Tshiaeneo Sybil Ramatshimbila v Dr Nkhelebeni Phaswana

The appellant (plaintiff) instituted action against the respondent (defendant) in the Limpopo High Court. In her main claim, she alleged that she and the defendant had entered into an unregistered customary marriage on 16 August 2008, which was a putative marriage because she was unaware that the defendant was already married in terms of a civil marriage. On this basis, she sought dissolution of the putative marriage, equal division of a joint estate, and declaratory relief that a universal partnership existed between them in respect of certain businesses, followed by dissolution of that partnership. In the alternative, if the putative marriage was not established, she claimed delictual damages of R3 million based on fraudulent misrepresentation, alleging that the defendant falsely represented that he was unmarried, inducing her to enter into the customary marriage and causing patrimonial and sentimental loss. The defendant raised an exception that the particulars of claim disclosed no cause of action. The High Court upheld the exception in respect of both the main and alternative claims and granted leave to amend. The plaintiff appealed to the Supreme Court of Appeal, contending that the order was final in effect and appealable.

The appeal succeeded in part. The High Court order was set aside and replaced with an order upholding the exception to claim one (the main claim) with costs and granting the plaintiff leave to amend by 31 October 2014, and dismissing the exception to the alternative claim with costs. Each party was ordered to pay his or her own costs of appeal and the costs of the application for leave to appeal.

The case clarifies South African procedural law on the appealability of orders upholding exceptions with leave to amend, and confirms that courts may uphold exceptions pro tanto where pleadings contain multiple forms of relief. Substantively, it affirms principles relating to putative marriages, universal partnerships between cohabiting parties, the necessity of joinder where a joint estate is implicated, and the viability of delictual claims for fraudulent misrepresentation arising from invalid customary marriages.