKZDHC 23
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Botha v Steyn (13326/2014) [2021] ZAKZDHC 23; [2021] 4 All SA 87 (KZD) (2 August 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
Case
No: 13326/2014
IN
THE MATTER BETWEEN:
DONNE
BOTHA

PLAINTIFF
and
DOUW STEYN

DEFENDANT
ORDER
1.
The action instituted by the plaintiff is dismissed and the court
determines that
no marriage was entered into between the plaintiff
and the defendant.
2.
The plaintiff is to pay the defendant the following costs:
(a)
The reserved costs of the second application to dismiss including the
costs occasioned in
relation to the meeting with Hadebe J in Chambers
on 22 October 2020.
(b)
The qualifying fees of defendant’s expert witness Ms Janet
Kentridge.
3.
Such costs are:
(a)
to be paid on the scale as between attorney and client;
(b)
to include the costs occasioned by the engagement of two counsel.
JUDGMENT
Delivered
on: 02 August 2021
Hadebe
J:
[1]
In this judgment, the parties will be referred to as cited in the
pleadings. In her
particulars of claim, the plaintiff sought the
following orders.
1.1
a Decree of Divorce;
1.2
an order directing the defendant to pay:
1.2.1
periodical payments to the plaintiff, in the sum of R50 000
(fifty thousand rands) per month, until the plaintiff’s
death or
remarriage;
1.2.2
an amount equal to one-half of the net value of the defendant’s
estate.
[2]
The defendant, having denied the averments in plaintiff’s
particulars of claim, the
plaintiff subsequently issued a notice in
terms of Uniform rule 28 wherein she sought to amend her particulars
of claim by:
2.1
the deletion of the existing particulars of claim, and a substitution
therefore, of the particulars
of claim annexed to the Rule 28 notice.
The orders sought as per the substituted claim are as follows:
2.1.1
the defendant pays to the plaintiff periodical payments, in the sum
of R100 000.00 (one hundred thousand rands)
per month, until the
death or remarriage of the plaintiff;
2.1.2
the defendant pays to the plaintiff an amount equal to one-half of
the defendant’s estate.
[3]
In the alternative and in the event that the court finds that the
plaintiff and the
defendant were not married to each other, the
plaintiff would, by reason of the defendant’s representations that
the marriage ceremony
was a proper one, and the plaintiff having
accepted that she enjoyed all the benefits and protections of a wife,
she would thus be
entitled to the orders that she seeks as per
paragraph 2 herein.
[4]
In a further alternative, the plaintiff places reliance on a document
filed with her
papers which she refers to as the written agreement
(the agreement of 2 April 2007) purportedly concluded between the
plaintiff and
the defendant (the parties). Based on this document the
plaintiff avers that she is entitled to an order directing the
defendant
to:
4.1
cause to be registered in the name of the plaintiff, a house to the
value of R5 000 000.00
(five million rands);
4.2
pay a monthly income to the plaintiff of R100 000.00 (one
hundred thousand rands) per month,
calculated from 11 December 2007,
being the date upon which the defendant advised the plaintiff that he
was divorcing her, and that
their relationship was over;
4.3
pay a cash sum of R20 000 000.00 (twenty million rands);
4.4
purchase a motor vehicle registered in her name to the value of
R2 000 000.00 (two million
rands); and
4.5
deliver two (2) engagement rings, one being an engagement ring with a
four carat diamond, presented
to her on Christmas day, 2005.
In
addition to these orders, the plaintiff also seeks costs of suit,
including the costs occasioned by the employment of two counsel.
It
is worth noting at this stage that even though the plaintiff sought
an order directing the defendant to pay to her an amount equal
to
one-half of the defendant’s estate, under cross-examination by Mr
Subel SC
defendants’ counsel, she conceded that she had not spent a lifetime
with the defendant. She effectively abandoned her claim in
this
regard.
[5]
The defendant raised an objection to the plaintiff’s Rule 28
notice. In the process,
the defendant raised concerns that some of
the averments in the plaintiff’s particulars of claim were vague
and embarrassing and
that pleading to them would entail embarrassment
for the defendant. I will revert to these in due course in this
judgment.
Background facts
(plaintiff’s case)
[6]
The parties met in September of 2005; according to the plaintiff,
which fact is not
disputed by the defendant the parties became
engaged in 2005. In April 2007 an agreement was signed by the parties
wherein proprietary
issues were dealt with in the event the parties
finally got married. (I will revert to the nature of this agreement
between the parties
in so far as the nature thereof is concerned). In
the meantime, the parties resided together, travelling between London
and South
Africa.
[7]
On 18 August 2007, the parties hosted a ceremony which was meant to
be a wedding ceremony
(the ceremony). This was at the Lanesborough
Hotel, West Minister (the Lanesborough Hotel). Invitation cards were
issued, family
and friends of the plaintiff were flown from South
Africa to London at the defendant’s expense. A wedding planner was
on standby
in London. A wedding dress was made by top London
designers. All the guests were housed in London at the expense of the
defendant.
[8]
In her evidence, the plaintiff produced a document which purported to
be vows that were
to be exchanged between the parties, which, however
never happened. This will be elaborated on later in the judgment. A
programme
of how events would unfold was also in place. According to
the plaintiff, the parties exchanged rings at this ceremony. After
all
these elaborate preparations, however, the wedding had not been
registered. According to the plaintiff, the reason for this failure
was that such registration could not have happened on short notice as
in fact two weeks was required to get a licence.
[9]
The plaintiff testified that the information she had received from
the defendant was
that this was a matter of simply the signing of the
register when they got back to South Africa as they were both South
African citizens.
She further told the court after the ceremony in
London, the parties had returned to stay together at the Saxon Hotel
in Johannesburg.
According to the plaintiff, she was then referred to
as Mrs Steyn by the defendant’s staff who ran the Hotel. The
defendant took
care of her every need. Although she did not perform
any work at the insistence of the defendant, she was, however
reflected as an
employee of the defendant, first under her maiden
name Botha, then after the ceremony under the surname of Steyn.
