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[2020] ZASCA 54
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Monyepao v Ledwaba and Others (1368/18) [2020] ZASCA 54 (27 May 2020)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 1368/18
In
the matter between:
MATSATSI
DINAH TINY
MONYEPAO APPELLANT
and
MOKGAETJI
MARIA
LEDWABA FIRST
RESPONDENT
MASTER
OF THE HIGH COURT, POLOKWANE SECOND
RESPONDENT
ELMARIE
BIERMAN THIRD
RESPONDENT
MATUBA
MAPONYA FOURTH
RESPONDENT
Neutral
citation:
Monyepao v Ledwaba and Others
(Case no 1368/18)
[2020] ZASCA 54
(27 May 2020)
Coram:
PETSE DP and SALDULKER, PLASKET and NICHOLLS JJA and KOEN AJA
Heard
:
20 May 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the
Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 09h45 on Wednesday the 27
th
day
of May 2020.
Summary:
Customary marriage – later civil marriage to third party
not invalidating earlier customary marriage – forfeiture of
benefits of marriage – order to that effect only competent as
adjunct to decree of divorce.
ORDER
On
appeal from:
Limpopo Division of the High Court, Polokwane
(Nair AJ, Makgoba JP and Phatudi J concurring, sitting as court of
appeal):
1 The appellant is
granted condonation for the late filing of the record. The appeal is
re-instated.
2 The first respondent’s
application for condonation for the late filing of her notice of
cross-appeal is dismissed.
3.1
It is provisionally ordered that no fee or disbursement may be
levied, whether on a party and party basis or on an attorney
and
client basis, by the attorneys and correspondent attorneys of the
parties in respect of any part of the record except for pages
1 to
125, the judgment of the court of first instance (eight pages) and
the judgment of the full court (14 pages).
3.2
The parties are granted leave to make representations on affidavit,
within ten days of the date of this order, as to why the
order in
paragraph 3.1 above should not be a final order. If no such
representations are received within the time stipulated above,
it
shall thereafter become a final order.
4 The appeal is dismissed
with costs.
5 The first respondent’s
costs of the appeal as well as the appellant’s costs of the
applications referred to in paragraphs
1 and 2 above shall be paid
from the deceased estate of the late Tlou Coliphta Phago.
JUDGMENT
Plasket
JA (Petse DP, Saldulker and Nicholls JJA and Koen AJA concurring)
[1]
This appeal concerns the assets of the estate of the late Mr Tlou
Coliphta Phago (Mr Phago) who died intestate on 22 December
2012. The
appellant, Ms Matsatsi Dinah Tiny Monyepao (Ms Monyepao), and the
first respondent, Ms Mokgaetji Maria Ledwaba (Ms Ledwaba)
both claim
to have been married to Mr Phago, in terms of customary marriages, at
the time of his death. Both were appointed as
executors of his
deceased estate on his death. Both averred – in an application
and counter-application – that the
other’s marriage to Mr
Phago was either invalid or had terminated by the time of Mr Phago’s
death. The other parties,
the Master and the respective attorneys of
the chief protagonists, play no role to speak of in these
proceedings.
[2]
In the court of first instance, the Limpopo Division of the High
Court, Polokwane, Mokgohloa DJP granted Ms Monyepao relief
alternative to the primary relief she had sought. She made an order
directing that Ms Ledwaba’s ‘interest in the estate
of
the deceased is forfeited to the deceased’s estate’, and
that the costs were to be borne by the deceased estate.
She struck Ms
Ledwaba’s counter-application from the roll with costs. Ms
Ledwaba, having obtained leave to appeal from this
court on petition,
succeeded before a full court of the Limpopo Division of the High
Court, Polokwane. The full court (Nair AJ,
with whom Makgoba JP and
Phatudi J concurred) set aside the order of the court of first
instance and replaced it with an order
dismissing Ms Monyepao’s
application, with the costs to be borne by the deceased estate. This
appeal is before us with the
special leave of this court.
[3]
Before turning to the merits of the appeal, it is necessary first to
deal with two applications for condonation, and then to
say something
of the record that was prepared in this appeal. For reasons that I
shall spell out, it is necessary to make a special
costs order in
respect of the record.
