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[2020] ZALMPPHC 65
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S v Mushwana and Others (935/2015; HCAA13/2019) [2020] ZALMPPHC 65 (19 August 2020)
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REPUBLIC
OF SOUTHAFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED
COURT
A QUO
CASE
NO: 935/2015
APPEAL
CASE NO: HCAA13/2019
In
the matter between:
KANAKANA
LENGTON MUOFHE
FIRST APPELLANT
NDIVHUWO
MARTHA MUOFHE
SECOND APPELLANT
THINAVHUYO
SANDRA MUOFTHE
THIRD APPELLANT
and
LUCIA
MPOSI, NO
RESPONDENT
JUDGMENT
NAUDE
AJ:
[1]
This is a full court appeal against the
Judgment of Semenya AJ (as she then was) handed down on 29 April 2016
in the Limpopo Local
Division, Thohoyandou.
[2]
The Appellants in this matter were the
Respondents in the Court a
quo
and
the Respondent herein was the Applicant. The parties herein are
referred to as in the
court
a
quo
in
order to maintain harmony with the record before this court.
Background:
[3]
Masilu Ben Mposi
("the
deceased”),
was married to
Ndivhuhu Martha Muofhe (2
nd
Respondent) in accordance with customary law. From the customary
marriage relationship between the deceased and the 2
nd
Respondent, two children were born, namely, Kanakana Lengton Muofhe
(1
st
Respondent) and Thinavhuyo Sandra Muofhe (3
rd
Respondent). The customary marriage between the deceased and the 2
nd
Respondent was dissolved during the period 1986/1987.
[4]
The deceased entered into a relationship
with Azwindini Lisbeth Rasikhanya and later married her in accordance
with customary law.
From the customary marriage between the deceased
and Azwindini Lisbeth Rasikhanya
("the
deceased 's wife"),
one child
was born, Lucia Mposi (the Applicant.)
[5]
The deceased passed away on 17 July 2002
intestate. On or about 16 September 2002 the deceased's family,
including the deceased's
wife appeared at the Magistrate's Office,
Thohoyandou to report the deceased's estate.
[6]
In terms of Regulation 4(1) of the
Regulations published under GK R200 of 6 February 1987, and on 4
October 2002, the deceased's
wife was appointed to represent the
estate of the deceased, to assume responsibility for the collection
of the assets, to pay all
claims to the value of the assets in the
estate and to award the balance of the estate, including the
immovable property to the
rightful heir(s).
[7]
On 27 December 2002, the Magistrate who
supervised the deceased estate ordered the division of the proceeds
of the estate in the
amount of R6878.22 as follows:-
a)
the deceased's wife (widow), to be paid
an amount of R4484,11.
b)
the balance to be paid to the mother of
the three children with the deceased namely, Mpho, Kanakana and
Thinavhuyo Mposi.
[8]
The
Magistrate bequeathed a child's share to a third child, Mpho, who is
not a party to the proceedings and does not seem from the
affidavit
deposed to by Maria Mposi, the sister of the deceased, to be one of
the deceased's children.
[9]
From
Maria Mposi's affidavit the deceased only had three children,
namely:-
a)
Lucia Mposi
b)
Kanakana Lengton Muofhe, and
c)
Thinavhuyo Sandra Muofhe.
[10]
As already stated here above, Mpho is
not a party to the proceedings and except for the order of the
Magistrate Thohoyandou on 27
December 2002, does not appear anywhere
in any of the documents before this court. It seems the Magistrate
erred in this regard.
[11]
The winding up of the estate of the
deceased was only partially done as the issue of devolution of the
immovable property situated
at [….] ("the property"),
which formed part of the estate was still pending.
[12]
Prior to the finalization of the estate
of the deceased, the deceased's wife, passed away intestate on 5
January 2013. The Applicant
reported the deceased's wife estate at
the Master of the High Court, Thohoyandou on 15 January 2013 and was
the Applicant appointed
and authorised to take control of the assets
of the Estate of the late Azwindini Lisbeth Rasikhanya.
[13]
The estate of the deceased's wife
consisted to the knowledge of the Applicant of the following assets:-
a)
Proceeds of a Standard Bank Account No
[….];
b)
Proceeds of a Nedbank Account No [….];
c)
Proceeds of a FNB Account No. [….];
d)
Household and Furniture;
e)
Nissan Motor Vehicle.
