Yawa and Others v Tsoeute (4286/2019) [2020] ZAFSHC 225 (27 November 2020)

THE

HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 4286/2019

In the matter between:

XOLILE

MACDONALD YAWA 1ST Applicant

THEMBANI

YAWA

2nd Applicant

NONGUYO

YAWA

3rd Applicant

MASTER

OF THE FREE STATE HIGH COURT 4th Applicant

C. CROWN IN HIS CAPACITY AS SHERIFF WELKOM 5th Applicant

and

MATLAKALA

MARIA TSOEUTE

Respondent

JUDGMENT – LEAVE

TO APPEAL

JUDGMENT BY: CHESIWE, J

HEARD ON: The papers, as per the directive; with Heads of Arguments filed on 14 September and 21 September 2020 respectively

DELIVERED ON: 27 NOVEMBER 2020

Summary: section 3(1)(b) of the Recognition of customary marriage – whether a valid customary marriage came into existence.

[1] This is an application for leave to appeal against a judgment handed down on 6 March 2020. The respondent opposes the application.

[2] The grounds for the application for leave to appeal are listed in the application and will therefore not be repeated herein.

[3] The applicants contend that they have good prospects of success on appeal. The respondent contends that the applicants did not make out a case in terms of section 17 of the Superior Courts Act 10 of 2013.

[4] In terms of the provision of s 17(1)(a) of the Superior Courts Act 10 of 2013, leave to appeal may only be granted if the court concerned is of the opinion that

“1. The appeal would have reasonable prospects of success or if there are some compelling reasons why leave should be granted.

2. The decision sought on appeal does not fall within the ambit of s 16(2)(a) of the Act.

3. Where the decision sought to be appealed does not dispose of all the issues in the ease, the appeal would lead to a just and prompt resolution of the real issues between the parties.”

[5] It is important to be mindful of the fact that the advent of the Superior Courts Act 10 of 2013 has caused the threshold for the granting of the leave to appeal to be changed. The test to be applied prior to the Act was set out in the matter of S v Smith[1] as follows:

“What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law that a court

of appeal could reasonably arrive at a conclusion different to that of the ­­ ­­­­trial court. In order to succeed, therefore, the appellant must convince the court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding. More is required to establish that there is a mere possibility of success that the case is arguable on appeal or that the case cannot be categorised as hopeless. There must, in other words be a sound rational basis for the conclusion that there are prospects of success on appeal.”

[6] This court in the unreported case of Matoto v Free State Gambling and Liquor Authority,[2] Daffue J said the following:

“There can be no doubt that the bar for granting leave to appeal has been raised. Previously, the test was whether there is a reasonable

prospect that another court might come to a different conclusion. Now the usage of the word “would” indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against.”

[7] The applicants rely on several grounds as raised by the respondent in the founding papers that:

“13. No confirmatory affidavit or proof in the founding papers were attached by the respondent pertaining to the representative of her family that allegedly held the lobola negotiations.

14. No confirmatory affidavit or proof in the founding papers were attached by the respondent of her elders that allegedly accompanied the said respondent on 21 November 2015 to the applicants’ father’s house.

15. No evidence has been presented in the founding papers by the respondent that the customary marriage was ever concluded, how it was entered into and/or celebrated or that the bride was handed over.”

[8] Most of the grounds relied upon by the applicants and relief sought for, are essentially a repetition of the case as set out in the pleadings and was fully argued and dealt with in my judgment.

[9] The application dealt with whether the customary marriage was valid between the respondent and the deceased and whether the respondent must be appointed as the executor of the estate of the deceased.

[10] The issues raised by the applicants entail a revisit to the contended issues in which the applicants contend that there are prospects of success. Indeed, in an application for leave to appeal, the applicant is not precluded to revisit the issues. If the court is satisfied that there is a reasonable prospect of the factual matrix that is, looking at the circumstances under which the Customary Marriage took place, the court may come to a different interpretation. However, in this instance another court would not come to a different interpretation of the said Customary Marriage.

[11] The SCA in Tsambo v Sengadi,[3] with approval quoted the decision of Mbungela and another v Mkabi and Others [2020] 1 ALL SA 42 (SCA) at paragraph 16, the court said:

“The importance of the observance of traditional customs and usage that constitutes and define the provenance of African culture cannot be understated. Neither can the value of customs of bridal transfer be denied. But it must also be recognised that an inflexible note that there is no valid customary marriage if just this one ritual has not been observed, even if the other requirements of s 3(1) of the Act, especially spousal consent have been met, in circumstances such as the present one, could yield untenable results.”

[12] The SCA in Tsambo went further and stated at paragraph 18 that:

“It follows ineluctably that failure to strictly comply with all rituals and ceremonies that were historically observed cannot, invalidate a marriage that has otherwise been negotiated, concluded or celebrated in accordance with customary law.”

[13] Aligning myself with what the SCA said in Tsambo and for the fact that bar has been raised for granting leave to appeal against a judgment and/or granted the applicant has to show reasonable prospects of success. In my view, the applicants do not have any reasonable prospects of success. The SCA has clearly gave certainty in Tsambo, in respect of the existence of a customary marriage.

[14] I am therefore inclined to agree with the submissions made by the respondent in the written Heads of Argument.

[15] I am therefore of the considered view that the applicants are without merit and that the applicants do not have reasonable prospects of success on appeal.

[16] I pause to mention that it has come to my attention that the judgment delivered on 06 March 2020 erroneously mentioned the fourth respondent (Master of the High Court) to return the assets to the applicant. The order ought to have referred to the fifth respondent (Sheriff Welkom, Mr. C Brown) and not the fourth Respondent (Master of the High Court). In terms of the Uniform Rules and under exceptional circumstances, the court has to weigh up the principle of finality in a judgment against what is just, equitable and sound in law.

[17] The court may clarify its judgment in or order, if on a proper interpretation, the meaning thereof remains obscure, ambiguous or otherwise, uncertain, so as to give effect to its true intention, provided it does not thereby alter the sense and substance of the judgment or order. Rule 42 has its purpose in the expeditious correction of an obviously wrong order. It is therefore patent that in terms of Rule 42 and common law that permits the amendment, supplement or clarity in a pronounced judgment. The intention was to direct the order to the Sheriff, but was erroneously directed to the Master of the High Court. For obvious reasons, the Master of the High Court would not have removed any assets form the applicant. Therefore, the order number 5 in the judgment of 6 March 2020 ought to have read as follows:

“The fifth respondent is directed to return all the property that he has removed from the possession of the Applicant on 9 July 2019 back to the Applicant.”

[18] I accordingly make the following order:

1. The application for leave to the SCA or in the alternative, the full bench of this division is dismissed with costs against the first, second and third applicants.

2. The fifth respondent (in the main action, C Brown, in his capacity as Sheriff Welkom) is directed to return all the property that he has removed from the possession of the Applicant (in the main action, Ms Matlakala Maria Tsoeute) on 9 July 2019 back to the Respondent in the leave to appeal application.

_____

S, CHESIWE, J

On behalf of the 1st to 3rd Applicants: Adv. PC Ploos Van Amstel

Instructed by: Lovius Block

BLOEMFONTEIN

On behalf of Respondents: Mr. NW Phalatsi

Instructed by: NW Phalatsi & Partners

[1] 2012 (1) SACR 567 (SCA) at paragraph 7

[2] (4629/2015) [2017] ZAFSHC 80 ( 8 June 2017)

[3] (244/19) [2020] ZASCA 30 April 2020.