[10]
The parties had continued cohabiting as husband and wife until 2
December 2007 when the defendant called
the plaintiff’s family and
told them that he wanted “a divorce”, according to the plaintiff.
The relationship between the parties
had then ended. It would seem
after this separation; the relationship was rekindled in 2008. Though
not permanently staying together,
the parties resumed their travels
together and again the plaintiff became dependent on the defendant
for her financial needs. At
some stage, during a period not
specifically stated in the plaintiff’s evidence, she faced a
criminal charge. She was again supported
by the defendant on the
issue of legal fees. At the finalisation of the criminal trial, in
2009 the relationship ended permanently.
According to the plaintiff,
this came about when she made a choice to walk away and never to take
the defendant’s calls.
The litigation
[11]
In November 2014 the plaintiff started the litigation in this matter
by issuing summons against the defendant.
In a Rule 33(4)
[1]
application brought before Kruger J, by the defendant in the present
matter on 15 May 2017, the learned Judge granted the following
orders:
“
A.
APPLICATION IN TERMS OF RULE 33(4)
1.
The questions of law/and or fact contained in paragraph 4 of the
Plaintiff’s
particulars of claim (read with paragraph 4 of the
Defendant’s plea) and paragraphs 1 and 2 of the Defendant’s
special plea under
Case No. 13336/2014 are to be determined
separately by the trial court in terms of Rule 33(4) and prior to any
other questions of
law and/fact.
2.
The remaining issues arising in the action are to be determined, if
necessary,
after the final determination of the issues referred to in
1 above.
B
.
COUNTER-APPLICATION
1.
The Plaintiff’s counter-application is
dismissed.
C.
COSTS
1.
The plaintiff, Donne Botha is directed to
pay the defendant’s costs of the Rule 33(4) application as well as
the counter-application.
Such costs are:
(a)
to be paid
on the scale as between attorney and client.
(b)
to include the costs of two counsel where
the services of two counsel have been engaged”.
[12]
The matter was again before Kruger J on 25 August 2017 when the
plaintiff brought an application to appeal
Kruger J’s judgment of
15 May 2017 and also an application to adduce further evidence. In
that matter Kruger J made the following
order:
“
12.1
The application to adduce further evidence is dismissed with costs.
12.2
The application for leave to appeal is also refused with costs. Such
costs are ordered to include the
costs of both senior and junior
counsel, and the costs are to be paid on the scale as between
attorney and client”
.
Some
of the pronouncements and observations made by Kruger J in both
judgments are of relevance in the present judgment and will be
referred to later on.
[13]
On 24 January 2020, before Topping AJ and in an order taken by
consent, the defendant was granted leave
to withdraw his first
application to dismiss the plaintiff’s claim. The plaintiff was
again ordered to pay the costs on the scale
as between attorney and
client. On 31 January 2020, in an order granted by Kruger J the
matter was certified ready for hearing for
a period of five days from
2 to 6 November 2020. Hence the matter served before me from 2
November to 4 November 2020.
The defendant’s
case considered in terms of the applicable (English) law at the time
of the ceremony
[14]
In amplification of his denial of the plaintiff’s averments, the
defendant presented both oral evidence
as well as evidence on
affidavit. Mr Adrian Christmas (Mr Christmas) testified that he is a
Solicitor in England, Wales, that he
still held a practising
certificate though already retired. He had come to know the defendant
in the late 1980s, early 1990s when
the defendant came to set up a
business in the United Kingdom. The defendant had been referred to
him and he had acted for him. The
witness was referred to a few
documents by the defendant’s counsel. One such document was
referred to as a manuscript document
and an agreement.
[15]
Mr Christmas informed the court that shortly before what he called a
blessing ceremony
(my
emphasis) he had received a call from the defendant saying that he
was unable to get married. He further informed him that he
had
invited everybody to a wedding ceremony. The problem was, he was
unable to comply with the requirements under the English law
for
giving notice or getting a special licence to allow a wedding to take
place. He was seeking advice as to what to do in the circumstances.
Mr Christmas had then given advice to the defendant.
[16]
What appeared from Mr Christmas’s evidence is that the defendant
was worried that he had invited so
many people to a wedding that was
unlikely to happen in the circumstances. Mr Christmas advised the
defendant that he could have
a ceremony of some sort so as not to
disappoint his invitees from the Republic of South Africa. He told
him that such ceremony
would not be a
marriage
(my emphasis) and would be of
no legal effect. According to Mr Christmas, it transpired that the
defendant understood this type of
ceremony even before he gave him
this advice and that he had actually found out about it before he
consulted with him.
[17]
Mr Christmas explained that it was not unusual in
the United Kingdom for people who are unable to get married
in church
to have what is called a religious blessing ceremony. This would
result from instances where people are unable to get married
because
of technical difficulties, in instances where they may be married to
someone else or where they may not be properly divorced.
People would
then seek solace in having a ceremony which is a blessing ceremony.
He further testified that people can get married
in a registry office
but they would still require a religious ceremony to validate their
relationship in the eyes of God and to have
a blessing. Mr Christmas
was invited to grace the ceremony with his presence. He could not
attend, according to him, it was at short
notice and he already had
other engagements.
[18]
Mr Christmas was again summoned to the defendant’s house in London
around the 27
th
/28
th
/29
th
December 2007. He was unable to be specific about the date. He met
with the defendant as well as the plaintiff herein. Contrary to
what
he was fearing, that he might be tasked with telling the plaintiff
that there had not been a marriage, he instead walked into
a warm
ambiance. One of the parties indicated to him that they wanted an
agreement between the two of them to cover their cohabiting
arrangements since
they were not married
(my emphasis). Both parties wanted something in writing and it had to
be processed there and then. Mr Christmas undertook to do what
he
referred to in his evidence as a short agreement. He had then penned
an agreement for the parties in his own handwriting. He was
told that
that would be a temporary arrangement, pending the parties coming to
a more formal arrangement.
