About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 1239
|
|
Sibeko v Minister of Home Affairs and Others (59025/2011) [2016] ZAGPPHC 1239 (19 October 2016)
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 59025 / 2011
DATE
OF HEARING: 15 OCTOBER 2016
DATE
OF JUDGMENT: 19 OCTOBER 2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
ZANELE
SIBEKO
Applicant
and
THE
MINISTER OF HOME
AFFAIRS
First
Respondent
THE
REGISTERING OFFICER: HOME AFFAIRS
JHB
Second
Respondent
NKULULEKO
QAMBA
Nominee
Executor in the estate late Mabaso
THE
MASTER OF THE HIGH COURT
JHB
Fourth
Respondent
JUDGMENT
AVVAKOUMIDES,
AJ
INTRODUCTION
[1]
This is an
application by the third respondent for the dismissal of the
application brought by the applicant in the main application.
The
applicant brought an application where she moved for an order:
[a]
that it be declared that she is the lawful customary wife of the
later Mr Joshua Mabaso;
[b]
directing that the second respondent register such customary
marriage;
[c]
that the third respondent be interdicted to administering or dealing
with the with the distribution of the assets of the deceased
estate;
[d]
that the forth respondent be directed to appoint the applicant as
executrix in the said deceased estate;
[e]
that anyone opposing the application be ordered to pay the costs of
the application.
[2]
There were several
delays in prosecuting the main application leading up to this
application wherein the third respondent has moved
for an order
dismissing the main application with costs.
BACKGROUND
[3]
The main
application was launched on 13 October 2011. The third respondent
filed his notice of his intention to oppose on 31 October
2011
followed by his answering affidavit on 25 November 2011.
[4]
In dealing with
the allegations contained in the founding affidavit,
inter
alia,
the denial of
the customary marriage, several points
in
limine
were raised,
more importantly the non- compliance with the provisions of
section 4
of the
Recognition of Customary Marriages Act 120 of 1998
.
[5]
The application to
dismiss the main application was set down several times and each time
removed to accommodate the applicant in
one or other manner,
including joining additional respondents. No joinder application
ensued. Over the period 2011 to 2012 there
were several letters
written to and fro.
[6]
The third
respondent submitted that the main application was ripe for hearing
since 2012 but the applicant has failed to take any
steps to
prosecute the application.
[7]
The third
respondent was however entitled to set the main application down for
hearing provided that the requirements of the practice
directive had
been adhered to.
[8]
The third
respondent did not make any submissions in this regard and I accept
that the third respondent may have contributed to
the delay by not
setting the main application down for hearing.
[9]
The applicant is
alleged to have indicated in terms of
rule 6
that certain disputes in
the main application were referred to oral evidence. The third
respondent submitted that the applicant
herself was entitled to do so
in terms of provisions of
rule 6.
I can find no such provisions in
rule 6
save that the court may, on hearing disputes of fact, refer
such disputes to oral evidence.
[10]
Be this as it may, it is common cause on the papers and between
counsel appearing for the parties, that the applicant has still
not
approached the registering officer with the request to register the
marriage. This, the third respondent submitted, vitiates
any
application to court. I am inclined to agree.
[11]
I am of the view that the applicant must first have approached the
registering officer and if such officer refuses to register
the
marriage the applicant could then approach the court. This is in
respect of the main application.
[12]
Turning to the application before me the requirements for dismissing
court proceedings for want of prosecution thereof were
canvassed in
Cassimjee v Minister
of Finance
2014 (3)
SA 198
(SCA) wherein such requirements were identified as follows:
[12.1]
there must be a lengthy delay;
[12.2]
the delay must be inexcusable;
[12.3]
there must be serious prejudice to the other party.
[13]
The applicant has not, in my view, set out any circumstances to
justify the lengthy delay or to show that there is some excuse
for
the delay. Instead she embarked on criticism of the third respondent
who has disputed the validity of the customary marriage.
[14]
Moreover, the fact that the registering officer has not been
approached is fatal to the main application. Previous cost orders
against the applicant arising from postponements have not been paid.
[15]
There can be no doubt that the deceased estate has been prejudiced by
the long delay. In turn the beneficiaries of the late
Mabaso are also
being prejudiced. The fate that befalls the main application does not
culminate in the doors of the court being
closed on her.
[16]
The applicant is entitled to approach the registering officer to
register the customary marriage. If the marriage is so registered,
the third respondent is obliged to take cognisance thereof and that
is the end of the matter.
[17]
If the registering officer declines to register the marriage, such
decision may be taken on review on grounds that may be shown.
The
applicant my then be guided by her legal team to take cognisance of
the allegations contained in the answering affidavit to
the main
application and to deal with the obvious disputes contained therein.
Under the circumstances, I am inclined to grant the
order sought by
the third respondent to dismiss the main application. I have
exercised my discretion under the prevailing circumstances
and
refrain from making any cost order. I make the following order.
[17.1]
The main application is dismissed.
______________________
G.
T. AVVAKOUMIDES
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
DATE:
19 OCTOBER 2016
Representation
for Applicant:
Counsel:
S. Kanyangarara
Instructed
by:
Kekana Attorneys
Representation
for the Third Respondent:
Counsel:
MSkhosana
Instructed
by:
Malebye Motaung Mtembu