Lebese v Lebese and Others (HCAA14/18) [2019] ZALMPPHC 54 (29 October 2019)

Lebese v Lebese and Others (HCAA14/18) [2019] ZALMPPHC 54 (29 October 2019)

The appeal succeeded because the court a quo misdirected itself in several respects: it improperly called a witness without the parties' request, failed to properly evaluate documentary evidence supporting the existence of a civil marriage between the applicant and first respondent, and made a finding of fraud without objective evidence or oral testimony. The evidence, including the marriage certificate and identity document, was sufficient to establish the existence of a valid civil marriage, and there was no credible evidence that the marriage was dissolved by divorce or that the certificate was fraudulent. The subsequent marriage between the first and second respondents was therefore...

Citation
[2019] ZALMPPHC 54
Parties
Applicant: Nkhangweni Gladys Lebese; Respondent: Shilavi Michael Lebese; Respondent: Second Respondent; Respondent: Third Respondent
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
29 October 2019
Case Number
HCAA14/18
Procedural Posture
Civil Appeal / Appeal From First Instance Judgment
Outcome
Appeal upheld. The decision of the court a quo is set aside and substituted with orders declaring the subsequent marriage null and void and expunging its record.
Judges
MG Phatudi, KGanyago, Madavha
Legal Topics
Validity of Civil Marriage, Customary Marriage Dissolution, Onus of Proof, Irregular Court Procedure
Family and Children Civil Procedure Validity of Civil Marriage Customary Marriage Dissolution Onus of Proof Irregular Court Procedure

Case Brief

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Parties

Nkhangweni Gladys Lebese

Applicant

Shilavi Michael Lebese

Respondent

Second Respondent

Respondent

Third Respondent

Respondent

Procedural Posture

Civil Appeal / Appeal From First Instance Judgment

Legal Issues

  1. 1 Whether a valid civil marriage existed between the applicant and the first respondent.
  2. 2 Whether the court a quo adopted the proper approach by calling a witness mero muto without counsel's request.
  3. 3 Whether the court a quo properly dealt with mutually destructive versions of the parties' evidence.

Ratio Decidendi

The appeal succeeded because the court a quo misdirected itself in several respects: it improperly called a witness without the parties' request, failed to properly evaluate documentary evidence supporting the existence of a civil marriage between the applicant and first respondent, and made a finding of fraud without objective evidence or oral testimony. The evidence, including the marriage certificate and identity document, was sufficient to establish the existence of a valid civil marriage, and there was no credible evidence that the marriage was dissolved by divorce or that the certificate was fraudulent. The subsequent marriage between the first and second respondents was therefore...

Court Disposition

Appeal upheld. The decision of the court a quo is set aside and substituted with orders declaring the subsequent marriage null and void and expunging its record.

Orders

  • The civil marriage entered between the first and second respondents on 01 November 2000 is declared null and void ab initio.
  • The third respondent is ordered to expunge from its register of marriages the record of civil marriage between the first and second respondents.