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[2013] ZAGPJHC 100
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None v Tshabalala (15549/2011) [2013] ZAGPJHC 100 (3 May 2013)
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REPUBLIC OF SOUTH
AFRICA
SOUTH GAUTENG HIGH
COURT
JOHANNESBURG
CASE NO: 15549/2011
In the matter between:
SIBONGILE
MARGARET NONE
Applicant
and
LYDIA
NOMASONTO TSHABALALA
Respondent
JUDGMENT
MOJAPELO, DJP:
[1] This matter concerns
a dispute regarding the control of the estate of the late Mr Lewis
None (Identity No …) who died
on 30 January 2011. He did
not leave a will. His registered assets include two immovable
property, one at 480B Zola Extension
3 Township, Soweto (Zola 3) and
the other House number 248, Erf 7143, Zola Extension 1 Township,
Soweto (Zola 1), motor vehicles
and a tavern or shebeen business that
operates from Zola 3 property.
[2] The applicant and
the respondent are two women who were involved in different ways in
the life of the deceased. They
each have one child with him.
[3] The applicant was
married to the deceased by a civil marriage on 9 August 1985. It is
common cause that the marriage subsisted
at the time of the death of
the deceased. They were thus married for 26 years. The
couple was initially blessed with
two children, namely, Mpho and
Mphonyana, who were twins born on 7 September 1986.
Unfortunately Mphonyana passed away 7
months later on 13 April 1987.
Mpho is therefore the only surviving child of the deceased and the
applicant.
[4] The respondent also
lived with the deceased for some time as a couple in a relationship
like that of husband and wife. It is
not exactly clear as to how long
they lived together. She alleges that the deceased paid lobola
for her and that they lived
in a customary marriage for 18 years up
to the death of the deceased. One child was born out of that
relationship. The respondent
does not provide details of that
child in the papers before me. The existence of the child and
its paternity is not in dispute.
[5] It is common cause
on the papers that the purported customary marriage between the
respondent and the deceased was entered
into during the existence of
the civil marriage between the deceased and the applicant. It is
further common cause that the customary
marriage is invalid for that
reason.
[6] The applicant was
appointed as executrix of the estate of the deceased by Letters of
Executorship issued by the Master of the
High Court on or about 18
February 2011. The exact date of issue is not clear from the copy
before me; it had already been issued
by 22 February 2011 as it was
used as an annexure to an affidavit deposed to by the applicant on
that day.
[7] The dispute between
the parties was first brought to this court by way of an urgent
application issued on 21 February 2011
under case number 07637/2011.
The respondent effectively then sought control of the estate of the
deceased by way of prayers
which are similar, though not identical,
to prayers in the present application. That application was
removed from the roll
and was never enrolled again. The papers in
that matter have however now been incorporated by reference into this
matter through
the respondent’s answering affidavit and
founding affidavit in support of a counter-application. The
application itself
has not been set down before me, and appears to
have been abandoned.
[8] The present
application was initiated by way of notice of motion issued on 18
April 2011, also initially by way of urgent application.
On 21 April
2011 it was struck off from the roll of the urgent court (per Monama
J) for lack of urgency. It thereafter served in
the ordinary motion
court before different judges on 24 May 2011 and 1 June 2011 when it
was postponed without any order regarding
costs.
[9] The current
application then finally served before Moshidi J on 04 August 2011
who made an order in the following terms:
“
IT
IS ORDERED THAT
:-
1.
The
Respondent is to report all property, including books and documents,
belonging to or was in possession of the late Lewis None
before his
death.
2.
The
Sheriff takes inventory of all reported property in terms of item 1
above.
3.
The
Respondent is restrained and interdicted from damaging, removing and
or disposing the property in House No. 248, Erf [...],
Zola Extension
1 Township, Soweto.
4.
The
status of the Respondent, Lydia Nomasonto Tshabalala, is to be
referred to trial:-
4.1
The
notice of motion and founding affidavit stand as simple summons;
4.2
The
answering affidavit shall stand as an entry of appearance to defend;
4.3
The
Applicant shall file a declaration in regard the disputed issues
under paragraph 4 of the Draft Order within 20 days from the
date
hereof;
4.4
The
Draft Order thereafter (sic) the normal rules on normal provisions of
the uniform rules shall apply.
5.
The
Respondent is to surrender all the motor vehicles (registered in the
name of the deceased – Annexure ‘SMN 11’
of the
Founding Affidavit) in the premises of House No. 248, Erf [...], Zola
Extension 1 Township, Soweto, to the control and custody
of the
Applicant.
