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[2024] ZAMPMBHC 29
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J.E and Others v B.P.M (A36/2023; 2358/2021) [2024] ZAMPMBHC 29 (26 April 2024)
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IN THE HIGH COURT OF
SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA (MAIN SEAT)
Appeal
Case no. A36/2023
Case
No. 2358/2021
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
DATE:
26/04/2024
SIGNATURE
In
the matter between:
J[...]
E[...]
First Appellant
(Executrix
in the Estate of the late M[...] W[...] T[...])
MINISTER
OF HOME
AFFAIRS
Second Appellant
THE
MASTER OF THE HIGH
COURT
Third Appellant
Y[...]
B[...] M[...]
Fourth Appellant
A[...]
B[...] M[...]
Fifth Appellant
B[...]
C[...] M[...]
Sixth Appellant
and
B[...]
P[...] M[...]
Respondent
JUDGMENT
This
judgment was handed down electronically by circulation to the Parties
and/ or the Parties’ legal representatives by e-mail.
The date
and time for hand-down is deemed to be 26 April 2024 at 14h00.
PICK,
AJ with VUKEYA, J and GREYLING-COETZER, AJ concurring.
Introduction
[1]
This is an Appeal against the whole of the judgment of the Court
a
quo.
This appeal was decided pursuant to this court invoking
Section 19(a)
of the
Superior Courts Act, 10 of 2013
.
[2]
This matter concerns the validity of a customary marriage
concluded between the Respondent and
the deceased, Mr. W[...] T[...]
M[...] in 2007. The Respondent was the Plaintiff in the Court
a
quo
. The first Appellant Ms J[...] E[...], the executrix of the
estate of the late Mr. M[...] was the Third Defendant in the Court
a
quo
.
[3]
The Court
a quo
declared the customary marriage between the
Respondent and the deceased, entered into on 4 November 2007 valid
and ordered the
Second Appellant to register the customary marriage
accordingly.
[4]
The Appellants seek condonation for the belated filing of the Court
a
quo’s
judgment, the complete record of proceedings and
their heads of argument. The Respondent opposed the Condonation
Application.
The
Application for Condonation
[5]
On 15 May 2023 the parties’ legal representatives completed a
Form F, which regulates the readiness
of the appeal for hearing as
provided for in the Practice Directives of this Division. The
Appellants failed to adhere to the time
frames agreed to therein. In
the Form F they agreed that the Appellants would file the judgment
and the full record of proceedings
by 22 September 2023 and their
heads of argument by 16 October 2023. The Respondent filed her
heads which dealt with the
merits of the appeal on the 2
nd
of November 2023. The Appellants filed the record and their
heads of argument on 08 November 2023. The Application for
Condonation
and the Affidavits in support thereof were served
separately on the Respondent on the 08
th
and 10
th
of November 2023 respectively.
[6]
The Appellants aver that the Respondent delayed them from timeously
filing the agreed papers, as the
Respondent brought an
ex parte
application on the 25
th
of May 2023. On that application
being dismissed after a reconsideration hearing on the 06
th
of July 2023, the Respondent sought leave to appeal, well-knowing
that the presiding Judge was on long leave. The First Appellant
believed that the content of the
rule nisi
at the time
prohibited her from dealing with the affairs of the estate. On 30
October 2023 after having been advised that the Appellants
ran
the risk of the Appeal being struck of the roll or dismissed as a
result of their non-compliance on 24 November 2023,
the First
Appellant set the wheels in motion to secure funds to prosecute this
Appeal, file the outstanding documents and have
the leave to appeal
in respect of the
rule nisi
attended to.
[7]
The Respondent argues that the Application for Condonation is not
proper, as it was not brought in the
form of ‘a Notice of
Motion’ and does not afford the Respondent an opportunity to
oppose the Application. It is further
contended that the content of
the
rule
nisi
did not curtail the First Appellant’s powers to deal with the
estate. The Respondent opines that the Appellants’ reasons
as
set forth in the Application for Condonation are not sufficient.
