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[2024] ZAECMHC 4
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N.P.B v T.I.B and Another - Appeal (CA 81/2022) [2024] ZAECMHC 4 (30 January 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
Appeal
Case No. CA 81/2022
Case
No. 2669/2021
Heard
on: 16 October 2023
Date
delivered on: 30 January 2024
In
the matter between:
N[…]
P[…] B[…]
Applicant/Appellant
And
T[…]
I[…] B[…]
First
Respondent
MINISTER
OF HOME AFFAIRS
Second
Respondent
FULL
COURT JUDGMENT
MAJIKI
J:
INTRODUCTION
[1]
Dunywa AJ dismissed the appellant’s application seeking
an order that her civil marriage with the first respondent
(T[…])
be declared invalid or, alternatively, if it is valid, that it be
declared to have consequences of a marriage out
of community of
property and profit and loss. In the appeal, the appellant also
seeks leave to lead further evidence that
T[...] had paid
lobola
for one M[…] A[…] (A[…]) to establish a
customary marriage with her in 1987. Both the
appeal
and the application to lead further evidence are opposed.
T[...] filed an answering affidavit in the application, which was not
followed by a replying affidavit. The appeal to this Court is
with the leave of the court
a quo
.
[2]
The grounds of appeal are that the court a quo erred in finding
that:
(i) T[...]
and A[…] were never involved in a customary marriage at
the time when T[...] and the appellant
entered into a civil marriage
on 1 October 1997.
(ii) the appellant’s
claim that T[...] had paid lobola for his marriage with A[...] was
inadmissible hearsay evidence.
BACKGROUND
FACTS
[3]
On 1 October 1997 the appellant and T[...] married civilly, in
community of property and profit
and loss. On 15 February 2019
T[...] instituted divorce proceedings in the Regional Division of the
Magistrates’ Court,
Mthatha. The said action was defended
by the appellant. One of the issues for determination in the
divorce proceedings
was, inter alia, whether T[...] was entitled to
an order of forfeiture of the marital benefits arising from the
consequences of
his marriage in community of property. On 18 June
2021, whilst the divorce action was pending finalisation, the
appellant brought
the application proceedings to the high court based
on urgency. Those proceedings are the subject of this appeal.
[4]
On 5 August 2022 the magistrate granted a decree of
divorce, and ordered a division of the joint estate. The appellant
did not appeal that divorce order. In the light of that order, the
attitude adopted by T[...] is that the judgment by the magistrate
rendered the relief sought by the appellant in this Court moot. I
will revert to the issue of mootness later on in this judgment.
[5]
To appreciate the merits of this appeal, the examination of the
evidence that was considered by the
court a quo
is necessary.
The appellant stated on affidavit that she had recently learnt that
T[...] married her whilst he was a party to a
customary marriage with
A[…]. She did not disclose the source of that
information, averring merely that she entertained
fear of
intimidation. She also alleged that certain family members had
difficulties deposing to affidavits as that would
have the potential
of causing disharmony in the family. She described T[...] as
someone who was always away from their marital
home, and spent most
of his time in Cape Town. He usually returned home once a year
for less than a week at each instance.
She thought that T[...] was
cohabiting with another woman in Cape Town. She contended,
based on undisclosed sources, that
since T[...] was involved in a
customary marriage with A[…], he was not entitled to benefit
from the fruits of her hard
work, the fifty percent (50%) of her
pension interest, including the division of the joint estate that he
claimed in the divorce
papers.
[6]
T[...] raised a point
in limine
contending that the
appellant’s claim that he was involved in a customary marriage
was inadmissible hearsay evidence. He
denied the
existence of that marriage. He alleged that A[…] is
merely the mother of his two children, a fact that
was known to the
appellant even before they entered into the marriage in 1997.
He contended that he was entitled to an equitable
division of the
joint estate as a consequence of his marriage, and that the claim
made by the appellant that she was entitled to
the exclusive
retention of the matrimonial property at No. […] S[…],
Southridge Park, Mthatha demonstrated lack of
appreciation of the
consequences of a marriage in community of property.
[7]
In the replying affidavit, the appellant attached an affidavit
purportedly deposed to by A[...] before the official of
South African
Police Services in Khayelitsha, Cape Town (the first affidavit).
It appears in that affidavit that A[...]
confirmed the
existence of her customary marriage with T[...] and that a sum of
Three Thousand Rand (R3 000.00) was paid as
her
lobola
around March or April
1987.
The
ritual of
Tsiki
[1]
was performed for
her the following year.
