IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
DELETE WHICHEVER IS NOT APPLICABLE
{ 1 )
(2)
(3) REPORTABLE: '¢/NO /
OF INTEREST TO OTHER JUDGES: j,ES/NO
REVISED: YES/NO
f 1'1ill ~5
In the matter between: -
KGALEMA RICKY SEPONYE
and
DEPARTMENT OF HOME AFFAIRS
THE DIRECTOR GENERAL: HOME AFFAIRS
CAROLINE LEBEA
OFFICE OF THE FAMILY ADVOCATE CASE NO: 6035/22
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Page 12
This judgment was handed down electronically by circulation to the parties' legal
representatives via email and by uploading it to the electronic file of this matter on
Caselines . The date of judgment is deemed to be 17 March 2025.
JUDGMENT: APPLICATION FOR LEAVE TO APPEAL AND CROSS APPEAL
MOGAGABEAJ
INTRODUCTION
(1] The applicant herein seeks leave to appeal only the costs order I made in terms
of which I made no order as to costs, as per my judgment delivered on 25
October 2024, based on the grounds set out in the application for leave to
appeal.1 Leave to appeal is sought to the Full Court of this Division. The third
respondent (Mrs Lebea) has filed an application to cross-appeal my judgment
and order in terms of which I granted an order in favour of the applicant on the
merits of the matter, and made the order foreshadowed in para 58 of the
judgment. The application to cross-appeal is directed at my factual findings to
the effect that a valid customary marriage was concluded between the applicant
and the deceased, with specific reference to the evidentiary material presented
1 Caselines 0-71-1 to 0-71-10 application for leave to appeal.
Pagel3
by the applicant establishing the successful conclusion of lobola negotiations at
the family home of the deceased, the lobola letter signed by emissaries of the
Kgalema family and the father of the third respondent representing the
deceased family (the Maboyane family) and the subsequent events that
transpired at the Kgalema family home relating to inter alia the traditional
handover of the deceased as the wife of the applicant and the ngwetsi/makoti
(daughter-in-law) of the Kgalema family, the slaughtering of a goat symbolising
the acceptance and welcoming of the deceased as the ngwetsi/makoti of the
Kgalema family and introduction to the Kgalema ancestors, followed by the
traditional marriage celebrations that ensued welcoming the new
ngwetsi/makoti and her family by the Kgalema family. The main thrust of such
application to cross-appeal is that due to the dispute of facts surrounding such
important events, I ought to have referred the matter for the hearing of oral
evidence to resolve such dispute of facts.
[2] Applications for leave to appeal are regulated by s 17( 1) of the Superior Courts
Act 10 of 2013 (the Act). In terms of s 17(1 )(a) of the Act,an application ·tor leave
to appeal will only be granted, when the Judge or Judges concerned is/are of
the opinion that the appeal would have a reasonable prospect of success or
there exists some other compelling reason(s) why the appeal should be heard
by an appellate court. 2 This entails that in terms of s17( 1 )( a) the test in
2 As per s17(1)(a)(i) and (ii) of the Act, regulating applications for leave to appeal; Mont Cheveaux Trust v Goosen
2014 JDR 2325 (LCC) para 6; MEC for Health, Eastern Cape v Mkhitha (2016) ZASCA 176 para 17; State v Smith
2012 (10 SA CR 597 (SCA) para 7; Fusion Properties 233 CC v Stellenbosch Municipality [2021) ZASCA 10 (29
January 2021) para (18).
Page 14
determining a reasonable prospect of success postulates a dispassionate
decision based on the facts and the law that a court of appeal could reasonably
arrive at a conclusion different from that of the court a quo.3 In other words,
leave to appeal should be granted only where an applicant has demonstrated
and the court is convinced that a sound and rational basis exists for the
conclusion that there are prospects of success on appeal.4
[3] The provisions of s 16(2)(a)(i) of the Act stipulate that an appeal may be
dismissed , if at the hearing thereof, the issues are of such a nature that the
decision sought will have no practical effect or result, whereas s 16(2)(a)(ii)
provides that, save under exceptional circumstances , the question as to
whether the decision would have any practical effect or result, is to be
determined without reference to any consideration as to costs. In Tebeila5, the
Constitutional Court held that the practical impact of s 16(2)(a) is that "appeals
on costs alone are allowed very rarely indeed". At the risk of repetition, the
applicant's appeal is directed solely at the issue of costs.
[4] It is settled law that the fact that the order on the merits is not attacked or
challenged, does not preclude the determination of an appeal against a costs
order alone. In cases where the only issue on appeal is the costs order, leave
to appeal is only granted in the "rarest of cases". This was confirmed by the
3 Ramakatsa v African National Congress (2021] ZASCA (31 March 2021) para (10).
• Secona Freight Logistics CC v Samie & Others (2023) 183 (22 December 2023) para (28].
5 See fn 6 below.
Page 15
Constitutional Court in T ebeila to the effect that "few appellate courts
countenance appeals on costs alone. '6
[5] It is trite that a court is endowed with a wide discretion in determining an award
of costs. It is also trite that in granting a costs order a lower court exercises a
true discretion, which exists where a lower court has a number of equally
permissible options available to it, and that interference by an appellate court
will only be warranted on the basis of exceptional circumstances as outlined in
para 6 below. An appeal court should be slow to substitute its own decision
simply because it does not agree with the permissible option chosen by a lower
court.7
[6] In cases where the sole issue in the appeal is the award of costs, as is in casu,
leave to appeal will only be granted where an applicant can demonstrate or
establish "exceptional circumstances ". In other words, a court will not grant an
application for leave to appeal against an award of costs only, provided the
applicant satisfies the court that "exceptiona l circumstances " exist warranting
interferen ce by an appeal court with the exercise of the lower court's discretion
in this regard. In the absence of such exceptional circumstances, the appeal will
be devoid of any reasonable prospects of success, entailing that the application
6 Tebeila Institute Leadership, Education, Governance and Training v Limpopo College of Nursing 2015 (4} BCLR
396 (CC) para 13.
