1
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2025-214300
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE: 2 September 2026
SIGNATURE: JANSE VAN NIEUWENHUIZEN J
In the matter between:
NOKUFA HENRIETTE MOROPA Applicant
and
THE MINISTER OF HOME AFFAIRS First Respondent
THE DIRECTOR -GENERAL OF HOME AFFAIRS Second
Respondent
NURSE SOPHIA MOROPA-MABENA Third Respondent
MASTER OF THE HIGH COURT (SOUTH GAUTENG) Fourth
Respondent
JUDGMENT
JANSE VAN NIEUWENHUIZEN J:
2
[1] The applicant prays for an order declaring that the marriage between the third
respondent and Sello Aaron Moropa , who passed away on 15 August 2024
(“the deceased”), is null and void ab initio and for an order declaring that her
marriage to the deceased is the sole valid marriage entered into by the
deceased.
[2] The relief is only opposed by the third respondent.
Issue in dispute
[3] It is common cause between the parties that the deceased and the third
respondent entered into a marriage on 7 June 2016 at Springs Home Affairs.
It is, furthermore, common cause that, according to the records kept by Home
Affairs, there was no legal impediment to the marriage between the third
respondent and the applicant at the time.
[4] The applicant, however, alleges that the marriage is null and void because
she was validly married to the deceased at the time, an allegation that is
denied by the third respondent. The onus is therefore on the applicant to
prove the alleged marriage.
Applicant’s case
[5] The applicant alleges that she was lawfully married to the deceased in a civil
marriage solemnised under the Marriage Act 25 of 1961 by Dr Tobias
Masuku, a duly appointed marriage officer. In support of the aforesaid
allegation, the applicant attached a letter written by one HV Msengi, from the
Marriage Section: Head Office.
3
[6] The letter is on a Home Affairs letterhead and displays a stamp from the
Department of Home Affairs dated 2 September 2024. The letter reads as
follows:
“ TO WHOM IT MAY CONCERN
NOFUKA HENRIETTA MOROPA
BORN MQOQO
Identity number 5[...]
This is to certify that according to the records of the National Population Register, the
marital status of the above -named person is reflected as : MARRIED to Sello Aaron
identity number 5[...] date of marriage 1991.09.20.”
[7] The letter is not accompanied by a copy of the National Population Register
evidencing the marriage, and HV Msengi did not depose to an affidavit
confirming the contents of the letter.
[8] The applicant states that the marriage was never dissolved by a decree of
divorce and that she only discovered, subsequent to the deceased’s death,
that the records of the Department of Home Affairs did not reflect her
marriage to the deceased.
[9] The applicant reported the matter to the Department of Home Affairs, and
received a n email from Amanda van der Merwe , Deputy Director: Analysis,
Counter-Corruption and Security Services, on 14 October 2024, informing her
that Veerasamy Ponnan was appointed to investigate the matter. A copy of
the email is attached to the founding affidavit.
4
[10] It appears that the marriage between the applicant and the deceased was
solemnised at the Dutch Reformed Church in Delmas and d uring the
investigation it was established that Dr Tobias Masuku, a researcher at Unisa,
was the pastor at the church in 1991. A copy of a message from Dr Masuku
confirming the aforesaid is attached to the founding affidavit.
[11] In an email dated 25 October 2024, Dr Masuku was requested to provide
information in respect of the marriage between the applicant and the
deceased. Dr Masuku’s response is not attached to the founding affidavit, but
an email dated 15 July 2025 sent by one Pulane Legotlo to three officials in
the Department of Home Affairs is attached to the founding affidavit and reads
as follows:
“Good morning,
Kindly be informed that a follow -up was made with the Marriage Unit, and both
records of the marriages have been retrieved.
Please note that bigamous marriages now fall under the Criminal Procedure Act No.
37. As a result, you are required to approach the court in order for the second
marriage to be nullified in the system.
Additionally, you are requested to visit the application office to register your inquiry in
the system”
[12] In a letter dated 21 October 2025, the applicant’s attorney of record informed
the third respondent that this application will be issued and requested the third
respondent to abide by the decision of the court. The applicant does not
indicate what the third respondent’s response was.
