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[2010] ZAWCHC 128
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Malo and Another v Siswana and Another (A137/2008) [2010] ZAWCHC 128 (11 June 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
REPORTABLE
COVERSHEET
Case
No.: A137/2008
In
the matter between
THEMBILE
LIVINGSTONE MALO
First
Applicant
NONTULELEKO
FLORENCE MALO
Second
Applicant
and
BUZEKA
SISWANA
First
Respondent
LONWABO
SISWANA
Second
Respondent
(and
all persons claiming the right of occupation through or under them)
Coram
TRAVERSO, DJP et SAMELA, AJ
Judgment
by SAMELA, AJ
For
the Applicants Adv M Holland 0214221512
Instructed
by Walkers I nc (MAH/W23894) 021464441
For
the Respondent Adv N Mayosi
-
0214265081
Instructed
by FJMO Attorneys Inc (N Oliphant) 0219451596
Date/s
of hearing
24/10/08,30/04/08
Judgment
delivered on
11
JUNE 2010
REPORTABLE
IN THE
HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE HIGH COURT, CAPE TOWN
CASE
NO.: A137/08
In
the matter between
THEMBILE
LIVINGSTONE MALO
First
Applicant
NONTULELEKO
FLORENCE MALO
Second
Applicant
and
BUZEKA
SISWANA
First
Respondent
LONWABO
SISWANA
Second
Respondent
(and
all persons claiming the right of Occupation through or under them)
JUDGMENT
DELIVERED ON 11 JUNE 2010
SAMELA,
AJ
[1]
This is an appeal against the judgment of a Mitchell's Plain
Magistrate, dismissing the Appellants' application for eviction
of
the Respondents. The Appellants had brought an application for
eviction of the Respondents from the immovable property known
as Erf
18884, Khayelitsha, commonly known as 16 Mapolo Street, Khayelitsha
("the property"). The Appellants had brought
an
application for eviction on the basis that occupation of the
property by the Respondents was unlawful.
[2]
The Respondents had opposed the eviction application on the ground
that they are occupying the property lawfully.
August
2004 to purchase the property which was registered in Appellants'
names on the 19
th
February 2007. At the time of sale and transfer of the property into
Appellants' names, the Respondents were in occupation of
property.
The executrix was married to George Monwabisi Manengele ("the
deceased", who died on the 30
th
July 2002), on the 21
st
February 1993. Before marrying the executrix, the deceased had
married the First Respondent on the 20
th
December 1986 in accordance with customary law. At the time of the
deceased's marriage to the executrix, the first marriage was
still
in subsistence. After the death of the deceased, the executrix had
applied for and obtained from the Master of the High
Court, a letter
of authority on the 4
th
November 2004, authorising her to wind up the deceased's estate.
This letter of authority was subsequently withdrawn by the Master
of
the High Court on the 20
th
September 2007.
[4]
The basis for the relief sought by the Appellants is that the
Respondents' occupation of the property is unlawful in that
they do
not have the Appellants' consent or permission to occupy the
property.
[5]
The Respondents opposed the application on various grounds.
[6]
Firstly, they contend that they were entitled to occupy the property
by virtue of the marriage of the First Respondent to
the deceased.
The First Respondent alleges that she was married to the deceased by
custom in 1986.
[7]
Secondly, the Respondents aver that the marriage between the
executrix and the deceased was invalid on the ground that at
the
time that the deceased married the executrix, he was still married
to the First Respondent.
[8]
Thirdly, the First Respondent alleges that the executrix had no
authority to sell the property to the Appellants and that
the
Appellants were aware at the time of the sale, that the property did
not belong to the executrix and that she had no authority
to sell
it.
[9]
Fourthly, the First Respondent avers that the letter of authority,
on the authority of which the executrix purported to sell
the
property had been fraudulently obtained. The First Respondent points
out that upon investigation at the Master's Office as
to how the
letter of authority was granted, she discovered that the executrix
did not disclose the following:
(i)
at
the time of the deceased's death, she had not been living with
him
for almost eight years;
(ii)
the
deceased had been living with his customary law wife at the time
of
his death;
(iii)
the
deceased had dependants.
[10]
The Magistrate dismissed the application for eviction and found
for
the
Respondents on the ground that the executrix did not have authority
to sell
the
property, and that at the time the executrix got married to the
deceased, he deceased's marriage to the First Respondent was
still
in existence.
[11]
The Appellants appeal against the Magistrate's decision on the
ground that the Magistrate misdirected himself in finding
that the
marriage between the executrix and the deceased was invalid. Mr
Holland, who appeared on behalf of the Appellants pointed
out that
the issue before the Magistrate was not whether the executrix's
marriage to the deceased was valid or not. He submitted
that the
Magistrate was required to decide whether the eviction was to be
granted or not.
