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
(NORTHERN CAPE DIVISION , KIMBERLEY )
CASE NO : 2462/2019
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Regional Magistrates: YES / NO
Circulate to Magistrates: YES / NO
In the matter between:
W[...], M[...] Plaintiff
and
W[...], C[...] Defendant
Neutral citation: W[...] v W[...] (Case no 2462/2019 ) (11 April 2025)
Coram: Nxumalo, J
Heard : 02 December 2021 .
Date of order : 19 January 2022
Summary: Order granted in favour of the plaintiff without reasons pursuant to a
stated case . Defendant sought reasons for the order in terms of Rule 49(1) (c) of
the Uniform Rules - application for reasons made out of time without seeking
condonation - Such an application must be made within ten days from the date of
judgment - reasons provided nonetheless . The plaintiff instituted divorce
proceedings . Defendant’s special plea - the marriage between the parties null
and void ab initio as the plaintiff was already married to a third party at the time of
their marriage . Whether the marriage entered into between the parties is null
and void ab initio — Marriage concluded between the plaintiff and the other party
declared null and void ab initio - and the marriage between the parties still extant .
ORDER
1. The marriage concluded between the plaintiff and one K[...] E[...] D[...]
V[...] on 24 January 2004, is hereby declared null and void ab initio;
2. The marriage concluded between the plaintiff and the defendant on 12
October 2013, still subsists;
3. The defendant is to pay the plaintiff’s costs in respect of the stated case;
and
4. The remaining dispute between the parties is postponed sine die.
REASONS
Per Nxumalo J
PRELIMINARY STATEMENT :
[1] On 02 December 2021, I heard a stated case pertaining to this matter .
Thereafter, on 19 January 2022 after fully considering the matter, I
granted an order in favour of the plaintiff without furnishing any reasons .
Thereafter, none of the parties lodged any application for reasons to be
furnished within the period stipulated in rule 49(1)(c) of the Uniform Rules
of Court . In my opinion, this rule is peremptory . It expressly and
unambiguously provides as follows:
“(c) When in giving an order the Court declares that the reasons for the
order will be furnished to any of the parties on application, such
application shall be delivered within 10 days after the date of
the order.”1
[2] Whilst it is so that litigants are ordinarily entitled to reasons for judicial
decisions following upon a hearing, and that when a judgment is sought to
be appealed, written reasons are indispensable.2 It is also so that
unreasonable delays in most cases have been proven to cause prejudice
to the other party . It is further so that in the interest of justice and good
conscience, ‘good cause’ is a requirement for any extension or abridging
of time and the condonation of non -compliance with the rules by a court,
regard being had to rule 27(1) of the Uniform Rules.3 The requirement of
‘good cause’ gives a court a wide discretion which must in principle be
exercised with regard also to the merits of the matter seen as a whole.4
[3] It foll ows from the foregoing that it is peremptory for a party which is in
breach of any provision of the rules, including rule 49(1)(c), to apply for
condonation vide rule 27(3) . Such an application, if successful, would
obviously trigger rule 49(1)(b), which entitles such a party to deliver its
application for leave to appeal within fifteen days after receipt of the
reasons at such a later date . The defendant herein, however, did not
1 Emphasis supplied
2 Strategic Liquor Services v Mvumbi NO and Others 2010 (2) SA 92 (CC) , para 15
3 See also Ex parte Oppel and Another in re: appointment of curator ad litem and curator
bonis [2002] 2 All SA 8 (C) at 10
4 Mimbiri v Road Accident Fund (Ex Tempore Judgment) [2022] JOL 60018 (GP) , para 3 .
See also Gumede v Road Accident Fund 2007 (6) SA 304 (C) , para 7
lodge such an application for condonation for non -compliance with rule
49(1)(c) .
[4] It is against this backdrop that on 25 May 2023 , I declined the defendant’s
“request for reasons ”. That ruling, which still stands, was transmitted to
the parties on or about 06 July 2023 . Queerly, on 21 July, the defendant
lodged an “ application ” to the Registrar for reasons in terms of rule
49(1)(c) . Equally queer is the fact that before the outcome of this
“application ” the defendant persisted in its request for reasons on 23 July
2023 . Given the chequered history of this matter it is imperative, for
context , to give a brief overview thereof .
