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[2018] ZAGPJHC 586
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Makhathini v Gwala and Another (22180/2016) [2018] ZAGPJHC 586 (31 October 2018)
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GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 22180/2016
In
the matter between:
MAKHATHINI,
EUNICE SONOSINI
Applicant
And
GWALA,
OCTAVIA HLENGIWE
First
Respondent
MASTER
OF THE HIGH COURT
Second
Respondent
REASONS
FOR RULING
SPILG,
J:
INTRODUCTION
1.
The applicant is the widow of the late Gule
Makhathini who passed away on 8 October 2006. The applicant resides
in Kenilworth, Johannesburg.
She is also the executrix of her
husband’s deceased estate pursuant to letters of executorship
dated 17 December 2013.
2.
The applicant instituted motion proceedings
against Ms. Gwala who she describes as her late husband’s
“
ex-girlfriend
”.
She lives in Regents Park.
3.
The applicant seeks two orders:
a.
The first is to declare the relationship
between Ms. Gwala and her late husband to be dissolved.
b.
The other is to declare as divisible the
immovable property in which Ms. Gwala resides, or has resided, and
which is registered
in the joint names of her late husband and Ms.
Gwala and that an attorney nominated by her, Mr. Sejwane of
Sejwane-Thuwe Attorneys,
be appointed as receiver and liquidator to
attend to the division of that property.
4.
Ms. Gwala entered appearance to defend but
has not filed an opposing affidavit. The applicant therefore set the
matter down for
judgment on the unopposed roll.
THE
ISSUES
5.
The papers are extremely thin. While I
accept that two other judges have dealt with the matter, it has been
more in the nature of
securing effective service and it is unlikely
that there was a necessity to consider the papers in any detail.
6.
I have two fundamental concerns with regard
to the application.
7.
The first arises from counsel confirming my
suspicion that the applicant’s late husband had separated from
her some time before
he passed away, had formed a relationship
with Ms. Gwala and had been living with her right up to the time he
passed away.
Accordingly
the true nature of the relationship between Ms. Gwala and the
applicant’s late husband needs to be dealt with
far more fully
than to describe her as “
an ex-girlfriend
”. He
passed away while living with her some years. Whether he married her
according to customary union despite still being
married under civil
law and the consequences to their proprietary regime require to be
fleshed out.
Accordingly
there is not enough in the founding affidavit to sustain the first
order sought, even if it is competent in law. I am
however loathe to
dismiss the application or leave it in unresolved indefinitely.
8.
Secondly the question of whether an
undivided half share of the property jointly owned by the deceased
and Ms. Gwala should fall
into the estate in which the applicant is
the executor cannot be resolved on the papers as they stand.
If
Ms. Gwala is still in the property then aside from fundamental issues
of whether their relationship had other proprietary consequences,
who
paid for the property, whether there was an
inter
vivos
bequest, whether Ms. Gwala
effected any improvements, and whether constitutional issues relative
to the right to occupy arise,
there is also the question of whether a
PIE notice is required and whether the property should be sold. These
issues may in turn
involve an inquiry into whether Ms. Gwala’s
rights to occupy will be affected in a manner that offends her right
of access
to land. These issues may all require to be considered
before a court can determine the second order sought, let alone
sanctioning
the sale of the property which may result in Ms. Gwala’s
eviction.
9.
I am seized of the matter and it is
appropriate to
a.
Postpone it so that Ms. Gwala appears
before me in order that the real issues can be fully appreciated by
me;
b.
Refer the matter to evidence on the issues
that crystalise and if need be to direct the production of any
relevant documents in
a cost effective manner.
ORDER
10.
I accordingly order that:
1.
The application is postponed to 16 November 2018 at 10am in court 6D
for purposes of determining issues to be referred to oral
evidence
2.
The first respondent is to appear in court on that day with or
without legal representation
3.
The applicant is to serve this order together with the reasons for
the decision of 31 October 2018 on Kgadima Kekana Attorneys
for the
first respondent
4. Costs reserved
______________
SPILG
J
DATE
OF HEARING: 25 October 2018
DAE
OF JUDGMENT: 31 October 2018
FOR
APPLICANT: Adv. L Peter
Mqongozi
Attorneys