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[2021] ZAMPMBHC 3
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Magagula v Ngutshane and Others (407/2020) [2021] ZAMPMBHC 3 (24 February 2021)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(MPUMALANGA DIVISION,
MBOMBELA)
(1)
REPORTABLE:NO
(2)
OF INTEREST TO OTHER JUDGES
:YES
(3)
REVISED: YES
24/02/2021
CASE
NO: 407/2020
In the matter between:
BEKAPHI
KETSHU MAGAGULA
Applicant
and
MDUDUZI
COMFORT
NGUTSHANE
First Respondent
REGISTRAR
OF DEEDS: MPUMALANGA
Second Respondent
MASTER
OF THE HIGH COURT
Third Respondent
JUDGMENT
MASHILE J:
INTRODUCTION
[1]
This application traces its origins from the death of Mr Makhalatshi
Jackson Ngutshane
(“the deceased”). The deceased
died intestate and was survived by the Applicant, his putative
customary wife,
two biological children, one of whom is the
Respondent. The deceased also had two step children. One of
those children pre-
deceased him while the second is still alive.
Amongst assets left by the deceased is a property described as
Stand No: [….](“the
property”). Following
the deceased’s demise in 2014, the Third Respondent appointed
the First
Respondent as the representative of the
late estate of the deceased.
[2]
In consequence of the First Respondent’s appointment as the
representative of
the late estate of the deceased, he
successfully, ostensibly to the detriment of the Applicant,
registered transfer
of ownership of the property belonging to the
late estate of the deceased in his name. The Applicant and
deceased had lived
together on the property from 1981
until 2014. The Applicant continues to occupy
the
property to date. Having registered transfer of ownership in his
name, in 2019, the First Respondent commenced eviction
proceedings
against the Applicant.
[3]
The Applicant successfully resisted the proceedings to evict her. To
bolster her triumph,
she has now launched this application
seeking relief in the following terms:
3.1
Setting
aside the appointment of the First
Respondent as the Master’s
Representative in the estate of the late MAKHALATSHI
JACKSON
NGUTSHANE that is registered with the Third Respondent
under
reference number 837/2015;
3.2
Reversal of the registration of ownership of the house at [….],
MPUMALANGA
into the name of the First Respondent as
recorded on Deed of Transfer [….] so that the property is
returned
to the deceased estate to be dealt with by a newly
appointed executor;
3.3
The First Respondent be ordered to pay the cost of this application
on the scale
as between attorney and client including the cost of
transfer of the property.
[4]
The Application is opposed by the First Respondent. The Second and
Third Respondents
are not opposing it. It is evident from the tenor
of the application that they are not the intended targets but
that they
have been cited merely because they may be affected
or have interest in the outcome of this judgment. Accordingly, I will
henceforth refer to the First Respondent as the Respondent instead of
the First Respondent.
FACTUAL MATRIX
[5]
The facts from which this matter emanates are largely common cause.
However, what
the parties make of those facts constitutes the essence
of their dispute. The Applicant and the deceased met while they were
living
in Mbombela Township during the 1970’s. According to the
Applicant, she and the deceased married at the old Home Affairs
building in Barberton in 1971. Present at the time of the marriage
was her sister. Matters pertaining to
lobola
payment were only
concluded in 1987. The occurrence of the marriage of the
Applicant and the deceased in 1971 is confirmed
by her sister in an
affidavit while the finalization of the
lobola
is
substantiated by the affidavits of the deceased’s siblings.
[6]
Mbombela Township ceased to exist in 1981. All residents were moved
to
[....]
Consequently,
the Applicant, deceased and their two daughters (deceased’s
step daughters) IDA and RIEKIE), were allocated
the house situated
at Stand [….]. To that end, the family was issued with a
certificate and a permit by the
then
apartheid
‘
Bantu Administration Board of
Eastern Transvaal’. The family has been residing on the
property since. In the interim,
Ida and the deceased died in 1979
and 2014 respectively. In 1998, RIEKIE decided to move out of
the house leaving the Applicant
alone.