[8]
It is not in dispute that T[...] subsequently launched an application
in Cape Town to declare the alleged customary marriage
invalid. In
the court
a quo
the urgent application was set down for
hearing on 11 November 2021. On 5 November 2021 T[...] filed a
supplementary affidavit
to his answering affidavit stating that
A[...] advised him that she denied the correctness of the facts set
out in her affidavit,
alleging that she had been misled by the
appellant’s legal representative to believe that deposing to
those facts would entitle
her to immediate payment from a certain
fund that had been created by T[...] for the benefit of her children.
A[...] deposed to
another affidavit (the second affidavit) confirming
all the facts concerning her as stated by T[...] in his supplementary
affidavit.
In doing so, she went so far as to retract the facts
stated in her first affidavit. Significantly, A[...] denied that she
and T[...]
had entered into a customary marriage. Thereafter, on the
date of the hearing, the appellant’s legal representative filed
an explanatory affidavit denying that she had promised A[...] a
payment for her children, and challenging the veracity of A[…]’s
signature that appeared on the second affidavit. The appellant
simultaneously filed a report by a handwriting expert which
certified
that the signatures in the first and second affidavits purportedly
appended by A[...] were not written or created by
the same author.
[9]
The issue concerning the disputed signatures was referred by Dunywa
AJ to hearing of oral evidence for determination of
whether they
belonged to A[...] or another person. A[...] testified in the witness
box that she appended her signature on both
affidavits. The
examination of the court
a quo’s
finding indicates that
it accepted evidence that is consistent with the second affidavit.
In my view, on the analysis of the
evidence as a whole, the court
a
quo
was correct in doing so because the allegations in the first
affidavit are not probable. Consequently, the
court a
quo
rejected the evidence of the appellant that T[...] had
surreptitiously entered into a civil marriage during the subsistence
of
a customary marriage with A[…]. Most importantly, the
assertion made by the appellant in all the affidavits that T[...] had
paid
lobola
for A[...] was rejected, but on the reason that
such was inadmissible evidence.
ON
APPEAL
[10]
In this matter, three issues fall to be decided. The first is
whether the payment of lobola is new evidence worthy of being
received in this appeal. The second is whether the relief sought by
the appellant is moot. The third is whether the
court a quo
erred in holding that the evidence that T[...] paid
lobola
for
A[...] is inadmissible hearsay evidence.
[11]
In terms of the provisions of s 19 (b) of the Superior Courts Act
[2]
this Court is seized with jurisdiction to adjudicate the appellant’s
application to introduce further evidence. In deciding
whether to
allow further evidence on appeal, the Court will be guided by the
principles that have evolved in decided cases over
many years, and
which are summarised in Herbstein and Van Winsen as follows
[3]
:
‘
(a)
it
is essential that there should be finality to a trial, and therefore
if a suitor elects to stand by the evidence which he adduces,
he
should not (later) be allowed to adduce further evidence, unless the
circumstances are exceptional.
(b)
The party who makes the application must show that the fact that he
has not brought further evidence forward was not attributable
to any
remissness on his part. He must satisfy the court that he could not
have procured the evidence in question by the exercise
of reasonable
diligence.
(c) The evidence tendered
must be weighty material, and presumably worthy of belief, and must
be such that, if adduced, it will
be practically conclusive.
(d) If conditions have so
changed that the fresh evidence would prejudice the opposite party,
the court will not grant the application,
for example if the
witnesses for the opposite party have been scattered and cannot be
brought back to refute the fresh evidence.’
[12]
The further
evidence that the appellant now
seeks to be received in this appeal are the confirming statements
allegedly made by her in-laws
residing in Ngcobo, Cala, Mdantsane and
Cape Town that they obtained indirect knowledge at some stages
between 2012 and 2013 that
lobola
was paid for A[…]. The source of that
knowledge is said to be derived from family gatherings and oral
accounts of certain
negotiators who have since died. The appellant's
application was opposed on the basis that information, as alleged,
cannot be reliable
as it was gathered from distant family members,
other than the negotiators themselves, and based on events that
allegedly took
place in 1987 in their absence. Further, it was
opposed on the basis that it was opportunistic of the appellant not
to place full
evidence before Dunywa AJ but to embark on the search
for evidence after the divorce and application proceedings had long
been
finalised.
[13]
It was submitted on behalf of the appellant that
the disputed issue concerning the validity of the customary marriage
would be ventilated
exhaustively if the appellant was allowed to
adduce further evidence that
lobola
was paid for A[…]. It was submitted further that the success
of the appellant in this appeal will provide her with a shield
which
is necessary for her to prevent sharing her pensions with T[...]. On
the contrary, counsel for T[...] submitted that the
appellant was
remiss in failing to place new evidence before the court timeously.
