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[2017] ZAKZDHC 2
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Cele and Others v Cele and Others (8488/2015) [2017] ZAKZDHC 2 (9 January 2017)
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
KWAZULU
NATAL LOCAL DIVISION, DURBAN
CASE
NO. 8488/2015
In
the matter between:
ZAMO
MUSAWENKOSI
CELE 1
ST
APPLICANT
THABISILE
ZANDILE
MLANGENI 2
ND
APPLICANT
DUMILE
BEAUTY
NENE 3
RD
APPLICANT
GOODNESS
NESI
SISHI 4
TH
APPLICANT
NONTUTHUKO
EDITH CELE
(MARITAL) 5
TH
APPLICANT
BONGIWE
LYNETTE
CELE 6
TH
APPLICANT
VUSUMUZI
TERRENCE
CELE 7
TH
APPLICANT
and
NTOMBIZETHU
ANTONIA
CELE 1
ST
RESPONDENT
SIBUSISO
MOFOKENG 2
ND
RESPONDENT
TSHEPISO
MARIBANE 3
RD
RESPONDENT
REGISTRAR
OF
DEEDS 4
TH
RESPONDENT
MASTER
OF
DEEDS 5
TH
RESPONDENT
JUDGMENT
STEYN
J
[1]
This is an application to set aside the sale of the immovable
property described as Erf [...]9 Umlazi C, Registration Division
FT,
Province of KwaZulu-Natal, in extent (260) two hundred and sixty
square metres. Hereinafter it shall be referred to as
‘the
property’. The applicants in addition sought the sale of
the property be declared unlawful and wrongful,
and that the property
be declared part of the matrimonial property of the marriage between
the late Mfana Cele and Matshotsho Tholakele
Cele. The
application was opposed by the first respondent on the basis that she
is the lawful owner of the property and is
therefore entitled to sell
it to the second and third respondents. It was also opposed by
the second and third respondents
in that they purchased the property
in good faith and are entitled to ownership thereof.
The
parties
[2]
The applicants, excluding the fifth applicant, are the six surviving
children born out of the marriage between Matshotsho Tholakele
Cele
and Mfana Cele. The parents of the applicants were married on 8
July 1961, which was a marriage in community of property
and of
profit and loss in terms of s 22(6) of the Black Administration Act
38 of 1927.
[1]
The fifth applicant is the wife of the first applicant. The
first respondent is a widow, who was married to Mfana Cele
who died
on 26 March 2001.
[2]
The second respondent is married to the third respondent and they are
the new owners of the property in dispute. The
fourth and fifth
respondents are cited in their official capacities and no relief is
sought against them.
[3]
Mr Kwitshana, counsel appearing on behalf of the applicants, conceded
at the onset of the matter being heard that the applicants’
supplementary affidavit was not filed in accordance with the Uniform
Rules of Court and agreed, albeit reluctantly, that the application
ought to be decided on the papers filed
[3]
in accordance with the Rules.
[4]
The chronology of the material events is central to the issues that
need to be decided and in order to appreciate and understand
the
issues that need to be determined. I shall list the time line
of events:
(a) On 8 July 1961 - Tholakele
Matshotsho Mlambo married Mfana Petros Cele.
(b) On 10 January - 1985 the property
in dispute was registered in the name of Mfana Cele.
[4]
(c) On 18 March - 1988 the
Intestate
Succession Act 81 of 1987
came into operation.
[5]
(d) On 18 April 1991 –
Tholakele, the mother of the applicants, died intestate.
(e) On 20 December 1994 - Mfana Cele,
the applicants’ father, married Ntombizethu Antonia Ndlovu.
They were married
in community of property.
(f) On 26 March 2001 Mfana Cele died
intestate.
(g) On 7 November 2014 the property
was transferred to the second and third respondents pursuant to the
sale of the property in
July/August 2014.
[5]
The issues that require determination are whether:
(a) the applicants were entitled to
inherit from the deceased estates, that is the estate of the late
Matshotsho Tholakele Cele
who died intestate, and/or the late Mfana
Cele who died intestate;
(b) the property was lawfully
inherited by the first respondent in terms of the
Intestate
Succession Act, which
entitled her to ownership of the property;
[6]
If so, then she had the right to sell the property to the second and
third respondents.
[6]
It is common cause that the applicants, with the exclusion of the
fifth applicant, are the descendants of Tholakele and Mfana
Cele.
Their parents were married in community of property and the effect of
their chosen marriage regime was that the Black
Administration Act
impacted on their marriage.
[7]
In determining whether the property formed part of the estate of
Mfana Cele and the first respondent, it is necessary to analyse
the
historical events and the operation of the
Intestate Succession Act.
