Brief Summary

Marriage — Putative marriage — Applicant sought validation of marriage to deceased and removal of first respondent as executrix — First respondent claimed her marriage to deceased was a putative marriage — Court found material dispute of fact regarding knowledge of impediment to marriage — Application referred for oral evidence to resolve factual disputes regarding the validity of the marriages and the status of the deceased estate.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns an urgent motion application in the Gauteng Division of the High Court, Pretoria, arising from a dispute in the administration of the intestate estate of the late Rabaki Petrus Kgosi (the deceased). The applicant, Martha Kerileng Kgosi, and the first respondent, Kganyane Lilly Kgosi, were both cited as the deceased’s surviving wives. The first respondent was also cited in her capacity as executrix (third respondent). The Department of Home Affairs (fourth respondent) and the Master of the High Court (fifth respondent) did not oppose the relief.

The procedural history reflected that an earlier judgment had been delivered by Strydom AJ on 23 May 2023, addressing the dispute relating to the removal of the first respondent as executrix. By the time this matter served before Badenhorst AJ, it was recorded that the applicant no longer persisted with certain prayers in the notice of motion and that the validity of the marriage between the applicant and the deceased was no longer disputed.

The matter proceeded on a narrowed basis after the first respondent advanced the contention (during argument before Strydom AJ) that her marriage to the deceased was putative. Because that contention had not been substantiated on affidavit at the time, Strydom AJ did not entertain argument on it and granted leave to file supplementary affidavits directed to the alleged putative marriage. The present judgment addresses that narrowed dispute and determines the appropriate procedural course in light of disputes of fact that emerged on the papers.

The subject-matter of the dispute is therefore the status and consequences of a void civil marriage allegedly contracted while a prior civil marriage subsisted, specifically whether that void marriage should be recognised as a putative marriage, and the consequences that may follow for estate division and the status of minor children.

2. Material Facts

It was common cause that the deceased and the applicant contracted a civil marriage in community of property, registered by the Department of Home Affairs on 28 June 1986. The applicant stated that she left the matrimonial home in 2006.

It was also common cause that, on 24 March 2017, the deceased and the first respondent entered into a further civil marriage in community of property. The Department of Home Affairs issued two marriage certificates, each certifying that the deceased had concluded civil marriages with, respectively, the applicant and the first respondent, and that the marriages were duly solemnised.

Two minor children were born of the relationship between the first respondent and the deceased. The first respondent and the children remained resident in the matrimonial home. The deceased died on 18 March 2021 intestate (without a will).

The parties’ affidavits recorded that the applicant and the first respondent alleged that they only became aware that they were both married to the deceased shortly after his death. The applicant contended that the deceased’s later marriage to the first respondent was unlawful, and further asserted that the first respondent knew that the deceased was still married to the applicant. The first respondent denied knowledge of any impediment and stated that the deceased was reflected as a “bachelor” on their marriage certificate.

A further undisputed fact was that the Department of Home Affairs informed the first respondent, by letter dated 6 May 2022, that the civil marriage contracted on 24 March 2017 was null and void and had been expunged from the national population register, and that it constituted bigamy.

The first respondent sought relief declaring her void marriage to the deceased a putative marriage, together with consequential patrimonial relief in the form of a claimed entitlement to a portion of the deceased estate. She also alleged that she contributed directly and/or indirectly to the growth of the joint estate, but the judgment recorded that she provided no details of those contributions sufficient to enable a determination of what portion, if any, she might be entitled to on that basis.

In the supplementary affidavit phase, the applicant uploaded six video clips and a translation purportedly from Setswana to English, relating to events at a family celebration on 16 August 2014 (the deceased and applicant’s youngest son’s 21st birthday). The applicant relied on that material to challenge aspects of the first respondent’s version and to support the contention that the first respondent knew of the subsisting marriage between the applicant and the deceased. The court treated this as giving rise to procedural and factual difficulty in motion proceedings, including the point that the first respondent had not had the opportunity to respond to the new material.

3. Legal Issues

The central legal question was whether the court could, on the affidavits, determine that the void civil marriage between the deceased and the first respondent constituted a putative marriage, which in turn depended materially on whether the first respondent was ignorant of the impediment and in good faith at the time of contracting the marriage and thereafter.

A further linked issue concerned the appropriate procedural mechanism under the Uniform Rules where material disputes of fact prevent final determination on the papers. The court had to decide whether to dismiss the relevant application/counter-application, to refer specified disputes to oral evidence, or to refer the matter to trial.

The dispute primarily concerned a factual question (knowledge and good faith regarding the impediment to marriage), together with the application of legal principles governing putative marriage to those facts. The court was also required to exercise a discretionary procedural judgment under Uniform Rule 6(5)(g) on how to resolve the dispute of fact in a manner that ensured a just and expeditious decision.

4. Court’s Reasoning

The court set out the governing legal position that, for a void marriage to be recognised as a putative marriage, one or both parties must have been unaware of the impediment rendering the marriage void and must have acted in good faith. It noted that a judicial directive would be required if the void marriage was to be confirmed as putative.

Relying on Zulu v Zulu and Others 2008 (4) SA 12 (D) (25 February 2008), the court identified requirements the first respondent would need to prove, including that she was ignorant of the impediment at the time of marriage and remained ignorant of it, and that she considered the marriage to be lawful and valid.

The court’s analysis then focused on whether the matter could properly be decided on affidavit. It held that the supplementary material (including the videos and translations) could not be properly dealt with in motion proceedings and, importantly, that the first respondent had not had an opportunity to reply to this new evidence, creating prejudice inconsistent with the audi alteram partem principle. The court further considered that the parties’ competing versions disclosed a material dispute of fact on whether the first respondent knew the deceased was still married to the applicant.

