K.M v S.M and Another (A3067/2022) [2023] ZAGPJHC 498 (17 May 2023)

K.M v S.M and Another (A3067/2022) [2023] ZAGPJHC 498 (17 May 2023)

The appeal was upheld because the court a quo materially misdirected itself by admitting hearsay evidence without proper application of section 3(1) of the Law of Evidence Amendment Act and without confirmatory affidavits from those with personal knowledge. The existence of a genuine dispute of fact regarding the...

Source-derived case information.

Citation
[2023] ZAGPJHC 498
Parties
Appellant: K[....] M[....]; Respondent: S[....] M[....]; Respondent: City of Johannesburg Metropolitan Municipality
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
17 May 2023
Case Number
A3067/2022
Procedural Posture
Civil Appeal / Appeal From Opposed Motion Proceedings in the Regional Court
Outcome
Appeal upheld; eviction order set aside; application dismissed with costs.
Judges
D Dosio, B Wanless
Legal Topics
Customary Marriage, Admissibility of Hearsay Evidence, Eviction Proceedings, Motion Proceedings, Lobola Payment, Bridal Transfer
Family and Children Civil Procedure Customary Marriage Admissibility of Hearsay Evidence Eviction Proceedings Motion Proceedings Lobola Payment Bridal Transfer

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Summary, issues, holding and outcome

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Parties

K[....] M[....]

Appellant

S[....] M[....]

Respondent

City of Johannesburg Metropolitan Municipality

Respondent

Procedural Posture

Civil Appeal / Appeal From Opposed Motion Proceedings in the Regional Court

Legal Issues

  1. 1 Whether the eviction order was correctly granted by way of motion proceedings.
  2. 2 Whether a valid customary marriage existed between the appellant and first respondent.
  3. 3 Whether hearsay evidence was properly admitted by the court a quo.

Ratio Decidendi

The appeal was upheld because the court a quo materially misdirected itself by admitting hearsay evidence without proper application of section 3(1) of the Law of Evidence Amendment Act and without confirmatory affidavits from those with personal knowledge. The existence of a genuine dispute of fact regarding the customary marriage was ignored, and the court failed to apply the principles from Plascon-Evans regarding motion proceedings. The evidence showed that the parties cohabited for nine years and had two children, and the absence of strict compliance with all customary rituals did not invalidate the marriage. The court a quo should have dismissed the application due to the unresolved...

Court Disposition

Appeal upheld; eviction order set aside; application dismissed with costs.

Orders

  • The appeal is upheld.
  • The first respondent is to pay the costs of the appeal.