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[2018] ZALMPPHC 61
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Ledwaba v Monyepao and Others (HCAA06-2017) [2018] ZALMPPHC 61 (25 April 2018)
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IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
NOT REPORTABLE
(2)
OF INTEREST TO OTHER
JUDGES
(3)
REVISED
CASE NO:
HCAA06-2017
20/4/2018
BEFORE
THE HONOURABLES EM MAKGOBA JP, MG PHATUDI J AND D NAIR AJ
In
the matter of:
MOKGAETTJI
MARIA
LEDWABA
APPELLANT
And
MATSATSI
DINAH TINY
MONYEPAO
1
st
RESPONDENT
THE
MASTER OF HIGH COURT, POLOKWANE
2
nd
RESPONDENT
ELMARIE
BIERMAN
3
rd
RESPONDENT
MATUBA
MAPONYA
4
th
RESPONDENT
JUDGMENT
[1]
This appeal concerns the validity of a
civil marriage during the subsistence of a customary marriage, the
circumstances that a marriage
under customary law is terminated and
whether the provisions of
section 9(1)
of the
Divorce Act 70 of 1979
,
are applicable in circumstances other than a divorce.
[2]
The first respondent, as applicant in
the court a quo, instituted proceedings against the appellant in the
Limpopo Division of the
High Court, Polokwane in which she sought an
order
"(a)
declaring that the customary marriage between Tieu Coliphter
Phage (hereinafter called the "deceased") and the first
respondent
was dissolved in February 2008, alternatively, that first
respondent's customary patrimonial benefits of the marriage be
forfeited
to the estate of the deceased,
(b)
that the immovable property, currently
occupied by the Respondent and the minor child, known as Erf No.
[….], held by virtue
of a Deed of Transfer T18990/2005 is
awarded to the minor child, Matilda Phuti Ledwaba,
(c)
that the Master of the High Court,
Polokwane, is ordered to withdraw or revoke the appointment of the
First Respondent as one of
its Executrix in the estate of the late
Tieu Coliphter Phage, Estate No 189/2013,
(d)
that the Master of the High Court
Polokwane, is ordered to appoint Matsatsi Dinah Tiny Monyepao as the
sole Executrix to the estate
of the late Tieu Coliphter Phage, Estate
No 189/2013."
[3]
The second respondent in the court a quo
is the Master of the High Court, duly appointed in terms of
section 2
of the
Administration of Estates Act 66 of 1965
, with Offices at the
High Court building, Polokwane. The third and fourth respondents are
attorneys who were cited due to their
roles in the administration of
the deceased's estate.
[4]
The appellant filed her counter -
application and argued that the respondent had only launched the
application because an amount
of R 3, 8 million had been paid into
the deceased's business accounts and was either concealing or failing
to account for these
funds.
[5]
It was further contended that these
funds are neither accounted for in the deceased's estate nor is there
an explanation for the
transfer of an amount of R1119 728 that was
allegedly paid from the deceased's banking account to the Trust
account of the third
respondent. These funds were also not accounted
for in the liquidation and distribution account.
[6]
The proceedings were opposed by the
appellant. The court a quo (Makgohloa DJP) granted the application
and made the following order:
"The first respondent's
interest in the estate of the deceased is forfeited to the deceased's
estate.
The costs of this application are
costs in the estate.
The counter application against
the second and the third respondent is struck off the roll with
costs."
THE
FACTS
[7]
The appellant was married to one Tlou
Coliphter Phage (the deceased) on the 2
nd
June 2007 according to customary law. To this end the necessary
formalities with regard to the payment of lobola were met. Mr Phage
passed away on 22 December 2012. One minor child was born of this
marriage.
[8]
The deceased left the marital home in
2008. The reasons for his leaving the home are in dispute but not
relevant to the issues that
need to be determined in this matter.
[9]
The deceased then married the first
respondent in July /August 201o also in terms of customary law and
they lived together until
his death. They had one minor child. In
2009, the appellant entered into a civil marriage with one Mr K.
[10]
After the deceased's death in 2012, the
Master of the High Court, Polokwane, appointed both the appellant and
the first respondent
as executrix in the estate of the deceased.