Further that the Appellants did not deal with the prospects
of the
success of the Appeal and as such its Application should not succeed.
In support, opposing the Application the Respondent
placed reliance
on amongst others,
Melane
v Santam Insurance Co Ltd
[1]
,
Nair v Telkom SOC
L
t
d
and Others
[2]
and Brummer v Gorfil Brothers Investments (Pty) Ltd
[3]
.
[8]
In
Brummer
the Constitutional Court stated that an Application
for Condonation should be granted where it would be in the interest
of justice
to do so and refused if it was not. The interest of
justice must be determined with consideration of the factors as set
out in
Melane
as well as consideration of the nature of the
relief sought; the nature and cause of any other defect in respect of
which condonation
is sought and the effect of the delay on
administrative justice. The Respondent avers that this Court should
not grant the Appellants
condonation as such order will not be in the
interest of justice.
[9]
Condonation is not merely for the asking
[4]
.
A useful summary is found in
ADCORP
Fulfilment Services (Pty) Ltd v Prodigy Human Capital Architects
(Pty) Ltd
[5]
,
where the Court, with reference to other precedents (which I quote in
the footnotes) held:
‘
[41]
The Court may grant condonation upon application on notice and on
good cause shown
[6]
. The
application for condonation seeks an indulgence and Court has a
discretion whether to grant condonation
[7]
.
The Court will grant condonation when it is in the interest of
justice to do so
[8]
. The basic
principle is that the Court has a discretion, to be exercised
judicially upon consideration of all the facts, and in
essence it is
a matter of fairness to both sides and any attempt to formulate a
rule of thumb would only serve to harden the arteries
of what should
be a flexible discretion. What is needed is an objective conspectus
of all the facts
[9]
. In other
word, “whether it is in the interest of justice to grant
condonation depends on the facts and circumstances of
each
case”
[10]
.’
[10]
Consideration of the factors qualifying the interest of justice
cannot be seen in isolation and a piece-meal approach
is not proper.
Each factor must be weighed and depending on the circumstances of the
particular case, a certain factor may weigh
heavier than the
other.
[11]
[11] The
complaint of the Respondent in respect of the ‘Notice of
motion’ is unsound. The Application
for Condonation did
contain a short form Notice of Motion (Form2). It has become the norm
that condonation application are brought
on the long form notice
(Form 2A). That said condonation can also be sought orally from the
bar in circumstances where the application
is purely procedural, or
the objection thereto is technical. It is trite that condonation can
be sought at any time. In the present
instance the Appellants did not
seek condonation for the failure to adhere to the Rules of Court, but
their failure to adhere to
the time period set by agreement between
the parties.
[12] The
Respondent enjoyed ample time to oppose the Application. She served
her Notice to Oppose on 14 November 2023.
She then elected to file a
ten page Notice in terms of
Rule 6(5)(d)(iii)
, opposed to an
answering affidavit. In addition, the parties were provided a
further opportunity by the Appeal panel to file
written submission in
re the Condonation Application by 9 of January 2024, if they so
wished. The Respondent has not been prejudiced.
She was given
sufficient time to oppose, and an
opportunity
to properly ventilate the issue of condonation before this Court.
[12]
[13] It is
trite that the
rule nisi
would have been operational, pending
the outcome of the Application for leave to appeal against its
dismissal. Without an order
finally dismissing the
rule nisi
,
the Appellants were still bound to the terms of the
rule nisi
.
The reasons for the delay in the Appellant’s actions are
conceivable
. The
Rule Nisi
reads:
‘
…
..
[2.4]
The First and Second Respondents are ordered not to wind up the
deceased estate of the late W[...]
T[...] M[...], Master’s
reference number 004727 pending finalisation of the appeal.
…’
[14] In the
absence of any action being taken by the Respondent, the Appellants
enrolled the leave to appeal before
the Judge on 17 November 2023.
