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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
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 2023/126365
In the matter between:
M[…] B[…] M[…] Plaintiff
And
M[…] G[…] Defendant
______________________________________________________________________
Summary : Application for divorce. Parties married according to customary law in terms
of the Recognition of Customary Marriages Act 120 of 1998 (RCMA). Marriage is not
registered with the Department of Home Affairs (DHA) and is now irretrievable broken
down and there are no prospects to reconcile. Section 8(1) of RCMA empowers Court to dissolve the marriage, thus, section 7(3) requires the Court to apply the provisions of section 9 of the Matrimonial Property Act 88 of 1984 and section 9(1) of the Divorce Act
70 of 1979 in regulating the proprietary consequences of the customary marriage. (1) REPORTABLE: NO
(2) OF INTEREST TO OTHER
JUDGES: NO
(3) REVISED: NO
DATE: 27 March 2025
SIGNATURE: ______________________
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Difficulty raised herein in drawing lessons from a different setting of law in addressing
the proprietary consequences that arose from another distinct system. Notwithstanding
the difficulty, the Court considered the blend of these systems in granting the
appropriate remedy i n the dispute. The parties submitted a settlement agreement which
is tagged as “Original” that is made an order of this Court. The contentious issue was
the division of pension interest s wherein the Plaintiff rejected it as it would unduly
benefit the Defendant. The Court considered the nature of the marriage in community of
property within the framework of the RCMA and the fact that the Plaintiff is a member of
the Momentum Corporate Funds At Work Umbrella Provident Fund ( Provident Fund) .
This Court put emphasis on the overall purpose of the RCMA with supplementation of
the jurisprudence in giving context to the relief sought. It then ordered the division of the
pension interest and for the Defendant to receive 50% of the share as regulated by the nature of their marriage in community of property.
______________________________________________________________________
ORDER
(i) The application for the dissolution of marriage between the parties is granted.
(ii) The Deed of Settlement attached as “ORIGINAL” is made an order of Court.
(iii) The Defendant is to receive 50% of the Plaintiff’s total pension interests in the
Momentum Corporate Funds At Work Umbrella Provident Fund ( Provident Fund) ,
calculated at the date of the decree of divorce as defined in section 7 subsections 7 and
8 of the Divorce Act 70 of 1979.
(iv) The Provident Fund is, effectively from the date of this order, required to endorse
its records and pay the Defendant the calculated amount as per the order in (iii) above.
(v) The parties are ordered to pay their own costs relating to this application and the
costs of one Counsel where so employed on Scale B in terms of Rule 67 of the Uniform
Rules of the Court.
JUDGMENT
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NTLAMA -MAKHANYA AJ
Introduction
Background
[1] This matter involves an application for a divorce wherein the parties were married
in terms of customary law as envisaged in the Recognition of Customary Marriages Act
of 120 of 1998 (RCMA). The marriage was celebrated on 17 June 2017. Thus, the
marriage has since irretrievable broken down and both parties sought an order for
divorce. The parties appeared before me and were legally represented. I reserved the
orders for the sought prayer s. I am presenting the reasons for the reservation of such
orders.
[2] In this matter, the issues were settled between the parties and prayed for this
Court to confirm and make such settlements an order of this Court. The parties sought
an order for confirmation that:
[2.1] the bonds of marriage subsisting between the Plaintiff and the Defendant
be and hereby dissolved.
[2.2] the Deed of Settlement attached hereto marked " ORIGINAL " be made an
order of Court .
[3] However, the contentious issue of the forfeiture of the pension payout interests
remained contested and was left for argument . After hearing the argument , the
judgment was reserved by this Court.
[4] For argument, Counsel for the Plaintiff invited Ms M […] (Plaintiff) to testify and
give a background on the status of the marriage. The summary of her evidence is as follows. As noted above, the parties were married according to customary law and two
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children were born out of the marriage. Ms M […], as led by her Counsel, traced the
existence of the marriage on 17 June 2017 and indicated that it was not registered with
the Department of Home Affairs (DHA). The marriage has since irretrievable broken
down and is in a state of disintegration to an extent of the non- existence of any
possibility that the parties may reconcile. The Plaintiff mentioned that during the
subsistence of the marriage, they acquired both movable and immovable propert ies.
