About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2013
>>
[2013] ZAGPJHC 170
|
|
Ntsukunyane and Another v Moleko and Others (16595/2013) [2013] ZAGPJHC 170 (11 June 2013)
Links to summary
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH AFRICA
IN THE SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO: 16595/2013
DATE:11/06/2013
In the matter between:
NTSUKUNYANE ROSEMARY PALESA N.O.
….....................
First
Applicant
NTSUKUNYANE ROSEMARY PALESA
…........................
Second Applicant
and
NINI MAEMA MOLEKO
(ID NO. )
…..................................................................................
First
Respondent
MILLICENT GUGU MGOMEZULU
…..............................
Second
Respondent
THABO PAULOS MOSIA
…..................................................
Third Respondent
THE MASTER OF THE HIGH COURT,
SOUTH
GAUTENG
…............................................................
Fourth
Respondent
DEPARTMENT OF TRANSPORT: TRANSPORT
….........
Fifth
Respondent
J U D G M E N T
N F KGOMO, J
:
INTRODUCTION
[1] The applicants herein launched this application on an urgent
basis in terms of or subject to Rule 6(12)(a) of the Uniform
Rules of
Court, for an order:
Declaring the first applicant the executrix of the estate of the
late Mr Nchoba Azakiel Moleko (“
the deceased
”),
namely, Estate No. 6234/2013; to collect or take into possession
all the vehicles referred to in prayer 1.2 herein
below; which
vehicles belong to the aforesaid estate; and take all incidental
steps necessary to perform and discharge the
duties attendant on
her duties as representatives of the said deceased estate.
Declaring as
null and void
all or any transfer(s) of
ownership of the deceased’s motor vehicles, them being
Mercedes Benz Sprinter 413 cdi, Registration Number NVV 535 GP.
Mercedes Benz Sprinter 413 cdi, Registration Number BWY 943 GP.
Volkswagen LT, Registration Number VDD 463 GP, from his name into
the names of the first and second respondents or any other
person
or body;
Directing the first respondent to immediately, upon the granting of
this order, deliver to the first applicant (in so far as
she is in
possession or control of same), Mercedes Benz Sprinter 413 cdi,
Registration Number NVV 535 GP.
Directing second respondent to immediately, upon the granting of
this order, to re-register Mercedes Benz Sprinter, 413 cdi,
Registration Number BWJ 943 GP into the names of the deceased or
the deceased estate of the late Moleko Nchoba AzaKiel. (“Sprinter
BWJ 943”)
Directing the third respondent to immediately upon the granting of
this order, deliver to the first applicant through the second
applicant (in so far as he is in possession or control of same) the
Mercedes Benz Sprinter 413 cdi, Registration Number BWY
943 GP
(“
Sprinter BWY 943 GP
”).
Directing and compelling the first respondent to immediately upon
the granting of this order, re-register the Mercedes Benz
Sprinter
413 cdi, Registration Number NVV 535 GP (“
Sprinter NVV 535
GP
”) and Volkswagen LT, Registration Number VDD 463 GP
(“
Volkswagen LT VDD 463 GP
”) into the deceased
estate of the late Azakiel Nchoba Moleko.
Alternatively
In the event that the first respondent and second respondent fails
or refuses to comply with the provisions of paragraphs 1.1
to 1.6
above (in so far as they relate to them) within 7 (seven) days of
date of the granting of this order, the Sheriff of
this Court be
authorised and directed to enter the premises of the first and
second respondents (or wherever the motor vehicles
might be found)
to attach and remove same and to then deliver same to the second
applicant, to be stored by or on behalf of
the first applicant at a
safe place pending the administration and/or finalisation of the
estate of the deceased, subject thereto
that all costs relative to
the Sheriff’s intervention as well as those attendant on the
re-registration of ownership
of the vehicles shall be borne jointly
and severally by the first and second respondents.
Directing the fourth and fifth respondents to note and give effect
to the order sought above.
Ordering the first and/or second respondents, jointly and
severally, the one paying, the other being absolved, to pay the
costs of this application.
For further and/or alternative relief.
[2] The application is opposed by the first and second respondents
only. The latter also filed a counter-application for the
cancellation of the second applicant’s letters of executorship,
among others.