6.
The
Applicant must not sell or dispose of the motor vehicles mentioned in
item 5 above pending the determination of the matter in
item 4 above.
7.
The
costs are reserved.
”
[10] It is that order
that brought this matter before this court on the civil trial roll.
It deserves to be mentioned that
only a declaration had been filed
when the matter came before the civil trial on 22 April 2013 court.
No further pleadings had
been delivered or exchanged and the
provisions of the Uniform Rules of Court with regard to civil trials
had not been complied
with. The pleadings for the civil trial were
not complete. Furthermore when the matter came before the civil trial
court no discovery
had taken place, no pre-trial conference had been
held in terms of the rules and none of the legal representatives had
filed a
practice note in terms of Practice Manual of this court. The
last two are prerequisites for the allocation of a matter and the
commencement of trial in this court. The parties had done very
little to comply with the order of Moshidi J and I expressed
my
displeasure.
[11] By consent of the
legal representatives on both sides, it was ordered that none of them
shall recover any trial costs for the
first day. Thereafter the legal
representatives on both sides placed on record that they were acting
pro bono and would not be
charging fees in this case. The
matter stood down for the parties to hold a pre-trial conference as
directed by the court.
A plea and counterclaim by the
respondent as well as a plea to the counterclaim and a replication by
the applicant were also filed.
It appeared necessary to accommodate
the parties as it appeared that all parties and their witnesses were
at court and that the
estate is fairly small and its finalisation was
delayed by the pending litigation. Evidence in the matter was heard
on 24 and 26
April 2013.
[12] In the main
application the applicant seeks an order in the following terms
(Record p 3 – 4):
“
1.
That the Respondent report all property, including books and
documents, belonging to or was in possession of the late Lewis
None
before his death;
2. That the Sheriff takes
inventory of all reported property in terms of Item 1 above and 3 and
4 below;
3. That the Respondent
surrender the immovable property, namely, House No. 248, Erf 7143,
Zola Extension 1 Township, Soweto, to
the Applicant;
4. That the Respondent
surrender all movable property in House No. 248, Erf [...], Zola
Extension 1 Township, Soweto, to the control
and custody of the
Applicant;
5. That the Respondent be
restrained and interdicted from damaging, removing and or disposing
(of) the property in House No. 248,
Erf 7143, Zola Extension 1
Township, Soweto.
6. That the Respondent be
ejected from the immovable property, namely, House No. 248, Erf
[...], Zola Extension 1 Township, Soweto,
with immediate effect.
7. Granting the Applicant
further and/or immediate relief.
8. Costs of this
application if opposed.”
The respondent in turn
filed a counter-application in which she seeks an order in the
following terms (Record p 89):
“
1.
That the Second Respondent (sic) (i.e. Master of the High
Court) be ordered to revoke and cancel letters of Executorships
granted to the Applicant on the 30 January 2011 under Number
3352/2011;
2. That the Applicant be
restrained and interdicted from squandering and using the assets of
the estate of Lewis None;
3. That the Respondent be
interdicted and restrained from selling any stock in the shop and
shebeen situated at 480B, Zola, Soweto;
4. That the Honourable
Court declare that the Applicant is not entitled to inherit any
of the assets of the estate of late
Lewis None;
5 That the relationship
between the late Lewis None be declared a universal partnership
(sic);
6 That the applicant be
ordered to pay costs.”
Most of the prayers and
relevant issues raised in the application appear to have been
resolved by the order of Moshidi J. I am advised
that that order was
given by agreement between the parties and that no judgment was
delivered when it was granted. In the interest
of finality I will
therefore, in the course of this judgment, comment on or deal with
such issues as, from the arguments before
me, appear to be either
unresolved between the parties or require judicial clarification.
[13] The main issue for
determination by this Court is the status of the respondent, Lydia
Nomasonto Tshabalala, as referred to
this court by paragraph 4 of the
court order of 4 August 2011. The parties themselves further
formulated and defined the
issues in the pre-trial minute of a
conference that was held on 23 April 2013. The essential parts of the
pre-trial minute that
formulate the issues read:
“
ADMISSION
(i)
The
house number situated at Erf 7143, Zola, Extension 1, Soweto
Township, Gauteng belonged to the deceased (Mr. Lewis None).
(ii)
The
deceased died interstate.
(iii)
The
deceased owned a business of a tavern and a tuck shop which were
registered in his names.