The said properties included a house; three ( 3) motor- vehicles (cars) : Mercedes Benz;
Corsa and a VW Polo. The two (2) motor -vehicles : Mercedes Benz and Corsa, have
been sold by the Defendant and she is now left with the VW Polo. She once lost
employment and regained it in June 2021 at SOS Protection. The Defendant also
moved out of the marital home on 29 December 2020.
[5] She also highlighted that they tried to reconcile which was initiated by the
Defendant through mediation by family involvement and such an attempt was in vain.
She further stated that she was unemployed at the time of separation and only got re-
employed in June 2021. Following the enquiry from this Court she indicated that s he is
currently a member of the Momentum Corporate under Funds At Work Umbrella
Provident Fund. She also indicated that the Defendant never contributed to the said
Fund and there is a standing Protection Order against him dated 02 February 2022
granted by the Magistrate in the District of Ekurhulen i. She is also not claiming any
share from the Defendant and on the other hand, the division of the pension interests
will be of prejudice to her and unduly benefit the Defendant.
[5] On the other hand, t he Defendant , in his quest for the sharing of the pension
benefits stated that he paid the bond when the Plaintiff was unemployed. He only
stopped contributing to the marital home when the house was rented out by the Plaintiff
and the tenants started paying rent. He, therefore, by virtue of the status of their
marriage in community of property entitled to the share of the divided pension interests.
He prayed for this Court to consider the division of the interests as he will be prejudiced
by the non- division.
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[6] This background is of importance in that it forms the basis upon which the
Plaintiff applies for the forfeiture of pension payout interests against the Defendant. I will
then incorporate the legal principles in the analysis of this matter because the parties
have settled and only argued for the forfeiture of patrimonial benefits relating to the
payment of pension interests to the Defendant. Thus, I am also not going to deal with
the settled issues of the application wherein the parties merely seek an order for
confirmation by this Court. It then begs a question on the extent to which customary law
practices fall within the broader framework in the regulation of the proprietary
consequences of a customary marriage.
Analysis
[7] The subject of contention in this matter is the forfeiture of the pension payout
interests to the Defendant . The Plaintiff is strongly opposed to the sharing of pension
interests with the Defendant. Of interest in this matter is that the parties are married
according to customary law. The status of the marriage is automatically in community of
property and there is no prior exclusion in terms of an antenuptial contract . Let me
reiterate, i t then raises the question about the fitting of customary law in the entire
scheme of regulating the proprietary consequences of the marital benefits on dissolution
of a customary marriage. Simply put, how does customary law, as an independent
constitutionalised legal system, regulates the proprietary consequences of marriage on
divorce?
[8] It is common cause between parties that they are married according to
customary law which is defined in section 1 of the RCMA as the ‘ customs and usages
traditionally observed amongst Indigenous people of South Africa which forms the culture of those people’ . Customary marriage falls within this definition as it relates to
the conclusion of marriage in terms of the customary law practices.
[9] It is also worth mentioning that the marriage was not registered with the
Department of Home Affairs (DHA) . However, I will not comment on non- registration
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because section 4(9) of the RCMA does not render the marriage invalid because of its
non-registration. Further, its existence and validity were not challenged as the parties
have settled in terms of the settlement agreement tagged “Original” which is to be made
an order of this Court. Of further importance is that the Constitutional Court in Mayelane v Ngwenyama 2013 (8) BCLR 918 (CC) at para 32 held:
“Importantly, however, the Recognition Act does not purport to be – and should
not be seen as – directly dealing with all necessary aspects of customary
marriage. The Recognition Act expressly left certain rules and requirements to be
determined by customary law, such as the validity requirements referred to in
section 3(1)(b). This ensures that customary law will be able to retain its living
nature and that communities will be able to develop their rules and norms in the
light of changing circumstances and the overarching values of the Constitution.”
