Leboea v Leboea and Others (3339/2001) [2004] ZAFSHC 143 (23 September 2004)

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[2004] ZAFSHC 143
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Leboea v Leboea and Others (3339/2001) [2004] ZAFSHC 143 (23 September 2004)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No.: 3339/2001
In
the matter between:
MMAMOLELEKI
ANNA LEBOEA
Plaintiff
and
MOEKETSI
HAGGAI LEBOEA
First
Defendant
DUNCAN
THINYANE LEBOEA
Second
Defendant
MOTSELISO
ROSE MOGOTSI
Third
Defendant
(born
LEBOEA)
THE
MAGISTRATE LADYBRAND N.O.
Fourth
Defendant
_____________________________________________________
JUDGMENT:
KRUGER J
_____________________________________________________
HEARD
ON:
31
AUGUST, 1 & 3 SEPTEMBER 2004
_____________________________________________________
DELIVERED
ON:
23
SEPTEMBER 2004
_____________________________________________________
[1] Plaintiff claims
payment of R764 996,90 and R226 628,46 from second defendant,
together with interest on those amounts from 7
December 1998.
[2] Plaintiff’s claim
flows from her entitlement to share in the joint estate between her
and first defendant, (her former husband)
and in particular, to share
in an inheritance.
[3] Plaintiff was married
to first defendant in community of property and they were divorced in
this Court on 23 February 1999. The
divorce order reads as follows:
“
1. Dat die huweliksband tussen
eiser en verweerderes hierby ontbind word.
2. Dat die gemeenskaplike boedel van
die partye verdeel word met dienverstande dat verweerder se regte
voorbehou word met betrekking
tot enige erflating of erflatings
voortspruitend uit die dood van wyle Matsebiso Dinah Leboea en wyle
Nathan Sellalane Leboea welke
eiser en/of die gemeensakplike boedel
mag toekom of toegekom het en sal hierdie bevel in geen opsigte ‘n
beperking wees op verweerderes
se regte en/of locus standi nie
rakende enige aansoek of aksies wat sy in hierdie verband mag beoog
en/of instel, ten einde haar
aandeel hieromtrent te vorder.
3. Dat
elke party sy of haar eie koste betaal.”
[4] The court order
contemplates the inheritances from Matseliso Dinah Leboea
(“Matseliso”) and Nathan Sellalane Leboea, (“Sellalane”)
who
were the parents of the first three defendants, who were their only
children, the second defendant being the eldest son. The
fourth
defendant does not oppose the relief sought and filed no pleadings.
I refer to the first to third defendants as the defendants.

Matseliso and Sellalane were married on 11 July 1959 at Senekal and
under “remarks” their marriage certificate contains the
following:
“
In
community of property and of profit and loss in terms of section
22(6) of Act no. 38 of 1927.”
above the signature of
the Methodist Reverend.
[5] Matseliso died on 15
September 1996, and Sellalane on 24 July 1997.
[6] On 15 August 1997 the
fourth defendant, the magistrate, Ladybrand, appointed the second
defendant as representative of the estate
of Sellalane in terms of
regulation 4 (1) of the regulations under section 23 (10) of the
Black Administration Act 38 of 1927. Regulation
4(1) reads as
follows:
“
For
the administration and distribution of any property in the estate of
a deceased Black referred to in regulation 2 the appointment
of an
executor shall not be necessary; provided that whenever the
magistrate in whose area of jurisdiction the deceased Black
ordinarily
resided considers it desirable, he may issue a certificate
to any person whom he may deem suitable, appointing him to represent
the
estate and to assume responsibility for the payment of debts, the
collection of assets and the general administration and distribution
of property. Such a certificate shall be issued in any case where it
is necessary to pass transfer to any person of immovable property,
not being land in a location held under quitrent conditions,
registered in the name of the deceased.”
[7] The minutes of the
investigation conducted by the fourth defendant are attached to the
particulars of claim. The second defendant
reported the estate. On
the form he states:
“
Ek
maak aanspraak as regmatige erfgenaam omrede: ek die oudste seun
is.”
[8] The second defendant
caused first and final distribution accounts to be drawn.