THE PARTIES
[3] The first applicant is the
appointed executrix of the estate of the late Nchoba Azakiel Moleko
(“
the deceased
”)
who passed away on 17 February 2013, in terms of letters of
executorship issued by the Master of the High Court under Estate
No.
6234/2013 on 11 March 2013.
[4] The second applicant is the
first applicant’s representative in her personal capacity. She
is ordinarily resident at
House No. 2942 Lusaka Section, Ladybrand,
Free State Province.
[5] The first respondent, Nini
Welhemina Moleko, is an adult female person with National Identity
No., ordinarily resident presently
at Number 742 Paper Corner Street,
Zakaria Park, Lenasia, Johannesburg, Gauteng Province.
[6] The second respondent, Gugu
Millicent Mgomezulu, is an adult female person with Identity No. ,
and ordinarily resident at Number
1496 Slovoville South Roodepoort,
Gauteng.
[7] The third respondent, Thabo Palos Mocia, is an adult male person
using business address Thokoza Coal Yard situated at No.
5 Thokoza
Gardens, Thokoza, Gauteng as his address of service.
[8] The fourth respondent, The Master of the High Court,
Johannesburg, is an organ of state responsible for the administration
of estates pursuant to or in terms of the Administration of Estates
Act 1965 (Act 66 of 1965) as amended and which has issued the
letters
of executorship alluded to in this application; cited herein in its
official capacity as such and whose principal place
of business or
office is situated at 66 Marshall Street, Hollard Building, Corner
Sauer and Marshall Streets, Johannesburg.
[9] The fifth respondent is an organ of state. It is not clear why
this respondent was cited. It appears that it is the authority
that
transferred the taxi licences in issue here to the respondents.
PURPOSE OF THE APPLICATION
[10] The purpose of this application is for a declaratory order
confirming the applicants’ appointment as representatives
of
the deceased estate for purposes of its finalisation, as well as
orders directing the various respondents to restore possession
of the
motor vehicles of the deceased and/or the restoration of their
registration numbers or particulars to the state they were
as at the
date of the death of the deceased; and orders to the fourth and fifth
respondents to do what they are expected to do
in compliance with
what the court would have ordered, if need be, i.e. administration of
the deceased estate and the processes
relative to the transfer of
taxi licences to whoever the court would have ordered they should be
transferred to.
POINT
IN LIMINE
RAISED BY SECOND RESPONDENT
[11] The second respondent
raised the following point
in
limine
: that the
applicants have known or should have reasonably foreseen that
disputes of fact would be present. That they ought to
have gone the
route of action proceedings and not by motion proceedings. That this
application should be dismissed with costs
as the dispute herein
cannot be resolved on the papers filed of record.
THE RESPONDENTS’ OPPOSITION
[12] The first respondent is disputing the validity of the civil
marriage allegedly subsisting between the second applicant and
the
deceased when the latter passed away. She contends that she is a
valid customary marriage spouse of the deceased who has the
right to
represent the deceased estate. Furthermore, that she is entitled to
keep the taxi(s) left with her by the deceased for
sustenance and
maintenance.
[13] The second respondent also claims to be a valid customary law
spouse of the deceased who has children born of her union with
the
deceased, thus being entitled to be in possession of the assets of
the deceased.
BACKGROUND FACTS AS GIVEN BY EACH PARTY
[14] The applicants, as well as the first and second respondents
gave background and factual matrix that need to be set out
separately.
The applicants’ background facts
14.1.1 According to the second applicant she got married to the
deceased in community of property (by civil rites) on 8 February
1996, which marriage was still subsisting as on the date of the death
of the deceased on 17 February 2013. She annexed to the
papers
hereto a copy of a marriage certificate confirming the above.
Two children, an 18 year old boy and a 6 year old girl were born
of the marriage.
During his life-time the deceased was a taxi owner and operator
and an affiliate of the Johannesburg Free State Long Distance
Taxi
Association (“
JOFELDTA
”). His taxis operated
between Johannesburg and Lesotho, the latter country being his
home country. As a result of
his business operations the deceased
purchased, among others, a house situated at Erf 742, Paper Corner
Street, Zakaria Park,
Extension 1, Lenasia, Johannesburg.
