THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 630/2018
In the matter between:

L MZALISI NO
FIRST APPELLANT
DIRECTOR-GENERAL OF DEPARTMENT
OF HOME AFFAIRS NO
SECOND APPELLANT
MINISTER OF HOME AFFAIRS NO
THIRD APPELLANT
DEPUTY DIRECTOR-GENERAL
FOR CIVIC SERVICES NO
FOURTH APPELLANT

and

EMMANUEL PAULKING OCHE OCHOGWU
FIRST RESPONDENT
ZIZIPHO NKUMANDA
SECOND RESPONDENT

Neutral citation:  Mzalisi NO & others v Ochogwu & another (630/2018) [2019] ZASCA 138
(01 October 2019)

Coram:
Petse DP, Tshiqi, Wallis, Mbha and Dlodlo JJA

Heard:
5 September 2019

Delivered:
01 October 2019

Summary:
Civil and customary marriages – eligibility of asylum seekers whose status has
not been determined to marry whilst lawfully residing in South Africa – validity of
departmental circular imposing absolute ban on asylum seekers seeking to marry – circular
inconsistent with the law and invalid.

ORDER

On appeal from: Eastern Cape Division of the High Court, Port Elizabeth (Jaji J sitting as
court of first instance):

1.
The appeal is dismissed with costs on the scale as between attorney and client.
2.
The order of the court below is amended to the following extent:
2.1
The structural interdict appended to paragraph (v) of the order is deleted in its
entirety.
2.2
Paragraph (vii) of the order is deleted in its entirety.

JUDGMENT

Petse DP (Tshiqi, Wallis, Mbha and Dlodlo JJA concurring):

Introduction
[1] The first respondent, Mr Emmanuel Paulking Oche Ochogwu, is a Nigerian national.
He came to South Africa in 2011 to seek sanctuary in order to escape what he says were
increasing attacks directed at Christians by Boko Haram in his home country. He is an
asylum seeker who is entitled to reside in South Africa by virtue of an asylum seeker
temporary permit issued in terms of s 22(1)1 of the Refugees Act 130 of 1998 (the Refugees
Act). This permit entitles the first respondent to live, work and study in South Africa. His
application for asylum under s 21 of the Refugees Act was refused by the Refugee Status
Determination Officer.2 He appealed the rejection of his application to the Refugees Appeal

1 Section 22(1) of the Refugees Act provides that a Refugee Reception Officer must, pending the outcome of
an application in terms of section 21(1), issue to the applicant an asylum seeker permit in the prescribed form
allowing the applicant to sojourn in the Republic temporarily, subject to any conditions, determined by the
Standing Committee, which are not in conflict with the Constitution or international law and are endorsed by
the Refugee Reception Officer on the permit.
2 Section 24(3) of the Refugees Act empowers a Refugee Determination Officer to:
(a) grant asylum; or (b) reject the application as manifestly unfounded, abusive or fraudulent; or (c) reject the

Board (RAB) in terms of s 24A of the Refugees Act. The appeal has been pending before
the RAB for some seven years.3 Had the first respondent’s asylum seeker application
succeeded he would have become a refugee and lawfully entitled to reside permanently in
South Africa.4

[2] In September 2015 the first respondent married the second respondent, Ms Zizipho
Nkumanda, a South African citizen by birth, under customary law. There is one child
Giovanni, born of this marriage on 23 June 2016. Both respondents live in Port Elizabeth
where the first respondent is a Pastor in the Dominion Embassy Church.

[3] During August 2016 the respondents went to the offices of the Department of Home
Affairs (DHA), Port Elizabeth to seek registration of their customary marriage under s 4 of
the Recognition of Customary Marriages Act 120 of 1998 (RCMA),5 and also to contract a

