L.E.M v A.N.M and Others (2023/112995) [2025] ZAGPJHC 1244 (4 December 2025)

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: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2025 >> [2025] ZAGPJHC 1244 | Noteup | LawCite sino index ## L.E.M v A.N.M and Others (2023/112995) [2025] ZAGPJHC 1244 (4 December 2025) L.E.M v A.N.M and Others (2023/112995) [2025] ZAGPJHC 1244 (4 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_1244.html sino date 4 December 2025 SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG CASE NUMBER:2023/112995 (1) REPORTABLE: YES / NO (2) OF INTEREST TO OTHER JUDGES: YES / NO (3) REVISED: YES / NO 4 December 2025 In the matter between: L[…] E[…] M[…] APPLICANT And A[…] N[…] M[…]                                                                     FIRST RESPONDENT MINISTER OF HOME AFFAIRS                                              SECOND RESPONDENT DEPARTMENT OF HOME AFFAIRS: VEREENIGING           THIRD RESPONDENT DIRECTOR GENERAL: HOME AFFAIRS                              FOURTH RESPONDENT JUDGMENT WINDELL J: Introduction [1] This is an application in terms of Rule 53 of the Uniform Rules of Court to review and set aside the decision of the second, third and fourth respondents to register a civil marriage between the applicant and the first respondent. The applicant seeks a declaration that the marriage certificate issued on 22 December 2011 is invalid and void ab initio, and that the parties were never legally married. [2] Only the first respondent opposes the application. She raises, as a preliminary point, a plea of lis alibi pendens. It is common cause that a divorce action between the parties is pending in the Sebokeng Regional Court, where the validity of the marriage forms the central issue. The applicant has pleaded that no valid marriage exists, while the first respondent has sought to amend her particulars of claim to introduce alternative relief should the marriage be declared invalid. [3] The question that arises is whether it is necessary or appropriate for this court to entertain the present review when the Regional Court is already seized with the very issue of the validity of the marriage and is, by statute, empowered to determine that question and grant the substantive relief that may follow. The requirements for lis alibi pendens [4] The doctrine requires the first respondent to show: (a) pending litigation;  (b) between the same parties; (c) based on the same cause of action; and (d) involving the same subject matter or issues, such that the determination of one will dispose of, or substantially resolve, the other. Wallis J in Caesarstone Sdot-Yam Ltd v The World of Marble and Granite 2000 CC and Other s [1] explained the doctrine of lis pendens as follows: ‘ As its name indicates, a plea of lis alibi pendens is based on the proposition that the dispute (lis) between the parties is being litigated elsewhere and therefore it is inappropriate for it to be litigated in the court in which the plea is raised. The policy underpinning it is that there should be a limit to the extent to which the same issue is litigated between the same parties and that it is desirable that there be finality in litigation. The courts are also concerned to avoid a situation where different courts pronounce on the same issue with the risk that they may reach differing conclusions. It is a plea that has been recognised by our courts for over 100 years.’ [5] The purpose of the doctrine is thus to prevent parallel proceedings, avoid the risk of conflicting judgments, and ensure finality and orderly administration of justice. Courts have repeatedly warned against the proliferation of unnecessary litigation and emphasised that disputes should be resolved in a single appropriate forum. As was stated by Navsa JA in Socratous v Grindstone Investment: [2] ‘Courts are public institutions under severe pressure. The last thing that already congested rolls require is further congestion by an unwarranted proliferation of litigation’. Application of lis pendens to the present matter [6] Each element of the doctrine is satisfied in the present matter. First, there is pending litigation. The first respondent instituted a divorce action under case number RC282/2023. That matter was initiated prior to the present application and remains unresolved. The applicant has filed a plea in which he denies the existence of a valid marriage. [7] Second, the parties are the same. The same applicant and first respondent appear in both matters. [8] Third, although the present application is styled as a review and the Regional Court matter as a divorce, both proceedings turn on the same central issue – whether a valid marriage exists between the parties. The determination of that issue is foundational to the relief sought in both forums. [9] Fourth, the subject matter overlaps. In the Regional Court, the applicant disputes the marriage while the first respondent seeks, by amendment, alternative relief based on a putative marriage or universal partnership should the marriage be found invalid. That court is therefore seized with the full factual and patrimonial consequences arising from the alleged invalidity of the marriage. [10] Section 29(1B) of the Magistrates’ Courts Act [3] empowers a Regional Court to determine the validity of a marriage, grant decrees of nullity, and adjudicate the consequences flowing therefrom. It is thus competent to grant the very substantive relief sought in the present application. [11] The applicant did not deal with the fact that, after he filed his plea, the first respondent delivered a notice to amend her particulars of claim to introduce alternative declaratory relief. That application was opposed and was pending enrolment when these proceedings were instituted. The amendment sought illustrates why the Regional Court is the appropriate forum: the issues raised require oral evidence and credibility findings, which cannot appropriately be resolved in review proceedings on affidavit. [12] I am therefore satisfied that the relief sought in this court – a declaration that no valid marriage exists and that the marriage certificate is invalid – mirrors the relief already before the Regional Court. Entertaining the matter now would pre-empt or interfere with that court’s adjudication. The appropriateness of High Court intervention [13] Even if the High Court has jurisdiction to review an administrative act of Home Affairs, it does not follow that it must do so in circumstances where a parallel suit between the same parties is pending and where that suit can resolve the dispute fully. The applicant offers no compelling reason why the validity of the marriage cannot or should not be determined in the Regional Court. On the contrary, the Regional Court is the natural and logical forum: it is the forum chosen by the first respondent, it is the forum in which the applicant has participated by filing a plea, and it is the forum where viva voce evidence will be led on the factual disputes that the applicant himself raises. [14] Entertaining the present application would create a real risk of conflicting orders, duplication of costs, and piecemeal adjudication. It would also undermine the orderly progression of the divorce action. [15] The applicant has already submitted to the jurisdiction of the Regional Court by filing a plea. He can obtain the very relief he seeks in those proceedings. This court is therefore obliged, on principles of lis pendens, judicial comity, finality and economy, to decline to entertain the review. [16] Because the plea of lis pendens succeeds, it is unnecessary to consider the merits of the applicant’s administrative law grounds or the competing factual narratives. [17] In the result the following order is made: 1. The application is dismissed on the ground of lis alibi pendens. 2. The applicant and first respondent shall each bear their own costs. L WINDELL JUDGE OF THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG Delivered:  This judgement was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the Parties/their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines.  The date for hand down is deemed to be 4 December 2025. Appearances For the applicant:              N Nemakula Instructed by:                    M Ningiza Attorneys INC. For the first respondent:   A Swart Instructed by:                    Legal Aid South Africa Vereeniging Office Date of Hearing:                13 October 2025 Date of Judgment:             4 December 2025 [1] [2013] ZASCA 129; 2013 (6) SA 499 (SCA). [2] 2011 (6) SA 325 (SCA). [3] Act 32 of 1944. Section 29(1B):  A court for a regional division, in respect of causes of action, shall, subject to section 28(1A), have jurisdiction to hear and determine suits relating to the nullity of a marriage or a civil union and relating to divorce between persons and to decide upon any question arising therefrom, and to hear any matter and grant any order provided for in terms of the Recognition of Customary Marriages Act, 1998 (Act 120 of 1998). sino noindex make_database footer start