[11]
The grounds of appeal upon which the
judgement of the trial court is assailed are set out below:
[9.1]
The Honourable judge ignored the provisions of
section 8(1)
,
Section
10(4)
and
section 7(6)
of the
Recognition of Customary Marriages Act
120 of 1998
and decided not to make a finding to a crucial legal
question before her as to the validity of appellants civil marriage
to Mr
Kin terms of
Section 10(4)
and the validity of the customary
marriage between the deceased and the first respondent in terms of
section 7(6)
and determination of the dissolution of her marriage to
the deceased in terms of
section 8(1)
of the same Act.
[9.2]
The judge also applied the provisions of
section 9(1)
of the
Divorce
Act 70 of 1979
in the proceedings in which it was not applicable and
concluded that there was breakdown of the marriage which had already
been
dissolved by death of the deceased.
[9.3]
The judge erroneously concluded that there was a breakdown of
appellant's marriage with
the deceased and assumed retrospective
dissolution of the marriage by divorce after the deceased had already
passed away in favour
of the first respondent who was not a party to
the said marriage
[9.4]
The judge relied on a null and void civil marriage between the
appellant and Mr K to conclude
that she renounced her marriage to the
deceased instead of applying the provisions of the recognition of
Customary Marriages Act
120 of 1998 to the legal question before her
in respect of all these marriages.
THE
LEGAL POSITION -
[12]
The court a quo found that the marriage
between the first respondent and deceased lasted "for less than
a year." It firstly
falls to be considered whether the first
respondent's marriage to K dissolved the marriage to the deceased.
[13]
In
Thembisile
&
another
v Thembisile
&
another
2002 (2) SA 209
(T), Bertelsmann J
held that a civil marriage contracted while the man was a partner in
an existing customary union with another
woman was a nullity. See the
commentary by A Maithufi in the
De
Jure
36 (2003) 195,
"Before this date
(200-11-15), the general trend in South African Law was that an
existing customary marriage was dissolved
when one of the spouses to
such marriage contracted a civil marriage with another person see
(Nkambula v Linda
1951 (1) SA 377
(A). Where such spouses contracted
a civil marriage with each other, this had the effect of superseding
the existing customary
marriage. The RCMA at section 10 (1) prohibits
a spouse of a customary marriage from contracting a civil marriage
with another
person.
[14]
The dictum in
Thembisile
and another was followed with
approval in
Murabi and Murabi
(893/12)
[2014] ZASCA 49
(1 April
2014), reported in
TM v NM
2014(4)
SA 575 (SCA), where the Supreme Court Of Appeal, confirming
Netshituka v Netshituka
&
others
2011
(5) SA 453
(SCA) para 15 stated as follows:
"It follows that it was not
legally competent for the deceased to contract a civil marriage with
the first respondent during
the subsistence of the customary marriage
between the deceased and the appellant. The effect of this conclusion
is that both the
appellant and the first respondent are the
deceased's surviving spouses in terms of customary law."
[15]
Section 8 of the Recognition of
Customary Marriages
Act 120 of 1998
(RCMA) reads as follows:
(1)
A customary marriage may only be
dissolved by a court by a decree of divorce on the ground of the
irretrievable breakdown of the
marriage.
(2)
A court may 9rant a decree of divorce on
the ground of the irretrievable breakdown of a marriage if it is
satisfied that the marriage
relationship between the parties to the
marriage has reached such a state of disintegraiton that there is no
reasonable prospect
of the restoration of a normal marriage
relationship between them.
(3)
The Mediation in Certain Divorce Matters
Act 1987 Act No, 24 of 1987) and section 6 of the Divorce Act, 1979
(Act No. 70 of 1979),
applies to the dissolution of a customary
marriage.
(4)
A court granting a decree for the
dissolution of a customary marriage-
(a)
has the power contemplated in
section
7
,
8
,
9
, and
10
of the
Divorce Act, 1979
, and section 24(1) of the
Matrimonial Property Act, 1984 (Act No. 88 of 1984);
(b)
must, in the case of a husband who is a
spouse in more than one customary marriage, take into consideration
all relevant factors
including any contract, agreement or order made
in terms of section 7 (4), (5), (6) or (7) and must make any
equitable order that
it deems just;
(c)
may order that any person who in the
court's opinion has a sufficient interest in the matter be joined in
the proceedings;
(d)
may make an order with regard to the
custody or guardianship of any minor child of the marriage; and
(e)
may, when making an order for the
payment of maintenance, take into account any provision or
arrangement made in accordance with
customary law.