application as unfounded; or (d) refer any question of law to the Standing Committee for Refugee Affairs
established by section 9 to 20 of the Refugee Act.
3 There is reportedly a backlog of some 200 000 appeals pending before the RAB.
4 ‘Refugee’ is defined in s 1 as ‘any person who has been granted asylum in terms of this Act’.
5 Section 4 of the RCMA, titled ‘Registration of customary marriages’ reads as follows:
‘(1)
The spouses of a customary marriage have a duty to ensure that their marriage is registered.
(2)
Either spouse may apply to the registering officer in the prescribed form for the registration of his or
her customary marriage and must furnish the registering officer with the prescribed information and any
additional information which the registering officer may require in order to satisfy himself or herself as to the
existence of the marriage.
(3)
A customary marriage-
(a)
entered into before the commencement of this Act, and which is not registered in terms of any
other law, must be registered within a period of 12 months after that commencement or within such
longer period as the Minister may from time to time prescribe by notice in the Gazette; or
(b)
entered into after the commencement of this Act, must be registered within a period of three
months after the conclusion of the marriage or within such longer period as the Minister may from
time to time prescribe by notice in the Gazette.
(4)(a) A registering officer must, if satisfied that the spouses concluded a valid customary marriage,
register the marriage by recording the identity of the spouses, the date of the marriage, any lobolo
agreed to and any other particulars prescribed.
(b)
The registering officer must issue to the spouses a certificate of registration, bearing the
prescribed particulars.
(5)(a) If for any reason a customary marriage is not registered, any person who satisfies a registering
officer that he or she has a sufficient interest in the matter may apply to the registering officer in the
prescribed manner to enquire into the existence of the marriage.
(b)
If the registering officer is satisfied that a valid customary marriage exists or existed between
the spouses, he or she must register the marriage and issue a certificate of registration as
contemplated in subsection (4).
(6)
If a registering officer is not satisfied that a valid customary marriage was entered into by the
spouses, he or she must refuse to register the marriage.
(7)
A court may, upon application made to that court and upon investigation instituted by that
court, order-
(a)
the registration of any customary marriage; or

civil marriage under the Marriage Act 25 of 1961. There they met Mr Faltein, at the time the
Acting Office Manager. Mr Faltein told them that for this to happen two things were required:
first, their customary marriage had to be proved and secondly, the first respondent’s asylum
seeker temporary permit had to be verified. Proof of the existence of the customary marriage
was duly provided by way of an affidavit from the second respondent’s father. And, in
February 2017 a new s 22 asylum seeker permit was made available to Mr Faltein, who
confirmed that all was now in order.

[4] But, lo and behold, on 14 February 2017, when the respondents returned to the DHA,
little did they know what awaited them. To their chagrin, Mr Faltein told them that they could
neither marry nor have their customary marriage registered because, in the interim, the law
had changed and ‘asylum seekers [were] no longer allowed to get married’. For this stance
Mr Faltein relied on a circular issued on 12 September 2016 by the Deputy Director-General
for Civic Services, the fourth appellant in this case.6 In particular, Mr Faltein invoked para
2.1(b)(iii)(dd) thereof. In broad terms, the circular, amongst other things, prescribes
elaborate procedures with which marriage officers are required to comply before they may
solemnise marriages involving refugees and asylum seekers.

[5] Aggrieved by this bizarre turn of events, the respondents instituted legal proceedings
in the Eastern Cape Division of the High Court, Port Elizabeth (the high court). In the main,
they impugned the validity and lawfulness of paragraph 2.1(b)(iii)(dd) of the circular to the
extent that it introduced an impediment to them being married. It bears mentioning that this
paragraph was the only material innovation introduced to Circular No. 10 of 2013, operative
from 19 December of that year, that had until then governed procedures relating to the
solemnisation and registration of marriages in South Africa.

(b)
the cancellation or rectification of any registration of a customary marriage effected by a
registering officer.
(8)
A certificate of registration of a customary marriage issued under this section or any other law
providing for the registration of customary marriages constitutes prima facie proof of the existence of
the customary marriage and of the particulars contained in the certificate.
(9)
Failure to register a customary marriage does not affect the validity of that marriage.’
6 Circular No. 4 of 2016: Consolidated Procedures for Solemnisation and Registration of Marriages (the
circular).

[6] Barring costs,7 the extensive relief 8 sought by the respondents as applicants in the
high court was, despite opposition by the appellants, as respondents, granted in its entirety.
The appellants appeal against that order with the leave of the high court.

Respondents’ cause of action
[7] The respondents challenged the validity of paragraph 2.1(b)(iii)(dd) on several
grounds. First, it was contended that it offends good morals, is unlawful and unconstitutional
as the paragraph in effect nullifies the right of all asylum seekers to get married. Second,
that its wording is contradictory and vague in that it recognises the right of asylum seekers
to get married, on the one hand, but then, on the other, takes away that right by providing
that asylum seekers must not even contemplate marriage. Third, it falls foul of the equality
provisions of the Constitution. And fourth, it is in conflict with South Africa’s international and
continental obligations relating to refugees and asylum seekers.