SYNOPSIS :
[5] The plaintiff, Ms W[...] , instituted divorce proceedings against the
defendant, Mr W[...] , on or about 06 November 2019 . In paragraph 4 of
her particulars of claim she averred that she and the defendant were
married to each other on 12 October 2013 out of community of property
subject to the accrual system, and that the marriage still subsists.5 It is
also averred in the said paragraph that the parties entered into an
antenuptial contract, a true copy of which is annexed to the particulars of
claim as Annexure X.6
[6] In paragraph 7 of the particulars of claim, the plaintiff further averred that
having regard to the duration of the marriage between the parties ,
etcetera , it would be just and equitable that this Court grant an order for
maintenance in her favour against the defendant in terms of the provisions
of Section 7(2) of the DIVORCE ACT 70 of 1979, in the amount of
R10 000.00 per month for a period of 5 years from the date of divorce , and
5 p5, vol 1, Pleadings
6 pp 9 to 11, ibid
the defendant be ordered to be liable for her medical and dental and
ophthalmic costs, including her medical aid for a corresponding period,
from the date of divorce.7
[7] The plaintiff furthermore sought an order that the defendant render to her
an account supported by documented proof containing full particulars of
the value of his estate in order to determine the difference in the accrual
between the parties’ respective estates; debating the aforesaid account
and payment to her of any amount due and owing to her in terms of the
provisions of Chapter 1 of the MATRIMONIAL PROPERTY ACT 88 of
1984 (hereinafter referred to as the “MPA ”).8
[8] The defendant, for his own part, ultimately delivered an amended plea
together with a special plea . In terms of the latter, he pleaded that the
said marriage was null and void ab initio as same was unlawful because
the plaintiff was already married to a third party; to wit: one Mr K[...] E[...]
D[...] V[...] , at the time she purportedly married the defendant.9 A certified
true copy of the impugned marriage certificate is attached to the plea as
Annexure CW1, to the pleadings.10 In the premise, the defendant prayed
that the marriage between the parties be declared void; alternatively, that
the plaintiff’s claim be dismissed with costs.11
[9] In his conditional counterclaim, the defendant in sum prayed that due to
the plaintiff’s conduct in enriching herself to his detriment, and her actions
that led to the irretrievable breakdown of the marriage, the plaintiff would
be improperly favoured if this Court did not in terms of Section 9 of the
MPA, declare that her right to share in the accrual system of his estate be
7 Prayers 2 -3, ibid
8 See prayer 4, p8, ibid
9 Para 1.1 to 1.2, p12, ibid
10 P22, ibid
11 p13, ibid
wholly forfeited.12 In her replication, the plaintiff flatly denied that the
marriage between the parties was null and void ab initio as alleged and
pleaded that the purported marriage between her and D[...] V[...] was null
and void ab initio as a result of the vitiating elements catalogued in
paragraphs 2 to 7.13 Significantly, the plaintiff specifically pleaded that the
person who performed the purported marriage between her and D[...] V[...]
on 24 January 2004, was not a marriage officer in terms of the
MARRIAGE ACT 25 of 1961 and therefore the purported marriage was
null and void ab initio for non -compliance with same .
