About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2019
>>
[2019] ZALMPPHC 54
|
|
Lebese v Lebese and Others (HCAA14/18) [2019] ZALMPPHC 54 (29 October 2019)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NUMBER: HCAA14/18
In
the matter between:
NKHANGWENI
GLADYS LEBESE
APPLICANT
And
-
SHILAVI
MICHAEL LEBESE & 02 OTHERS
RESPONDENT
JUDGEMENT
CORAM:
MG PHATUDI J (KGANYAGO J et MADAVHA AJ)
[1]
This appeal is directed against a judgment of Semenya J sitting as a
court of first instance, Limpopo Local
Division, Thohoyandou, in
terms of which the learned Judge dismissed the appellant’s
application to declare the marriage
between the first and second
Respondents null and void and furthermore dismissing with costs
(03.05.2016 and 05.09.2017) application
for the expunging of the
record of the marriage between them from the official records of the
third Respondent, I deem it convenient
to refer to the parties as
cited in below the leave to appeal was at the instance of the
court
a quo.
[2]
On or about 19 March 1983, the appellant and the First respondent
allegedly entered into a civil marriage
the existence of which was
evinced into a civil marriage the existence of which was evinced by a
document annexed to her founding
affidavit (FA”) marked
“NGL”
[1]
I
shall revert later in this judgment to deal with the evidential
states and authenticity of this document which is the hard core
of
the subject matter in this appeal.
[3]
It appears that prior to their civil marriage referred to the parties
were previously partners in a
customary marriage out of which union
two (2) children were born, and having deserted the parties common
home three (3) more children
were allegedly born during the substance
of the parties’ civil marriage all of whom assumed the first
respondent’s
surname.
[4]
According to the appellant she was expelled by the first respondent
from their common home in 1991 in
what appears constructive
desertion. The demand by the first respondent to have
restoration of “Lumelo” (bride
price in Tshivenda) or
“Lobola” was indicative of alleged expulsion. While
in Limbo
having deserted the common home, she heard through
the
grapevine
that her husband, (first respondent) was
cohabiting with another woman, the second respondent, but did not
bear personal knowledge
if they formally got married to each other or
not.
[5]
In order to ascertain legal status between the first respondent and
herself, the appellant on or about
08 June 2015 approached the local
mobile office located at Ha-Mulima Traditional Council to obtain a
printout copy of the parties’
marriage certificate, but was
however informed by one of the officials that her husband, first
respondent, had already concluded
a civil marriage with the Second
respondent, subsequent thereto she approached Makhado’s Home
Affairs department office to
apply for a printout copy of her
marriage certificate and upon uplifting the same, she
consulted her attorneys of record
Mr S.O Ravele (“Ravele”)
for legal counsel.
It
was against the foregoing backdrop that the applicant launched the
application in the court below which was opposed by both the
first
and second respondent. The Third respondent chose to abide the
Court decision.
IN THE
COURT A
QUO
:
[6]
In the court below it was submitted on behalf of the appellant that
there exists a civil marriage between
herself and the first
respondent which marriage was solemnized on 19 March 1983, upon which
their earlier customary marriage dissolved.
[7]
The first respondent, conversely, denied ever entering into a civil
marriage with the appellant as alleged
or at all and, furthermore,
disavowed the validity or existence of the produced marriage
certificate as between them. (annexure
“NGL”) as
being fraudulently obtained.
[8]
The first respondent, in particular raised in its answering affidavit
(“AA”) the point that
their existed material disputes of
fact that could not be adjudicated on paper (on affidavit) which the
appellant should have foreseen
could arise. The disputes in the
main, related to the parties alleged civil marriage and that the
three (3) children who
were procreated while they were estranged from
each other, where not his children. What however, remain common
cause facts
ultimately was that the parties had separated from each
other extra-judicially during 1991.
[9]
It is further common cause as the first respondent conceded in his
“AA” in paragraph 9
[2]
that he married the second respondent by civil rights during the year
2000.
(I
must point out that annexure “NGL
2)
relied on his “AA” is badly illegible with no date
visible.)
