SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)

CASE NO: CA 645/2015

In the matter between:

T[...] B[...] Appellant

and

GOVERNMENT EMPLOYEE PENSION FUND First respondent

MINISTER OF CORRECTIONAL SERVICES Second respondent

B[...] M[...] Third respondent
__________________________________________________________________
JUDGMENT
__________________________________________________________________
RUSI J

[1] The reason why the law insists on finality of litigation is to prevent the uncertainty
which deprives the parties of an opportunity to move forward with their lives and
business with a clear understanding of their rights and obligations after a dispute has

been adjudicated. Never -ending litigation thwarts stability in the legal system. The
present matter engages this ethos of our legal system .

[2] This is an appeal with leave of the court a quo against its judgment and order
dated 14 August 2007 .1 Leave to appeal was sought almost 7 yea rs after that judgment
and order . The appeal comes before us 10 years later. In short, 17 years have elapsed
since the court a quo gave the judgment and order now appealed against.

Factual background

[3] The third respondent was married to M[...] B[...] (the deceased) on 31 May 1994
in Elliotdale. One child was born of their marriage . She separated from the deceased in
1997 as result of a marital discord which was allegedly caused by alcohol by the
deceased ’s abuse of alcohol as well as his alleged promiscuous behaviour and extra
marital affair with the appellant . Even though she and the deceased were separated, the
deceased would visit her where she lived , and he simultaneously engaged her family
with a view to reconciling wi th her.

[4] Their attempt s to reconcile were hindered by the deceased’s continued extra
marital affair with the appellant. In 2001, the third respondent obtained employment in
Durban, Kwa -Zulu Natal Province , where she worked at the time of the proceeding s in
the court a quo. She later heard that the deceased had married the appellant by civil
rites, and they had two children together. The deceased died in February 2006. At the
time of his death, he was employed by the second respondent which participated in
pension contributions to the first respondent for his benefit as his employer.

[5] After the death of the deceased, the third respondent brought an application in
terms of which she sought to interdict the second respondent who held the deceased’s
leave gratuity ; and the first respondent who held the deceased’s pension benefit , from
paying out these monies to anyone, pending the finalization of the application to declare
the marriage between the deceased and the appellant nul l and void ( the declaratory
application) .

1 The judgment and order of Revelas J was handed down on 14 August 2007 in opposed motion court.

[6] The third respondent alleged that she and the deceased ent ered into a civil
marriage which had not been dissolved at the time of his death. The appellant and the
deceased could therefore not validly enter into a civil marriage while her marriage to the
deceased subsisted. On 28 December 2006 a rule nisi was issue d, with an adjunct of
an interim order interdicting the first and second respondent s from paying the
deceased ’s pension benefit and leave gratuity, respectively , pending the finalization of
the declaratory application.

[7] Even though the appellant had fully opposed the application, there was no
appearance by or on her behalf on 14 August 2007 when the application was finally
heard. After hearing the third respondent’s legal representative, the court a quo
confirmed the rule nisi dated 28 December 200 6. The court a quo substituted the relief
in terms of which the third respondent sought an order declaring the appellant’s
marriage to the deceased null and void . In its place it declared that the marriage
between her and the deceased was not dissolved at the time of his death, and that no
valid marriage could exist between the appellant and the deceased.

The grounds of appeal

[8] The grounds on which the appellant relies in this a ppeal are that the court a quo
erred in the following respects:

(a) In finding that the third respondent was legally married to the deceased at
the time of his death and that she was the lawful wife of the deceased.

(b) In dealing with the case as though the appellant had abandoned her
opposition because her legal representative did not attend cou rt on the
date of hearing even though the legal representative had not filed a notice
of withdrawal.

(c) In finding that the record of the Regional Authority entailing the deceased’s
action for the return of the dowry did no t constitute proof that the marr iage
between the third respondent and the deceased was dissolved .

(d) In not referring the matter to oral evidence despite the fact that the papers
before it raised factual disputes.

