CASE NUMBER- initials 0 JUDGMENT
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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO : 038386/2025
DATE : 04-04-2025
In the matter between
S[…] M[…] Applicant
And
M[…] M[…] First Respondent
PALESA MOATLHUDI Second Respondent
JUDGMENT
CRUTCHFIELD , J:
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO.
(2) OF INTEREST TO OTHER JUDGES: NO.
(3) REVISED.
DATE 4 April 2025.
SIGNATURE
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The applicant, S […] E[…] M[…], brings proceedings
urgently for interdictory relief and ancillary claims thereto.
The first respondent, M […] D[…] M[…], the applicant’s
estranged husband, opposes the application. The second
respondent , Palesa Moatlhudi, did not oppose nor participate in
the application.
The first respondent and the second respondent
allegedly, are also married to each other and in the process of divorce proceedings. The applicant seeks relief interdicting the respondents
from having their written settlement agreement, signed in
finalisation of their marital disputes, (“the agreement”), made an
order of court insofar as the agreement relates to assets
comprising part of the matrimonial estate between the respondents. The applicant seeks relief pending final
determination by a court of the rightful ownership of those assets.
Furthermore, the applicant claims an interdict preventing
the respondents from executing or enforcing the terms of the agreement pending a court determining ownership of the assets and that the divorce proceedings between the applicant and the first respondent be consolidated with those between the respondents.
The applicant alleges that she married the first
respondent validly by customary law on 30 November 2019, and that the marriage is one in community of property. The applicant
and first respondent allegedly registered their marriage and
procured a marriage certificate. The registration of the marriage
on 20 March 2023 resulted in a marriage certificate that states that the marriage is a civil marriage.
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The applicant instituted divorce proceedings to which the
first respondent pleaded that the marriage was not valid as he was married to another woman, being the second respondent.
The applicant subsequently discovered that the second
respondent also instituted divorce proceedings against the first respondent, to which the first respondent pleaded a denial of the marriage between himself and the second respondent because he was married to an unnamed woman.
Subsequently, the respondent s settled their marital
dispute s in terms of the agreement between them as
aforementioned.
The applicant alleges that various of the assets that are
allocated between the respondents in terms of the agreement ,
formed part of the joint estate between the applicant and first
respondent . Furthermore, t he applicant contends that she stands
to suffer irreparable prejudice if the agreement between the respondents is made an order of court and the respondents execute the provisions of that agreement in respect of thos e
assets. The first respondent argues that the application is moot as
the respondents have signed the agreement , that is binding upon
them, in finalisation of their disputes including the division of their
joint estate. The respondents’ divorce is set down for hearing on
the unopposed roll on 6 June 2025.
The first respondent contends that the marriage between
him and the applicant is null and void ab initio. Alternatively, the
first respondent submits that if there is a valid customary marriage between him and the applicant then the marriage is a
civil marriage as reflected on the parties’ marriage certificate and that it is out of community of property. Thus, the first respondent
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seeks the striking o ff of the application with costs for the absence
of urgency alternatively, the dismissal of the application with
costs.
As to the urgency of the application, notwithstanding the
applicant having requested a copy of the agreement from the first
respondent’s attorney, the agreement was not forthcoming. The
agreement was only uploaded onto the digital caselines platform
whilst the parties were waiting to be heard by me in the u rgent
court. The applicant alleges that the first respondent in terms of
the agreement, is dispo sing of assets that he alleges belong only
to him, to the prejudice of the applicant. Accordingly, up until the
uploading of the agreement on the digital CaseLines platform, the applicant did not know what assets would be divided between the respondents and the potential effect thereof upon her.
Furthermore, the applicant acted in bringing the
application urgently, under the impression that the respondents’
divorce was set down provisionally for hearing on 20 March 2025.
The applicant discovered subsequently that the divorce would be heard on 6 June 2025. Notwithstanding, the applicant stands to
suffer prejudice potentially if the respondents proceed to finalise their divorce proceedings on 6 June 2025 and thereafter execute the provisions of the agreement in respect of the asset allocation between the respondents.
The applicant cannot enjoy substantial recourse in due
course because absent the order being granted in terms of the
notice of motion before me, the respondents’ divorce will be finalised before the applicant obtains a date for this application on the opposed motion roll and before the applicant’s divorce
action is determined on the trial roll.