[7]
The Applicant avers that it was not until April 2019 that she became
aware of the
Respondent’s ownership of the property that had
been her home for decades. This was confirmed in June 2019 when
she
was served with notice of application of her eviction from the
property along with her tenants dubbed ‘illegal occupants’
by the Respondent. As the proceedings unfolded and the papers
scrutinized, it became clear that the Respondent had
applied
for a letter of authority to the Master of the High Court in
Pretoria in 2015.
[8]
In his application, the Respondent either inadvertently or
deliberately omitted to
mention the Applicant as the
surviving spouse of the deceased. This fact is borne out by the
information contained
in the next-of-kin affidavit wherein the
Respondent does not cite her name. It is common cause that the
deceased lived and
died in [….] and that the First
Respondent’s letter of authority was issued by the Master of
the High Court
in Pretoria. This was aside from the fact that by then
Mpumalanga had its own Master of the High Court office in Nelspruit
now
Mbombela.
[9]
Registration of transfer of ownership of the property was never in
either party’s
name because their occupation
has always been through the permit issued by the authorities.
Notwithstanding
that the Respondent had never resided on the
property during all the years, he still managed to register transfer
of ownership
into his name. It is not seriously disputed that
the municipality value of the property was above R300 000.00
when
the Applicant verified it on the last occasion.
ASSERTIONS OF THE
PARTIES
[10]
The Respondent contends that as one of two biological children of the
deceased and since the deceased
and the Applicant were cohabiting
concubines, he was entitled to be appointed as the Master of the
High Court’s representative
of the deceased’s late
estate. Moreover, his right to register transfer of ownership of the
property into his name had been
supported by his biological sister.
While he admits concubinage for the years alleged by the
Applicant, he attaches no significant
legal consequences
flowing therefrom.
[11]
The Respondent challenges, albeit not in so many words, the
allegations that the Deceased and the Applicant
concluded a marriage
relationship in Barberton in 1971. His main objection is that the
Applicant claims that they did so at the
old Home affairs in
Barberton but she attaches no proof from Home Affairs. Furthermore,
although she would have this Court believe
that the second leg of
lobola
was concluded in 1987, the document intended to serve
as acknowledgment of receipt of
lobola
firstly, does not bear
the names of messengers from both families, secondly, it does not
show what the agreed amount on
lobola
was and thirdly, how
much was initially paid towards
lobola
.
[12]
The Applicant has furnished names of her siblings and those of the
deceased as witnesses to their marriage
whereas custom prescribes
that it is aunts and/or uncles who would be involved in
matters concerning
lobola
negotiations. Besides, the
application for the registration of the ostensible marriage was only
made in 2019 after he had
applied for the applicant’s
eviction from the property. The Respondent concludes from the
above that there was therefore
no marriage between the parties.
[13]
The Respondent is also adamant that he is entitled to inherit the
intestate estate in terms of the
provisions of section 1(1)(b) of the
Intestate Succession Act No 81 of 1987 (“the
Intestate
Succession Act&rdquo
;). In essence, the provision is that where a
deceased person is survived by a descendant and not a spouse, the
descendant is entitled
to inherit the deceased estate. Believing that
the Applicant was not married either customarily or civilly, the
Respondent, maintains
that neither she nor her daughter is competent
to inherit.
[14]
The Respondent contends that if this Court accepts that a marriage
between the deceased and Applicant
was in place as alleged, the court
should find that the marriage was out of community of property as
wives, in customary unions
entered into before the commencement
of the Recognition of Customary Marriages Act No 120 of 1998
(“Recognition
Act”) had no joint ownership of property
with their husbands. The provisions of section 7(1) of the
Recognition Act
are applicable to such marriages and the
marriage claimed by the Applicant falls under this category.