[9] At the hearing of th is appeal, we raised concerns with Mr Dyantyi who
represented the appellant regarding the state of the appeal record . It was not properly
indexed and paginated; it was incomplete in certain respects and in some instances its
pages were not properly collated. This was not the only concern we had with this appeal
– the application for condonation of its late prosecution, a ma tter I deal with below ,
presented us with great difficulty. Despite these concerns , we indicated to the parties
that if they wished to make submissions on the merits of the matter besides what the
heads of argument contained, they were free to do so. This ought not be construed as
condonation of tardiness on the part of legal practitioners. The Rules of this Court enjoin
the appellant to prepare the record of appeal in accordance with the set standards.2

[10] The appeal was first noted in March 2015 , more than 5 months after leave to
appeal was granted , and it was not prosecuted until 02 August 2016 when the
appellan t’s attorney applied in accordance with Uniform Rule 6 (5)(f) to the Registrar , for
the allocation o f the date of hearing of the appeal. This was more than a year after it
was noted. The appeal is accordingly deemed to have lapsed.

[11] Two applications for condonation of non -compliance with the appeal procedures
set out in Uniform Rule 49 were filed. The first application was filed on behalf of the
appellant by the office of Legal Aid South Africa on 08 July 2015 (the first condonation
application) . In the notice of motion, the appellant sought condonation of the late filing of
the appeal.

[12] The second application is dated 20 November 2024. In it the appellant sought
condonation of the late enrolment of the appeal. Notably, no prayer is made in the

2 Uniform Rule 49(8).
notice of motion for the reinstatement of the lapsed appeal. Mr Dyantyi for the appellant
stated from the bar that this was an application for condonation of the late prosecution of
the lapsed appeal and rei nstatement thereof. We accept that despite the inelegant
drafting of the prayers , this must be so.

[13] It emerged during the hearing of this appeal that the first condonation application
was never served on the third respondent although it was properly issued by the
Registrar of this Court. This fact was confirmed by Mr Dyantyi who submitted that this
was an oversight which he was unable to explain. This notwithstanding, it was annexed
to the appellant’s replying affidavit as ostensible support for the contention that it was
served on the third respondent.

[14] The first and second respondents did not participate in the appeal . Since the
issue of condonation is a preliminary one, it must be disposed of first.

The condonation application s

[15] In the first condonation application, Mr Kelengile, the appellant’s attorney at the
time deposed to a supporting affidavit dated July 2015. In it h e states , in essence, that
he lost track of the appeal when his office began its preparations during October and
December 2014 to relocate to newly acquired offi ces. He goes on to state that when his
office ultimately settled at the newly acquired premises in February 2015, it was hit by
administrative setbacks which included malfunctioning of the photocopy machines and
office equipment . He admits having failed in his duty to put all his effort into ensuring
that the appeal was noted timeously. I n his view , the appellant should not be penalized
because of his failure in his duty.

[16] In November 2024, almost 9 years after Mr Kelengile filed the application for
condonation of the late filing of the appeal , Mr Dotwana of Legal Aid South Africa made
the condonation application dated 20 November 2024 in which he seeks condonation of
the late prosecution of the appeal. Mr Dotwana explains t hat when it came to his
attention that the third respondent’s attorneys withdrew as her attorneys of record , he
made attempts to ensure that the third respondent had legal representation. He did this
because of the seriousness of the case.

[17] Those attempts culminated in a directive issued by the Acting Deputy Judge
President in November 2022, in which the third respondent was directed to present
herself at the offices of Legal Aid South Africa not later than 17 January 2023 in order to
make an application for legal representation. This directive was only served by the
Sheriff upon the third respondent in Augu st 2023 due to the fact that it transpired , after
several attempts at following up on its service , that the Sheriff who was handed the
document passed away. It was only when the Registrar of this Court facilitated an
application for pro bono legal representation for the third respondent that she secured
an attorney . Mr Baceni became counsel on brief to appear on her behalf on a pro bono
basis .

[18] The third respondent opposes the application for condonation of the late
prosecution of the appeal . The deponent of the opposing affidavit states, in essence,
that the appellant has not given any sufficient and reasonable explanation for the delay
that occurred before the withdrawal of the third respondent’s erstwhile attorneys and
that for this reason, the condonation application must fail.