[10] In the premise, the plaintiff persisted in her claim against the defendant as
set out in the particulars of claim and requested this Court to dismiss the
said special plea with costs . In her plea to the defendant’s counterclaim,
the plaintiff once more denied that their marriage is null and void ab
initio.14 That is how the pleadings closed and the matter set down for
hearing before me on 19 and 20 October 2021 . On the first day of
hearing, having heard counsel for the parties and having read and
considered the documents filed of record, I inter alia , ordered as follows,
that: (a) the matter be postponed to 02 December 2021; (b) the issue
whether the marriage entered into between the parties on 12 October
2013 is null and void ab initio , because the plaintiff at all material times
hereto was married to a third party, one Mr K […] D[...] V[...] , shall be
decided before any evidence is led or separately from any other
question.15
[11] I also directed the parties to agree on a written statement of facts in the
form of a special case for adjudication on or before 15 November 2021,
containing: (a) the facts agreed upon; (b) the question of law in dispute
12 Para 9, p34, ibid
13 p29 a-29c, ibid
14 Para 4, p36b, ibid
15 See Rule 33(1) to (3) of the Uniform Rules of Court
between the parties; and (c) the parties’ contentions regarding those
questions . The parties were further directed to annex to the said
statement copies of documents necessary to enable me to decide upon
such questions and to file their heads of argument on or before 24
November 2021 . Costs of the postponement were to be reserved for
adjudication with the stated case.16 The parties, on or about 17 November
2021, delivered an agreed stated case for adjudication . It is common
cause that Mr D[...] V[...] has since passed away on 19 April 2019 . The
following was also agreed between the parties to be common cause; to
wit:17
a. the plaintiff was married to one D[...] V[...] on 24 January 2004, as
set out in annexure D;18
b. the marriage officer who solemnised the marriage between the
plaintiff and D[...] V[...] completed a marriage register in terms of
Section 40 of BIRTHS, MARRIAGES AND DEATHS ACT 81 of
1963, as set out in annexure E;19
c. Act 81 of 1963 has been repealed by Section 33 of the BIRTHS
AND DEATHS REGISTRATION ACT 51 of 1992;20
d. Regulation 5A of the MARRIAGE ACT 25 of 1961, reads as
follows:
“5A. Marriage register - The marriage register referred to in
Section 29A shall contain substantially the information
prescribed on form DHA -30.”
16 p141, Vol 2, Pleadings
17 Para 7, pp122 -124, Pleadings
18 p136, ibid
19 p137, ibid
20 Act 51 of 1992
e. the relevant regulations applicable on the date of the impugned
marriage was published in Government Gazette R883 on 21 May
1993;21
f. the marriage between the plaintiff and D[...] V[...] was not registered
in the records of the Department of Home Affairs;22
g. according to the records of the Department (annexure G) the
plaintiff was married on 09 January 1997, which marriage was
subsequently dissolved, whereafter the plaintiff married the
defendant on 12 October 2013;
h. according to the records of the Department (annexure H) D[...] V[...]
was married on 16 November 1999, which marriage was
subsequently dissolved by a decree of divorce and D[...] V[...]
thereafter married one C[...] J[...] V[...] R[...] , on 31 January 2013;
i. it is impossible to conduct an inquiry in terms of Section 6 of Act 25
of 1961, because both D[...] V[...] and D[...] B[...] , passed away (the
latter having solemnised the impugned marriage); and
j. the impugned marriage was never terminated by a decree of
divorce.
[12] Accordingly, the issue joined between the parties was whether the
marriage entered into between the parties on 12 October 2013,23 is null
and void ab initio , because at all material times hereto the plaintiff was
21 Annexure J, pp143 to 152, Pleadings
22 “the impugned marriage ”
23 “the latter marriage ”
married to a third party.24 The parties’ contentions regarding this issue
were contained in their respective heads of argument.25 I thereafter heard
oral argument on 02 December 2021 and reserved judgment .
Subsequently, on 19 January 2022 I granted an order inter alia , declaring
the impugned marriage null and void ab initio and conterminously ; the
current marriage extant . I also ordered the defendant to pay the plaintiff’s
costs in respect of the stated case . The remaining disputes between the
parties were postponed sine die .26
[13] Thereafter, on 01 August 2022 (more than 6 months later) the remainder
of the disputes between the parties was set down for hearing and having
heard the parties’ legal representatives and having read the documents
filed of record and carefully considering the matter, I granted a decree of
divorce incorporating the Deed of Settlement signed by the parties on the
same day.27 Significantly, in terms of paragraphs 3.2, 3.5 and 3.6 of the
said Deed of Settlement, the parties inter alia agreed that one Mr A
Heyns, a qualified auditor of the firm Enslins Auditors, Kimberley, be
appointed as an independent auditor (Receiver) to determine the accrual
in the parties’ respective estates and that the final award of the said
receiver may be made an order of court . The said receiver made his final
award on 01 March 2023.
