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[2020] ZALMPPHC 101
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Rabalao v Mogoje (3113/2019) [2020] ZALMPPHC 101 (10 December 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABLE:
NO/
YES
(2)
OF
INTEREST TO OTHER JUDGES: NO/
YES
(3)
REVISED.
10/12/2020
CASE
NO: 3113/2019
In
the matter between:
RABALAO
KLAAS NTLHANE
APPLICANT
and
MOGOJE
MMAPHEFO GRACE
RESPONDENT
JUDGMENT
NAUDE
AJ:
[1]
The Applicant brought an application in
terms whereof he applies that the house situated at [….]
Province be declared to
be a proceed of an inheritance from the
estate of his late brother, Rabalao Madumetja Elias (herein after
"the Applicant's
brother") and be excluded from the
division of the joint estate between the Applicant and Respondent.
[2]
The Applicant's brother passed away on
16 December 2012 in Pietermaritzburg. The Applicant's brother was
self-employed and practiced
as an optometrist in Newcastle. When he
died, the Applicant's mother received funds from an Old Mutual
Insurance Policy as beneficiary.
At that time, the Applicant was
employed by the Chief Albert Luthuli Local Municipality in Carolina.
The Applicant was financially
struggling. The Applicant's mother gave
the Applicant money, which she received from the Old Mutual Policy as
beneficiary to purchase
a house alternatively to build one.
[3]
An amount of R450 000.00 (Four Hundred
and Fifty Thousand Rand) was deposited into the Applicant's bank
account by his mother during
April 2013. The Applicant utilized the
money to buy a vacant stand at [….], Limpopo Province on 3 May
2013. The said stand
was bought for the sum of R85000.00 (Eighty Five
Thousand Rand). The balance of the amount received was used to build
a house on
the stand.
[4]
The Applicant and Respondent were in a
relationship during this period. After the completion of the house,
the Applicant and Respondent
moved in together and lived in the house
as husband and wife.
[5]
The Applicant and Respondent were
married to each other on 24 August 2013 in terms of the
Recognition
of Customary Marriages Act 120 of 1998
,
in
community of property and which marriage was dissolved by a decree of
divorce on 18 February 2019 in the Middelburg Regional
Court. The
decree of divorce order stipulated, amongst other relief, that "the
division of the joint estate shall be divided
equally".
[6]
The Applicant contested the divorce
proceedings and states as follows in his founding affidavit "
I
contested the existence of the
marriage between ourselves; however the court ruled in favour of the
Respondent and declares[d] that
there was
a
customary marriage between us".
The Applicant did not file a
counterclaim in the divorce proceedings.
[7]
The Respondent argued that as a result
of the decree of divorce, there is no longer any
lis
between the parties and the aspect
of division of the joint estate has been dealt with. The matter is
res judicata.
The
Applicant is now seeking to have the matter of the division of the
joint estate, re-adjudicated, in an irregular fashion by
way of this
application.
[8]
The Respondent in response argued that
the Applicant cannot bring an application for rescission of judgment
in that the Applicant
was present during the divorce proceedings.
According to the Applicant's counsel this application is brought in
terms of
Section 5 of the Matrimonial
Property Act, Act 88 of 1984.
[9]
Section 7(2)
of the
Recognition of
Customary Marriages Act 120 of 1998
stipulates
as follows:-
"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."
The marriage relationship between
the parties was therefore in community of property.
[10]
Section 5 of
the Matrimonial Property Act, 88 of 1984, stipulates as follows:-
"lnheritances, legacies
and donations excluded from accrual
(1)
An inheritance,
a
legacy or
a
donation which accrues to
a
spouse during the subsistence of his
marriage, as well as any other asset which he acquired by virtue of
his possession or former
possession of such inheritance, legacy or
donation, does not form part of the accrual of his estate, except in
so
far
as the spouses may agree otherwise in their antenuptial contract or
in so far as the testator or donor may stipulate otherwise.
(2)
In the determination of the
accrual of the estate of a
spouse
a
donation between
spouses,
other
than a donation mortis causa, is not taken into account either as
part of the estate of the donor or
as
part of the estate of the donee."
[11]
Section 5
falls
under
Chapter 1 of the
Matrimonial
Property Act, 88 of 1984
,
which
chapter deals with the accrual system.