Hence, recently, Ntlama- Makhanya AJ in T.S.N. v J.K.M (2023/120095) [2025]
ZAGPJHC at para 15 put an emphasis and held that the marriage is not rendered invalid due to non- registration as envisaged in section 4(9) of the RCMA. Such
contention is borne by the constitutional space which customary law has since attained
in the new dispensation.
[10] This matter is one that subjects the constitutional status of customary law and its
practices to unnecessary criticisms. The RCMA, as envisaged in section 7(2) regulates
the proprietary consequences of customary marriage that is in community of property
which is also of profit and loss between the spouses unless such is specifically excluded
by the antenuptial contract . The latter provision is specific and is not on a ‘ goose- chase’
exercise about the status of the marriage and its intended benefits. This then raises an
issue regarding the interdependence of the relationship that exists between the living
and official customary law and the Constitution. The RCMA was designed to deal
speci fically with customary law . Particularly in the division of assets, which in this
instance, the pension payout interests . At face value, it appears easy, but a deeper
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reflection evidences the complexities relating to the effect of customary law in regulating
its own proprietary marital consequences as they emanate from its own context .
[11] This case is also evidence of the imposition of the different settings of law in
addressing matters that emanate from a distinct legal system. I must express that the
imposition is the creation of the RCMA itself in that section 7(3) imports the principles of
section 9 of the Matrimonial Property Act 88 of 1984 wherein the ‘ right to share in the
accrual or estate of a spouse may on divorce be declared forfeited, either wholly or in
part.’ The imposition of such principles is not in accord with the constitutionalised status
of customary law endorsed by Langa DCJ in Bhe v Khayelitsha Magistrate 2005 (1)
BCLR 1 (CC) at para 41 who stated:
“Quite clearly the Constitution itself envisages a place for customary law in our
legal system. Certain provisions of the Constitution put it beyond doubt that our
basic law specifically requires that customary law should be accommodated, not
merely tolerated, as part of South African law, provided the particular rules or
provisions are not in conflict with the Constitution. ”
Langa DCJ extended the affirmation of the status of customary law to the obligatory role
of the courts as he held:
“… customary law must be interpreted by the courts, as first and foremost
answering to the contents of the Constitution. It is protected by and subject to the
Constitution in its own right. ”
[12] I am not going to recycle the produced jurisprudence about the status of
customary law but in the context of this case, the parties have settled all other issues
relating to the dissolution of their marriage. The only contentious issue was Plaintiff’s
opposition to sharing the patrimonial benefits relating to the payment of pension
interests to the Defendant. During the subsistence of the marriage as adduced in
evidence, both parties were members of the pension fund schemes or provident funds
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until their retrenchment wherein they spent their respective payouts apart. The Plaintiff
was re -employed in June 2021 and began to contribute to the provident or pension fund
and the Defendant never contributed towards it or the household . The Plaintiff argued
that the Defendant would unduly benefit from the sharing of the payout interests .
[13] Counsel for the Plaintiff heavily relied on section 9(1) of the Divorce Act 9 of 1970
relating to the forfeiture of patrimonial benefits of marriage. The latter section provides :
"When a decree of divorce is granted on the grounds of irretrievable break down
of a marriage, the Court can make an order that the patrimonial benefits of the
marriage be forfeited by one party in favour of the other, either in wholly or in
part, if the court having regard to the duration of the marriage, the circumstances
giving 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 the other be unduly benefited. "
However, section 8(1) of the RCMA states :
“a customary mar riage may only be dissolved by a court by a decree of divorce
on the grounds of the irretrievable breakdown of the marriage.”
In this case, the court is empowered to dissolve a customary marriage in terms of the
RCMA whilst on the other hand, it must draw from the provision of the Divorce Act to
order the forfeiture of benefits on divorce. There is a misnomer in the regulation of the proprietary consequences of the customary marriage system . It is striking that the same
Court is authorised to import principles from a different setting of law to address the
proprietary consequences that emanate from another area of the legal system . This is
an indirect infusion of the common law principles in the regulation of the ma rital regime
of customary law rendering it a ‘poor cousin’ of the amalgam of South Africa’s legal
system .