The parties’ submissions

[19] Mr Dyantyi submitted that this Court should condone the late prosecution of this
appeal in the interests of justice due to the nature of the issue that the appeal entails. In
the appellant’s heads of argument, it was submitted that the second respondent has
since paid out the deceased’s leave gratuity and the first respondent has paid the
pension benefit ; and further that both the appellant and third respondent were
beneficiaries of these payments.

[20] It appears that beyond the payment of the lump sum of the pension benefit in the
manner already mentioned, the appellant challenges the order of the court a quo in so
far as it relates to her status as the alleged surviving spouse of the deceased. This,
according to the appellant, is for the purposes of t he relevant monthly pension benefit
that the deceased’s surviving would be eligible to receive from the first respondent.

[21] Mr Baceni indicated that the heads of argument filed on behalf of the third
respondent constitute his submissions on appeal befor e us. In the third respondent’s
heads of argument Mr Baceni persist ed with the contention that the non -compliance by
the appellant with the Rules of Court is gross, and the explanation given for that non -
compliance is not a reasonable one. He submitted that o n these grounds, condonation
must be refused.

[22] Below I set out the legal principles governing the appeal process and
applications for condonation of non -compliance with the Rules of Court.

The legal principles

[23] Uniform Rule 49 govern s the appeal procedure when the decision appealed
against is from the High Court. In terms of Rule 49(2), the appellant must deliver her
notice of appeal within 20 days after the date on which she was granted leave to
appeal. This period may be exte nded by the court in the exercise of its discretion upon
good cause being shown.

[24] Within 60 days after the delivery of the notice to appeal, the appellant must apply
to the Registrar for a date of hearing of the appeal. Failing the appellant, the resp ondent
may so apply. If none of these parties ma ke the application for a date of hearing of the
appeal, the appeal shall be deemed to have lapsed. It will be re -instated on application
of the appellant and upon good cause being shown. This is in terms of R ule 49(6)(a)
and (b).

[27] Where time limitations are set in litigation, a party who has failed to comply with
those time bars has a duty to explain his non -compliance to the satisfaction of the court.
The SCA has recently reaffirmed the legal principles applicable to an application for
condonation of a party’s failure to comply with the Rules of Court in MEC for Health
Eastern Cape v AS obo SS3. I can do no better than quote Keightly JA (with whom
Nicholls and Weiner JJA and Dolamo and Molitsoane AJJA concurred) when he wrote:4

‘It is trite that the high court has an inherent right to grant condonation for a
failure to comply with the rules of court where the interests of justice demand
this. The disc retion to do so is extensive, but it must be exercised judicially. A
party seeking condonation must give a full explanation for the failure to comply
with the rules and this explanation must be reasonable. The court must weigh all
relevant factors includin g, depending on the facts of each case, the degree of
non-compliance, the explanation therefor, the importance of the case, the
avoidance of unnecessary delays in the administration of justice and the
prospects of success. These factors are interrelated an d must be weighed one
against the other. For example, a slight delay and a good explanation might
compensate for weak prospects of success. However, in a case of flagrant or
gross non -observance of the rules, a court may refuse condonation regardless of
the prospects of success.

Where an attorney is to blame for the non -compliance, a blameless litigant may
escape penalization, but there is a limit beyond which she or he may be
indemnified against the attorney’s lack of diligence and absence of a reasonable
explanation. The negligence of the attorney is weighed together with the other
relevant factors in considering whether condonation is justified. ’ (footnotes
omitted)

Discussion

[28] Conspicuously absent from the appellant’s explanation of the default is an
account of her failure to prosecute the appeal after March 2015 which is the date on
which Mr Kelengile filed the condonation application for its late filing .


3 MEC for Health Eastern Cape v AS obo SS (842/2023) [2025] ZASCA 02 (15 January 2025), and all the
cases referred to at paragraphs 19 to 20 of the judgment.
4 Ibid, at para s 19-20.
[29] Needless to say t hat Mr Kelengile fails to set out, in the first condonation
application, what steps he took in order to ensure that 20 days after leave to appeal was
granted, the notice of appeal was delivered. He states nothing regarding what remedial
measures were put in place by Legal Aid South Africa to ensure that the smooth running
of the office was not h ampered despite the calamity that he portrays as having befallen
that office .