[9] Sellalane died prior
to the winding up of the estate of his wife, Matseliso, but First
National Bank, who drew the accounts, simply
listed all assets.
ESTATE OF MATSELISO &
SELLALANE
[10] Annexure “E”
gives details of the estate of Matseliso. It states at p. 5 thereof
(p. 27 pleadings):
“Balance
for distribution: R6 375 975.19.”
[11] That amount is then
distributed amongst the first three defendants in terms of a
redistribution agreement signed on 2 June 1998
as follows:
(i) Second
Defendant: Fixed property and a motor vehicle valued at R4 028 300.00
(ii) First Defendant:
BMW motor vehicle valued at
R64 000,00.
(iii) Third Defendant:
Household furniture and effects valued at R200 000,00.
(iv) Second Defendant:
Residue of assets in the estate of Matseliso: R2 086 675,19
[12] The plaintiff says
that, but for the redistribution agreement, the communal estate of
Matseliso and Sellalane would have devolved
upon the first, second
and third defendants and the surviving spouse in equal shares in
terms of the provisions of
section 1(1)(c)
of the
Intestate
Succession Act, 81 of 1987
.
[13] There is no evidence
that anyone – nor one of the defendants, nor the magistrate to whom
the estate was reported, nor First
National Bank who drew the estate
accounts, ever contemplated that the
Intestate Succession Act
applied
. The third defendant testified that she was satisfied with
her inheritance. Firstly because the second defendant was always
active
in the business of their parents and managed everything there.
Secondly she said, according to “our Sotho custom” the eldest
son gets everything after the death of the parents.
WAS THE MARRIAGE OF
SELLALANE AND MATSELISO IN COMMUNITY OF PROPERTY?
[14] The defendants
allege that Matseliso and Sellalane were not married in community of
property as the marriage certificate purports
to state. The
defendants say that it is a mandatory requirement of
section 22(6)
that in order for a marriage of Black persons under Act 38 of 1927 to
be one in community of property there must be a joint declaration
before a magistrate, commissioner or marriage officer that it was the
intention and desire that community of property and profit
and loss
shall result from the marriage. They say in their plea:
“
No
such formal declaration took place at least one month prior to the
marriage ceremony. Defendants plead that the marriage ceremony
in
the church was done because of the parties’ adherence to the
Christian faith, but that all the customary principles of lobolo
agreement and traditional ceremony were adhered to.”
[15] Section 22(9) upon
which the defendants rely in this respect reads as follows:
“
Provided
that in the case of a marriage contracted otherwise than during the
subsistence of a customary union between a husband and
any woman
other than the wife it shall be competent for the intending spouses
at any time within one month previous to the celebration
of such
marriage to declare jointly before any magistrate, commissioner or
marriage officer (who is hereby authorised attest such
declaration)
that it is their intention and desire that community of property and
of profit and loss shall result from their marriage,
and thereupon
such community shall resolve from their marriage except as regards
any land in a location held under quitrent such
land shall be
excluded from such community.”
[16] The plaintiff says
that one must accept what is stated on the certificate and that the
marriage was one in community of property.
[17] The defendants
fundamentally misread section 29(6). It does not say that the
declaration should take place at least a month
before the marriage,
it says
within
a month
before the marriage. This means that at any moment prior to the
marriage such declaration can be made before the marriage officer
who
is appointed for such purpose in terms of section 22(6). “Within”
according to the
Shorter
Oxford English Dictionary
means: “before the end of (a period); …. between the beginning
and end of (a period)”. The Afrikaans text makes this even
clearer, which states:
“te
enige tyd binne een maand voor die bevestiging van daardie
huwelik
”.
Thus this point has no merit and it must be accepted that the
parties were married in community of property.
DOES THE FACT THAT
MATSELISO AND SELLALANE ALSO ENTERED INTO A CUSTOMARY MARRIAGE HAVE A
BEARING ON THE CIVIL LAW MARRIAGE?
