Ngxumali-Thomas and Another v Cokwana and Another (567/2021) [2021] ZAECBHC 13 (6 August 2021)

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[2021] ZAECBHC 13
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Ngxumali-Thomas and Another v Cokwana and Another (567/2021) [2021] ZAECBHC 13 (6 August 2021)

NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, BHISHO)
Case
No. 567/2021
In
the matter between:
NTOMBOMZI
RENET NGXUMALI - THOMAS
First Applicant
NTOMBOMZI
RENET NGXUMALI – THOMAS N.O
(in
her capacity duly appointed as the executrix
in
the estate late Mr MBULELO
THOMAS)
Second Applicant
and
NOMPHELO COKWANA

First Respondent
MASTER OF THE
HIGH
COURT                                                         Second
Respondent
JUDGMENT IN
RESPECT OF APPLICATION FOR POSTPONEMENT
HARTLE
J
[1]
The applicant, both in her personal capacity as well as in her
capacity
as Master’s representative appointed pursuant to the
provisions of
section 18
(3) of the
Administration of Estates Act,
No. 66 of 1965
, brought an urgent application in which she seeks to
interdict the respondents from “unlawfully nullifying” her civil
marriage
to the late Mbulelo Thomas (“the deceased”); declaring
that the first respondent’s claimed customary law marriage to the
deceased
be nullified; that the letters of authority issued to her by
the second respondent on 21 February 2021 pursuant to which she was
authorized to take control of the assets of the deceased be confirmed
as valid; that the first respondent be interdicted from interfering
with her proper administration of the estate; and that an unsigned
will of the deceased (that has recently come to the fore and in
which
she has ostensibly been nominated by the deceased as executor) be
“condoned” and deemed to be  the intended last will
of the
deceased.
[2]
The applicant also seeks a costs order “in the event of
opposition”.
[3]
At the hearing of the matter, it appeared that the Master’s report
required
in terms of the provisions of
rule 6
(9) in “every
application to court in connection with the estate of any person
deceased” was not provided, whereas he was served
with a copy of
the application on 22 July 2021.
[4]
Although the applicant appears on the face of it to be seeking
far-reaching
relief concerning matters of status and a declarator
regarding the unsigned copy of the deceased’s will, the real
essence of the
applicants’ complaint and the immediate urgency
contended for in the application stem from an informal email from an
estate controller
of the Master’s office dated 12 July 2021 which
provides that:
“
You are kindly
requested to return the original letters of Executorship that were
issued to Ntombomzi Renet Thomas.  The marriage
between the
deceased and your client is null and void because at the time he
contracted the second marriage he was still married
to the first wife
and their marriage is in community of property.
We
are expecting to receive those letters within 7 days.  Should
you fail to comply with our lawful request we will have no other
option but to issue fresh Letters of Executorship to the first wife.”
[5]
It is not hard to see why this should have caused the applicants
concern,
especially since the Master has accepted the allegation of a
competitor for the office of executor that the first applicant’s
marriage
to the deceased on 28 March 2013, vouched for by acceptable
proof issued by the Department of Home Affairs, is “null and void”
and that the first respondent’s claimed customary law marriage to
the deceased should instead prevail.
[6]
Even assuming a valid ground, it is not apparent that the Master has
followed
the prescribed procedures outlined in
section 54
of the
Administration of Estates Act for
the first applicant’s removal
from office or for the revocation of his authority for her to take
control of the deceased’s estate
on the basis provided for in
section 18
(3), or on what information his estate controller has
based her “lawful request” to the applicant to return the letters
of authority
to him.
[7]
Mr. Nomvete, who appeared for the applicants, recognized that the
Master’s
report was vital to get to the bottom of the matter and
requested this court, instead of determining the application finally
on the
papers as they presently stand, to instead postpone the matter
and direct the Master to furnish his report.
[8]
Ms. Van Vuuren, who appeared for the first respondent, vociferously
opposed
the application for postponement (which was made from the
bar) and submitted that I should instead strike the application from
the
roll with a punitive costs order against the first applicant for
want of urgency, alternatively dismiss the application as being
without merit.
[9]
The first respondent claims that she was married to the deceased by
customary
law and that this marriage was not dissolved by a decree of
divorce.  Notably she has not alleged that the marriage was
registered
under the
Recognition of Customary Marriages Act, No. 120
of 1998
, but that is neither here nor there as she can still do so.
Confusingly the parties have put up a copy of an abridged marriage
certificate recording the first respondent’s marriage to the
deceased at the Magistrate’s Court, Mdantsane (under the then
Republic
of Ciskei) on 8 February 1985.
[10]
That such a civil marriage appears on the face of the document to
have been concluded (as
opposed to a customary marriage) is
confounded by the fact that the Department of Home Affairs found no
record of an existing marriage
when the first applicant married the
deceased in 2013.  Further, it appears from a deeds search
concerning the immovable property
forming part of the deceased’s
estate, that when he acquired this, before his marriage to the first
applicant, that he did so as
an “unmarried” person.
[11]
Self-evidently competing claims to a marriage with the deceased have
been made.  This
in itself is a significant event with its own
consequences.  There are also children involved and a suggestion
by both the first
applicant and the first respondent that the estate
of the deceased might be subject to customary law.  This may
require the
devolvement of the deceased’s estate in accordance with
the provisions of the Reform of Customary Law of Succession and
Regulation
of Related Matters Act, No. 11 of 2009, read together with
the
Intestate Succession Act, No 81 of 1987
.
[12]
All of this demonstrates overwhelmingly the need to obtain a proper
report from the Master
so that the competing claims of the spouses
can be properly assessed and appropriately dealt with.  No doubt
a proper investigation
will reveal what further review or declaratory
relief may be necessary for the proper administration of justice. I
am therefore not
inclined to dismiss the main application but to
accede to the applicants’ request for a postponement to direct the
Master to furnish
the necessary report.
[13]
Since it is uncertain whether the second applicant’s letters of
authority have in fact
been revoked or replaced by the “fresh
letters of executorship to the first wife”, it appears unnecessary
at this time to issue
any interdictory relief.
[14]
In the result I issue the following order:
1.
The application is postponed
sine die
.
2.
The Master is directed pursuant to the provisions of Uniform
Rule 6
(9) to furnish a report to the court for its assistance within
fifteen (15) days.
3.
A copy of this judgment and order is to be served on the Master
together with a copy of the first respondent’s
opposing papers.
4.
The costs are reserved.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
5 August 2021
DATE
OF JUDGMENT:           6
August 2021*
*Judgement
delivered electronically to the parties by email on this date.
APPEARANCES
:
For
the applicants:   Mr. Nomvete of Nomvete Luwaca Inc., East
London (ref. Mr. Nomvete).
For
the first respondent: Ms. Van Vuuren instructed by Stirk Yazbek, East
London (ref. A James).