(iv)
That
the Master of the South Gauteng High Court appointed the Applicant /
Plaintiff as the Executrix of Estate Late Lewis None.
(v)
That
the deceased had motor vehicles registered in his names being Toyota
Stallion, Mazda B-Series, Chevrolet Optra, Tata truck.
(vi)
The
deceased had a son with the Applicant namely Mpho and with the
Respondent one son.
POINTS IN DISPUTE
(1)
Whether
the Respondent / Defendant was legally married to the deceased.
(ii) Whether the
Applicant had left the deceased homestead for 18 (eighteen) years.
(iii) Whether the
customary marriage between the Respondent / Defendant and the
deceased is valid; and in the event the marriage
complies with the
law, whether the marriage between the Applicant and the deceased is
valid.
(iv) The Defendant
/ Respondent stated in her papers that in the event the Honourable
Court to (sic) declares her customary
marriage invalid, in the
alternative, she requests the Honourable Court to declare her
relationship with the deceased as a universal
partnership and the
Applicant / Plaintiff dispute that.”
[14] Evidence therefore
had to focus on the issues as formulated by the parties. It is not
clear, having regard to the prayers
in the application and the
counter-application, why it is necessary for this court to determine
whether the applicant had left
the deceased’s homestead (for 18
years) or not. Its determination, it would appear, will not help this
court to decide the
application or counter-application. It is the
evidence of the applicant nevertheless that prior to the death of the
deceased she
was away from the common home for a period of 14 years
as a result of ill-health. It was during this period, according to
her,
that the respondent had a relationship with the deceased. It is
not necessary to determine the exact period of her absence.
[15] As regards the
purported customary marriage between the respondent and the deceased,
the respondent alleges that the deceased
paid lobola for her in the
sum of R3 500, 00 and that she became his customary wife. The
applicant disputes the existence
and validity of the alleged
customary marriage. It is further common cause that the
co-habitation between the respondent
and the deceased started after
the marriage between the applicant and the deceased. It is the
respondent’s case that
the alleged customary marriage was
concluded when the applicant and the deceased were not living
together.
[16] The respondent does
not deny the validity of the marriage between the deceased and the
applicant. The existence of that
marriage is confirmed by a
marriage certificate that is part of the exhibits before court. The
applicant states that such marriage
was never terminated and that it
existed until the death of the deceased. There is no evidence
to establish the contrary.
I am accordingly satisfied that the
civil marriage between the applicant and the deceased was valid and
that it subsisted until
the death of the deceased.
[17] The purported
customary marriage between the respondent and the deceased is, on my
assessment of the facts, a non-issue.
The relationship that
gave rise to it started during the existence of a valid civil
marriage between the applicant and the deceased.
The alleged
customary marriage was thus also concluded during the subsistence of
such a civil marriage. It is thus invalid. The
respondent herself
states that she has been advised that a customary marriage concluded
during the existence of a civil marriage
is invalid. She accepts the
correctness of this advice (see record p 99 para 5.5.3). The advice
is in accordance with the
Recognition of Customary Marriages Act,
1998
and is indeed correct. The purported customary marriage between
the respondent and the deceased is thus invalid and null and void
ab
initio
. The respondent was thus never a lawful wife of the
deceased. The respondent has requested the court, in the alternative,
to declare her relationship with the deceased as a universal
partnership. I return later to this request. I shall deal first
with custody and control of the deceased estate.
[18] As has been stated
the applicant has been appointed as executrix of the estate of the
deceased. On the papers the respondent
seeks an order directing
the Master of the High Court to revoke and cancel the Letters of
Executorship. The facts and reasons
advanced by the respondent
are stated in paragraph 11 (record p 51) and in paragraph 5.1 (record
pp 93 – 95) of the respondent’s
affidavits. There
is no allegation that the Letters of Executorship were irregularly
applied for or irregularly issued. There
is thus no valid reason to
revoke same. There is further no allegation that the applicant is not
competent to administer the estate.
There is thus also no reason to
set aside her appointment as the executrix. It is my
understanding, in any event, that at
the pre-trial conference the
respondent conceded the validity of her appointment. Counsel for the
respondent further conceded,
in argument, that the applicant
was validly appointed. Her appointment is no longer challenged.
Counsel for the respondent
further conceded that as executrix the
applicant is entitled to take custody and control of all the assets
of the deceased including
the Zola 1 property. What counsel for the
respondent did not concede is the ejectment of the respondent from
the Zola 1 house.