There can be no clearer indication that the Appellants wanted
to bring the matter to finality.
Acting in the interest of finalising
the matter, the Appellants after having been advised thereto,
exhausted every avenue to have
this Appeal ready to be heard on the
date it was so set down for, being 24 November 2023.
[15] The
degree of lateness is not of such an extent that administrative
justice was sacrificed in the process. On the
contrary and without
generally condoning non-adherence to time constraints, the Appellants
in this case furthered the ends of justice
by ensuring the matter was
ready to be heard on the date so dedicated. The prejudice the
Respondent purportedly suffered due to
the Appellants’ late
filing is always curable by a suitable cost order. It was further
cured by the Appeal panel affording
the parties a further
opportunity to file
a
written oral arguments as
provided for in the Practice Directive of this Division.
[16] The
reasons for delay and the importance of the Appellants’ case
overshadow the Appellants’ not comprehensively
dealing with the
prospects of success in their Application for Condonation. The full
record was in any event now before this Court.
Where a matter turns
on customary law, the outcome thereof is always of great importance
to the community. This Court is bound
to consider whether there is
real prejudice to the Respondent, should condonation be granted.
[13]
The reasons set forth by the Respondent in her opposition do not
implicate prejudice, are purely academic in nature and do not
validate the dismissal of the Application for Condonation.
[17] In
conclusion, I quote from
Steenkamp
and Others v Edcon Limited
:
[14]
‘
[36]
Granting condonation must be in the interest of justice
. This
Court in Grootboom set out the facts that must be considered in
determining whether or not it is in the interest of justice
to grant
condonation:
‘
The
standard for consideration of an application for condonation is the
interest of justice. However, the concept ‘interest
of justice’
is so elastic that it is not capable of precise definition.
…
.
It
is now trite that condonation cannot be had for the mere asking. A
party seeking condonation must make out a case entitling it
to the
court’s indulgence. It must show sufficient cause. This
requires a party to give a full explanation for the non-compliance
with the rules or court’s directions. Of great significance,
the explanation must be reasonable enough to excuse the default
.
The
interest of justice must be determined with reference to all relevant
factors. However,
some
of the factors may justifiably be left out of consideration in
certain circumstances
.
For example, where the delay is unacceptably excessive and there is
no explanation for the delay, there may be no need to consider
the
prospects of success. If the period of delay is short and there is an
unsatisfactory explanation but there are reasonable prospects
of
success, condonation should be granted. However, despite the presence
of reasonable prospects of success, condonation may be
refused where
the delay is excessive, the explanation is non-existent and granting
condonation would prejudice the other party.
As
a general proposition the various factors are not individually
decisive, but should all be taken into account to arrive at a
conclusion as to what is in the interest of justice
.’
[15]
(my emphasis)
[18] I
am satisfied that the Appellant’s non-compliance stands to be
condoned in the interest of justice.
The Appeal
[19] The
crisp issue in this Appeal is whether the deceased and the Respondent
entered into a valid customary marriage
in 2007. The Appeal turns on
s3(1)(b) of the Recognition of Customary Marriages Act 120 of 1998
(‘Customary Marriages Act’).
The Appellants challenge the
Court
a quo
’s finding that the marriage was negotiated
and entered into or celebrated in accordance with customary law. The
Appellants
strongly rely on
s1(3)
of the
Law of Evidence Amendment
Act 45 of 1988
and contend that there was no evidence before the
Court
a quo
as to the
customary
law applicable to the marriage between the Respondent and the
deceased.
[20]
Section 1(3)
of the
Law of Evidence Amendment Act states
the
following:
‘
(3)
In any suit or proceedings between blacks who do not belong to the
same tribe, the court shall not in the absence of any
agreement
between them with regard to the particular system of indigenous law
to be applied in such suit or proceedings,
apply any system of
indigenous law other than that which is in operation at the place
where the defendant or respondent resides
or carries on business or
is employed, or if two or more different systems are in operation of
that place (not being within a tribal
area), the court shall not
apply any such system unless it is the law of the tribe (if any) to
which the defendant or respondent
belongs”.