Only during May 2015 was the
Applicant informed that the property, House No [….], was to be
included as part of the deceased's
wife estate. It was only then
discovered by the Applicant that the immovable property was not dealt
with whilst the deceased's
wife was still alive in the distribution
of the deceased's estate.
[14]
The Applicant whilst in the process of
transferring the immovable property into her name, discovered that
the 1st Respondent purportedly
acquired ownership of the immovable
property through inheritance. It is this registration and ownership
of the immovable property
that gave rise to the Applicant's
application in the
court
a
quo
before
Semenya AJ. The Applicant avers that the immovable property belongs
to her as she is the sole heir of the deceased's wife
estate.
[15]
The Respondents aver that the immovable
property does not belong to the Applicant as she is not the
deceased's daughter, but to
the family of the deceased and in terms
of a redistribution agreement was awarded and registered into the
name of the 1st Respondent.
[16]
It is common cause between the parties
that the Magistrate's Office Thohoyandou never dealt with the
immovable property during the
distribution of the cash assets.
[17]
Whilst the estate of the deceased was
not finalized by the Magistrate Thohoyandou, the 1
st
Respondent proceeded to report the estate to the Master of the High
Court, Thohoyandou (4th Respondent in the court a
quo)
and was the 1
st
Respondent appointed as executor of the estate of the deceased.
[18]
The 1
st
Respondent in his capacity as executor of the deceased estate as
appointed by the 4
th
Respondent, prepared a liquidation and distribution account which was
accepted by the 4
th
Respondent and was the transfer of the immovable property to the 1
st
Respondent done with the approval of the 4th Respondent.
[19]
The
4
th
Respondent, the Master of the High
Court, acknowledged the contravention of the Constitutional Court
Order in
Bhe v Magistrate,
Khayelitsha
[2004] ZACC 17
;
2005 (1) SA 580
CC
and
regret to have administered the estate of the deceased.
Facts
and Case Law:
[20]
The deceased and the deceased's wife
entered into a monogamous customary marriage. This is so because by
that time the customary
marriage between the deceased and the 2nd
Respondent had already been terminated.
[21]
In
Gumede
v President of the Republic of South Africa and Others
2009 (3) BCLR
243
(CC)
it was held that a
monogamous customary marriage will automatically be in community of
property unless it is stipulated otherwise
in an ante-nuptial
contract whether or not the marriage was registered and whether or
not the marriage was entered into before
or after the
Recognition of
Customary Marriages Act, 120 of 1998
, came into existence.
[22]
The deceased and the deceased's wife
were thus married in community of property. Half of the deceased's
estate belonged to the deceased's
wife by virtue of the marriage in
community of property and the other half to the deceased, which half
could be bequeathed to the
heirs of the deceased.
[23]
This court is not going to deal with the
division of the estate as same has already been dealt with by the
Magistrate Thohoyandou
despite this court being of the view that the
Magistrate erred in her award and furthermore in awarding a child's
share to Mpho.
This court is of the view that the full estate of the
deceased should have been devolved to the deceased wife. This court
does
however not sit as a review court of the order of the Magistrate
granted on 27 December 2002 and this is a remark in obiter.
[24]
It is common cause that the deceased
passed away intestate on 17 July 2002. In terms of
Section
1(1
)(c)(i)
of
the Intestate Succession Act,
if a
person dies intestate and is survived by a spouse and descendants,
the spouse will inherit a child's share of the intestate
estate or so
much of the estate as does not exceed R250 000.00 (two hundred and
fifty thousand rand}, whichever is the greater.
The amount of R250
000.00 was amended from the previous R125 000.00 on 14 November 2014.
For purposes of the deceased estate, the
applicable amount is still
R125 000.00 (One Hundred Twenty Five Thousand Rand).
[25]
The amount to which the surviving spouse
is entitled in terms of the applicable matrimonial property regime is
deducted first. The
balance of the intestate estate after liabilities
were settled, is divided.
