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[2013] ZAGPPHC 442
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Molefe NO v Director General Home Affairs and Others (46248/12) [2013] ZAGPPHC 442 (8 November 2013)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NUMBER: 46248/12
DATE:
8 NOVEMBER 2013
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
EVA
MANGETANE MOLEFE NO
……………………………………..
APPLICANT
And
DIRECTOR
GENERAL HOME AFFAIRS
……………………
FIRST
RESPONDENT
JOSEPHINA
N DIPEE
……………………………………….
SECOND
RESPONDENT
MASTER
OF THE HIGH COURT (POLOKWANE)
)……………
THIRD
RESPONDENT
JUDGMENT
TLHAPI
J
[1]
This is an application which seeks the following orders:
“
1.
That the registration of the customary marriage between the deceased,
namely LETLADI OPPIE PHAAHLE and the second respondent
herein by the
first respondent be declared
ultra
vires
;
That
the first respondent be ordered to de-register the registration of a
customary marriage entered into between the late LETLADI
OPPIE
PHAAHLE and the second respondent;”
The
application was opposed by the second respondent and, the first and
third respondents were duly served on the 22 and 27 August
2012
respectively.
[2]
At commencement of the proceedings I requested both counsel to
address me on whether the application was a review application
or not
and why rule 53 of the Rules of Court had not been observed by the
applicant. The view held by counsel for the applicant
then was that
Rule 53 was not applicable while counsel for the second respondent
argued that the review had to be adjudicated in
terms of the
Promotion of Administrative Justice Act 3 of 2000
. I had also asked
counsel to comment on the document annexed to the papers as a Last
Will and Testament in that although it bore
the purported signatures
of the testator it was not attested to in terms of the Wills Act
neither was there any semblance of it
having being registered and
accepted by the third respondent. Realizing the unpreparedness of
both counsel on the subject I requested
supplementary heads of
argument to be handed in, more so because we had to deal with the
alleged
ultra
vires
administrative conduct on the part of the first respondent.
BACKGROUND
[3]
The applicant and the late Letladi Oppie Phaahle (‘deceased’)
were brother and sister. In terms of the Last Will
and Testament of
the deceased, the applicant was declared sole heir. Although ABSA
Trust Limited was the nominated Executor, the
applicant was
subsequently appointed Executrix. Mention of the following incidents
is necessary:
1.
A few months before his death, in September or November of 2007 the
deceased commenced negotiations between his family and
that of the
second respondent to enter into a customary marriage. At the time
the second respondent was pregnant with child.
2.
The
were disputes of fact on the papers whether the customary marriage
was concluded before death or not. The applicant maintained
that
there was no official handing over therefore no marriage was
concluded. The second respondent maintained that a customary
marriage
had been concluded before death.
3.
The applicant and second respondent and their families participated
in ‘marriage’ celebrations a few months after
the burial
of the deceased. t is the purpose, significance and consequences of
such celebrations that may have relevance in determining
the
existence of a customary marriage.
4.
Subsequent
to these celebrations the second respondent caused the customary
marriage to be registered. According to the applicant
the second
respondent caused an application for registration of the customary
marriage to be lodged on 14 December 2009 outside
of the cut off
date of 1 November 2009 as determined in the Government Gazette No.
31735 published on 24 December 2008. The applicant
averred that the
purpose of this application was to set aside the marriage so
registered in order to give effect to the deceased’s
Last Will
and Testament.
5.
After exchange of correspondence between the attorneys for the
applicant and the first respondent, the latter while acknowledging
that registration occurred outside of the cut-off date explained that
in its investigations it had found no corruption in the registration
of the marriage.
6.
The
second respondent annexed to her papers copies of documents emanating
from the office of the first respondent dated 12 February
2008,
acknowledging receipt of an application for the registration of a
Customary marriage. She averred that after receiving no
response to
her first application she was advised to lodge a second application
and a second acknowledgement of receipt of an application
dated 14
December 2009 was received by her.
THE
LAW
[4]
Mr Komape for the applicant correctly submitted that Section 4(7) of
the Recognition of Customary Marriages Act, Act 120 of
1998 (‘the
Marriage Act’) entitled a court to order registration or
cancellation or rectification ‘of any registration
of the
customary marriage effected by a registering officer.’ In my
view the operative words in that section were that such
order could
only be granted ‘
upon
investigation
instituted
by that court’
(my emphasis).
Mr
Komape while submitting that applications for review under the new
constitutional dispensation had to be dealt with in terms
of PAJA,
argued that this was not an instance where it was applicable and
neither was Rule 53 applicable.
