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[2021] ZAKZPHC 49
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Mshengu v Estate Late Mshengu and Others (9223/2016P) [2021] ZAKZPHC 49 (6 August 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Not
Reportable
Case
No: 9223/2016P
In
the matter between:
STHEMBILE
MSHENGU APPLICANT
vs
ESTATE
LATE MSHENGU AND OTHERS FIRST
RESPONDENT
MASTER
OF THE HIGH COURT SECOND
RESPONDENT
CAWEKAZI
MERCY MSHENGU N O THIRD
RESPONDENT
CAWEKAZI
MERCY MSHENGU FOUTH
RESPONDENT
ORDER
In
the result the order is made as follows:
1.
The applicant is
entitled to half of the family property that is allotted to her
house, if any.
2.
The applicant is
entitled to one third of the family property that is not allotted to
any of the wives’ house, if any.
3.
The third
respondent is ordered to transfer to the applicant half of the family
property that is allotted to the applicant’s
house if any and
one third of the property that is not allotted to any of the wives’
house if any.
4.
Each party to pay
his or her own costs.
JUDGMENT
Mathenjwa
AJ
Introduction
[1]
The
issues for determination in this matter pertains to the proprietary
system that is applicable to the customary marriage of a
woman who
was party to a polygamous marriage prior to the coming into effect of
the
Recognition of Customary Marriages Act 120 of 1998
.
[2]
The
applicant, Mrs Sthembile Mshengu was married to the deceased, Mr.
Mshengu by customary law in 1972, and the third respondent,
Mrs
Cawekazi Mshengu, was married to the deceased, firstly by customary
law in 1981, and later by civil marriage in community of
property and
in profit and loss in 1994. The deceased passed away on 20 June 2016
leaving a will wherein he bequeathed his entire
estate to the third
respondent. The deceased’s will was accepted by the Master of
this Court, and the third respondent was
appointed as the executrix
to the deceased’s estate.
[3]
The
applicant instituted these proceedings seeking an order that the
estate of the deceased be liquidated, distributed fairly in
accordance with customary law and the Master of this Court be
directed to divide the deceased’s estate equally between the
applicant and the third respondent. This claim is grounded on the
contention by the applicant that the proprietary system applicable
to
her customary marriage is in community of property therefore she was
entitled to half of the deceased’s estate. The third
respondent
opposed the application and contended that the applicant and the
deceased were married by customary law in 1972 when
section 22(6) of
the Black Administration Act 38 of 1927 was applicable to their
marriage, therefore, her marriage was out of community
of property,
and of profit and loss. It is further contended that the deceased
deposed to a will and bequeathed his entire estate
to the third
respondent, therefore the applicant has no claim against the
deceased’s estate.
[4]
The
third respondent averred in her pleadings that the applicant was no
longer married to the deceased at the time of the deceased’s
death, the applicant and the deceased had already divorced and they
were no longer staying together as husband and wife when the
third
respondent married to the deceased by customary law in 1981 until the
death of the deceased in 2016. However, at the hearing
of this matter
the third respondent’s legal representative advised that the
legal representative of the applicant has shown
him the marriage
certificate of the applicant and the deceased and therefore he
formally withdrew the contention that the applicant
was no longer
married to the deceased at the time of his death, but still insisted
that when the third respondent married the deceased
by customary
rites in 1981, the applicant was no longer staying with the deceased
as husband and wife until the deceased’s
death in 2016.
[5]
The
applicant placed on record that she was not challenging the validity
of the civil marriage between the third respondent and
the deceased
and she was not challenging the validity of the will in terms of
which the deceased bequeathed his entire estate to
the third
respondent. It’s appropriate to point out that section 22(1) of
the Black Administration Act permitted a man, who
was a partner in a
customary marriage, to contract into a civil marriage with another
woman. That section was amended by the Marriage
and Matrimonial
Property Amendment Act 3 of 1988. Subsection 1 of the amended Act
provided that:
‘
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’.
Subsection
2 provided that:
‘
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’.
The
subsections were repealed
by
the
Recognition of Customary Marriages Act which
came into effect on
5 November 2000.
Section 10(1)
of the
Recognition of Customary
Marriages Act prevented
a man from contracting a civil marriage with
a woman if either of them is a spouse in a subsisting customary
marriage with each
other.
[6]
The
civil marriage between the deceased and the third respondent
contracted in 1994, when the contracting of such marriage while
a man
was a partner to a customary marriage with another woman, was
prohibited. In
Netshetuka v Netshetuka and
another
2011 (5) SA 453
(SCA) the Supreme
Court of Appeal declared invalid a civil marriage contracted while a
man was a partner in existing customary
union with another woman. It
follows that the civil marriage between the deceased and the third
respondent ought to be a nullity,
if it was contracted while the
deceased was a partner in a customary marriage with the applicant.
