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[2025] ZAGPJHC 1279
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N.I.M v M.M (034446/19) [2025] ZAGPJHC 1279 (12 December 2025)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE NO:
034446/19
(1) REPORTABLE:
NO
(2) OF INTEREST TO OTHER
JUDGES: NO
(3) REVISED: NO
12-12-2025
In
the matter between:
N.
I.
M.
Applicant
And
M.
M.
(born
M)
Respondent
JUDGMENT
THIS
JUDGEMENT HAS BEEN HANDED DOWN REMOTELY/ELECTRONICALLY AND SHALL BE
CIRCULATED TO THE PARTIES BY WAY OF E- MAIL/ UPLOADING
ON CASELINES
AND/OR COURT ONLINE. ITS DATE OF HAND
DOWN
SHALL BE DEEMED TO BE
DECEMBER
12, 2025
NTANGA AJ:
Introduction
[1]
This matter appeared before me as an application for leave to appeal
the orders set out in the application for leave to
appeal and the
part of the judgment pertaining to those orders granted by this
Court, issued and delivered on October
10, 2025. The application is opposed by the Respondent.
[2]
The Applicant applied for leave to appeal
to the Supreme Court of Appeal, alternatively, to the Full Court of
the Gauteng Division,
Johannesburg against the orders set out in the
application for leave to appeal and part of judgment delivered on
October 10, 2025.
I considered the grounds for leave to appeal, heads
of argument and oral arguments by Counsels for both parties. I am
grateful
to both Counsels as their submissions played an important
role in assisting the Court.
[3]
The Applicant’s grounds for leave to
appeal can be summarized as follows:
3.1
that the Acting Judge erred in finding that the Plaintiff and the
Defendant entered
into a valid customary law marriage on or about May
14, 2011;
3.2
that the learned Acting Judge misdirected himself in impermissibly
declaring that
the civil marriage entered into between the Plaintiff
and the Defendant on January 5, 2017 to be invalid;
3.3
that the learned Acting Judge erred in finding that the antenuptial
contract concluded
between the Plaintiff and the Defendant on or
about December 21, 2016 is invalid and unenforceable, alternatively
void, alternatively
voidable and has been validly cancelled;
3.4
that the learned Acting Judge misdirected himself in finding that the
parties should
have complied with Section 21 of the Matrimonial
Property Act of 1984 (to change their matrimonial property system
from in community
of property to out of community of property) or
with
Section 88
of the
Deeds Registries Act
47 of 1937
to register their antenuptial contract postnuptially;
3.5
that the learned Acting Judge erred in awarding the Plaintiff spousal
maintenance;
3.6
that the learned Acting Judge erred with regard to his assessment of
the Plaintiff’s
evidence and finding that she was truthful,
answered questions fairly and honestly and was straight forward and
that her evidence
may be relied on; and
3.7
that the learned Acting Judge ought to have rejected the Plaintiff’s
evidence
and accepted the Defendant’s evidence on all material
issues referred to.
Submissions
[4]
Applicant argued that this is a matter of a
question of law of general application. It was argued that the issues
concluded in the
main judgment are of considerable importance. It was
further argued that, if reasonable prospects of success is
established, leave
to appeal should be granted to the Supreme Court
of Appeal because the decision made in the main judgment is an
important question
of law.
[5]
The
Applicant further argued that parties who are competent to be married
to one another in terms of customary law, and if not already
married,
there is no requirement for judicial oversight to change the
matrimonial regime. Considering the decision of J.R.M v V.V.C.
and
Others
[1]
, Applicant submitted
that this is a matter that should be referred to the Supreme Court of
Appeal on interpretation of Section
10 of the Recognition of
Customary Marriages Act
[2]
. The
Applicant further argued that if the Legislature had intended
judicial oversight, that would have been clearly indicated and
Section 10(2) of the Recognition of Customary Marriages Act is
unambiguous and should be applied as is.