[18] The next issue is
the fact that Matseliso and Sellalane also entered into a traditional
marriage. By making the declaration
before the marriage officer in
terms of section 22(6) of Act 38 of 1927 that it is “
their
intention and desire that community of property and profit and loss
shall result from the marriage
”
the intending spouses expressly departed from the consequences of the
customary marriage. As Seymour puts it:
“
By contracting a marriage by civil
rites, the spouses thereby irrevocably assumed a nuptial status under
the law of the land, and
all matters of status arising out of the
marriage were dealt with under that law, namely the consequences and
dissolutions; … and
the property rights both of the spouses and the
children …
”
(Seymour,
Customary
Law in Southern Africa
,
5
th
Edition (1989) by J.C. Bekker at 251)
[19] Seymour also says
that “
even after the
death of both parents, the children of a civil marriage continued to
enjoy a status under the law of the land, and
all matters pertaining
to their status were dealt with under this system.
”
(
loc.cit
).
[20] As a matter of
interest, reference can be made to the
Recognition of Customary
Marriages, Act 120 of 1998
, which came into operation on 15 November
2000, after the relevant events in this case had taken place.
Section 10(1)
of Act 120 of 1998 provides that parties to a customary
marriage may enter into a civil marriage (under the Marriage Act 25
of 1961)
and such marriage is then in community of property, unless
the parties stipulate otherwise.
[21] By deciding to get
married under civil rights, Matseliso and Sellalane accepted the
consequences of a marriage in community of
property, and their
marriage was governed by principles of the civil law, not customary
law, which they had expressly decided to
depart from by contracting
the civil marriage and particularly by making the declaration under
section 22 (9).
WHAT DID THE
DEFENDANTS INHERIT?
[22] Mr Heymans, for
plaintiff, submits that the three defendants inherited equally as
intestate heirs. He says because the ultimate
division was unequal,
there was a donation (with reference to the unreported judgment of
Hattingh, J in
COETZER
N.O. vs DIE MEESTER VAN DIE HOOGGEREGSHOF
___
(VRYSTAATSE
PROVINSIALE AFDELING)
case no. 3083/2001 and 3344/2001 dated 29 November 2001, at pages 9
-10).
[23] Mr Heymans says that
repudiation of an inheritance must be express, otherwise there is
acceptance. There are, however, cases
in which the courts have
rescinded adiation due to adiation having taken place in ignorance of
the rights conveyed, nullifying the
adiation. (
VAN
DER MERWE v DIE MEESTER
1967(2) SA 714 (SWA);
HITZEROTH
v BROOKS
1965 (3) SA 444
(A), Shrand,
The
Administration of Deceased Estates in South Africa
,
3
rd
Edition (1973) 211. There is no evidence that the three defendants
at any time believed, contemplated or were told that the estate
devolved in three equal portions upon them. In her evidence under
cross-examination the plaintiff
inter
alia
said the following:
“
Can you just explain to me or give
me a reason why you are just claiming against one of the person who
inherited from this estate
and not from the other two? --- Because
everything was inherited by him.”
“
I
put to you that this is a contradiction to what you have just gave
evidence about that indeed the other two, the other sister and
the
other brother, also received some inheritance. --- Yes, it is because
Duncan did give some of the inheritance to them because
he is the old
one.”
“
MR
CLAASEN: I also do not have clarity in my mind exactly what is your
answer now that you are only claiming against the second defendant,
is your answer that he received the whole estate and then he donated
some of that which he inherited or received to his brother and
sister? --- Yes, that is correct, that is what happened; he
inherited everything and after that he gave
something to the defendant and also to
the third defendant.”
[24] The plaintiff never
says that all three the defendants each inherited an equal portion.
Her evidence seems to be that the second
defendant, the eldest son,
had to distribute the assets among the three of them. This was in
fact done in terms of the redistribution
agreement.
The only other witness
who testified – save for formal evidence – was the third
defendant who also testified that all three defendant
(heirs) were
content with the redistribution agreement.
SECTION
15(3)
OF THE
MATRIMONIAL PROPERTY ACT 88 OF 1984
[25] Plaintiff’s case
is that first defendant’s entitlement to one third of the estate of
Matseliso and Sellalane was an asset
in the joint estate of the
plaintiff and first defendant and that the redistribution agreement
was a donation of that asset to the
second defendant prohibited by
section 15(3)(c)
which the plaintiff is now claiming from the second
defendant.