[19]
Despite Mr Christmas’s enquiry as to why the parties would not wait
for the consummation of a formal
agreement, the parties insisted they
wanted something there and then. The parties signed the document in
the presence of Mr Christmas
and he noted that they insisted on
signing each page of the agreement. Mr Christmas’s understanding
was that the agreement was
by way of regulating the financial
arrangements between the parties pending the formalisation of those
arrangements sometime in the
future. The impression Mr Christmas got
from the signing of this agreement was that the parties at that stage
had not decided what
they were going to do in the future by way of
the agreement, it could have been a marriage or it could have been a
formal cohabitation
agreement or even a financial arrangement.
[20]
The plaintiff had participated in the discussion and this was
wholeheartedly according to Mr Christmas’s
observation. At no stage
did the plaintiff ask for leave to call her attorney during the
discussions leading to the conclusion of
the agreement. The plaintiff
did not appear to be under any form of duress, either physical or
mental, she was not even distressed
about not being married. The
essence of the document was the payment of monies to wit R1 million,
to the plaintiff in the eventuality
that the parties failed to
cohabit other than as a result of having mutually agreed to separate,
based on family commitments or periods
of holidays.
[21]
Mr Christmas did confirm that other than this specified detail of the
agreement, details around the rates
and cohabitation for holidays
were not part of the discussion. Arrangements relating as to what
happened at death were part of the
discussion. Mr Christmas candidly
advised the court that he had felt he had to add value to the
arrangement to have certain points
that could occur in the future
covered in the discussion. The defendant had indicated that he wanted
the amount agreed to be in full
and final settlement if the parties
ceased to cohabit.
[22]
He confirmed having deposed to a declaration on the 12
th
of December 2014. He had received a call from the defendant’s
lawyers asking him to check whether any marriage ceremony, or a
formal
marriage ceremony had been registered with the registrar of
births, marriages and deaths in London. Unless such registration is
carried
out, he advised that the marriage would not be a validly
constituted marriage. The registrar is tasked with validating
marriages.
He undertook to search at the registry office as a result.
This was in West Minister, England where the Lanesborough Hotel is
situated.
His search yielded negative results in that there was no
entry of any marriage between the parties having been registered on
the
18
th
of August, 2007.
[23]
He had confirmed with a search in the form of a postal search. This
search is done against names and
it is conducted at the central
registry. The results returned to him showed that there was no record
of any marriage having taken
place between the parties through the
years 2006, 2007 and 2008. As a result of these failed searches, he
concluded that there was
no certificate of marriage between the
plaintiff and the defendant. Mr Christmas gave a brief synopsis of
what he understands are
the requirements for a legally constituted
marriage in terms of the laws of England.
[24]
He told the court that his understanding was that in the United
Kingdom a priest conducting a wedding
ceremony has an obligation to
complete the certification. Where a non-religious ceremony has been
undertaken, at a registry office,
one of the two registrars must be
present and either of them has the duty to obtain the certification.
The obligation to certify
does not fall on the parties to the
marriage. He insisted that both the plaintiff and the defendant
understood that they were not
married; hence the agreement that he
had been called upon to draft to give the parties some structure
moving forward. This would
be in place until they were either married
or some formal agreement governing their relationship came into
place.
[25]
The other witness called in the defendant’s case is Janet Kentridge
(Ms Kentridge). She is an expert
in the Laws of England. Her
credentials and experience were placed on record and were not
disputed. Having made one or two typographical
corrections on the
report she had prepared as an expert, she then adopted and confirmed
the contents of same. The gist of her evidence
was about whether
there was a ceremony that qualified as a marriage according to the
laws of England and Wales that had taken place
between the parties.
She advised the court that a marriage according to the laws of
England had to be concluded, and could only be
concluded within the
parameters of the terms of the Marriage Act
[2]
(the Act). She emphasised that a person was either within the terms
of the Act or would not be married. She said this referring to
a
judgment
[3]
incorporated in her
report.
[26]
In
A-M
v A-M (Divorce: Jurisdiction: Validity of Marriage)
[4]
the court found that there had been a valid marriage and that the
court had the necessary jurisdiction to proceed with the divorce.
The
facts in that case are completely different from the matter before
me. The parties had gone through two ceremonies. The first
one was an
Islamic service which was conducted in London. The husband was
already married to someone else and both parties were aware.
Four
years later a second ceremony took place when, acting on legal
advice, the husband sought to regularise the status of the wife
in
English law. The husband had been advised that to obtain English
recognition of his marriage to the wife, he would have to obtain
an
Islamic divorce, followed by a genuine remarriage valid by local law
in a country permitting polygamy. He obtained an Islamic
divorce in
Sharjah, an Islamic country which recognised polygamous marriage. The
marriage, 3 days later, took the form of a revocation
of the divorce.
Some years later the couple separated, and the wife sought a divorce
in England. The husband responded by obtaining
a divorce in Sharjah.
The husband argued that there was no valid marriage upon which the
English court could found jurisdiction to
grant a divorce. (This as
per what appears in the headnote in
A-M
v A-M
).
[27]
In deciding whether a marriage existed in
A-M v A-M
, amongst
other considerations, the court referred to what is said in Rayden
and Jackson’s
Law and Practice in Divorce and Family Matters
17 ed (1997) para 34 that:
‘
Where
a man and a woman have cohabited for such a length of time and in
such circumstances as to have acquired the reputation of being
man
and wife, a lawful marriage between them will be presumed, though
there may be no positive evidence of any marriage having taken
place,
particularly where the relevant facts have occurred outside the
jurisdiction; and this presumption can be rebutted only by
strong and
weighty evidence to the contrary’.
At
paragraph 35 of the judgment, the court went ahead and laid down the
approach to be adopted when dealing with the said presumption.
In
A-M
v A-M
the parties had cohabited for 12
years and had had two children in the interim. That is not the
position in the present case.