7 Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC) paras (144) -(145); Florence v Govt of the
RSA 2014 (6) SA 456 (CC) para 13; Zuma v Office of the Public Protector and Others (2020) ZASCA 138 (30
October 2020) paras (19]· (20)
Pagej6
for leave to appeal falls to be dismissed.8 This is a formidable hurdle that the
applicant in casu will have to overcome to be granted leave to appeal herein. In
this regard, I note that the applicant's counsel neither in his heads of argument
nor during the hearing hereof, never addressed, referred to or alluded to this
requirement of exceptional circumstances.
[7] I have given due and proper consideration to all the arguments and submissions
made by the applicant's counsel. However, I remain unpersuaded that the
issues raised by the applicant show or demonstrate that exceptional
circumstances exist or that an appeal court would find that exceptional
circumstances exist, warranting interference with the costs order I made.
Absent such exceptional circumstances , the applicant's appeal would not have
any reasonable prospect of success.
[8] Furthermore, the applicant's counsel submitted that as the third respondent
misled the court in resisting this application, such conduct warranted a punitive
costs order against her. This submission is misplaced if not devoid of any merit
simply because, I made no such finding on the part of the third respondent, nor
could counsel point out such finding in the judgment. In any event, the fact that
I found that the third respondent acted in a misguided but bona belief that she
was protecting the interest of her deceased daughter and grandchildre n, in
8 Mukanda v South African legal Practice Councll 2021 (4) SA 292 (GP) para (9).
Pagej7
opposing this application, does not per se constitute a ground to mulct her with
costs, let alone a punitive costs order.
[9] As such, the applicant's application for leave to appeal the award of costs only
falls to be dismissed .
[1 OJ Same applies to the argument and submissions made by the third respondent's
counsel, regarding the application to cross-appeal only my factual findings that
the applicant has established or proved the conclusion or existence of a valid
customary marriage between himself and the deceased, on the basis of the
evidentiary material outlined in para 1 above and as per my factual findings
foreshadowed in paras 42 to 46 of my judgment, which facts and events on a
balance of probabilities established or proved that a valid customary marriage
existed or was concluded between the applicant and the deceased, in fulfillment
or compliance with the requirements prescribed in s 3( 1) of the Customary
Marriages Act. The nub of the third respondent's argument in this regard js that
based on the bare and general denials by her of such facts and events, there
existed a factual dispute on such material issues, entailing that I should have
referred the matter to the hearing of oral evidence for resolution.
[11] In developing this argument, counsel for the third respondent contended that "is
rather it asking for too much to expect her to delve too deep into allegations of
the ceremony, celebrations and/or handover of the deceased ... when the lobola
negotiations did not happen. It is asking her to deal with that which does not
Pagej8
exist and punish her for not dealing with that which does not exist." Such
assertions do not constitute or establish any dispute of fact and are in the
circumstances, misconceived, ill-founded and devoid of any substance for the
reasons outlined in the judgment and the following reasons.
[12] First, besides such submissions being incomprehensible, the approach of a
court in dealing with bare, general or ambiguous denials by a litigant when faced
with serious material facts and evidence, is set out by the Supreme Court of
Appeal in the case of Wightman as outlined in para 41 of my judgment. It is not
about asking a litigant to "delve too deep" into such material facts and
circumstances. Second, no authority was advanced by her counsel overruling
the Wightman line of cases on this score, as referenced in footnote 16 of my
judgment.
[13] Third, it is not about ''punishing her for not dealing with that which does not
exist". It is about what the law requires and expects from a litigant in motion
proceedings in grappling seriously with material factual allegations. This is so,
in that the third respondent has failed to produce material evidence, factual,
documentary or otherwise, refuting inter alia, the successful conclusion of lobola
negotiations for the marriage of her deceased daughter; the payment of lobola
in the sum of R25000.00; the signing by her father of the lobola letter,
constituting material documentary evidence corroborating the successful
conclusion of the lobola negotiations at the Maboyane family home on the day
in question and the traditional handover of the deceased as the wife of the
Page 19
applicant and ngwetsi/makoti of the Kgalema family and being given a name by
the Kgalema family, in accordance with African customs and traditions and in
particular of the Bapedi people.
[14] Fourth, and more importantly, her failure to produce evidence refuting that her
father was not only present during such lobola negotiations but was also the
emissary and signatory of the lobola letter on behalf of the Maboyane family.
Unsurprisingly, no confirmatory affidavit by her father to this effect was filed. At
the risk of repetition bare, general and ambiguous denials do not in law
constitute a dispute of facts.
[15] Accordingly, I am of the considered view that there exists no reasonable
prospect of success or other compelling reasons, why the third respondent
should be granted leave to appeal. Overall, the third respondent has failed to
show that there exists a sound and rational basis for the conclusion that there
are prospects of success on appeal.9
9 See Secona Freight Logistics supra fn 4.
Page j 10
ORDER
[16] In the result, the following order is made:
16.1. The application for leave to appeal is dismissed with costs on Scale B.
16.2. The application to cross-appeal is also dismissed with costs on Scale
B.
S J R MOGAGABE
Acting Judge of the High Court
Gauteng Division
Pretoria
APPEARANCES:
Counsel for the applicant: Adv Ntjana
Instructed by LMK Attorneys, Pretoria
Counsel for the third respondent: Adv A Maluleka
Instructed by Savage Joose & Adams Inc, Pretoria
Date of Judgment: 17 March 2025