[30] Be that as it may, if Mr Kelengile’s explanation is accepted as it is , then, at worst
for him, as early as October 201 4 it ought to have been evident to him as the appellan t’s
attorney, that he would not meet the time frames applicable to the filing of the appeal.
This ought to have signaled to him the need to apply for the extension of the timeframe
for the filing of the appeal. This was not done. Furthermore, Mr Dotwana gi ves no
explanation regarding what his office did with the appeal after Mr Kelengile filed the first
condonation application around March 2015. As already alluded to, his explanation
relates to the period after the third respondent’s legal representatives w ithdrew from
representing her in 2016.

[31] The explanation given on behalf of the appellan t lacks in substance in that it
seeks to put the blame squarely on the third respondent by suggesting that her alleged
failure or neglect or refusal to obtain legal representation hindered the hearing of the
appeal. This stance overlooks the fact that the attorney who represented the third
respondent at the time the court a quo gr anted leave to appeal in 2014 only withdrew as
her attorney by notice of withdrawal dated 29 February 2016. What this means is that
for a period of 2 years nothing was done to note and prosecute the appeal while the
third respondent had legal representatio n.

[32] An inescapable finding is that the appellant’s reliance on the alleged failure or
neglect or refusal of the third respondent to obtain legal representation is not only
disingenuous , but it is also opportunistic.

[33] It has been held that an inordinate delay in bringing an appeal induces a
reasonable belief that the order has become unassailable and after such a delay , a
litigant is entitled to assume that the losing party has accepted the finality of the order
and does not intend to pursue th e matter further.5 In such a case, the successful party
becomes entitled to order its affairs with an understanding that the order of court has
brought finality to the litigation and settled the dispute.

[34] The delay in bringing this appeal is inordinat e, and the manner in which it was
handled by those representing the appellant is bothersome. The explanations proffered
in the condonation applications dated July 2015 and November 2024, respectively, are
grossly insufficient and unreasonable . They evince negligence on the part of the
appellant’s attorneys in how they handled her appeal. In as much as the negligence on
the part of the appellant’s attorneys would be a factor that would call for leniency
towards the appellant, all the circumstances of the case must also be considered. In
Saloojee and Another NNO v Minister of Community Development6 the court said:

‘There is a limit beyond which a litigant cannot escape the result of his attorney’s
negligence or the insufficiency of the explanation tend ered. To hold otherwise
might have a disastrous upon the observance of the Rules of this Court.
Considerations ad misericordiam should not be allowed to become an invitation
to laxity. . . The attorney, after all, is the representative whom the litigant ha s
chosen for himself, and there is little reason why, in regard to condonation of a
failure to comply with a Rule of Court, the litigant should be absolved from the
normal consequences of such a relationship, no matter what the circumstances
of the failure are.’

[35] The inept itude and flagrant disregard of the Rules of Court by the appellant’s
legal representatives must be deprecated.

Lapsing of the appeal

[36] It is common cause that the appeal is deemed to have lapsed as envisaged in
Rule 49 , hence an application to reinstate it . The word ‘deemed ’ in this instance has
been considered to have conclusive effect — in the absence of the prosecution of the

5 Van Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus Curiae) 2008(2) SA 472(CC) at
479H -480A).
6 1965(2) SA 135 (A) at 141C -E.
appeal within the prescribed period the appeal wa s held to have lapsed .7 In Steel v
Shanta Construction (Pty) Ltd & others8, Coetzee J stated that the word ‘deemed ’
means ‘considered ’ or ‘regarded ’ and is used to denote that ‘something is a fact
regardless of the objective truth of the matter ’.

[37] There is absolutely no explanation why an application for the extension time
before the expiry date for the filing of the appeal was not made. Similarly, no reasonable
explanation has been proffered why there was no timeous application for condonation of
the late filing of this appeal immediately after the prescribed time frame expired . In view
of this fact, there is no reason for this Court to grant the condonation application. That
being said, the fact that the live issue between the parties relate s to their status makes
the case an important one to the appellant. I t is in the interests of justice that this Court
considers whether there are prospects of success despite the inordinate delay and the
insufficient explanation ; and th at is the issue to which I now turn .

