Chali and Other v Rasello and Others (683/2011) [2011] ZAFSHC 190 (24 November 2011)

Chali and Other v Rasello and Others (683/2011) [2011] ZAFSHC 190 (24 November 2011)

The court found that the first respondent's claim to a valid customary marriage with the deceased was irreconcilable with her prior sworn statement that she had never divorced her first husband. This inconsistency irreparably damaged her credibility. The documentary evidence submitted by the applicants in reply was properly admitted and strongly refuted the first respondent's claim. The court held that the first respondent failed to demonstrate any reasonable prospects of success on appeal, as her case rested on a factual impossibility and no oral evidence could cure the defect. The executor's unchallenged decision that the marriage was null and void further undermined her position....

Citation
[2011] ZAFSHC 190
Parties
Applicant: Chali Matetenki Marai; Applicant: Chali Leepo Maria; Applicant: Chali Thabiso Charles; Applicant: Chali Tiisetso Julia; Applicant: Chali Yvonne Lerato; Respondent: Rasello Masefako Lydia; Respondent: Nicolas Esias Janse van Rensburg; Respondent: Susanna Maria Coppenhagen; Respondent: Director General Department of Home Affairs; Respondent: Master of the High Court; Respondent: Registrar of Deeds, Bloemfontein
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
24 November 2011
Case Number
683/2011
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment in Main Application
Outcome
Leave to appeal is refused. The application is dismissed with costs awarded against the first respondent.
Judges
M.H. Rampai
Legal Topics
Customary Marriage, Marital Status, Leave to Appeal, Burden of Proof
Family and Children Civil Procedure Customary Marriage Marital Status Leave to Appeal Burden of Proof

Case Brief

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Parties

Chali Matetenki Marai

Applicant

Chali Leepo Maria

Applicant

Chali Thabiso Charles

Applicant

Chali Tiisetso Julia

Applicant

Chali Yvonne Lerato

Applicant

Rasello Masefako Lydia

Respondent

Nicolas Esias Janse van Rensburg

Respondent

Susanna Maria Coppenhagen

Respondent

Director General Department of Home Affairs

Respondent

Master of the High Court

Respondent

Registrar of Deeds, Bloemfontein

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment in Main Application

Legal Issues

  1. 1 Whether the first respondent's purported customary marriage to the late Masakale David Chali was valid.
  2. 2 Whether the first respondent's marital status precluded her from entering into a valid marriage with the deceased.
  3. 3 Whether the applicants were entitled to rely on new documentary evidence in their replying affidavit.

Ratio Decidendi

The court found that the first respondent's claim to a valid customary marriage with the deceased was irreconcilable with her prior sworn statement that she had never divorced her first husband. This inconsistency irreparably damaged her credibility. The documentary evidence submitted by the applicants in reply was properly admitted and strongly refuted the first respondent's claim. The court held that the first respondent failed to demonstrate any reasonable prospects of success on appeal, as her case rested on a factual impossibility and no oral evidence could cure the defect. The executor's unchallenged decision that the marriage was null and void further undermined her position....

Court Disposition

Leave to appeal is refused. The application is dismissed with costs awarded against the first respondent.

Orders

  • The first respondent is refused leave to appeal.
  • The application is dismissed.