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[2011] ZAFSHC 35
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Phokontsia and Another v Sebolai (A199/2009) [2011] ZAFSHC 35 (24 February 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: A199/2009
In the appeal between:
MALITABA REBECCA
PHOKONTSI
…..................................
1
st
Appellant
LIKELELI ELIZABETH
SEBOLAI
….......................................
2
nd
Appellant
and
KHATSE EVELYN
SEBOLAI
…................................................
Respondent
CORAM:
EBRAHIM, J
et
LEKALE, AJ
_______________________________________________________
JUDGEMENT:
LEKALE, AJ
_______________________________________________________
HEARD ON:
31 JANUARY 2011
_______________________________________________________
DELIVERED ON:
24 FEBRUARY 2011
_______________________________________________________
INTRODUCTION
[1] This is an appeal
against the judgment of the Kroonstad Magistrate’s Court in an
application for an interdict
pendente lite
. The parties agreed
that the said judgment also disposed of the relevant action.
[2] The appeal proceeds
without the benefit of any Heads of Argument from the respondent
party and is, as such, unopposed.
BACKGROUND
[3] The appellants, who
are blood sisters, issued summons during 2008 against the respondent,
their sister-in-law, for an order
directing her to either transfer a
certain property to themselves and to register it in their names as
well as hers as co-owners
or to pay them an amount of R20 000,00 each
in respect of the said property.
[4] The appellants,
further, simultaneously launched an application for an order,
inter
alia
, restraining the respondent from alienating or burdening the
said property pending finalisation of the action on the basis that
they each have undivided equal shares in the relevant property by
virtue of the fact that they, together with the respondent’s
late husband, inherited the property from their late sister who died
intestate on the 23 December 1998.
[5] The respondent, on
her part, defended the action and opposed the application on the
basis that:
5.1 the property in
question was inherited by and transferred to her late husband, to
whom she was married in community of property,
on the 8 September
2006 in terms of the provisions of section 23 of the Black
Administration Act, no. 38 of 1927 (“the Act”);
5.2 her husband died
intestate and she became entitled to the said property by virtue of
marriage in community of property and inheritance
in terms of the law
of intestate succession.
[6] The parties, further,
agreed on the facts on which the court below based its decision. The
court
a quo
, eventually, issued judgment against the
appellants to the effect that they have no right or claim to the
relevant property. It
is against this decision that the appeal lies.
[7] The question which
the court
a quo
had to determine was whether or not the two
appellants inherited equal undivided shares in the property together
with their late
brother when their late sister passed away intestate.
APPELLANTS’
CONTENTIONS
[8] The gravamen of the
appellants’ contentions, both in the Notice of Appeal and the
Heads of Argument delivered for and
on their behalf, is that the
court below erred, in law, in its interpretation of the decision of
the Constitutional Court in
BHE AND OTHERS v MAGISTRATE,
KHAYELITSHA AND OTHERS AND TWO OTHER CASES
[2004] ZACC 17
;
2005 (1) SA 580
(CC) (the Bhe-decision) with regard to the retrospectivity of an
order declaring section 23 of the Act, and the Regulations made
thereunder, as well as the rule relating to male
primogeniture
unconstitutional and invalid.
[8] The appellants
maintain that according to the said judgment the order declaring the
said provisions invalid applies retrospectively
to the 27
th
April 1994 and was, as such, operative as at the 8
th
September 2006 when the respondent’s late husband received
transfer of the property.
[9] They, further,
contend that ownership in the property had not yet passed to the
respondent’s late husband when the said
order was made by the
Constitutional Court during 2005.
THE JUDGMENT OF THE
COURT
A QUO
[10] The court below
found that the argument that the Bhe-decision applies to the present
matter because the transfer of the property
to the respondent’s
late husband took place in 2006, did not hold water. The magistrate
held that:
“
Hierdie argument kan nie reg
wees nie, aangesien die vraag nie is, wanneer die oordrag plaasgevind
het nie, maar eerder, wanneer
die genoemde Queen Phokontsi gesterf
het en sodoende ‘n gestorwe boedel sou nalaat.
Die verdeling van die genoemde
boedel het reeds ter sprake gekom in 1998 toe die Grondwethof nie
beslis het oor die genoemde Regulasies
en Artikel 23 nie en dus die
genoteerde beginsel
primogeniture-
beginsel
steeds van toepassing sover dit die bereddering van die boedel
aangaan …”
AN ORDER OF THE
CONSTITUTIONAL COURT
[11] The real legal issue
raised by this appeal relates to the proper interpretation of the
relevant orders in the Bhe-decision
insofar as the appellants do not
agree with the construction placed on them by the court
a quo
.