[15]
Given the above, the Applicant would only be entitled to inherit a
child’s share in terms of
Section (1)(1)(c) of the
Intestate
Succession Act, which
provides that a spouse in the position of the
Applicant would be entitled to inherit the whole amount set by
the Minister
from time to time or if the deceased’s estate is
larger than the amount so determined by the Minister from time
to
time, a person in the position of the Applicant shall
inherit a child’s share of the amount in excess.
[16]
The Respondent asserts that there exist genuine disputes of fact that
go to the heart of the alleged
marriage. This is in the light of the
Applicant conceding that the purported marriage was not registered
and there being no proof
of any payment of lobola.
The
court should accordingly find that no such marriage ever existed.
[17]
Conversely, the Applicant asserts that available evidence
demonstrates that a customary marriage,
albeit not registered,
existed between the deceased and Applicant. The Applicant is
specifically mentioned by name by the
authorities in the certificate
concerning the deceased’s property at [….] as the wife
of the deceased.
Furthermore, at no stage did the
Respondent live in the property since allocation to the deceased and
Applicant.
[18]
Apart from the fact that the Respondent had knowledge of the deceased
and Applicant’s concubinage
for all those years, he would not
mention her as a surviving spouse in the ‘next of kin
affidavit’. The Applicant
submits that had the Master of the
High Court been aware of her existence, the Respondent would not
have been appointed as the
Master’s representative in the
estate late of the deceased.
[19]
The office of the Master of the High Court: Mpumalanga in Mbombela,
opened its doors to the public
in 2012. Thus, when the deceased died
in 2014 it was in operation already. Given those facts, the
Applicant finds it curious that
instead of opening an estate late
file of the deceased in Mbombela with the Master of the High Court,
the Respondent deliberately
chose to open it with the Master of the
High Court in Pretoria.
[20]
The person who repudiates the Applicant’s inheritance (the
Respondent) does not appear
anywhere on the certificate in
support of the deceased’s occupation of the property. The
Deceased was the holder of
the Certificate but was not the owner
of the property. The deceased became entitled to acquire ownership of
the property
through the introduction of the
Upgrading of
Land Tenure Rights Act 112 of 1991.
[21]
Other than the above, the Applicant contends that since she has been
in occupation of
the property for more than 30 years, in
terms of Section 1 of the Prescription Act No. 68 of 1969 (“the
Prescription Act”),
she has automatically acquired
ownership. The Applicant has acquired 50% of the property because she
has spent most
of the period in excess of 30 years living in a
marriage in community of property with the deceased.
ISSUES
[22]
It is apparent from the above facts and arguments of the parties that
this Court ought to decide
on the following:
22.1
Were the deceased and Applicant customarily married?
22.2
Assuming that they were, what are the legal proprietary implications
that flowed
therefrom insofar as intestate
succession is concerned?
22.3
Does
Section 1
of the
Prescription Act find
application in this
matter?
22.4
Are there issues that require referral to oral evidence caused by
disputes of fact?
LEGAL FRAMEWORK
[23]
Customary marriages are governed by the Recognition Act. As such, any
discussion on this subject
should begin with the preamble to
the Recognition Act especially as it sets the tone in which the
inequalities, inequities and
indignities to which customary wives
were subjected ought to be addressed. The relevant portions of the
preamble provide as follows:
“…
to
regulate the registration of customary marriages; to provide for the
equal status and capacity of spouses in customary marriages;
to
regulate the proprietary consequences of customary marriages and the
capacity of spouses of such marriages; to regulate the
dissolution of
customary marriages;”
[24]
Section 2 of the Recognition Act lays down that: “
A
marriage which is a valid marriage at customary law and existing at
the commencement of this Act is for all purposes recognised
as a
marriage.”
[25]
Section 4(9) states that failure to register a customary marriage
does not affect the
validity of that marriage. Section 6
provides:
“
A
wife in a customary marriage has, on the basis of equality with her
husband and subject to the matrimonial property system governing
the
dispose of them, to enter into contracts and to litigate, in addition
to any rights and powers that she might have at customary
law.”