[12]
The question is whether the Magistrate was wrong in dismissing the
Appellants' application.
[13]
This application had been brought before the Magistrate in terms of
the Prevention of Illegal Eviction from and Unlawful
Occupation of
Land Act, 19 of 1998 ("the PIE Act"). The PIE Act was
enacted in order to give effect to the provision
of section 26(3) of
the Republic of South Africa Act 108 of 1996 ("the
Constitution"), which provides that;
"No
one may be evicted from their home, or have their home demolished,
without an order of court made after considering all
the relevant
circumstances. No legislation may permit arbitrary evictions."
[14]
The PIE Act defines an owner in section 1 as:
"...
the registered owner of the land, including an organ of state."
[15]
Owner in the
Deeds Registries Act 47 of 1937
is defined in
section
102
as: in relation to -
"(a)
immovable property, subject to paragraph (b), the person registered
as the owner or holder thereof and includes the
trustee in an
insolvent estate, a liquidator or trustee elected or appointed under
the Agricultural Credit Act, 1966 (Act 28
of 1966), the liquidator
of a company or a close corporation which is an owner and the
executor of any owner who has died or
the representative recognised
by law of any owner who is a minor or of unsound mind or is
otherwise under disability, provided
such trustee, liquidator,
executor or legal representative is acting within the authority
conferred on him or her by law. [Para
(a) substituted by s.22(d) of
Act 14 of 1993 and by s.9(b) of Act 11 of 1996];
(b)
immovable property, real rights in immovable property and notarial
bonds -
(i)
which
are registered in the name of both spouses in a marriage in
community of property, either one or both of the spouses;
which
are registered in the name of only one spouse and which forms part
of the joint estate of both spouses in a marriage in
community of
property, either one or both of the spouses; "
[16]
An unlawful occupier is defined in section 1 of the PIE Act as:
"a
person
who occupies land without the express or tacit consent of the owner
or person in charge, or without any other right in
law to occupy
such land, excluding a person who is an occupier in terms of the
Extension of Security of Tenure Act, 1997
, and excluding a person
whose informal right to land, but for the provisions of this Act,
would be protected by the provisions
of the Interim Protection of
Informal Land Rights Act, 1996 (Act No. 31 of 1996)."
[17]
Sections 4(7) and (8) of PIE Act deal with eviction of unlawful
occupiers:
"4.
Eviction
of unlawful occupiers.
7.
If an unlawful occupier has occupied the land in question for more
than six months at the time when the proceedings are initiated,
a
court may grant an order for eviction if it is of the opinion that
it is just and equitable to do so, after considering all
the
relevant circumstances, including, except where the land is sold in
a sale of execution pursuant to a mortgage, whether land
has been
made available or can reasonably be made available by a municipality
or other organ of state or another land owner for
the relocation of
the unlawful occupier, and including the rights and needs of the
elderly, children, disabled persons and households
headed by women.
8.
If the court is satisfied that all the requirements of this section
have been complied with and that no valid defence has been
raised by
the unlawful occupier, it must grant an order for the eviction of
the unlawful occupier, and determine -
a
just and equitable date on which the unlawful occupier must vacate
the land under the circumstances; and
the
date on which an eviction order may be carried out if the unlawful
occupier has not vacated the land on the date contemplated
in
paragraph (a)."
[18]
Mr Holland submitted that the executrix was married to the deceased,
and on the death of the deceased, she became the sole
owner of the
property, and that being so, was entitled to sell and transfer
ownership of the property to the Appellants.
[19]
In reply, Ms Mayosi, who appeared on behalf of the Respondents,
submitted that the Respondents were occupying the property
lawfully.
She pointed out that the First Respondent was validly married to the
deceased in accordance with the customary law
in 1986. She argued
that the executrix married the deceased in 1993 whilst the marriage
between the First Respondent and the
deceased was still in
existence. She further submitted that the executrix's marriage was
therefore null and void and that proprietary
consequences could not
flow therefrom.
[20]
The customary marriage between the deceased and the First Respondent
was regulated by section 1 of Act 3 of 1988 (amending
section 22 of
the Native Administration Act 38 of 1927) which provided that:
"(1)
A man and a woman between whom a customary union subsists are
competent to contract a marriage with each other if the
man is not
also a partner in a subsisting customary union with another woman.
(2)
Subject to subsection (1), no person who is a partner in a customary
union shall be competent to contract a marriage during
the
subsistence of that union.
…...........