The prospects of success

[38] Nowhere in the condonation application for the late prosecution of the appeal is
this Court given information which would enable it to assess the prospects of success. A
consideration of prospects of success is inexorably linked to a determination whether a
party’s failure to comply with the Rules of Court ought to be condoned. Not even a bare
averment is made by the deponent that the appeal enjoys prospects of success. That
being the case, we are at large to have recourse to the record of appeal before us and
assess those prospects. This approach was followed in SA Allied Workers’ Union (in
Liquidation) v De Klerk NO .9

[39] The key avermen ts that the appellant made in her answering affidavit filed in
opposing the application in the court a quo , are that she was married to the deceased
by ‘civil rites’ on 28 July 2002. She heard from the deceased that he and the third

7 Pereira v Group Five (Pty) Ltd & others 1996 4 ALL SA 686 (SE) at 698 , in which the court referred with
approval to Steel v Shanta Construction (Pty) Ltd & others 1973(2) SA 537 (T) .
8 Id footnote 7.
9 1992 (3) SA 1 (A) at 4B.
respondent were previously married by customary law, but that marriage was dissolved
by the Nyandeni Regional Authority. This was denied by the third respondent.

[40] In support of t he allegation that the deceased and the third respondent were
married by customary law , the appellant annexed a copy of what purports to be a record
of proceedings in the Nyandeni Regional Authority . From the combined summons
issued in the said Regional Authority, the deceased had sued the third respondent and
her guardian (her father) for the return of his dowry. The Regional Authority entered
judgment in favour of the deceased for the return of the dowry or payment of monetary
refund.

[41] Notably, the appellant adduce d no proof of her marriage to the deceased. In her
affidavit dated 08 April 2014 which she filed when she applied for condonation of the
late filing of her application for leave to appeal, she state d that at a certain point during
2013, investigations were conducted by the Department of Home Affairs regarding the
validity of her marriage to the deceased. During that period, s he was assisted by yet
another attorney from Legal Aid South Africa. The appellant does not state what the
outcome of those investigati ons was. She only mentions that the attorney who assisted
her while those investigations were undertaken left the employ of Legal Aid South
Africa, and Mr Kelengile took over as her attorney.

[42] The third respondent, on the other hand, alleged , in support of the interdict
application , that she was married to the deceased on 31 May 1994 and their marriage
was in community of property. She lost her marriage certificate , and as proof of her
marriage to the deceased she annexed a copy of the what ap pears to be a duplicate
abridged marriage certificate issued by the Department of Home Affairs on 28
November 2006. It was her evidence in this regard that she requested this copy in
November 2006.

[43] Together with this duplicate marriage certificate, t he third respondent annexed an
extract from the marriage register kept by the marriage officer which reflects her names
and those of the deceased, the year in which they were married, and the sequence
number of their marriage certificate. She denied that h er marriage to the deceased was
a customary one and that it was dissolved by the judgment of the Nyandeni Regional
Authority .

[44] The principal contention made by the appellant is that in the light of the judgment
of the Regional Authority, the marriage between the third respondent and the deceased
could only have been a customary one . She bas es this contention on the fact that
section 39(1) of the Transkei Marriage Act 21 of 1978 is the law that govern ed
marriages in Transkei at the time the third respondent and the deceased entered into
their marriage. According to the appellant, marriages concluded under that Act were
automatically out of community of property unless there was an ante nuptial contract in
terms of which the parties agreed to include community of property.

[45] It is indeed so, that t he Transkei Marriage Act makes provision for the conclusion
of civil and customary ma rriages. This is set out in sections 26 and 27 of the said Act.
The proprietary consequences of marriages entered into under this Act, whether civil or
customary, are governed by s ection 39 , the relevant part of which provides as foll ows:

‘(1) Subject to the provisions of subsection (2), a marriage contracted in terms
of the provisions of this Act shall produce the legal consequences of a marriage
out of community of property or of profit and loss; or

(2) It shall be competent for the parties to any intended civil marriage who
desire that community of property and of profit and loss shall result from their
marriage – (a) to enter into an antenuptial contract which provides for community
of property or of profit and loss; or

(b) to dec lared jointly before a magistrate or marriage officer, at any time prior
to the solemnization of such civil marriage and substantially in the prescribed
form that it is their intention and desire that community of property and of profit
and loss shall resu lt from their civil marriage, and thereupon such community
shall, subject to the laws relating to the registration of antenuptial contracts,
result in accordance with the provisions of such antenuptial contract or
declaration, case may be . . .’