[26]
Section 7 is headed,
Proprietary consequences
of customary marriages and contractual capacity of spouses, and it
states:
“
(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.”
EVALUATION
EXISTENCE OF
CUSTOMARY MARRIAGE
[27]
The Respondent challenges the fact that the Applicant and deceased
ever concluded a marriage but admits
that they had lived together
for approximately 43 years before the demise of the deceased in
2014. It is common cause that thereafter
the Applicant continued to
live on the property to date. The existence of the customary
marriage between the two parties should
not occupy this Court for
long because there are several pieces of evidence to which to turn to
determine its existence.
[28]
Firstly, the certificate issued in terms of Proclamation 293/1962,
Chapter 2, Regulation 8(1) in terms
of the Native Trust and Land Act
18 of 1936 which provided for the establishment of the kind of
township that [….] was
during 1981 specifically cites the
Applicant as the wife of the deceased. It must be right to infer that
prior to issuing the certificate
and populating it with information,
the authorities would have taken the trouble of establishing the
marital status of
the Applicant and deceased because the
system had entrusted them with such duty. They investigated
and were satisfied that
the Applicant and deceased were customarily
married.
[29]
The fact of the existence of the customary marriage is supported even
by people who would have ordinarily
declined to side with the
Applicant. These are the cousin of the deceased and his sister,
Sambile Beauty Magagula. Why would
they, as blood relations of
the deceased, confirm that the deceased and Applicant were married
when they were not. In the
circumstances, it is reasonable to
conclude that the deceased and Applicant were in fact
customarily married.
[30]
It is inconceivable that the Applicant and deceased could have lived
together for 43 years without
a marriage. Even if they were not
married, it is this Court’s opinion that it will be in
the interest of fairness and
justice that the relationship between
them be recognized and that certain proprietary consequences
should flow therefrom.
The reason for this is plain – the
lives of people who had lived together for that long would be
inextricably connected
in so many ways. One matter that comes to mind
is ownership of their properties. The parties would have bought and
sold properties
together. As such, their lives would be
intertwined and to undo it upon the death of the other would in this
instance amount to
total injustice.
[31]
I note the criticism of the Respondent that the court cannot ‘turn
a blind eye’ to the
absence of certain of the
requirements necessary for the existence of a valid customary
marriage. The Respondent points
to lack of any form of proof from
the Old Home Affairs in Barberton verifying the conclusion of the
marriage between the
parties. Furthermore, argues the
Respondent, the Applicant mentions her siblings and those of the
deceased as witnesses of the
customary marriage when it is the uncles
and aunts who would usually act as delegates in such matters.
[32]
Rigorous adherence to all the requirements of a customary marriage
may, in certain instances, result
in absurdity. The Applicant and
deceased have spent 43 years living, for all intents and purposes, as
husband and wife yet upon
one of them dying, the survivor is
still expected to produce
lobola
receipts that were
prepared approximately 50 years ago. As though that was not
sufficiently farcical, the Applicant is expected
to remember who
negotiated
lobola
and how much was
paid all those years back.
[33]
All this, in the face of relatives of the deceased, his sister and
cousin, confirming that the parties
lived together as husband and
wife. Why would they recognize the deceased’s marriage to
the Applicant if it did not
happen? Confirmation of the marriage by
the deceased’s step daughter, Riekie, and the Applicant’s
sister although
not independent witnesses, is significant.
[34]
It cannot be treated insouciantly especially in circumstances where
it corroborates what has already
been verified by the deceased’s
own relatives. The requirements to which the Respondent refers and
with which he expects
compliance pale into nihility when compared to
the 43 years of the parties’ life together. This Court’s
assessment
of the facts and circumstances thus leads to the
inexorable conclusion that the parties were customarily married.