[12] The orders in
question read as follows:
“
2. Section 23 of the
Black-Administration Act, No. 28 of 1927 is declared to be
inconsistent with the constitution and invalid.
3. The Regulations for the
Administration and Distribution of the Estates of Deceased Blacks
(R200) published in Government Gazette
No. 10601 dated 6 February
1987, as amended, are declared invalid.
4. The Rule of male
primogeniture
as it applies in customary law to the inheritance of property is
declared to be inconsistent with the Constitution and invalid
to the
extent that it excludes or hinders women and extra-marital children
from inheriting property.
…
8. In terms of section 172(1)(b) of
the Constitution, the orders in paragraphs 2, 3, 4, 5 and 6 of this
order, shall not invalidate
the transfer of ownership prior to the
date of this order of any property pursuant to the distribution of an
estate in terms of
s 23 of the Black Administration Act 38 of 1927
and its regulations, unless it is established that when such transfer
was taken,
the transferee was on notice that the property in question
was subject to a legal challenge on the grounds upon which the
applicants
brought challenges in this case.
9. In terms of section 172(1)(b) of
the Constitution, it is declared that any estate that is currently
being administered in terms
of s 23 of the Black Administration Act
38 of 1927 and its regulations shall continue to be so administered,
despite the provisions
of paras 2 and 3 of this order, but subject to
paragraph 4, 5 and 6 of this order, until it is finally wound up.”
(See Bhe-decision at
633g-j and 634e-g.)
INTERPRETATION OF
COURT ORDER
[13] In its technical
legal usage the word “
judgment”
refers to the
formal order drawn up by the Registrar of the court and embodied in a
separate document signed by him. The court
order as embodied in that
document gets served by the Sheriff on the respondents and
constitutes the substantive order which can
be appealed against and
not the reasons for the judgment. (See
ADMINISTRATOR, CAPE AND
ANOTHER v NTSHWAGELA AND OTHERS
1990 (1) SA 705
(A).)
[14] The effect of a
court order is ascertained by giving words their natural and ordinary
meaning as the case is when interpreting
other documents. (Compare
FIRESTONE SOUTH AFRICA (PTY) LTD v
GENTICURO AG
1977 (4) SA 298
(A) at
304D-H.)
[15] The order must be
read as a whole with reference to its context and objects. (See
SIMON
NO AND OTHERS v MITSUI AND COMPANY LTD AND OTHERS
1997 (2) SA
475
(WLD).
FINDINGS
[16] In
casu
it is
clear from the judgment of the court below and submissions made by Mr
Van Rooyen for the appellants that:
16.1 but for the
provisions of section 23 of the Act and the application of the rule
of male
primogeniture
the appellants would have inherited the
property jointly with the respondent’s late husband and
acquired equal and undivided
shares therein in terms of the common
law of intestate succession;
16.2 the respondent’s
late husband received transfer of the property after the Bhe-decision
had been made, viz in 2007. The
said decision was reported in 2005;
16.3 the relevant
property had already been sold for R60 000,00 to a third party at the
time of the judgment of the court
a quo
with the proceeds
being kept in an interest-bearing trust account held by an attorney;
16.4 the decision of the
court
a quo
is based on the Magistrate’s understanding
of the retrospectivity of the relevant order of the Constitutional
Court;
16.5 in the understanding
of the Court below the determinative date for the application of the
Bhe-decision is the date on which
the deceased, whose estate is in
issue, passed away and not the date on which the transfer of the
property passed to the heir;
16.6 in the Magistrate’s
view, when the Bhe-decision was made, the defendant’s husband
had already inherited the relevant
property on the basis of the Rule
of male
primogeniture
and section 23 of the Act;
16.7 the Magistrate,
further, understands the relevant order in the Bhe-decision as being
prospective and not retrospective insofar
as the court
a quo
found as follows:
“
Selfs die Grondwet hof
tydens die 2005 Bhe-saak, het moontlike probleme in die vooruitsig
bespuur en in terme van Artikel 172(1)(b)
van die Grondwet beslis dat
hierdie uitspraak nie terugwerkend sal wees nie en sal alle swart
intestate boedels voor hierdie saak
en wat nog nie ten volle beredder
is nie, ingevolge die ou bedeling voltooi moet word.”
(See p 56 – 57,
record.)
The Magistrate,
further, specifically found that the Bhe-decision was not
applicable to the matter before the court
a quo.
[17] The court
a quo
,
with respect, appears not to have read the judgment in the
Bhe-decision as a whole in order to appreciate its effect and
application.
[18] In our view a proper
construction of the relevant order requires one to look at,
inter
alia,
the reasoning of the Constitutional Court and its findings
on, at least, the retrospective application of the specific orders.