The case before the
Court
a quo
[21] The
Respondent approached the Court
a
quo
for
an Order declaring that she and the deceased were married to each
other. The Respondent’s pleaded case before the Court
a
quo
was
that the deceased’s emissaries and her parents negotiated
lobolo of 15 cows valued at R1000, 00 each on the 04
th
of
November 2007. An amount of R 6000, 00 was paid on the day and
payment of the remainder of the amount was undertaken in due course.
Various gifts were handed over to the Respondent’s family. At
the time the Respondent was 26 years of age and the deceased
32 years
of age and they agreed to marry each other. Accompanied by her
siblings and her aunts, she was driven to Bushbuckridge
the next day,
where they found a celebration. She was handed over and introduced to
the M[...]’s as ‘
makoti’
by the deceased and her aunts. In her founding affidavit to the later
notice of motion, it is written that she was introduced on
the same
day.
[16]
In evidence she explains that there was a “confusion with the
dates”.
[22] The Respondent
testified that she and the deceased started living together in 2006.
Following a motor vehicle accident on 01
December 2007, she resided
with her parents to
recuperate
after she
was discharged from the hospital. In 2009 the Respondent and
the deceased moved to White River where they resided
together as
husband and wife. During this period the deceased bought a house in
Barberton. The Respondent and the deceased did
not enter into an
Antenuptial Agreement, and their marriage was never registered. In
her amended declaration, the Respondent added
that she moved out of
the communal home in February 2011, after having a disagreement with
the deceased.
[23] The
Respondent’s case was largely supported in evidence before the
Court
a
quo
by
the deceased’s brother, Mr S[...] M[...] and the deceased’s
aunt, Ms T[...] M[...]. Both witnesses formed part of
the emissaries
who negotiated lobola with the Respondent’s family. Mr S[...]
M[...] says that it is not within their culture
to pay lobola in
full. Ms T[...] M[...] testified that once the negotiations are done
and “…
money
is paid into the family, that maiden becomes the wife of the
guy…”
[17]
[24] During
cross-examination of the Respondent before the Court
a
quo
it
came to light that a ‘
bigger
ceremony
’
was planned for the 16
th
of December 2007. Ms T[...] M[...], supporting the evidence of the
Respondent, testified the ceremony was planned to say
‘
..
now
Welcome
has a wife from the day of lobola negotiations ….’.
[18]
The Respondent and her witnesses maintained that the customary
marriage was concluded during 04 and 05 November 2007 and the later
ceremony was purely to celebrate and introduce the Respondent to the
community and the remainder of the family. The introduction
of the
Respondent as ‘
makoti’
to the elders and the deceased’s family took place on 05
November 2007 already.
[25] In a
nutshell, the Appellants’ case before the Court
a
quo
may
best be summarised by quoting paragraph 19 of the (then) Third
Respondent’s (now First Appellant’s) Answering
Affidavit
[19]
:
‘
From the facts it
appears that there were some negotiations, but the
requisite
requirements
, such as the
full payment of lobola
and the
transfer and/or handing over of the Applicant as the “makoti”
never occurred
. I respectfully, submit that in the event of the
honourable Court finding that there was such a marriage, which
remains denied,
then and in that event the honourable Court is urged
to find that the Applicant and the deceased, subsequently, divorced.
I am,
however advised that if a marriage cannot be proven, there can,
in law, be no order for the dissolution of the marriage, of a
marriage
that never existed.’
[26] On trial
before the Court
a quo
, the Appellant’s legal team only
lead the evidence of the First Appellant, Ms Erasmus. She did not
bear any personal knowledge
of the pleaded and testified to lobola
negotiations on 04 November 2007. Neither did she have any personal
knowledge of the introduction
or handing over of the Respondent to
the M[...] family on 05 November 2007. In answer to a question by the
Respondent’s counsel,
Ms Erasmus testified that the deceased
told her that he part-paid lobola for the Respondent and that the
marriage was not registered.