Section
5
is applicable to marriages out of
community of property in terms of an antenuptial contract by which
community of property and community
of profit and loss are excluded
and which was entered into after the commencement of this Act without
the accrual system having
been expressly excluded by the antenuptial
contract. This section is not applicable to marriages in community of
property. The
Applicant's argument in this regard is misplaced and
not correct. In my view
Section 5
of
the
Matrimonial Property Act 88 of 1984
is
not applicable in this application.
[12]
The
res
judicata
doctrine prohibits the
reconsideration of a case already finally determined by a Court. As
stated by the Constitutional Court in
Thwala
v S
2019
(1) BCLR 156
(CC),
at paras 10 and 16:
" The rule of law and
legal certainty will be compromised if the finality of
a
court order is in
doubt and can be revisited in a substantive way. The administration
of justice will also be adversely affected
if parties are free to
continuously approach courts on multiple occasions in the same
matter."
(See
also
S v
Molaudzi
2015
(8) BCLR 904
(CC))
[13]
The defence of
res
judicata
raised by the Respondent in
these proceedings accordingly calls for an examination of the issues
that were before the Regional Court
in the divorce proceedings
together with the issues that arise in the current litigation
proceedings.
[14]
In the divorce summons and particulars
of claim the Respondent (Plaintiff in the divorce action) pleaded
that the marriage was concluded
on the 24th of August 2013, in terms
of customary marriage and the said marriage still subsists. The
Plaintiff further pleaded
primary care and residence in respect of
the minor child, maintenance payable in respect of the minor child
and rehabilitative
maintenance for the Respondent, the ·grounds
of breakdown of the marriage and that the Applicant (Defendant in the
divorce
action) is a member of a retirement fund administered by the
Municipal Gratuity Fund.
[15]
There was no case made or argued as to
what constituted to form part of the marriage in community of
property. As already stated
here above, the Applicant did not
institute any counter claim. There was no claim by either party
for forfeiture of the patrimonial
benefits of the marriage by the
Applicant, nor by the Respondent, including any interest which the
Applicant or Respondent has
or may have in the immovable property,
which property is situated at 1989 Pokes, Phokanoka Street, Marble
Hall, Limpopo Province
(herein after "the property"). The
Respondent only claimed for the division of the joint estate.
[16]
As highlighted by the Supreme Court of
Appeal in
Aon South Africa (Pty)
Ltd v Van den Heever NO and Others
2018
(6) SA 38
(SCA), at paras 22 and 23,
res
judicata
deals with a situation
where the same parties are in dispute over the same cause of action
and the same relief. In that regard,
the SCA has summarised the
current state of the law in respect of
res
judicata
as follows -
" Following the decision
in Boshoff v Union Government
1932 TPD 345
the ambit of the exceptio
res judicata has over the years been extended by the relaxation in
appropriate cases of the common-Jaw
requirements that the relief
claimed and the cause of action be the same (eadem res and eadem
petendi causa) in both the case in
question and the earlier
judgement.
Where the circumstances justify
the relaxation of these requirements those that remain are that the
parties must be the same (idem
actor) and that the same issue (eadem
quastio) must arise. Broadly stated, the latter involves an enquiry
whether an issue of fact
or law was an essential element of the
judgement on which reliance is placed. Where the plea of res judicata
is raised in the absence
of
a
commonality of
cause of action and relief claimed it has become commonplace to adopt
the terminology of English law and to speak
of issue estoppel. But,
as was stressed by Botha JA in
Kommissaris
van Binnelandse
lnkomste v Absa Bank Bpk
1995 (1) SA 653
(A) at 6690 , 670J-671B,
this
is
not
to be construed
as
implying an
abandonment of the principles of the common law in favour of those of
English law; the defence remains one of res judicata.
The recognition
of the defence in such cases will however require careful scrutiny.
Each case will depend on its own facts and
any extension of the
defence will be on a
case-by-case
basis
...
Relevant
considerations will include questions of equity and fairness not only
to the parties themselves but also to others. As
pointed out by De
Villiers CJ as long
ago
as 1893 in
Bertram v Wood
(1893) 10 SC 177
at 180, 'unless carefully
circumscribed, [the defence of res judicata] is capable of producing
great hardship and even positive
injustice to individuals'."
[17]
The crux of the issue in the current
proceedings is around whether the property forms part of a proceed of
an inheritance and whether
the property forms part of the joint
estate or should be excluded from the joint estate.
[18]
In my view, to grant the relief sought
by the applicant in these proceedings will be entirely unlike the
findings made by the Court
in the previous proceedings involving the
divorce action.
