IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION: MTHATHA]
CASE NO.1429/2022
In the matter between:
BABALWA NOMANDELA Applicant
and
NONTEMBISO PRISCILLA MONDI 1st Respondent
MINISTER OF HOME AFFAIRS 2nd Respondent
THE DIRECTOR GENERAL OF THE DEPARTMENT OF
HOME AFFAIRS 3rd Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
JOLWANA J
[1] The applicant has approached this Court seeking a declarator the effect of which,
if granted, would be the nullification of the marriage between the first respondent and
the late Phillip Mondi. If successful in that main relief, she seeks an order directing
the second respon dent to expunge the marital records of Phillip Mondi (Phillip) and
the first respondent. Only the first respondent opposes this application, the other
respondents having played no role in it and have elected to abide the decision of the
court. Henceforth t he first respondent shall be referred to simply as the respondent
and the second and third respondents shall be referred to collectively as the
department.
[2] The applicant is the mother of a minor child and it is on behalf of the said minor
child that sh e has instituted these proceedings. She had a love relationship with Dr
Khaya Mondi (Khaya) as a result of which the minor child was born. Khaya is the son
of the late Phillip Mondi (Phillip) and the respondent and therefore the minor child is
the grandson of Phillip and the respondent.
[3] When the minor child was born, the applicant and Khaya registered him at the
department with the surname Mondi which is Khaya’s surname as they intended to
get married at some point in the future. Khaya made the minor c hild a dependant in
his medical aid. The minor child was born on 11 September 2017 and shortly
thereafter, just over three months after the birth of the minor child, two tragic events
occurred, one almost immediately after the other. The first one was that Khaya sadly
passed away on 23 December 2017. About eleven days after the passing of Khaya,
and before the interment of his mortal remains, Phillip also sadly passed away on 3
January 2018.
[4] Khaya had introduced the applicant to his mother, the responde nt. When Khaya
and Phillip passed away, the applicant used her own money together with that of
Khaya to pay for the funeral expenses for both of them. She withdrew Khaya’s
money using Khaya’s bank card and gave it to the respondent to pay for Khaya’s
and P hillip’s funeral expenses. During Khaya’s lifetime the respondent visited the
applicant to see the minor child. The applicant accompanied Khaya when he visited
his mother in Brakpan, Gauteng where she stayed at the time to inform her of his
intention to marry the applicant.
[5] Khaya had taken a life insurance policy cover of R3 612 271.61 on his life and he
had made his parents, the respondent and Phillip, beneficiaries in that insurance
policy life cover in the event of his death. The applicant posits that it is that money
that is at the core of the dispute between herself and the respondent. After the
funeral of Khaya and Phillip the applicant and the respondent went together to seek
legal advice from the applicant’s current attorneys of record . The respondent needed
assistance in claiming her portion of the proceeds of that insurance policy cover
whereas the applicant needed legal advice regarding the rights of the minor child as
the minor child was supported by Khaya during his lifetime. The a pplicant was
advised to report the estate of Khaya with the Master of the High Court (the Master)
in order for her to lodge a claim for the minor child.
[6] The applicant alleges that instead of claiming her portion of the money from the
insurance company, the respondent claimed the whole amount under the pretext of
being Phillip’s wife. The claim for her portion was successful, however, the
respondent was unable to successfully claim Phillip’s portion. The applicant alleges
that this was because when the r espondent was asked about her surname as it
appears in her identity document as Nongowenga as against Phillip’s surname which
is Mondi, she deposed to an affidavit in which she stated that she was not married to
Phillip.
[7] The applicant further alleges that Phillip’s siblings instructed a firm of attorneys to
demand that a paternity test be done to determine the minor child’s paternity
claiming that the minor child was not Khaya’s biological child. It was also claimed on
their behalf that if the paterni ty test established that the minor child was not Khaya’s
biological child, they would be entitled to the estate of Phillip. Before the paternity
test could be done those attorneys’ mandate was terminated. The firm of attorneys
that had represented the resp ondent in case no. 3710/19 had also written a letter to
the applicant’s attorneys in which they claimed on behalf of the respondent, that
Phillip had another child named Mpho and therefore Khaya had a sister. The
applicant alleges that the respondent also lied in this regard for the purpose of
ensuring that the portion due to the minor child would be inherited by Mpho.