[16]
It is clear that the appellant's
marriage to Mr K was a nullity and therefore does not dissolve the
customary union between the
appellant and the deceased. This much was
conceded by the respondent's counsel. It appears that the court a quo
considered the
appellant's conduct in marrying K as an indication of
misconduct on her part. This cannot be so especially in light of the
fact
that the marriage to K was a nullity.
[17]
This brings us to the next question
which is whether the provisions of
Section 9(1)
of the
Divorce Act
are
applicable to the facts of this matter.
[18]
The court a quo approached the matter
with a view to establish misconduct on the part of the appellant in
order to determine whether
there should be a forfeiture order made
against her. This is clear from the following passage:
"The question that arise is
whether the first respondent's interest in the estate of the deceased
should be forfeited to the
estate of the deceased as a result of her
own conduct........The marriage between the first respondent and the
deceased lasted
for a period of less than a year. Thereafter she
married K on 26 November 2009. The first respondent's version is that
she still
regarded herself married to the deceased irrespective of
her marriage to Mr K. If that is true, then, the first respondent
practised
polyandry which is illegal in our law. She does not argue
that she was that such practice is unlawful. In my view the first
respondent's
conduct gave rise to the breakdown of her marriage to
the deceased."
[19]
Section 9(1)
of the
Divorce Act 70 of
1979
stipulates:
" when a decree of divorce is
granted on the ground of the irretrievable breakdown of a marriage,
the court may make an order
that the patrimonial benefits of the
marriage be forfeited by one party in favour of another either wholly
or in part, if the court,
having regard to the duration of the
marriage, the circumstances which gave rise to the breakdown thereof
and any substantial misconduct
on the part of either of the parties
satisfied that, if the order of forfeiture is not made, the one party
in relation to the other
will be unduly benefitted."
[20]
In Family Law Service, Lexis
Nexis, Service Issue 58 at D9, at page 26:
"In terms of
section 9
of the
Divorce Act 1979
, the court has a discretion, when granting a divorce
on the grounds of irretrievable break-down of the marriage or civil
union,
to order the patrimonial benefits of the marriage or civil
union be forfeited by one party,"
[21]
In Family Law Service, Lexis
Nexis, Service Issue 58 at page 28.
"The forfeiture order must be
sought at the time of the divorce. Once a court has made an order for
equal division of a joint
estate, for example, it cannot afterwards
make a forfeiture order."
[22]
The court a quo also appears to have
found it proper to forfeit the appellant's patrimonial benefits in
circumstances other than
in divorce proceedings. This approach is
flawed because a forfeiture of benefits must follow an enquiry into
misconduct on the
part of one of the parties to the marriage.
[23]
This did not occur in this matter. There were no divorce proceedings
at all. In the circumstances
the order falls to be set aside. The
provision of the
Divorce Act in
so far as forfeiture of patrimonial
benefits is concerned applies only in respect of divorce proceedings
between the parties to
the marriage. To apply these provisions in
circumstances unrelated to divorce proceedings between the parties
themselves is incorrect.
[24]
A further question that falls to be answered is the following: what
is the status of the first
respondent's marriage to the deceased.
Stated otherwise, is the second customary marriage to the respondent
valid in light of the
provisions of section 7(6) of the Recognition
of Customary Marriages Act 120 of 1998 (the RCMA)?
[25]
It was contended on behalf of the appellant in the court a quo that
the first respondent's marriage
to the deceased is equally null and
void because the deceased entered into this marriage whilst her
customary marriage with the
deceased was subsisting.
[26]
Section 7(6) of the RCMA
states that a husband in a customary
marriage who wishes to enter into a further customary marriage with
another woman after the
commencement of this Act must make an
application to the court to approve a written contract which will
regulate the future matrimonial
property system of his marriages.
[27]
It appears that the court a quo found
that the deceased's marriage to the respondent to be valid and the
only marriage that subsists.
Our courts have considered whether
non-compliance with section 7(6) affects the validity of such
marriage and held that as it affects
the propriety consequences of
such marriage, such marriage is to be considered to be out of
community of profit and loss.
[28]
It is argued on behalf of the appellant
that the failure of the deceased to comply with section 7(6) of the
RCMA when he concluded
the customary marriage with the first
respondent rendered that marriage null and void.