In deciding on the appropriate procedural route, the court invoked Uniform Rule 6(5)(g), emphasising that the court has a wide discretion to dismiss an application, direct that oral evidence be heard on specified issues, or refer the matter to trial. It relied on Ntsala v Rustenburg Local Municipality and Another (M124/20) [2021] ZANWHC 48 (20 April 2021) for the proposition that the court should choose the process best calculated to ensure justice with the least delay on the merits. It also referred to Moosa Bros & Sons (Pty) Ltd v Rajah 1975 (4) SA 87 (D) for the approach that oral evidence should be allowed where there are reasonable grounds for doubting the correctness of allegations, and cited the discussion in Herbstein and Van Winsen, The Practice of the High Courts of South Africa (5th edition) Volume 1 regarding the wide ambit of discretion under Rule 6(5)(g).

The court held that it was not inclined to dismiss the counter-application merely because of the dispute of fact, viewing the dispute as genuine and material to multiple consequential issues, including whether a putative marriage existed, the first respondent’s bona fides, the position of the minor children, the division of the estate, and the expeditious administration of the intestate estate. The court considered that referring specified issues to oral evidence would be just and expeditious because the issues were “crisp” and relatively confined, and because a full referral to trial would introduce unnecessary delay and cost.

Although the court recorded that Strydom AJ had made an obiter remark confirming that, because the applicant and deceased were married in community of property, 50% of the estate to be distributed belonged to the applicant, it did not finally determine patrimonial consequences in this judgment. It noted, with reference to Zulu v Zulu and Others 2008 (4) SA 12 (D) (25 February 2008), the statement that where a joint estate exists between a spouse and a first wife, no new community of property can be created with a second wife. However, the court indicated an inclination to agree with MS v Executor, Estate Late NS and Others 2021 (6) SA 483 (FB), where the court did not follow Zulu and emphasised that it may be unjust to deprive a party in a putative marriage of a half share to which she would be entitled, and that this approach aligns with constitutional values. The court noted the relevance of section 39(2) of the Constitution, and it highlighted that the presence of minor children was a significant consideration because children born of a putative marriage are treated as children of married parents, with implications for intestate succession.

The court accordingly directed that oral evidence be heard to resolve the factual disputes concerning the first respondent’s knowledge and innocence and, only if a putative marriage were found, to address evidence of contributions and the appropriate determination of any share or percentage and against whose share any claim should lie. The court emphasised that the court hearing the oral evidence would decide the outcome of the counter-application and the patrimonial consequences.

5. Outcome and Relief

The court did not grant final declaratory or patrimonial relief on the papers. It ordered that the counter-application seeking to have the void marriage between the deceased and the first respondent declared a putative marriage be postponed to a date to be determined by the Registrar for the hearing of oral evidence in terms of Uniform Rule 6(5)(g).

The oral evidence was directed to address, first, whether the marriage between the deceased and the first respondent constituted a putative marriage. Only if it were declared putative, the hearing would then address the first respondent’s alleged direct and/or indirect contributions to the joint estate during the period 24 March 2017 to 18 March 2021, and the determination of the percentage/share to which the first respondent might be entitled and from whose share it should be claimed.

The court permitted oral evidence from any person who had deposed to an affidavit and allowed that the court hearing oral evidence could permit evidence from additional witnesses. The costs of the application were reserved for determination by the court that would hear the oral evidence and issue the final order.

Cases Cited

Zulu v Zulu and Others 2008 (4) SA 12 (D) (25 February 2008)

Ntsala v Rustenburg Local Municipality and Another (M124/20) [2021] ZANWHC 48 (20 April 2021)

Moosa Bros & Sons (Pty) Ltd v Rajah 1975 (4) SA 87 (D)

MS v Executor, Estate Late NS and Others 2021 (6) SA 483 (FB)

Legislation Cited

Constitution of the Republic of South Africa, 1996 (section 39(2))

Rules of Court Cited

Uniform Rules of Court (Rule 6(5)(g))

Held

The court held that the affidavits disclosed a material and bona fide dispute of fact regarding whether the first respondent knew of the impediment to her marriage to the deceased and whether she entered the marriage in good faith, which are central to determining whether the void marriage could be declared putative.

The court further held that the dispute could not be resolved fairly on the papers, particularly given the applicant’s late introduction of video material and translations to which the first respondent had not had a proper opportunity to respond, and that fairness considerations implicated the audi alteram partem principle.

Exercising its discretion under Uniform Rule 6(5)(g), the court held that the most appropriate course was to refer specified issues to the hearing of oral evidence, rather than dismissing the counter-application or referring the matter to trial, and reserved costs for the court hearing oral evidence.

LEGAL PRINCIPLES

A putative marriage may be recognised where a marriage is void due to an impediment, but one or both parties entered into it in good faith, being unaware of the defect rendering it void. The party asserting putative marriage bears the burden of proving ignorance of the impediment and a bona fide belief in the marriage’s validity, including continued ignorance such that, upon knowledge of the impediment, separation would have been required.

Where motion proceedings reveal a material dispute of fact that cannot properly be determined on affidavit, the court has a wide discretion under Uniform Rule 6(5)(g) to adopt a procedure that ensures a just and expeditious decision. This includes directing the hearing of oral evidence on specified issues as an alternative to dismissal or referral to trial, particularly where confined factual issues can be isolated and resolved without the delay and cost of a full trial.

In matters affecting family status and intestate succession, including where minor children are involved, the potential consequences of recognising a marriage as putative may be significant, and constitutional interpretive values (including those referenced via section 39(2) of the Constitution) may be relevant to the broader context in which common-law principles are applied, although final patrimonial consequences depend on factual determinations made after oral evidence.

Kgosi v Kgosi and Others (6134/2022) [2023] ZAGPPHC 715 (21 August 2023)