[26] Mr Heymans argued
that each of the three defendants got one-third and the
redistribution agreement constituted an agreement of
donation by the
first defendant in contravention of
section 15(3)
of the
Matrimonial
Property Act, Act
88 of 1984.
[27] Mr Claasen submits
that it is now an accepted principle that the Executor receives the
assets from the deceased. It is the Executor
who distributes these
assets and delivers these assets to the heirs. Before delivery or
registration, there are no assets in the
estate of the heirs. They
only have a
ius
in personam
,
i.e. a right to claim delivery of an inheritance. See
ESTATE
SMITH v ESTATE FOLLETT
,
1942 AD
364
at 383
;
CIR
v ESTATE CREWE AND ANOTHER
,
1943 AD
656
at 692
;
GREENBERG
v ESTATE GREENBERG
,
1955
(3) SA 361
(A) at 364 G - H.
[28] An intestate
inheritance is only a competence (entitlement) and not a right. A
beneficiary only acquires a
right
if he accepts the benefit. See
WESSELS
N.O. v DE JAGER EN ‘n ANDER NNO
[2000] ZASCA 132
;
2000 (4) SA 924
(SCA) par. 6
[29] There is no evidence
that the first defendant accepted the right (to a third of the
intestate of his parents). Thus, so mr Claasen
argues,
section 15(3)
does not become relevant, because it deals with assets. He says that
a mere competence to accept a right is not even a personal
right, let
alone an asset.
[30] Mr Heymans, on the
other hand, says that
section 15
of the
Matrimonial Property Act is
aimed at protecting the interests of the parties and in particular
the wife in a marriage in community of property (with reference
to
Schäfer,
Family
Law Service
,
Part B, Matrimonial Property pp. 19 – 20.
[31] Mr Heymans says that
section 15(3)(c)
deals with any asset of the joint estate whether
immovable, movable, corporal or incorporal. Mr Heymans says an
inheritance that
can be claimed has value and it should therefore, in
terms of the
Matrimonial Property Act be
interpreted as an asset. Mr
Heymans refers to
section 15(3)(b)(ii)
which refers to an inheritance
bequeathed to the other spouse. The other spouse may in terms of
section 15(3)(b)(ii)
receive any money due to or accruing to the
other spouse by way of such inheritance. However,
section 15(3)(c)
,
upon which the plaintiff relies says that no
asset
in the estate may be donated to another person.
[32] It is plaintiff’s
case that a spouse who did not give consent for any donation or
alienation as required by
section 15
has the right to reclaim such
donation even against third parties. Plaintiff relies on the
dictum
of
Maritz J in
BOPAPE
AND ANOTHER v MOLOTO
2000
(1) SA 383
(T) at 387 A:
“
To accomplish a lawful donation or
an alienation without value, the consent of both spouses is required.
When it is clear that such
consent is absent, the alienation cannot
be lawful. In my view it follows of necessity that such alienation
is void.”
And at 388 F – G:
“
The
moment the
causa
for the acquisition falls away, it follows of necessity in my view
that the particular asset or assets must return whence it or they
came, being the joint estate.”
[33] It should be noted
that in the
BOPAPE
case the two spouses jointly claimed the asset from the defendant
being money of the joint estate spent by the second plaintiff on
his
paramour (the defendant).
[34] Mr Heymans takes
that argument further and submits that plaintiff, as former spouse in
the community of property, by virtue of
her rights reserved in the
decree of divorce she obtained against the first defendant, can now
ask the Court to declare the donation
which the first defendant made
to the second defendant void and that the money be returned to her.
WAS THE MONEY CLAIMED
BY PLAINTIFF EVER AN ASSET IN THE JOINT ESTATE OF PLAINTIFF AND FIRST
DEFENDANT?
[35] The central question
appears to be whether the money which the plaintiff claims was ever
an asset in the joint estate. Once
that question is answered one can
consider the question whether she is entitled to claim it from the
second defendant.
