S.B v B.B and Another (6014/2022) [2024] ZAECMHC 45 (4 June 2024)

S.B v B.B and Another (6014/2022) [2024] ZAECMHC 45 (4 June 2024)

The court found that the applicant's evidence regarding the alleged prior customary marriage was incomplete and uncorroborated, with all purported witnesses deceased and the alleged first spouse uncontactable. The respondent's denial was supported by affidavits from community members and was not found to be uncreditworthy or fictitious. Given the material disputes of fact and the lack of sufficient evidence to make a just decision on affidavit, the court determined that the matter should be referred to oral evidence in terms of Rule 6(5)(g). The issue of whether the applicant was previously married to Ms S[...] must be ventilated in open court, allowing both parties to call and...

Citation
[2024] ZAECMHC 45
Parties
Applicant: S[...] B[...]; Respondent: B[...] B[...]; Respondent: Director General: Department of Home Affairs
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
4 June 2024
Case Number
6014/2022
Procedural Posture
Review Application / Referral to Oral Evidence After Opposed Motion
Outcome
The application is referred to oral evidence on the issue of whether the applicant married Ms S[...] before marrying the respondent. Costs are reserved for determination after the hearing of oral evidence.
Judges
Kunju
Legal Topics
Customary Marriage, Nullity of Marriage, Oral Evidence, Rule 6 5 G, Proprietary Consequences
Family and Children Civil Procedure Customary Marriage Nullity of Marriage Oral Evidence Rule 6 5 G Proprietary Consequences

Case Brief

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Parties

S[...] B[...]

Applicant

B[...] B[...]

Respondent

Director General: Department of Home Affairs

Respondent

Procedural Posture

Review Application / Referral to Oral Evidence After Opposed Motion

Legal Issues

  1. 1 Whether the applicant was married to Ms S[...] by customary law before marrying the first respondent.
  2. 2 Whether the civil marriage between the applicant and the first respondent is a nullity due to the alleged subsistence of a prior customary marriage.
  3. 3 Whether the evidence presented by the applicant regarding the prior marriage is sufficient and credible.

Ratio Decidendi

The court found that the applicant's evidence regarding the alleged prior customary marriage was incomplete and uncorroborated, with all purported witnesses deceased and the alleged first spouse uncontactable. The respondent's denial was supported by affidavits from community members and was not found to be uncreditworthy or fictitious. Given the material disputes of fact and the lack of sufficient evidence to make a just decision on affidavit, the court determined that the matter should be referred to oral evidence in terms of Rule 6(5)(g). The issue of whether the applicant was previously married to Ms S[...] must be ventilated in open court, allowing both parties to call and...

Court Disposition

The application is referred to oral evidence on the issue of whether the applicant married Ms S[...] before marrying the respondent. Costs are reserved for determination after the hearing of oral evidence.

Orders

  • The issue of whether or not the applicant married L[...] S[...] before marrying the respondent is referred to oral evidence on a date to be arranged with the registrar.
  • Both the applicant and the first respondent may call any witness who deposed to an affidavit in the application proceedings.