The taxis forming part of these applications were still registered
in the names of the deceased when he passed away, on 17
February
2013. However, it emerged that two of them, the Sprinter BWY 987
GP and the Volkswagen LT VDD 463 GP had their
registration
particulars changed into the names of the first respondent on 6
March 2013, i.e. 17 (seventeen) days after the
deceased’s
death. The second applicant was not consulted about this, was not
party to those transactions and the changes
of ownership were
effected without her consent or knowledge.
The second applicant and her children are currently staying in
Lesotho, which is where the deceased was buried. She contends
that
the three taxis contributed approximately R70 000,00 a week into
the joint estate. The deceased, according to her further,
was the
primary caregiver and provider for the family and he would visit
his family at Ladybrand, Free State Province regularly
as well as
attend to business affairs in Lesotho and South Africa.
As stated above, the second applicant was appointed as the
executrix of the deceased estate on 11 March 2013.
As regards the status of the three taxis
14.1.7.1 As stated above, the Sprinter BWY 987 GP was according to
the second applicant improperly or fraudulently registered
into the
names of the first respondent on 6 March 2013. So was the Volkswagen
LT VDD 463 GP.
14.1.7.2 The Sprinter NVV 535 GP was purchased by the
deceased from one Daryl Franke on 21 January 2013 for the amount
of
R130 000,00. As it was not in a good mechanical or operating
condition, it was handed to the third respondent, Thabo Paulos
Mocia
for repairs. Before the deceased could have this vehicle registered
in his names he passed away. Despite the fact that
this vehicle is
still at the third respondent’s workshop and is not yet
operational, somehow the second respondent had it
registered into her
names on 18 March 2013, i.e. 28 days after the deceased’s death
without the second applicant’s
knowledge or consent.
14.1.7.3 When the second
applicant confronted the third respondent about this vehicle, the
latter told her that he was indeed still working on it but that he
had received a letter of demand from the second respondent’s
attorneys demanding possession of same.
14.1.8
Road
Transportation (Taxi) Permits
14.1.8.1 The permits for the taxis
were in the names of the deceased when he passed away. However,
somehow and without her knowledge or consent, somebody or some people
have contrived to have them transferred into the names of
the first
and second respondents
in tandem
, i.e. each in respect of
those vehicles unlawfully transferred into their names.
14.1.8.2 The second applicant further avers that she has already
paid around R12 000,00 to the third respondent to cover the
repairs
being effected.
14.2
First respondent’s
story
14.2.1 According to the first
respondent, she has been living with the deceased in a customary
relationship from 1996 until he
passed away on 17 February 2013.
According to her,
as far as she knew
,
(my underlining), the deceased and the second applicant were mere
lovers involved in a relationship, which relationship ended
allegedly
when she and the deceased entered into the customary marriage. She
is even aware of the fact that the two have a child
together whom the
deceased was maintaining during his life time. According to her
further, the second applicant was aware of her
relationship with the
deceased and she used to phone her with requests for her to intervene
whenever the deceased did not pay the
child maintenance.
[15] She further contended that
she and the deceased did not know that there was a civil marriage
entered into between him and
the second applicant until he went to
Home Affairs in Bloemfontein in December 2012 where he was informed
of its existence. According
to her further, this information made
him very distraught and he suffered a stroke in January 2013 which
culminated in his death
at a hospital in Bloemfontein on 17 February
2013.
[16] She further added that the deceased and her were, up to
immediately before he was indisposed and ultimately died,
contemplating
–
“
…
to consecrate our marriage also into civil processes …
”,
to which end the deceased paid a dowry of 11 cows to validate their
customary union.
[17] She states further that the
house in Lenasia was purchased to be the matrimonial home between the
deceased and her and they
both serviced its bond. In substantiation
of the above contention the first respondent annexed 18 deposit slips
into an FNB Bank
Account No. 6028 011 7330 held at the Ladybrand
branch made at varying dates, between January 1999 and 2003.