[28]
For a marriage in the Church of England there has to have been the
publication of banns of matrimony
in advance or alternatively a
special licence granted or another certificate to have been granted,
according to Ms Kentridge. The
marriage needs to take place in the
church or chapel where the banns were published. Section 8 of the Act
sets out stringent requirements
about the publishing of banns and it
provides as follows:
‘
No
clergymen shall be obliged to publish banns of matrimony unless the
persons to be married, at least seven days before the date
on which
they wish the banns to be published for the first time, deliver or
cause to be delivered to him –
(a)
a notice in writing, dated on the day on
which it is so delivered, stating the christian name and surname and
the place of residence
of each of them, and the period during which
each of them has resided at his or her place of residence, and
(b)
…’
[29]
Section 7 of the Act deals with the time and manner of the
publication of banns. In terms of s 7(1) such
publication has to
happen three Sundays preceding the solemnization of the marriage.
Section 9(1) provides that it is not lawful
for the banns to be
published by any person other than a clergyman. It is only in terms s
14 where an exception is allowed where
the publication happens on
board His Majesty’s ships. No publication of banns in whatever form
or manner of form happened in the
matter before me. In paragraph
8.3.2 of his affidavit deposed to on 13 April 2015 Reverend Canon
Simon Wilkinson (Reverend Wilkinson),
the Anglican Clergyman who
presided at the blessing ceremony, states in no uncertain terms that
there was no publication of the parties’
banns of matrimony as
required by the Act. As a direct result of that no certification of
publication of banns as required in terms
of s 11 of the Act had
taken place.
[30]
Ms Kentridge proceeded and dealt with the other kinds of marriages
where the parties are not married
according to the rights of the
Church of England. These would be marriages taking place in terms of
Part 3 of the Act. She confirmed
that the Lanesborough Hotel where
the ceremony took place would have been an approved premises at the
time. The question, however,
does not end there, it also has to be
established if it was approved under the relevant regulations.
According to Ms Kentridge the
issue of approval was not necessarily
the issue but the question was whether the proceedings of 18 August
2007 qualified as a marriage
in terms of the relevant section.
Section 26 deals with marriages which may be solemnized on authority
of the superintendent registrar’s
certificate. Section 46B dealing
with the solemnization of marriages on approved premises provides as
follows:
‘
(1)
Any marriage on approved premises in pursuance of section 26 (1) (bb)
of this Act shall be
solemnized in the presence of –
(a)
two witnesses, and
(b)
the superintended registrar and a registrar
of the registration district in which the premises are situated.’
[31]
According to Ms Kentridge, the above subsections were not fulfilled
in that there was no superintendent
registrar at the ceremony. She in
fact insisted, which is of course a fact that there wasn’t a
registrar at all for the district
where the ceremony took place. The
further non-compliance with the Act, was the failure by either party
to say, in the hearing of
the attendees, the words prescribed by the
Act in terms of ss 43,  44(3) or (3A). In terms of s 43, if a
marriage is to be solemnized
in a registered building, without the
presence of the registrar, a person authorised by the trustees or
governing body of that particular
building may be present at the
solemnization of the said marriage. The name and address of such
person has to be certified to the
Registrar General and to the
superintendent registrar of the registration district in which the
building is situated. This has to
be done within a prescribed time
and in a prescribed manner.
[32]
Section 44(3) makes provision for the words to be contained in a
declaration to be made by each of the
persons contracting the
marriage in a registered building. The declaration must be made in
some part of the ceremony and in the presence
of witnesses and the
registrar or authorised person. The declaration is framed as follows
in terms of the relevant subsection:
‘
I
do solemnly declare that I know not of any lawful impediment why I,
AB
, may
not be joined in matrimony to
CD
’.
Each of the
contracting parties has to say to the other:
‘
I
call upon these persons here present to witness that I,
AB
,
do take thee,
CD
,
to be my lawful wedded wife [or husband]’.
Section
44(3A) provides words in the alternative in which the declaration may
be framed.
[33]
Ms Kentridge testified that the essence that needs to be conveyed to
every single person in the room,
including the person conducting the
ceremony, is that there is no legal obstacle to the two parties
marrying each other and each
individual getting married. The absence
of those words is a conclusive indication that no marriage has taken
place. She further referred
to a prohibition contained in s 46(B)(4)
of the Act which provides as follows:
‘
No
religious service shall be used at a marriage on approved premises in
pursuance of section 26(1)
(bb) of this
Act’.
A
marriage in approved premises is strictly in terms of the Act, a
registry wedding according to Ms Kentridge.
[34]
Reverend Wilkinson confirmed this aspect, saying in his affidavit
that there was deliberately no reference
to any marriage, wedding,
union, groom or bride during the ceremony as one would typically have
in the case of a wedding ceremony.
He deposed that he did not call
upon the parties to exchange the peremptory minimum declaration that
parties are required to exchange
during the solemnization of a
marriage at a registered building nor did the parties exchange such
declaration.
[35]
In her evidence, as an expert Ms Kentridge told the court that a
wedding in a registry office is a civil
wedding and that if anyone
wanted a religious wedding, then they would have to go a whole
different route and that a religious ceremony
in a hotel is nothing
more than a blessing ceremony. The issue of the blessing ceremony is
succinctly dealt with by Reverend Wilkinson
who says such ceremony is
common and well understood in England. He deposed to the fact that
many couples would typically marry at
the local registry office and
subsequently have a faith-based ceremony as part of the celebrations.
[36]
He insisted that the events planner and the defendant’s personal
assistant had requested him to do
a blessing ceremony. He further
said there was no question that a wedding ceremony should or could be
conducted. There could have
been no wedding ceremony taking place
since the parties did not comply with any of the necessary
preliminary and peremptory requirements
for the solemnization of a
marriage, according to Reverend Wilkinson. He was not even authorised
to perform a civil wedding ceremony
as a clergyman. This was
confirmed by Ms Kentridge in her evidence. He then went ahead and
dealt with the formalities for a properly
constituted wedding as
dealt with by Ms Kentridge.
