1
REPUBLIC OF SOUTH AFRICA
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IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
(1)
(2)
(3) REPORTABLE: ¥ES:/ NO
OF INTEREST TO THE JUDGES: ¥ES:{ NO
REVI ED
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Date: 03.f.07 / 2025
In the matter between:
CHIPO CHAROVA
And
LOVENESS MUKOYI
CHIPO CHAROVA N.O
MASTER OF THE HIGH COURT
THE MINISTER OF HOME AFFAIRS
JUDGMENT: LEAVE TO APPEAL CASE NO:4969/2021
APPLICANT
15T RESPONDENT
2ND RESPONDENT
3RD RESPONDENT
4TH RESPONDENT
2
MONENE AJ
INTRODUCTION
[1] This is an application for leave to appeal against a decision of this court handed
down electronically on 29 October 2024 in which this court found, in the main,
that that a Zimbabwean customary marriage entered into between one
Loveness Mukoyi, the first respondent and a now deceased Mishack Charova
was for the purposes of administering the deceased estate in South Africa
implicated valid and in the same breadth declared a "civil" marriage between
the deceased and Chipo Charova, the leave to appeal applicant, a nullity.
[2] In sum the grounds upon which the judgment and orders of this court, as I
understand them from the notice of application for leave to appeal and
extensive submissions by counsel before me, are assailed by the applicant are
the following:
2.1 That this court misdirected itself on its finding that it has jurisdiction to
determine the dispute.
2.2 That this court disregarded the fatality of lack of solemnization of a
customary marriage to the validity of a customary marriage in Zimbabwe
3
as well as the import of the customary wife's minority status at the time of
the conclusion of the marriage.
2.3 That this court misdirected itself in applying South African legal instruments
to declare the "civil" marriage of the applicant to the deceased a nullity
and should have relied on Zimbabwean law as the estate in question is
largely Zimbabwean. It seems to be argued somewhat incongruently and
in a conflated contradictory manner that either only Zimbabwean law or
only South African law ought to have been employed and not a
consideration of both.
[3] The parameters within which leave to appeal contestations are to be determined
are catered for in section 17 (1) (a) of the Superior Courts Act No 10 of 2013
("the Act") provides as follows:
"Leave to appeal may only be given where the judge or judges concerned
are of the opinion that-
(a) (i) the appeal would have a reasonable prospect of success; or
(ii) There is some other compelling reason why the appeal
should be heard, including conflicting judgements on the
matter under consideration ;"
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[4] Shedding more light on the above-stated leave to appeal test the SCA in
Ramakatsa and Others v African National Congress and Another (724/2019)
[2021] ZASCA 31(31 March 2021) ("Ramakatsa") at para 10, the Supreme
Court of Appeal held as follows:
"I am mindful of the decisions at high court level debating whether the use
of the word 'would' as opposed to 'could' possibly mean that the threshold
granting the appeal has been raised. If a reasonable prospect of success
is established , leave to appeal should be granted. Similarly, if there are
some other compelling reasons why the appeal should be heard, leave to
appeal should be granted. The test of reasonable prospects of success
postulates a dispassionate decision based on the facts and the Jaw that a
court of appeal could reasonably arrive at a conclusion different to that of
the trial court. In other words, the appellants in this matter need to convince
this court on proper grounds that they have prospects of success on
appeal. Those prospects of success must not be remote, but there must
exist a reasonable chance of succeeding. A sound rational basis for the
conclusion that there are prospects of success must be shown to exist. "
[5] In the unreported matter of Action Tinyiko Ngoveni and Another v Premier
Limpopo Province and 6 Others (0212022) Limpopo local Division,
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Thohoyandou [26 June 2024] this court made the following remarks which, in
my view, deserve repetition in casu:
"I momentarily pause, digress a bit and note that the court in Ramakatsa,
while not per se answering the question of whether 'would' infers a more
strenuous test than 'could', went on to itself employ the word 'could'. I
venture to state here, albeit uninvited to go so far, that, it would in my view
not be humanly possible nor permissible for a court seating as a court
determining a leave to appeal application to make a finding on what a court
of appeal would do. Such a finding would have some definitiveness which
would not only be prejudging the consequent appeal and thus conflating
the leave and appeal stages but would, if the appeal subsequently fails,
disrespectfully suggest rather that the court granting the leave was in its
injudicious soothsayer sighting of the future, some kind of false prophet.
Courts are, as we are taught, steeped in the facts and Jaw realm of this
planet and have no jurisdiction in the prophetic spiritual other worldly. In
my view therefore, despite the employ of the word "would" by the
legislature in the Act, the actual rational intended meaning remains "could",
which is not only a lesser attainable threshold but one judiciously and
rationally permissible. Perhaps that is why the SCA in Ramakatsa did not
pronounce with any definiteness on the debate at "high court level" on the
could/would interpretation ."