[18] The payments were made in cash. For reasons that will emerge
hereunder, I set out the dates and amounts of the deposit herein:
18.1 28 January 1999 - R 300,00
18.2 25 March 1999 - R2 000,00
18.3 24 May 1999 - R 500,00
18.4 16 July 1999 - R2 400,00
18.5 3 February 2000 - R1 420,00
18.6 20 July 2000 - R 200,00
18.7 29 November 2000 - R 350,00
18.8 3 July 2000 - R1 000,00
18.9 31 January 2001 - R3 000,00
18.10 19 February 2001 - R 800,00
18.11 3 March 2001 - R
900,00
18.12 13 March 2001 - R2 500,00
18.13 5 March 2001 - R2 000,00
18.14 28 August 2001 - R 200,00
18.15 9 July 2001 - R2 000,00
18.16 2 February 2001 - R1 700,00
18.17 18 April 2001 - R2 000,00
18.18 13 April 2001 - R 700,00
[19] As regards the taxis and
their licences; her story is that the deceased purchased various
taxis at varying times and they
operated under the umbrella of
JOFELDTA. It is her story further that as a result of past incidents
where beneficiaries used to
quarrel over assets and inheritances of
deceased members, the taxi association decreed that the various owner
members should declare,
under oath, on a form, who they (the members)
they were nominating to run their taxi businesses after they had
passed on. She avers
that the deceased nominated her as that person
on a form annexed to the papers herein as Annexure “NM2”
to her answering
affidavit.
[20] This document is not a commissioned document. IT is thus not a
statement under oath. The vehicles in issue mentioned in the
documents are a Toyota registration JFM 924 GP, Isuzu registration
MSC 561 GP and Isuzu registration KZN 565 GP. None of the taxis
in
issue here are part of that document.
[21] In a document marked Annexure “NM3” JOFELDTA is
purporting to nominate and appoint the second respondent as the
person who should and would from the date mentioned therein, being 30
May 2013, take over and run the deceased taxi business through
it.
[22] This purported directive
occurred when this matter was already with the Urgent Court. That
makes one think! Is JOFELDTA
taking sides in this matter? The
facts, circumstances and probabilities will tell. Are they allowed to
by-pass the Master’s
office!!
[23] Shortly after the death of
the deceased the first (correc) was summoned to JOFELDTA offices
where she found the second respondent
as well as the deceased’s
brother, one Sello Moleko. The latter had purportedly come to demand
all of the deceased’s
entitlements which included business
documents, funeral benefits and his taxis.
[24] The deceased was entitled to a benefit of R40 000,00 from the
JOFELDTA Funeral Benefit Scheme. In the interests of peace,
she
consented to this money being paid out to the deceased family in
Lesotho to take care of funeral expenses as the burial was
to take
place there.
[25] As regards the Sprinter NVV
535 GP, she stated that a relative of the deceased, one Rethabile
Moleko living in Lesotho phoned
while she was at the JOFELDTA offices
with Sello Moleko and asked her to allow the latter to drive back
with this motor vehicle
to Lesotho as it was needed for funeral
arrangements errands. She agreed in good faith as she believed it
would be returned. When,
after the funeral it was not returned, she
went to Lesotho. The matter regarding this vehicle became
complicated and the Lesotho
police impounded and parked it at the
police station pending the finalisation of the dispute relating to
it, i.e. pending the final
administration of the deceased estate.
[26] As regards the second respondent, the first respondent avers
that she is not aware of any co-habitation or consortium between
her
and the deceased, save for the fact that she knows they have a child
together. She consequently is demanding that the taxi
now transferred
into her names be returned to her full use and enjoyment.
URGENCY
[27] The respondents contended that the applicants have not made out
a case for urgency. I caused the parties to also argue urgency.
[28] After perusing the papers filed herein and considering the
arguments and the matter in general, I find that the matter was
sufficiently urgent to be entertained. The assets of the deceased
estate were being transferred to different people left, right
and
centre and all these were done in flagrant disregard of the laws,
rules and regulations governing administration of deceased
estates.
It is also apparent that a possibility looms large that some of the
parties herein may protract some kind of litigation.
It is every
litigant’s right to engage in litigation. However, it is my
view and finding that the issues in dispute in
this application are
crisp and defined. They can and should be dealt with now. The
parties can engage each other on other aspects
to their hearts’
delight.