[26]
At date of death of the deceased, the
immovable property was valued at R200 000.00 (Two Hundred Thousand
Rand). The deceased's wife
should have received 50% (fifty percent),
in other words R100 000.00 (One Hundred Thousand Rand) of the value
of the immovable
property by virtue of the marriage as in community
of property and the remaining 50% (i.e R100 000.00) was to devolve to
the surviving
spouse and the descendants in terms of
Section
1(1)(c)(i)
of the
Intestate Succession Act 81 of 1987
.
As
the remaining 50% of the estate of the deceased was less than R125
000.00 the full 50% share should have devolved to the deceased's
wife.
[27]
This court is therefore of the view that
had the estate of the deceased been finalized by the Magistrate
Thohoyandou, the immovable
property would have devolved to the
deceased's wife and the property was no longer the deceased's
property at the time the 1st
Respondent opened an estate with the
4
th
Respondent in 2014.
[28] The
Applicant as sole heir of the deceased's wife, who has since also
passed away intestate, is the
rightful owner of the immovable
property known as [….] in terms of
Section
1(1)(b)
of the
Intestate Succession Act, 81 of 1987
.
[29] This
court will now deal with the question whether the matter should be
referred back to the Magistrate's
Court Thohoyandou to finalize the
estate of the late Mailu Ben Mposi or to the Master of the High
Court, Thohoyandou.
[30]
In
Moseneke
and Others v The Masters and Another
2001 (2) SA 18
CC
the
Constitutional Court in paragraph 24 declared
section 23(7)(a)
and
regulation 3(1) of the The Black Administration Act inconsistent with
the Constitution and invalid.
[31]
In paragraph 27 of the
Moseneke-case
supra
the
Constitutional Court held as follows:-
"It
was
common
cause that transactions already completed under the regulation and
section should not be disturbed. It was also agreed that
a
period of two
years would be appropriate to enable parliament to review the whole
field of
succession
and
administration of deceased estates in an harmonious and effective
manner which would fully respect the rights entrenched in
the
Constitution. The difficulty
was
how to protect
rights in the interim period. To subject the families of black people
who die intestate to the continuing indignity
of racist treatment
would not be acceptable. The order that this Court makes
as
a
temporary
measure gives all African families
a
choice in
circumstances where
a
member of the
family dies intestate and the estate is not governed by the
principles of customary law. They can require the Master
to
administer the deceased estate
as
provided for in
the Administration of Estates Act, or else opt for the cheaper and
more accessible process under the control of
the local magistrate, as
regulated by the Black Administration Act. This choice is achieved by
giving immediate effect to the invalidation
of section 23(7)(a), but
suspending the declaration of invalidity in respect of regulation
3(1) for two years. In short, the Master
is empowered to administer
black intestate estates immediately, while the special empowerment of
magistrates will continue under
the Black Administration Act for not
longer than two years. In order to make it clear that there is
a
choice, the word
"shall" in regulation 3 must be read for the period of the
suspension to mean "may". The magistrates'
jurisdiction is
therefore not exclusive and obligatory, but concurrent and
permissive.
"
[32]
The deceased's family elected to report
the estate before the Magistrate Thohoyandou in whose district the
deceased lived and the
office of the Magistrate Thohoyandou opened
and administered the deceased estate under file no 7/1/2 (387/2002).
[33]
In
Bhe v
Magistrate Khayelitsha
[2004] ZACC 17
;
2005 (1) SA 580
CC
the
Constitutional Court dealt with the question of the retrospective
effect of the declaration of invalidity in paragraphs 126
to 129 of
the Constitutional Court Judgment as follows:-
"[126] Section 172(1) of
the Constitution empowers this Court, upon
a
declaration of
invalidity to make any order that is just and equitable, including an
order to limit the retrospective effect of
that invalidity. The
statutory provisions and customary law rules that have been found to
be inconsistent with the Constitution
are
so
egregious that an
order that renders the declaration fully prospective cannot be
justified. On the other hand, it
seems
to me that
unqualified retrospectivity would be unfair because it could result
in all transfers of ownership that have taken place
over
a
considerably long
time being reconsidered. However, an order which exempts all
completed transfers from the provisions of the Constitution
would
also
not
accord with justice or equity. It would make it impossible to re-open
a
transaction
even where the heir who received transfer knew at the time that the
provisions which purport to benefit him or her were
to be challenged
in
a
court.
That
was
the
position in the Shibi case.