[14] It is against this backdrop that on 04 April 2023, the plaintiff inter alia ,
applied for the said award to be made an order of court and for the costs
of the said application to be paid by the defendant . The motion was set
down for 12 May 2023 . On the said date, however, the matter was
postponed to 19 May 2023, with costs to be paid by the defendant . On 28
April 2023, approximately 15 months after the date of the stated case
24 “the impugned marriage ”
25 pp168 to 182 and pp153 -166, Vol 2
26 p74, Notices
27 p9, Index, Application dated 04 April 2023
order, the defendant personally requested for reasons for the said order
by email, despite at all material times hereto being legally represented or a
notice of withdrawal not having been delivered by his attorneys.
[15] On 16 May 2023, the defendant entered appearance to oppose the
application to make the Receiver’s award an order of court . Significantly,
this appearance was delivered by one Dr VI Jameson Attorneys, sans any
notice of withdrawal by his first attorneys or notice of substitution by the
latter.28 On 19 May 2023, the matter was once more postponed to 30
June 2023 . The defendant was granted leave to file his answering
affidavit on or before 09 June 2023 . The plaintiff, in turn, was granted
leave to deliver her replying affidavit on or before 23 June 2023 . The
foregoing notwithstanding, the defendant did not deliver any answering
affidavit to resist the said application.
[16] Instead of lodging a substantive application for condonation for his non -
compliance with rule 49(1)(c), the defendant elected to belatedly deliver
an application for leave to appeal dated 27 June 2023 and condonation
thereof . On 10 July 2023, the plaintiff delivered a notice in terms of rule
30A, to compel the applicant herein to comply with the rules of this Court;
alternatively requesting this Court to dismiss the application for leave to
appeal dated 27 June 2023 . Meanwhile, the plaintiff set down the award
application for hearing on 03 November 2023 . On 03 November 2023,
Stanton J granted the application unopposed and ordered the defendant
to pay the costs of the application on an opposed basis . Whilst it is so that
our courts are not made for the rules, but the rules for the courts, I am of
the opinion that our courts have always had a wide discretion to
discourage litigants from unduly protracting lawsuits and unduly increasing
costs at the expense of limited judicial resources .
28 pp23 to 24, ibid
[17] I am reminded of what the Constitutional Court remarked with regard to
rules which require parties to take certain steps on pain of being
prevented from proceeding with a claim or defence: 29
“But for courts to function fairly, they must have rules that regulate their
proceedings . Those rules will often require parties to take certain steps on
pain of being prevented from proceeding with a claim or defence … Many
of the rules of court require compliance with fixed time limits, and a failure
to observe those time limits may result, in the absence of good cause
shown, in a plaintiff or defendant being prevented from pursuing their
claim or defence . Of course, all these rules must be compliant with the
Constitution . To the extent that they do constitute a limitation on a right of
access to court, that limitation must be justifiable in terms of Section 36 of
the Constitution . If the limitation caused by the rule is justifiable, then as
long as the rules are properly applied, there can be no cause for
constitutional complaint . The rules may well contemplate that at times the
right of access to court will be limited . A challenge to the legitimacy of that
effect, however, would require a challenge to the Rule itself . In the
absence of such a challenge, a litigant's only complaint can be that the
Rule was not properly applied by the court . Very often the interpretation
and application of the Rule will require consideration of the provisions of
the Constitution, as s 39(2) of the Constitution instructs . A court that fails
to adequately consider the relevant constitutional provisions will not have
properly applied the Rules at all.”30
[18] I am of the opinion that , regard being had to the merits of the matter seen
as a whole, the defendant egregiously failed to observe the relevant time
limits or to show any good cause, substantiating why I should, in my
discretion, condone same . It is now trite that condonation cannot be had
29 Giddey NO v JC Barnard and Partners 2007 (5) SA 525 (CC) para 16
30 My emphasis
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.31 Besides, as alluded to above,
my ruling still stands . That being as it may, these are the reasons for the
order granted .