THE SECOND RESPONDENT’S FACTUAL MATRIX
[29] Apart from the point
in
limine
raised on her
behalf, the second respondent’s story is the following:
She stated that she and the deceased were cohabiting and in love
since 11 July 2005. Their relationship developed to such
a level
that lobolo negotiations for her hand in marriage took place at her
parental home at Mahlabathini, New Castle, KwaZulu-Natal
on 3 April
2010 where the families agreed on R35 000,00 as lobolo. Same was
paid in two instalments of R25 000,00 on 3 April
2010 and R10
000,00 on 26 September 2010. Traditional gifts referred to as
“
isibizo
” in Zulu culture in the form of one
bed, a refrigerator and a kitchen unit set were also exchanged.
For the record, Mahlabathini is not near Newcastle, but near Ulundi,
or Melmoth or Vryheid inKwazulu Natal.
She also averred that two children were born of this union, namely,
a girl born 3 April 2010, i.e. date of customary marriage
negotiations; and a boy born on 15 August 2012.
She thus regards herself as the deceased’s wife in terms of
customary law. She further contended that she had a better
right
and claim to that of the second applicant as she has complied with
the provisions of the Recognition of Customary Marriages
Act 1998
(Act 120 of 1998) (as amended) (“
the Customary Marriages
Act
”).
She does not mention the status of the first respondent or her
claims. She is counterclaiming for an order –
29.4.1 Declaring that the second respondent is a lawful customary
wife of the late Azakiel Nchoba Moleko (“
the deceased
”).
29.4 2 Declaring the alleged marriage between the second applicant
and the deceased invalid.
Directing the removal of the second applicant as the executrix in
the estate of the deceased.
Directing that the second respondent be appointed as the executrix
of the deceased’s estate.
Ordering the second
respondent,
alternatively
,
the estate of the deceased to pay the costs of this application
and counter-application.
THE LEGAL FRAMEWORK AND PRESCRIPTS
[30]
Section 7(a)
of the
Administration of Estates Act provides
as
follows:
“…
whenever any person dies within the Republic
leaving any property, the surviving spouse of such person, or if
there is no surviving
spouse, his nearest relative or connection
residing spouse, his nearest relative or connection residing in the
district in which
the death has taken place, shall within fourteen
days thereafter give a notice of death substantially in the
prescribed form, or
cause such a notice to be given to the Master.
”
[31]
Section 13
of the above Act provides as follows:
“
No person shall liquidate or distribute the estate of a
deceased person, except under the letters of executorship granted or
signed
and sealed under this Act.
[32] Section 11(1) provides that –
“…
Any person who at immediately after the death of
any person has possession or custody of any property, book or
document, which belonged
to or was in the possession or custody of
the deceased person at the time of death –
shall, immediately after the death, report the particulars of
such property, book or document to the Master and may open such
document which is closed for the purpose of ascertaining whether it
is or purports to be a will;
shall, unless the Court or
the Master otherwise directs, retain the possession or custody of
such property or book or document,
other than a document being or
purporting to be a will, until an interim curator or an executor of
the estate has been appointed
or the Master has directed any person
to liquidate and distribute the estate : Provided that, the
provisions of this paragraph
shall not prevent the disposal of any
such property for the
bona fide
purpose of providing for the subsistence of his family or household
or the safe custody or preservation of any part of such property;
shall, upon written demand by the interim curator, executor or
person directed to liquidate and distribute the estate, surrender
any such property, book or document in his possession or custody
when the demand is made, into the custody or control of such
executor, curator or person …
”
[33] The issue to be resolved immediately is whether or not the
letters of executorship issued by the fourth respondent in favour
of
the second applicant should be allowed to stand. If they are to
remain in force, the applicants would be on their way to making
out a
case for the limited prayers sought in this application.
[34] The next issue that is also causally linked to a decision in
this application is whether or not the first and second respondents
had valid and/or subsisting customary marriages or unions with the
deceased at the time of his death. The answer to this question
would
also determine the second respondent’s counter-application.
[35] This makes it imperative
that I set out the law relating to customary marriages as governed by
the
Recognition of Customary Marriages Act 120 of 1998
. That will be
a general overview, however it will also be targeted at the second
respondent who is specifically asking for an
order declaring her
“
marriage
”
by custom valid.
