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
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Case No: 12635/2023P
In the matter between:
PATIENCE THABILE MDLETSHE PLAINTIFF
and
BALDWIN THULANI MDLETSHE 1ST DEFENDANT
NELISIWE GLORIA MDLETSHE 2ND DEFENDANT
REGISTRAR OF DEEDS, KWAZULU-NATAL 3RD DEFENDANT
MINISTER OF JUSTICE & CONSTITUTIONAL
DEVELOPMENT 4TH DEFENDANT
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA 5TH DEFENDANT
___________________________________________________________________
ORDER
1. The matter is struck off the motion court roll. It is referred to the trial court roll.
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2. The plaintiff is ordered to pay costs on party and party, scale C.
JUDGMENT
Mngadi J
[1] This matter serves before me for hearing on the opposed motion court roll for
hearing of a stated case . The papers consist of a stated case in form of Rule 33 (1),
summons with particulars of claim and annexures thereto and the Plea. The parties
have filed heads of argument.
[2] The parties are Patience Thobile Mdletshe , the plaintiff. Raldwin Thulani
Mdletshe an adult male, firs defendant . Nelisiwe Gloria Mdletshe an adult female,
second defendant. The Registration of Deeds, Kwa -Zulu Natal, the third defendant.
The Minister of Justice and Constitutional development , the fourth defendant. The
President Republic of south Africa, the 5th defendant. The litigation is pursued by the
plaintiff and the first and second defendants . T hese defendants oppos e the relief
sought by the plaintiff.
[3] The plaintiff seeks relief in the following terms, and costs against 4th and 5th
defendants. In the particulars of claim:
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1. It is declared that the alienation and registration of transfer from first
defendant to second defendant on 9 May 1988 of Erf 5[...] K[...] is (property) is
void ab initio and is hereby set aside.
2. Third defendant is authorised and directed to immediately register the transfer
of the property to the plaintiff and first defendant in joint and undivided shares
with first and second defendants to sign necessary transfer documents, failing
which, the Sherriff to do so.
3. It be declared retrospectively from the date of commencement that section 11
(4) of the Matrimonial Property act 88 of 1984 is unlawful and invalid as it
violates the plaintiff’s right to equal protection and benefit of the law, directly
and indirectly unlawfully discriminates against the plaintiff on the basis of
gender which effect that the provisions of sections 11 and 12 of the
matrimonial Property Act shall apply to all marriages which were not dissolved
by death or divorce as at the ate of commencement of the Act.
4. Pending confirmation of the declaration of invalidity by the Constitutional
Court, the declaration shall operate with immediate effect.
[4] In the Particulars of Claim the claim is set out as follows: The plaintiff and
second defendant married to each other in community of property, which marriage
still subsists on 5 March 1983. On 10 September 1987 the plaintiff purchased the
property form Kwa-Zulu Housing Corporation as per attached Deed of of Grant (copy
attached) and the property formed part of the joint estate of the parties. On 9 May
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1988 the first defendant without the consent or knowledge of the plaintiff caused the
property to be transferred to the second defendant which the plaintiff discovered in
2019. The second defendant caused a mortgage bond to be registered on the
property in favour of the KwaZulu Finance Corporation. The second defendant
during 1995 caused the property to be transferred to the late Nonhlanhla Joyce
Mdletshe who in turn during 2005 transferred the property to the second defendant .
The second defendant upon transfer of the property to her caused it to be mortgaged
to Standard Bank which mortgage bond was cancelled on 13 July 2020.
[5] The plaintiff, further stated as follows: The first defendant alienated and
transferred the property from the joint estate without her consent in the exercise of
marital power in existence at the time of the conclusion of the marriage and not
abolished w hen the provisions of Section 11(4) of the Marital Property Act 88 of
1984 ( the Act) were enacted and it abolished marital power in marriage s concluded
after its commencement, which renders the provisions of Section 11 (4) of the Act
constitutionally invalid.
[6] The first and second defendants pleaded as follows: They admitted the
marriage between plaintiff and first defendant. They denied that the property was
purchased by the plaintiff. They state d that the property was purchased by the ir
parents and it was later transferred to their late brother Patrick Sipho Mdletshe. It
constituted a family home to be held as such. It never formed part of the joint estate
of the plaintiff and the first defendant. This was at all material issues known to the
plaintiff.
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[7] The stated case in the section’ agreed facts’ it is stated as follows:
‘Agreed Facts
Plaintiff and first defendant are married to each other in community of property. The
marriage was concluded on 5 May 1983 , prior to the commencement of the Act on 1
November 1984. The property, erf 5[...] K[...] was acquired and registered in the name of the
first defendant. On 18 May 1989 first defendant caused the transfer of the property to the
second defendant his biological sister. Plaintiff and defendant separated during 2019.’
[8] Rule 33 provides:
‘(1) The parties to any dispute may after institution of proceedings agree upon a written
statement of the facts on a form of a special case for the adjudication of the court.
