About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 234
|
|
Yawa and Others v Tsoeute (A101/2022) [2023] ZAFSHC 234 (13 June 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Appeal
Case number: A101/2022
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In
the matter between:
XOLILE
MACDONALD YAWA
First
Appellant
THEMBANI
YAWA
Second
Appellant
NONGUYO
YAWA
Third
Appellant
MASTER
OF THE HIGH COURT
Fourth
Appellant
C
BROWN
Fifth
Appellant
(In
his capacity as Sheriff Welkom)
and
MATLAKALA
MARIA TSOEUTE
Respondent
HEARD
ON:
24
MARCH 2023
CORAM:
MBHELE
DJP, BERRY AJ and JONASE AJ
DELIVERED
ON
:
The
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and released to
SAFLII
on 13 JUNE 2023. The date and time for hand-down is deemed to be 13
JUNE 2023 at 15h00.
INTRODUCTION
[1]
This is an appeal against judgment of a single judge of this division
with the leave
of the Supreme Court of Appeal.
[2]
The issues on the appeal are:
a)
Whether a valid customary marriage was
concluded between the Respondent and the late Mthuthuzeli Martin
Yawa, “the deceased,”
who is the late father to first,
second and third Appellants’ (‘the Appellants”),
and
b)
whether the Respondent is entitled to be
appointed as the executor of the deceased estate.
FACTUAL BACKGROUND
[3]
The crux of the matter commenced when the Respondent was served with
a letter dated
9 February 2019 from the Appellants’ then
attorney requesting the Respondent to vacate the house situated at
4[…]
S[…] Avenue, R[…], Welkom, where the
Respondent was residing with the deceased until his death on 28
November 2018.
[4]
On 26 June 2018, the Respondent’s attorneys provided the
Appellants’ attorney
of record with a copy of a document termed
‘lobola agreement’ as proof that a valid customary
marriage between the
deceased and the Respondent was negotiated in
terms of the customary law.
[5]
On 16 August 2018, the Appellants attorneys sent a letter which read
as follows:
“
We
acknowledge receipt of your email of the 2
nd
July 2018 sent at 15:59 to which was annexed your letter of the 28
th
June 2018.
We apologise for not
responding thereto.
We regret to advice
that your client has unfortunately not entered into a valid marriage
with the result that she has no claim to
any inheritance and/or
ownership of
whatsoever nature.
We further wish to
advise that the family is denying any allegations by your client as
their family’s consent to a relationship
and/or the payment of
any lebola.
The crux of the matter
the Lebola relation was not registered and any claim to a marriage is
thus null and void.
In view of the
abovementioned, we hereby request that your client vacate the house
not later than the 31
st
August 2018 and to hand over the
car and other movable assets to the family.
The relative
arrangements in respect of the latter can be made through the writer
hereof.
We further call on
your client not to remove any assets of the deceased and neither to
cause any damage to the property and/loose
assets.
We await your
response.”
[6]
It seems from the said letter that the validity of the marriage is
disputed only on
the basis that the marriage was not registered.
[7]
The Respondent then brought an application for a declaratory order
that she be declared,
among other prayers, a lawful surviving spouse
of the deceased.
[8]
The said order was granted by the court
a quo
and it is that
order which is the subject of this appeal.
GROUNDS OF THE APPEAL
[9]
The Appellants’ grounds of appeal are that the court
a quo
erred in not considering and/or finding that the Respondent did not
make out a case for the relief sought and more specifically
that:
9.1. No confirmatory
affidavits or proof in the Founding papers were attached by the
Respondent pertaining to the representatives
of her family confirming
that there were lobola negotiations held between the two families.
9.2.
No confirmatory affidavits of the
Respondent’s elders or proof that the Respondent was
accompanied by her family to the deceased’s
house on 21
November 2015 were attached to the founding affidavit.
9.3.
No evidence has been presented in the
founding affidavit that the customary marriage was ever concluded,
how it was entered into
and/or celebrated or that the bride was
handed over.
9.4.