CUSTOMARY MARRIAGE vs CIVIL MARRIAGE
[36]
Section 10(4)
of the
Recognition of Customary Marriages Act,
1998
states the following:
“
(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.
”
[37] Subsection (1) of section 10 of the above Act allows a man and
a woman married to each other by custom to convert their marriage
or
enter into a civil marriage under the Marriage Act 25 of 1961, as
amended provided it is the only customary union existing in
respect
of those spouses.
[38] In this application the second applicant averred a subsisting
civil marriage between her and the deceased. She substantiated
this
assertion by producing a marriage certificate.
[39] The first respondent came up with hearsay evidence that this
civil marriage is a fraud. It is my view and finding that the
parties should be allowed to interrogate issues in that regard in the
ordinary way. I nevertheless find that the first respondent’s
contention that the fact that the copy of the marriage certificate
annexed to the papers herein is having a date of 18 March 2013
as
date of issue being an indication that it is fraudulent is misguided.
This date of issue is only the date on which the copy
was issued by
the Department of Home Affairs, not the original date of first issue
of the certificate.
[40] It is my considered view and finding that the civil marriage
certificate forming part of the papers herein is
prima facie
regular and valid. However, I will leave this aspect open-ended so
that whichever of the parties who can come up with evidence
to the
contrary, can produce same to court and have the matter looked at. To
avoid this matter open-ended indefinitely will in
itself be an
injustice. I will thus allow a specified period within which any of
the parties may challenge the validity and/or
authenticity of the
marriage certificate. Should that period elapse without any
litigation having been proceeded with in relation
to this aspect,
then the second applicant’s civil marriage to the deceased
would have been confirmed. The marriage certificate
Annexure “NRP2”
to the papers herein would then become a permanent memorial of the
existence of a valid civil marriage
between the deceased and the
second applicant.
[41] It is common cause that none of the customary unions alleged by
both the first and second respondents have been registered
as
required by
section 4
of the
Recognition of Customary Marriages Act,
1998
.
[42]
Section 4(1)
of the above Act states as follows:
“
(1) The spouses of a customary marriage have a duty to
ensure that their marriage is registered.
”
[43] Such a registration may be effected by any of the parties to
that customary marriage in terms of section 4(2) of the Act.
[44] Section 4(3) reads as follows:
“(
3) A customary marriage –
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 (3) 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 …
”
[45] It is also common cause that none of the first and/or second
respondents having complied with the above quoted prescripts
relating
to the regularisation of a customary union by registration.
[46] The basic principle remains the following: If there was an
existing civil marriage between the deceased and the second applicant
when any of the respondents purportedly entered into customary
marriages, such customary marriage(s) would be
null and void, ab
initio
or
pro non scripto
.
[47] On the other hand if this Court thought away the civil marriage
between the second applicant and the deceased, substituting,
for
argument sake, a customary marriage or union for it the following
scenario would obtain:
When a man wishes to take a second customary union spouse, he
should obtain the express consent of the first wife. Section
8 of
the Recognition of the Customary Marriages Act reads as follows:
“
(8) All persons having a sufficient interest in the
matter, and in particular the applicant’s existing spouse or
spouses
and his prospective spouse, must be joined in the proceedings
instituted in terms of sub-section (6).
”
[48] Section 6 of the Act reads as follows:
“
(6) A husband in a customary marriage who wishes to enter
into a further customary marriage with another woman after the
commencement
of this Act must make an application to the court to
approve a written contract which will regulate the future matrimonial
property
system of his marriage.
”
[49] This issue was decided recently by the Constitutional Court (on
30 May 2013) in
Modjadj Florah Mayelane v Mphephu Maria Ngwenyama
& The Minister of Home Affairs and 3 Amici Curiae
where the
central question was:
“
[12] …
Should the consent issue have been determined by the Supreme
Court of Appeal?
Is the consent of a first wife necessary for the validity of her
husband’s subsequent customary marriage? This entails
considering –
whether the Recognition Act directly prescribes the first wife’s
consent as a requirement for validity; and
(ii) whether living … custom makes such a prescription?