[29]
Reliance was placed on the decision of
MM v M.N
2010 (4) SA 286
(GNP)
for
that proposition. In this regard Bertelsmann J held as follows:
"A further customary marriage
contracted after 15 November 2000, must, be preceded by the
application envisaged by section
7(6) of the RMCA to be valid. This
is evident from the peremptory language employed in this provision,
namely, the use of the word
"must". In this respect, the
court concluded (par 23) that the failure to comply with the
mandatory provision of this
subsection cannot but lead to the
invalidity of a subsequent customary marriage, even though the Act
does not contain an express
provision to that effect."
[30]
n
MG v BM and Others (10/37362) [2011] ZAGPJHC 173;
2012 (2) SA
253
(GSJ) (22 November 2011)
Moshidi J held:
"In any event, as indicated
earlier in this judgment, Bertelsman J in
MM v M N (supra ),
came
to the conclusion, and correctly so in my view, that the Act does not
contain an express provision to invalidate a subsequent
customary
marriage for failure to comply with the provisions of sec 7(6) of the
Customary Marriages Act. For all these reasons,
I conclude that the
failure by the deceased and/or the applicant to apply to court
timeously to approve a written contract which
would regulate the
future matrimonial property system of their customary marriage, does
not invalidate their customary marriage
as contended for by the first
respondent. It is a valid customary marriage. It follows that the
applicant has succeeded in making
out a case for the relief claimed
in the notice of motion.
[31]
The judgement of Bertelsman as quoted
above was overturned in
MM v NM and
Another
2012 (4) SA 527
(SCA) at
para 37-38 and it was held that section 7(6) of the RCMA does not
relate to validity of customary marriages, but the proprietary
consequences thereof. The SCA found that the consequences of
non-compliance with section 7(6) were adequately met by treating
subsequent customary marriages as being marriages out of community of
property. See also
Mayelane v
Ngwenyama
2013 (4) SA 415
(CC).
[32]
As to the validity of the deceased's
marriage to the first respondent,
Section
3(1) of the RCMA
reads as follows:
"For a customary marriage
entered into after the commencement of this Act to be valid-
(a)
the prospective spouses-
(i)
Must both be above the age 18 years; and
(ii)
Must both consent to be married to each
other under customary law; and
(b)
the marriage must be negotiated and
entered into or celebrated in accordance with customary law"
[33]
Further the Constitutional Court in
Mayelane v Ngwenyama
and
Another
2013 (4) SA 415
(CC) held that, if a man wishes to marry more
than one wife under Xitsonga custom, he must obtain the consent of
his existing wife.
The judgement in Mayelane was however ordered to
run prospectively.
[34]
The effect thereof is that the judgment
has no effect on the validity of the customary marriage between the
first respondent and
the deceased. In the circumstances, both
customary marriages are recognised and valid.
[35]
The counterclaim relates to the
propriety consequences that are relevant to the deceased estate which
must devolve according to
the laws of intestate succession. The court
a quo dismissed the counterclaim on other grounds which are not
relevant to consider
now. It was argued by the first respondent's
counsel that the Intestate Succession Act applied in this matter and
to that end the
respondent's child stood to be prejudiced by the
non-recognition of the first respondent's marriage to the deceased.
The argument
is flawed on the basis that the second respondent had
already appointed both the appellant and first respondent as co-
executrix.
[36]
The appointment of both appellant and first respondent as
co-executrixes will r solve any issues
with regard to the devolvement
of the estate in terms of the Intestate Succession Act under the
auspices of the authority vested
in the 2
nd
respondent.
Therefore any issues that follow from the administration of the
estate fall to be resolved by the Master in the determination
of the
liquidation and distribution account.
[37]
In the circumstances, the appeal
succeeds and the order of the court a quo is set aside and
substituted with the following order:
ORDER
[38]
The application is dismissed with costs
and such costs are to be paid out of the deceased estate.
D
NAIR AJ
ACTING
JUDGE OF THE HIGH COURT
LIMPOPO
DIVISION: POLOKWANE
MG
PHATUDI
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION: POLOKWANE
I
CONCUR AND IT IS SO ORDERED
E
M MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT
LIMPOPO
DIVISION: POLOKWANE
APPEARANCE:
COUNSEL FOR THE APPELLANT
: MR M MAPONYA
INSTRUCTED
BY
: M MAPONYA ATTORNEYS
COUNSEL
FOR RESPONDENT
: ADVOCATE M COETZEE
INSTRUCTED
BY
: DIAMOND INC
DATE
OF HEARING
: 29 MARCH 2018
DATE
OF JUDGEMENT
: 25 APRIL 2018