In the case of N B v T B and Another (2669/2021; CA 81/2022)  ZAECMHC 8 (30 January 2024), the court was presented with an appeal against the decision of Dunywa AJ, who had dismissed an application seeking to declare the appellant’s civil marriage to the first respondent either invalid or, if valid, to have consequences of a marriage out of community of property and profit and loss. The appellant sought not only to challenge the initial ruling but also to introduce new evidence alleging that the first respondent had previously paid lobola for another individual, indicating the existence of a customary marriage prior to their civil union. This appeal and the application to introduce further evidence were met with opposition from the respondent. The case delves into complex issues surrounding the admissibility of new evidence in appellate proceedings, the legal recognition of customary marriages alongside civil marriages, and the implications of purported hearsay evidence within the context of marital disputes.
Legal Framework and Adjudication of New Evidence on Appeal
The court scrutinized the legal standards for introducing new evidence during an appeal, guided by section 19(b) of the Superior Courts Act. This provision vests the court with the jurisdiction to adjudicate the appellant’s application to introduce further evidence. The court relied on established principles, as summarised in “Herbstein and Van Winsen – The Civil Practice Of The Supreme Court Of South Africa, 4th Ed at 909; Colman v Dunbar 1933 AD 161 (A); and Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others 2005 (4) SA 359 at para 41,” which dictate the circumstances under which new evidence may be admitted in appellate proceedings:
- The necessity for finality in trials, allowing further evidence only under exceptional circumstances.
- The applicant’s burden to demonstrate that the absence of additional evidence was not due to any negligence on their part.
- The new evidence must be material, credible, and potentially decisive.
- The admission of new evidence should not unjustly prejudice the opposing party.
The appellant aimed to supplement the case with statements from in-laws, claiming indirect knowledge of lobola payment for another woman, A[…], dating back to between 2012 and 2013. This evidence was challenged on grounds of reliability and timeliness, emphasizing that the sources were distant family members not directly involved in the negotiations.
Furthermore, the court considered the mootness of the appeal, referencing s 16 (2) (a) (1) of the Superior Courts Act, which allows dismissal of appeals that no longer present a practical outcome. The legal discourse also touched on the mootness doctrine’s exceptions, as outlined in various case laws, including Narius Moloto v The Pan Africanist Congress Of Azania (1176/2019)  ZASCA 140 (27 October 2023), where an appeal may proceed if it still holds practical significance for the parties or broader legal principles.
The court found that the appellant’s bid to introduce new evidence did not satisfy the criteria set forth in legal precedents and statutory provisions, particularly due to the lack of exceptional circumstances justifying the late submission of such evidence.
Examination of Customary Marriage Claims and Hearsay Evidence
The court meticulously examined the appellant’s claim that the first respondent, T[…], was involved in a customary marriage with A[…] before their civil marriage in 1997. The appellant sought to challenge the validity of their civil union by introducing evidence of lobola payment to A[…], asserting that this indicated the existence of a customary marriage.
The primary legal contention revolved around whether the evidence of lobola payment constituted admissible proof of a customary marriage and whether such evidence was merely hearsay. The court’s deliberation was anchored in the principles governing hearsay evidence as outlined in the South African legal framework, particularly focusing on the exceptions that might allow for hearsay evidence to be admitted under certain circumstances.
The appellant’s attempt to introduce new evidence about the lobola payment was critically assessed against the backdrop of the rules surrounding hearsay evidence. The first respondent, T[…], contended that the appellant’s claims were based on inadmissible hearsay, arguing that the alleged customary marriage with A[…] did not exist. He emphasized that A[…] was merely the mother of his children, a fact known to the appellant prior to their civil marriage.
Further complicating the matter was the conflicting affidavits from A[…], where she initially confirmed the lobola payment and customary marriage but later retracted her statements, alleging misinformation by the appellant’s legal representative. This led to a dispute over the authenticity of her signatures on the affidavits, necessitating a forensic examination.