PROPRIETORY LEGAL
CONSEQUENCES OF A CUSTOMARY MARRIAGE
[35]
Having quoted the preamble
supra
,
I should immediately state that Section 7(1) of the Recognition Act
has been declared unconstitutional. The current position is
that
subject to Parliament amending the legislation, the order of the
Constitutional Court in
Gumede
v President of the Republic of South Africa and others
[1]
governs
the legal position. The application of Section 7(1) in Gumede
would have meant that the parties’ customary marriage
would have been subjected to the dictates of the discriminatory Zulu
customary laws, which made a customary wife before the
Recognition of
Customary Marriages Act incompetent
to lay a claim on the family
property either during the subsistence thereof or upon dissolution. I
must immediately add that the
Zulu customary laws in this context are
not distinctive as they are echoed almost throughout the South
African legal systems regulating
customary marriages.
[37]
The applicant in the Gumede case approached court contending that
Section 7(1)
was unconstitutional insofar as it sought to
distinguish between the patrimonial consequences of monogamous
customary marriages
depending on whether they were entered into
prior or after the introduction of the Act. The basis of the argument
was that the
distinction amounted to unjust discrimination founded on
gender and race against customary wives. T
he
court proceeded to hold that these provisions discriminate on the
basis of gender as only women in a customary marriage are subject
to
these unequal proprietary consequences. The provisions were as such,
declared discriminatory and indefensible.
[38]
The court also held that the subjection of a customary wife in
KwaZulu-Natal to her husband's marital
power, the husband's exclusive
ownership and control of all family property unfairly discriminated
against women on the ground
of their gender. Customary wives were on
the basis of those provisions subject to the unequal consequences of
'old' customary marriages
as they were considered incapable of
holding or controlling, or unfit to hold or control, property. In
that manner, the customary
wives are rendered vulnerable because they
are stripped of their dignity, disadvantaged and dependent. Holding
that all customary
marriages would henceforth be in community of
property regardless of the date of their conclusion, the court stated
at Paragraph
51:
“
For
several good reasons, it would not be just and equitable to limit the
retrospective effect of the declaration of invalidity.
Suffice it to
point to three reasons only. First, the Recognition Act has provided
for customary marriages since 15 November
2000 to be in community of
property. It would not be just and equitable to order that the
declaration of invalidity should have
a prospective effect only,
when the equality challenge relates to pre-recognition marriages. In
other words, a prospective
order would not grant any, or
effective, relief to wives in marriages concluded before the start of
the Recognition Act. Second,
whilst the Recognition Act is remedial
in purpose, the provisions of so 7(1) and (2) of the Recognition Act
are improperly under-inclusive.
The discrimination they spawn is so
egregious that it should not be permitted to remain on our statute
books by limiting the retrospective
operation of the order we are to
make, or even by suspending the order of invalidity to allow
parliament to rectify the error.
Third, the retrospective regime
which the order would permit is properly aligned to the prospective
regime created by parliament
in the Recognition Act in relation to
post-recognition marriages. The effect of the order we are to make is
that all customary
marriages would become marriages in community of
property. The recognition of the equal worth and capacity of all
partners in customary
marriages is well overdue and no
case has been made out as to why it should be delayed any further.”
[39]
Counsel for the Respondent would, the decree of the court in Gumede
at Paragraph 51
supra
notwithstanding,
have this Court believe that the unconstitutionality of Section 7(1)
means that the old customary law position
still pertains. I will for
now assume that Counsel for the First Respondent was oblivious of the
outcome of the Gumede judgment
and its retrospectivity on a
ll
customary marriages being in community of property. The Gumede case
was referred and confirmed in another Constitutional Court
case of
Ramuhovhi
and others v President of the Republic of South Africa and others
[2]
.
Accordingly,
I am bound to follow in the footsteps of the Constitutional Court and
hold that the marriage between the parties was
one in community of
property it being immaterial whether it was registered or not.