THE PARTIES’ CONTENTIONS :
[19] The plaintiff, in sum, contended as follows, vide Ms Sieberhagen , that the
marriage officer who solemnised the impugned marriage should have
completed a marriage register in accordance with the marriage regulations
applicable on the said date and as published in Government Gazette
R883 on 21 May 1993 . Regulation 5A expressly stipulates that a marriage
register should contain substantially the information prescribed in form B1 -
30. That it is clear that the marriage officer who conducted the impugned
marriage did not comply with the provisions of the said regulation . It was
also not in dispute that the impugned marriage was never registered in the
records of the Department of Home Affairs, as clearly set out in
paragraphs 7.7 to 7.9 of the stated case .
[20] The plaintiff also contended that the impugned marriage did not comply
with the formalities as set out in the MARRIAGE ACT . To this extent, the
impugned marriage is null and void ab initio. No marriage therefore
existed between the plaintiff and D[...] V[...] when the plaintiff married the
defendant on 12 October 2013 . The latter marriage is therefore valid .
That no court order is required to declare the impugned marriage null and
void ab initio , as same remains so without any declaratory order to that
31 Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC) , para 23
effect.32 The plaintiff in the main predicated its submissions against , inter
alia, the ratio decidendi in the following authorities; to wit: Francescutti v
Francescutti: In re Francescutti; Ex parte Francescutti ;33 Singh v
Ramparsad & Others ;34 Minister of Home Affairs and Another v
Fourie and Others ;35 and Ex Parte Marais (supra) . The plaintiff also
referred this Court to certain provisions of the MARRIAGE ACT and the
regulations made thereunder .
[21] It is against this backdrop that the plaintiff prayed this Court to declare the
impugned marriage null and void ab initio ; the latter marriage valid; the
defendant to be ordered to pay the plaintiff’s legal costs in respect of the
stated case; and the remaining disputes between the parties to be
postponed sine die .
[22] The defendant, vide Ms Labuschagné, contended as follows in sum . That
D[...] B[...] , who solemnised the impugned marriage, was a Magistrate who
was an ex officio marriage officer.36 That the plaintiff attempts to rebut the
prima facie proof that the certified marriage certificate as well as a copy of
the marriage register are valid documents even though both documents
purport to be what they ought to be . The plaintiff also attempts to
invalidate the fact that both documents were purportedly completed and
signed by the said B[...], in the presence of two witnesses .
[23] That the MARRIAGE ACT and regulations contain no limitations and do
not stipulate that, in the event that the incorrect forms were used to either
register or confirm a marriage, that renders same void or invalid .
Regulation 5C makes provision for supplementing and rectifying the
32 Ex Parte Marais and Another 1942 CPD 242
33 2005 JOL 13472 (W); Francescutti v Francescutti Ex Parte Francescutti 2005 (2) SA 442
(W) para 18
34 2007 JOL 19113 (D); 2007 (3) SA 445 (D) para 11; 32 to 34
35 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) para 63 to 64
36 See Sections 2(1); 5(1) and 6(2) of the MARRIAGE ACT
particulars in the marriage register . That regulation, expressly stipulates
as follows, that:
“Where a marriage has allegedly been solemnised in terms of the
MARRIAGE ACT , but the marriage register referred to in Section 29A,
has for some reasons or the other not been completed or cannot be found,
the Director -General may, after consideration of such proof and after such
inquiry as he may deem necessary, direct that the marriage register
referred to in regulation 5A, with regard to such marriage be completed .”37
[24] That a comparison of the available evidence reveals that all the particulars
of the plaintiff and D[...] V[...] , including their identity numbers as well as
their full names and surnames, are correctly inscribed in the impugned
marriage certificate and register . That the plaintiff never indicated or
made known where the original marriage certificate is, but only belatedly
sought to cast doubt on the authenticity of the impugned documents; and
the copy of the impugned register and the authority of B[...] to solemnise
the impugned marriage . That the mere fact that the impugned marriage
was not registered does not render same void . That it is so because the
omission is a mere administrative action that can be rectified . That the
plaintiff has kept quiet about the two people who signed as witnesses and
were present at the solemnisation of the impugned marriage, who could
have assisted in the inquiry contemplated in Section 6 of the MARRIAGE
ACT.