Since
the late Tholakele and the late Mfana were married to each
other in community of property during the purchase of the property,
the effect of their marital regime was that the property was co-owned
by them. When Tholakele died there was nothing to distribute
amongst her descendants because the
Intestate Succession Act found
application and Mfana, as the surviving spouse, inherited the whole
of Tholakele’s portion of their joint estate. The
immovable property became part of the estate of Mfana Cele and when
he elected to marry the first respondent in 1994, in community
of
property, the first respondent as of right became co-owner of the
assets brought into their estate, which included the property.
[8]
Mfana Cele the applicants’ late father decided firstly to marry
the first respondent in community of property and secondly
not to
have a will. When he died on 26 March 2001 the value of the
property was R42 000, the half share of this joint
estate was
R21 000. Once more with the application of the
Intestate Succession Act, the
descendants were not entitled to
inherit as the estate’s value was R42 000 and in terms of
s 1(1)(c)(ii)
of the
Intestate Succession Act, a
descendant shall
inherit the residue (if any) of the intestate estate. The fixed
amount in terms of the Act in 2001 was more
than R42 000 and as
such there was nothing to distribute amongst the descendants of the
late Mfana Cele.
[9]
Mr Kwitshana had great difficulty referring me to any authority that
would exclude the operation of the
Intestate Succession Act. In
fact, he placed reliance on
Motsamai
v Motsamai
(CIV/APN/166/2008) as authority that the property owned by Tholakele
Cele and Mfana Cele should be regarded as separate from the
joint
estate and accordingly the first respondent could not obtain any
right thereto. Despite the fact that counsel could
not provide
me with any copies of the decision, I obtained both decisions
(
Motsamai v Motsamai
decided on 23 February 2011 and
Motsamai
v Motsamai
decided on 30
September 2011). A careful analysis of the
Motsamai
decisions show that it is no authority for Mr Kwitshana’s
submission. In fact, on the contrary it supports various
submissions of the respondents in this case. In deciding upon
the issues I placed reliance on the
Intestate Succession Act.
Further
, in
Bhe & others
v Magistrate Khayelitsha & others (Commission for Gender Equality
as Amicus Curiae); Shibi v Sithole &
others; South African Human
Rights Commission v President of the Republic of South Africa &
another
[7]
it was decided that the customary law of succession in essence is
replaced with the intestate rules as contained in the Intestate
Succession Act.
[8]
[10]
I am not persuaded on the papers that the applicants had any right to
the property in dispute. The applicants elected
to ignore the
operation of the
Intestate Succession Act, which
is the legal basis
of the first respondent’s right of ownership, coupled with her
marital relationship with Mfana Cele.
[11]
The papers filed by the applicants never dealt with the value of the
property nor the legal basis for why the property should
have fallen
outside the scope of the joint estate of Mfana Cele and the first
respondent. The applicants have failed in their
burden of proof
to show that they were entitled to inherit in terms of the
Intestate
Succession Act from
their biological parents and they have failed to
show on a balance of probabilities that they have a valid claim to
the property
in terms of customary law.
[13]
The respondents have persuaded me that the application ought to be
dismissed.
[14]
The application is dismissed with costs jointly and severally, the
one paying the other to be absolved.
…………………………
..
STEYN
J
Application
heard on :
1 November
2016
Counsel
for the applicants :
Mr AM Kwitshana
Instructed
by :
MM Ntanzi Attorneys
Counsel
for the respondents : Mr M Sewpal
Instructed
by :
G Munien & Associates
Judgment
handed down on : 9 January 2017
[1]
Act 38 of 1927 the repealed Black Administration Act.
[2]
See ZM12.
[3]
The papers that are excluded are pages 187 to 207.
[4]
See ‘C’ at 102 of the papers, the deed of grant in
respect of ownership unit for residential purposes.
[5]
See
Government Gazette
11188, 18 March 1988.
[6]
See s 1(1) of Act 81 of 1987 that reads:
‘
If after the commencement of
this Act a person (hereinafter referred to as the ‘deceased’)
dies intestate, either
wholly or in part, and –
(a) is survived by a spouse, but not
by a descendant, such spouse shall inherit the intestate estate;
(b) is survived by a descendant, but
not by a spouse, such descendant shall inherit the intestate estate;
(c) is survived by a spouse as well
as a descendant –
(i) such spouse shall inherit a
child’s share of the intestate estate or so much of the
intestate estate as does not exceed
in value the amount fixed from
time to time by the Minister of Justice by notice in the Gazette,
whichever is the greater; and
(ii) such descendant shall inherit
the residue (if any) of the intestate estate;’
[7]
2005 (1) SA 580 (CC).
[8]
See Lawsa 2
nd
ed Vol 32 para 204
et seq.