That the Respondent bears the onus to prove
her allegations, that the Respondent did not state to which ethnic
group she belongs
and what the rituals of a customary marriage should
accordingly be.
9.5.
That the Respondent attempted to make out a
case for her relief sought in the replying affidavit whilst same
should have been done
in the founding affidavit.
9.6.
The court
a
quo
erred in not finding that a bona
fide dispute of fact exists which cannot be properly determined on
the papers in that:
9.6.1. The Respondent, in
reply, proffered alleged proof in a form of three confirmatory
affidavits that the customary marriage
existed, whilst the applicants
also proffered three affidavits that the customary marriage did not
exist, thereby constituting
a bona fide dispute of fact.
9.6.2. The dispute of
fact was foreseen by the Respondent in her admission that the
applicants demanded that she vacates the house
where she was staying.
9.6.3. The dispute of
fact was foreseen in terms of annexure “J” to the
founding affidavit, whereby the applicants unequivocally
state:
9.6.3.1.1
“
We regret to advise that your client
has unfortunately not entered into a valid marriage with the result
that she has no claim to
any inheritance and/or ownership of
whatsoever nature.
9.6.3.1.2
We further wish to advise that the family
is denying the allegations by your client as to their family’s
consent to a relationship
and /or payment of any Lebola.”
9.7.
The court
a quo
erred in finding that the applicants persisted
with the argument that the marriage needs to be registered at home
affairs to be
valid, whereas the aforesaid requirement for validity
was conceded in argument and in the opposing affidavit of the 1
st
Applicant.
9.8. The court
a quo
erred in placing too much emphasis on the registration of the
customary marriage whereas the applicants argued that:
9.8.1 No marriage
ceremony and/or celebrations were ever held.
9.8.2. There was no
handing over of the bride.
9.8.3. There was no
consent to marry.
9.9. The court
a quo
erred in finding that the Applicants papers were full of bare
denials.
9.9.1. Not taking into
consideration the Applicants argument and contention that one cannot
present evidence to something which
never existed in the first place.
9.9.2. That the
Applicants presented evidence that the deceased listed the Respondent
in annexure “XY5” to the opposing
affidavit as “friend”
under the heading “next of kin” thereby amplifying the
applicants’ contentions
that a customary marriage never
existed.
9.9.3. That annexure “C1”
to the founding affidavit described the Respondent as “partner”
and not spouse,
thereby creating further disputes of fact and
supports the Applicants contention that the customary marriage never
existed.
9.10. The court
a
quo
erred in not drawing an inference of fraud and forgery
pertaining to Mr Moekeni Abram Yawa's signature as the said Mr Yawa
states
under oath I annexure “WY2” to the Answering
Affidavit:
”
I
never had any discussions regarding lobola matters between her and
Mthuthuzeli and that I do not know her or the whereabouts of
their
parents.”
9.11. The court
a
quo
erred in finding that Mr Abram Yawa should explain how his
signature appeared on the lobola agreement, as he had already
explained
he had no discussions regarding lobola.
9.12. The court
a
quo
erred in finding that Mr Abram Yawa does not deny that he was
present at the negotiations, whilst he does deny any knowledge of
lobola discussions or knowledge of the identity of the Respondent.
9.13
The court
a quo
erred in finding that the Applicants dispute
the Respondent’s reliance on the
Administration of Estates Act
66 of 1965
as bad in law as:
9.13.1. The Respondent
did not rely on the Act or on any legislation in support of the
relief sought in the Founding Affidavit or
Replying Affidavit
pertaining to the removal and nomination of the executrix.
9.13.2. The Respondent
therefore did not establish a cause of action for the relief sought.
9.13.3. It is submitted
that the Respondent’s eventual reliance on
Sec 19
of the
Administration of the Estate Act is bad in law only raised in
argument with no basis, therefore.
9.13.4 The court
a quo
erred in finding that the Respondent should be nominated as Executrix
of the deceased estate as the 1
st
applicant was already
appointed after nomination.
