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[2011] ZAFSHC 190
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Chali and Other v Rasello and Others (683/2011) [2011] ZAFSHC 190 (24 November 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : 683/2011
In the appeal between:-
CHALI MATETENKI
MARAI
…............................................
1
st
Applicant
CHALI LEEPO MARIA
…....................................................
2
nd
Applicant
CHALI THABISO
CHARLES
…...........................................
3
rd
Applicant
CHALI TIISETSO
JULIA
…..................................................
4
th
Applicant
CHALI YVONNE LERATO
…...............................................
5
th
Applicant
and
RASELLO MASEFAKO
LYDIA
…...................................
1
st
Respondent
NICOLAS ESIAS JANSE
VAN RENSBURG
….............
2
nd
Respondent
SUSANNA MARIA
COPPENHAGEN
….........................
3
rd
Respondent
DIRECTOR GENERAL
DEPARTMENT OF
…................
4
th
Respondent
HOME AFFAIRS
MASTER OF THE HIGH
COURT
…................................
5
th
Respondent
REGISTRAR OF DEEDS,
BLOEMFONTEIN
…..............
6
th
Respondent
_____________________________________________________
HEARD
ON:
10 OCTOBER 2011
_____________________________________________________
JUDGMENT
BY:
RAMPAI, J
_____________________________________________________
DELIVERED
ON:
24 NOVEMBER 2011
_____________________________________________________
[1] This matter is an
application for leave to appeal. The applicant was the first
respondent in the main application. Besides her,
there were five
other respondents. The five-some is not involved in these
proceedings. There were five applicants in the main application.
They
are now the respondents in these proceedings. They all oppose this
application. I shall refer to the parties as in convention.
[2] The first respondent
was aggrieved by my judgment in the main application. The judgment
was delivered on 4 August 2011 in favour
of the applicants. The order
consisted of seven legs. The first leg of the seven legged order
reads:
“
100.1 The
first respondent’s purported marriage to the late Masakale
David Chali at Orkney in North West on 19 March 2005
is declared
invalid and is hereby set aside as null and void
ab
initio
.”
This is the only aspect
of the order the first respondent wishes to appeal against.
[3] There were thirteen
grounds of appeal. Among others, the first respondent contended that
I erred in finding:
that the first
respondent’s marriage to Mr. Rasello was, according to the
founding affidavit, a ground on which the applicants
relied for the
invalidity of the first respondent’s marriage to the late M.D.
Chali;
that the first
respondent had to deal with her questionable marital status in her
answering affidavit, but failed to do so;
that the first
respondent was still married to Mr. Rasello at the time she
purported to marry the late Mr. Chali;
that the first applicant
was entitled to rely on the new matter, in other words, the marital
status of the first respondent, in
the replying affidavit since such
a matter was not initially so raised in the founding affidavit;
that the first
respondent had acknowledged on oath that she was lawfully married to
Mr. Rasello at the time she purported to marry
the late Mr. Chali.
[4] Mr. Pienaar argued,
on behalf of the first respondent, on the strength of the
misdirections relied upon by the first respondent,
that there were
reasonable prospects that an appellate court would come to a
different conclusion by finding that there was a valid
customary
marriage between the first respondent and Masakale David Chali, now
deceased. He, therefore, urged me to grant the first
respondent leave
to appeal.
[5] Mr. Hlatshwayo, on
behalf of the applicants, differed. He argued that the alleged
customary marriage was clearly invalid from
the very beginning and
that no oral evidence could ever bring it to life. He submitted that
the first respondent’s case had
no reasonable prospect of
success on appeal. He, therefore, urged me to grant no leave to
appeal to the first respondent.
[6] The crux of the first
respondent’s case or defence was that she, by virtue of her
valid customary marriage, was the surviving
spouse of a man who died
intestate. This was a
factum probandum
of her answering
affidavit. In their replying affidavit the applicants repudiated her
alleged claim that she and the late M.D.
Chali were lawfully married
by custom. They then annexed thereto, as they were entitled to do in
my view, certain documentary evidence.
The paper trail, which
included prior written statements made by the first respondent
herself under the sanction of an oath, strongly
refuted the first
respondent’s claim. She, in no uncertain terms stated, after
the death of M.D. Chali, that she had never
divorced her first
husband.
[7] I found an enormously
huge inconsistency between the first respondent’s prior
statement and subsequent statement, in other
words, the answering
affidavit. In these circumstances, what useful practical purpose
would be attained by referring the matter
to trial for oral evidence?
The damage has been done. The first respondent’s credibility
has been irredeemably shattered.
There is no chance, however remote,
that the first respondent’s future testimony can redeem her.
[8] Even if I was wrong
in finding, firstly, that the applicants were entitled to rely on new
documentary evidence in the replying
affidavit and secondly, that the
first respondent’s marital status was raised in the founding
affidavit as an issue and thirdly,
that the alleged marriage between
the first respondent and the late M.D. Chali was null and void, the
applicants would not be precluded
from raising these issues or from
relying on the annexures to the replying affidavit if the parties
were referred to trial. Once
again the first respondent would find
herself on shivering sand. The more she wiggles, the deeper she
sinks. By finding that she
failed to deal with her marital status, I
did not thereby shift the burden of proof to her. She averred that
she was married. Therefore
it was also incumbent upon her to aver
that she was legally competent to remarry. That issue arises
ex
lege
.
[9] I listened to the
debate, but I could find nothing new in the first respondent’s
argument. I am not persuaded that I committed
any appealable
misdirection as regards the law or the facts in this matter.
[10] Mr. Hlatshwayo
argued,
in limine
, that seeing that the executor in the
deceased estate of the late Masakale David Chali made a final
decision on 6 July 2007 to
the effect that the alleged customary
marriage between the first respondent and the late M.D. Chali, was
null and void, which decision
the first respondent has never taken on
review to be set aside and was confirmed by the court, the first
respondent was debarred
from seeking this form of relief while the
executor’s decision still stands unchallenged.
[11] There was some
substance in that argument as well, as there was on the merits. I am
persuaded, as regards the merits, that
there are no reasonable
prospects of success if the matter should be allowed to go an appeal.
[12] In the absence of
any appealable misdirections, I am inclined to refuse the respondent
leave to appeal.
[13] Accordingly, I make
the following order:
13.1 The first respondent
is refused leave to appeal.
13.2 The application is
dismissed.
13.3 The first respondent
is directed to pay the costs.
______________
M.H. RAMPAI, J
On behalf of applicants:
Attorney M. Hlatshwayo
Instructed by:
Hlatshwayo Mhayise Inc
VEREENIGING
and
Phatshoane Henney Inc
BLOEMFONTEIN
On behalf of first
respondent: Adv. C.D. Pienaar
Instructed by:
Stander & Partners
BLOEMFONTEIN
On behalf of second and
third
respondents: Adv. M.C.
Louw
Instructed by:
Honey Attorneys
BLOEMFONTEIN
/sp