[46] The a ppellant’s contention that since the third respondent did not adduce
evidence of a n ante-nuptial contract her alleged customary marriage to the deceased
was automatically out of community of property as a default regime cannot be
sustained. It overlooks the fact that under the above quoted provisions of subsection (2)
of section 39, a declaration before the marriage officer solemnizing the marriage , that
the parties intended their marriage to include community of property , was also sufficient.
Moreover, i n terms of section 12(1) of the Black Administration Act 38 of 1927 , the
Chief’s Court had no jurisdiction to determine a question of divorce or separation arising
out of any marriage which was not a customary union.10

[47] Besides the hearsay evidence adduced by the appellant that she was told by the
deceased that he and the third respondent were married by customary law, no other
evidence appears from the record supporting her contention.

[48] In the evidence that the dece ased adduced in the Regional Authority , he did not
testify regarding a divorce and the reasons therefor .11 His evidence was that the third
respondent had requested to go to her home. He subsequently discovered that the she
was not at her home. She made an admission to him that she was involved in an extra -
marital affair with someone in Centane. He assaulted her and reported the matter to her
parents. The deceased’s cause of action in the Regional Authority is set out , in pa rt, as
follows:

“4. That on or about October 1996 plaintiff’s wife went home unlawfully and
wrongfully and intentionally.


10 Although the jurisdiction of the Chief’s Courts (the Regional Authorities) was extended by the Regional
Authority Courts Act 13 of 1982, it would come into operation on a date fixed by the President. Section
3(1) of that Act reads:
“A regional au thority court shall, where – the accused in a criminal case; or all the parties in a civil suite,
are citizens of Transkei, exercise jurisdiction concurrently with the magistrate’s court within its regional
authority area and shall enjoy in all respects th e same powers, authorities and functions as that of the
magistrate’s court established in terms of the Magistrates’ Courts Act, 1944 as amended.”
11 TW Bennett – Customary Law in South Africa, (Juta) page 268 under ‘Grounds for Divorce’ , where the
learned author states that even though ‘grounds for divorce ’ as a pre -condition of the release of the wife
from marital obligations is a misnomer in customary marriages, since the return of lobolo , is necessary to
signify termination of marriage, and because the amount of lobolo to be returned depends partly on which
party was at fault, the reasons for divorce are nevertheless important.
5. That the plaintiff went to his wife (sic) kraal to fetch his wife and she refused to
go back to plaintiff’s kraal.

6. That plaintiff prays for judgment against the defendants to the customary fine, to
return plaintiff’s dowry (6) herd of cattle or their value of R10 800.00 plus costs.”

[49] It appears from the above quoted pleadings that the third respondent deserted
the deceased who then went to fetch her from her kraal. L earned author Bennett12
states that the wife’s desertion on its own would not constitute a valid divorce. He
further sate s as follows :

“The wife’s departure or desertion from her husband, on the other hand is an
equivocal act. It may very well imply deterioration in marital relations, but it does
not necessarily mean that the parties mean to separate permanently. Hence, if
the parties wish to express their intentions clearly, the should observe a particular
procedure. When the wife intends to initiate the divorce, she should leave her
husband and report her departure to the traditional ruler. I f the husband accepts
his wife’s action, which he would normally do by claiming the return of lobolo, the
marriage may be considered dissolved. Conversely, if the husband initiates the
divorce, he should escort his wife to her family and report the matter t o the
traditional leader. . .” (Emphasis added)

[50] In the court a quo, the appellant did not dispute the third respondent’s version
that the separation between her and the deceased was as a result of his abuse of
alcohol and promiscuous behaviour. She al so did not dispute the third respondent’s
assertion that there was continued engagement between the deceased and her family
with the purpose of facilitating their reconciliation. Bennett goes on to discuss
ukutheleka and phuthuma customs as the time-honore d methods of dealing with marital
discord. He states:

“If a wife proved troublesome, her husband could send her back to her own
family, with the implication that her guardian should discipline her. Conversely, if

12 Bennett, pages 270 to 274.
the husband made life unbearable for his wife, she could return to her guardian
who was obliged t o shelter her. The latter practice is termed theleka in Xhosa,
and it was traditionally used to protest against a husband’s behaviour or to
prompt further payment of lobolo. If the husband wanted his wife to come home,
he was obliged to phuthuma , namely, f etch her, and when he did so, the wife’s
guardian could demand a theleka beast as a fine for misbehaviour.”