(7)
No marriage contracted after the commencement of this Act but before
the commencement of the Marriage and Matrimonial Property
Law
Amendment Act, 1988, during the subsistence of any customary union
between the husband and any woman other than the wife
shall in any
way affect the material rights of any partner of such union or any
issue thereof, and the widow of any such marriage
and the issue
thereof shall have no greater rights in respect of the estate of the
deceased spouse than she or they would have
had if the said marriage
had been a customary union,
[repealed
by the Recognition of Customary Marriages Act. 120 of 19981
"
[21]
Since 15 November 2000, the deceased and the First Respondent's
customary marriage was regulated by the Recognition of Customary
Marriages Act 120 of 1998 ("the Act").
[22]
Section 3(2) of the Act provides:
"Save
as provided in section 10(1), no spouse in a customary marriage
shall be competent to enter into a marriage under the
Marriage Act,
1961 (Act No 25 of 1961), during the subsistence of such customary
marriage.
[23]
Section 7(1) of the Act provides:
"The
proprietary consequences of a customary marriage entered into before
the commencement of this Act continue to be governed
by customary
law."
[24]
Section 8(1) provides:
"A
customary marriage may only be dissolved by a court by a decree of
divorce on the ground of the irretrievable breakdown
of the
marriage."
[25]
Upon a perusal of a copy of a marriage certificate which was
submitted in the court a
quo,
exhibit
BS3, I am satisfied that a marriage between the deceased and First
Respondent existed. Also, upon a perusal of a copy
of a marriage
certificate which was admitted in the court
a
quo
as
exhibit TLM3, a marriage between the deceased and the executrix was
solemnised. The latter marriage was entered into between
the
deceased and the executrix, contrary to section 3(2) of the Act (The
Recognition of Customary Marriage Act) which expressly
prohibits
parties in a customary marriage to enter into a civil marriage with
another person. It is clear to me that the marriage
between the
deceased and the First Respondent was not dissolved by court and
therefore the deceased's marriage to the executrix
was null and
void.
[26]
The rule of primogeniture which is applicable in this matter was
clearly explained in
Bhe
v Magistrate,
Khayelitsha
[2004] ZACC 17
;
2005 (1) SA 580
(CC) at 617-618 where the court stated:
"The
rule
of primogeniture was central to the customary law of succession. The
general rule was that only a male related to the deceased
qualified
as intestate heir. Women did not participate in the intestate
succession of deceased estates. In a monogamous family,
the eldest
son of the family head was his heir. If the deceased was not
survived by any male descendants, his father succeeded
him. If his
father also did not survive him, an heir was sought among the
father's male descendants related to him through the
male line. The
exclusion of women from heirship, and consequently from being able
to inherit property, was in keeping with a
patriarchal system which
reserved for women a position of subservience and subordination in
which they were regarded as perpetual
minors under the tutelage of
fathers, husbands, or heads of the extended family. Extramarital
children were not entitled
to succeed to their father's estate in
customary law. They, however, qualified for succession in their
mother's family, but subject
to the principle of primogeniture. The
eldest male extramarital child qualified for succession only
after all male intra-marital
children and other close male members
of the family."
[27]
The
court made very important findings at the following paragraphs [52,
91 and 92]:
(i)
[Para
52]
"Section
28 of the Constitution provides specific protection for the rights
of children. Our constitutional obligations in
relation to children
are particularly important for we vest in our children our hopes for
a better life for all. The inclusion
of this provision in the
Constitution marks the constitutional importance of protecting the
rights of children, not only those
rights expressly conferred by s28
but also all the other rights in the Constitution which,
appropriately construed, are also
conferred upon children. Children,
therefore, may not be subjected to unfair discrimination in breach
ofs9(3) just as adults
may not be."
(ii)
[Para
91]
"The
exclusion of women from inheritance on the grounds of gender is a
clear violation of s9(3) of the Constitution. It is
a form of
discrimination that entrenches past patterns of
disadvantage
among a vulnerable group, exacerbated by old notions of patriarchy
and male domination incompatible with the guarantee
of equality
under this constitutional order."
(iii)
[Para
92]
"The
principle of primogeniture also violates the right of women to human
dignity as guaranteed in s10 of the Constitution
as, in one sense,
it implies that women are not fit or competent to own and administer
property. Its effect is also to subject
these women to
a status
of perpetual minority, placing them automatically under the
control
of male heirs, simply by virtue of their sex and gender. Their
dignity is further affronted by the fact that as women,
they are
also excluded from intestate succession and denied the right, which
other members of the population have, to be holders
of, and to
control property."
[28]
I am of the view that the Magistrate's approach in arriving at his
decision was correct. The customary rule of primogeniture
was partly
applicable in this matter. In my view, there are two enquiries to be
made, firstly, the validity of the executrix's
marriage to the
deceased, and secondly, whether or not the Appellants are the owners
of the property. One cannot entertain the
second enquiry without
having decided on the first one.