[25] That the marriage certificate was certified as a true copy of the original
and no trace of any changes on the original by unauthorised persons have
been found . Both impugned documents serve as prima facie evidence of
the impugned marriage . That the plaintiff and D[...] V[...] lived together as
husband and wife . That it can therefore be presumed that their intention
37 Emphasis supplied
was to be married, especially regard being had to the plaintiff formally
amending her details at Sanlam and attending “a Yoga Court” under the
surname “ D[...] V[...] .” That on 19 June 2020, the plaintiff alleged that the
defendant was well aware of the fact that she was informed during 2007,
that her marriage to D[...] V[...] was not valid . That it was only when the
plaintiff’s heads of argument and replication was delivered that it became
apparent that she disputed the validity of the impugned marriage on the
basis that it was not registered, that the marriage officer used the wrong
forms and lacked authority to solemnise the impugned marriage.
[26] The defendant also contended that it is still the approach of our courts that
where a man and a woman are proved to have lived together as husband
and wife, to presume, unless the contrary be clearly proved, that they
were living together as a consequence of a valid marriage.38 That a
marriage certificate to which the parties are entitled to, after the marriage
is solemnised, serves as prima facie evidence of the particulars set out in
it and therefore shall in all courts of law and public office be prima facie
evidence of the particulars set forth therein.39 That this means that a
judicial officer must accept the particulars as correct, until he is convinced
that he cannot rely upon them . Whether such a conviction is justified must
depend on the evidence which refutes or throws doubt upon the contents
of the certificate.40
[27] That included in the presumption thus created would be all the essentials
for the conclusion of a valid marriage including the capacity of the parties .
A further common law presumption which is relevant in this regard is the
presumption of the validity of a marriage flowing from the evidence of the
ceremony and subsequent cohabitation.41 The presumption referred to
38 Schwikkard, van der Merwe, Principles of Evidence , 2nd Ed, p473
39 Gada v Gada (24141/2000) [2006] ZAGPHC 211 (29 May 2006)
40 R v Chizah 1960 (1) SA 435 AD
41 Ex parte L 1947 (3) SA 50 (C)
may, of course be rebutted.42 The defendant also referred to R v Chizah
(supra ) where it was held that there is little merit in the argument that a
pathologist’s report, which constituted prima facie evidence of certain facts
in terms of Section 212(4)(a) of the CRIMINAL PROCEDURE ACT 51 of
1977,43 was once it was challenged, mere paper evidence . That the
words “ prima facie evidence” cannot be brushed aside or minimised . As
used in this Section , they mean that the judicial officer will accept the
evidence as prima facie proof of the issue and in the absence of other
credible evidence, that prima facie proof will become conclusive proof .
[28] That the plaintiff cannot prove that she was not legally married to D[...]
V[...]. That it is so simply because the plaintiff has failed to produce a
court order evincing that the said marriage was dissolved by divorce .
Consequently, the latter marriage allegedly entered into between the
plaintiff and the defendant is void ab initio and that no consequences of
any marriage came into effect between the parties . That a person may
only be a spouse or partner in one marriage or civil partnership, as the
case may be, at any given time.44 That the defendant made out a proper
case for the relief sought i.e. that the latter marriage is null and void ab
initio as the plaintiff at all material times hereto was married to a third
party; that none of the consequences of a marriage came into effect
between the parties; and that the plaintiff be ordered to pay the costs in
respect of the stated case; and the remaining disputes between the
parties be postponed sine die .
DETERMINATION :
[29] It is trite law that whilst the registration of marriages under the MARRIAGE
ACT is required in the public interest and for purposes of proof,
42 W v W 1976 (2) SA 308 (W) at 315A -C
43 “the CPA”
44 Section 8(1) of the Civil Union Act 17 of 2006
registration per se is not essential to the validity of marriages . The use of
the incorrect forms to either register or confirm the impugned marriage,
therefore, cannot render same void or invalid . Nor can the absence of a
marriage certificate, evincing same . It is so simply because in the
absence of a certificate, the existence of the marriage can still be proved
by means of other evidence.