(2) (a) Such statement shall set forth the facts agreed upon , the question of law in dispute
between the parties and their contentions thereon. Such statement shall be divided into
consecutively numbered paragraphs and there shall be annexed thereto c opies of
documents necessary to enable the court to decide upon such questions. It shall be signed
an advocate and an attorney on behalf of each party or, where a party sues or defends
personally by such party
(b)…
(c) …
(3) …
(4) …
(5) …
(6) If the question in dispute is one of law and the parties are agreed upon the facts , the
facts may be admitted and recorded to the trial and the court may give without hearing any
evidence.
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[9] The so-called stated case contains factual contentions which have not been
agreed to by the parties. The pleadings ’ principal factual contention is whether the
property when acquired and subsequent thereto formed part of the joint estate of
plaintiff and first defendant . The plaintiff contends that the issue whether Section
11(4) of the Act is constitutionally valid or not , a decision on it , shall result in the
resolution of the dispute between the parties in its entirety because it allowed first
defendant to transfer the property without the consent of the plaintiff.
[10] The first and second defendant s as a preliminary point in their heads of
argument and in oral argument a rgued that it was irregular to place the matter in the
motion court roll as it should be tried as an action.; it raises factual disputes for which
it is necessary to lead oral evidence ; it was never agreed between the parties to
convert the matter to be dealt with in the form of an application and t he plaintiff
unilaterally enrolled the matter in the motion court roll for hearing.
[11] The plaintiff , in my view, is obsessed to have Section 11(4) of the Act
declared constitutionally invalid. The transfer the plaintiff seeks that it be set aside
took place on 9 May 1988. The plaintiff claims that she discovered it in 2019. She
has not explained how it happened that it took her thirty (37) years for her to discover
alienation and transfer of an immovable property forming part of the joint estate. The
plaintiff has not claimed that the alienation and the transfer caused diminution from
joint estate and that she would not have agreed to the alienation and transfer of the
property. She also does not tender return of what was paid in return of the property
to the joint estate.
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[12] The plaintiff seeks declaration of invalidity of s11(4) of the Act with
retrospective effect. It is doubtful that enactment not regulating a position prior to its
enactment can be declared retrospectively invalid to a date prior to its enactment.
The plaintiff seeks declaration of s11 (4) of the Act as constitutionally invalid
retrospectively to a date when the Constitution had not been enacted. These issues
need to be addressed by the plaintiff to demonstrate that a decision on the stated
case is necessary to resolve the dispute between the parties.
[13] The plaintiff in addition has not taken any issue with the subsequent transfers
of the property in particular the latest transfer of the property to the second
defendant. The copies of the annexures from the Deeds Registra r’s office are
illegible and the Registrar of Deeds has not filed any report. Lastly. the plaintiff if the
property never formed part of the joint estate, has not explained how the declaration
as invalid of section 11(4) of the Act will resolve the dispute between the parties.
[14] I t shall in my view serve no purpose to make a decision on whether Section
11(4) of Act is constitutionally valid or not before the resolution of the factual dispute
between the parties. I t would be an academic exercise. The question of law must
arise from the facts and be meant for resolution of the facts.
[15] The plaintiff has not utilised the provisions of rule 33(4) which provides: ‘If, in
any pending action it appears to the court mero motu that there is a question of law or facts
which may conveniently be decided either before any evidence is led or separately from any
other question, the court may make an order directing the disposal of such question in such
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manner as it may deem fit and may order all further proceedings be stayed until such
question has been disposed of and the court shall on the application of any party make such
order unless it approves that the questions cannot conveniently be decided separately .’
See Mtokonya v Minister of Police 2018 (5) SA 22 (CC) at 31C.
[16] The plaintiffs relies on Rule 33 (1) is mis conceived. Rule 33(1) requires that
the case must be confined to agreed facts from which to decide to question of law.
The parties make their different contention relating to the question of law on the
agreed facts. In th is case, the parties are not in agreement with facts on which to
decide the question of la w. Secondly, apart from the agreed facts, the parties must
agree to pro ceed in terms of Rule 33 (1) . The first and second defendants contend
that they are not in agreement with proceeding in terms of Rule 33(1) by means of a
stated case without leading of evidence. The parties must be ad idem, the plaintiff
cannot unilaterally force the issue. The plaintiff on her own insists on separation of
issues and on proceeding by means of a stated case, but she is not entitled to do so.
[17] It is ordered as follows:
1. The matter is struck off the motion court roll. It is referred to the trial court roll.
2. The plaintiff is ordered to pay costs on party and party, scale C.
__________
Mngadi J
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APPEARANCES
Case Number: 12635/2023P
For the Plaintiff: Mr Mhlaba
Instructed by: Mhlaba Attorneys
PINETOWN
For the first and second Defendants: Mr Mpanza.
Instructed by: Mpanza & Associates
GLENWOOD, DURBAN
For Third Defendant None
Instructed by: Registrar of Deeds
PIETERMARITZBURG
For 4th and 5th Defendants None
Instructed by: State Attorney
PIETERMARITZBURG
Heard : 21 April 2026
Judgment delivered on: 05 May 2026
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