[36] Although Matseliso
and Sellalane were married in community of property their estates
were reported to the magistrate, who dealt
with them under Act 38 of
1927. This appears from the appointment of the second defendant as
representative of the estate and his
claim to the inheritance by
virtue of being the eldest son, is recorded in the documentation by
the fourth defendant, the magistrate
Ladybrand. The fact that the
estate was so administered is confirmed by plaintiff’s evidence
referred to above that the second
defendant got all and then
distributed it to the others. On plaintiff’s allegations in the
pleadings the first defendant got one
third then gave it to the
second defendant, thereby contravening section 15(3)(c). There is
simply no evidence to establish that
that ever happened.
[37] The liquidation and
distribution account, drawn by First National Bank, states that
Matseliso and Sellalane were married in community
of property –
there is however no distribution – those documents refer to the
redistribution agreement. Mr Heymans said that
the sole purpose of
the liquidation and distribution account was to determine the fee of
First National Bank. That accords with
the other evidence. The
estate was never administered as one in community of property.
[38] Plaintiff’s case
is based on how the estate
should
have been
administered,
namely that each of the three defendants should have got one third.
[39] That never happened.
If the estate had been so administered, one third (roughly speaking)
would have been allocated to the first
defendant. That never became
an asset in his estate because the estate was never so administered.
If the estate of Matseliso and
Sellalane
had
been
so
administered, the first defendant would possibly have had an
entitlement
;
that however never happened. Then there was also the redistribution
agreement.
THE REDISTRIBUTION
AGREEMENT
[40] Accepting that the
marriage of Matseliso and Sellalane was one in community of property,
the question arises whether the three
defendants were entitled to
enter into the redistribution agreement. A redistribution agreement
will not be sanctioned by the Court
if the heirs disagree, and if the
redistribution agreement goes against the wishes of the testator and
varies the terms of the will.
DE
WET v DE WET AND OTHERS
1951 (4)
SA 212
(C) at 218
;
BYDAWELL
v CHAPMAN N.O. AND OTHERS
1953 (3) SA 514
(A) at 524.
[41] In this case,
however, there is no will. There are no wishes of a testator.
[42] Mr Heymans relies on
section 15 to say the redistribution agreement is invalid because it
takes away rights which would have
existed, had the estate devolved
under section 1(1)(c) of the Inheritance Succession Act.
[43] There was never an
asset in the joint estate which the first defendant could donate to
any person. There was at best for plaintiff
possibly an entitlement
to an inheritance, which the first defendant never accepted, as is
evidenced by the redistribution agreement.
There was no obligation
on first defendant to accept an inheritance. It has not even been
proved that first defendant was entitled
to the inheritance plaintiff
alleges. For that reason plaintiff’s claim under section 15(3)
has to fail.
DELICT
[44] Plaintiff also
failed to make out a case in delict. She has not shown that the
second defendant performed any unlawful act.
There is no allegation
of wrongfulness on the part of the second defendant. It is not
plaintiff’s case that second defendant
entered into the
redistribution agreement with the intent to wrongfully deprive her of
her rights. Her evidence is that the second
defendant was unaware of
her marital problems and certainly there was no evidence to show that
the second defendant was aware of
the agreement in the order of court
or that she was claiming an entitlement to the inheritance. That
makes any delictual claim untenable.
ENRICHMENT
[45] An heir who has been
paid too much is liable to another heir on the basis of enrichment.
A
condictio
indebiti
will lie against any person, legatee or heir who has been paid more
than he should have been out of the assets of the deceased -
LAING
v LE ROUX
1921
CPD 745
at 748. But in this case there is simply no basis on which
the plaintiff can claim that she was impoverished. She could not have
been impoverished because if the first defendant had no right she had
even less of a right. She is not an heir. No enrichment claim
can
stand. There was no wrongful distribution.
[46] This is not a claim
for breach of contract against the first defendant. Plaintiff claims
payment only from the second defendant.
Plaintiff has failed to make
out a case.
[47] Plaintiff’s claims
are dismissed with costs.
________________
A
KRUGER, J.
On behalf of
Plaintiff:
Advocate
P Heymans
Instructed by
AP
Pretorius en Vennote
BLOEMFONTEIN
On behalf of
Defendants:
Advokate
JY Claasen
Instructed by
Naudes
BLOEMFONTEIN
/ec