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 915
|
|
Manaka NO v Thebe and Others (53489/13) [2016] ZAGPPHC 915 (21 October 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
53489/13
21/10/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
MARGARET
MANAKA
N.O.
APPLICANT
and
RUTH
TSHAI
THEBE
1
ST
RESPONDENT
THE
MINISTER OF HOME
AFFAIRS
2
ND
RESPONDENT
THE
DIRECTOR GENERAL OF HOME AFFAIRS
3
RD
RESPONDENT
THE
MASTER OF THE HIGH COURT, PRETORIA
4
TH
RESPONDENT
JUDGMENT
SWARTZ
AJ
[1]
This is an application in terms of Rule 42(1)(a) of the Uniform Rules
of Court for the recession of a judgment erroneously granted
in the
absence of a party affected thereby. The Court ordered on 18 March
2014 that the second and third respondents register the
customary
marriage between the late Thabane Israel Ratsoma and the first
respondent in terms of section 4(a) of the Recognition
of Customary
Marriage Act 120 of 1998. The application is opposed.
[2]
The conclusion of the customary marriage between the first respondent
and the deceased is disputed by the late applicant, Modjadji
Mamma
Ratsoma. The applicant died on 28 October 2015 and is substituted by
Margaret Manaka in her capacity as duly appointed Executrix
of the
Estate late Modjadji Mamma Ratsoma. It was submitted on behalf of the
applicant that the late applicant as mother of the
deceased and
de
facto
matriarch of the Ratsoma family had a direct and
substantial interest in the matter. If Mothle J who granted the order
on 18 March
2014 had been aware that the customary marriage was
disputed by the deceased's family, he would not have granted the
order.
[3]
The first respondent and the late Thabane Israel Ratsoma had lived
together as husband and wife since December 2008. Their marriage
was
never registered by the second respondent. On 11 September 2013 the
first respondent (then applicant) approached the Court
with an
application to have the customary marriage entered into between the
first respondent and the late Thabane Israel Ratsoma
registered by
the Department of Home Affairs posthumously. The Court then ordered
that the fist respondent should cause her application
to be served on
the mother of the deceased and two other individuals, namely H. L.
Peta and P. R. Phasha. This was duly done and
on 15 October 2013 the
late applicant served on the first respondent an application to
intervene. Subsequent thereto the late applicant
apparently did
nothing to take the application to intervene any further. On 20
January 2014 the matter was again placed on the
roll for hearing on
28 February 2014. The late applicant was cited as the first
intervening party. The Court ordered that the respondent
should cause
the notice of set down to be served on the Minister of Home Affairs
and on the Director General of the Department
of Home Affairs. This
was done and on 28 February 2014 the Notice of Set Down was served on
the Minister of Home Affairs and on
the Director General of the
Department of Home Affairs. The late applicant was not cited as an
intervening party, nor was the notice
served on her. The order
granting the first respondent's application was given in the absence
of the late applicant, who was again
not cited. It was argued on
behalf of the first respondent that the late applicant as Intervening
Party was for all intent purposes
not a party to the proceedings. She
failed to file an opposing affidavit as an intervening party. She was
therefore not properly
before the Court. It was argued that the late
applicant was at all times legally represented and, the only logical
conclusion,
was that she was no longer interested in pursuing her
application to intervene. I am not persuaded by this argument. In an
affidavit
of the late applicant dated February 2014, she stated as
follows:
"I
was served with Court papers of this honourable Court at my home...
even though I am not cited as
a
party in these proceedings ...
There
was never
a
marriage which was concluded between my late son
and the Applicant. ..
I
submit that it be in the best interest of justice that I be allowed
to intervene in this matter as I have
a
direct and substantial
interest in this matter ...
Wherefore
I pray for the granting of leave to intervene".
[4]
The first respondent submits that there was never malice intended on
the part of the respondent in not serving the applicant
and/or her
attorney of record. It is common cause that the notice was not served
on the applicant or her attorney. They were not
cited as intervening
parties when the matter came before Mothle J on 18 March 2014. It is
abundantly clear that the existence of
a customary marriage between
the deceased, the late applicant's son, and the first respondent was
heavily disputed. This was probably
not brought to the attention of
the Judge when the order was granted in the absence of the
intervening party who had a direct and
substantial interest in the
matter.
[5]
Rule 42(1)(a) of the Uniform Rules of Court affords the Court a
discretion to rescind an order erroneously granted in the absence
of
any party affected thereby. It is clear that the order was
erroneously granted. Had the Court been aware of the factual dispute
of the existence of the customary marriage, the Judge would probably
not have granted the order in the absence of the intervening
party.
See
Naidoo and Another v
Matlala NO and Others
[1]
where the Court held that:
"In
general terms, a judgment is erroneously granted if there existed at
the time of its issue a fact of which the judge was
unaware, which
would have precluded the granting of the judgment and which would
have induced the judge, if aware of it, not to
grant the judgment -
see
Nyingwa v Moolman NO
1993 (2) SA 508
(Tk GD)
at 510D-G;
Herbstein & Van Winsen Vol 1
931. It follows
that if material facts are not disclosed in an ex
parte
application - see
Schlesinger v Schlesinger
1979
(4) SA 342
(W)
at 348C-349E;
National Director of Public
Prosecutions v Basson
2001 (2) SACR 712
(SCA)
para 21;
United Diamond Watch
&
Diamond Co
(Pty) Ltd and Others v Disa Hotels Ltd and Another
1972
(4) SA 410
(C)
at 414F- 415C - or if a fraud is committed (i.e.
the facts are deliberately misrepresented to the court) the order
will be erroneously
granted. It has been held that an order granted
in an application brought
ex parte
without notice to a party
who has a direct and substantial interest in the matter is an order
erroneously granted - see
Clegg v Priestly
1985
(3)
SA 950
(W)
at 9531-9541.".
[6]
In the result the following order is made;
6.1. The order of 18 March 2014,
ordering the second respondent to register the customary marriage
between the first respondent
and the late Thabane Israel Ratsoma, is
rescinded.
6.2. The first respondent is ordered
to pay the costs on a party and party scale.
______________________
E.
SWARTZ
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the Applicant:
C. Joubert
Instructed
by:
NGOATO ATTORNEYS
Counsel
for the 1
st
Respondent:
B. F. Gededger
Instructed
by:
MAVHUNGU MASIBIGIRI INC
Counsel
for the 2
nd
& 3
rd
Respondent:
T. Ramahlaha
Instructed
by:
C. B. RIHLAMPFU ATTORNEYs
Date
of hearing:
17 October 2016
Date
of Judgment:
21 October 2016
[1]
Naidoo and Another v Matlala NO and Others (67502/2010) [2011]
ZAGPPHC 165;
2012 (1) SA 143
(GNP) (20 September 2011)