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[14] The importation of common law principle s in the regulation of the proprietary
consequences of a customary marriage is a cause for great discomfort for this Court .
This Court is empowered by section 8(1) of the RCMA to dissolve the marriage. It is
also on the other hand obligatory to import the provisions of the Divorce Act and the
Matrimonial Property Act to address the consequences of the dissolved marriage. It is
my considered view that the obligation to dissolve a customary marriage whilst on the
other hand there is direct authority to resolve the matter through the lens of another
system is a condemnation of the framework of the RCMA. The condemnation ‘ waters
down’ the contextualised purpose of the RCMA as endorsed by Moseneke DCJ in
Gumede v President of the Republic of South Africa 2009 (3) BCLR 243 (CC) at para 24
who gave effect to the purpose and constitutionalised context of the statute (RCMA) as
he held:
“Without a doubt, the chief purpose of the legislation is to reform customary law
in several important ways. The facial extent of the reform is apparent from the extended title of the Recognition Act. The legislation makes provision for
recognition of customary marriages. Most importantly, it seeks to jettison
gendered inequality within marriage and the marital power of the husband by
providing for the equal status and capacity of spouses. It specifies the essential
requirements for a valid customary marriage and regulates the registration of
marriages. In this way, it introduces certainty and uniformity to the legal validity of
customary marriages throughout the country. The Recognition Act regulates
proprietary consequences and the capacity of spouses and governs the
dissolution of marriages, which now must occur under judicial supervision. An
additional and significant benefit of this legislative reform is that it seeks to
salvage the indigenous law of marriage from the stagnation of official codes and the inscrutable jurisprudence of colonial ‘native’ divorce and appeal courts. ”
Majiedt JA in Cool Ideas 1186 CC v Hubbard 2014 (8) BCLR 869 (CC) at para 28
narrowed the focus and contextualised the very purpose of the statute as is the case
with the RCMA as he held it is imperative to put emphasis on the:
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(i) purposive interpretation of a statute;
(ii) proper construction of the context; and
(iii) construction to be consisted with the Constitution … to preserve the
constitutional validity of a statute.”
The above factors are of direct relevance in the context of the RCMA regarding the
dispute of pension interests in thi s matter . They resonate with the discomfort expressed
herein of RCMA empowering the courts to dissolve customary marriages but the final
determinant for the remedies to be imposed are to be imported from a different setting
of law . If the RCMA is designed to regulate its own proprietary consequences but
effective remedies are to be drawn from principles of another legal system constitutes
an uncertainty on the evolution of customary law practices . This Court is put in an
‘awkward’ position by the very same statute it is meant to interpret and apply in giving
meaning to its overall purpose. I am of the view that this is the continued manifestation
of the past that is couched under the constitutionalised space and misses the
constitutional construction for the determination of the context where the dispute
emanates from, which is customary law .
[15] I now turn to the crux of the dispute regarding the non- sharing of the pension
interests . The Plaintiff contended that the Defendant did not contribute to the upkeep of
the family household and therefore was not entitled to the share of pension interests .
She also does not claim any benefit that may arise from the nature of marriage from the
Defendant. There is also a standing Protection Order issued against the Defendant in
terms of section 6 of the Domestic Violence Act 116 of 1998 which was also issued by
the Magistrate in the District of Ekurhuleni dated 02 February 2022. On the other hand,
the Defendant argued that he contributed to the household whilst the Plaintiff was
unemployed. It was only in 2023 when the house was rented out by the Plaintiff and the
tenants started paying rent when he also stopped contributing to the family upkeep. He
therefore states that he will be prejudiced as he is also entitled to the interests because
of the nature of their marriage and prays for the Court to divide the m.
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[16] The question that emanates from the parties’ contentions is for this Court to
balance what is prescribed by RCMA relating to the nature of the marriage and its
intended benefits vis -à-vis the remedies to be drawn from the provisions of the Divorce
Act and the Matrimonial Property Act on dissolution of their marriage?