[51] It is so that the return of lobolo was one of the customary methods of terminating
a marriage (unlike with marriages under the Recognition of C ustomary Marriages Act
120 of 1998, where the only way of dissolving a marriage is a divorce decree). However,
in paragraph 6 of the above quoted pleadings filed in the Regional Authority, the
deceased prayed for ‘the customary fine ’13 of the return of the plaintiff’s dowry.

[52] In the Oxford English Dictionary14 the word ‘fine’ as used in law is defined as ‘a
fee’, ‘a penalty of any kind ’, ‘a sum of money imposed as the penalty for breaking the
law or regulation ’. There is no evidence from the record before us indicating that the
‘customary fine’ of the return of the dowry which the deceased prayed for in the context
of the background facts that are apparent from the record of proceedings in the
Regional Authority , signified a dissolution of the marriage between him and the third
respondent.

[53] Equally unavailing to the app ellant is the assertion that the application was heard
in her absence. It was submitted in the appellant’s heads of argument , that the
application had not been properly set down for hearing on 14 August 2007 . In such a
case, the appellant had the option to apply for the rescission of the court a quo’s
judgment in accordance with the Rules of Court .

[54] The contention that the court a qu o was obliged to refer the matter to oral
evidence can also not be sustained. After it considered the papers before it, the court a
quo acknowledged the factual disputes arising from the papers and granted the order

13 Emphasis intended.
14 Shorter Oxford English Dictionary, Volume 2, page 965.
appealed against. This was in keeping wi th the trite principle in Plascon Evans15, in
terms of which the court may decide an application on papers despite there being
factual disputes. That will be the case where facts alleged by the applicant, which the
respondent admits, together with the facts alleged by the respondent justify the gra nting
of such a final order. After all, where the respondent’s version consists of bald or
uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far -
fetched or so clearly untenable, the court would be justified in rejecting them merely on
the papers.16

[55] Since, on the appellant’s version, an investigation was undertaken in 2013 by the
Department of Home Affairs into the status of her marriage to the deceased, it would be
expected that she would be keen to know the outcome of that investigation into a matter
as important as her status . She does not state what that outcome was but states that
the attorney from Legal Aid S outh Africa who assisted her left that office and Mr
Kelengile took over. The appellant does not mention t hat she enquired from Mr
Kelengile regarding the outcome of that investigation which was crucial to her case in
the intended appeal.

[56] The aforegoing puts to serious doubt the correctness of the appellant’s allegation
that the marriage between the third respondent and the appellant was a customary
marriage and was dissolved by the judgment of the Regional Authority. The appellant’s
version is untenable. The result is that her appeal enjoys no reasonable prospects .

Costs

[57] Mr Baceni submitted that he would not seek costs against the appellant . This
concession was well made. Since Mr Baceni undertook legal representation without the
expectation of payment of fees, there would be no basis for the payment of fees even if
the party he represents succeeds.

[58] In the result, I would make the following order:

15 Plascon - Evans Paints Ltd v Van Riebeck Paints (Pty) Ltd 1984(3) SA 620 (SCA).
16 Id.

1. Condonation for the late filing and prosecution of the appeal is refused.

2. The appeal has lapsed.

3. The reinstatement of the appeal is refused.

4. There is no order as to costs.


__________________
L. RUSI
JUDGE OF THE HIGH COURT

I agree and it is so ordered:

______________________
B. R. TOKOTA
JUDGE OF THE HIGH COUR T

I agree:

______________________
M. MHAMBI
ACTING JUDGE OF THE HIGH COURT


Appearances :

For the appellant : S Dyantyi
Legal Aid South Africa
Mthatha Local Office
For the first respondent : Z Baceni
Instructed by : Savela Fuzile Attorneys , Mthatha

Date heard : 17 February 2025
Date delivered : 18 March 2025