Further, the delay in doing so would be prejudicial
to T[...] as he
has already been successful in both securing a decree of divorce as
well as in warding off the declarator which,
if it was not dismissed,
would deprive him of the proprietary benefits arising from his
marriage with the appellant. In the main,
the submission advanced on
behalf of T[...] is that the appeal has been overtaken by events with
the result that there is no live
dispute or controversy that is
capable of producing any practical result.
[14]
The appellant’s application to introduce further evidence does
not meet any of the principles that are enumerated in
paragraph 11
above. The allegation that T[...] had established a customary
marriage with A[...] on proof that he paid
lobola
for her is not new
evidence. It was badly raised by the appellant on affidavits, and it
was rejected by the court a quo on the basis
that it was inadmissible
hearsay evidence
[4]
. There is no
fault in the finding that the appellant’s evidence in this
regard constituted inadmissible hearsay evidence.
It appears in
the founding affidavit of the appellant filed towards the main
application that the witnesses who informed her that
lobola was paid
were present when the application was brought, but they had to be
withheld to preserve harmony amongst family members.
Despite that
allegation, the appellant failed to apply for the exception to the
hearsay evidence rule to be applied to what was
inadmissible
evidence. Instead, the appellant manufactured an unconventional
method of curing the inadmissibility of evidence by
obtaining further
facts and had them deposed under oath, under suspicious
circumstances. When that route failed, and the judgment
unfavourable
to her was delivered, she suddenly, and inexplicably, unearthed some
witnesses from eNgcobo, Cala, Mdantsane and Cape
Town, who are
available, to bolster her case that T[...] did pay
lobola
for A[…]. She did
not even explain the sudden emergence of such witnesses. However, a
closer examination of the claim that
there is in existence new
evidence that could assist the appeal court to make a just decision
shows that the witnesses under question
are distant family members
who were not even present at the time that
lobola
was allegedly paid. Such
witnesses are not likely to give reliable evidence because the
probative value of their evidence lies in
other persons that
apparently informed them that
lobola
was paid. There was only
one person who claimed that she and T[...] belonged to the same clan;
she grew up with him; she witnessed
preparations for the payment of
lobola
;
and she was present when A[...] was dressed up as
umakoti.
However, she had missed
the preceding ceremony of
ukutyiswa
uTsiki
of
A[…]. No explanation has been proffered for the failure to
have that evidence given at the time the proceedings were launched.
[15]
Further, the appellant has not advanced exceptional circumstances
that could change the ruling that the evidence that
lobola
was
paid is inadmissible. The unassailable facts set out by T[...] in his
answering affidavit to the main application that the
appellant’s
claim, that he paid
lobola,
is untrue also put paid to
the application for the introduction of new facts. As I see it, the
approach adopted by the appellant
was simply that the acceptance of
the new evidence might open the door for her to engage in a
re-hearing of the main application.
That was not to be. The
application must therefore fail.
[16]
The submission advanced on behalf of T[...] that the decision of the
appeal proceedings is moot trenches on the provisions
of s
16
(2) (a) (1) of the Superior Courts Act, which read as follows:
‘
When at the
hearing of an appeal the issues are of such a nature that the
decision sought will have no practical effect or result,
the appeal
may be dismissed on this ground alone.’
[17]
The proper approach to the consideration of the issue of mootness is
set out in
Narius
Moloto v The Pan Africanist Congress Of Azania
[5]
in the
following terms:
‘
[13]
On the issue of mootness
I
accept, as it was common cause between the parties, that
the
relief sought in this appeal has been overtaken by events.
This
Court in
The
President of the Republic of South Africa v DA and Others
[6]
had this to say on the issue:
‘
The
question of mootness of an appeal has featured repeatedly in this and
other courts. These cases demonstrate that a court hearing
an appeal
would not readily accept an invitation to adjudicate on issues that
are of “such a nature that the decision sought
will have no
practical effect or result”. The Constitutional Court in
National
Coalition for Gay and Lesbian Equality & Others v Minister of
Home Affairs
2000
(2) SA 1
(CC) para 21 footnote 18 remarked:
“
A
case is moot and therefore not justiciable if it no longer presents
an existing or live controversy which should exist if the
Court is to
avoid giving advisory opinions on abstract propositions of law. Such
was the case in
JT
Publishing (Pty) Ltd and Another v Minister of Safety and Security
and Others
[1996] ZACC 23
;
1997
(3) SA 514
(CC)
(1996 (12) BCLR 1599)
, where Didcott J said the
following at para [17]:
“
(T)here
can hardly be a clearer instance of issues that are wholly academic,
of issues exciting no interest but an historical one,
than those on
which our ruling is wanted have now become.”
There are instances where
there have been exceptions to the provision, initially of s 21A of
Act 59 of 1959 and presently
s 16(2)(a)(i)
of the
Superior Courts Act
10 of 2013
. The courts have exercised a discretion to hear a matter
even where it was moot. This discretion has been applied in a limited
number of cases, where the appeal, though moot, raised a discrete
legal point which required no merits or factual matrix to resolve.