[37]
The court was referred to s 75 of the Act. This section deals with
offences relating to solemnization
of marriages. The relevant
sections provide as follows:
‘
(1)
Any person who knowingly and wilfully-
(a)
……
(b)
solemnizes a marriage according to the
rights of the Church of England without banns of matrimony having
been duly published (not
being a marriage solemnized on the authority
of a special licence, a common licence [certificates] of a
Superintendent Registrar);
(c)
solemnizes a marriage according to the said
rites (not being a marriage by special licence (or a marriage in
pursuance of section
26(1)(
dd
)
of this Act) in any place other than a church or other building in
which banns may be published;
(d)
……
shall
be guilty of felony and shall be liable to imprisonment for a term
not exceeding fourteen years’.
[38]
Ms Kentridge unpacked the provisions of this section of the Act as
follows, that if someone were to say
they are conducting a marriage
in a hotel and there isn’t the district registrar and another
registrar (as indicated earlier in
this judgment) then such person
would be guilty of a felony. According to her this prohibition
applied to Reverend Wilkinson. This
notion is confirmed by Reverend
Wilkinson right through his affidavit. In the circumstances, Ms
Kentridge insisted that what happened
at the Lanesborough Hotel could
not have been a marriage. According to her it would not matter that
there were dresses that had been
prepared, nor whether rings were
exchanged, nor the profession of their love by either party, it was
still not a marriage. The fact
that the invitations referred to a
wedding was completely irrelevant in view of the legal status of the
ceremony that took place
at the Hotel. This was so, she testified,
because the legal prerequisites had not been fulfilled.
[39]
In
Attorney-General
v Akhter & Ors
[5]
heard
in the Royal Courts of Justice on 14 February 2020 it was said that
agreements to marry do not give rise to legal rights, and
that no
action lies for their breach. It was further stated that a person
could change their mind and break their promise to do so
right up to
the last minute before the proposed marriage ceremony or even during
the ceremony. It was further considered that from
a legal point that
it does not matter how deeply hurtful such breach is to the person’s
intended spouse. Such agreements to marry
do not give rise to legal
rights and no action lies for their breach.
[40]
It was further said in the same judgment that other than in the
context of consent, mere intention (to
marry) could not change the
legal effect of a ceremony of marriage.
[6]
The question of whether a marriage is void had to depend on the facts
as they were at the date of the alleged marriage, such determination
could not be wholly dependent on future events, such as the intention
to undertake another ceremony.
[7]
[41]
The evidence of Ms Kentridge also dealt with the failure to obtain a
licence. This was so because the
parties had not given notice of
their marriage to the registrar. She gave a detailed account of how
the notice of marriage has to
be done in terms of s 27 of the Act.
Chief amongst the requirements of s 27 is that each party has to go
in person to give the said
notice to the registrar. Ms Kentridge also
dealt with the requirements of the Asylum and Immigration Act of 2004
dealing with the
necessity for special permission for anyone coming
to England to get married there. According to her a notice has to be
given for
a longer time for anyone intending to come into England to
get married. This did not happen in the case of the plaintiff.
[42]
The person who officiates at a wedding has a duty to register the
said marriage according to English
law and based on Ms Kentridge’s
evidence. In the case of a religious proper marriage, the clergyman
conducting the marriage ceremony
has to effect the registration there
and then. In his affidavit at paragraph 8.6.3 Reverend Wilkinson says
the following:
‘
I
did not register in duplicate in two marriage register books the
particulars relating to the alleged marriage. In addition, the
register books were not signed by Steyn, Botha and two witnesses.
This is for the simple reason that a marriage between Botha and
Steyn
was not solemnized.’
[43]
Ms Kentridge concluded her expert evidence by saying that there was
not and could not have been a marriage
on 18 August 2007 at the
Lanesborough Hotel. She emphasised that it could not have been a
marriage and no marriage was registered.
She reiterated that one fell
within the Act or they are not married. Her evidence was not
challenged on any front.  The evidence
of Ms Kentridge concluded
the defendant’s case.
[44]
In his closing argument, Mr
Naidoo
,
counsel for the plaintiff; conceded that a consideration of Ms
Kentridge’s evidence indicated, to a large extent that there are
peremptory provisions in the Act that had not been complied with.
That notwithstanding, Mr
Naidoo
submitted that, based on the
Akhter
judgment, the court in this case was
called upon to go beyond determining whether there was a marriage or
not. According to him, the
court has to make a determination as to
whether the marriage claimed by the plaintiff is what is referred to
as a non-marriage and
a marriage that is void for non-compliance with
the strict requirements. He argued further that such determination is
of immense
importance in that that kind of distinction (between a
non-marriage and a marriage that is void) would determine whether a
second
legged enquiry in respect of any claims against the defendant
can be determined.
[45]
Before going further with Mr
Naidoo’s
submissions in this
regard it is apt to consider what was said by Kruger J in his
judgment of 15 May 2017. At paragraph 21 he says
the following:
‘
As
is evident from the excerpts of the agreement [of 11 December 2007],
the parties acknowledged that they were not married to each
other.
…
prescription
in respect of all claims that the plaintiff may have had against the
defendant, commenced to run, in my view, from the
11
th
December 2007 (The defendant has averred that it commenced earlier –
29
th
August 2007-’
And at paragraph 24:
‘
I
am of the view that as the proposed alternate claims have prescribed,
the application for leave to amend cannot be said to be
bona
fide
and the application must fall on
this ground alone’.
The
agreement referred to in paragraph 6 of this judgment deals with what
would be due to the plaintiff “
upon
the conclusion of the marriage
” (my
emphasis). Based on the decision that I am going to arrive at as well
as the excerpts from Kruger J’s judgment the contents
of this
document do not warrant any further attention in this judgment.
[46]
Kruger J found merit in the argument on behalf of the defendant that
no meaningful purpose would be served
in allowing an amendment which
would be met by a plea of prescription. He further had misgivings
about the context of the application
to amend itself in that he found
that a perusal of the proposed amendment, together with the
defendant’s objection thereto revealed
that the proposed
particulars of claim (in that application) would be expiable. This he
based on the fact that, in so far as he was
concerned, there was a
lack of particularity in a number of these particulars of claim which
he went ahead and enumerated at paragraph
28 of his judgment.