[8] In response to the respondents’ founding papers the appellants filed a single
answering affidavit. The deponent, who is the first appellant, called into question the
respondents’ wisdom in resorting to litigation. He contended that their application was ill-
conceived in that the first respondent should have rather waited for the outcome of his
appeal to the RAB. In this regard, the implication is that the respondents would be eligible

7 More about the issue of costs later.
8 ‘1. Condoning the filing of the application outside of the 180-day limit prescribed in section 7(1) of PAJA;
2. Declaring paragraph 2.1(b)(iii)(dd) of Circular no 4 of 2016, which was issued by the Deputy Director-
General: Civic Service of the Department of Home Affairs on 12 September 2016, inconsistent with the
Constitution of the Republic of South Africa 1996 and invalid, and set aside in so far as it bars the registration
of the Applicants’ customary marriage and bar the solemnisation of their civil marriage;
3. Declaring that the Applicants are entitled, if they so wish, to enter into a civil marriage.
4. Declaring that the Applicants are entitled to seek registration of their customary union if they prove this union
to the satisfaction of the Respondents;
5. Directing the Respondents to permit the Applicants to submit an application for the registration of their
customary union forthwith;
6. Directing the First Respondent to within 15 days after such application as contemplated in the previous
paragraph to inform the Applicants, their legal representative and this Honourable Court in writing and under
oath of the steps taken to register the Applicants’ customary union;
7. Directing the Respondents to permit the Applicants forthwith to submit an application for the solemnising of
a civil marriage;
8. Directing the First Respondent to within 15 days after such application as contemplated in the previous
paragraph to inform the Applicants, their legal representative and this Honourable Court in writing and under
oath of the steps taken to solemnise the Applicant’s civil marriage;
9. Costs, only in the event of the Respondents opposing this relief set out herein, and only in respect of such
Respondents that oppose the relief.'

to marry only if the first respondent’s appeal were successful. Moreover, he questioned the
existence of the customary marriage, asserting that the respondents’ desire to get married
was a ruse to enable the first respondent to secure a spousal permit status and ultimately
permanent residence and citizenship.9 This, he said, was calculated to undermine the
appeal process underway before the RAB.

[9] The appellants disputed the existence of the customary marriage, alleging that the
relief sought in terms of prayer 4 of the respondents’ notice of motion was a
misrepresentation of the true facts. They denied that the respondents had been barred in
any way from entering into a civil marriage. The stance of the DHA, asserted the appellants,
was merely that if the respondents wished to marry it was necessary for them to first comply
with the laws of the Republic.10

Did the respondents bring a review before the high court?
[10] It is convenient at this stage to deal with the preliminary point raised by the appellants
relative to the nature of the proceedings instituted by the respondents in the high court. It is
this. The appellants sought to argue that the respondents did not institute review
proceedings in the high court. The foundation for this contention was that the respondents
neither requested a record of the decision sought to be reviewed, nor did they canvass any
grounds of review in their founding papers.

[11] The respondents joined issue with the appellants on this score. First, they argued
that the fact that no record was requested did not detract from the fact that their application
was a review coupled with prayers for declaratory relief. In support of this argument they
point to their prayer in the notice of motion in terms of which they sought an order condoning
the filing of their application outside of the 180-day period as prescribed in s 9(1) of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA). They also sought an order that
paragraph 2.1(b)(iii)(dd) of the circular be reviewed and set aside. Thus, they asserted that

9 According to statistics sourced from the United Nations High Commissioner for Refugees, it appears that
South Africa has become the most attractive destination for asylum seekers and it ranks amongst the most
sought-after destinations in the world. See, in this regard, http://www.unhcr.org/51628b589.html and
http://www.unhcr.org/afr/statistics/country/5a8ee0387/unhcr-statistical-yearbook-2016-16th-edition.html.
10 Section 34(1)(a) of the Refugees Act provides that:
‘[a] refugee must abide by the laws of the Republic’.

they saw no need for a record as contemplated in rule 53 of the Uniform Rules, as the sharp
focus of their review was the impugned paragraph of the circular and nothing else.