The court ultimately found that the evidence presented by the appellant did not satisfy the criteria for the admission of hearsay evidence. The claims regarding the lobola payment and the existence of a prior customary marriage were deemed inadmissible, as they failed to meet the legal standards for reliability and relevance. The court’s analysis underscored the stringent requirements for hearsay evidence to be considered admissible, especially in cases involving complex familial and marital relationships.
This examination of customary marriage claims and hearsay evidence highlighted the intricate balance between upholding legal standards for evidence and addressing the nuanced realities of individuals’ marital histories. The court’s decision reaffirmed the importance of concrete, admissible evidence in disputes over marital status and the division of marital property.
Conclusion and Cost Determination in Appeal Proceedings
The court concluded its deliberations by addressing the mootness of the appeal and the subsequent determination of costs associated with the proceedings. The court underscored the principle that an appeal should only be entertained if it would result in a practical effect or outcome, as stipulated by s 16 (2) (a) (1) of the Superior Courts Act. This legal stance ensures that the judiciary does not expend resources on disputes that no longer present a live controversy capable of affecting the parties involved.
The court’s decision to dismiss the application to lead further evidence, as well as the appeal itself, was grounded in the comprehensive legal framework established for adjudicating such matters. The appellant’s failure to meet the stringent criteria for the introduction of new evidence, particularly the inability to demonstrate exceptional circumstances or to avoid prejudicing the respondent, played a crucial role in the court’s judgement.
Furthermore, the court meticulously evaluated the implications of the mootness doctrine, reaffirming the judiciary’s commitment to resolving disputes that have a tangible impact on the parties’ rights or obligations. By concluding that the appeal and the application to lead further evidence lacked the potential to produce any practical result, the court emphasized the importance of judicial economy and the need to focus on cases with substantive legal and factual controversies.
Mootness refers to situations where, due to subsequent events, a court’s decision will no longer have a practical effect on the dispute between the parties. This concept is pivotal in ensuring judicial resources are allocated to cases where a court’s intervention can provide meaningful relief. The doctrine emphasizes the fundamental principle that courts are established to resolve actual controversies which have tangible impacts on the parties involved, rather than to issue opinions on hypothetical scenarios or questions that have become academic due to changed circumstances.
In the context of appellate proceedings, mootness serves as a critical filter, ensuring that the appellate courts’ attention is devoted to disputes where their judgments can have practical implications. As illustrated in various cases, including the notable references to Narius Moloto v The Pan Africanist Congress Of Azania and The President of the Republic of South Africa v DA and Others, courts are cautious in their approach to moot appeals. They typically refrain from adjudicating issues that have lost their live controversy, except under exceptional circumstances where broader legal principles are at stake or where a judgment may have practical effects beyond the immediate parties.
The doctrine of mootness upholds the principle of judicial economy and the integrity of the legal system by preventing the courts from becoming forums for debates on abstract propositions of law. It ensures that the judiciary’s role remains firmly rooted in resolving real disputes and contributing to the development of law in a manner that has direct relevance to the society it serves.
In terms of costs, the court adhered to the principle that costs follow the result, thereby ordering the appellant to bear the costs associated with both the application to lead further evidence and the appeal. This cost determination reflects the court’s discretion in penalizing parties who pursue legal remedies without sufficient grounds or in circumstances where their actions do not contribute to the resolution of a live dispute.
The judgment serves as a cautionary tale for litigants, reminding them of the importance of presenting a case that is both timely and substantiated by credible evidence. It also highlights the judiciary’s role in safeguarding the integrity of the legal process by ensuring that courts are not burdened with cases that lack the potential to affect the parties’ legal standing or the broader legal landscape.
Summarised by Bertus Preller, a Family Law and Divorce Law attorney and FAMAC accredited Mediator at Maurice Phillips Wisenberg in Cape Town. A blog, managed by SplashLaw, for more information on Family Law read more here.
READ THE CASE HERE: