Shawn v Shabalala and Another (Leave to Appeal) (56880/2021) [2023] ZAGPPHC 2071 (28 November 2023)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: North Gauteng High Court, Pretoria South Africa: North Gauteng High Court, Pretoria You are here: SAFLII >> Databases >> South Africa: North Gauteng High Court, Pretoria >> 2023 >> [2023] ZAGPPHC 2071 | Noteup | LawCite sino index ## Shawn v Shabalala and Another (Leave to Appeal) (56880/2021) [2023] ZAGPPHC 2071 (28 November 2023) Shawn v Shabalala and Another (Leave to Appeal) (56880/2021) [2023] ZAGPPHC 2071 (28 November 2023) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPPHC/Data/2023_2071.html sino date 28 November 2023 REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA, GAUTENG DIVISION, PRETORIA CASE NO: 56880/2021 (1) REPORTABLE: YES /NO (2) OF INTEREST TO THE JUDGES: YES /NO (3) REVISED. DATE: 28 NOVEMBER 2023 SIGNATURE: IN THE MATTER BETWEEN MOKHORO SHAWN                                                                   APPLICANT and EUSACH BOY SHABALALA                                                     1 ST RESPONDENT DEPARTMENT OF HOME AFAIRS                                            2 ND RESPONDENT JUDGMENT - APPLICATION FOR LEAVE TO APPEAL CEYLON AJ A INTRODUCTION: [1]        This is an application by the 1 st Respondent (Mr Shabalala) for leave to appeal to the Supreme Court of Appeal or the Full Bench of this Division against the judgment and order handed down herein on 05 September 2023. The application is opposed by the Applicant (Mrs Mokhoro). [2]        The said order provides as follows: "[14] In the result, the following order is made: (a)       the customary marriage entered into between the parties on 09 December 2010 is declared valid and of effect in terms of the provisions of Act 120 of 1998 and in community of property and profit and loss. (b)       the 2 nd Respondent is ordered to register the marriage between the parties in terms of the provisions of the Act. (c)        the 1 st Respondent is ordered to pay the costs of this application, including the costs in respect of 17 November 2022, and the costs of counsel." B GROUNDS OF APPEAL: [3]        This application is premised on the grounds set out in the Notice of Appeal dated 27 September 2023. The 1 st Respondent submitted elaborate grounds which are listed in the said Notice and need not be repeated herein. In short, the grounds relate to the following: (a) intention versus materialisation of the intention: The 1 st Respondent submitted that this Court erred in its interpretation and analysis of the evidence regarding the intention of the parties vis-a-vis the materialisation of their intentions. The 1 st Respondent disputes that the intentions materialised and argued that no valid marriage was concluded. (b) the Fisher Ramablele principle: According the 1 st Respondent, this Court was not invited to decide on whether the intentions of the parties amounted to customary marriage, rather than deciding on the issue of whether the parties entered into a valid customary marriage, which was in contrast to the principle in the said decision [(203/2014)[2014] ZASCA 88 (04 June 2014)), which the 1 st Respondent states, was enunciated by the SCA in Tau v Mashaba [(335/2019)[2020] ZASCA (26 March 2020], and confirmed by the Constitutional Court in the Public Protector v South African Reserve Bank [2019 (6) SA 253 (CC) at para 234] decision. (c) umembeso - evolution of customary marriage: Regarding the above issue, the 1 st Respondent contended that the Court erred in failing to have regard to the facts on the evolution of customary law, the evidence of the Mrs Mokhoro, and the principles contained in the Ngwenyama decision. (d) reliance on academics: The 1 st Respondent submitted that reliance was placed on academic writings in the judgment in contract to the principles in the said Ngwenyama decision, supra . [4]        The Applicant (Mrs Shawn Mokhoro) equally submitted elaborate Heads of Argument in opposition to the leave to appeal application, which is, in brief, the following: (a)       With regards to the first ground of appeal, the Applicant denies that there was any error made in finding that the parties intended and carried out their intentions by consenting to get married to each other, as the 1 st Respondent admitted and submitted (in their HOA) that they intended (which intention materialised) and consented to get married. This, the Applicant argues, is borne out by the evidence of Mr Sipho Mokhoro and Mr Mthethwa. (b)       Concerning the Fisher Ramahlele principle, the Applicant contended that the 1 st Respondent's argument was not legally sound. According to the Applicant, in order for parties to enter into a valid marriage, there must be an intention and/or consent to do so - the intention of the parties is a precursor. Therefore, the court cannot make a finding on the existence of a marriage without ascertaining if the parties intended to get married or not. (c)        The Applicant submitted that the evolution of customary law cannot amount to an error by this Court, and that it is trite that customary law must be read and interpreted in accordance with the provisions of the Constitution which is the supreme law of the land. The Applicant submitted further that the Court did consider the present facts between the parties in the context of the living, inherently flexible and pragmatic customs. (d)       With reference to the ground that the Court placed reliance on academics, the Applicant submitted that the 1 st Respondent did not contend that the Court erred in placing reliance on