[6]
On whether the parties were married in
terms of customary marriage, the Applicant argued that neither of the
parties knew that they
were married in community of property. The
Respondent only became aware of this when she consulted with her
legal representatives
in preparation for the divorce proceedings.
This was submitted to substantiate the Applicant’s averment
that he has prospects
of success in the appeal.
[7]
The Applicant argued that the Court erred
in declaring that a valid customary marriage was entered into, having
regard to what was
pleaded by the Respondent and that she did not
plead consent for the parties to be married in terms of customary
law. It was further
argued that the Court has a duty to examine the
practice of the community and the Respondent omitted to plead which
customary law
was applicable and she bears the onus to prove that the
marriage was negotiated and celebrated.
[8]
The
Applicant argued that the Respondent did not plead evidence as to why
she relied on the provisions of Section 7 of the Divorce
Act
[3]
and argued that if the need is not shown, the Respondent’s case
should fail. Entitlement to maintenance first must be shown
before a
decision is made. Applicant argued that there was no factual basis
for the Respondent’s claim for maintenance. It
was argued that
the Court erred in awarding maintenance as the Plaintiff failed to
show need, quantum and duration. The Applicant
argued that
substantial amounts are paid regularly to the Respondent.
[9]
Respondent argued that the Applicant raised
new points that were not pleaded and this was not adduced as evidence
during trial proceedings.
It was argued that the Applicant’s
case was that the customary rituals were undertaken to appease the
families and elders.
The Respondent argued that the Applicant has
introduced a new dimension of appeasing the Respondent’s
family. The Respondent
argued that the Applicant has never made a
case that certain rights were never followed, it was argued that all
the things that
were said by the Respondent to have been done were
never in dispute. The Respondent argued that there was no need to
call experts
or collateral evidence to prove something that was not
in dispute. The Court was drawn to view the customary law in the
common
law prism. It was argued that the Court was correct to state
that customary law must reclaim its position among existing legal
positions. The Respondent argued that the Applicant has no prospects
of success on appeal.
[10]
The Respondent dealt with the issue of
whether there are compelling reasons for the appeal to be heard,
including conflicting judgments
on the matter under consideration.
She argued that the Court was bound by the document before it and the
Applicant did not indicate
in his application for leave to appeal
that there are compelling reasons for the appeal to be heard.
[11]
When dealing with the submission relating
to Section 10(2) of the Recognition of Customary Marriages Act, the
Respondent argued
that this provision contemplates a marriage in
terms of customary law and the Applicant denied that he was married
to the Respondent
in terms of customary law. Section 10(2) of the
Recognition of Customary Marriages Act requires that there must be a
customary
marriage in existence before it can be applicable.
[12]
The Respondent argued that the issue of
consent should not be accorded the ordinary interpretation. It was
argued that the Applicant
demonstrated by state of mind and physical
presence that he consented. The Respondent further argued that the
Applicant seems to
want to remove the significance of family role in
a customary marriage, whilst a marriage in customary law involves the
families.
The Respondent argued that the Court was correct in finding
that the Applicant consented to be married in terms of customary law.
[13]
The Respondent argued that the order
declaring the civil marriage between the parties invalid became
superfluous, once the Court
had found that the parties were married
to each other in terms of customary law. It was argued that by
operation of law, the second
marriage is non-existent, based on the
principle of effectiveness, the Court cannot allow two marriages to
co-exist. The Court
having found that the parties are married to each
other in terms of customary union, there cannot be a situation where
it will
allow existence of separate and distinct legal marriages with
conflicting proprietary consequences.
[14]
Regarding spousal maintenance, the
Respondent argued that during trial proceedings, she went at great
length to set out her needs
and averred that her career was put on
hold by the Applicant. She explained her income, expenditure, health
issues, household expenses
and amount coming in and out of her bank
account and the Court determined a reasonable amount for spousal
maintenance. Given the
Respondent’s current age, her prime time
as an actress is gone.
Legal Principles on
Leave to Appeal and analysis
[15]
Section
17(1) of the Superior Courts Act
[4]
sets out the test for granting leave to appeal as follows:
“
17(1)
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 judgments on the matter under
consideration;
…”
.