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[6] Avoiding regurgitation of this court's judgement , I am not persuaded that this
court's judgment and orders face a reasonable prospect of being overturned on
appeal either on the literal meaning of the "would" test in the statute nor this
court's suggested less strenuous test of a higher form of "could", regard being
had to the following considerations:
6.1 The matter having been referred to this court for oral evidence on the validity
of the two marriages , one concluded customarily in Zimbabwe ad the other
"civilly" in South Africa, it was incumbent on the parties to adduce evidence
to help the court determine the factual matrix. In that regard only the
Zimbabwean customary wife testified, the leave to appeal applicant did not
testify nor did she lead any evidence. Factually therefore the Zimbabwean
customary wife's version is uncontested on all fronts making the applicant's
protestations on age at marriage, which is spoken to at paragraph 37 of the
judgement with reference to the Customary Marriages Act of Zimbabwe
(Chapter 5:07) and related matters of no helpful value.
6.2 The point on solemnization of the Zimbabwean customary marriage was
sufficiently reasoned , with reference to a clear provision in section 68(3) of
the Zimbabwean Administration of Estates Act (Chapter 6:01) at paragraphs
33 and 34 of this court's judgement and needs no belaboring. In my view
therefore, no other court, correctly seeped in the context of the cultural
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milieu of the matter and the facts testified to by the old woman, Loveness
Mukoyi on both the pre-marriage and post marriage situation inclusive of
the post death happenings , would elevate the applicant's clasping at straws
to something concrete enough to discount the Zimbabwean customary
marriage.
6.3 There are no reasonable prospects that a court of appeal would find
differently to this court on the nullity of the "civil" marriage of the applicant,
at least for administration of estates purposes in the light of the solid
authority of the SCA in Monyepao v Ledwaba and Others (1368/18)
[2020] ZASCA("Monyepao") and Netshituka v Netshituka 2011 (5) SA
453(SCA)("Netshituka"). Beyond that, seriously eyebrow-raising
questions posed by this court at sub-paragraphs 44.1 to 44.2 of the
judgement and remaining unanswered by the leave to appeal applicant,
who remained mum despite a referral to oral evidence, suggest to this court
that the "civil" marriage did not need to be pitted against another to be set
aside. It falls on its own due to several unanswered questions and oddities
swirling around it.
6.4 The suggestion that there is a misdirection in this court's employ of both the
Jex loci ce/ebrationis of the customary marriage and the South African legal
instruments such as Monyepao, Netshituka, Benina Chitima v Road
8
Accident Fund (18996/2011) Western Cape Division(15 December
2011) and Zulu v Zulu and Others 2008(4) SA 12 D or the view that
perhaps only Zimbabwean or only South African law should have found
application(if that is what the notice of application for leave to appeal
communicates) strikes a serious discord with trite practice of law that it is
best to simply state that the submissions in that direction are unfortunate.
No other court may let alone will find differently on that score.
6.5 The inelegantly and half-heartedly taken point on jurisdiction is, in my humble
view, a non-starter. It simply stretches incredulity to even begin to fathom
that a court of appeal would endorse a biblical Pontius Pilate approach of
washing hands and stating that South African Courts lack jurisdiction in a
matter implicating a deceased estate found in this country.
[7] On account of the above considerations I find that none of the grounds mentioned
in the notice of application for leave to appeal and argued before me are
persuasive to tilt the scales in favour of the applicant when the section 17(1 )(a)
test alluded to supra and the attendant Ramakatsa rationale are applied.
[8] I understand the law as per section 17(1) (a)(ii) of the Act to be that beyond a
finding that there are no reasonable prospects of success a court hearing a leave
to appeal application must still enquire into whether there is any compelling
9
reason why the appeal should be entertained and based on which leave may be
granted. Apart from the obvious relative novelty of the issues involved in casu I
am unable to find any compelling reason for leave to appeal to be granted. I
certainly do not understand novelty of a matter to on its own constitute a
compelling reason to bloat courts of appeal with appeals which are substantially
poor on prospects of success, as, in my view, the one in casu. If the relatively
novel aspects of this matter are to be entertained and determined differently or
entrenched by a court of higher standing, it must not be through this court
granting leave where it strongly holds that the leave to appeal test bars it to.
Other routes of reaching those heights remain available if properly summitted .
[9] In all the above premises there are, in my view, no reasonable prospects that the
applicant could, let alone would, succeed on appeal. The application should thus
fail.
[1 O] The application for leave to appeal was successfully opposed by the first
respondent, Loveness Mukoyi. There is no reason why the costs of this
application should not, as is custom, follow the event.
[11] In the result, I make the following order:
11.1 The application for leave to appeal is dismissed .
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11.2 The applicant, Chipo Charova, is ordered to pay the costs of this
application which costs shall include the costs of counsel on scale B
MALOSE. S. MONENE
ACTING JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
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APPEARANCES
Heard on: 07 April 2025
Judgement delivered on: 03 July 2025
For the Applicant: Mr Maphutha M E
On Instructions from: Mathabatha Lekoloane Attorneys
Email: m11attorneys@gmail.com
For the First Respondent: Mr Mureriwa I
On instructions from: DDKK Inc. Attorneys
Email: vz@ddkk.co.za