The
applications for condonation
[4]
Ms Monyepao has applied for condonation for the late filing of the
record. The founding affidavit in the condonation application
is
entirely inadequate. It does not even say when the record was filed
or when it should have been filed. The explanation is extremely
vague
and falls well short of providing an adequate explanation for the
delay. From what I can gather, however, the record was
collected
(from the transcribers, I assume) on 4 April 2019 and ought to have
been filed by not later than 5 April 2019. In all
probability, it was
filed a day or two late.
[5]
Although the explanation is far from satisfactory, the short delay
and the absence of any possible prejudice to Ms Ledwaba –
despite her hollow and unspecific protestations to the contrary –
persuade me somewhat reluctantly that condonation for the
delay
should be granted and an order should be made re-instating the
appeal.
[6]
An application has also been brought by Ms Ledwaba for condonation
for the late filing of a notice of cross-appeal. Given the
state of
the record, it is not clear to me if this relates to the
counter-application. It was struck off the roll by the court
of first
instance and, although it was mentioned in the appeal, no order was
made in respect of it. Whatever the subject-matter
of the proposed
cross-appeal, leave to cross-appeal is necessary because the rules
relating to appeals apply mutatis mutandis to
cross-appeals.
[1]
Leave has never been granted in respect of the counter-application.
The application will therefore be dismissed.
The
record
[7]
The record consists of four volumes and runs to 544 pages. Of that,
only 147 pages is relevant for the determination of this
appeal. The
rest – more than three volumes – is made up of documents
that have no place in an appeal record before
this court: a
transcript of the argument on leave to appeal before the court of
first instance; the subsequent petition to this
court for leave to
appeal, including the order (of Leach and Petse JJA) granting leave
to appeal to the full court; and an array
of documents such as
practice notes and heads of argument in the appeal to the full court.
[8]
It is incumbent on an attorney who has been instructed to bring a
matter on appeal to this court to familiarise himself or herself
with
the rules of this court. It is not good enough for such an attorney
to plead ignorance.
[2]
[9]
As most of the record is obviously irrelevant, and ought to have been
recognised as such by the legal representatives of both
sides, I can
see no reason why any legal representative on either side should be
entitled to charge anyone, be it their clients
or their opposition,
in relation to the irrelevant portions of the record. At the end of
this judgment, I shall make a provisional
order to that effect, and
give the parties an opportunity to make any representations they may
wish to before the order may become
final.
The
merits of the appeal
The
relief claimed
[10]
Before turning to the facts, it is necessary to set out the relief
claimed by Ms Monyepao in her application before the court
of first
instance. I do so because the relief that she claimed is dependent on
the proved facts. As Ms Ledwaba’s counter-application
is not
before us and irrelevant, I shall say nothing more about it
[11]
In her notice of motion, Ms Monyepao applied for orders: (a)
declaring that the customary marriage between Mr Phago and Ms
Ledwaba
had been ‘dissolved in February 2008’; alternatively,
that Ms Ledwaba’s ‘customary patrimonial
benefits’
of the marriage be forfeited to Mr Phago’s deceased estate; (c)
directing that immovable property occupied
by Ms Ledwaba and her
minor child be awarded to her minor child; (d) directing the Master
to revoke the appointment of Ms Ledwaba
as a co-executor of Mr
Phago’s deceased estate; and (e) directing the Master to
appoint Ms Monyepao as the sole executor
of that deceased estate. She
also sought an order that the costs of her application would be costs
in the deceased estate of Mr
Phago.
[12]
It is not clear at all why Ms Bierman and Mr Maponya were cited as
the third and fourth respondents. No relief was sought against
them
by Ms Monyepao. Their interest in the matter was not set out in the
founding affidavit. I cannot understand why Ms Monyepao
would
consider it necessary to cite as a respondent her own attorney, who
was assisting her in her capacity as co-executor of Mr
Phago’s
estate. What possible legal interest Mr Maponya – Ms Ledwaba’s
attorney – may have in the application
baffles me. Neither
should have been cited as parties.
The
facts
[13]
Ms Monyepao alleged that Ms Ledwaba married Mr Phago in either June
or July 2007 in terms of customary law. That is admitted
by Ms
Ledwaba. Ms Monyepao then stated that this marriage ‘lasted
until February 2008’. This is denied by Ms Ledwaba.
She said
that her marriage relationship with Mr Phago continued, even after he
had started ‘an extra-marital relationship’
with Ms
Monyepao. Her marriage to Mr Phago, she said, ‘was never
dissolved nor terminated until the death of the Deceased’.