[19]
I conclude that the claim and the relief
sought by the Applicant in these proceedings will not involve the
reconsideration of the
issues that were determined by the Court in
the previous litigation involving the divorce. The current
proceedings involve the
same parties, and the issue arises from the
divorce proceedings but it is not the same cause of action, and in my
view, the same
relief is not sought. Even if the relief sought by the
Applicant in these proceedings is related to the relief that was
sought
in the previous proceedings, I am satisfied that the elements
of
res judicata
in
the form of estoppel are not present. The
point
in limine
of
res
judicata
raised therefore cannot
succeed.
[20]
In dealing with the application before
me, I must first consider what the consequences flowing from a
marriage in community of property
are. Community comes into being by
operation of law as soon as the marriage is solemnised. In the case
of
Estate Sayle v Commissioner for
Inland Revenue
1945 AD 388
the court held that a marriage in
community of property means that the spouses become joint owners in
undivided half shares of the
assets they possess at the time of their
marriage as well as of all assets acquired by them during the
subsistence of their marriage.
The merging of the properties takes
place automatically by virtue of the parties being married in
community of property.
[21]
The general rule is that all the assets
that the spouses had before the marriage as well as assets they
accumulate after entering
into the marriage fall into the joint
estate. At the moment of conclusion of the marriage, the ownership of
the assets pass
ex lege
to
the joint estate and the normal rules as to the passing of ownership
do not apply. It is trite, however, that spouses may retain
a
separate estate in that certain exceptions do exist where assets do
not fall into the joint estate. This would include,
inter
alia,
assets excluded in a will or
donation agreement, assets subject to a
fideicommissum,
non patrimonial compensation,
et cetera. As for liabilities, it is clear that pre-nuptial
liabilities form part of the joint
estate without any exception.
[22]
It was argued by the Respondent's
counsel that there is no proof that the deceased, the Applicant's
brother, left a valid Last Will
and Testament and the only inference
that the court can draw is that the deceased' brother then passed
away, intestate. It was
further argued that in the absence of any
other proof whether the deceased brother had a wife, children etc.,
it is safe to assume
that whereas the deceased brother indeed had
living biological parents as the Applicant states in his founding
affidavit "my
parents", that the parents of the deceased
were the sole heirs of the estate in terms of
Section
1(1)(d)(i)
of the Intestate Succession Act 81 of 1987.
[23]
Section 1(1)(d)(i)
of the Intestate Succession Act 81 of 1987
stipulates
as follows:-
"(d) is not survived by a
spouse or descendant, but is survived-
(i)
by both his parents, his parents
shall inherit the intestate estate in equal shares.
”
[24]
In the present matter, the Applicant did
not make out a case in his papers that he was an
heir
in any estate, from which
inheritance the immovable property was attained. The Applicant
specifically states
"When he
died he left some funds for my mother as part of the legacy of his
estate. Those funds were form Old Mutual Insurance
Policies wherein
she was
a
beneficiary.”
[25]
The only inference I can draw from the
facts before me is that the Applicant's mother, alternatively parents
inherited from the
Applicant's brother and not the Applicant. The
Applicant's mother then gave the Applicant an amount of R450 000.00
as the applicant
specifically states in his founding affidavit
"
out of self-pity, my mother, out of the proceeds of an Old Mutual
policy, she gave me money to which she instructed me to
purchase
a
house and or built[d] one."
[26] It is
common cause that the R450 000.00 was not excluded from the marriage
in community of property
in a will or donation agreement. If the
spouses, the testator or the donor did not pertinently exclude the
inheritance or donation
from the consequences of the recipient's in
community of property estate, then it is not automatically excluded
from such joint
estate. In the result neither the R450 000.00, nor
the property obtained with the R450 000.00 is excluded from the
marriage in
community of property. The property situated at 1989
Pokes Phokanoka Street, Marble Hall therefore forms part of the joint
estate
between the Applicant and the Respondent.
[27] I
therefore make the following order:-
1.
The Application is dismissed with costs.
M.
NAUDE
ACTING
JUDGE OF
THE
HIGH COURT
APPEARANCES:
HEARD
ON:
14 OCTOBER 2020
JUDGMENT
DELIVERED ON: 10 DECEMBER 2020
For
the Applicants:
Mr. K Kekana
Instructed
by:
KGADIMA KEKANA ATTORNEYS
C/O PHOKOANE PHASHA ATTORNEYS
POLOKWANE
For
the Respondent:
Adv. C. Marais
Instructed
by:
ERWEE ATTORNEYS
C/O KIRK TWINE ATTORNEYS
POLOKWANE