[12] Secondly, and importantly, they also identified certain paragraphs in their founding
affidavit which demonstrated that a review was also contemplated by the respondents. In
my view the point taken by the appellants is manifestly without merit. It amounts to no more
than a red herring. To uphold it would amount to placing form above substance, something
that courts are enjoined to eschew. In any event, in South African Football Association v
Stanton Woodrush (Pty) Ltd t/a Stan Smidt & Sons & another11 this court said that a failure
to follow rule 53 in review proceedings is not necessarily irregular, ‘because the Rule exists
principally in the interests of an applicant’ and an applicant is free to waive its procedural
rights. This court went on to state that if the respondent is an organ of State, as is the case
here, it is open to such respondent, in answer to the application, to supply the record of the
proceedings and the reasons for its decision. In the context of the facts of this case, and
having regard to the primary focus of the respondents’ case as stated earlier, nothing turns
on the absence of the record.

Was a structural interdict warranted?
[13] In coming to the aid of the respondents, the high court also granted a structural
interdict in terms of which the DHA was directed to report back to the court on affidavit,
within a prescribed period, on the steps taken to register the customary marriage and the
solemnisation of the respondents’ intended civil marriage. That part of the order was
attacked purely on the basis that no case had been made out therefor in the respondents’
papers. By way of prelude to a discussion of this topic, it suffices to state that, generally, the
grant of a structural interdict is a remedial power vesting in courts in order to retain judicial
supervision after a remedy has been granted to ensure satisfactory compliance with their
orders.12 It will not be granted willy-nilly. Ordinarily courts proceed on the assumption that
parties against whom an order has been granted will ensure that such an order is

11 South African Football Association v Stanton Woodrush (Pty) Ltd t/a Stan Smidt & Sons & another 2003 (3)
SA 313 (SCA) paras 5-6.
12 Pretoria City Council v Walker 1998 (2) SA 363 (CC) para 96; Minister of Heath & others v Treatment Action
Campaign & others (No 2) 2002 (5) SA 721 (CC) para 28.

scrupulously complied with. Should this not be the case, the applicant would not be without
a remedy.

[14] The grant of a structural interdict entails the exercise of a true discretion.13 An
appellate court is not at liberty to interfere unless it is satisfied that the discretion was not
exercised judicially, or that it had been influenced by wrong principles or a misdirection on
the facts, or that the court below had reached a decision which could not reasonably have
been made by a court properly directing itself to all the relevant facts and principles.14

[15] Not a single word was said in the judgment of the high court as to what weighed with
it to justify the grant of a structural interdict. This alone points to the fact that the high court
did not exercise its discretion judiciously. Nor was any factual foundation laid in the
respondents’ founding affidavit motivating for such an order. Indeed, counsel for the
respondents candidly accepted that she could not justify this order. Consequently, a
combination of these factors justifies the conclusion that the high court committed a material
misdirection in granting the structural interdict. It follows that the structural interdict cannot
be allowed to stand.

What is the legal status of Circular No 4 of 2016?
[16] In Ahmed & others v Minister of Home Affairs & another15 the Constitutional Court
said that the nature and status of a directive – the validity of which was there challenged –
was unclear. It went on to state that a directive is ‘an official policy document, which guides
government departments on how to apply legislation’. It further noted that, according to
Baxter,16 ‘departmental circulars and directives are “administrative quasi-legislation” which
are neither legislation nor subordinate legislation’.17 At a practical level, directives and
circulars essentially serve the same purpose, which is to give effect to governmental policy
and guide officials charged with the duty of implementing governmental policy.

13 Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd & another [2015]
ZACC 22; 2015 (5) SA 245 (CC) para 85.
14 Ibid para 88.
15 Ahmed & others v Minister of Home Affairs & another [2018] ZACC 39; 2019 (1) SA 1 (CC) para 44.
16 Baxter Administrative Law 3 ed (1991) at 200.
17 Ibid at 202.