Ms Erasmus testified that the deceased
portrayed his marital status as single throughout the period of 12
years she acted as his
financial advisor. She came into possession of
a copy of the deceased’s will, bequeathing 25% of his estate to
“his
wife” the Respondent, identified by name and
identity number, months after the will was initially drafted in 2009.
Ms Erasmus
interpreted the relationship between the Respondent and
the deceased as “
a promise to marry”
and labelled
the Respondent’s status in the estate as an “
ex-fiancé
type of thing”
.
[27] During
cross examination and under the auspices that evidence to that effect
would be led by the other Appellants
and or by other members of the
M[...] family, the witnesses on behalf of the Respondent were
confronted with statements on the
content of the Tsonga culture. No
such witnesses were called.
The Law
[28] The
requirements for a binding customary marriage is settled. It was
aptly stated in
ND
v MM
,
[20]
with reference to
Motsotsoa
v Roro and Others:
[21]
‘
[16]
Proving the existence of a customary marriage should not present many
problems as the formalities for the coming into existence of marriage
has crystalised over the years. The reason for these are
not hard to
find. The institution of customary marriage is an age old and
well-respected one, deeply embedded in social fabric
of Africans. The
formalities relating thereto are well-known and find application even
in the marriages of the majority of Africans
who marry by civil
rites… ’
[29] The
three essential elements to a valid customary marriage, as codified
in the Customary Marriages Act are
that (i) the bride and the
groom must be over the age of 18 years, (ii) they must consent to the
marriage and (iii) the marriage
must be negotiated and entered into
or celebrated in accordance with customary law.
[22]
The Customary Marriages Act further states that a customary marriage
may only be dissolved by a decree of divorce on the basis
of
irretrievable breakdown of the marriage.
[23]
The Customary Marriages Act does not define “negotiated”,
“entered into” or “celebrated”. The
reason is
simply that no two cultures have the same rituals or customs and as
closely as they might be intertwined, thus far they
may differ.
“Negotiated”, “entered into” and “celebrated”
are unique to every culture.
[30] All the
necessary allegations were made by the Respondent in her pleaded
case
[24]
and evidence was lead before the Court
a
quo
concerning all three the pleaded elements.
[31] Before
the Court
a
quo
,
the Respondent testified that she was of Pedi origin. She was unsure
of what specific culture the deceased was. She however denied
that
the deceased was Tsonga. Mr S[...] M[...], the deceased’s
brother testified that the M[...]’s were originally
Sotho,
although they spoke Shangaan by virtue of their grandmother’s
tongue. Since his grandfather passed away in 1970, most
family things
were Tsonga-dominated. He testified that the M[...]’s were
trying to restore their Sotho culture and, in accordance
with the
Sotho culture, sent some boys to traditional school in 2022.
[25]
The lobola letter was written in Siswati. Ms T[...] M[...], the
deceased’s aunt testified that, in their culture, thus Tsonga,
the deceased and the Respondent were considered married from the day
of the lobola negotiations when payment was made to the
M[...]’s.
[32] As to
the applicable culture and customs of the Tsonga culture the Court
a
quo
thus only had the uncontroverted evidence of the brother and
the aunt of the deceased before it. The evidence lead by the
Respondent’s
witnesses in respect of the requirement of the
negotiation, payment of lobola and the conclusion of the marriage in
terms of what
they understood remained uncontested before the Court
a
quo
.
[33] In
respect of the Appellants argument that the Court
a quo
was
bound to
s 1(3)
of the
Law of Evidence Amendment Act, the
following
is relevant. There was indeed no agreement as envisages in
s 1(3)
Law
of Evidence Amendment Act. This
is plainly impossible as the Mr
W[...] T[...] M[...] has since died. The Respondent is Pedi and
resides in Mbombela. The deceased
resided in Barberton. The deceased
brother, Mr S[...] M[...] testified that the surname M[...] is Sotho,
yet they practice the
Tsonga culture and speak the Shangaan language
at home. Mrs T[...] M[...], the aunt of the deceased testified that
in their culture
or custom, thus the family of the deceased once you
pay lobola for a person (i.e. a wife) that respond is now considered
your wife.