[8] The applicant alleges that before the posthumous marriage certificate was issued,
the department did not conduct any investigation. Therefore, in issuing the marriage
certificate without any investigation, the department acted negligently and possibly in
cahoots with the respondent. She, therefore, sought to have said marriage certificate
declared unlawful and invalid. T he applicant further alleges that the minor child is
sickly and during Khaya’s lifetime, he had been on his medical aid. She now has to
use her own medical aid which is not enough as its funds get depleted before the
end of her medical aid’s annual cycle. She then has to buy some of the minor child’s
medication cash using her own money from time to time. On these bases, she
alleges that she has to protect the interests of the minor child who cannot act on his
own. She further alleges that Phillip’s estate h as been finalised but the Master is not
able to authorise its distribution because of the respondent’s claim to be Phillip’s
wife. These delays in the finalisation of Phillip’s estate have placed her in a
financially precarious position due to lack of fina ncial support from Phillip’s estate.
These are some of the allegations made by the applicant as the basis for the relief
These are some of the allegations made by the applicant as the basis for the relief
sought in her notice of motion.
[9] The respondent opposes this application. She has filed an answering affidavit
which, for some stra nge reason, has not been drawn conventionally to refer to each
paragraph in the founding affidavit. In that answering affidavit she disputes the
applicant’s allegations and has also raised a point in limine in which she challenges
the applicant’s locus standi in udicio . This is on the basis that the applicant has, in
the heading to the notice of motion and the founding affidavit, only reflected her
names, and not reflected herself as acting on behalf of the minor child. Secondly, the
applicant has indicated in her founding affidavit that she is acting as the mother and
therefore the natural guardian of the minor child. The applicant makes the allegation
that she has a clear right to protect the interests of the minor child who cannot act on
his own. The applicant further alleges that she is suffering harm because her child is
not being supported in circumstances in which the minor child is sickly and the
applicant exhausts her medical aid and even buys medication sometimes. The
respondent contends that there is no nexus between any of these allegations and
the relief sought whose gravamen is the declaration of invalidity of the marriage
between the respondent and Philip. The respondent further contends that even the
applicant’s allegation that the marriage sh ould be declared invalid because it is
intended to claim a benefit due to the minor child and is based on lies does not help.
In this regard it was also argued on behalf of the respondent that to the extent that
the minor child, as a grandson to Phillip, i s entitled to lodge a claim with the executor
of Phillip’s estate, the applicant should do so. It is the executor of Phillip’s estate who
will determine the entitlement or otherwise of the minor child, to a benefit in Phillip’s
estate. The main point is th at for the applicant to seek to invalidate the marriage
estate. The main point is th at for the applicant to seek to invalidate the marriage
between the grandparents of the minor child in order to protect the alleged
entitlement of the minor child is too remote.
[10] In Firm-O-Seal CC 1 Ponnan JA restated the requirements for a litigant to
establish locus standi as follows:
“Locus standi in iudicio is an access mechanism controlled by the court itself.
Generally, the requirements for locus standi are these: the plaintiff must have an
adequate interest in the subject matter of the litigat ion, usually described as a direct
interest in the relief sought; the interest must not be too remote; the interest must be
actual, not abstract or academic; and, it must be a current interest and not a
hypothetical one. Standing is thus not just a procedural question, it is also a question
of substance, concerning as it does the sufficiency of a litigant’s interest in the
proceedings. The sufficiency of the interest depends on the particular facts in any
given situation. The real enquiry being whether the events constitute a wrong as
against the litigant."
[11] As a general proposition, it is unfathomable for a girlfriend to challenge the
validity of the marriage of the parents of her late boyfriend on behalf of her minor
child. This, in circumstances in wh ich there is no record of her boyfriend, the late
Khaya, having questioned the marriage between his parents. It is even more difficult
to understand a grandchild, after the death of his father, going to court, as the
applicant does on behalf of the minor c hild, to challenge the marriage of his own
grandparents. This, to my knowledge, is unprecedented. There is evidence in the
form of written confirmation filed by or on behalf of Phillip’s siblings who explain that
their brother, Phillip, was married to the respondent. There is also the evidence of at
least two traditional leaders both of whom confirm that the respondent and Phillip
were married in terms of customary law. It is not the applicant’s case that some or
other requirements for a valid customary mar riage were not met assuming that she,
not being part of the Mondi family, would be sufficiently well versed with that family’s
not being part of the Mondi family, would be sufficiently well versed with that family’s
customary rites. Her case is that the marriage never existed, and it is based on lies.