ACQUISITION OF
OWNERSHIP THROUGH PRESCRIPTION
[40]
Section 1
of the
Prescription Act provides
that ‘Subject to the
provisions of this Chapter and of Chapter IV, a person shall by
prescription become the owner of a
thing which he has possessed
openly and as if he were the owner thereof for an uninterrupted
period of thirty years or for a
period which, together with any
periods for which such thing was so possessed by his predecessors in
title, constitutes an uninterrupted
period of thirty years.’
Section 20
of the same Act states that ‘in so far as any right
or obligation of any person against any other person is governed by
Black law, the provisions of this Act shall not apply.’
[41]
The Applicant argued that even if this Court were to rule that she
was not customarily married
to the deceased and that the
deceased’s estate could not devolve upon her, she
would still be entitled to ownership
of the property as she has been
in occupation of it for more than 30 years. In view of this Court’s
decision on the existence
of the customary marriage between the
deceased and Applicant, this Court is not categorically required to
express any opinions
on the subject. Perhaps it is best left to a
more suitable moment in the future when another court becomes seized
of the subject.
DISPUTES OF FACT
[42]
It would appear that the Respondent thinks that disputes of fact
would suddenly materialise
by simply wishing them. That cannot
be so and it is fallacious. Disputes of fact
must be
bona
fide
.
I am reminded in this regard of what the Supreme Court of
Appeal said at Paragraph 12 of
Wightman
v Headfour (PTY) LTD
[3]
“
Recognising
that the truth almost always lies beyond mere
linguistic determination the courts have said that an applicant
who seeks final relief on motion must in the event of conflict,
accept the version set up by his opponent unless the latter’s
allegations are, in the opinion of the court, not such as to raise a
real, genuine or bona fide dispute of fact or are so far-fetched
or
clearly untenable that the court is justified in rejecting them
merely on the papers:
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
634E-635C
. See also the analysis
by Davis J in
Ripoll-Dausa v
Middleton NO
[2005] ZAWCHC 6
;
2005 (3) SA 141
(C)
at 151A-153C
with which I
respectfully agree. (I do not overlook that a reference to evidence
in circumstances discussed in the authorities may
be appropriate.)”
[43]
The disputes of fact to which the Respondent refers is his
contestation of the parties’ customary
marriage. It has been
demonstrated that contrary to the Respondent’s belief,
the deceased and Applicant were married.
The fact that the
Respondent disagrees does not bring about genuine disputes of fact.
Accordingly, there is no merit in the Respondent’s
assertion
concerning disputes of fact and it is rejected.
[44]
In consequence of the finding that there was a customary marriage
between the Applicant and
deceased and that there are
proprietary consequences that flow therefrom, I see no need to deal
with how the deceased’s
estate is to devolve upon his
survivors. That is left to the relevant Master of the High Court to
deal with. In the premises,
I regard the order below as
appropriate.
ORDER
1
T
he appointment of the Respondent as the
Master’s Representative in the estate of the deceased that is
registered with the
Third Respondent under reference number 837/2015
is set aside;
2
The registration of ownership of the house at [….] MPUMALANGA
into
the name of the First Respondent as recorded on Deed of Transfer
[….] is reversed and the property is returned to the deceased
estate to be dealt with by a newly appointed executor executrix;
3
The First Respondent is directed to pay the costs of this
application.
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
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 24 February 2021 at 10:00.
APPEARANCES:
Counsel
for the Applicant:
Mr
MG Boshoff
Instructed
by:
Tollig
Attorneys
Counsel
for Respondent:
Adv
K Shai
Instructed
by:
BV
Mbungela Attorneys
Date
of Hearing:
10
December 2020
Date
of Judgment:
24
February 2021
[1]
2009
(3) SA 152 (CC)
[2]
2018
(2) SA 1 (CC)
[3]
[2008] ZASCA 6
;
[2008]
2 All SA 512
(SCA)