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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 2025 -009348
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
(4) Date: 06 May 2025
Signature:
In the matter between:
PETER PETEKE Applicant
And
TSHIAMO ROBIN KHUMALO First Respondent
TEBATSO THEOD KHUMALO Second Respondent
BABY THABITHA KHUMALO Third Respondent
ABSA BANK TRUST LIMITED Fourth Respondent
MASTER OF THE HIGH COURT ; PRETORIA Fifth Respondent
JUDGMENT
NYATHI J
A. INTRODUCTION
[1] This is an urgent application brought in terms of Rule 6(12) of Uniform Rules of
Court, the applicant seeks an order to preserve the status quo of the deceased
estate of his customary law wife (‘the deceased’) , to ensure that there is
compliance with Section 13 of Administration of Estate Act 66 of 1965 .
[2] The respondents oppose this application.
[3] In terms of th e applicant’s marital regime with the deceased, his patrimonial
rights are at stake, should the administration of this Estate not be paused at
this stage , pending the appoint ment of an Executor who will ensure
accountability and fairness.
[4] The relief sought is temporary, pending the finalisation of his application in this
court relating to the declaration of validity of his marriage to the deceased
which is disputed by the respondents.
[5] The applicant finds himself in a conundrum because he was married to the
deceased in terms of customary law and as a result have a joint estate with the
deceased. He submits that the effect of such is, the deceased ’s last will and
testament, could not be implemented as such, because it has the potential
prejudice to his proprietary rights. In short, the deceased cannot bequeath
more than she could.
[6] What compounds matters is that the respondents have arrogated to
themselves the possession and administration of the estate in the absence of
letters of executorship, which is unlawful.
B. REQUIREMENTS FOR AN INTERIM INTERDICT
[7] For the purposes of this application, I will restate the requisites for the right to
claim an interim interdict as they obtain in our law . These are :
1. a prima facie right.
2. Irreparable harm;
3. balance of convenience ;
4. no other satisfactory remedy;
[8] Both the applicants’ and the respondents’ counsel spent considerable time
arguing and making submissions before me, regarding the mechanics of how
the marriage was negotiated, how lobola was paid as well as the provisions of
section 3 of the Recognition of Customary Marriage s Act 120 of 1998 (“the
RCMA”) and that the outcome of all this was a valid marriage in the case of the
applicant, or an invalid marriage in the case of the respondents.
[9] The issue of whether the deceased and the applicant were in a valid customary
marriage is relevant to whether the applicant has a prima facie right to claim
the temporary interdict that he seeks.
[10] I refer to this fact for context only and without determining this point judicially ; it
is due for determination before another court shortly , as the applicant’s papers
state . This point will become relevant again when the balance of convenience
is dealt with hereunder.
[11] In his founding affidavit, the applicant stated that at the lobola negotiations the
emissaries for both families concluded that he would pay a total amount of
R26 000.00 and that he would pay an amount of R14 000.00 and the balance
later. The initial amo unt of R14 000.00 was indeed paid. The applicant attaches
as proof the lobola letter .1 A translation of the letter from Setswana /Sepedi to
English is embodied in the founding affidavit.2
1 Founding affidavit paragraph 4 and Annexure P1.
2 Ibid para 4.9 .
Prima facie right
[12] According to the applicant, the deceased’s family then handed her over to his
family for them to live together as husband and wife . They stayed together for
11 years before the deceased demised.
[13] The applicant provides proof of the nature of his relationship with the deceased
by attaching i.a. an ABSA Bank Life insurance taken out by the deceased in
which he is listed as “Spouse” in the description.3
[14] The most contentious issue in customary marriages is around the interpretation
of section 3(1)(b) of the RCMA . This has been exhaustively dealt with by our
courts already , suffice to say that for purposes of this application , I find that a
prima facie right, w hich is a right that can be prima facie established even if it is
open to some doubt , has been established .4 This is primarily in terms of the
customary marriage and testamentary provisions.
Irreparable harm
[15] The dissipation of the deceased estate is a very real harm facing any claimant
or beneficiary of the estate.
Balance of convenience
[16] In the event that the applicant’s right is prove n to be a clear right, this
requirement fades into the background. The respondents are disputing the
applicant’s version of the marriage and all its sequelae . The applicant has
shown that he stands to suffer much greater preju dice if the interdict is not
granted, in comparison to the respondents if it is granted.
3 Annexure P6.
4 Webster v Mitchell 1948 (1) SA 1186 (W) at 1189 qualified by Gool v Minister of Justice 1955 (2) SA 682
(C).
[17] The exercise of the court’s discretion is guided by whether the applicant has
any prospects of success in the pending litigation or not as well as the balance
of convenience : the stronger the prospects of success, the less the need for
such balance to favour the applicant, and vice versa.5
No alternative remedy
[18] The applicant has established that he has no alternative remedy to cure the
malady that he is facing but to approach the court as he did.
C. CONCLUSION
[19] In full consideration of the foregoing, the application succeeds. The applicant is
entitled to his costs as is the established principle that costs follow the event.
[20] I make the following order:
1. The matter was heard as one of urgency in terms of Rule 6 (12) of the
Uniform Rules of Court.
2. Pendete lite the finalization of application for recognition and
registration of customary marriage between the applicant and the
deceased (the late: Choice Raesibe Khumalo) and until appointment
of Executor of deceased Estate of the Late Choice Raesibe Khumalo ,
the administration of the deceased Estate Late Choice Raesibe
Khumalo should be put on hold.
3. That, the First, Second and Third Respondents are ordered to return
all deceased assets including but not limited a Mercedes Benz Sedan
with Registration number C[...] , which they have assumed possession
thereof within 10 (ten) days of this order.
4. The first and second respondents are ordered to pay the applicant’s
costs of this application on an attorney and client scale.
J.S. NYATHI
5 Olympic Passenger Services (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D).
Judge of the High Court
Gauteng Division, Pretoria
Date of hearing: 18/02/2025
Date of Judgment: 06 May 2025
On behalf of the Applicant : Adv. Mukwevho
Instructed by: M.E. Makgopa Attorneys ; Pretoria.
E-mail: admin@makgopaattorneys.co.za
On behalf of the Defendants: Adv. P.W. Springveldt
Attorneys: J.N. Dlamini Attorneys ; Pretoria
E-mails: info@jndlaminiattorneys.co.za
Delivery : This judgment was handed down electronically by circulation to the parties'
legal representatives by email and uploaded on the CaseLines electronic platform. The
date for hand -down is deemed to be 06 May 2025.