Ignatius Masamba v Mercy Gorongoza

The applicant brought an unopposed application before the High Court seeking various orders relating to the respondent. The applicant, appearing in person, sought orders that he be allowed to pay lobola (bride price) at his convenience only if the respondent was a virgin, that the respondent stop her participation in 'beaming', that the respondent accept him as a prospective husband, and that the respondent demonstrate her virginity. The application made reference to five other previous applications filed before the court. The founding affidavit contained 34 pages of garbled, jumbled and insensible averments that did not establish any clear factual or legal basis for the relief sought. The papers were defective and did not comply with Order 32 of the High Court Rules. No supporting documents were attached to verify the averments made.

• Whether the application disclosed a recognisable cause of action
• Whether the application complied with Order 32 Rule 227 of the High Court Rules 1921 regarding the nature and form of written applications
• Whether the court could grant relief in the absence of a proper legal basis even in an unopposed matter

The application was dismissed. No costs order is mentioned in the judgment.

An application will be dismissed, even if unopposed, where: (1) no recognisable cause of action is disclosed in the founding affidavit - the applicant must establish facts that entitle them to sue and show what legal wrong has been committed; (2) the papers do not comply with Order 32 Rule 227 of the High Court Rules 1921 regarding the nature and form of written applications; and (3) the relief sought has no legal or factual basis and is incomprehensible. The court will not grant relief simply because a matter is unopposed if the application is fatally defective, stands on nothing, and constitutes a nullity.

Chigumba J made observations about the nature of delictual claims, noting that a delict is a civil wrong and in delictual claims the plaintiff normally seeks damages as compensation for infringement of rights. The judge also commented that the application was 'an attempt to stand the law on its head' and could not succeed. The judgment was issued following a barrage of letters from the applicant, the contents of which formed part of the record. The court noted it was unable to determine from the founding affidavit what 'beaming' was, and observed it would be incompetent to order the respondent to stop something without sufficient foundation as to what the alleged wrong was. The court also observed it would be incompetent to order that the respondent furnish evidence of virginity or agree to have lobola paid for her.

This case illustrates important principles regarding the court's duty to scrutinize applications even when unopposed. It demonstrates that merely because a matter is unopposed does not mean the court will grant the relief sought - the applicant must still establish a proper cause of action and comply with procedural rules. The case reinforces the requirements for properly pleading a cause of action and the need to comply with Order 32 of the High Court Rules regarding the form and nature of applications. It also demonstrates the court's willingness to dismiss incompetent applications that seek relief without any recognisable legal basis, particularly in matters involving personal relationships where the court cannot be used to compel parties into relationships or make orders relating to cultural practices without proper legal foundation.