Referring to
Rousalis
v Rousalis
[8]
he concluded at paragraph 34 that the proposed alternate claims did
not fall within the ambit of the decree of divorce nor could
they be
said to be ancillary to a divorce action. He stated that it was
common cause that the defendant did not reside or carry on
business
within the area of this court’s jurisdiction. As a result, he
found, that this court did not have jurisdiction in respect
of the
alternate claims as they were set out in the proposed amendment
(before him).
[47]
A consideration of the excerpts of Kruger J’s findings makes it
difficult to understand how the plaintiff
would even commence
considering “any claims against the defendant”. The two marriages
referred to by Mr
Naidoo
were distinguished in the
Akhter
judgment
as follows:
[9]
‘
The
most significant practical difference is that a non-marriage creates
no separate legal rights while a decree of nullity entitles
a party
to apply for financial remedy orders under the 1973 Act’.
The Justices in the
Akhter
judgment noted that the trial judge had adopted a more
flexible approach as there had been a reference to human rights
(relating
to the rights of the children in the relationship of the
respondents in that judgment).
[48]
The Justices went further to say that it is the status of a valid
marriage alone which creates rights
and obligations and not any other
form of relationship. At paragraph 46 of the
Akhter
judgment it was stated that a void marriage is “strictly speaking,
a contradiction in terms”. (This said with reference to
Bromley’s
Family Law
11
ed, 2015 by Lowe and Douglass at 67).
It was further said that, that was so because it had no legal effect
on the status of the parties.
On the other hand, a decree of nullity,
it was said, could be said to be only declaratory because it does not
make the marriage void.
It was significant because it entitled the
parties to apply for financial remedy orders under the
Matrimonial
Causes Act 1973 (the 1973 Act)
.
[49]
The
Akhter
judgment also dealt with the concept of a non-marriage. At paragraph
52 it was said that the Act and the 1973 Act set out when
non-compliance
with certain of the required formalities will make a
marriage void.  It was said in that judgment that those two Acts
did not
contain any provisions setting out when a ceremony would not
be within the Act at all. The judgment further stated that “it had
long been recognised, however, that there must be some ceremonies or
acts which do not create even a void marriage and which, therefore,
do not entitle a party to a decree of nullity”.
[10]
The following statement referred to in paragraph 52 of the
Akhter
judgment
is of relevance in this matter:
‘
We
would also refer to,
The Formation and
Annulment of Marriage
, 1
st
Ed 1951, in which Joseph Jackson said, at p. 65, that “the question
whether a marriage is void, voidable or valid presupposes the
existence of an act allegedly creative of the marriage status”’.
[50]
A reference was made at paragraph 53 to
R
v Mohamed (Ali)
[11]
where it was said to be within the Act, the ceremony “must be at
least one which will prima facie confer the status of husband
and
wife on the two persons. In no uncertain terms, the uncontradicted
evidence in the case of the defendant shows that the ceremony
at the
Lanesborough Hotel did not and could not have achieved this result.
The court expressed its reservations about the term “non-marriage”
and indicated that it would propose that they should be called a
“non-qualifying ceremony” to signify that they are outside the
scope of both the 1949 and the 1973 Acts.
[12]
It was further stated that the focus should be on the ceremony.
[51]
Mr
Naidoo
argued that the marriage in this case would fall into the category of
a voidable marriage. He argued that this was so because the
basic
requirement of an intention of the parties to marry was common cause
and that the parties had cohabited before the ceremony.
He also cited
the fact that there was an engagement and that there was no
impediment in law that prevented the parties from marrying.
Further
in his address, Mr Naidoo inadvertently stated that “up to the
stage at which the ceremony was conducted and
those
vows were exchanged
”. This is, with
respect, not an entirely correct statement in that we know that
Reverend Wilkinson stated categorically that no
vows were exchanged
between the parties.
[52]
The authorities that I have referred to previously in this judgment
clearly show that the intention and
belief of the parties is
immaterial if the ceremony is not within the four corners of the Act.
I do not intend regurgitating those
authorities save to say that the
argument based on these aspects has no merit. The court was further
requested to make a determination
on what counsel referred to as a
purported marriage and to draw that distinction whether it is a void
or a voidable marriage. This
argument will not fly, firstly because
the court will not have jurisdiction to make that determination. This
court is called upon
to determine if any marriage took place between
the parties on 18 August 2007. That mandate does not extend to
propping up some kind
of ceremony that occurred outside the Act.
[53]
Section 2(1) of the Divorce Act
[13]
confers jurisdiction to a court in instances if the parties or either
of the parties is:
‘
(a)
domiciled in the area of jurisdiction of the court on the date on
which the action is instituted
or
(b)
ordinarily resident in the area of jurisdiction of the court on the
said date and have
or has been ordinarily resident in the Republic
for a period of not less than one year immediately prior to that
date.’
[54]
Divorce action is defined as:
‘
an
action by which a decree of divorce or other relief in connection
therewith is applied for, and includes
(a)
an application
pendente lite
for an interdict or for the
interim custody of, or access to a minor child of the marriage
concerned or for the payment of maintenance;
or
(b)
an
application for a contribution towards the costs of such action or to
institute such action, or make such application,
in
forma pauperis
,
or for the substituted service of process in, or the edictal citation
of a party to, such action or such application;
’.
The
parameters of this section are clear and they do not incorporate what
was submitted by counsel as a determination to be made by
this court.
[55]
In his response Mr Subel, counsel for the defendant correctly drew
the court’s attention to the fact
that the only jurisdiction in
this regard that the court possesses is only on one issue, and that
is, is there a valid marriage?
