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South Africa: North Gauteng High Court, Pretoria
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[2021] ZAGPPHC 517
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N.M v Shisuka and Others (A230/2020) [2021] ZAGPPHC 517 (6 April 2021)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, PRETORIA
CASE
NUMBER: A230/2020
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
6/4/2021
In
the matter between
N[…]
M[…] Appellant
and
RONNY
SHISUKA 1
st
RESPONDENT
MASTER
OF THE HIGH COURT, PRETORIA 2
nd
RESPONDENT
LUCET
SHISUKA 3
rd
RESPONDENT
PATRICIA
MOLOBA 4
th
RESPONDENT
JUDGMENT
RAMLAL
AJ:
[1] This
is an appeal against a ruling by the Magistrate Pretoria wherein the
Appellant sought an order against
the First respondent for the return
of a motor vehicle and an order restraining the Second Respondent
from issuing Letters of Executorship
in the estate of the late N.S.,
pending the finalisation of action proceedings in terms of which the
Applicant would seek an order
to be declared the surviving spouse of
the deceased. The court a quo dismissed the application.
[2] It
is common cause that the Appellant and the deceased were in a
relationship with each other. They have one
minor child who was born
on the […] 2014. Lobola negotiations in relation to the
proposed marriage between the Appellant
and the deceased began in
2016 but these negotiations were not concluded as a result of the
death of the deceased's mother. The
requirements for the registration
of a valid customary union in terms of the Recognition of Customary
Marriages Act (Act 120 of
1998) were not met and the marriage was
therefore not registered. The Appellant and the deceased were,
however, cohabiting with
each other since 2018 until the demise of
the deceased on 11 July 2020.
[3] During
the week of the preparation of the burial of the deceased, a
co-Director of the deceased's company (Machabele
and Associates),
lent a Ford Ranger motor vehicle, with registration number […],
which was registered in the name of the
deceased, to the First
Respondent. This was to enable the First Respondent to run errands in
a convenient manner. The arrangement
was that the First Respondent
would return the vehicle to the company after the funeral. Despite
repeated verbal and written requests
from the Appellant, the
Appellant's attorneys and the Co-Director, the First Respondent has
refused to return the vehicle to the
company.
[4] The
Appellant lodged an urgent application in the following terms:
4.1 That
the court dispense with the forms and service provided for in terms
of the Rules of Court and to dispose
of the matter on an urgent
basis;
4.2 That
the First Respondent be ordered and directed to return/deliver and/or
surrender the motor vehicle with
registration number […] with
chassis/VN number […] to the Applicant, pending the
finalisation of action proceedings
in terms of which the Applicant
would seek an order to be declared the surviving spouse of the late
N.S. (ID No […]) for
the purposes of the administration of the
deceased estate; and
4.3 That
the Office of the Second Respondent be restrained and interdicted to
register the estate, to issue a letter
of authority and/or
executorship and to authorise anyone to be appointed as executor in
the names of the late N.S. (ID No […]),
pending the action
proceedings mentioned above.
[5] The
First Respondent raised three points
in limine:
5.1 The
non-joinder of a private company where the deceased was a co-owner or
Director in whose benefit the vehicle
is alleged to have been
purchased;
5.2 The
locus standi in indicio
of the Appellant as to her marriage to
the deceased was disputed and
5.3 Lack
of urgency of the matter
[6]
The court a quo dismissed the Application on the basis that the
Appellant lacked
locus standi in indicio
without the validity
of her marriage to the deceased being clarified and declared that the
court could in the circumstances not
order the First Respondent to
return the vehicle to the Appellant. The court a quo further found
that there was no indication that
an appointment of an Executor was
imminent therefore it was not necessary to grant an order against the
Second Respondent.
[7] The
Appeal is premised on the following grounds:
7.1 That
the Magistrate was not called upon and cannot determine the validity
of the marriage;
7.2 That
the Magistrate's findings that the validity of the marriage is of
paramount importance to determine the
status of the Appellant to
launch the application for an interdict;
7.3 That
the Magistrate erred in finding that the
locus standi
of the
Appellant could not be established without the validity of her
marriage to the deceased being clarified;
7.4 That
the Magistrate erred in finding that the court cannot order the First
Respondent to return the vehicle
to the Appellant;
7.5 That
the magistrate erred in finding that there was no evidence that the
Second Respondent intended to appoint
an Executor to the estate of
the deceased and
7.6 that
the Magistrate erred in finding that there was a lack of urgency in
the application.
[8] The
relief being sought by the Appellant is as contained in 42 and 4.3
above.
[9] At
the hearing of this appeal it was submitted that action proceedings
had already been instituted at the Regional
Court, Pretoria North, to
have the marriage of the Appellant and the deceased registered in
terms of the Recognition of Customary
Marriages Act. The appeal
relating to the validity of the marriage and the locus standi of the
Appellant was thus moot.
[10] The
only matter for consideration by this court is in relation to the
return of the motor vehicle. The Appellant
seeks the order for the
return/delivery/surrender of the vehicle from the First Respondent in
a bid to protect the asset of the
estate.
[11] The
court a quo found that the Appellant lacked locus standi to institute
such proceedings in that the Appellant
is not the lawful owner of the
vehicle. The vehicle was handed over to the First Respondent by a
Co-owner and/or Co-Director of
a private company in whose benefit the
vehicle is alleged to have been purchased. Neither the company nor
the Director/Co-Director
were joined in the proceedings before the
court a quo.
[12] I
cannot find that the court a quo misdirected itself when it arrived
at the decision to dismiss the application
of the Appellant.
[13] In
the circumstances, I propose the following order be made:
1. The
appeal is dismissed.
2. Each
Party is to pay its own costs, including all reserved costs.
A.K.
RAMLAL AJ
I
agree and it is so ordered
P.
RABIE J
This
judgment was handed down electronically by circulation to the
parties; and/or parties' representatives by email. The date and
time
for hand-down is deemed to be 09h00 on 6
th
APRIL 2021.
Matter
heard on: 18
January 2021
Judgment
granted on: 6
th
April 2021
Appearances:
On
behalf of the Appellant F.S
Kabini and Associates
Instructed
by:
On
behalf of the Respondent Abel
Moeketsane Attorneys Inc