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[2013] ZAECPEHC 14
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Pataki v Heasley NO and Others (2664/2012) [2013] ZAECPEHC 14 (5 March 2013)
Not Reportable
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE – PORT
ELIZABETH
Case No: 2664/2012
In the matter between
BLOSSOM NONTYATYAMBO PAKATI
.....................................
Applicant
and
TERESA HEASLEY N.O. IN RE:
ESTATE LATE
SOBANTU CUSSEL CURNICK PAKATI
ESTATE NO. 6822/2011
.............................................
First
Respondent
NWABISA OLGA PAKATI
........................................
Second Respondent
PATIENCE NOMONDE PAKATI
...................................
Third
Respondent
SANDILE PROFESSOR PAKATI
.................................
Fourth
Respondent
THE MASTER OF THE HIGH COURT
.............................
Fifth
Respondent
JUDGMENT
REVELAS J,
[1] The applicant, a widow, seeks
declaratory orders to the effect that her marriage to her deceased
husband (“the deceased”)
who died on 9 October 2011, was
in community of property, that his estate is to devolve according to
the South African common law,
and that the applicant is entitled to
half of the joint estate consequent upon the marriage between herself
and the deceased.
[2] Prior to this application, the
applicant brought another application in December 2011, seeking to
set aside the deceased’s
will on the basis that he was not of
sound mind when he executed his will. The deceased’s will was
signed on 5 August 2010.
In terms of this will, four persons
benefited, namely the applicant, the second, third, and fourth
respondents. These three respondents
were respectively two daughters
of the deceased from a former marriage and his son from his marriage
to the applicant. The applicant
inherited an immovable property in
Butterworth where she lived and which she says was the common home (a
statement contested by
the second respondent). She also inherited all
the livestock, furniture and household effects thereon. The second
and third respondents
inherited immovable properties in Zwide and
Kwazakhele. The fourth respondent inherited a shop in Kwazakhele. The
three other children
born from the marriage between the applicant and
the deceased were not mentioned in the will.
[3] The first respondent, as nominee
of Sanlam Trust was the executrix the deceased’s estate. She
deposed to an affidavit
in which she pointed out
inter alia
,
that the deceased had another will which was signed on 19 December
2006. This will, a copy of which was attached to the answering
papers
is almost identical to the later will, in that the beneficiaries and
bequests therein are the same. Obtaining an order in
terms of the
applicant’s application to have the deceased’s will set
aside, would have had little effect on the bequests
made in it,
because his previous one would have been revived. In any event, the
applicant withdrew the application challenging
the validity of the
will and tendered the costs. She then decided to challenge the
matrimonial property regime applicable to her
marriage to the
deceased, and launched the present application.
[4] The respondents brought an
application for the substitution of the first respondent, the
executrix of the deceased’s estate,
with Ms Karen Lotter, also
from Sanlam Trust, since the Master had replaced Ms Heasly with Ms
Lotter as executrix. The application
is granted since there is no
opposition thereto and it has no bearing on the merits of this
application.
[5] The applicant alleged that when
she and the deceased were married on 5 February 1970 before a
magistrate, they never intended
to be married out of community of
property. She said that ”
we wanted to have a normal marriage
in community of property, hence we were married before magistrate. We
were never asked by the
Magistrate whether we wanted our marriage to
be in or out of community of property”.
A copy of the
marriage certificate, which appears to have been issued at the time,
reflects that the marriage between the applicant
and the deceased was
contracted out of community of property.
[6] According to the applicant, she
and her husband only discovered that they were indeed married out of
community of property during
the course of their marriage. Then,
after 1994, she said that she heard over a radio broadcast that “
old
marriages would be changed by the Department of Home Affairs to be
normal marriages in community of property”.
She and her
husband then went to the Department of Home Affairs and the
Magistrate’s Court “
to make sure that our marriage was
one in community of property in terms of the Common Law”
and
were issued with another marriage certificate, which she attached to
her founding affidavit. No reference as to whether the
marriage was
in or out of community of property is reflected on this certificate.
Another abridged marriage certificate was attached
to her replying
affidavit. This second abridged marriage certificate also did not
reflect any facts of that nature either. These
two certificates were
issued in 2010 and 2012 respectively, more than a decade after 1994
and the alleged radio broadcast. The
last marriage certificate was
issued after the deceased’s death.