”
The Constitutional Court answered the above questions in the
affirmative, categorically stating that any subsequent customary
marriage entered into by a husband without the express consent of the
wife/wives is invalid and of no force and effect.
[50] Even if, for argument’s
sake all the three women involved in this application were all
married by customary law to the
deceased, their marriages would still
be susceptible to being nullified, especially the last two of them,
for want of compliance
with the Act.
CONCLUSION
[51] In terms of the Marriage
Act, 1961 production of a civil marriage certificate by any person
shall be
prima facie
proof of the valid existence of a marriage relationship between the
parties therein mentioned. Consequently, until such time that
there
is cogent and acceptable and credible evidence to the contrary, this
Court accepts that the second respondent was married
to the deceased
by civil rites in community of property.
[52] The above pre-supposes that any subsequent customary union
purportedly entered into after the date of that marriage, being
8
February 1996, is invalid and of no legal consequence.
[53] It should be noted that the invalidity of any marriage have no
bearing or influence on the right of children born of the
parties
thereto to claim maintenance.
[54] In respect of the second respondent, it is clear that she is
facing a double-edged sword: Either her union with the deceased
is
invalid because a valid civil marriage existed at the time it was
entered into or if the civil marriage had any difficulties
affecting
its validity and a customary cohabitation union or marriage was in
place, her customary union would still fall by the
way side because
the consent of the other spouse or spouses was or were not obtained
as required by
section 7
of the
Recognition of Customary Marriages
Act, 1998
, as amended.
[55] In the circumstances, her
(second respondent’s) counter-application stands to fail.
[56] When it comes to the first
respondent, she came up with the above stated unsubstantiated
allegations of her and the deceased
starting their relationship
during 1995 from which period the deceased “
dumped
”
the second applicant. What is surprising is that the deceased’s
bank account or bond account is held at an FNB Bank
at Ladybrand,
where the second applicant resides and says is the matrimonial home.
The deceased’s real home is in Lesotho.
He has another house
at Lenasia, Johannesburg. The second applicant states that this home
was acquired as the deceased had business
affairs to take care of in
Johannesburg. The first respondent stated that the Lenasia house was
purchased as the matrimonial home
for her and the deceased. If the
relationship between the deceased and the second applicant ended in
1995 or 1996, why then would
the deceased still be linked to
Ladybrand, which is causally.
[57] The parties can pursue those disputes in the normal way in the
ordinary court, be it through action proceedings or motion
proceedings.
TRANSFER OF TAXIS AND LICENCES
[58] As stated above, after the death of a property or asset owner,
those assets that he/she owned cannot be transferred in any
other way
other than through duly issued and authorised letters of executorship
issued by the Master of the High Court.
[59] None of the two respondents
herein produced any by-the-Master-issued letters of executorship.
Consequently, any transfers
of ownership of any of the vehicles of
the deceased and the appropriate taxi licences cannot be valid or
authorised.
[60] Consequently, the transfers
of the taxi motor vehicles registration particulars into the names of
the two first named respondents
stand to be set aside. So should
transfer of any of the taxi permits into their names. Such transfers
should be reversed. The
vehicles and the permits should be
transferred back into the names of the first applicant, pending the
Master’s finalisation
of the estate of the deceased. Any
interested party, including the first and second respondents can
participate in the deliberation
forming part of the administration of
the estate.
[61] The respondents have asked
this Court to order that the two first named respondents retain
control and custody of the taxis
and permits. That cannot be done.
That would be tantamount to meddling in the administration of the
deceased estate. The second
applicant, by her appointment as the
executrix of the deceased’s estate, has the prerogative to
accumulate and bring to one
common point all the assets in this
estate. She is the one to retain control and custody of the assets.
The other parties are
at liberty to engage with her over issues like
interim maintenance. It is the second applicant who should liaise
with JOFELDTA
over the re-drafting into service of the deceased’s
taxis.
[62] The first respondent
contended that the documents marked “NM2” and “NM3”
and annexed to the papers
(as referred to in paragraphs 17 and 18 of
this judgment) should be regarded as the deceased’s will.
[63] That submission has no
substance. A valid will should comply with specific requirements.
Those documents do not.
[64] It is thus my finding that the applicants have made out a case
for the grant of the substantial order they sought.