He was further correct in saying that
one does not grant a decree of divorce in respect of void, so-called
void marriages or voidable
or putative marriages. Further as was
correctly argued by defendant’s counsel, the determination now
sought to be made by this
court, does not fall within the ambit of
the relief claimed by the plaintiff. Counsel further reiterated that
the expert Ms Kentridge
had clearly stated that what had happened
between the parties in this case was a non-marriage and that her
evidence had not been
challenged nor had this aspect been further
canvassed on behalf of the plaintiff.
[56]
Counsel for the defendant gave quite a detailed submission of his
observations of the type of a witness
that the plaintiff was. He
re-iterated the fact that all the litigation that the parties have
had to go through has been unnecessary
considering the fact that the
plaintiff must have known way back in 2007 that no marriage had taken
place between her and the defendant.
The evidence in the transcript
that was graciously provided to the court gives a clear indication of
the lengths that the plaintiff
was prepared to go to for her to be
found to have been married to the defendant. She dismally failed to
achieve this. The least said
about her as a witness, the better. She
was a poor witness, argumentative right through her testimony. She
avoided answering questions
directed at her. She insisted on making
empty, unsubstantiated allegations. As was observed by counsel for
the defendant, whenever
she found herself trapped in the web of her
inconsistencies, she pleaded duress or lack of capacity for which she
has nothing to
show.
[57]
The plaintiff was the one alleging the existence of a marriage which
she insisted had taken place in
a foreign country. The sequence of
events shows that she was represented at all the crucial stages of
this litigation. It was incumbent
upon her to present before this
court the foreign legislation on which she relied to sustain her
claim of there having been a marriage
existing between her and the
defendant. She failed to do this, despite the existence of Ms
Kentridge’s expert opinion in the file,
years before this trial
took place. The evidence of her sister, Ms Jacqueline Anne Burger and
her friend Ms Paula Anne Xenopaulos
did not take her case any further
as it all amounted to the repetition of her evidence on the purported
marriage.
[58]
On the other hand, the defendant meticulously prepared for this
trial. He placed the court in a proper
position to understand what
the requirements of the law were where the ceremony took place. The
court has no reason to question the
undisputed evidence of Mr
Christmas and the expert evidence of Ms Kentridge. The cross-
examination of Mr Christmas did not in any
way affect the probative
value of his evidence, based on his personal involvement with the
parties and his experience as a retired
barrister of the London
courts. The contents of the affidavit that was submitted by Reverend
Wilkinson were not challenged in any
way and the court was not given
any reason not to accept the affidavit as deposed to by the Reverend.
[59]
The evidence presented by the defendant leaves no shadow of doubt in
my mind that there was never a marriage
contracted between the
plaintiff and the defendant. As a result, there can be no talk of a
decree of divorce as correctly argued
by counsel for the defendant.
It is my considered view that the plaintiff has all along known that
there is and there never was a
marriage existing between her and the
defendant. She may not have been schooled in English law as she
argued in court, but the explanation
given to her by the defendant in
that the preparations were not up to scratch so as to lead to the
celebration of a marriage, was
sufficient for her to understand that
the ceremony conducted by Reverend Wilkinson could not be turned into
a marriage just by what
she allowed herself to believe. She knew that
the prerequisites for a marriage in English law had not been met.
[60]
If all of this was not sufficient to convince her that no marriage
had resulted from the ceremony that
took place at the Lanesborough
Hotel on 18 August 2007, then surely on either the 28
th
or 29
th
of August when the parties met with Mr Christmas at the hotel, where
the document referred to in these proceedings was drafted, then,
she
clearly was aware that there was no marriage that had been concluded
between her and the defendant. That knowledge notwithstanding,
the
plaintiff has continued litigating, knowing well that this was an
exercise in futility. She decidedly ignored the subtle warnings
given
by Kruger J in his orders referred to earlier in this judgment.
[61]
In the
Akhter
judgment
the Justices made reference to the judgment of
Dukali
v  Lamrani (Attorney General intervening)
[14]
where it was said that the marriage was “neither valid nor void but
was not non-existent”. It was further stated that the marriage
was
not valid “because there was manifold non-compliance with every
requirement of the Marriage Acts as to notification, use of
a
registered or approved venue, form, authorisation of the officiant
and subsequent registration”.
[15]
In
Akhter
it was further stated that it was also not a void marriage because
“it did not even purport to be a marriage under the provisions
of
the Marriages Acts; the parties had not “purported to inter-marry
under the provisions of [PART III] of the 1949 Act at all”.
It was
therefore a “non-marriage”.
[16]
The judgment stated further that agreements to marry did not give
rise to legal rights, and that no action lies for their breach.
[17]
[62]
Like in the
Akhter
judgment,
in this case the parties knew that the ceremony had no legal effect
and that they would need to undertake another ceremony
which complied
with the requirements of the Act or in the case before me, a ceremony
in terms of the marriage laws of South Africa
if they were to be
validly married. The indications emanating from the body of the
evidence are that the plaintiff was content with
the state of
affairs. She does not seem to have even once raised the issue of the
marriage that had failed to take place in England
once the parties
were back in South Africa.
[63]
The judgment of
Akhter
[18]
refers with approval to an article entitled ‘The Legal Treatment of
Islamic Marriage Ceremonies’
[19]
where it is stated that “it would be wrong in principle for those
who know that they are flouting the law to have more rights than
those who do not”. The judgment
[20]
further stated that even if a wife’s claim to a share of what would
otherwise be matrimonial assets amounts to “property rights”,
the
gateway to those property rights would be a right to a decree of
either divorce or nullity. In the matter before me, I am satisfied
that that right to a decree of divorce has not been established. I am
further satisfied that no marriage was ever concluded between
the
plaintiff and the defendant. In the circumstances, this court has no
legal mandate to issue any decree of divorce. That prayer
by the
plaintiff falls to be dismissed with costs.
