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[2013] ZAWCHC 195
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Mafuya v Lizwe (15290/12) [2013] ZAWCHC 195 (10 September 2013)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE HIGH
COURT)
..................................................................................................................................................................................................................................................................
Case No: 15290/12
In the matter between:
PHUMELELA MAFUYA
................................................................................................
.Applicant
and
NOMVUYO MILLIE LIZWE
........................................................................................
Respondent
............................................................................................................................................................................
JUDGMENT
DELIVERED ON 10
SEPTEMBER 2013
BOQWANA AJ
The applicant seeks an
order declaring the marriage relationship entered into between the
respondent and the applicant’s
deceased father Mtutuzeli
Donald Lizwe on 13 February 2009 null and void.
The reason given by the
applicant for this application is that her father suffered from
dementia at the time he was getting married
to the respondent and
therefore lacked the mental capacity to appreciate the nature and
the consequences of his actions.
According to the
applicant dementia is an illness that results in mental
disorientation, confusion and loss of memory to the sufferer
and her
father had been diagnosed with this sickness since March 2007. The
applicant has attached the patient management referral
letters dated
09 March 2007 and 30 August 2008 from Provincial Administration
Western Cape, Department of Health respectively,
a letter by Mrs C
Tlhaleroe, a staff nurse from Ekuphumleni Frail and Aged Care Centre
(‘Aged Care Centre’) dated
09 July 2010 and a medical
report dated 18 March 2009 by Dr N Schruerder from GF Jooste
Hospital.
The applicant alleges
that the respondent removed her deceased father on 13 February 2009
from the Aged Care Centre to the Department
of Home Affairs to have
him marry her whilst he was in that state of confusion. She supports
her allegation by attaching report
cards from the Aged Care Centre
and a letter by Mrs C Tlhaleroe.
The respondent avers in
her answering affidavit that she had previously been married to the
deceased. She and the deceased re-established
contact after the
death of his second wife and the two of them naturally reminisced
about their past and felt it desirable that
they be remarried once
more.
She further alleges that
whilst the deceased had in fact been diagnosed with and was
suffering from dementia, at the time of the
marriage he was in a
state of
lucidum intervallum
. The marriage was solemnised by
the marriage officer and before two competent witnesses. The
applicant has not filed any replying
affidavit to deal with the
allegations raised by the respondent in her answering affidavit.
Evaluation
A person who, owing to a
mental state or defect, is incapable of understanding the nature of
a marriage contract cannot contract
a valid marriage. The reason is
the absence of the mind capable of consenting. In
Prinsloo’s
Curators v Crafford & Prinsloo
1905 TS 669
, it was found
that a lunatic, whether certified or not, can validly marry during a
lucid interval. In
Pienaar v Pienaar’s Curator
1930 OPD 171
at 176
, it was found that a person who because of some mental
defect has been declared incapable of managing his or her own
affairs
may marry if he or she is capable of understanding the
nature of the marriage contract and responsibilities it creates.
There
are a number of problems with the applicant’s application as
it stands. First, the applicant has brought her case
by way of an
application. Having done so she attaches no expert evidence to
support her claim that the deceased suffered from
dementia.
Nevertheless, the respondent does not dispute that the deceased had
been diagnosed with and suffered from dementia
but she states that
at the time of the marriage he was in a state of
lucidum
intervalum.
The
applicant was not at the marriage proceedings and has failed to
reply to this allegation by the respondent. In that regard,
the
version that must be accepted is that of the respondent, having
regard to the Plascon-Evans rule. In this regard see
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984]
ZASCA 51
;
1984
(3) SA 623
(
AD)
at
634 F.
The Court has also not
been presented with any expert evidence to assist it in determining
the state of mind of the deceased at
the time he got married. The
letter by Mrs Tlhaleroe is not sufficient for a number of reasons.
One is that it is not clear whether
or not Mrs Tlhaleroe is an
expert who was qualified to give an opinion on the deceased’s
state of mind and had examined
the deceased on the day of the
marriage or before that date. Secondly no supporting affidavit was
attached from Mrs Tlhaleroe
regarding her observations of the
deceased on that day as stated in the letter. Since these are motion
proceedings, the respondent
would not be in a position to test the
correctness and reliability of the contents of the letter allegedly
written by Mrs Tlhaleroe.
Furthermore, Mrs Tlhaleroe was not at the
marriage proceedings held between the respondent and the deceased,
at least as it appears
from the evidence before this Court. She
therefore could not dispute whether or not the deceased was in a
state of
lucidum intervalum
when he got married. Her letter
was prepared a year later. It would therefore be inappropriate to
attach a lot of evidentiary
weight to it. Neither the marriage
officer who solemnised the marriage nor the institution he or she
worked for were joined as
a party to these proceedings nor was there
any affidavit procured from the marriage officer by the applicant
regarding his or
her observations of the deceased when he or she
solemnised the marriage. In the circumstances the applicant’s
application
cannot succeed.
The applicant’s
credibility is also questionable. The applicant brought an
application before this Court under case number
8583/12 seeking the
Court to declare the testament document executed on 12 November 2008
by her late father as his intended Will
in terms of
section 2(3)
of
the
Wills Act No. 7 of 1953
. In order for that to have been so, the
applicant’s deceased father would have had to have understood
the nature and the
consequences of the transaction he was executing.
It is therefore nonsensical to insist that he was mentally unfit
since 2007
to enter into a marriage contract whilst in another
application the same applicant seeks the Court to find him mentally
sound
and validate a testament document as his Will. The applicant
has also not filed any replying affidavit to deal with the
allegations
made by the respondent in this regard. Her application
stands to be dismissed also on that ground.
There is no reason why
costs should not follow the result. This Court was lenient by
allowing the parties to proceed without heads
of argument being
filed. This behaviour of non-compliance with the Court rules should
normally not be condoned. The Court in
this instance however had
regard to the fact that the respondent was a pensioner and that the
issues before it were fairly straight
forward and could be argued
without written submissions. It is therefore appropriate that costs
be awarded against the applicant
in this regard.
I therefore make an
order in the following terms:
The application is
dismissed with costs.
___________________________
N P BOQWANA
Acting Judge of the High
Court
APPEARANCES:
For
the Applicant: Advocate T. Twalo
Instructed
by: Tsengiwe Mbeleni Attorneys
For
the Respondent: Advocate A. Lawrence
Instructed
by: Godla & Partners