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BONISILE MARILYN MKHATJWA v NEPHTAL MATSEBULA AND OTHERS [1999] SZHC 17 (27 July 1999)

Nullification of marriage – when motion proceedings would be appropriate







CIV.CASE NO.1685/99

IN THE MATTER BETWEEN:

BONISILE MARILYN MKHATJWA Applicant

AND

NEPHTAL MATSEBULA : 1^st Respondent

THE REGISTRAR OF BIRTHS, MARRIAGES
AND DEATHS : 2^nd Respondent

THE ATTORNEY GENERAL : 3^rd Respondent

CORAM : MASUKU J.
For Applicant: : MR L.M. SIMELANE
No Appearance for Respondents

JUDGEMENT

27/7/1999

This is an application filed under a Certificate of urgency and in which the Applicant seeks an Order inter alia:-

limits and that this matter be heard urgently.

entered into between the Applicant and the 1^st Respondent on the 18^th
February, 1988 null and void.

respect of the said marriage.

is opposed.

The Applicant BONISILE MARILYN MKHATSHWA, in her founding Affidavit states on the 19^th February, 1988, the 1^st Respondent and herself purported to enter into a marriage in accordance with Swazi Law and Custom, which “marriage” was consummated on the said date. Unbeknown to her, the 1^st Respondent had on the 11^th April, 1975 contracted a marriage in accordance with civil rites with one BUSISIWE THEMBI MDLULI, and which marriage still subsists. The discovery of the marriage to Mdluli was only made in September, 1994.

Upon discovery of the earlier marriage, the Applicant states that she confronted the 1^st Respondent who confirmed the fact of the marriage to the Applicant and further confirmed that such marriage still subsists. The Applicant then severed her relationship with the 1^st Respondent, left the matrimonial home and went to reside at her parental home at Boyane.

When the matter was first called before me on the 16^th July, 1999, I refused to grant prayer 1 of the Notice of Motion relating to urgency as I formed the view that the matter was not sufficiently urgent to warrant the jettisoning of the normal time limits set out in the Rules of Court. In particular, I noticed that the Applicant had dismally failed to comply with the peremptory provisions of Rule 6.(25) (b). See in this regard
HUMPHREY H. HENWOOD v MALOMA COLLIERY & ANOTHER CASE NO.1623/94 and the cases therein cited.

I however allowed the Applicant to postpone the matter to the 23^rd July, 1999, to afford the 1^st Respondent the period of notice set out in the Rules. I further ordered that the 1^st Respondent must be notified of the postponement and this was done.

The question to be decided, which was raised mero motu by the Court is whether the Applicant is entitled to obtain the order sought i.e. the declaration of her marriage to the 1^st Respondent null and void on the strength of application proceedings.

It is trite and thereis a plethora of authority to the effect that matrimonial causes, which naturally affect the status of persons should be instituted by was of action and not motion. See VAN DYK v FOUCHEE 1973 (2) SA 662 @ 663 A. HERBSTEIN & VAN WINSEN, The Civil/Practice of the Supreme Court of South Africa, 4^th Edition state as follows at page 234.

“There are, on the other hand, certain classes of (sic) case(s) (for example

matrimonial causes and illiquid claims for damages) in which motion
proceeding are not permissible at all”.

What has been stated above is the normal and general rule, which is, like most general rules susceptable to exceptions. The question now becomes under what circumstances does the Court, in its discretion, permit the granting of orders for nullity of marriage on motion, thereby detracting from the normal and general rule applicable.

According to my research, the first case in which the Court declared a marriage null and void on motion was POTGIETER v BELLINGAN 1940 EDL 264. Briefly stated, the facts in that case were that the Applicant went through a form of marriage on 6^th April, 1939 with the Respondent. In the certificate, the Respondent, as in this case, was described as a bachelor. The Applicant later learnt that the Respondent had previously contracted a marriage in 1933 and that he had a wife and child from that union. The Respondent was arrested for bigamy, a charge to which he pleaded guilty and was sentenced to 50 pounds. He also handed in a signed statement in which he admitted his previous marriage, explained his reasons for deceiving the Applicant.

On being served with the Motion proceedings for annulment of the marriage by the applicant, the Respondent wrote a letter in which he acknowledged receipt of the notice of motion and affidavit and further stated that he did not wish to oppose her claim because of the injustice to which he had subjected her.

Gane J., on appraising the facts of the matter was of the firm view that “proof in this case is overwhelming. Not only have I before a certified copy of the record in which the respondent pleaded guilty to the charge of bigamy, but I have before me a full statement which he made before the magistrate, and also the letter which he has written to the Registrar. Under those circumstances, I see no reason at all why this matter should not be dealt with, as it is proposed to deal with it, on motion”.

Gane J.’s approach was also followed by Kotze J. in the VAN DYK v FOUCHEE case (supra), in which the Plaintiff married the Defendent on the 18^th July, 1972, whereas the Defendent has married another women on the 12^th July, 1948. The first marriage was only set aside by the Cape Provincial Division in August, 1972. Kotze J., after an appraisal of the facts in that matter, came to the view that “these facts are probably incontrovertible” and accordingly sanctioned motion proceedings in a nullity suit, following POTGIETER v BELLINGAN case (supra).

It would therefore appear, regard being had to the above cited cases that the Court does not lightly sanction motion proceedings in nullity suits unless the facts are “incontrovertible” or “proof in that case is overwhelming.” So strong is the Court’s resolve to follow the general rule that Kotze J., after granting the Order had to state as follows at page 663H :-

“Accordingly, I would stress that practitioners who resort to motion proceedings
in cases of this nature do so at their peril. The general practice is to proceed by
action.”

Turning to the facts of the instant case, the question to be decided is whether I am convinced that there is in casu “overwhelming” of “incontrovertible” facts. I am of the view that there is no such overwhelming or incontrovertible facts because unlike in the VAN DYK case, where the Respondent unequivocally admitted his guilt and stated his desire not to oppose the application, there is nothing at all from the 1^st Respondent in this case.

Overwhelming facts, in the POTGIETER vs BELLINGAN case consisted in the Respondent’s admission of his wrong, the verdict of guilt returned by the Magistrate Court hearing the bigamy charge, his plea of guilty thereto and his letter to the Registrar. This is a far cry from the facts in the instant case, which consists only in the allegations by the Applicant. Based on the ratio in POTGIETER vs BELLINGAN, I would refuse the Application. A close scrutiny of the VAN DYK case however suggests that what weighed upon the Court in that matter and the “incontrovertible facts” related, not to the Respondent’s admission of guilt as in VAN DYK, but rather related to the type or class of the “marriage”. If the marriage was voidable, then the matter could not proceed on motion but if the “incontrovertible facts” showed that the marriage was void ab initio, then the Court would sanction motion proceedings.

I take into account that the Respondent was served personally with the Notice of Motion and Affidavits for the initial hearing and was also served in terms of the Rules in relation to the postponement, with a Notice of set down. No notice to oppose nor have affidavits been filed opposing the grant of the order sought.

Following the precedent set out by Kotze J., I find that this case being one for the nullification of a “marriage” that is void ab initio, motion proceedings will be sanctioned.

I also note that notwithstanding service, neither the 2^nd nor 3^rd Respondents have evinced an intention to oppose the grant of the prayers sought. In the result, I grant an Order in terms of prayers 2 and 3 of the Notice of Motion.