[17] I have already made the reservation that this Court has in this balancing act as I
am now placed in a position to follow Langa DCJ in Bhe who dr ew lessons from the
Intestate Succession Act 81 of 1987 to fill the void in a matter involving the centrality of
the principle of male primogeniture in customary law of succession . Although this matter
involved the administration of the deceased estate through the lens of non-
discrimination against women and children in the context of customary law , it is of
significance and finds relevance in the sharing of the pension interests in this matter.
The importance is borne by the nature of marriage in community of property within the
broader framework envisaged in the RCMA.
[18] The Plaintiff’s reliance on section 9(1) of the Divorce Act relating to the forfeiture
of benefits which should be considered in the context of the ill -behaviour of the
Defendant is without merit . The latter section places emphasis first, on the duration of
marriage; secondly , the circumstances that gave rise to the breakdown and thirdly, any
substantial misconduct on either of the parties. I must express that there is no further or
alternative relief to be considered by this Court except the three factors in determining
the forfeiture of the patrimonial benefits. It is common cause that the parties were
married according to customary law for a period of le ss than five years (2017- 2020) as
the Defendant moved out of the marital home and two children were born in the
relationship.
[19] In this case, I am persuaded by Chesiwe J in P[…]…I[…]…L[…] v P[…] E[…]
L[…] Case number: 5345/2017, Free State, at para 34 who held ‘… the fact that the
parties are married in community of property cannot be ignored, and has to be taken
into consideration’ . This is the point of departure as a firm basis for the consideration of
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the eligibility of the Defendant to the pension interests. At the risk of rep etition , marriage
between the parties is in community of property . The status of this marriage should
therefore not be overshadowed by what I would refer to as the ‘guilty party ’ on divorce.
This means that this Court is required to uphold the law as it applies to the dispute and
not be motivated by the other party’s misconduct . It is not for this Court to make a moral
judgment except for the foundational principles of the law . It is alleged on papers and
during oral argument that the Defendant has since moved out of the marital home on 29
December 2020 and is involved in a relationship with another woman. There is also an
existing Protection Order against the Defendant that is indicative of the toxic relationship
between the parties . However, there is also no evidence placed before this Court that
the Defendant broke the terms of the Order that would warrant this Court to consider as a bar to the non- sharing of the pension interest s. It is my view that the settlement
agreement on all other issues relating to this application is indicative of what I may consider as the Defendant’s ‘remorse’ and does not show any ‘punitive’ tendencies he
may have or labouring against the Plaintiff. This Court acknowledges without digressing to the substance of this judgment, about the levels of gender -based violence against
women and children which remain of great concern. This Court is vehemently opposed
to any form of aggressive behaviour against women. V ast literature and jurisprudence is
in the public domain and I need not further elaborate on it.
[20] The Plaintiff brought to the attention of this Court the judgment in Swart v Swart
2011 (1) SA 545 (GNP) as the Judge held ‘adultery and desertion in certain instances
merely be the symptoms and not the cause of the marriage break down and that
conduct cannot be considered blame worthy ’, (emphasis added and all footnotes
omitted) . As is the case in this matter, the Defendant’s unwarranted conduct o f moving
out of the marital home should not be the basis for the determination of his potential not
to receive the share of the pension interests. Simply put, section 8(1) of the RCMA is
clear in that it is only the Courts that are empowered to dissolve the marriage and not
the Defendant’s mere desertion of the marital home that may have to be considered as
the basis for non- eligibility for pension interests . This Court acknowledges that each
case is judged ac cording to its own merits and voluminous jurisprudence has since
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been produced relating to the forfeiture of pension interests. Amongst, others, Chesiwe
J in P[…] I[…] L[…] at para 34 citing with approval Wijker v Wijker , 1993 (4) SA 720 (A)
at 727D – F which was also the source and point of legal argument for the Plaintiff,
where the court h eld in respect of forf eiture:
“It is obvious from the wording of section 9(1) that the first step is to determine
whether or not the party against whom the order is sought will in fact be
benefitted. That will be purely a factual issue. Once that has been established the
trial court must determine, having regard to the factors mentioned in the section,
whether or not that party will in relation to the other be unduly benefitted if a
forfeiture order is not made. Although the second determination is a value
judgment, it is made by the trial court after having considered the facts falling
within the compass of the three factors mentioned in the section.”