I
do not agree with this argument in that such administrative action
had the potential to directly impact upon the right of the
parties,
that is the applicant and the second respondent and her children. In
Grey’s
Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and
Others v Minister of Public Works and Others
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA)
Nugent
JA defined administrative action (decision) as that which is:
“
of
an administrative nature” taken by a public body or
functionary....it falls to be construed consistently, wherever
possible,
with the meaning that is attributed to administrative
action as the term is used in s33 of the Constitution (from which
PAJA originates)
so as to avoid constitutional invalidity”
paragraph 22
[5]
Rule 53 (1) provides for the review, by way of notice of motion, by
this court of decisions among others, of any officer performing
administrative function. It further provides that the notice of
motion must be
‘directed
and delivered by the party
seeking
to review such decision to
…
the
officer
....and
all other parties affected:
(a)
calling upon such person to show cause why such a decision
should
not be
reviewed
and corrected or set aside, and
(b)
calling
upon
the
officer
-—to
dispatch ...to the registrar.
the
record of such
proceedings
sought to be ....set aside,
together
with such reasons as he is by law
reguired
or desires to give
....and
to notify the applicant that he has done so.( my emphasis)
(2)
(3)
The
registrar shall make available to the applicant the record
dispatched
the
applicant
shall cause copies of such portions of the records as
may
be necessary for
the
purpose of review to be made and shall furnish the registrar with two
copies and
each
of the other parties one copy thereof (
my
emphasis)
[6]
Mr Mphahlele for the second respondent submitted that neither
Marriage Act or its Regulations provided for a procedure to be
engaged in the investigation envisaged by section 4(7) of the said
Act. The Rules of Court dictated the procedure to be adopted.
He
correctly submitted that in circumstances where none of the affected
parties and the court were in possession of the necessary
information
and reasons for registration by the official concerned, Rule 53
proceedings were appropriate and he referred to
Cunniff
v Tshite and Others
(2000) 3 ALL SA 554
a
556
G-H
and
Jockey
Club of South African v Forbes
[1992] ZASCA 237
;
1993 (1) SA 649
at
660D-G.
He
agreed with what was stated in the Cunniff matter
supra
that Rule 53 would not be engaged where the reasons for the decision
were not necessary or where like in the Jockey Club matter
supra
the tribunal and Forbes were in possession of the record and reasons.
In this matter he said the second respondent was not placed
in such
position.
[7]
On 15 March 2010 through her attorneys, applicant addressed a letter
to the first respondent requesting copies of the application
forms
submitted for registration of the marriage. This was an exercise of a
right to information in the hands of the first respondent,
information that had the possibility to affect her right to inherit
from her brothers estate. This right is protected by our
Constitution.
Except for acknowledging receipt of such request, such
copies were never provided. The above letter alleged that application
was
only made on 14 December 2010 (2009) after the cut-off date.
[8]
It further appears from documents annexed to the opposing affidavits
that application for registration was made on two occasions.
Acknowledgement of the first application was given by the first
respondent on 12 February 2008, more than a year before the cut-off
date and, the second on 14 December 2009. In these circumstances, the
fact that such records were sought by the applicant could
only mean
that the applicant needed to be better appraised of the circumstances
under which registration took place. This court
does not have any
information on what was placed before the first respondent on any one
of these dates and the reasons for registration.
[9]
The order that is sought is that of reviewing and setting aside the
first respondent’s alleged
ultra
vires
administrative action and ordering the setting aside of the
registration of the marriage. It is not only the applicant as heir
who may be adversely affected by the registration the customary
marriage in that it would prevent her inheriting 100% in terms
of the
Last Will and Testament. The second respondent may be entitled to 50%
of the estate and her children may be considered heirs
or have a
claim of maintenance against the estate of the deceased. The
applicant and second respondent have a right to a proper
ventilation
of the request to set aside the registration of the marriage.
[10]
In my view the applicant could also have approached the court by way
of way of PAJA. In this instance she did not do so and
this then did
not preclude the court from obliging her to comply with Rule 53 of
the Rules of Court because she was asking the
court to review an
administrative decision taken by the first respondent. It would be
impossible to review objectively the action
complained about in the
absence of the record and reasons from the first respondent.
[11]
in the circumstance the following order is granted:
1.
The applicant is hereby ordered to obtain the record and reasons for
registration of the customary marriage from the first
respondent;
2.
The
applicant is granted leave to amend her notice of motion to comply
with Rule 53;
3.
The
applicant and the second respondent are granted leave to supplement
their Founding and Answering affidavits after receipt of
reasons from
the first respondent;
4.
The
applicant is ordered to pay the second respondents wasted costs of 03
October 2013
TLHAPI
V.V
(JUDGE
OF THE HIGH COURT)
Matter
heard on
…………………………………..
03
October 2013
Judgment
reserved on
……………………………
03
October 2013
Attorneys
for the Applicants
……………………
Molefe
Attorneys
Attorneys
for the Respondents
………………..
Dikgale
Attorneys