5
Third respondent’s case
[13] The third applicant raised two points in limine, but only persisted with the point
that a factual dispute exists on the papers and that the application should
either be dismissed or be referred for oral evidence. The applicant did not
apply for the matter to be referred to oral evidence and insisted on proceeding
on the papers.
[14] Insofar as the merits of the matter is concerned, the third respondent
explained that she met the deceased in July 2001 in Springs and a romantic
relationship ensued shortly thereafter. Around Easter in 2002, the deceased
asked the third respondent to move in with him and to help him raise his minor
children. When the third respondent enquired about the mother of the
children, she was informed by the deceased that the mother abandoned him
in 1991 and left the children in his care.
[15] According to the deceased, he paid lobola for the applicant, but the customary
marriage was never finalised. The deceased assured the third respondent that
he was not married, and upon receiving this assurance the third respondent
moved in with the deceased.
[16] Three years later and after the birth of their daughter, the deceased paid
lobola for the third respondent and the marriage was celebrated according to
custom. The lobola marriage was followed by a civil marriage on 7 June 2016
at the Department of Home Affairs in Springs.
6
[17] During November 2023, the deceased was diagnosed with prostate cancer
and became wheelchair bound. The third respondent became his primary
caregiver. The third respondent fed, clothed, changed nappies and bathed the
deceased until his death on 15 August 2024.
[18] It appears that t he third respondent , for the first time, became aware of the
applicant and her claim to be the deceased’s wife at his funeral. In view of the
history of the matter, the third respondent deems the applicant’s claim to be
the lawful wife of the deceased as opportunistic and mala fide.
[19] Notwithstanding an invitation by the third respondent, the applicant refused to
divulge any information about her absence in the deceased’s life for a period
of 25 years. According to the applicant, such information is irrelevant as the
matter only involves a legal issue.
Dispute of fact
[20] The test whether a dispute of fact exists on the papers is trite and was
encapsulated in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A) as follows at 634 H-I:
“It is correct that, where in proceedings on notice of motion disputes of fact have
arisen on the affidavits, a final order, whether it be an interdict or some other form of
relief, may be granted if those facts averred in the applicant's affidavits which have
been admitted by the respondent, together with the facts alleged by the respondent,
justify such an order.”
[21] The facts in this matter raise a classic dispute of fact. The applicant’s
allegation that she entered into a marriage with the deceased on 20
7
September 1991 is denied by the third respondent. It is not a bare denial but
is supported by th e marriage certificate issued by the Department of Home
Affairs evidencing the third respondent’s marriage to the deceased on 7 June
2016. The dispute is, as a result, a bona fide dispute and the next question to
be determined is whether the dispute can be resolved on the papers.
Legal framework and discussion
[22] Section 29 (2) of the Marriage Act, 25 of 1961 (“the Marriage Act”), provides
for the solemnization of marriages and reads as follows:
“A marriage officer shall solemnize any marriage in a church or other building used
for religious service, or in a public office or private dwelling -house, with open doors
and in the presence of the parties themselves and at least two competent witnesses,
but the foregoing provisions of this subsection shall not be construed as prohibiting a
marriage officer from solemnizing a marriage in any place other than a place
mentioned therein if the marriage must be solemnized in such other place by reason
of the serious or longstanding illness of, or serious bodily injury to, one or both of the
parties.”
[23] Section 29A of the Marriage Act makes provision for the registration of
marriages and reads as follows:
“29A. Registration of marriages
(1)The marriage officer solemnizing any marriage, the parties thereto and two
competent witnesses shall sign the marriage register concerned immediately after
such marriage has been solemnized.
8
(2)The marriage officer shall forthwith transmit the marriage register and records
concerned, as the case may be, to a regional or district representative designated as
such under section 21(1) of the Identification Act, 1986 (Act No. 72 of 1986).’
[24] Section 8(e) of the Identification Act , 72 of 1986 (“the Identification Act”)
provides that the particulars contained in a marriage register or other
documents relating to the contracting of a marriage shall be included in the
Population Register and, in terms of section 13(2) of the Identification Act, a
marriage certificate issued by the Director -General of Home Affairs is prima
facie evidence of the particulars set forth therein.
[25] The applicant failed to produce a marriage certificate issued in terms of
section 13(2) of the Identification Act.