[34] The
textbook approach as to what constitutes the customs of a specific
culture was warned against by the Constitutional
Court in
Alexkor
Ltd and Another v Richtersveld Community and Others
,
[26]
MM v MN
and Another
[27]
and the Supreme Court of Appeal in
Moropane
v Southon
.
[28]
The Court
a
quo
can
accordingly not be faulted in relying on the evidence placed before
it, which was per
s1(3)
the “law of the tribe” being that
of
the
M[...] family and applied same. The court
a
quo
correctly found that there exists a valid customary marriage.
[35] It is
clear from the Customary Marriages Act, that a customary marriage
must either be negotiated and entered
into according to the
applicable customary law or negotiated and celebrated according to
the applicable customary law . The
Appellants’ version,
that lobola must be paid in full is not a validity requirement in
terms of the Customary Marriages Act.
Nor was it, per the evidence
before the Court
a quo,
a requirement of the customs or
culture the M[...]’s practice. The Respondent and her
witnesses’ version that
she was handed over and introduced to
the M[...]’s on the 05
th
of November 2007 and this
concluded the marriage ceremony stands uncontested. The evidence of
Mrs T[...] M[...]
renounced
the need for
the celebration, according to their custom, at all. A celebration of
some sort is not a validity requirement on its
own.
[36] Further,
the contention by the Appellant in the Court
a quo
that if the
Court find that there was a valid marriage, the Court
should find that the Respondent and deceased, subsequently
divorced,
is untenable. As set out above, section 8 of the Customary
Marriages Act regulates dissolution of customary marriages.
There was
no evidence before the Court
a quo
to substantiate a finding
as contended by the Appellant. The evidence by Mrs
Erasmus that the deceased represented
himself as single to her does
not establish a basis to conclude that he was subsequently divorced.
[37]
In
Mayelane
v Ngwenyama and Another
[29]
the Court held:
‘
[61] … it
must be emphasised that, in the end, it is the function of a Court to
decide what the content of customary law
is, as a matter of law, not
fact. It does not depend on rules of evidence: a court must determine
for itself how best to ascertain
that content.’
[38]
It was held in
Mbungela
and Another v Mkabi and Others
:
[30]
[21] The question whether
non-observance of the bridal transfer ceremony invalidates a
customary marriage has been decisively answered
by our Courts. In
Mabuza v Mbatha 2003(4) SA 218 (C) the Court considered whether
non-compliance with the siSwati custom of bridal
transfer,
‘
ukumekeza
’, invalidated a customary marriage. The
Court held:
‘
[25] …
There is
no doubt that ukumekeza, like so many other customs, has somehow
evolved so much that it is probably practiced differently
than it was
centuries ago …. As Professor de Villiers testified, it
is inconceivable that ukumekeza has not evolved
and that it cannot be
waived by agreement between the parties and/or their families in
appropriate cases.
[26]
Further support for the view that African Customary law has evolved
and bridal transfer ceremony as always flexible in application
is to
be found in TW Bennett A Sourcebook of African Customary Law for
Southern Africa. Professor Bennet has quite forcefully argued:
‘In
contrast, customary law was always flexible and pragmatic. Strict
adherence to ritual formulae was never absolutely essential
in
close-knit, rural communities, where certainty was neither a
necessity nor a value. So, for instance, a ceremony to celebrate
a
man’s second marriage would normally be simplified; similarly,
the wedding might be abbreviated by reason of poverty or
the need to
expedite matters.’
[39] This
matter is not one of those which Courts are all so often faced with
where one party’s family
alleges that a marriage
was concluded, and the other’s family denies same. Before the
Court
a quo,
two witnesses from the deceased’s
famliy confirmed the marriage between the Respondent and the
deceased, and the Respondent
being the wife of the deceased.