[17] The appellants sought to argue that the circular had no force in law and therefore
could neither confer rights nor deprive someone of any rights. Consequently, contended the
appellants, it was not susceptible to review by a court. A similar argument was advanced to
and rejected by the Constitutional Court in Ahmed.18 The Constitutional Court explained that
where a directive – in this case a circular – is envisaged in legislation, a court would most
likely be willing to review it in the light of the underlying legal authority. The Constitutional
Court went on to say that, even where a directive is not statutorily envisaged, the court
would still be amenable to review it.19 The Constitutional Court nevertheless declined to
pronounce on the question whether the review would be entertained under the principle of
legality or in terms of PAJA. What mattered, the Constitutional Court stated, was whether
‘the Directive is treated as binding by the people tasked to implement it [in which event] it is
sufficient for [the] Court to make a determination on whether the Directive is ultra vires and
thus invalid’.20

[18] In this case the circular is not statutorily envisaged. Nevertheless it was treated by
the appellants as binding, hence the respondents were told that they could not marry. The
attitude of the appellants was undeniably clear: the circular constituted law, by which the
DHA was bound, and the respondents were duly informed of this.

[19] Accordingly, the appellants are not availed by now seeking to contend that they do
not consider themselves bound by the circular. The truth is that their case was argued in the
high court on the basis that the circular is a law of general application. Thus, the appeal
must be determined on the basis of the case as presented and argued in the high court.
Indeed before us counsel for the appellants was constrained to accept that generally the
task of an appellate court is to determine whether the court of first instance was correct in
coming to the conclusion it did on the facts there presented.21 Consequently, Circular No. 4
of 2016 was susceptible to review by the high court.

18 Ahmed, fn 14, para 40.
19 Ibid para 42.
20 Ibid para 45.
21 Cole v Government of the Union of South Africa 1910 AD 263 at 272.

Should paragraph 2.1(b)(iii)(dd) of the circular have been declared invalid?
[20] I turn to consider the appellants’ contention that the high court erred in declaring
paragraph 2.1(b)(iii)(dd) of the circular invalid and setting it aside. Counsel for the appellants
submitted that, on its proper construction, paragraph 2.1(b)(iii)(dd), considered in the
context of the circular as a whole, does not bar holders of asylum seeker permits from
getting married. In this regard counsel called into aid the oft quoted judgment of this court
in Natal Joint Municipal Pension Fund v Endumeni Municipality22 where, amongst other
things, the following was said:
‘[T]he “inevitable point of departure is the language of the provision itself”, read in context and having
regard to the purpose of the provision and the background to the preparation and production of the
document.’

[21] In elaboration, counsel contended that the purpose of the circular is to guide marriage
officers in solemnising marriages. He emphasised that the purpose was not to prevent
marriages, but only to prohibit the solemnisation of marriages involving illegal immigrants.
Counsel was at pains to point out that the opening sentence of the paragraph explicitly
states that ‘[w]ith effect from 15 September 2016, only Home Affairs Marriage officers are
permitted to solemnize marriages to refugees and asylum seekers.’ These words, continued
the argument, manifest no intention to deny refugees and asylum seekers their right to
marry. On the contrary they affirm such a right.

[22] On a complete reading, paragraph 2.1(b)(iii)(dd) leaves no room for any doubt. The
opening sentence, as argued by counsel for the appellants, provides that ‘only Home Affairs
Marriage officers are permitted to solemnize marriages to refugees or asylum seekers’. It
goes on to explicitly prohibit the solemnisation of marriages involving persons who are in
the country illegally. It also provides in terms that refugees ‘whose asylum seeker application
status is pending cannot contemplate marriage’, and that ‘[s]hould there be an inquiry to a
refugee or asylum seeker status the marriage cannot be concluded’.

22 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA)
para 18. (Citation omitted)

[23] The portions of paragraph 2.1(b)(iii)(dd) put in inverted commas above cannot be
clearer. They can only mean that the first respondent and similarly situated persons are
denied their right to marry. That this is how this paragraph was understood by the officials
of the DHA has to be accepted on the basis of the say-so of the respondents, which the
appellants now admit as correct. There can be no doubt that the offending parts of
paragraph 2.1(b)(iii)(dd) highlighted above implicate constitutional rights of personal liberty23
and human dignity.24

[24] In Dawood & another v Minister of Home Affairs & others; Shalabi & another v
Minister of Home Affairs & others; Thomas & another v Minister of Home Affairs & others25
the Constitutional Court underscored the importance of the right to dignity. It said:
‘The value of dignity in our Constitutional framework cannot therefore be doubted. The Constitution
asserts dignity to contradict our past in which human dignity for black South Africans was routinely
and cruelly denied. It asserts it too to inform the future, to invest in our democracy respect for the
intrinsic worth of all human beings. Human dignity therefore informs constitutional adjudication and
interpretation at a range of levels. It is a value that informs the interpretation of many, possibly all,
other rights. This Court has already acknowledged the importance of the constitutional value of
dignity in interpreting rights such as the right to equality, the right not to be punished in a cruel,
inhuman or degrading way, and the right to life. Human dignity is also a constitutional value that is
of central significance in the limitations analysis.’