[26] The failure to produce a marriage certificate is, however, not the end of the
matter and the existence of the applicant’s marriage to the deceased can still
be proved by means of other evidence. [SEE: In M.W v C.W (2462/2019)
[2025] ZANCHC 34 (11 April 2025) at para [29]]
[27] In order to prove the marriage, the applicant relied on the Msengi letter as well
as the email correspondence from officials in the Department of Home Affairs .
Mr Phihlela, the legal representative of the third respondent, submitted that
the evidence relied upon by the applicant to prove the existence of the
marriage between herself and the deceased is inadmissible hearsay evidence
insofar as it is tendered to verify the existence of the marriage as envisaged in
section 29(2) of the Marriage Act.
[28] Faced with the aforesaid difficulty, Mr Masifane, the legal representative of the
applicant, contended that the hearsay evidence should be admitted in terms
9
of the provisions of section 3(1)(c) of the Law of Evidence Amendment Act, 45
of 1988. Having had regard to the factors mentioned in section 3(1)(c)(i ) to
(vii) of the Act, I am of the opinion that it would not be in the interests of justice
to admit the hearsay evidence. Should the evidence be admitted, the third
respondent will be deprived of her procedural right to test the veracity of the
evidence of the witnesses. The prejudice to the third respondent is manifest.
[29] Even if the evidence was admissible, it dismally fails to establish the
requirements contained in section 29(2) of the Act.
[30] Regulation 5C of the regulations promulgated in terms of the Marriage Act
provides for the rectification of a marriage register and reads as follows:
“Where a marriage has allegedly been solemnised in terms of the Marriage Act , but
the marriage register referred to in Section 29A, has for some reasons or the other
not been completed or cannot be found, the Director -General may, after
consideration of such proof and after such inquiry as he may deem necessary, direct
that the marriage register referred to in regulation 5A, with regard to such marriage
be completed.”
[31] Although it appears that the Department of Home Affairs conducted some or
other investigation, the facts established during the investigation are not
before court.
[32] In a last attempt to save the applicant’s case, Mr Mashifane blamed the
applicant’s predicament on the Minister of Home Affairs and the Director -
General of Home Affairs, being the first and second respondents, for not
providing the necessary information to the court.
10
[33] In advancing the submission, Mr Mashifane, loses sight of the fundamental
difference between action and motion proceedings. First of all, once there is a
foreseeable dispute of fact, action proceedings should be initiated. Action
proceedings have the advantage of obtaining documents by means of a
request for discovery and summoning relevant witnesses to give viva voce
evidence. It is also just and fair to the opposing party, who has an opportunity
to examine and test the evidence produced during trial.
[34] Secondly, once a litigant has chosen to utilise motion proceedings and a
factual dispute arises on the papers, an applicant may request the court to
refer the dispute to oral evidence. As stated supra, the applicant did not avail
herself of this remedy and insisted on proceeding on the papers as they
stand.
[35] Lastly, motion proceedings do not provide an applicant with a procedural
remedy to obtain evidence in the possession of respondents that might
advance his/her case.
Conclusion and costs
[36] Due to the dispute of fact, the court is unable to find in favour of the applicant,
and the application stands to be dismissed with costs.
[37] Although the applicant prayed for costs against the first and second
respondents only in the event of opposition, Mr Ma shifane submitted that the
first and second respondents should bear the costs because the litigation
emanates from the failure by the first and second respondents to keep proper
records.
11
[38] The first and second respondents were not forewarned that a cost order
would be sought against them, and I am, furthermore, unable to find on the
facts before court that the first and second respondents are to be blamed for
the applicant’s failure to make out a case for the relief claimed herein.
[39] In the result, costs will follow the result, the costs of Mr Phihlela on scale C.
Order
1. The application is dismissed with costs. The costs of Mr Phihlela on scale
C.
______________________________________________
N. JANSE VAN NIEUWENHUIZEN
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
DATE HEARD: 28 July 2026
DATE DELIVERED: 2 September 2026
APPEARANCES
For the Applicant: Mr. K Mashifane
Instructed by: Budaza & Mashifane Incorporated
For the Respondent: Mr. TJ Phihlela
Instructed by: Legal-Aid SA Benoni LO