Costs
[64]
Counsel for the defendant has submitted that costs on the scale as
between attorney and client are justified
in this case. His
motivation for this scale is that not only is the claim frivolous and
vexatious, but that the plaintiff has done
everything possible to
delay the matter being heard. He submitted further that the plaintiff
had failed to comply with the directives
of this court. Such failure
had, according to counsel’s submissions, resulted in the defendant
having pro-actively taken steps
that were required of the plaintiff
as
dominus litis
to ensure that the matter was enrolled and trial ready. He submitted
that on two separate occasions the defendant had been required
to
bring an application to strike out and dismiss the plaintiff’s
action. The first set of costs was granted against the plaintiff
on
27 January 2020 and it was on an attorney and client scale.
[65]
The costs of the second application to dismiss (issued on 3 June
2020) was reserved for determination
by the trial court in an order
of Vahed J dated 2 October 2020. Counsel has coupled this with the
costs of the meeting held in Chambers
with the presiding judge in
this matter on 22 October 2020. Counsel argued that the same costs
order had to be made as the order
made in relation to the first
application to dismiss. The basis for this argument was according to
counsel, the fact that the plaintiff
had persisted in her default in
complying with the directives of this court and had failed to attend
to the pagination of the court
file and production of the trial
bundle. In the circumstance counsel for the defendant indicated that
the costs sought were to include
the costs occasioned by the
engagement of two counsel and to be taxed on the scale as between
attorney and client. His submission
in this regard was that the costs
should include the qualifying fees of Ms Kentridge.
[66]
Mr
Subel
justified the appointment of two counsel on the consideration that
this was a very important matter. He further submitted that on
the
pleadings there was a claim for an amount equal to half of the estate
of the defendant. The papers had grown enormously, and
getting the
matter trial ready had been a very difficult exercise. The court has
been asked to declare Ms Kentridge as having been
a necessary expert
witness. I will hasten to say that if one considers the pronouncement
of Van Heerden J in
Atlantic
Harvesters of Namibia (Pty) Ltd v Unterweser Reederei
GmbH
of Bremen
[21]
(judgment referred to in
defendant’s heads of argument) that:
‘
In
our Courts, foreign law is a matter of fact to be decided on evidence
and the proper evidence is that of experts, that is to say,
of
lawyers practising in the courts of the country whose law our Courts
want to ascertain’,
then
the calling of the expert evidence of Ms Kentridge became inevitable.
This was a duty that fell in the domain of the plaintiff’s
doorstep. She failed to present this evidence, the defendant was thus
left with no option.
[67]
In response to the issue of costs sought, Mr
Naidoo
denied that the action was frivolous and that the plaintiff was
entitled to bring the action and to see it to its logical conclusion.
He thus argued that should the court grant the defendant costs, then
such costs had to be on the party and party scale. I do not
agree
with counsel for plaintiff. Surely everyone is entitled to bring an
action but entitlement is not a stand-alone consideration
to the
exclusion of everything else, especially the prospects of success in
any given matter. In my mind that would be reckless and
amount to
taking a dangerous gamble. The courts would be inundated with
unmeritorious applications to the detriment of deserving
cases.
Having said that, I am satisfied that that is exactly what the
plaintiff has done in this case, to her detriment, I am afraid.
[68]
Having said this I am satisfied that the defendant has made an
overwhelming case for the dismissal of
the plaintiff’s action with
costs. He has also succeeded to show the court why such costs should
be granted at a punitive scale.
Order
[69]
I accordingly make the following order:
1.
The action instituted by the plaintiff is dismissed and the court
determines that
no marriage was entered into between the plaintiff
and the defendant.
2.
The plaintiff is to pay the defendant the following costs:
(a)
The reserved costs of the second application to dismiss including the
costs occasioned in
relation to the meeting with Hadebe J in Chambers
on 22 October 2020.
(b)
The qualifying fees of defendant’s expert witness Ms Janet
Kentridge.
3.
Such costs are:
(a)
to be paid on the scale as between attorney and client;
(b)
to include the costs occasioned by the engagement of two counsel.
Hadebe
J
APPEARANCES:
Date
of Hearing:

04
November 2020
Date
of Judgment:

02
August 2021
Counsel
for the Plaintiff:
Adv. Naidoo
Instructed
by:
Amods Attorneys
Ref
No:
MR AMOD/MS/N135
Counsel
for the Defendant:
Adv. Subel S.C. with Adv. N. Beket
Instructed
by:

Tegendhaft Wapnick Banchetti & Partners
c/o
Garlicke & Bousfield Inc.
Ref
No:

VJM
[1]
Rule
33(4) provides as follows:
‘
If,
in any pending action, it appears to the court
mero
motu
that there is a question of law
or fact which may conveniently be decided either before any evidence
is led or separately from
any other question, the court may make an
order directing the disposal of such question in such manner as it
may deem fit and…’
[2]
Marriage
Act, 1949.
[3]
A-M
v A-M
(
Divorce:
Jurisdiction: Validity of Marriage)
[2001] 2 FLR 6
para 58.
[4]
Ibid.
[5]
Attorney-General
v Akhter & Ors
[2020]
EWCA Civ 122.
[6]
Ibid
para 97.
[7]
Para
103.
[8]
Rousalis
v Rousalis
1980
(3) SA 446 (C).
[9]
Attorney-
General v Akhter & Ors
[2020]
EWCA Civ 122
para 6.
[10]
Ibid
para 52.
[11]
R
v Mohamed (Ali)
[1964] 2 QB 350n.
[12]
Akhter
para
64
.
[13]
70 of 1979.
[14]
Dukali
v Lamrani (Attorney General intervening)
[2013] 2 FLR 1099.
[15]
Ibid
para 36.
[16]
Akhter
para
57.
[17]
Ibid
para
88.
[18]
Akhter
para
45.
[19]
Professor
Probert and Shabana Saleem
‘T
he
Legal Treatment of Islamic Marriage Ceremonies’ (2018)
Oxford
Journal of Law and Religion
,
7, 376-400 at 390.
[20]
Akhter
para
72.
[21]
Atlantic
Harvesters of Namibia (Pty) Ltd v Unterweser Reederei
GmbH
of Bremen
1986 (4) SA 865
(C) at 874E-F.