academic writings, and besides, that there is nothing wrong in the judiciary referring to academic writings in judgments, and, no law prohibits any such reliance. The Applicant is of the view that academic writing is usually applied as guidelines by the courts in deciding a matter on a particular issue. (e)       The Applicant, in view of the above contentions, submitted that the 1st Respondent's application for leave to appeal should be dismissed with costs as he has failed to show with certainty that another court would come to a different conclusion than those in the judgment and that there is no reasonable prospect of success on appeal. (f)        It is the submission of the 1 st Respondent that there are prospects of success on appeal and that the application should be granted. [C] LEGAL PRINCIPLES: [5]        It is trite that applications for leave to appeal are governed by section 17 of the Superior Courts Act 10 of 2013 . Section 17 (1) provides that: "(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that: (a)       (i) the appeal would have reasonable prospects of success; or (ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration. (b)       the decision sought to appeal does not fall within the ambit of section 16 (2)(a); and (c)        where the decision sought to be appealed does not dispose of all the issues in the case, the appeal should lead to a just and prompt resolution of the real issues between the parties." [6]        The traditional test that was applied by our courts in considering applications for leave to appeal have been whether there is a reasonable prospect that another court may come to a different conclusion to the one reached by the court a quo [ Commissioner of Inland Revenue v Tuck 1989 (4) SA 888 (T) at 8809]. With the enactment of said section 17 , the test obtained statutory force and leave to appeal may be granted where the judge or judges concerned is of the view that the appeal would have reasonable prospects of success which made it clear that the threshold has been raised. In Mount Chevaux Trust v Tina Goosen and 18 Others [(2014) JDR 2325 (LCC) at para 6] it was held that: "It is clear that the threshold on granting leave to appeal against a judgment of a High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion, see Van Heerden v Conwright & Others 1985 (2) SA 342 (T) at 342H. The use of the word "would" in the new statute indicate a measure of certainty that another Court will differ from the Court whose judgment is sought to be appealed against." [7]        In Notshokuvu v S [(2016) ZASCA 112 at para 2] it was stated that the Appellant faces "a higher and stringent" threshold under said section 17, and the test is not whether another court "may" come to a different conclusion, but "would" indeed come to a different conclusion. [8]        In this regard, the 1 st Respondent submitted that in the Valley of the Kings Thaba Motswere (Pty) Ltd and Another v Al Mayya International [(EL 926/2016, 2226/2016)[2016] ZAECGHC 137 (10 November 2016)] the Mount Chevaux approach was veered off and found support in the SCA decision of Ramakatsa v ANC and Another [2021 ZASCA 31]. In said Valley of the Kings decision, it was held that: "[4] There can be little doubt that the use of the word "would" in section 17 (1)(a)(i) of the Superior Courts Act implies that the test for leave to appeal is now more onerous. The intention clearly being to avoid our courts of appeal being flooded with frivolous appeals that are doomed to fail. I am, however, of the respectful view that the "measure of certainty" standard propounded by the learned judge in Mount Chevaux Trust (supra) may be placing the bar to high. It would, in my respectful view, be unreasonably onerous to require an applicant for leave to appeal to convince a judge - who invariably would have provided extensive reasons for his or her findings and conclusions - that there is a measure of certainty that another court will upset those findings. It seems to me that a contextual construction of the phrase "reasonable prospect of success" still requires of the judge, whose judgment is sought to be appealed against, to consider, objectively and dispassionately, whether there are reasonable prospects that another court may well find merit in arguments advanced by the losing party. I shall accordingly consider arguments advanced on behalf of the applicants on this basis." [9]        With regards to Ramakatsa , supra , the court stated as follows: "[10] I am mindful of the decisions at High Court level debating whether the use of the word "would" as opposed to "could" possibly means that the threshold for granting the appeal has been raised. If a reasonable prospect of success is established, leave to appeal should be granted. Similarly, if there are some other compelling reasons why the appeal should be heard, leave to appeal should be granted. The test for reasonable prospects of success postulates 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 other words, the appellants in this matter need to convince this Court on proper grounds that they have prospects of success on appeal. Those prospects of success must not be remote, but there must exist a reasonable chance of succeeding. A sound rational basis for the conclusion that there are prospect of success must be shown to exist." [10]      The Applicant relied on Acting National Director of Public Prosecutions and Others v Democratic Alliance and Others [(1957/09)[2016] ZAGPPHE 489 (24 June 2016)], Matoto v Free State Gambling and Liquor Authority [(2017) ZAFSHC 80 at para 5], Notshokuvu , supra , and S v Smith [2012 (1) SACR 567 (SCA) at para 7] to substantiate why the Mount Chevaux Trust decision, supra , should be followed and a liberal approach for granting leave to appeal should be discouraged [also refer to Mothule Inc Attorneys v Law Society of the Northern Provinces and Another [(213/16)[2017] ZASCA 17 (22 March 2017]. [11]      In Van Zyl v Steyn [(83856/15)[2022] ZAGPPHC 302 (03 May 2022) the Court in this Division considered the said Ramakatsa decision, supra , against the background of inter alia , MEC for Health, Eastern Cape v Mkhitha and Another [2016 ZASCA 176 (25 November 2016) at paras 16-18], Notshokuvu , supra , Van Wyk v S, Galela v S [(2014) ZASCA 152; 2015 (1) SACR 548 (SCA) para 14], Zuma v Office of the Public Prosector and Others [(2020) ZASCA 133 (30 October 2020) at para 19] and Nwafor v Minister of Home Affairs and Others [(2021) ZASCA 58 (12 May 2021) at para 25] and concluded that the Ramakatsa decision did not lower the threshold as generally applied and that all courts must still determine if an appeal could have a reasonable prospect of success [at para 15 thereof]. D EVALUATION: [12]      This Court does not intend to deal with each of the grounds of appeal separately or repeat what is contained in the judgment itself. [13]      As a point of departure, this Court considered sections 1, 2, 3, 4, and 7 of the Recognition of Customary Marriages Act 120 of 1998 ("the Act"), that deals, inter a/ia, with the requirements of a valid customary marriage, against the contentions of the parties, the evidence before it, the case authorities cited, academic writings and the papers filed of record. [14]      With regards to the issue of intention of the parties and consent, this Court addressed that at para [12], of the judgment specifically sub-paragraphs (d) to (n) thereof. On the evidence and case law consulted before it, this Court concluded that the second requirement in terms of section 3 of the Act, has been satisfied. This Court is therefore not convinced by any argument to the contrary and stands by its finding in this regard. [15]      This Court considered all of the elements of a valid marriage as set out in section 3 of the Act. These elements or requirements are set out in paragraph [12] (a) of the judgment and in reference to the Ngwenyama decision. Each of the elements was examined, from paragraph [12] (c) to (mm) of the judgment, in order to ascertain if there was any compliance with each of them. It can therefore not be correct to state that the issue as to whether or not a valid marriage between the parties exist has not been canvassed in the judgment. Accordingly, this ground of appeal can, in the circumstances, not be sustained. [16]      The evolution of customary marriages, in the view of the 1st Respondent (Mr Shabala), was addressed, inter alia , in paragraph [12], (aa) where the 1st Respondent admitted that he recognise that customs does evolve, even though it cannot be waived unilaterally by the Applicant and her family, referring to the Fanti , Mabuza , Mbunqela and Tsambo decisions, referred to in the judgment. Within the context of the requirements contained in section 3, it is recognised by our courts and writers that customary law, including Zulu and Sotho customary law, evolves, as indicated in Mbunqela and Mabuza , supra, [para 17] and by TW Bennet as discussed at paragraph [10] (2) of the judgment. In the view of this Court, there is no merit in this submission by the 1 st Respondent, and it stands to fail. [17]      As far as reliance on academics are concerned, 'the Applicant correctly observed that the 1 st Respondent does not submit that this Court erred in placing reliance on the work of academics. The academic writings consulted was used to illuminate certain concepts or practices in customary law together with case authorities and the testimonies of witnesses to determine if a customary marriage exist or not. This is clear from the judgment. This Court is not persuaded by the submissions made in respect of this ground. [18]      Regarding the contentions made by the parties on the interpretation of section 17, this Court aligns itself with the Van Zyl v Steyn decision, supra , and the requirement that there must still be a reasonable prospect of success on appeal. The meaning of reasonable prospects of success was explained in S v Smith supra , in the judgment. E. CONCLUSION: [19]      After careful consideration of this application, this Court is not convinced that the grounds raised are grounds in respect of which another Court would come to different conclusions to those reached in the judgment herein - be it on law or fact. Accordingly, this Court is not persuaded that this application satisfies the requirements of section 17 of the Act. [20]      Accordingly, this Court is not convinced that any appeal emanating from this application would have reasonable prospects of success on appeal and that there are any compelling reasons why the appeal should be heard. Therefore, this application cannot succeed. F. ORDER: [21]      In the result, the following order is made: (a) the application is dismissed with costs, including costs of counsel. B CEYLON ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA APPEARANCES For the Applicant:               Adv MG Senyatsi Instructed by:                     SGA Law Africa Pretoria For the Respondent:          Adv KM Kgomongwe Instructed by:                     DL Rapetsoa Attorneys Pretoria Hearing date:                      23 November 2023 Judgment date:                   28 November 2023 sino noindex make_database footer start