1 Firm-O-Seal CC v Prinsloo & Van Eeden Inc and Another 2024 (6) SA 52 (SCA) para 6.
[12] However, the basis on which she clai ms to have knowledge of the true facts
despite not being part of that family, being just a girlfriend, is not fully canvassed in
the papers. It seems to be based on some or other alleged inconsistencies in the
respondent’s averments in another case (case n o. 3710/19) whose papers are not
part of this case. The minor child’s interests which the applicant contends she is
protecting could either be inheritance or maintenance. These causes of action are
jumbled up in the founding affidavit. They are not properl y set out as they are both
fleetingly referenced at best by being mentioned in passing as against asserting a
right by being properly pleaded with sufficient degree of clarity. Most importantly it is
not immediately apparent in the pleadings why either or both of these causes of
action should clothe the applicant with locus standi for the relief sought. It is inter
alia, on these bases that the respondent contends that the applicant’s apparent
cause of action is too remote to found locus standi to challenge the validity of her
marriage with Phillip.
[13] The applicant’s current attorneys of record were appointed executors of both
estates, that is, the estate of Khaya and that of Phillip. The respondent refused to
hand over Phillip’s and Khaya’s original iden tity documents to the said executors.
This led to a court application under case no. 3710/2019 which was instituted in
order to compel the respondent to hand over to the said executors, the original
identity documents of Phillip and Khaya. The applicant alleges that in that application
the respondent deposed to a supplementary affidavit in which she said that she was
married to Phillip and attached a letter from the Chief of Hlubi Traditional Council
who confirmed that the respondent was married to Phillip. However, the respondent
had denied being married to Phillip in her answering affidavit in that case which
had denied being married to Phillip in her answering affidavit in that case which
contradicted what she later alleged in her supplementary affidavit. The respondent
made an application for the issuing of a marriage certificate to h er by the department
posthumously. In that application the respondent attached an affidavit deposed to by
one Simon Mondi who confirmed that the respondent and Phillip were married to
each other and that lobola consisting of three cows was paid in 1984. Th ere was
also a lobola letter in which the Mondi family appears to have been represented by
one Mbulelo Mondi and Thanduxolo Mondi while the respondent’s family was
represented by one Thobile Nongowenga in the lobola negotiations. The said letter
also confirmed that lobola consisted of three cows amongst other things. It appears
in those documents that other traditional rites were also observed.
[14] All these documents were submitted to the department by the respondent to
prove the existence of her marriag e with Phillip. They therefore were the basis for
the department to issue the marriage certificate. The fraud which the applicant
alleges seems to be based on conjecture and not facts. The applicant herself, being
aware of the alleged fraud which was alleg edly committed to the prejudice of the
minor child and herself was not reported to the police. The applicant alleges that all
of the documents lodged with the department were based on lies as the marriage
between Phillip and the respondent did not exist. S he alleges that it was for this
reason that she sought the relief for it to be declared invalid and that such lies were
told for the purposes of claiming the benefits which the applicant claims are due to
the minor child. She further alleges in her foundin g affidavit that none of Phillip’s
siblings confirmed the existence of the marriage as they did not participate in the
confirmation of the existence of the marriage at the department. However, she did
not attach any affidavit by any of Phillip’s sisters to one or some of whom she was
introduced by Khaya during his lifetime, as she alleges. She does not even indicate
why she could not do so.
[15] There is another reason why the applicant’s locus standi is tenuous at best. It is
that it appears from the paper s that the applicant was aware when she instituted
these proceedings that there is an unresolved paternity issue in respect of the minor
child. If it turns out, after a paternity test, that indeed the minor child is the biological
child of Khaya, that wil l settle that specific issue. However, in the event that it turns
out that the minor child is not the biological child of Khaya, not only will the minor
child’s entitlement to maintenance in Khaya’s estate but also his entitlement to claim
inheritance from Phillip’s estate will also be untenable. To the extent that the
paternity of the minor child is still shrouded in uncertainly, the locus standi of the
applicant to seek the relief she seeks on behalf of the minor child is similarly
untenable, even assumin g she had a factual and legal basis to seek that relief. It is
alleged in the applicant’s founding affidavit that the paternity test cannot be done
because Phillip had no male sibling. The proposition being made, as I understood it
during oral submissions in court, was that females are unsuitable to determine the
paternity of a child. I am not sure I understand what this means exactly but to the
extent that the proposition is that as a scientific fact, a female person is not suitable
to determine consanguin ity and therefore only males are, I was not referred to any
authority for that proposition. I must confess to being totally dumbfounded by the
absurdity of that proposition.