[7] If the applicant and the
deceased indeed acted as the applicant alleged and succeeded in
changing their matrimonial property
regime, she ought to have been in
possession of some reliable documentary proof that their matrimonial
property regime had been
amended. In the absence of such proof, the
veracity of the applicant’s version of how she and her husband
had made efforts
to be married in community of property is highly
questionable. Moreover, the deceased disposed of his property in no
less than
two wills, drafted by attorneys, in a manner consistent
with someone married out of community of property, as reflected in
the
first marriage certificate attached to the applicant’s
founding affidavit.
[8] The applicant also acknowledged
that the marriage was contracted out of community of property by
virtue of the provisions of
section 22(6) of the Black Administration
Act, No. 38 of 1927 (“the act”) which was repealed on 2
December 1988 by
section 1(e) of the Marriage and Matrimonial
Property Act, No. 3 of 1988. In terms of section 22(6) of the act,
marriages between
black persons were deemed to be, and were
automatically out community of property. If the prospective parties
to a marriage covered
by the act chose to be married in community of
property, such parties were required to make a joint declaration of
their intention
to be married in community of property to a
magistrate, commissioner or marriage officer, thirty days prior to
the marriage.
[9] There can be no doubt that the
applicant was married to the deceased out of community of property as
their marriage certificate
clearly states.
As I understand the applicant’s
case, she also argues that because she and the deceased had always
desired to be married in
community of property, had made certain
efforts to achieve that end, and the act had had been repealed, she
was entitled to relief
sought in her notice of motion. Her argument
envisages that the repeal of the act retrospectively (and
automatically), reversed
the matrimonial property regime applicable
to her marriage. Faced with the irrefutable legal position, that the
repeal of the act
did not apply retrospectively to marriages
contracted before 1988 (as her own), she argued that the aforesaid
interpretation of
the consequences of the repeal of the act, was
discriminatory on the basis of her race, and therefore
unconstitutional and unlawful.
[10] With the repeal of the act, the
Legislator could never have intended that marriages out of community
of property would automatically
be rendered in community of property.
Marriage being a private matter between two people, founded on
consent, it requires little
imagination to predict what the response
would have been if persons who were married out community of property
prior to December
1988, and who chose to be so married, suddenly
found themselves married in community of property through the
unilateral action
by the State, after 1988. There are clear
commercial, economical and other obvious considerations, not to
mention common sense,
which militate against the aforesaid
interpretation favoured by the applicant.
[11] Parties who wished to jointly
change their matrimonial property regime were entitled (after 1984),
to obtain an order from
the Supreme Court and later, the High Court,
to that effect in terms of
section 21(1)
of the
Matrimonial Property
Act, No.88 of 1984
. That is still the position. Counsel for the
respondents also reminded me that the same result could be achieved
administratively
(without an application to the Supreme Court) for a
two-year period that followed immediately after the promulgation of
Act 88
of 1984. The applicant and her husband did not avail
themselves of any of these opportunities. There is no basis in law or
fact
upon which I can find for the applicant. In the circumstances,
the application must fail.
Costs
[12] The respondents argued that the
applicant brought two ill-conceived and vexatious applications in an
attempt to lay her hands
on a bigger slice of the deceased’s
estate, causing the respondents (including the executrix of the
estate) to incur costs
to resist the application. It was submitted on
their behalf that an adverse costs order should be made against the
applicant in
these circumstances. In my view, the applicant was
ill-advised, rather than vexatious in bringing the present
application. I am
not inclined to make a punitive costs order against
her.
[13] The following order is made:
The first respondent is substituted
herein by KAREN LOTTER N.O. (
in re
The Estate of the late
SOBANTU CUSSEL CURNICK PAKATI Estate no. 6822/2011).
The application is dismissed.
The applicant is ordered to pay the
costs of the respondents on a scale as between party and party.
_______________
E Revelas
Judge of the High Court
5 March 2013
Counsel for the Plaintiff: Adv MW
Nobatana
Port Elizabeth
Instructed by: Silas Nkanunu &
Van Loggerenberg
Port Elizabeth
Counsel for the 1
st
; 2
nd
and
3
rd
Respondents: Adv NJ
Mullins
Port Elizabeth
Instructed by: Strauss Daly
Attorneys
Port Elizabeth
4
th
Respondent: DN Ndlovu
& Associates
Port Elizabeth
Date Heard: 6 December 2012
Date Delivered: 5 March 2013