In
this regard, the Constitutional Court in
Independent Electoral
Commission v Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA 925
(CC), in
paragraph 11 held:
‘
A
prerequisite for the exercise of the discretion is that any order
which this Court may make will have some practical effect either
on
the parties or on others.’
The question is thus
whether such discretion should be exercised in this case.”
[18]
This case falls within the exception to the rule that if any order
that the court may make is moot it will decline to adjudicate
the
matter. The dispute arising from the appellant’s application
for a declarator that the civil marriage is invalid is the
allegation
that there was a customary marriage in existence between T[...] and
A[...] that vitiated the status of the civil marriage.
The relief
sought that T[...] be deprived of the benefits of the civil marriage
is a consequential relief that has less to do with
any pronouncement
by the divorce court. The provisions of
s 21(1)
(c) of the
Superior
Courts Act underscore
the fact that the divorce order granted in the
regional court is irrelevant to the declaratory order sought by the
appellant in
the high court. They read:
‘
(1) A
Division
has jurisdiction...
…
(c) in its discretion,
and at the instance of any interested person, to inquire into and
determine any existing, future or contingent
right or obligation,
notwithstanding that such person cannot claim any relief
consequential upon the determination’.
[19]
The determination of the issue of inadmissible evidence of payment of
lobola
cannot
detain this Court because it is the flip-side of the issue of whether
further evidence ought to be received on appeal. Suffice
it to state
that the ruling by the
court
a quo
that
the evidence that T[...] had paid
lobola
for his marriage with
A[...] was inadmissible hearsay cannot be faulted
[7]
.
It must also follow, therefore, that the claim by the appellant that
T[...] and A[...] were involved in a customary marriage at
the time
when she and T[...] entered into a civil marriage on 1 October 1997
is incorrect.
[20]
The costs of both the application to lead further evidence and the
appeal will follow the result.
In
the result,
1. The application
to lead further evidence is dismissed with costs.
2. The appeal is
dismissed with costs.
B
MAJIKI
JUDGE
OF THE HIGH COURT
I
agree
Z
M NHLANGULELA
ACTING
JUDGE PRESIDENT
OF
THE HIGH COURT
I
agree
S
TILANA-MABECE AJ
ACTING
JUDGE OF THE HIGH COURT
Appellant’s
Counsel
Mr S
Mzileni
Instructed
by
Messrs
Mdledle-Malefane & Associates
Suite
G8. ECDA Building
No.
50 Elliot Street
MTHATHA
Respondents’
Counsel
Mr B
Molefe
Instructed
by
Messrs
Botho Molefe & Associates Inc.
c/o
Keightley Sigadla Incorporated
60
Cumberland Street
MTHATHA
[1]
Tsiki
can
be described as a customary ceremony or ritual signifying transfer
or welcoming of a bride to the husband's home through the
slaughtering of a sheep. The bride eats a piece of roasted meat
called
isiphika
from
the sheep.
[2]
The
Superior Courts Act
10 of 2013
.
[3]
See :
Herbstein &Van Winsesen: The Civil Practice Of The Supreme Court
Of South Africa, 4
th
Ed at
909;
Colman
v Dunbar
1933
AD 161
(A); and
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
2005
(4) SA 359
at para 41.
[4]
The
provisions of
Section 3
(1) of the
Law Of Evidence Amendment Act 45
of 1988
provides that hearsay evidence shall not be admitted as
evidence at civil proceedings unless certain preconditions as stated
in
section 3
(1) (a) to (c) have been satisfied.
[5]
Narius
Moloto v The Pan Africanist Congress Of Azania
(1176/2019)
[2023] ZASCA 140
(27 October 2023).
[6]
The
President of the Republic of South Africa v Democratic Alliance and
Others
[2018]
ZASCA 79
paras 11-12. See also the case of South African Reserve
Bank v Shuttleworth
[2015] ZACC 17
;
2015 (5) SA 146
(CC);
2015 (8)
BCLR 959
(CC) at para. 27;
Normandien
Farms (Pty) Limited v South African Agency for Promotion of
Petroleum Exploration SOC Limited and Others
[2020]
ZACC 5
;
2020 (6) BCLR 748
(CC);
2020 (4) SA 409
(CC) paras 46-50.
[7]
It
was held in
S
v Ndhlovu and Others
2002
(2) SACR 325
(SCA), para 28 that if the declarant/source person is
not called the hearsay is ‘left out of account’. See
also:
S
v Litako and Others
2012
(1) SA 90
(SCA, para 23; and
S
v Mhlongo; S v Nkosi
2015
(2) SACR 323
(CC).