On
the basis of the
Plascon-Evans
rule,
[3]
this must be accepted
as one of the facts upon which the application was to be decided.
[14]
Ms Monyepao then alleged that between 17 July 2010 and 28 August
2010, she and Mr Phago entered into a customary marriage.
Ms
Ledwaba’s answer was that this marriage was a nullity ‘because
it was concluded while the Deceased was married to
me, without
following the required procedure that would validate it’. This
is, for the most part, a legal point, although
if particular
procedures applied in terms of the applicable custom, Ms Ledwaba has
failed to prove the rule of customary law she
relied on. As a result,
it must be accepted as a fact that Ms Monyepao and Mr Phago entered
into a customary marriage during the
subsistence of the customary
marriage of Ms Ledwaba and Mr Phago. The legal question to be
answered is whether the fact of that
marriage invalidates the later
marriage.
[15]
Ms Monyepao alleged further, in support of her case that Ms Ledwaba
was no longer married to Mr Phago at the time of his death,
that on
26 November 2009, Ms Ledwaba married Mr Andrew Kwele in a civil
marriage. Ms Ledwaba admitted this marriage but said that
‘it
was null and void and did not have the effect of dissolving my
customary marriage with the Deceased’.
The
issues
[16]
Arising from the relief that was claimed by Ms Monyepao and the facts
I have outlined, the following principal issues require
decision: (a)
whether the customary marriage between Ms Ledwaba and Mr Phago was
dissolved in February 2008; (b) if not, whether
Ms Ledwaba’s
civil marriage to Mr Kwele had the effect of invalidating her
customary marriage to Mr Phago; and (c) in the
alternative, whether
Ms Ledwaba should be ordered to forfeit the benefits of her marriage
to Mr Phago.
[17]
The secondary issues that require decision relate to paragraphs 3, 4
and 5 of the notice of motion. They are: (a) whether the
immovable
property in which Ms Ledwaba and her minor daughter reside should be
‘awarded’ to her minor daughter; (b)
whether the Master
should be ordered to remove Ms Ledwaba as a co-executor of the estate
of Mr Phago; and (c) related to that,
whether the Master should be
ordered to appoint Ms Monyepao as the sole executor of that estate.
[18]
There is no factual basis for finding that Ms Ledwaba’s
customary marriage to Mr Phago was terminated – presumably
by
divorce – in February 2008. Ms Monyepao placed no admissible
evidence before the court of first instance to establish
this fact.
In order for the marriage to have been brought to an end prior to the
death of Mr Phago, it would have been necessary
for a decree of
divorce to have been issued in terms of
s 8
of the
Recognition of
Customary Marriages Act 120 of 1998
.
Section 8(1)
provides that 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’. A divorce in terms of this section was not even
alleged, let alone proved. That disposes of the
declaratory order
sought in paragraph 1 of the notice of motion.
[19]
In the papers, an argument was made that when Ms Ledwaba married Mr
Kwele civilly, that had the effect of nullifying her existing
customary marriage to Mr Phago. That argument runs contrary to
authority in this court. In
Netshituka
v Netshituka and Others
[4]
Petse JA held, on facts strikingly similar to those in this case,
that a civil marriage between A and B that was entered into while
A
was married in terms of customary law to C was a nullity.
[5]
The same position pertains in this case: Ms Ledwaba’s purported
civil marriage to Mr Kwele was a nullity and it had no impact
on the
validity of her prior customary marriage to Mr Phago.
[20]
I turn now to the relief claimed in the alternative to paragraph 1,
namely that Ms Ledwaba be ordered to forfeit the benefits
of the
marriage in favour of the estate of Mr Phago. That was the relief
granted by the court of first instance.
Section 8(4)
of the
Recognition of Customary Marriages Act provides that when a court
grants a decree of divorce in respect of a customary marriage,
it has
the powers contemplated, inter alia, in
s 9
of the
Divorce Act 70 of
1979
.
Section 9(1)
of the
Divorce Act, in
turn, provides:
‘
When
a decree of divorce is granted on the ground of the irretrievable
break-down of a marriage the court may make an order that
the
patrimonial benefits of the marriage be forfeited by one party in
favour of the other, either wholly or in part, if the court,
having
regard to the duration of the marriage, the circumstances which gave
rise to the break-down thereof and any substantial
misconduct on the
part of either of the parties, is satisfied that, if the order for
forfeiture is not made, the one party will
in relation to the other
be unduly benefited.’