9.14. The
court
a quo
erred in not considering that Sec 54 of the
aforesaid Act was the relief that should have been sought by the
Respondent as same
deals with the removal from office of executrix.
The Respondent never prayed for such relief.
9.15. The
court
a quo
erred in removing the 1
st
Applicant as
executor of the deceased estate without any evidence being proffered
that the 1
st
Applicant conducted himself in such a manner
that it imperilled his proper administration of the estate.
9.16. The
court
a quo
failed to consider that bad relations between an
executor and an heir cannot lead to the removal of the executor
unless the administration
of the estate would be prevented as a
result.
9.17. The
court
a quo
failed to take into consideration that the
appointment of the executor vests in the Master. The court
a quo
erred in not referring the appointment back to the Master after the
removal of the 1
st
Applicant.
ISSUES OF THIS APPEAL
[10]
The issues are rooted in the grounds of appeal as indicated above.
[11]
The genesis of this Application, in the court
a quo
, is based
on the allegation that the alleged lobola
agreement was not registered and any claim to a marriage
is thus null
and void.
[12]
What is now clear, is that the dispute is about the validity of the
alleged lobola agreement which gave rise
to the alleged customary
marriage.
[13] It
is so because the Appellants rely, over and above, on the denial of
the signature of one Abram Yawa which
appears on the lobola agreement
and that he was present during the alleged lobola negotiations.
[14]
The Appellants argued that it is not the existence of the romantic
relationship between the Respondent and
the deceased that is in
dispute, but the exact nature of their relationship.
[15]
The Appellants submitted that the issue of whether there was a
customary marriage should be based on
section 3(1)
of the
Recognition
of Customary Marriages Act 120 of 1998
[1]
(the Act)
[16]
The Appellants further argued that to the extent that the Respondent
relied on the customary marriage, the
Appellant raised a genuine and
bona fide
dispute of fact regarding the existence of and/or
the validity of the alleged customary marriage.
[17]
Appellants further argued that if there is a dispute of fact
regarding the marriage lobolo agreement, it
follows that there is a
genuine dispute of fact about the validity of the alleged customary
marriage.
[18]
The Respondent argued that the lobola agreement is the determining
factor in this matter.
[19]
The Respondent further argued that in line with the lobola agreement
of 21 November 2015, the Respondent
was accompanied to the deceased’s
house by her family’s elders, an averment which is denied by
the Appellants.
[20] Mr
Phalatsi argued, on behalf of the Respondent, that the said bare
denial is in line with the averment in
the letter dated 16 April 2016
from the Respondent’s then attorneys which stated:
“
The
children had absolutely no relationship with the deceased and they do
not visit him
.”
[21] Mr
Phalatsi further argued would the Appellants have known that the
events of 21 November 2015 took place
and more so, the lobolo
agreement provides that the Respondent and the deceased are people of
age who had been married before,
they can deal with their own affairs
the way they deem fit. That demystified the allegations that there
was no compliance with
the provisions of
section 3(1)
of the Act.
ANALYSIS
[22]
The
Recognition of Customary Marriages Act governs
customary
marriages.
Sec 3(1)
of the Act provides that:
(a)
The prospective spouses-
(i)
must both be above the age of 18
years, and
(ii)
must both consent to be married to
each other under customary law; and
(iii)
The marriage must be negotiated and
entered into or celebrated in accordance with customary la
w.
[23]
Sec 4
provides for the registration of customary marriages. However,
Sec 4
(9) provides that:
“
Failure
to register a customary marriage does not affect the validity of that
marriage
.”
[24]
The gist of this matter is the dispute about the existence of a valid
customary marriage. The initial dispute
was that the said marriage
was not registered and as such is null and void. This averment is
totally misplaced and ill-conceived
[2]
.
[25]
The court
a quo
satisfied itself that the said marriage was
valid and celebrated in line with the lobola agreement. It was also
submitted for the
Respondent that on 21 November 2015 Respondent was
accompanied by the elders to the deceased’s house in compliance
with the
lobola agreement. There was no evidence to gainsay this. The
agreement also provided that as elders who were previously married,
the Respondent and the deceased are at liberty to deal with their
affairs the way they deemed fit.
