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[2013] ZAGPPHC 23
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D.S and Another v G.R.M (50056/11) [2013] ZAGPPHC 23 (5 February 2013)
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NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO:50056/11
DATE:05/02/2013
In
the matter between:
D
S
................................................................................................................
1st
Applicant
MJS
S
...........................................................................................................
2nd
Applicant
and
G
R
M
….......................................................................................................
Respondent
JUDGMENT
MNGQIBISA-THUSI,
J
[1]
The applicant seeks an order:
1.1
declaring the customary union concluded between the first applicant
and the respondent on 30 June 2007 as null and void;
1.2
that the property, if any, obtained between the parties during the
subsistence of the customary union be dealt with as if it
was
obtained by partners in a partnership;
1.3
That the assets and liabilities accrued during such customary union
to be the joint property and liabilities of the partners;
and
1.4
Costs.
[2]
From the evidence before the court it appears that the first and
second applicant entered into a civil marriage on 15 September
1987
and the marriage still subsists. During 2007 the first applicant,
with the consent of the second applicant, paid lobola for
the
respondent and they lived together at a different house from that of
the first and second applicant. It would appear that when
the three
parties agreed that the first applicant should marry the respondent
by customary law, all three parties bona fide believed
that the
customary marriage to the respondent was valid.
[3]
It is submitted by the first applicant that he has recently learned
that his marriage by custom to the respondent is void in
that his
marriage to the first applicant still subsists.
[4]
The first applicant now seeks an order declaring his marriage to the
respondent null and void and that the property acquired
by the first
applicant and the respondent be dealt with as if they were in
partnership. In this regard I would assume that the
applicant is
referring to what is known as universal partnership.
[5]
The first applicant does not dispute that at the time he and the
respondent entered into a customary marriage, he and the second
applicant were already in a civil law marriage. The respondent does
not oppose the declaration of the customary marriage as being
void.
However, the respondent is opposing the relief claimed with regard to
the immovable property in which she lives and which
is registered in
both the applicants’ names and has counterclaimed and is
seeking an order that there should be a division
of assets, both
immovable and movable, acquired by the parties.
[6]
In her answering affidavit to the applicant’s application the
applicant alleges that in 2006 before lobola was paid, she
and the
first applicant acquired vacant land on which they intended to build
her house which was subsequently built. She alleges
that the
applicants had convinced her that the house should be registered in
their names since they had a marriage certificate.
That she
contributed to the building of the house and is therefore entitled to
half the value of the house. This allegation is
however denied by the
applicants.
[7]
Where one or both parties are unaware that at the time they entered
into a marriage with a defect which renders their marriage
void and
both bona fide believed that they are lawfully married, such marriage
is a putative marriage. Although void ab initio,
the law does attach
some proprietary consequences to it when it is dissolved. If both
parties to the putative marriage are bona
fide they are deemed to be
married in community of property.
[8]
In this matter it is common cause that both parties in good faith
believed that they were lawfully married and therefore their
‘marriage would be regarded as having been in community of
property. The other side of the coin is that the marriage could
be
regarded as a universal partnership, relief sought by the first
applicant in prayer 2, with each party contributing in cash
or kind
into the universal estate for the benefit of the partners. In this
regard also on the dissolution of the partnership, if
there is no
prior agreement as to how the partnership assets would be shared,
each partner is entitle to an equal share of the
estate irrespective
of the value of his or her contribution.
[9]
Therefore in the interest of justice as between the parties, I am of
the view that the respondent is entitled to a half share
of her and
the first applicant’s 'joint estate'.
[10]
With regard to costs, I am of the view that both parties have been
substantially successful and that each party should pay
its own
costs.
[11]
In the premises the following order is made:
1.
The purported customary marriage between the first applicant and the
respondent is declared null and void.
2.
The joint estate of the first applicant and the respondent’s
purported customary marriage is to be divided equally.
3.
Each party to pay his or her costs.
N.P MNGQIBISA-THUSI,
Judge
of the High Court