However, the parties have not
made submissions before the court on
the validity or invalidity of the third respondent’s civil
marriage, probably because
the applicant was not seeking for an order
nullifying the civil marriage between the deceased and the third
respondent. Considering
the contention by the third respondent that
the applicant was no longer living with the deceased as husband and
wife, at least
since 1981, until the deceased’s death in 2016,
it is possible that the civil marriage could be a putative marriage
with
all the consequences of a valid marriage, it would amount to a
putative marriage if, both the deceased and the third respondent,
or
only one of them, honestly believed that the applicant and the
deceased were divorced at the time of contracting the civil marriage.
[7]
The
position is that this court is seized with a polygamous marriage
involving two women who were married to the deceased at the
time of
his death. Even if the civil marriage was not valid, the third
respondent would still be married to the deceased by virtue
of the
customary marriage contracted by the parties in 1981. If the civil
marriage was a nullity, then the customary marriage between
the
deceased and third respondent would be revived. This view is
supported by
Netshetuka
para 13 where it was held that although the deceased’s civil
marriage may have terminated his customary marriage with his
wives
the customary marriages were revived after the deceased’s
divorced with the wife he was married to by civil rites.
Therefore,
if the third respondent was not legally married to the deceased by
civil rites she would still be legally married to
the deceased by
customary marriage that was contracted before the civil marriage.
[8]
Although
the court was not required to make a declaration on the validity of
the civil marriage, the legal position of such marriage
could not be
overlooked in determining the proprietary system applicable to the
marriage of the applicant. Given the uncertainty
about the validity
of this marriage the court cannot with certainty determine which
proprietary system is applicable to the third
respondent’s
marriage with the deceased.
[9]
Before
exploring the matter any further, it is appropriate to hint to the
duty imposed on legal practitioners presenting cases before
the
courts to prepare and assist the court in arriving at an informed and
just decision. It’s not proper for the legal practitioners
to
simply make submissions to court without supporting their submissions
with a single relevant authority including legislation,
case law or
other persuasive sources in a case of this nature involving
a
dispute on
the deceased’s estate and
the proprietary system that is applicable to the customary marriage,
especially when there is plethora
of authorities in support of or
against their submissions. Litigants pin their hopes to the legal
practitioners as professionals
in court litigation for proper
execution of their case before the courts. For this reason, legal
practitioners are expected at
the most to have consulted basic
sources that are relevant to the case before court.
[10]
I
now turn to consider the matrimonial property system applicable to
the customary marriage between the applicant and the deceased.
The
proprietary system applicable to
polygamous customary marriages
[11]
In
support of his submission, that the customary marriage between the
applicant and the deceased was in community of property, the
legal
representative for the applicant refers this court to
Bhe
and others v Magistrate, Khayelitsha Magistrate and
others (Commission for Gender Equality as
amicus curiae) and A Similar Case
[2004] ZACC 17
;
2005 (1) SA
580
(CC) where it contended that all marriages of black people which
were concluded in terms of the repealed section 22(6) of the Black
Administration Act were declared to be in community of property. The
legal representative for the third respondent on the other
hand
contended that the marriage was out of community of property because
the provisions of the
Recognition of Customary Marriages Act provides
that all customary marriages concluded prior to the coming into
effect of this act were and are still out of community of property.
[12]
The
factual circumstances of
Bhe
are different from this one. The
Bhe
case
dealt with the constitutionality of the indigenous law of succession,
not with the proprietary system that is applicable to
customary
marriages. Furthermore,
section 22(6)
of the repealed Black
Administration Act did not regulate the proprietary system applicable
to a customary marriage, but it regulated
the proprietary system
applicable to marriages of black people who were married by civil
rites
.
The matrimonial property system for black people who were married by
civil
rites
was considered
in
Sithole
and another v Sithole and another
[2021] ZACC 7
;
2021 (6) BCLR 597
(CC)
where
the default position created by section 22(6) of the Black
Administration Act and maintained by
the
Matrimonial Property Act 88 of 1984
was
addressed. The
Constitutional Court declared
section 21(1)
(a)
of the
Matrimonial Property Act unconstitutional
and invalid to the
extent that it maintained and perpetuated the discrimination created
by section 22(6) of the Black Administration
Act, in respect of
marriages of black couples, entered into under the Black
Administration Act before 1988. These marriages were
declared to be
automatically in
community
of
property and of profit and loss.
[13]
All
customary marriages are regulated by the
Recognition of Customary
Marriages Act. Section
7(1) of the
Recognition of Customary Marriages
Act provided
that:
‘
The
proprietary consequences of a customary marriage entered into before
the commencement of this Act continue to be governed by
customary
law.’