[10]
Furthermore, it was submitted on behalf of the first responded that
as a signification of the breakdown of their
marriage relationship
that in any event, the lobola he had paid in respect of the appellant
was returned to her family. It
was for that reason that he
proceeded to marry civilly, the second responded.
Of
significance was an extract in paragraph 10 of his answering
affidavit that: -
“
It is not in dispute that
lobola in full has been returned. From the date which lobola
was returned our customary marriage
came to an end. I did not
have to institute divorce proceedings. The traditional council
declared our marriage to be
dissolved.”
Furthermore, the first respondent
submitted and paragraph 15 that:
“
I admit that civil
marriage is monogamous. I entered into the marriage with the
second respondent while I divorced the applicant
and the
circumstances under which we divorced are set out above”
(Para:10).
[11] I
shall revert to the implications of these submissions when I evaluate
the evidence as it appears on record.
[12] In
reply to these submissions, the applicant reiterated that validity of
her civil rights matrimony to first respondent.
In support
thereto she annexed “NGL
2
” being an extract
copy of her identity document issued to her by the then independent
Republic of Venda Government purporting
to record her date of
marriage on 19 March 1983. This document appears to be issued
during 1983 by Department of Home Affairs,
District Representative,
Mulima. I shall deal with the legal status of this annexure
shortly hereunder.
[13] The
applicant furthermore submitted that to her knowledge, their marriage
bonds and to the present juncture not
been dissolved by a decree of
divorce by competent court of law, and consequently, the Second
respondent could not have validly
entered into another civil
marriage, retorted the Applicant that such subsequent marriage is a
nullity from origin.
[14]
From the foregoing submissions and the extent to which the parties
provided varied documentary evidence indicated
above, it follows that
the learned Judge was faced with two mutually destructive versions.
I found herself constrained in
this situation, the court below in an
abridged judgment delivered on 06 May 2016 Semenya AJ (As she then
was) held:
“
It
is evident that there is a dispute of fact between applicant and 1
st
respondent with regard to the validity of the alleged civil marriage
and marriage certificate attached to the founding affidavit.
“
In
the premise I make the following order:
1.
An
authorised and relevant official of 3
rd
respondent is ordered to appear in court on a date to be determined
by the Registrar to come and give oral evidence on the following
aspects:
1.1
The
validity of any of the two marriage certificates
1.2
The
absence of the identity number of 1
st
respondent on the Marriage certificate that purports to prove
marriage between applicant and 1
St
respondent,
1.3
The
relevancy of the date of issue of the certificate referred to in 1.2
above”
[15]
From a closer reading of the record it seems plain that neither
counsel for either side ever sought to have an
official from the
Third respondent to be called as a witness for the court in the event
the learned Judge found that there existed
disputes of fact as she
had specified. From the record, no doubt, none of the parties
applied for the calling of such a witness.
As a general rule,
in civil cases, the court has no power to call a witness without
express consent of the parties. The issue
must have been
sufficiently canvassed with counsel before doing so, to gauge their
views or objections, if any.
This
was not done by the learned Judge, which was as counsel for the
Appellant submitted, an irregularity. I agree entirely
with
this submission. The reasons will become more apparent in the
course of this Judgment.
JUDGMENT IN
THE COURT BELOW:
[16] The
court a quo
after having heard the testimony of the witness
she
meru muto
called from the office of the third respondent
remarked in her judgment [paragraph 15] that: -
“
[15]
In view of the existence of the two marriage certificates, the court
ordered that an official of the third
respondent should be summoned
to come and explain the absence of the first respondent’s
identity number on “NGL”.
I need to state
that it appeared that the official came to court ill-prepared in that
she conceded that she did not have insight
into registers to
determine whether “NLG1” exists or not”.
[17]
Notwithstanding the sentiments the learned Judge expressed in
paragraph 16 above, she nonetheless proceeded to
hold in paragraph
[19] that: -
“
[19] The production of a
marriage certificate print-out by the applicant tends to provide
evidence that a marriage ceremony between
her and the first
respondent was performed. The applicant’s contention that
the first respondent bears the onus to
prove that the marriage is
invalid, is correct.”