23 Section 12 of the Bill of Rights headed ‘Freedom and security of the person’, provides as follows:
‘(1) Everyone has the right to freedom and security of the person, which includes the
right—
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading way.
(2) Everyone has the right to bodily and psychological integrity, which includes the
right—
(a) to make decisions concerning reproduction;
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific experiments without their informed
consent.’
24 Section 10 of the Bill of Rights provides that ‘Everyone has inherent dignity and the right to have their dignity
respected and protected’.
25 Dawood & another v Minister of Home Affairs & others; Shalabi & another v Minister of Home Affairs &
others; Thomas & another v Minister of Home Affairs & others [2000] ZACC 8; 2000 (3) SA 936 (CC) para 35.

[25] That paragraph 2.1(b)(iii)(dd) of the circular is not a paragon of clarity is self-evident.
The third to fifth sentences of paragraph 2.1(b)(iii)(dd), for example, contradict the first
sentence. The former sentences also contradict preceding paragraphs of the circular that
affirm the rights of asylum seekers to marry.26 The other fundamental shortcoming of this
paragraph is that, whenever there is some sort of inquiry pending into the status of an
asylum seeker – such as an appeal to the RAB – then the effect would be to deny him or
her the right to marry. Given their plain meaning, the words of paragraph 2.1(b)(iii)(dd)
cannot reasonably be construed so as to allow asylum seekers to marry pending the
outcome of their asylum applications. The context of the sentences and the apparent
purpose of the circular read holistically, cannot assist the appellants.27 That the impugned
sentences contradict other parts of the offending paragraph and indeed other material parts
of the circular is no ground to interpret them as the appellants would want. On the contrary,
it serves as a basis to declare them unlawful because it is not reasonably possible to
interpret this paragraph in any other way that is tenable.

[26] This is all the more so given the importance of the rights at stake in this case. As this
court rightly observed in Minister of Home Affairs & others v Watchenuka & others,28
‘[h]uman dignity has no nationality’. And most recently the Constitutional Court aptly
observed that ‘[t]he right to family life is not a coincidental consequence of human dignity,
but rather a core ingredient of it’.29

26 See paragraph 2.1(b)(iii)(aa)–(cc), which reads:
‘(aa)
A letter of no lawful impediment should not be required from a person who is positively identified as a
refugee or an asylum seeker. However, a copy of such person's refugee valid identity document and
valid section 24 permit, or asylum seeker permit issued in terms of section 22, of the Refugees Act,
1998 (Act No. 130 of 1998) must be attached to the “civil" marriage or civil union register, as the case
may be. In addition, a sworn statement must be obtained from the SAPS confirming their marital status
in their country of origin.
(bb)
Verification of the refugee identity document, refugee permit or asylum seeker permit must also be
made by an immigration officer.
(cc)
Verification must be done by means of obtaining a printout from the Movement Control System if the
foreigner is a holder of a temporary residence permit.’
27 The approach to interpreting legislation and documents is by now settled. See, for example, Road Traffic
Management Corporation v Waymark (Pty) Limited [2018] ZACC 12; 2019 (5) SA 29 (CC) paras 29-32.
28 Minister of Home Affairs & others v Watchenuka & others [2003] ZASCA 142; 2004 (4) SA 326 (SCA) para
25.
29 Nandutu & others v Minister of Home Affairs & others [2019] ZACC 24; 2019 (8) BCLR 938 (CC) para 1.

[27] In Satchwell v President of the Republic of South Africa & another, 30 albeit in a
different context, the Constitutional Court had occasion to say the following concerning
marriage:
‘In terms of our common law, marriage creates a physical, moral and spiritual community of law
which imposes reciprocal duties of cohabitation and support. The formation of such relationships is
a matter of profound importance to the parties, and indeed to their families and is of great social
value and significance.’