Section
7(2) of the Act provided that:
‘
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.’
[14]
Customary
marriages in KwaZulu-Natal were regulated by KwaZulu Act on the Code
of Zulu Law 16 of 1985 and the Natal Code of Zulu
Law of 1987.
Section 20 of both the Act and the code provided that:
‘
The
family head is the owner of all family property in his family home.
He has charge, custody and control of the property attaching
to the
houses of his several wives and may in his discretion use the same
for his personal wants and necessities, or for general
family
purposes or for the entertainment of visitors. He may use, exchange,
loan or otherwise alienate or deal with such property
for the benefit
of or in the interests of the house to which it attaches, but should
he use property attaching to one house for
the benefit or on behalf
of any other house in the family home an obligation rests upon such
other house to return the same or
its equivalent in value.’
All
customary marriages concluded before the coming into effect of the
Recognition of Customary Marriages Act in
South Africa were marriages
out of community of property and of profit and loss.
[15]
The
constitutionality of the proprietary system applicable to the
customary marriages was considered in
Gumede v
President of South Africa and others
2009 (3)
SA 152
(CC). In this case the Constitutional Court declared
unconstitutional and invalid
section 7(1)
of the
Recognition of
Customary Marriages Act to
the extent that it related to monogamous
customary marriages.
Section 7(2)
was declared invalid insofar as it
distinguishes between a customary marriage entered into after and
before the commencement of
the
Recognition of Customary Marriages
Act, by
virtue of the inclusion of the words ‘entered into
after the commencement of the Act’. Also, both section 20’s
of the KwaZulu Act on the Code of Zulu Law and the Natal Code were
declared unconstitutional and invalid because it provided that
during
the course of a customary union the family head is the owner of and
has control over all family property in the family.
[16]
The
institution of customary marriage anticipates two kinds of marriages
namely monogamous marriages and polygamous marriages.
Gumede
declared unconstitutional and invalid
section 7(1)
of the
Recognition
of Customary Marriages Act only
to the extent that its provision
relates to monogamous customary marriages. The judgment resulted to
all monogamous customary marriages
deemed to be in community of
property, but polygamous marriages contracted prior to the
commencement of the
Recognition of Customary Marriages Act remained
out of community of property.
[17]
On
1 June 2021 the
Recognition of Customary Marriages Act was
amended by
the Recognition of Customary Marriages Amendment Act 1 of 2021 (the
Amendment Act). Section 2(1) of the Amendment Act
amends
s 7
of the
Recognition of Customary Marriages Act, which
now provides that:
‘
(1)
(a)
The
proprietary consequences of a customary marriage in which a person is
a spouse in more than one customary marriage, and which
was entered
into before the commencement of this Act, are that the spouses in
such a marriage have joint and equal-
(i) ownership
and other rights; and
(ii) rights
of management and control,
over
marital property.
(b)
The
rights contemplated in paragraph (a) must be exercised-
(i) in
respect of all house property, by the husband and wife of the house
concerned, jointly and in the best interests
of the family unit
constituted by the house concerned; and
(ii) in
respect of all family property, by the husband and all the wives,
jointly and in the best interests of
the whole family constituted by
the various houses.
(c)
Each
spouse retains exclusive rights over his or her personal property.
(d)
. . .’
Section
3(1) of the Amendment Act provides that:
‘
The
provisions of section 2 of this Act do not invalidate-
(a)
the winding up of a deceased estate that was finalised; or
(b)
the transfer of marital property that was effected,
before
the commencement of this Act’.
[18]
From
the reading of the Amendment Act it transpires that the Act gives
recognition to three separate types of matrimonial property
in a
polygamous marriage entered into before the commencement of the
Recognition of Customary Marriages Act. These
properties are
described according to their allotment or non-allotment to a specific
wife’s house. In customary law the house
is defined as ‘a
separate unit of the family home with its own rights and
responsibilities’ (See
Bekker
Seymour’s Customary Law in South Africa
5ed (1989) at 74).
[19]
Firstly,
there is a family property that is allotted to a specific house. That
property is owned, managed and controlled jointly
by the husband and
wife in that particular house concerned. Secondly, there is a family
property that is not allotted to any of
the wives’ house. That
property is owned, managed and controlled jointly by the husband and
all wives, and thirdly, there
is the exclusive personal property of
each spouse. The spouse concerned has the exclusive ownership, rights
of management and control
to his or her personal property. Finally,
the provisions of the Amendment Act is applicable to all deceased
estates that were not
yet wound up, and to the transfer of marital
property that was not yet effected before the commencement of the
Amendment Act.
