Mashisane v Mhlauli (2020/11024) [2021] ZAGPJHC 645 (8 November 2021)

Mashisane v Mhlauli (2020/11024) [2021] ZAGPJHC 645 (8 November 2021)

The applicant's denial of the existence of a customary marriage and intention to marry by customary rites is central to the case. The ante-nuptial contract was registered in contemplation of a civil marriage that never occurred. The applicant seeks to substitute one marital regime for another without establishing a proper foundation or complying with the necessary requirements. On the facts presented, it is not possible to enforce an ante-nuptial contract for a non-existent marriage. The application for leave to appeal does not meet the statutory test for reasonable prospects of success or compelling reasons to be heard. Accordingly, the application must be dismissed with costs.

Citation
[2021] ZAGPJHC 645
Parties
Applicant: Moses Muxe Mashisane; Respondent: Nosiphiwe Linda Mhlauli
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
8 November 2021
Case Number
2020/11024
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Judgment Confirming Customary Marriage and Declaring Ante Nuptial Contract Null and Void.
Outcome
Application for leave to appeal dismissed with costs.
Judges
T Siwendu
Legal Topics
Customary Marriage, Ante Nuptial Contract, Leave to Appeal, Marital Regimes
Family and Children Civil Procedure Customary Marriage Ante Nuptial Contract Leave to Appeal Marital Regimes

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Parties

Moses Muxe Mashisane

Applicant

Nosiphiwe Linda Mhlauli

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Judgment Confirming Customary Marriage and Declaring Ante Nuptial Contract Null and Void.

Legal Issues

  1. 1 Whether the applicant and respondent had a valid and enforceable oral ante-nuptial contract prior to marriage.
  2. 2 Whether the ante-nuptial contract registered after the marriage is valid.
  3. 3 Whether the applicant can substitute one marital regime for another without proper foundation.

Ratio Decidendi

The applicant's denial of the existence of a customary marriage and intention to marry by customary rites is central to the case. The ante-nuptial contract was registered in contemplation of a civil marriage that never occurred. The applicant seeks to substitute one marital regime for another without establishing a proper foundation or complying with the necessary requirements. On the facts presented, it is not possible to enforce an ante-nuptial contract for a non-existent marriage. The application for leave to appeal does not meet the statutory test for reasonable prospects of success or compelling reasons to be heard. Accordingly, the application must be dismissed with costs.

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application is dismissed with costs.