[127]
To limit the order of retrospectivity to
cases
in which transfer
of ownership has not yet been completed would enable an heir to avoid
the consequences of any declaration of invalidity
by going ahead with
transfer as speedily
as
possible. What
will accordingly be just and equitable is to limit the
retrospectivity of the order
so
that the
declaration of invalidity does not apply to any completed transfer to
an heir who is bona fide in the sense of not being
aware that the
constitutional validity of the provision in question was being
challenged. It is fair and just that all transfers
of ownership
obtained by an heir who was on notice ought not to be exempted.
[128]
The next issue to be decided is whether it is just and equitable that
the order of invalidity should date back to
4
February
1997 when the Constitution became operative. The question is relevant
because the deceased in Shibi died during 1995, while
the interim
Constitution
was
in force. The
impugned provisions in this
case
became
inconsistent with the interim Constitution in 1994 when it came into
force. It would accordingly be neither just nor equitable
for
affected women and extra-marital children to benefit from
a
declaration of
invalidity only if the deceased had died after
4
February
1997, but not if the deceased had died after the interim Constitution
had come into force but before the final Constitution
was
operative. I am
accordingly of the view that the declaration of invalidity must be
retrospective to
27
April 1994 in
order to avoid patent injustice.
[129]
To sum up, the declaration of invalidity must be made retrospective
to 27 April 1994. It must however not apply to any completed
transfer
of ownership to an heir who had no notice of
a
challenge to the
legal validity of the statutory provisions and the customary law rule
in question. Furthermore, anything done pursuant
to the winding up of
an estate in terms of the Act, other than the identification of heirs
in
a
manner
inconsistent with this judgment, shall not be invalidated by the
order of invalidity in respect of section 23 of the Act
and its
regulations."
[34]
This court is of the view that there
exists no confusion which needs clarification as to the procedure
which should be applied in
the administration of estates of black
people who were under the now repealed Black Administration Act 1927
as the Constitutional
Court in the She-matter
supra
already gave clear guidelines as to
the procedure to be applied in the administration of estates of black
people and in paragraph
133 of the She-matter held as follows:-
"[133] It will be
necessary,
however, that
estates that are currently being wound up under section 23 of the Act
and its regulations, continue to be
so
administered to
avoid dislocation. The order will accordingly provide that the
provisions of the Act and its regulations shall continue
to be
applied to those estates in the
process
of being wound
up. All estates that fall to be wound up after the date of this
judgment shall be dealt with in terms of the provisions
of the
Administration of Estates Act."
[35]
In
casu,
it was therefore improper for the First Respondent to report the
deceased estate to the Master of the High Court, Thohoyandou
and to
have the estate administered through that office while the
administration of the same estate was still pending in the
Magistrate's
Court, Thohoyandou. This is in contravention of the
Constitutional Court order/decision in the She-matter. This much was
acknowledged
by the Master in his Report, paragraphs 7 and 8 thereof.
The Master regrets having issued letters of executorship to the First
Respondent and administered the deceased estate.
[36]
In light of the above this court is of
the view that the
court a quo
correctly referred the
administration of the deceased estate back to the Magistrate's Court,
Thohoyandou and directing that the
estate of the deceased is to be
wound up and finalized by the Magistrate, Thohoyandou.
In
the result this appeal should not succeed.
Order
[37]
The following order is made:-
1.
The appeal is dismissed.
2.
The order of the court
a
quo
handed down on 29 April 2016 is
confirmed.
3.
The Appellants to pay the costs of this
appeal.
M.
NAUDE
ACTING
JUDGE OF
THE
HIGH COURT
I
AGREE:
E.M.
MAKGOBA
JUDGE
PRESIDENT
LIMPOPO
DIVISION
I
AGREE:
M.F. KGANYAGO
JUDGE
OF THE
HIGH
COURT
APPEARANCES:
HEARD
ON:
14
AUGUST 2020
JUDGMENT
DELIVERED ON: 19 AUGUST 2020
For
the Appellants:
Adv. M.S. Sikhwari
Instructed
by:
Maluleke Z.D Attorneys
For
the Respondent:
Mr. V.R. Mathivha
Instructed
by:
Mathivha Attorneys
c/o N.R. Munyai Attorneys