[16]
In
Acting National Director of Public Prosecutions and Others v
Democratic Alliance and Others
[5]
the court followed the Land Claims Court judgment in Mont Chevaux
Trust (IT2012/28) v Tina Goosen & 18 Others
[6]
and stated that:
“
The
Superior Courts Act has raised the bar for granting leave to appeal
in Mont Chevaux Trust (IT2012/28) v Tina Goosen & 18
Others,
Bertelsmann J held as follows
:
‘
It
is clear that the threshold for granting leave to appeal against a
judgment of a High Court has been raised in the new Act. The
former
test whether leave to appeal should be granted was a reasonable
prospect that another court might come to a different conclusion,
see
Van Heerden v Cronwright & Others
1985 (2) SA 342
(T) at 343H.
The use of the word “would” in the new statute indicates
a measure of certainty that another court will
differ from the court
whose judgment is sought to be appealed against
’...”.
[17]
The
court in Acting National Director of Public Prosecutions and Others v
Democratic Alliance and Others
[7]
further stated that:
“
When
the Court deals with an application for leave to appeal, leave may
only be given if we are of the opinion that the appeal would
have
reasonable prospects of success or if there are some other compelling
reasons
”.
[18]
In
Cook v Morrison
[8]
the Supreme
Court of Appeal stated that:
“
The
existence of reasonable prospects of success is a necessary but
insufficient precondition for the granting of special leave.
Something more, by way of special circumstances, is needed. These may
include that the appeal raises a substantial point of law;
or that
the prospects of success are so strong that a refusal of leave would
result in a manifest denial of justice; or that the
matter is of very
great importance to the parties or to the public. This is not a
closed list
”.
[19]
In
Ramakatsa and Others v African National Congress and Another
[9]
the Supreme Court of Appeal stated that:
“
Turning
the focus to the relevant provisions of the Superior Courts Act…,
leave to appeal may only be granted where the judges
concerned are of
the opinion that the appeal would have a reasonable prospect of
success or there are compelling reasons which
exist why the appeal
should be heard such as the interests of justice. This court in
Caratco
[10]
,
concerning the provisions of s 17(1)(a)(ii) of the SCA Act pointed
out that if the court is unpersuaded that there are prospects
of
success, it must still enquire into whether there is a compelling
reason to entertain the appeal. Compelling reason would of
course
include an important question of law or a discreet issue of public
importance that will have an effect on future disputes.
However, this
court correctly added that ‘but here too the merits remain
vitally important and are often decisive’
…
”.
[20]
The
Court summed up the test for prospects of success in Modingwana v
Body Corporate Amber Hill
[11]
as follows:
“
Considering
the statutory and regulatory matrix, three questions for
consideration arise in the application for leave to appeal.
These
questions are not distinct but interrelated. The first question is
whether the applicant filed a proper notice of application
for leave
to appeal which concisely and succinctly set out the grounds upon
which leave to appeal is sought. The second question
is whether the
appeal would have a reasonable prospect of success or whether there
are compelling reasons that exist why the appeal
should be heard such
as the interests of justice. The third question is whether the
application for leave to appeal sets out expressly
why the default
position of an appeal to a full court of the division should not
prevail, as well as the questions of law or fact
or other
considerations involved that dictate that the matter should be
decided by the SCA
”.
[21]
The
Court must satisfy itself whether the requirements of Section
17(1)(a) have been met in this application for leave to appeal.
Considering the Applicant’s prospects of success on
appeal, the first issue is whether the parties were married to
each
other in terms of customary marriage. In the main judgment I pointed
out that the dispute lies on whether the parties intended
to enter
into a customary marriage.
[12]
It is further pointed out in the main judgment that the answer lies
in Section 3(1) of the Recognition of Customary Marriages Act.
[13]
In the argument for leave to appeal the Applicant persisted with his
dispute of consent to be married in terms of customary marriage,
he
substantiated this by making reference to the engagement to which in
his view was an indication that he intended to be married
to the
Respondent in terms of civil marriage. He also referred to the fact
that they later entered into an antenuptial contract
which culminated
in a civil marriage.