[21] I am moving from a premise of the new democratic dispensation as it equates
both men and women in marital relationships which is endorsed in the RCMA and various other adopted legislation. For example, even the Divorce Act is designed to be
of equal application to both parties on divorce and not necessarily to favour one party
over the other , (Chesiwe J in P[…] I[…] L[…] at para 35) . I am influenced by the lessons
drawn from Moseneke DCJ in Gumede where a husband’s retention of exclusive
ownership of t he family property at the prejudice of the wife was declared invalid. That
principle is of equal application herein in that the wife (Plaintiff) does not have the sole
retention of the joint estate, particularly in the context of the community of property
marriage and of profit and loss. I am not to argue for a discrimination principle as in
Gumede, thus, of great concern in this Court is the nature and status of the marriage
that is regulated by customary law which is automatically in community of property. The sharing of pension interests is a fundamental principle of law and not designed to be at
the ‘whim ’ of the unhappy person (Plaintiff) in the marriage to turn around and seek
retention of the pension interests against what is prescribed by law . The Plaintiff, as of
05 March 2025, her anticipated benefit statement until the age of retirement at 65 years
is situated at R1 33 743.41, having joined the Scheme on 01 July 2021. In this case, the
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Plaintiff regresses to the ‘fault’ system and not open to the key content of the
prescription of the laws that regulate their marital regime system.
[22] Having considered the above, I am not satisfied that there is sufficient evidence
that would permit this Court declaring the forfeiture of the pension interests whether
wholly or partially. The Defendant is eligible to have a divided share of the pension
interests due to the nature of their marriage. The proprietary consequences of marriage
are today, further influenced by the principles of the new dispensation, which are of
fundamental importance in the context of customary law that is progressively, taking its
rightful place in post -apartheid South Africa. I must revert and state that the crux of this
matter involved a blend of different legal system s in the resolving of the pension
interests payout. It limits the potential of customary law in addressing its own proprietary
consequences that emanate from its own legal system. It conflates the customary law
principles as independent and amalgam of South Africa’s legal system.
COSTS
[23] It is a standing principle of law that the costs should follow the results. In this
case, due to the nature of the dispute the costs are to be indicated as reflected below.
ORDER
[24] In the circumstances, the following order is made:
[24.1] The application for the dissolution of marriage between the parties is
granted.
[24.2] The Deed of Settlement attached as “ORIGINAL” is made an order of
Court.
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[24.3] The Defendant is to receive 50% of the Plaintiff’s total pension interests in
the Provident Fund, calculated at the date of the decree of divorce as defined in
section 7 subsection 7 and 8 of the Divorce Act.
[24.4] The Momentum Corporate Funds At Work Umbrella Provident Fund is ,
effectively from the date of this order , required to endorse its record s and pay the
Defendant the calculated amount as per the order in 24 .3 above.
[24.5] The parties are ordered to pay their own costs relating to this application
and costs on one Counsel where so employed on Scale B in terms of Rule 67 of
the Uniform Rules of the Court.
N NTLAMA -MAKHANYA
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
Delivery: This judgment is issued by the Judge whose name appears herein and is
submitted electronically to the parties /legal representatives by email. It is also uploaded
on CaseLines and its date of delivery is deemed 2 7 March 2025.
Date of Hearing: 13 March 2025
Date Delivered: 27 March 2025
Appearances:
Plaintiff : Advocate CM Maswanganyi
Instructing Attorneys: Motjopi Attorneys, Notaries and Conveyancer I NC
Defendant : Thabiso Mashita
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Instructing Attorneys: Nhlapho Moloto and Associates Incorporateda