[16] In all these circumstances, the first respondent’s point in limine stands to be
upheld as the applicant has failed to establish that she has the necessary locus
standi to challenge the marriage of her boyfriend’s parents. This is so even if she
purportedly does so, as she claims to do, on behalf of the minor child as the minor
child’s paternity remains unresolved.
[17] There is another reason why the applicant cannot succeed. It is that even on the
applicant’s own showing, it is clear that there is a massive dispute of fact about the
issue of the inheritance in Phillip’s estate. The applicant alleges in her founding
affidavit that as far back as the 13 July 2020 the siblings of Phillip instructed their
attorneys to assert their right to inheritance together with the issue of the paternity of
the minor child which she says they raised. Back then, a paternity test was
demanded formally. That has not yet been attended to. Therefore, there is a factual
dispute as to whether the siblings of Phillip as against the minor child are the correct
heirs to inherit in Phillip’s estate i f the applicant’s allegations are accepted for a
moment. These proceedings are not about determining the issue of intestate
succession in Phillip’s estate, they are about the declaration of invalidity of the
customary marriage between Phillip and the respondent. However, the declaration of
invalidity of the marriage will have, as one of its consequences, the elimination of the
minor child’s grandmother (if the minor child is indeed Khaya’s child) from the
inheritance in her own husband’s estate which marria ge the applicant alleges, never
existed.
[18] In her founding affidavit, the applicant has also annexed documents from
traditional leaders, an application for the registration or enquiry into the existence of
the customary marriage between Phillip and the respondent, a marriage certificate
issued posthumously by the Department of Home Affairs, a lobola letter and an
affidavit by one Simon Mbulelo Mondi who also confirms the existence of the
marriage and details the lobola that was paid and some of the custo mary rituals that
were observed by the Mondi family when the respondent allegedly got married
customarily to Phillip. The applicant simply dismissing all this evidence which she
was aware of as lies is not sufficient. At the very list, this evidence points to the
existence of a massive dispute of fact known to the applicant already when the
application papers were issued. How the applicant and her attorneys ignored it and
elected to institute motion proceedings is unfathomable.
[19] The respondent raised th e issue of the dispute of fact in her answering affidavit
very pointedly. She even attached a document signed by Phillip’s siblings in which
they all confirm that the respondent and their late brother, Phillip were married.
Surprisingly, in her replying af fidavit, the applicant again ignores this dispute of fact
and again adopts a dismissive attitude with wild allegations of impropriety accusing
them of an ulterior motive; clubbing together against her application; of possibly
having been paid to give false evidence among other things. This, on applicant’s
version, they do by confirming the marriage between the respondent and Phillip. In
any event, the point is that all of this points to the existence of a huge dispute of fact.
Surprisingly, the applicant st ill elected not to apply for the referral of the matter to
oral evidence in her replying affidavit. This was the second time this choice was
made, the second occasion being after receiving the respondent’s answering
affidavit which, if she had any doubt in her mind about the existence of the dispute of
fact, the answering affidavit made it abundantly clear beyond all doubt.
[20] The existence of a dispute of fact in motion proceedings is provided for in rule
6(5)(g) of the Uniform Rules of Court which reads:
“Where an application cannot properly be decided on affidavit the court may dismiss
the application or make such order as it deems fit with a view to ensuring a just and
expeditious decision. In particular, but without affecting the generality of the
foregoing, it may direct that oral evidence be heard on specified issues with a view to
resolving any dispute of fact and to that end may order any deponent to appear
resolving any dispute of fact and to that end may order any deponent to appear
personally or grant leave for such deponent or any other person to be subpoenaed to
appear and be examined and cross-examined as a witness or it may refer the matter
to trial with appropriate directions as to pleadings or definition of issues or otherwise.”
[21] Recently, the Constitutional Court has had occasion to explain the principles
applicable in dispute of fact situations, albeit in relation to a rule 53 application. In
Mamadi2, writing a unanimous judgment of the court, Theron J said:
“[43] Does a litigant who brings a review in terms of rule 53, and thus on motion, where
disputes of fac t are reasonably foreseeable, act in an impermissible way? Quite
plainly not. Litigants are constitutionally entitled to make use of rule 53 in review
proceedings, in order to properly give effect to their section 34 rights. It therefore
cannot be that a l itigant can be penalized through the use of rule 6(5)(g), merely
because rule 53 was utilized. It follows that a court does not have a discretion under
rule 6(5)(g) to dismiss an application brought in terms of rule 53 on the basis that
reasonably anticipated disputes of fact arise on the papers. This is neither just -
because it penalises a litigant for making use of the procedural advantages of rule
53 - nor does it facilitate an expeditious and inexpensive resolution of the dispute,
because it forces a litigant to begin proceedings afresh by way of action.
