Thusheni v Minister of Home Affairs and Others (36333/2021) [2022] ZAGPJHC 490 (4 August 2022)

IN THE HIGH COURT OF SOUTH AFRICA,

GAUTENG DIVISION, JOHANNESBURG

CASE NO: 2021/36333

1. REPORTABLE: NO

2. OF INTEREST TO OTHER JUDGES: NO

DATE SIGNATURE

In the matter between –

JUDGMENT

MOORCROFT AJ:

Summary

Late registration of a customary marriage – Foreseeable disputes of facts incapable of resolution on the papers – application dismissed for this reason

Rule 6(5)(g) of Uniform Rules – dismissal – does not finally dispose of dispute

Application for leave to appeal – Section 17(1)(a)(i) and (ii) of the Superior Courts Act, 10 of 2013 – No reasonable prospects of success

Order

1. In this application for leave to appeal I make the following order:

1. The application for leave to appeal is dismissed;

2. The applicant is ordered to pay the costs of the application.

2. The reasons for the order follow below.

Introduction

3. The applicant sought an order condoning the late registration of the customary marriage between herself and the deceased Mr. Dlamini who passed away in July 2021, and that the Minister of Home Affairs (the first respondent) be ordered to register the customary marriage concluded on 2 May 2021, issue a customary marriage certificate, and to reflect the deceased’s marital status as ‘married’ on his death certificate.

4. The application was opposed by the sixth respondent, the daughter of the deceased. After hearing argument I dismissed the application¹ with costs on 23 May 2022. The applicant brought an application for leave to appeal that was set down for argument on 8 July 2022.

5. During argument I raised the question whether the dispute was res iudicata between the parties. After hearing submissions I invited both counsel to file further heads of argument dealing with the res iudicata. Counsel for the applicant and for the 6^th respondent filed further heads of argument on 29 July 2022. I am indebted to counsel for heads submitted.

6. Counsel are in agreement that the dispute is not res iudicata.

7. I raised the issue of res iudicata because if the dispute were not res iudicata then the applicant would, if so advised, be at liberty to issue a summons for the relief claimed in the application. She would be in a position to do so in the proper forum, the trial court.

The judgment sought to be appealed against

8. In the judgment I set out the parties’ averments in paragraphs 5 to 15, dealt with the Recognition of Customary Marriages Act, 120 of 1998 in paragraphs 16 to 21, and concluded in paragraphs 22 and 23 that –

   1. there were fundamental disputes of fact on the papers;

   2. these disputes were foreseeable, and

   3. the question whether a customary marriage was concluded cannot be answered with reference to the affidavits.²

9. The judgment did not deal with and did not decide the competing versions of factual averments because it was not possible to do so.

10. Mr Sibisi for the sixth respondent in his helpful heads referred me literature³ as well as to case law, and concludes, correctly in my view, that the dismissal of the application does not render the dispute res iudicata. He referred me to Mamadi and Another v Premier of Limpopo Province and Others,⁴ where Theron J⁵ said:

“A dismissal in terms of rule 6(5)(g) does not preclude a litigant from proceeding by way of action, and thus does not finally dispose of a matter …”⁶

11. Section 17(1)(a)(i) and (ii) of the Superior Courts Act, 10 of 2013 provides that leave to appeal may only be given where the judge or judges concerned are of the opinion that the appeal would have a reasonable prospect of success or there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration. Once such an opinion is formed leave may not be refused.

12. It is now generally accepted that that the test for leave to appeal is more stringent under the Superior Courts Act, 10 of 2013 than it was under the repealed Supreme Court Act, 59 of 1959.⁷ However, in KwaZulu-Natal Law Society v Sharma⁸ Van Zyl J held that the test enunciated in S v Smith⁹ still holds good:

“In order to succeed, therefore, the appellant must convince this court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”

13. An applicant for leave to appeal must be mindful of the words of Wallis JA in Dexgroup (Pty) Ltd v Trustco Group International (Pty) Ltd:¹⁰

“The need to obtain leave to appeal is a valuable tool in ensuring that scarce judicial resources are not spent on appeals that lack merit. ”

14. The conclusion reached in the judgment that there were foreseeable disputes of fact appear from the papers, including the founding affidavit by the applicant.¹¹ I am of the view that there are no reasonable prospects of success on appeal. The application must be refused and it remains open to the applicant to proceed by trial if she so wished.

15. I therefore make the order in paragraph 1 above.

J MOORCROFT

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION

JOHANNESBURG

Electronically submitted

Delivered: This judgement was prepared and authored by the Acting Judge whose name is reflected and is handed down electronically by circulation to the Parties / their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date of the judgment is deemed to be 4 AUGUST 2022.

COUNSEL FOR THE APPLICANT: M D MATSETELA

INSTRUCTED BY: OKAFOR MA ATTORNEYS INC

COUNSEL FOR 6^th RESPONDENT: S F SIBISI

INSTRUCTED BY: NTSHONA INC

DATE OF THE HEARING: 8 JULY 2022

and further heads filed on

29 JULY 2022

DATE OF JUDGMENT: 4 AUGUST 2022