[40] The
Court
a
quo’s
reasoning and its evaluation of the applicable Customary law cannot
be faulted. It‘s interpretation thereof is supported
in
Tsambo
v Sengadi.
[31]
‘
[18] …Clearly
customs have never been static. They develop and change along with
the society in which they are practiced.
Given the obligation imposed
on Courts to give effect to the principle of living customary law
,
it
follows ineluctably that the failure to comply strictly
with all the rituals and ceremonies that were historically observed
cannot
invalidate a marriage that has otherwise been
negotiated, concluded or celebrated in accordance with customary
law.’
(footnotes omitted)
[41]
It was held in
Shibi
v Sithole and Others
[32]
with reference to
Alexkor
Ltd and Another v Richtersveld Community and Others:
‘
[43]
…
While in the past
indigenous law was seen through the common law lens, it must now be
seen as an integral part of our law. Like
all laws it depends for its
ultimate force and validity on the Constitution. Its validity must
now be determined by reference not
to common law, but to the
Constitution.
This approach avoids the
mistakes which were committed in the past and which were partly the
result of the failure to interpret
customary law in its own setting
but rather attempting to see it through the prism of common law and
other systems of the law.
That approach also led in part to the
fossilisation and codification of customary law which in turn led to
its marginalisation.
This consequently denied it of its opportunity
to grow in its own right and to adapt itself to changing
circumstances…’
[42]
Customary law is an ever evolving system of laws which the majority
of people in South Africa live by. These laws
may be adapted from
generation to generation in accordance with the needs of the
community within which these laws are practiced,
always subject to
the values of the Constitution. Courts should be cognisant of the
flexible nature of Customary Law when making
finding thereon. These
findings are factual and influence the lives of people and are always
of great public value. It was held
in
Mayelane
v Ngwenyama and Another:
[33]
‘
[50] …There
is an untapped richness in customary law which may show that the
values of the Constitution are recognised, or
capable of being
recognised, in a manner different to common law understanding.’
[43] The innuendo
relied upon be the Appellants as to the
mala fide
motive of
the Respondent for bringing the Application before the Court
a quo
is irrelevant.
Conclusion
[44] For the
reasons set out above the Appeal stands to be dismissed.
Costs
[45] There
are no circumstances justifying a deviation from the normal order
that costs should follow the event. The
Respondent utlised two
counsel. Although the subject matter can generally be regarded as
important, it was not of such a complex
nature that it justifies this
Court to order that the Appellants pay the cost of two counsel.
Order
[46] The
following order is proposed:
1.
The Appellants’ failure to timeously file the record and their
heads of argument is condoned;
2.
The Appeal is dismissed;
3.
The Estate of the late Mr W[...] T[...] M[...] is ordered to pay the
Appellant’s costs of appeal and the Respondent’s
costs of
opposition to the Condonation Application, on a party and party
scale, limited to the cost of one counsel.
PICK,
AJ
Acting
Judge of the High Court of South Africa
Mpumalanga
Division, Mbombela Main Seat
I
agree
GREYLING
COETZER, AJ
Acting
Judge of the High Court of South Africa
Mpumalanga
Division, Mbombela Main Seat
I
agree and it is so Ordered
VUKEYA,
J
Judge
of the High Court of South Africa
Mpumalanga
Division, Middelburg Local Seat
HEARING
DATE: 24/11/2023
ORAL
WRITTEN SUBMISSIONS RECEIVED: 01/12/2023
CONDONATION
SUBMISSIONS RECEIVED: 09/01/2024
DATE
OF JUDGMENT: 26/04/2024
Appearance
for the Appellants:
Adv. P.