[18]
Flowing from this factual finding one remain perplexed as to how the
at the end the Learned Judge without any sound
basis dismissed the
application as it did.
My
view find refuge in the fact that the court below erroneously based
its findings or conclusion upon a statutory rebuttable presumption
of
law created in terms of
section 237
(1) of the
Criminal Procedure
Act, 1977
, as amended.
[3]
Which
in my view, finds no application in civil proceedings. In
casu
the
matter had no connection with any criminal proceedings for the court
to have held that; -
“
the
presumption is therefore applicable in both criminal and civil
matters”.
[4]
Moreover, there was no factual basis for the learned Judge to have
found in [22] that:
“
[22]
The only logical inference that can be drawn from the evidence of
applicant, together with her conduct, is
that there was no record of
her civil marriage with the first respondent in the records of the
third respondent as at 8 September
2015.”
[19] The
“logical inference” the learned Judge referred to is,
with respect, not supported by the objective
facts.
If
the
court
a quo
had indeed taken into account, the appellants’ replying
affidavit in its judgment it should have been impelled to recognise
an extract of her identity document issued around 1988
prima
facie
indicating
19 March 1983 as date of her civil marriage.
Nowhere
in the judgment of the
court
a quo
is there a glimpse that the learned Judge made an attempt to have had
regard to the evidential value of this document and what
it purports
to convey failure to have done so was a misdirection.
THE LEGAL
ISSUES IN THE COURT
[20] The
appellant raised the following issues for determination on appeal.
20.1 Whether
or not there existed a valid civil marriage between the Appellant and
the first respondents;
20.2 Whether
the
court a quo
had adopted the proper approach when it
mero
muto
called a witness without request of counsel;
20.3 Whether
the court a quo had adopted the proper approach when faced with two
diametrically opposed destructive versions;
and
20.4 Whether
the court
a quo
was correct in having found the existence of
fraud absent objective evidence in support of that adverse finding.
[21]
I now shall proceed to examine each submission seriatim follows:
Whether or not
there existed a valid civil marriage between the appellant and first
respondent.
21.1 In
support of her claim to be lawfully married to her estranged husband,
the appellant submitted in evidence annexure
“NGL”
purporting to be an extract of her marriage certificate.
This
document was
ex
facie
issued
on 18 June 2015 by the officials of the District Manager Makhado
under the aegis of the third respondent.
The
appellant moreover also annexed “NGL” to her replying
affidavit to enhance the evidential value of the documents
evincing
her marital status.
21.2 The
general rule is that a party who tenders a document must ordinary
adduce evidence to satisfy the court of its authenticity.
This
will, by and large, mean proving that the document was written,
extended or made by the person who purported to have done
so by way
of
viva
voce
evidence.
However, to this rule there are exceptions as there are in law
certain documents that are admissible on their mere
production
without proof of their authenticity, for instance copies of public
documents signed by the officer in whose custody
the original is
entrusted
[5]
.
21.3 Section
of Act 45 of 1988
[6]
has
revolutionised our law of evidence regarding the rule against the
hearsay. This section rids our law of the rigid
rule-and-exception approach that created problematic implements at
common law. The section bestows on the courts the power
to
admit hearsay evidence. In
McDonald
Corporation v
Joburgers Drive I Inn (Pty) Ltd & Another
[7]
it
was held that the decision of the court on the admissibility of
evidence is generally one of law as opposed to one of discretion.
In consequence, the
learned Judge was obliged to have a decision to admit in evidence
under section 3 of the said Act, the extract
of both the appellant’s
marriage certificate and copy of her identity document that recorded
the date of her marriage the
more so that further evidence in this
regard was adduced in her replying affidavit. This evidence was
as the appellant Counsel
correctly submitted, not accounted for by
the
court a quo
.
2.4
For all these considerations the court
a quo
with respects
should have found that there existed a valid civil marriage between
the appellant and the first respondent.
This
is particularly so in that there is no cogent evidence adduced that
disproved on a balance of probabilities the existence of
such a civil
marriage, alternatively that such a marriage was dissolved by a
decree of divorce.
2.5 Absent any
credible evidence to the contrary, there was no sound legal basis for
the court below to have found that annexure
“NGL”
(Extract of marriage certificate) was fraudulently obtained.