[20]
Accordingly,
the Amendment Act is applicable to this matter since the winding up
of the deceased’s estate was not yet finalised
when the Act
commenced on 1 June 2021. The legal representatives of both parties
did not refer to the Amendment Act probably because
it has come to
operation merely two days before the matter was argued in court on 3
June 2021. Consequently, no facts or evidence
was brought before
court on the allotment of, or non-allotment of, properties to the
party’s houses. Therefore, the claim
before this court is not
on identified and described properties, but it’s on the
applicant’s share of ownership to
the deceased’s property
by virtue of her customary marriage to the deceased.
[21]
The
position created by the Amendment Act on the deceased’s estate
is that all spouses, the applicant, the third respondent
and the
deceased had joint and equal ownership over the family property that
was not allocated to any of the wives’ house;
the applicant and
the deceased had joint ownership over the family property that was
allocated to the applicant’s house;
the third respondent and
the deceased had joint ownership of the family property that was
allocated to the third respondent’s
house; and each spouse had
exclusive ownership of his or her personal property. I now turn to
consider the effect of the will to
the party’s ownership of the
family property.
The
effect of the deceased’s will
[22]
Although
the applicant is not challenging the will it is appropriate to point
out that spouses who are married by customary rites
are permitted to
depose to a will and dispose their property accordingly. Section 4(3)
of the Reform of Customary Law of Succession
and Recognition of
Related Matters Act 11 of 2009 permit any person subject to customary
law to depose his or her assets in terms
of a will. The deceased
bequeathed only his estate to the third respondent. Therefore, the
contention by the applicant that the
deceased’s estate should
be liquidated and distributed in terms of customary law is untenable
because the deceased left a
will which is not challenged by the
applicant, and that is already accepted by the Master of this court
as valid. The deceased’s
estate could only devolve in terms of
customary law if the deceased died intestate or the deceased’s
will be declared invalid
(See section 2(1) of the Reform of Customary
Law of Succession and Recognition of Related Matters Act).
[23]
What
is left now to consider and determine is the share of the applicant
to the deceased’s estate, if any. As stated above
there is no
evidence before this court on the allotment or non-allotment of the
family property to a specific house. Furthermore,
no submission was,
made with regard to the interpretation of the Amendment Act on the
proprietary system of a polygamous customary
marriage. Although, the
validity of the third respondent’s civil marriage was not
challenged, given the uncertainty around
the validity of her second
marriage by civil rites, I believe that both wives should be placed
on the same footing with regard
to the matrimonial property
applicable to their marriages. In the post-democratic dispensation
customary marriages are no longer
inferior to civil marriages.
Therefore, woman married in civil rites has no better rights than
woman married in customary rites.
I am mindful of the rights of
spouses to choose their appropriate proprietary system that would
apply to their marriage when they
contract such marriage. However,
the situation was different in the pre-democratic dispensation
because black couples had no choice
on the appropriate proprietary
system that would
apply
to
their marriages. Thus, all their customary marriages were
automatically out of community of property.
[24]
The
Amendment Act created a proprietary system where by a husband and
wife have joint ownership of the property allotted to that
wife’s
house to the exclusion of all other wives, and the husband and all
his wives have joint ownership to the property
not allotted to a
specific house. It follows then that the applicant is entitled to
half of the property that was allotted to her
house if any, and she
is further entitled to one third of the property that was not
allotted to any of the houses. Since all three
spouses had joint
ownership of the later property it follows that each spouse owns one
third of this category of family property.
[25]
There
remains the issue of costs. The circumstances of this case calls for
a deviation from the rule that the successful party should
as a
general rule have his or her costs. The third respondent was not
unreasonable or frivolous in opposing the relief. The position
on the
matrimonial property applicable to polygamous customary marriages has
been recently clarified by the legislator through
the Amendment Act
on 1 June 2021, merely two days before this case was argued in court.
For this reason, I do not believe that
a cost order against the third
respondent is warranted.
Order
[26]
In
the result the order is made as follows:
1.
The applicant is
entitled to half of the family property that is allotted to her
house, if any.
2.
The applicant is
entitled to one third of the family property that is not allotted to
any of the wives’ house, if any.
3.
The third respondent
is ordered to transfer to the applicant half of the family property
that is allotted to the applicant’s
house if any and one third
of the property that is not allotted to any of the wives’ house
if any.
4.
Each party to pay
his or her own costs.
MATHENJWA
AJ
Appearances
Date
of Hearing: 3
June 2021
Date
of Judgment: 6
August 2021
Counsel
for applicants: Mr
Nhlabathi
Applicant’s
Attorneys: LM
Nhlabathi Inc
Mpumuza
Location
Off
Caluza Road
Ezitezi:
Stand Number 18842
Counsel
for third respondent: Mr Tenza
Third
Respondent’s Attorneys: Tenza Attorneys
MRT
House, 11 Stranack Street
Pietermaritzburg