[19] In paragraph [126]
of the relevant decision the Constitutional Court found that:
“…
The statutory
provisions and customary-law rules that have been found to be
inconsistent with the Constitution are so egregious
that an order
that renders the declaration fully prospective cannot be justified.”
(See p 630H-I of the
Bhe-decision.)
[20] As correctly
submitted by Mr Van Rooyen the Constitutional Court, further,
summarised the position with regard to retrospectivity
as follows:
“
[129] To sum up, the
declaration of invalidity must be made retrospective to 27 April
1994. It must however not apply to any completed
transfer of
ownership to an heir who had no notice of a challenge to the legal
validity of the statutory provisions and the customary-law
rule in
question. Furthermore, anything done pursuant to the winding up of an
estate in terms of the Act, other than the identification
of heirs in
the manner inconsistent with this judgment, shall not be invalidated
by the order of invalidity in respect of s 23
of the Act and its
Regulations.”
(See p 631G-H of the
Bhe-decision.)
[21] Having made the
above findings on,
inter alia
, retrospectivity, the court
proceeded to make the orders set out in paragraph [12] of this
judgment.
[22] It is clear from the
Bhe-decision that the court
a quo
misdirected itself and erred
on the question of law in,
inter alia
, finding that the
Bhe-decision was not applicable in the present matter and that it
does not apply retrospectively.
[23] The court in the
Bhe-decision only qualified the retrospectivity of the orders so as
to ensure that the orders of invalidity
were just and equitable as
contemplated by Section 172(1) of the Constitution.
[24] A proper
interpretation of the relevant orders show, in our view, that the
date of transfer of property and not the date on
which the deceased,
whose estate is in issue, passed away is the determining factor for
the application of the Bhe-decision. The
aforegoing is borne out by
the following findings in the judgment of the Constitutional Court:
24.1 the relevant orders
of invalidity do not invalidate a transfer of property which took
place prior to the Bhe-decision where
the primogeniture heir took
transfer without knowledge that the property in question was the
subject of a constitutional challenge
in the context of the
primogeniture
rule and the provisions of Section 23 of the
Act;
24.2 estates which were
being administered in terms of Section 23 of the Act and its
Regulations as at the date of the Bhe-decision
remain immune from the
effect of the invalidation of that section and its regulations until
they are finally wound up;
24.3 the invalidation of
the
primogeniture
rule, however, affects such estates only to
the extent to which that rule excludes or hinders women and children
of the deceased
born out of wedlock from inheriting property with the
result that:
(a) women and children of
the deceased born out of wedlock are not excluded from inheriting
property from such estates;
(b) although the
administration and distribution of such estates continue to take
place in terms of the Act and its regulations,
women and children of
the deceased born out of wedlock are not prejudiced and may be
identified as heirs in accordance with the
Intestate Succession Act
81 of 1987
read with orders 5 and 7 in the Bhe-decision.
[25] The Bhe-decision is
applicable to the dispute between the parties in this appeal because
the respondent’s late husband
took transfer of the property
after the date of that decision. The appellants thus inherited equal
undivided shares in the property
together with the respondent’s
late husband in terms of the law of intestate succession when their
sister died intestate.
[26] Mr Van Rooyen asked
for an order for payment, to each appellant, of
a pro rata
share of the interest which accrued to the proceeds of the sale of
the property invested in the interest-bearing trust account
as at the
date of final payment. Details of the name of the account, its number
as well as the bank at which it is held are, however,
not before the
court.
[27] It is, thus, not
possible for the court to identify the relevant account for the
purposes of making an appropriate order. The
relief sought in the
summons includes interest at the rate of 15,5% per annum from the
date of summons to the date of payment.
(See page 6 of the
record.)
[28] The aforegoing was
the relief sought when the court below made the impugned decision. It
is, thus, the prayer which was properly
before the court
a quo
and, ergo, which is before this court.
ORDER
[29] In the result the
appeal succeeds with costs.
[30] The judgment of the
Court
a quo
is set aside and, in its place and stead, is
substituted the following order:
“
1. Plaintiffs’
claim succeeds;
The defendant shall
pay the plaintiffs R20 000,00 each together with interest at the
rate of 15,5% per annum from the date of
summons to the date of
final payment;
The defendant shall
pay plaintiffs’ costs in respect of the action under case no.
2966/2008 and the interlocutory application
on a scale as between
party and party.”
_________________
L. J. LEKALE, AJ
I concur.
________________
S. EBRAHIM, J
On
behalf of the appellants: Mr. B. C. van Rooyen
Instructed
by:
Quinton
Grimbeek Attorneys
BLOEMFONTEIN
On
behalf of the respondents: No appearance
/eb