What the first respondent had illustrated
conversely by annexing
“NGL
2
” to his answering affidavit (paginated
page 20) at best was to show that his marriage “to the second
respondent was
concluded on or about 2000 (date/month and legible)
being way after his civil marriage to the appellant on 19 March 1983,
roughly
17 years after. In the premises I am of the view that
counsel for the appellant is perfectly correct in his submission that
the civil marriage between the appellant and the first respondent is
extant and therefore remain valid.
Whether
the court a quo had adopted a proper approach when it
mero
muto
called a witness without counsel’s consent.
[21] Counsel
for the appellant correctly submitted in my view, that it was an
irregularity for the learned Judge to have
singularly invited an
independent witness from the department of the third respondent to
testify when none of the parties sought
to do so.
As
already shown in paragraph [15] supra, the decision by the court a
quo to have called a witness
mero
muto
in motion or in civil proceedings was irregular.
[22] in
Rowe
v Assistant Magistrate
[8]
,
Pretoria the court held;-
“
In a civil
action the parties lay before the court what evidence they think is
necessary to support their respective cases, and
if, on determining
the case, a magistrate or Judge is unable on the evidence before him
to come to a decision, or finds it difficult
to decide where the
truth lies, I do not think of calling a witness who had not been
called by either of the parties in order to
make his task easier, or
in his views, to do justice between the parties,”
In
casu
, the
learned Judge clearly went against this well-established hallowed
principle of adjective law, and thus her decision was an
irregularity.
[23] The
foregoing observation was reaffirmed by the Supreme Court of Appeal
in the case of
City of Johannesburg Metropolitan Council v Ngobeni
where Mhlantla JA writing for the full bench stated at paragraph
[39] as follows:
“
In my view,
the manner in which the witness, Maseko, was called inappropriate.
The Judge did not explain the purpose of calling
this witness….
The trial Judge erred when he rejected the objections of the
defendant’s counsel to his calling Maseko.
In my view, the
calling of this witness was an irregularity. His evidence is
accordingly inadmissible.”
Whether the Court
a quo had adopted the proper approach when faced with two mutually
destructive versions:
[24] It
is common cause that the
court a quo
found itself faced with
two diametrically opposed versions at the hearing of the application
proceedings brought by the appellant.
As it were, the court below
found that it could properly decide the matter on papers which where
of course fraught with material
disputes of fact. That said, it seems
to me that the proper procedure open was for the learned Judge to
have decided in terms of
rule 6(5)(g) of the Uniform Rules of Court
either to have dismissed the application or direct, if called upon to
do so, that oral
evidence be heard on specified issues with a view to
resolving the dispute of fact, or it could have referred the matter
to trial
with appropriate directions as to pleadings or definition of
issues, as the case may be.
[25] On
a semblance of the facts in this instance, it follows that the court
below was faced with two mutually destructive
versions.
The principle in
instances such as these is that if neither party asks that the matter
be referred for evidence or trail, the court
will usually not do so
on own accord.
[26]
Because the First Respondent disputed the validity of his marriage to
the Appellant, it was he who carried the
burden to rebut the
presumption of its validity on a preponderance of probabilities. In
casu
, the court
a quo
held that “the applicant’s
contention that the first respondent bears the onus to prove that the
marriage is invalid,
is correct.” (Paragraph 19).
It is quite
intriguing that by the same token, the learned Judge found in
paragraph [25] that the First Respondent has discharged
the onus that
rests on him to prove the presumption of the validity of his marriage
to the appellant. This conclusion is my view,
paradoxical.
[27]
Where therefore there are two conflicting versions, before the onus
is discharged, the court must be satisfied
that the story of the
litigant upon whom he onus rests is true and the other false. It must
accordingly be clear to the court of
first instance that the version
of the litigant upon whom the onus rests is true version. In the
instant case, the court below
did not have the benefit to receive any
credible evidence to support the First Respondent’s allegations
denying his marriage
to the appellant in which case the onus of
rebutted was thrust on him. The
court
a quo
therefore did not follows the principles laid down by Eksteen JP in
National
Employer’s General
[9]
v Jagers
where
the learned Judge outlined the question of onus and the probabilities
of the case to rebut the presumption of the validity
of the marriage.