[28] In Fourie & another v Minister of Home Affairs & another 31 Cameron JA, writing for
the majority, said that the institution of marriage:
‘is vital to society and central to social life and human relationships. More than this, marriage and
the capacity to get married remain central to our self-definition as humans. As Madala J has pointed
out, not everyone may choose to get married; but heterosexual couples have the choice. The
capacity to choose to get married enhances the liberty, the autonomy and the dignity of a couple
committed for life to each other. It offers them the option of entering an honourable and profound
estate that is adorned with legal and social recognition, rewarded with many privileges and secured
by many automatic obligations. It offers a social and legal shrine for love and for commitment and
for a future shared with another human being to the exclusion of all others.’
It therefore comes as no surprise that the first respondent asserted in his founding affidavit
that, ‘[a]s a pastor in a Christian community I want to set an example by entering into a civil
marriage with the Second [respondent] as it indicates to all that this will be a [monogamous]
long term relationship’.

[29] The final issue to be considered – in the light of the appellants’ belated acceptance
of the existence of the respondents’ customary marriage – relates to s 10 of the RCMA.
Section 10, which is headed ‘Change of marriage system’, reads as follows:
‘(1) A man and a woman between whom a customary marriage subsists are competent to contract
a marriage with each other under the Marriage Act, 1961 (Act No. 25 of 1961), if neither of them is
a spouse in a subsisting customary marriage with any other person.
(2) …

30 Satchwell v President of the Republic of South Africa & another [2002] ZACC 18; 2002 (6) SA 1(CC) para
22.
31 Fourie & another v Minister of Home Affairs & another [2004] ZASCA 132; 2005 (3) SA 429 (SCA); [2005]
All SA 273 (SCA) para 14.

(3) …
(4) Despite subsection (1), no spouse of a marriage entered into under the Marriage Act, 1961, is,
during the subsistence of such marriage, competent to enter into any other marriage.’

[30] The appellants contended that paragraphs (iii) and (vi) of the order granted by the
high court were not competent and thus should never have been granted. In elaboration,
counsel argued that the respondents were not eligible to contract a civil marriage under the
Marriage Act whilst their customary marriage subsisted. The thrust of counsel’s argument
was that it is implicit in the heading to s 10 of the RCMA that it was incumbent upon the
respondents to change their marriage system, before they could permissibly contract a
marriage under the Marriage Act. Counsel emphasised that if it were not so this would lead
to an untenable situation where the same couple would be married under two marriage
systems, each with its own marital and proprietary consequences. Consequently counsel
urged this court to have regard to the heading of s 10 in interpreting the provisions of the
section in order to elucidate their meaning. But there is, in my view, a fundamental obstacle
in the path of the appellants on this score.

[31] It is of course true that courts have, in certain circumstances, had regard to the
heading of sections in a Statute for purposes of elucidating a particular statutory provision.
In Chotabhai v Union Government (Minister of Justice) and Registrar of Asiatics, 32 Lord De
Villiers CJ stated, with reference to English authority, that ‘the headings of different portions
of a Statute may be referred to for the purpose of determining the sense of any doubtful
expression in a section under any particular heading’. More than a century ago in Turffontein
Estates Ltd v Mining Commissioner Johannesburg33 Innes CJ held that:
‘We are . . . fully entitled to refer to [the heading] for the elucidation of any clause to which it relates.
It is impossible to lay down any general rule as to the weight which should be attached to such
headings. The object in each case is to ascertain the intention of the Legislature, and the heading is
an element in the process. . . . Where the intention of the lawgiver as expressed in any particular
clause is quite clear, then it cannot be overridden by the words of a heading. But where the intention
is doubtful, whether the doubt arises from ambiguity in the section itself or from other considerations,

32 Chotabhai v Union Government (Minister of Justice) and Registrar of Asiatics 1911 AD 13 at 24.
33 Turffontein Estates Ltd v Mining Commissioner Johannesburg 1917 AD 419 at 431.

then the heading may become of importance. The weight to be given to it must necessarily vary with
the circumstances of each case.’
This position was further endorsed by this court over two decades ago in Chidi v Minister of
Justice.34

[32] The principle to be extracted from the authorities cited in the preceding paragraph is
that headings in a Statute may be resorted to only where the meaning of a provision under
consideration is doubtful. Otherwise headings play no role in the interpretation process
where the words are unambiguous and their meaning is clear. That the provisions of s 10
are unambiguous and clear admits of no doubt. Indeed, when pressed, counsel for the
appellants was constrained to concede as much. That being so, it must inevitably follow that
the appellants’ contention relative to this part of their case cannot be upheld.