[22]
The Applicant argued that, in the absence
of consent, there cannot be a valid customary marriage between
himself and the Respondent.
This is however disputed by the
Respondent who argued that, taking into account the totality of
evidence, which includes the participation
by the Applicant in the
practice of the customary rites, as well as his active participation
thereto, demonstrated consent on his
part. The critical issue
therefore is whether there was consent by both parties to be married
in terms of customary marriage. This
goes to the heart of whether the
Applicant has prospects of success should another Court find that
there was no intention of being
married in terms of customary law.
Conclusion
[23]
The Applicant in an application for leave
to appeal must demonstrate the existence of prospects of success or
compelling reasons
for the appeal to be heard, including conflicting
judgments on the matter under consideration. Having considered the
submissions
and legal authority, I am satisfied that the Applicant
has met the threshold for leave to appeal to be granted. I am
persuaded
that another court upon consideration of the issues raised
in the application for leave to appeal may come to a different
conclusion.
[24]
Another issue for consideration is the
Applicant’s submission that this matter invokes a question of
law, and that the effect
of the main judgment is of a general
application. This includes the argument that issues concluded in the
main judgment are of
considerable importance. This in my view falls
within the ambit of compelling reasons for the appeal to be heard.
[25]
During
argument of application for leave to appeal, the issue of conflicting
judgments also came up. This Court is aware of the
decision of N.P v
L.P
[14]
where the Court
considered the issue of whether the parties were married to one
another in terms of customary law and whether the
antenuptial
contract entered into between the parties was valid and enforceable.
When dealing with the conclusion of both a customary
and civil
marriage, the Court held a view that the individuals may not view
these dual marriages as creating separate and distinct
legal
marriages. It was finally concluded that the intention is often to
conclude a marriage which is then celebrated in different
forms and
the customary marriages are often described as a “process”
rather than a single legal event.
[15]
This is a classical case of conflicting judgments on the subject
matter and meets the requirements of Section 17(1) (a)(ii) of
the
Superior Courts Act. This contrasts with the position taken in the
main judgment in the instant case, where I stated that customary
law
should not be treated as secondary or subsidiary to any other law
applied in our country.
[16]
I
am satisfied that this meets the test for granting of leave to
appeal.
[26]
Section
17(6)(a) of the Superior Courts Act
[17]
provides that:
“
If
leave is granted under subsection (2)(a) or (b) to appeal against a
decision of a Division as a court of first instance consisting
of a
single judge, the judge or judges granting leave must direct that the
appeal be heard by a full court of that Division, unless
they
consider-
(i)
that the decision to be appealed involves a
question of law of importance, whether because of its general
application or otherwise,
or in respect of which a decision of the
Supreme Court of Appeal is required to resolve differences of
opinion; or
(ii)
that the administration of justice, either
generally or in the particular case, requires consideration by the
Supreme Court of Appeal
of the decision, in which case they must
direct that the appeal be heard by the Supreme Court of Appeal”.
[27]
The default position is to grant leave to
appeal to the Full Court of the Division, however, it seems to me
that the issues raised
in this application for leave to appeal fit
within the ambit of Section 17(6)(a) of the Superior Court Act and
there is a need
for the Supreme Court of Appeal to finally resolve
the issues, in light of the question of law of importance and general
application,
including the conflicting judgments on the subject
matter. The Supreme Court of Appeal in this instance should be
requested to
resolve the issues of different opinions.
Costs
[28]
The Applicant argued for a costs order
against the Respondent in relation to postponement of the matter on
November 24, 2024 due
to the late filing of the Respondent’s
supplementary heads. The Applicant sought postponement of the
proceedings to file
a reply to the Respondent’s supplementary
heads. Considering the issues involved in this matter, I do not think
it is necessary
to deal with the award of a costs order at this
stage, the appropriate order should be costs in the appeal.
[29]
I therefore make the following order:
1.
The Applicant (Defendant in the action) is
granted leave to appeal to the Supreme Court of Appeal against the
following orders and
part of the judgment pertaining to those orders
granted by Acting Judge Ntanga on October 10, 2025:
1.1
Declaring that:
1.1.1
the Plaintiff and the Defendant entered
into a valid customary law marriage on or about May 14, 2011;
1.1.2
the customary law marriage between the
Plaintiff and Defendant is in community of property and of profit and
loss; and
1.1.3
the antenuptial contract concluded between
the Plaintiff and the Defendant on or about December 21, 2016,
attached to the Plaintiff’s
particulars of claim as Annexure
“A”, is invalid and unenforceable,
alternatively
void,
alternatively
voidable and has been validly cancelled;
1.1.4
the civil marriage entered into between the
Plaintiff and Defendant on January 5, 2017 is declared invalid;
1.2
Division of the joint estate;
1.3
A receiver and liquidator be nominated by
the parties is hereby appointed;
1.4
The Defendant shall pay spousal maintenance
to the Plaintiff until her death or remarriage, whichever occurs
first, in the sum of
R67 167,00 per month, payable on or before
the 1
st
day of every month into a bank account to be nominated by the
Plaintiff, and which amount will escalate yearly on the anniversary
date of this order at a rate equal to the average rate of the
Consumer Price Index for the preceding 12 months; and
1.5
The Defendant is ordered to pay the
Plaintiff’s costs including costs of the Rule 43 application as
well as costs of two counsel
on a party and party Scale C.
2.
Costs of the application for leave to
appeal are costs in the cause in the appeal.
M NTANGA
ACTING JUDGE OF THE
HIGH COURT
GAUTENG DIVISION,
JOHANNESBURG
Date of
Hearing:
November 28, 2025
Date of
Judgment:
December 12, 2025
Appearances
Applicant’s
Counsel: Adv B Fourie
SC
Adv S
Georgiou
Adv
Ledwaba
Instructed
by:
KS Dinaka
Attorneys
Respondent’s
Counsel: Adv TJ Machaba SC
Instructed
by:
Jerry
Nkeli & Associates Inc.
[1]
J.R.M
v V.V.C. and Others (25007/2007) ZAGPPHC 547;
[2024] 3 All SA 853
(GP) (10 June 2024).
[2]
Recognition
of Customary Marriages Act 120 of 1998
.
[3]
Divorce
Act 70 of 1979
.
[4]
Superior
Courts Act 10 of 2013
.
[5]
Acting
National Director of Public Prosecutions and Others v Democratic
Alliance and Others (19577/09) [2016] ZAGPPHC 489 (24
June 2016).
[6]
The
Mont Chevaux Trust (IT 2012/28) v Tina Goosen & 18 Others
(LCC14R/2014). See also
MEC
for Health, Eastern Cape v Mkhitha and Another (1221/2015)
[2016]
ZASCA 176
(25 November 2016).
[7]
See
note 5 supra.
[8]
Cook
v Morrison
2019 (5) SA 51
SCA.
[9]
Ramakatsa
and Others v African National Congress and Another (Case No.
724/2019)
[2021] ZASCA 31
(31 March 2021).
[10]
See
Caratco (Pty) Ltd v Independent Advisory (Pty) Ltd [2020] 2020 (5)
SA 35 (SCA).
[11]
Modingwana
v Body Corporate Amber Hill (Leave to Appeal) (23514/202) [2024]
ZAGPPHC (11 September 2024).
[12]
See
para 87 of the main judgment.
[13]
See
para 88 of the main judgment.
[14]
N.P
v L.P (557/2019) [2024] ZALMPPHC 208 (5 June 2024).
See
also Reilly Nchadi Tumelo Mphosi v Theophilus Ramakokomo Mphosi,
Limpopo High Court, Polokwane, Case No. 1142/2014 at para
20.
[15]
See
note 14 supra at para 8.
[16]
See
para 85 of the main judgment.
[17]
See
note 4 supra.