Whether the court
a quo was correct in having found the existence of alleged fraud of
the parties ‘marriage:
[28]
Counsel for the appellant submitted further that court below erred in
having made a finding that annexure “NHL1”
being a copy
of the marriage certificate between the appellant and the first
respondent was fraudulent, and therefore invalid.
I subscribe to this
submission. Nowhere is it apparent from the record of the proceedings
in the court below that the learned Judge
ever had the benefit hear
any evidence in this regard, in particular, that the parties’
marriage certificate was fraudulently
obtained.
The official who was
called by the court preferred a plausible explanation than the
records of the former Venda Government were
transferred to various
offices of the present day department of Home Affairs whose public
documents are these days electronically
generated one can therefore,
imagine that previously no technology was in place to preserve public
documents.
[29] It
is trite law that a Motion court should be loath to pronounce on
dispute issues of fraud “without the
benefits inherent in the
hearing of oral evidence, including discovery of documents,
cross-examination of witnesses, and so forth.”
Held Brand
JA
[10]
.
They are in my sound
reasons why a motion court ought not to make findings of fraud on the
basis of untested allegations on
motion on papers
that were refuted on grounds that would not be described as
far-fetched or untenable. The reasons indeed derive
from many years
of collective judicial experience and legal footprint left on the
annals of legal history.
See
also
Sewmungal
and Another N.N.O v Regent Cinema
[11]
where the court aptly dealt with the approach to be adopted when
confronted with factual disputes arising from affidavit alleging
fraud.
[30] In
the premise I hold therefore that the court below misdirected itself
when it found that the “evidence
proves on a balance of
probabilities that “NGL” is a fraudulent certificate, and
is therefore invalid.” No evidence
was adduced to bring to bear
the finding of fraud in motion proceedings now appealed against. The
first respondent, it appears
from the record, failed to discharge the
onus cast upon him to allege and show that not only was appellant’s
marriage certificate
fraudulent, but that even her identity document
was similarly issued fraudulently.
[31] On
a compendium of the facts in this matter, the appeal should succeed
on the merits. In consequence If I may,
I propose an order as
follows;
ORDER:
The appeal is upheld
to the extent that:
(a)
The
decision of the
court
aquo
in
refusing to declare the
marriage between the
first and second respondents null and void is set aside and it is
substituted with the following order;
(b)
“
The
civil marriage entered between the first and second
respondents on 01
November 2000 is declared null and void as ab initio;
(c)
“
The
third respondent is ordered to expunge from its
Register of
marriages, the record of civil marriage between the first and second
respondents.
(d)
The
costs order made for 03.05.2016 and 05.09.2017
respectively
are set aside.
(e)
Each
party to pay its own costs.
M.G Phatudi
Judge of the High
Court
Limpopo Division
Polokwane
I agree
Judge of the High
Court
Limpopo Division
Polokwane
And it is so ordered
Judge of the High
Court
Limpopo Division
Polokwane
Representations:
1.
Attorneys
for the Appellant : Mr S.O Ravele
Instructed
by
: S.O Ravel Attorneys
2.
No
appearance
: First, Second,
Third Respondents
3.
Date
heard
: 02 August 2019
4.
Date
delivered
: 29
October 2019
[1]
Record, ap11
[2]
Ibid p15 “AA” Record.
[3]
Act 51 of 1977, as amended
[4]
Ibid, P70, Record
[5]
D.T Zeffertt, A.Paizes –
“Essential Evidence” (2010) 2019 reprinted edition.
P265-266.
See
also,
Section 231
of the
Criminal Procedure Act, 1977
.
[6]
The law of evidence
amendment Act, 1988
[7]
1997 (1) SA 1 (A)
[8]
1925 TPD 61
at 369
[9]
1984 (4) SA 437
(E) at 440D
[10]
See, Prinsloo N.O and Others v Golddex (Pty) Ltd
243/2011)[2012] ZASCA
28 (28.03.2012
[11]
1977 (1) SA 814
(N) at 819 A-C