ORDER
[65] The following order is made:
1. The second applicant is declared as the duly appointed executrix
of the estate of the late Nchoba Azakiel Moleko, viz. Estate
No.
6234/2013.
2. The second applicant is authorised and mandated to collect and
take into possession all the assets of the deceased which includes
the following vehicle:
Mercedes Benz Sprinter 413 cdi Registration Number NVV 535 GP.
Mercedes Benz Sprinter 413 cdi Registration Number BWY 943 GP.
Volkswagen LT Registration Number VDD 463 GP
as well as all taxi licences and/or permits issued and all other
assets, for purposes of administration under the auspices of the
Master of the High Court.
The transfers of ownership of the motor vehicles mentioned in
paragraphs 2.1 to 2.3 of this order as well as any taxi licence
or
permit issued in the names of the deceased into the names of any of
the first and/or second respondents is declared
null and void
and set aside.
Any of the first or second respondents or any person or institution
or agency that participated in the above unlawful and invalid
transfers are hereby ordered and directed to re-transfer same back
into the names of the first applicant forthwith.
Should the people or instances mentioned in paragraph 4 above
neglect or fail to act as ordered and directed within 20 (twenty)
days of date of this order, the fourth and/or fifth respondents are
hereby ordered and directed to effect such re-transfers into
the
names of the first applicant.
Any costs incurred due to the failure or neglect or refusal of the
first and/or second respondent to act in accordance with the
above
directive shall be borne by those respondents failing, neglecting or
refusing to so act.
The first, second and third respondents are ordered and directed to
deliver any of the mentioned motor vehicles or taxis as well
as taxi
licences to the second applicant forthwith.
Should the abovementioned taxis and their commensurate taxi licences
or permits as well as any other taxi permits in the names
of the
deceased not be handed back to the second applicant within 20
(twenty) days of date of this order, the Sheriff of the
High Court
within the area of jurisdiction where such assets may be is hereby
authorised, ordered and mandated to attach and
remove such assets
and then deliver same to the Second Applicant for storage and for
which purpose this shall be his warrant
or authority.
In the event of the Sheriff having to act in terms of paragraph 8
above, whosoever of the respondents who would be responsible
for the
invocation of the Sheriff’s intervention shall be liable for
all the costs incurred by the latter.
The fourth and fifth respondents are ordered and directed to give
effect to the orders herein set insofar as they relate to them.
The first and second respondents are ordered to pay the costs of
this application jointly and severally, the one paying, the
other
being absolved.
The second respondent’s counter-application is dismissed with
costs.
The issue relating to the validity of the marriage (and authenticity
of the marriage certificate) between the deceased and the
second
applicant is postponed
sine die
.
Any of the parties in this application are at liberty to approach
the court on the same papers, duly supplemented if need be,
for the
determination of the issue of the validity of the civil marriage or
customary marriage(s) alluded to in this application
within 30
(thirty) calendar days from the date of handing down of this order.
Should no such challenge to the validity of the civil and/or
customary marriages be pending in court or finalised by the end
of
the 30
th
calendar day from the date of the handing down
of this order, which is 11 June 2013, the civil marriage between
the deceased
and the second applicant would be declared valid and
subsisting between 8 February 1996 (date of solemnisation of
marriage) and
the date of death of the deceased on 17 February 2013.
_____________________________
N F KGOMO
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
FOR THE APPLICANTS
G.E.K LEBETHE
INSTRUCTED BY
NTABENI
ATTORNEYS
c/o
DITHEKO LEBETHE ATTORNEYS
JOHANNESBURG
TEL NO: 012 323 0188/012
751 1189
FOR THE FIRST RESPONDENT
T.
MACHABA
INSTRUCTED BY
JERRY
NKELI & ASSOCIATES INC.
PRITCHARD STREET,
JOHANNESBURG
TEL NO: 011 838 7280
FOR THE SECOND
M.E MATHANDA
RESPONDENT
INSTRUCTED BY
D
G MAFUYA ATTORNEYS
ROODEPOORT
TEL NO: 087 150 8633
DATE OF ARGUMENT
07
JUNE 2013
DATE OF JUDGMENT
11
JUNE 2013