[21]
It is clear from
s 9(1)
that the power of a court to order the
forfeiture of benefits arises only as an adjunct to a decree of
divorce. Moreover, a claim
for the forfeiture of benefits can only be
made by one party to a marriage against the other in divorce
proceedings. It is not
open to an outsider, such as Ms Monyepao, to
claim that relief. As the proceedings in the court of first instance
were not divorce
proceedings, and Ms Monyepao had no standing, that
court had no jurisdiction to order that Ms Ledwaba should forfeit the
benefits
of her marriage to Mr Phago in favour of his estate.
Consequently, the full court correctly set aside the order of the
court of
first instance.
[22]
I turn now to the relief claimed in paragraph 3 of the notice of
motion. There are two fundamental problems with seeking an
order that
the immovable property in which Ms Ledwaba and her daughter reside be
‘awarded’ to her daughter: first,
not even an attempt was
made in the founding affidavit to make out a case for this relief.
Secondly, it is incompetent. Mr Phago’s
estate must, like every
other intestate deceased estate, be liquidated and then distributed
in accordance with the rules of intestate
succession. Ms Monyepao
has, together with Ms Ledwaba, been appointed as an executor for
precisely this purpose. Consequently this
relief could not have been
granted.
[23]
I shall deal with the relief claimed in paragraphs 4 and 5 of the
notice of motion together – for the Master to be ordered
to
remove Ms Ledwaba as an executor and to appoint Ms Monyepao as the
sole executor of Mr Phago’s estate. Presumably, this
relief was
sought in the belief that Ms Ledwaba’s civil marriage to Mr
Kwele had the effect of dissolving her earlier customary
marriage to
Mr Phago. As indicated above, this is not the case. Once again,
however, not even an attempt was made in the papers
to make out a
case for this relief. This relief too could not have been granted.
Conclusion
[24]
From the above, it will be clear that the appeal must fail. In
addition to making an order concerning the merits of the appeal,
it
is also necessary to make orders concerning the applications for
condonation and the problems that I have outlined in relation
to the
record.
[25]
I consequently order:
1 The appellant is
granted condonation for the late filing of the record. The appeal is
re-instated.
2 The first respondent’s
application for condonation for the late filing of her notice of
cross-appeal is dismissed.
3.1
It is provisionally ordered that no fee or disbursement may be
levied, whether on a party and party basis or on an attorney
and
client basis, by the attorneys and correspondent attorneys of the
parties in respect of any part of the record except for pages
1 to
125, the judgment of the court of first instance (eight pages) and
the judgment of the full court (14 pages).
3.2
The parties are granted leave to make representations on affidavit,
within ten days of the date of this order, as to why the
order in
paragraph 3.1 above should not be a final order. If no such
representations are received within the time stipulated above,
it
shall thereafter become a final order.
4 The appeal is dismissed
with costs.
5 The first respondent’s
costs of the appeal as well as the appellant’s costs of the
applications referred to in paragraphs
1 and 2 above shall be paid
from the deceased estate of the late Tlou Coliphta Phago.
____________________
C
Plasket
Judge
of Appeal
APPEARANCES
For
the appellant: N L Skibi
Instructed
by:
Legal
Aid South Africa, Johannesburg
Legal
Aid South Africa, Bloemfontein
For
the first respondent: M Maponya
Instructed
by:
Matuba
Maponya Attorneys, Polokwane
E
G Cooper Majiedt Inc, Bloemfontein
[1]
Rule 49(4) of the Uniform Rules. See too
Bank
Windhoek Bpk v Rajie en ‘n Ander
1994 (1) SA 115
(A) at 151F-G.
[2]
Mbutuma
v Xhosa Development Corporation Ltd
1978 (1) SA 681
(A) at 684H-685A;
SA
Express Ltd v Bagport (Pty) Ltd
[2020] ZASCA 13
para 17.
[3]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1983 (4) SA 623
(A) at 634E-635D.
[4]
Netshituka
v Netshituka and Others
2011
(5) SA 453
(SCA) para 15.
[5]
See
too
Thembisile
and Another v Thembisile and Another
2002 (2) SA 209
(T) para 32 (confirmed as correct in
Netshituka
(note 4) para 15);
TM
v NM and Others
2014 (4) SA 575
(SCA) para 17.