[30] It is, however, also so that whilst the validity of a ma rriage may be
presumed once evidence is adduced showing that the marriage ceremony
was performed, such a presumption is rebuttable . The onus is on the
person who challenges the validity of such a marriage to show that it is
invalid . This rebuttable presumption of law creates a legal burden, in that
the validity of the marriage must be disproved on a balance of
probabilities . This onus of proof fell on the plaintiff in these proceedings .
To this extent, the plaintiff evinced the invalidity of the impugned marriage
on the basis of what is now common cause in terms of the stated case
and attached documents.
[31] The MARRIAGE ACT , in relevant part, stipulates as follows:
“29A . Registration of marriages -
(1) The marriage officer solemnising any marriage, the parties
thereto and two competent witnesses shall sign the marriage
register concerned immediately after such marriage has
been solemnised.
(2) The marriage officer shall forthwith transmit the marriage
register and records concerned, as the case may be, to a
regional or district representative designated as such under
Section 21(1) of the IDENTIFICATION ACT 72 of 1986.”45
[32] Section 8(e) of the IDENTIFICATION ACT 68 of 199746, for its own part,
expressly stipulates that citizens’; lawful and permanent residents’
particulars of marriage contained in the relevant marriage register or other
documents relating to the contracting of marriage and such other
particulars concerning marital statuses as may be furnished to the Director
General, to be included in the population register . In terms of Section
13(1) of the IDENTIFICATION ACT , the Director General shall, as soon
as practicable after the receipt of an application, inter alia , issue a
marriage certificate in the prescribed form, after the relevant particulars
were included in the register in terms of Section 8 of the Act . Of
significance is that a marriage certificate issued in terms of Section 13(1)
is prima facie evidence of the particulars set forth therein.47
[33] It is so that in stated cases, the court may draw inferences from the
agreed facts and attached documents and may base its decision on the
questions of law in dispute on the facts and inferences.48 The only prima
facie evidence before this Court which cannot be brush ed aside is the
attached marriage certificate H0996493, issued to the parties on 12
October 2013, evincing their marriage to each other on the said date.49
[34] Whilst it is so that in the absence of a marriage certificate, the existence of
the marriage can be proved by means of other evidence.50 It is also so
that a ny marriage certificate issued in terms of Section 13(1) of THE
45 Emphasis supplied
46 Hereinafter referred to as the “ Identification Act ”
47 Section 13(2) of the Identification Act 68 of 1997; see also Gabavana and Another v Mbete
and Others [2000] 3 All SA 561 (Tk) at 568
48 Seven Eleven Corporation SA (Pty) Limited v Georgiou and Another [2002] 4 All SA 612
(SE) at 619
49 Annexure B, p131, Vol 2
50 see Gada v Gada 2006 JDR 0445 (T) para 22 (and the authorities cited therein)
IDENTIFICATION ACT constitutes prima facie evidence of the particulars
set forth therein and the existence of the marriage.51 Whilst registration of
a marriage is also not essential to the validity of the marriage, it is further
so that where a marriage has been solemnised in terms of the
MARRIAGE ACT , but the marriage register has for some or other reason
not been completed, the Director -General may, only after submission of
such proof and after such enquiry as he or she may deem necessary,
direct that the prescribed registers with regard to the marriage be
completed .
[35] It follows from the foregoing that the Director -General may direct that the
prescribed registers with regard to the marriage be completed only after
submission of such proof and after such enquiry as he or she may deem
necessary . It seems to be an essential requirement for the Director -
General to consider any proof and to conduct the necessary inquiry before
issuing the relevant certificate . The fact that the impugned marriage was
not registered, therefore, cannot be reduced to a mere “administrative
action” that can be rectified . No consideration of any proof or inquiry has
been conducted by the Director -General for the registration of the
impugned marriage.