[44] This does not mean that an applicant in a rule 53 application is entitled, as of right,
to have a matter referred to oral evidence or trial. General principles governing the
referral of a matter to oral evidence or trial remain applicable. Litigants should, as a
general rule, apply for a referral to oral evidence or trial, where warranted, as soon
as the affidavits have been exchanged. Where timeous application is not made,
courts are, in general, e ntitled to proceed on the basis that the applicant has
accepted that factual disputes will be resolved by application of Plascon Evans .
Likewise, where an applicant relies on Plascon Evans, but fails to convince a court
Likewise, where an applicant relies on Plascon Evans, but fails to convince a court
that its application can prevail by application of the rule, a court might justifiably
refuse a belated application for referral to oral evidence. A court should however
proceed in a rule 53 application with caution. An applicant might institute
proceedings in good faith in terms of rule 53 , in order to secure the advantages of
the rule and on the basis that the application can properly be decided by application
of Plascon Evans, only for the respondent to later show that this is not so. In these
circumstances, provided the dispute of fact w hich emerges is genuine and far -
2 Mamadi and Another v Premier of Limpopo Province and Others 2024 (1) SA 1 (CC) para 43 -45.
reaching and the probabilities are sufficiently evenly balanced, referral to oral
evidence or trial, as the case may be, will generally by appropriate.
[45] It bears emphasis, however, that litigants cannot permissibly apply for referral to
oral evidence or trial “where the affidavits themselves, even if accepted, do not
make out a clear case, but leave the case ambiguous, uncertain or fail to make out
a cause of action.” In that event, the application should of course fail, without
recourse to Plascon Evans or oral evidence. But where a case is properly made
out, the disputes of fact are genuine, far -reaching and fundamental and cannot be
resolved by application of Plascon Evans, the proper course in rule 53 proceedings
is, in general, referral to oral evidence or trial. Dismissal without rendering a
decision in these circumstances is inappropriate. Both rule 53 and the PAJA Rules
render review by way of motion the default position. Determining a review
application without ma king a final decision frustrates the purpose of expeditiously
addressing unlawful administrative action. Put differently, where a review
application is dismissed without rendering a final decision so as to compel a litigant
to proceed by way of action this purpose is frustrated.”
[22] In this matter the applicant’s papers are not a model of clarity, and that is putting
it mildly. The cause of action is poorly pleaded especially as it relates to the relief
sought with the result that it is not immediately apparent from the papers whether the
applicant seeks to enforce the minor child’s right to maintenance from Phillip’s estate
or to inheritance. The averments seem to support a cause of action which only by
stretching the interpretation of the applicant’s ave rments, could possibly be a claim
of inheritance or maintenance in Phillip’s estate. In that case, the duty of support is
not alleged or the basis for the maintenance claim. There is also an allusion to the
not alleged or the basis for the maintenance claim. There is also an allusion to the
minor child being entitled to inherit in Phillip’ s estate by representation. Again, this is
not properly pleaded regard being had to the relief sought. In any event, how any of
that clothes the applicant with a locus standi to seek a declaration of invalidity of the
marriage between Phillip and the respondent and therefore the marriage of her minor
child’s grandparents is not properly pleaded. The minor child’s entitlement to
maintenance or inheritance, even if it exists, does not per se clothe the mother of the
said minor child, being a girlfriend, with locus standi to challenge the validity of the
marriage of her late boyfriend’s parents. I am of the view that foundations of family
relationships, in particular in customary marriages, would be rendered unstable and
under constant threat if familial bonds in traditional settings could easily be
challenged by girlfriends purportedly acting in the interests of their minor children in
asserting their alleged rights to maintenance or inheritance in a deceased estate.
This is totally undesirable in my view espec ially in circumstances in which in our
country’s rural and traditional settings, customary marriages tend to be concluded
with little to no formal officiation or documentary evidence of their conclusion.