He specifically argued against it and submitted
that the prerequisites for an application for ejectment from
residential property
have not been established.
[19] It needs to be
stated that as widow of the deceased and as duly appointed executrix,
the applicant has the power to administer
the estate of the deceased
in terms of the Administration of the Estates Act 66 of 1965 (the
Act). She also has specific powers,
obligations and authority to take
control and custody of the estate of the deceased and to liquidate
and distribute same in accordance
with the provisions of the Act and
the laws of interstate succession. She exercises all her powers
under the supervision
of the Master of the High Court.
[20] All the assets that
she lays claim to as executrix are registered in the name of the
deceased. The documentary proof of such
registration, including the
title deed to Zola 1, is before court and is indeed in the name of
the deceased. On the face of it
the executrix is thus entitled to
take possession as custodian of such assets, as counsel for the
respondent rightly acknowledged.
The respondent may not interfere
with, obstruct, prevent or hinder the applicant in execution of her
duties as executrix. Having
regard to the legal powers of the
applicant, it is incumbent upon the respondent, whatever her claim
may be, to cooperate with
the applicant in the execution of her
duties as executrix.
[21] The respondent lays
claim to some of the assets on the basis of an alleged universal
partnership between her and the deceased.
She alleges that the
assets in question were acquired by her and the deceased while she
lived together with the deceased as man
and wife. Her case is thus
that she and the deceased are joint owners of the assets in question.
The right of the deceased in those
assets is not in dispute.
The allegation of universal partnership relates to the extent of the
deceased’s right inasmuch
as the respondent asserts that she
has a share in such assets. The allegation does not exclude the
right of the deceased
in the assets in question. The assets therefore
form part of the estate of the deceased. What the respondent asserts
is in effect
a claim against the estate of the deceased. It has been
submitted, and I am persuaded, that it will facilitate the
administration
of the estate if her claim to a universal partnership
is determined.
[22] There were initially
not sufficient allegations in the counter-application to base or
support the respondent’s claim
for a universal partnership.
Full allegations were set out for the first time in the respondent’s
counter- claim on 24 April
2013 after the hearing in this matter had
commenced. That claim stands independent of the control and
custody of the deceased
estate. In the initial papers universal
partnership was simply mentioned as an alternative prayer to the main
prayer which was
the recognition of the respondent as customary wife
of the deceased. The essential allegations to sustain the two claims
are not
identical. This aspect was lost in the initial papers.
[23] It is convenient to
deal with the claim for universal partnership in a separate judgment
and not to conflate it with the issues
dealt with in this judgment.
[24] In the premises I
make the following order and declaration:
1.
The
applicant was validly married in community of property to the late
Lewis None (Id No…) ), who died on 30 January 2011,
and the
marriage subsisted at the time of his death;
2.
The
purported customary marriage between the respondent and the late
Lewis None (Id No…), who died on 30 January 2011, is
declared
null and void
ab
initio
and of no force and effect;
3.
The
applicant is the validly appointed executrix of Estate Late Lewis
None and is entitled to take control and possession of all
the assets
of the deceased estate, including house number 248, Erf 7143 Zola
Extension 1, Soweto;
4.
The
respondent is directed and ordered to allow the applicant access to,
control and custody of the said assets of the deceased
to enable the
applicant to carry on her functions as executrix of the deceased
estate;
5.
Judgment
is reserved in the following claims:
a.
the
respondent’s counter-claim for declaration of a universal
partnership between the respondent and the deceased, and
b.
the
applicant’s claim for ejectment of the respondent from house
248, Erf [...], Zola Extension 1, Soweto,
6.
Save
as set out in 5 above the respondent’s counterclaim is
dismissed;
7.
The
costs of the application and of the counter-application, including
those reserved on 14 August 2011, are reserved for determination
at
the end of the judgment reserved in 5 above (ie on universal
partnership and ejectment);
8.
In
the event of the respondent failing to allow the applicant free
access to, custody and control of any of the assets of the deceased,
hindering the applicant in execution of her duty as executrix, or
contravening any of the terms of this order or of the court order
of
14 August 2011, the applicant may approach this court on the same
papers in this matter for ejectment of the respondent and
for any
related remedy.
PM MOJAPELO
DEPUTY JUDGE
PRESIDENT’
SOUTH GAUTENG HIGH
COURT
03 May 2013
For the Applicant: G L
Lidovho
Instructed by Maseko
Attorneys
For the Respondent:
S S Senosi
of Sofela Senosi
Attorneys