Conclusion
[33] In the light of what is stated above it follows that this appeal cannot succeed. It
therefore becomes necessary to say something about the scale of costs. It was
foreshadowed in the respondents’ written heads of argument that the respondents would
ask for costs on a punitive scale. This is premised on the contention that the appellants’
conduct fell far short of the standard expected of a State litigant. State litigants have a duty
to be fair to their opponents, and honest and forthright with the court. In MEC for Health,
Eastern Cape & another v Kirland Investments (Pty) Ltd t/a Eye & Lazer Institute35 Cameron
J pointed out that ‘there is a higher duty on the state to respect the law, to fulfil procedural
requirements and to tread respectfully when dealing with rights’.

[34] The earlier remarks by Sachs J in Matatiele Municipality & others v President of the
Republic of South Africa & others36 are particularly apposite in this case. The learned Justice
said:

34 Chidi v Minister of Justice [1992] ZASCA 77; 1992 (4) SA 110 (AD) at 115.
35 MEC for Health, Eastern Cape and Another v Kirland Investments t/a Eye & Lazer Institute (Pty) Ltd [2014]
ZACC 6; 2014 (3) SA 481 (CC) para 82.
36 Matatiele Municipality & others v President of the Republic of South Africa & others (1) [2006] ZACC 2; 2006
(5) SA 47 (CC) para 107.

‘. . .the Constitution requires candour on the part of government. What is involved is not simply a
matter of showing courtesy to the public and to the courts, desirable though that always is. It is a
question of maintaining respect for the constitutional injunction that our democratic government be
accountable, responsive and open. Furthermore, it is consistent with ensuring that the courts can
function effectively, as section 165(4) of the Constitution requires.’

[35] Measured against these constitutional imperatives, the conduct of the appellants is
lamentable. I have earlier in this judgment made reference to the sorry saga to which the
respondents were subjected by the appellants both prior to litigation and in the course of the
litigation in the high court. The appellants’ answering affidavit was replete with gratuitous
statements impugning the respondents’ honesty and motives for instituting review
proceedings. The appellants’ indifference to the plight of the respondents continued
unabated to this court. Some eight months after it dawned on the appellants that their refusal
to register the respondents’ customary marriage was wrong, they still took no steps to inform
the respondents of ‘their change of heart’ and invite them to their offices in order to register
the marriage. Their conduct is inexcusable and deserving of censure by this court. Indeed
the appellants must consider themselves extremely fortunate that there was no call for them
to pay the costs attendant on this litigation out of their own pockets.37 For all these reasons
therefore a punitive costs order is imperatively called for as a mark of this court’s
displeasure.

[36] Before concluding, it is necessary to say something in relation to costs in the high
court. In their notice of motion the respondents also prayed for costs. But this was only if the
appellants opposed the application. And this is what the appellants in fact did. Yet, the high
court did not award the respondents costs consequent upon their success. Nor has any
word been said on costs by the high court in its judgment.

[37] When this palpable omission was pointed out to counsel they appeared bewildered,
seemingly oblivious to this fact. Thus, the inference is inescapable that this omission by the
high court was per incuriam and not deliberate. But nothing more need be said on this score

37 Black Sash Trust v Minister of Social Development and Others (Freedom Under Law NPC Intervening)
[2017] ZACC 8; 2017 (3) SA 335 (CC).

because in the absence of a cross-appeal there is nothing we can do to remedy this
omission.38

[38] In the result the following order is made:
1.
The appeal is dismissed with costs on the scale as between attorney and client.
2.
The order of the court below is amended to the following extent:
2.1
The structural interdict appended to paragraph (v) of the order is deleted in its
entirety.
2.2
Paragraph (vii) of the order is deleted in its entirety.

_________________
X M Petse
Deputy President

38 Shatz Investments (Pty) Ltd v Kalovyrnas 1976 (2) SA 545 (A) at 560 G-H.

APPEARANCES

For Appellant:
W R Mokhari SC (with N J Sandi)

Instructed by:

The State Attorney, Port Elizabeth

The State Attorney, Bloemfontein

For Respondent:
E Crouse

Instructed by:

Legal Aid South Africa, Port Elizabeth

Legal Aid South Africa, Bloemfontein