SIEBERHAGEN
Instructed
by
MARKUS
SAAYMAN INCORPORATED
MBOMBELA,
MPUMALANGA
File
Ref:
MR
SAAYMAN/AC/ERA7/0025
E-mail:
anna@msaaymaninc.co.za
Appearance
for the Respondent:
Adv
P.A.MABILO with
Adv
L.D.TJALE
Instructed
by
TP
RADEBE ATTORNEYS
MBOMBELA,
MPUMALANGA
File
Ref: CM/MALOPE/06
E-mail:
tpradebeattorneys03@gmail.com
Promise.radebe3@gmail.com
[1]
Melane v
Santam Insurance Co Ltd
1962 (4) SA 531
(A) at C - F
[2]
Nair v Telkom
SOC Ltd and Others (JR59/2020) [2021] ZALCJHB 449 (7 December
2021)
[3]
Brummer v
Gorfill Brothers Investments (Pty) Ltd 2000 (2) SA 837 (CC)
[4]
Uitenhage
Transitional Local Council v South African Revenue Services
[2003] 4
All SA 37
(SCA),
2004 (1) SA 292
(SCA) at 6
[5]
ADCORP
Fulfilment Services (Pty) Ltd v Prodigy Human Capital Architects
(Pty) Ltd (2018/17932) [2023] ZAGPJHC 579 (26 May 2023) at 41 to 52
[6]
Rule 27(1)
[7]
Grootboom v
National Prosecuting Authority
2014 (2) SA 68
(CC) at 20
[8]
Grootboom
supra
.
Moluele and Others v Deschatelets NO 1950 (2) SA 670 (T)
[9]
Melane v
Santam Insurance (Pty) Ltd
supra
532C –
F; United Plant Hire (Pty) Ltd v Hills and Others
1976
(1) SA 717
(A) at 720E
[10]
Van Wyk v Unitas
Hospital and Another (Open Democratic Advice Centre as amicus
curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC0 at 20
[11]
United Plant Hire v
Hills and Others
supra
at 720G; Gumede v Road Accident Fund
2007 (6) SA 304
C at 7
[12]
F v Minister
of Safety and Security and Others
2012 (1) SA 536
(CC) at [34]
[13]
TLE (Pty) Ltd v The
Master of the High Court and Others
2012 (1) SA 502
(GSJ) at 12
[14]
Steenkamp and
Others v Edcon Limited (CCT29/18)
[2019] ZACC 17
(30 April 2019)
[15]
Grootboom supra at
paras 22-3 and 51
[16]
Page 36 - 37 of the
Record. See also page 229 – 230 of the Record
[17]
Page 376 of the
Record
[18]
Page 375 of the
Record
[19]
Page 75 of the
Record
[20]
ND v MM
(18404/2018) [2020] ZAGPJHC 113 (12 May 2020)
[21]
Motsotsoa v Roro
and Others [2011] 2 All SA 324 (GSJ)
[22]
S3(1)
of the
Recognition of Customary Marriages Act.
[23
]
S8 of the
Recognition of Marriages Act
[24]
Refer p
aragraph
19 above.
[25]
Pages 355 –
356 of the Record
[26]
Alexkor Ltd and
Another v Richtersveld Community and Others
[2003] ZACC 18
;
2004 (5)
SA 460
[27]
MM v MN and Another
2013 (4) SA 415 (CC)
[28]
Moropane v Southon
[2014] ZASCA 76
[29]
Mayelane v
Ngwenyama and Another (CCT 57/12) [2013] ZACC 14; 2013 (4) SA 415
(CC)
[30]
Mbungela and
Another v Mkhabi and Others (820/2018)
[2019] ZASCA 134
;
2020 (1) SA
41
(SCA)
[31]
Tsambo v Sengadi
(244/19)
[2020] ZASCA 46
(30 April 2020)
[32]
Shibi v Sithole and
Others (CCT 50/03), (CCT 69/03, CCT 49/03) [2004] ZACC 18
[33]
Mayelane v
Ngwenyama and Another (CCT 57/12)
[2013] ZACC 14
;
2013 (4) SA 415
(CC)