In the circumstances, I am of the view that the application
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is urgent and stands to be determined accordingly.
The applicant alleges that it is in the interest s of justice
that one court hears all of the relevant evidence and determines if
the two marriages respectively are valid and, if so, which matrimonial proprietary regime applies in respect of each
marriage and which assets fall to be divided within the confines of each marriage and each divorce, assuming the respective marriage s to be valid.
I note the first respondent’s contention that the applicant
cannot proffer a version that disputes that of the respondents, and that the order sought by the applicant, if granted, will cause prejudice to the second respondent, who has signed the
agreement in respect of her alleged divorce with the first respondent. These submissions are meritorious.
However, if the respondents’ agreement serve s to
dispose of assets that rightfully accrue within the alleged marriage of the applicant and first respondent, then it is just that the consequences thereof be considered and determined by a court.
Furthermore, the first respondent relied on Molokane v
Williams and Others ,
1 which relied on the decision of the
Constitutional Court in Ramuhovhi and Others v President of the
Republic of South Africa and Others ,2 to the effect that if it is
accepted that a customary marriage exists between the applicant
and the first respondent, then there is no joint estate and that
marriage is one out of community of property . T hus, the
agreement between the respondent s does not serve to prejudice
1 Molokane v Williams and Others (2015/12381) [2023] ZAGPJHC
1210.
2 Ramuhovhi and Others v President of the Republic of South
Africa and Others [2017] ZACC 41 (13 November 2017).
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the applicant.3
However, the case law relied upon by the first
respondent4 and the alleged consequences thereof , apply only in
the event that the respondents’ marriage was validly concluded in terms of customary law. The second respondent , importantly, did
not deliver a confirmatory affidavit in s upport of the first
respondent’s allegations concerning their marriage.
I am certainly not in a position to determine that the
respondents were married , validly so, in terms of customary law.
That question, as well as the consequences of that
determination upon the applicant’s alleged marriage to the first respondent , must be decided by a c ourt after hearing all the
evidence in respect of both respective marriages , as well as the
consequences thereof , including the division of the assets in
terms of the respective divorce proceedings.
The applicant is entitled to question the respondent s and
challenge the first respondent’s conclusion that a valid customary marriage was concluded between the respondents.
The prejudice that will be suffered potentially by the
applicant in the event that I do not grant the relief claimed by her far outweighs the prejudice to be suffered by the second respondent in the event that I do grant the relief sought by the
applicant. The prejudice to the second respondent amounts to a
delay in finalising he r divorce proceedings from the first
respondent , which in itself is significantly prejudicial to the
second respondent. Notwithstanding, the applicant, in the
3 Ngwenyama v May elane 2012 (4) SA 527 (SCA), Netshituka v
Netshituka [2011] ZASCA 120 and Monyepao v Ledwaba [2020]
ZASCA 54.
4 Id.
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event that I do not grant the relief sought by her, stands to lose
assets that potentially may accrue rightfully within the applicant’s marriage to the first respondent.
In the circumstances, it is in the interest s of justice that
one court determines the issues raised in this matter after hearing
the relevant evidence. Accordingly, I intend to grant the orde r
sought by the applicant.
The costs of the application before me, will be costs in
the cause of the consolidated action.
By reason of the aforementioned, I grant the following
order:
ORDER
1. The actions in this court under case number 2025- 000037
and case number 2023- 011264 are consolidated into one
action under case number 2025- 000037.
2. Pending the outcome of the consolidated action under
case number 2025- 000037:
(a) The first and second respondents are interdicted and
restrained from seeking an order in any court that any settlement agreement concluded between them relat ing to
any of the first respondent’s assets, be made an order of court.
(b) The first and second respondents are interdicted and
restrained from executing and enforcing any terms of any settlement agreement concluded between them that relates
to any of the assets of the first respondent.
3. The costs of this application are costs in the cause of the
consolidated action under case number 2025- 000037.
I hand down the judgment.
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CRUTCHFIELD, J
JUDGE OF THE HIGH COURT
DATE OF JUDGMENT : 4 April 2025.
DATE OF HEARING: 1 April 2025.