[23] There is another issue of concern in a matte r like this which concerns the estate
of a deceased person. The executor in the estate of the late Khaya Mondi has not
been cited. Similarly, the executor of the estate late Phillip Mondi is not cited at all
and yet they are the parties legally charged wit h the administration of both estates
that appear to be at the centre of the dispute. It is unclear how far the executors
have gone with the administration of these estates and what their views are on the
issues raised by the applicant. Their views on the i ssue of the paternity of the minor
child remain unknown. As I said earlier, if the minor child is proved not to be Khaya’s
biological child, his inheritance in Khaya’s estate will become untenable. The Master
of the High Court has not been cited, to the extent that this matter has as its genesis,
the estate of Phillip Mondi and to the extent that the issue of the paternity of the
minor child has not been resolved and is challenged. The Master has also not been
served with the papers in this matter or reques ted to file a report which explains the
status of these estates and what the Master’s position is on any of the myriad of
status of these estates and what the Master’s position is on any of the myriad of
issues involved in administration of intestate estates where there are competing
claims.
[24] This seems to fall foul with the clear provisions of rule 6(9) of the Uniform Rules
of Court which reads:
“A copy of every application to court in connection with the estate of any person
deceased or alleged to be a prodigal, or under any legal disability, mental or
otherwise, must, before such application is filed with the registrar, be submitted to the
Master for consideration and report; and if any person is to be suggested to the court
for appointment as curator to property, such suggestion must likewise be submitted
to the Master for report. Provided that the provisions of this subrule do not apply to
any application under rule 57 except where that rule otherwise provides.”
No master’s report has been filed and yet the applicant’s entire case is about
entitlement to inheritance in the estate of the late Phillip Mondi. This is besides the
applicant’s locus standi and the Plascon Evans rule which I have dealt with
extensively hereinbefore. As far as the Plascon Evans rule is concerned, the
respondent’s version prevails where the respondent’s version is not far-fetched.
[25] Recently, the implications of inappropriately instituting motion court proceedings
and the court determining the matter on the respondent’s version were recently
restated by the Constitutional Court in African Congress for Transformation 3 in
which the court said:
“[94] The manner in which a dispute of fact may arise is well -known and has been
authoritatively outlined in Room Hire. The present instance falls under the first
of the three scenarios enumerated in Room Hire. The Commission has denied
all the material allegations by the applicant relating to two central issues, the
alleged malfunctioning of the OCNS and that this was what caused the
applicants’ non -compliance. The Commission has proceeded beyond mere
denials and has put up positive facts to the contrary, and those facts are neither
untenable nor far-fetched.
untenable nor far-fetched.
3 African Congress for Transformation v Electoral Commission of South Africa; Labour Party of South Africa v
Electoral Commission of South Africa and Others; Afrikan Alliance of Social Democrats v Electoral Commission
of South Africa 2024 (8) BCLR 987 (CC).
[95] Motion proceedings are unsuitable to decide probabilities. In instances where
final relief is sought, motion proceedings are aimed at resolv ing issues of law
based on common cause facts. And where disputes of fact arise, absent a
referral for oral evidence, the Plascon-Evans approach, as amplified in
Wightman, must be employed. There is no basis to reject the Commission’s
denial that these two applicants’ failure to comply with the Election Timetable
was not due to the malfunction of the OCNS, but due to their own procrastination
and ineptitude. The Commission supported its denial with positive facts. There is
thus a genuine dispute of fact on the papers.”
[26] The respondent has not only denied that she was not married to Phillip, she has
also asserted positively that she was married to Phillip in 1984 as a result of which
their son, Khaya was born in 1986. Furthermore, she has, in a supplement ary
affidavit, also come up with positive facts supported by affidavits, one with signatures
of all Phillip’s biological sisters who say that she was customarily married to Phillip.
Those positive facts are neither untenable nor far -fetched. There is thus a genuine
dispute of fact on the papers. This would be so even if the paternity of the minor child
was not placed in issue by anyone.
[27] In all these circumstances, and for all the reasons discussed above, the
applicant has failed to make out a proper ca se for the relief sought in the notice of
motion. It stands to reason that the applicant’s application be dismissed. There is no
reason why costs should not follow the result.
[28] In the results, the following order is issued:
1. The application is dismissed.
2. The applicant is ordered to pay costs on scale B.
________________________
M.S. JOLWANA
JUDGE OF THE HIGH COURT
Appearances
Attorney for the applicant : M. Mantyi
Instructed by : Mantyi Attorneys
Mthatha
Counsel for the 1st respondent : A. Nase
Instructed by : Njuze Attorneys c/o Mbuto Nongqunga Inc.
Mthatha
Date head : 28 August 2025
Date delivered : 23 September 2025