[29]
It is clear from the record that the issue before the Magistrate was
not the validity of the marriage between the executrix
and the
deceased, and the Magistrate never pronounced on it. The Magistrate
had to decide whether the Appellants were lawful
owners of the
property or not.
[30]
The first enquiry refers to the validity of the executrix's marriage
to the deceased. It is clear from what I have discussed
above that
the executrix's marriage to the deceased was invalid. It follows
that on the death of the deceased, the executrix
could not become
the owner of the property as she could not succeed the deceased
ab
intestato.
[31]
The second inquiry is whether the Appellants acquired ownership of
property notwithstanding that the executrix did not have
the
authority to sell and transfer ownership of property. I have
observed in the record that the executrix entered into a sale
agreement with the Appellants on the 12
th
August 2004, before she applied for and obtained a letter of
authority to wind up the deceased estate. The First Respondent,
in
her answering papers, avers:
(i)
[Para
34]
"It
has emerged that the sale of our home to the Applicants was a
simulated illegal act of conscious collusion between the
buyer and
the seller done for the sole purpose of hastily putting the house
beyond the reach of its
bona
fide
owner."
(ii)
[Para
37]
"The
First Respondent was in fact an accomplice in a simulated illegal
transaction that was intended to deprive the Applicant
and her
children of a home for the direct benefit of Vuyiswa Jacobs and this
he was aware of all the time."
(iii)
[Para
40]
"The
transfer of the property by Vuyiswa to the Applicants was illegal
and void based on the following:
a.
Vuyiswa,
the purported seller never had legal title to the home as she was
never married to the deceased so there never was a
joint estate
between the two;
b.
The
purported seller had fraudulently acquired the Letters of Authority
from the Master and this authority has subsequently been
withdrawn;
c.
The
purported buyer being the First Applicant, had consciously
participated in a simulated transaction that was illegal and done
for the sole purpose of depriving me and my children of our home."
These
averments made by the First Respondent were not disputed and replied
to by the Respondents and stands as they were.
[32]
In the circumstances I find:
Firstly,
that the executrix at the time of sale and transfer of property had
no authority to deal with property and its disposal.
[33]
Secondly, the Appellants were aware at the time they bought and took
transfer of property from the executrix that she had
no authority to
sell and transfer property to them.
[34]
It follows, therefore, that the sale and transfer of property to the
Appellants did not confer ownership on the Appellants.
It is for
these reasons that Mr Holland's submission that the executrix was
the sole owner of the property and entitled to sell
and transfer
ownership of the property to the Appellants is untenable and
rejected.
[35]
Upon the death of the deceased, in terms of customary law of
succession, his (minor) son became an heir. The First and Second
Respondents both fell under the guardianship of the deceased's
nearest male major relative, who assumed control and administration
of the deceased's property on behalf of the deceased's family, until
the minor son became a major (see
Seymour
Customary Law in Southern Africa,
Juta
5
th
Edition at 216-217). That was the legal position before the Bhe's
ruling in October 2004.
[36]
After Bhe's ruling the situation was as follows: the customary rule
of primogeniture was declared invalid and unconstitutional
to the
extent it excludes women, children and extra-marital children from
inheriting. In accordance with the court's ruling,
First and Second
Respondents jointly became the owners of property. At the time the
executrix applied for a letter of authority
on the 4
th
November
2004, the Respondents were already owners of the property.
[37]
It is trite law that an owner is entitled to his or her lawful
possession of his/her property and may be granted an ejectment
order
against an unlawful occupier of the property provided that right is
not limited by the Constitution, statute or any other
legal basis,
see
Brisley
v Drotsky
2002
(4) SA 1
(SCA) [2002(12) BCLR 1229].
[38]
I am satisfied that the Respondents' occupation of the property was
not unlawful and that the application for eviction was
correctly
refused.
[39]
In conclusion, I would like to express my displeasure in the manner
some Respondents are cited in this matter. It is apposite
to the
remarks made by the learned Judge Sachs in
Port
Elizabeth Municipality v Various Occupiers
[2004] ZACC 7
;
2005
(1) SA 217
(CC) at 239 E where it is stated:
"Thus,
those seeking eviction should be encouraged not to rely on concepts
of faceless and anonymous squatters automatically
to be expelled as
obnoxious social nuisances. Such a stereotypical approach has no
place in the society envisaged by the Constitution;
justice and
equity require that everyone is to be treated as an individual
bearer of rights entitled to respect for his or her
dignity."
I
associate myself with the views expressed in these matter.
The
Order
[40]
In the result, I would dismiss the appeal with costs.
SAMELA,
AJ
I
agree and it is so ordered
TRAVERSO,
DJP