[36] There is no gainsaying that certainty is important for the broader
community in light of the wide range of legal implications that marriages
create . Marriages are thus taken seriously not only by the parties; their
families and society, but by the State.52 It is against this backdrop that the
Constitutional Court enjoined that though freely entered into by the parties,
marriages must not only be undertaken in public and in a formal way, but
once concluded, must be registered.53 This is because marriages are a
51 Section 13(2) of the Identification Act
52 Minister of Home Affairs and Another v Fourie and Others 2006 (3) BLCR 355 (CC); 2006
(1) SA 524 (CC) para 64
53 Ibid
sui generis juristic acts giving rise to relationships which confer on parties
thereto certain rights, privileges, duties and status of a public character .
Where rights and privileges, and immunities are sometimes conferred
subject to compliance with certain prescribed formalities, full compliance
with the formalities is taken to be peremptory.54
[37] The peremptory language of Section s 29A, 29(3), 30(3) and regulation 5C
of the MARRIAGE ACT is indicative of the fact that a marriage will be null
and void ab initio for failure to comply with the prescribed formalities . The
actual intensity of the operational effect of the provisions of Section 29A of
the MARRIAGE ACT , properly discerned, renders a marriage that does
not comply with the prescribed conditions null and void ab initio . The
provisions in Section s 29(3) and 30(3) are clearly indicative of a contrary
intention on the part of the legislature.55 It is therefore not a correct
proposition that the MARRIAGE ACT and regulations contain no
limitations and do not stipulate that in the event that the incorrect forms
were used to either register or confirm a marriage, that renders same void
or invalid.
[38] The corollary of the foregoing is twofold; to wit: (a) when a marriage is
void, the status of the “ marriage ” is that no marriage exists, since the
requirements met are insufficient to constitute a valid marriage;56 and (b)
such a “ marriage ” has no effect on the status of the parties to it, who retain
the status of unmarried persons.57
CONCLUSION :
54 Springs Town Council v MacDonald; Springs Town Council v Badenhorst 1968 (2) SA
114 (T) at 116
55 Cronje and Heaton, Family Law 38; Lee and Honore par 50; Sinclair and Heaton 356; cf Ex
parte Dow , supra 831B -D.
56 Ex parte Oxton 1948 (1) SA 1011 (C)
57 Wells v Dean -Willcocks 1924 CPD 89; Docrat v Bhayat 1932 TPD 125; Ex parte Strachan
1946 NPD 592
[39] The nullity of a void marriage is absolute . It may be relied upon at any
time by either of the parties, even after the death of the other or by any
interested third person, even after the death of both parties . Although no
declaration of nullity by a court is required, the marriage being null and
void ab initio, even without such.58 A declaratory order is usually applied
for in the interest of legal certainty . As stated by Searle AJ, in Ex parte
Oxton :59
“The decree is merely declaratory of and does not alter the existing status
of the parties . The object of the decree, however, is to place on record by
means of a judgment in rem the fact that the marriage entered into by the
parties was void ab initio and gave rise to no legal consequences.”
[40] Ratification of a void marriage is, in principle, impossible, and the lapse of
time makes no difference in this regard.60 No discretionary powers are
vested in the courts in terms of which they can declare a void marriage to
be valid.61 It is against this backdrop that this Court granted the foregoing
order.
JUDGE APS NXUMALO
NORTHERN CAPE DIVISION
KIMBERLEY
APPEARANCES :
For Plaintiff: ADV AS SIEBERHAGEN
Instructed by: Duncan & Rothman Inc, Kimberley
58 Ex parte Marais 1942 CPD 242
59 1948 (1) SA 1011 (C) at 1015
60 Wells v Dean - Willcocks 1924 CPD 89 at 92
61 Ex parte L (also known as A) 1947 (3) SA 50 (C) 58; see also Ex parte Soobiah : In re Estate
Pillay 1948 (1) SA 873 (N) at 881
For Defendant: ADV JM L ABUSCHAGNÉ
Trust Account Advocate
(In terms of Section 34(2)(b) of the LPA 28 of 2014)