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2021
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[2021] ZAGPPHC 405
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N[....] v P[....] and Others (871/ 2020) [2021] ZAGPPHC 405 (17 May 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number:
871/ 2020
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
DATE:
17-05-2021
In
the matter between:
J KE.D
N[…]
APPLICANT
and
M
B
P[…]
FIRST RESPONDENT
GOVERNMENT
EMPLOYEE PENSION FUND
SECOND RESPONDENT
DEPARTMENT
GOVERNMENT
PENSION
ADMINISTRATION
THIRD RESPONDENT
JUDGMENT
KUBUSHI
J,
This judgement is
handed down electronically by circulating to the parties’
representatives by email and by uploading on Caselines
[1]
The purpose of this application is to reviewed and set aside the
decision of the second and third
respondent to apportion the pension
benefits that accrued to the deceased, D J N[…], between the
applicant and the first
respondent. The applicant is further seeking
a declaratory order that the first respondent was not customarily
married to the deceased
and that any purported marriage between the
deceased and the first respondent be declared null and void.
[2]
The first respondent is opposing the application insisting that she
was married to
the deceased by custom.
[3]
The parties have in a joint practice note conceded that there is a
material dispute
of fact as regards the existence of the customary
marriage between the deceased and the first respondent that
cannot be resolved
on the papers as they stand. The parties are of
the view that the issue should be dealt thro ugh oral evidence.
[4]
This court has directed that the application be determined on the
papers filed on Caselines without oral hearing
as provided for in
this Division’s Consolidated Directives re Court Operations
during the National State of Disaster issued
by the Judge President
on 18 September 2020.
[5]
The guiding
principles,
as regards disputes of
fact.
are set out in
the
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd case,
[1]
as follows:
“
Where
a dispute of fact is shown to exist, the court has a discretion as to
the future course of the proceeding. If the dispute
of fact cannot
property be determined by
viva
voce
evidence under Rule 9 the parties may be sent to trial in the
ordinary way (either on the affidavits as constituting the pleadings,
or else with a direction that pleadings be filed); otherwise the
application maybe dismissed with costs.”
[6]
As already conceded, there is a material dispute of fact which cannot
be resolved
on the papers as they stand. In the exercise of my
discretion I do not think that the issues pertaining to the dispute
of fact
can be resolved by
viva voce
evidence but must be
referred to trial.
[7]
The issue of whether the first respondent was a customary marriage
spouse
to the applicant’s deceased husband, and thereby
entitled to share in his pension benefits, requires determination at
the
trial.
[8]
I, therefore, make the following order:
1.
The application is referred to trial.
2.
The issue to be determined at trial is whether the first respondent
was a customary marriage spouse to the applicant’s deceased
husband, D J N[…], and thereby entitled to share in his
pension benefits.
3.
The pleadings filed on record are to serve as the pleadings
at the
trial and the parties are given leave to file any pleadings which may
be considered as necessary to take the process to
the conclusion of
the trial.
4.
Costs are reserved for determination at the trial.
E.M KUBUSHI
JUDGE OF THE HIGH
COURT GAUTENG DIVISION, PRETORIA
Appearance:
Applicant’s
Counsel
: Adv. Lungile Tyatya
Applicant's
Attorneys
: Masike Inc Attorneys
First
to Fourth Respondent’s Counsel :
Charles Mnisi
First
to Fourth Respondents
: Tladi L.B Attorneys
Date
of hearing
: 20 April 2021
Date
of judgment
: 17 May 2021
[1]
1949 (3) SA 1155
(T).