[26]
The Appellants could not advance any argument or produce any evidence
which contradicts the Respondent’s
version. The Confirmatory
Affidavit of Abram Yawa, as one of the signatories of the lobola
agreement, addresses unrelated issues
to the dispute alleged by the
Appellants.
[27]
The first Appellant alleged that he had been informed by his uncle,
Abram Yawa that his signature must either
have been obtained from
another document or is a forgery as no lobola agreement was ever
drafted to which he was a signatory. Yet,
Abram Yawa did not indicate
as to how his signature ended up on the lobola agreement.
[28]
Abram Yawa does not deny that it is his signature appearing on the
lobola agreement, neither does he confirm
the allegations made by the
first Respondent. The first Respondent and Abram Yawa deny the lobola
negotiations, which is not supported
by the available evidence.
[29]
The denial by the applicant that a valid marriage was concluded
between the parties is unsubstantiated. There
was compliance with
section 3(1)(a)
, (b) and (c) of the Act.
[30]
The requirements of the customary marriage between the Respondent and
the deceased have been complied with
and as such the Respondent
should be regarded as the deceased’s only surviving spouse.
[31]
The Appellants did not raise a genuine and bona fide dispute of fact
on whether there was a valid customary
marriage concluded between the
deceased and the Respondent. It was submitted for the Respondent that
it was not foreseeable to
the Respondent that after the production
and delivery of the lobola agreement then the dispute about the
validity of the customary
marriage would persist. Their initial
dispute was centred around the registration of the lobola contract,
it was never about the
existence of the contract itself. The alleged
dispute of fact is farfetched and untenable
[3]
.
[32]
Section 7
of the Act reads:
“
7.
(1) The proprietary consequences of a customary marriage entered into
before the commencement of this Act continue to be governed
by
customary law.
(2) A customary marriage
entered into after the commencement of this Act in which a spouse is
not a partner in any other existing
customary marriage is a marriage
in community of property and of profit and loss between the spouses,
unless such consequences
are specifically excluded by the spouses in
an antenuptial contract which regulates the matrimonial property
system of their marriage.
(3) Chapter III and
sections 18
,
19
.
20
and
24
of Chapter IV of the Matrimonial Property
Act (Act No. 88 of 1984), apply in respect of any customary marriage
which is in community
of property as contemplated in subsection (2).”
[33]
It is clear from the provisions of Sec 7 of the Act that the
Respondent’s marriage is in community
of property and of profit
and loss. The Respondent has a fifty percent interest in the
deceased’s estate which qualifies
her to be appointed as the
executrix. The appointment of the first Appellant was done without
consultation with the Respondent
in violation of the
Administration
of Estates Act 66 of 1965
[4]
.
The court
a
quo
correctly relied on the
Administration of Estates Act when
she
replaced the first Appellant with the Respondent. We find no reason
to interfere with the order made by the court
a
quo
.
The appeal ought to fail. As regards to costs, there is no reason to
depart from the general rule that costs must follow the event.
[34] In
the circumstances I make the following order:
1.
The appeal is dismissed with costs.
JONASE AJ
I concur.
MBHELE
DJP
I
concur.
BERRY
AJ
On
behalf of the Appellant:
Adv.
L Mfazi
Instructed
by:
Mlozana
Attorneys
BLOEMFONTEIN
On
behalf of the Defendant/Respondent:
Mr
N Phalatsi
Instructed
by:
NW
Phalatsi Attorneys
BLOEMFONTEIN
[1]
The
Act
[2]
Section
4(9) above
[3]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) [1984] (3) SA 623 (A)
[4]
Section
19 (a) of The Admiration of Estates Act 66 of 1965 “If more
than one person is nominated for recommendation to the
Master, the
Master shall, in making any appointment, give preference to- (a) the
surviving spouse or his nominee.”