SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	
REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA 
(MPUMALANGA DIVISION, MBOMBELA) 

(1)	REPORTABLE:NO
(2)	OF INTEREST TO OTHER JUDGES:YES
(3)	REVISED:  YES

				24/02/2021
……………………………….		………………………..
SIGNATURE			DATE

								          CASE NO: 407/2020

In the matter between:

BEKAPHI KETSHU MAGAGULA				                            Applicant

and 

MDUDUZI COMFORT NGUTSHANE			                          First Respondent

REGISTRAR OF DEEDS: MPUMALANGA			          Second Respondent

MASTER OF THE HIGH COURT				                         Third Respondent

					J U D G M E N T 

MASHILE J:

INTRODUCTION

[1]	This application traces its origins from the death of Mr Makhalatshi Jackson  Ngutshane (“the deceased”). The deceased died intestate and was survived by the  Applicant, his putative customary wife, two biological children, one of whom is the  Respondent. The deceased also had two step children. One of those children pre- deceased him while the second is still alive. Amongst assets left by the deceased  is a property described as Stand No: [….](“the property”).  Following the deceased’s demise in 2014, the Third Respondent appointed the 	First Respondent as the representative of the late estate of the deceased. 

[2]	In consequence of the First Respondent’s appointment as the representative of 	the late estate of the deceased, he successfully, ostensibly to the detriment of the  Applicant, registered transfer of ownership of the property belonging to the late  estate of the deceased in his name. The Applicant and deceased had lived 	together on the property from 1981 until 2014. The Applicant continues to occupy 	the property to date. Having registered transfer of ownership in his name, in 2019,  the First Respondent commenced eviction proceedings against the Applicant.

[3]	The Applicant successfully resisted the proceedings to evict her. To bolster her  triumph, she has now launched this application seeking relief in the following  terms:

 3.1	Setting aside the appointment of the First Respondent as the Master’s          	 Representative in the estate of the late MAKHALATSHI JACKSON              	 NGUTSHANE that is registered with the Third Respondent under reference  number 837/2015;

3.2	Reversal of the registration of ownership of the house at [….], MPUMALANGA into the name of the First               Respondent as recorded on Deed of Transfer [….] so that the property is returned to the deceased estate to be dealt with by a newly appointed          executor;

3.3	The First Respondent be ordered to pay the cost of this application on the scale as between attorney and client including the cost of transfer of the property. 

[4]	The Application is opposed by the First Respondent. The Second and Third 	Respondents are not opposing it. It is evident from the tenor of the application that  they are not the intended targets but that they have been cited merely because  they may be affected or have interest in the outcome of this judgment. Accordingly, I will henceforth refer to the First Respondent as the Respondent instead of the  First Respondent.  

FACTUAL MATRIX

[5]	The facts from which this matter emanates are largely common cause. However, 	what the parties make of those facts constitutes the essence of their dispute. The 	Applicant and the deceased met while they were living in Mbombela Township 	during the 1970’s. According to the Applicant, she and the deceased married at 	the old Home Affairs building in Barberton in 1971. Present at the time of the 	marriage was her sister. Matters pertaining to lobola payment were only 	concluded in 1987. The occurrence of the marriage of the Applicant and the 	deceased in 1971 is confirmed by her sister in an affidavit while the finalization of 	the lobola is substantiated by the affidavits of the deceased’s siblings.

[6]	Mbombela Township ceased to exist in 1981. All residents were moved to [....] Consequently, the Applicant, deceased and their two daughters  (deceased’s step daughters) IDA and RIEKIE), were allocated the house situated  at Stand [….]. To that end, the family was issued with a  certificate and a permit by the then apartheid ‘Bantu Administration Board of  Eastern Transvaal’. The family has been residing on the property since. In the 	interim, Ida and the deceased died in 1979 and 2014 respectively. In 1998, RIEKIE  decided to move out of the house leaving the Applicant alone.

[7]	The Applicant avers that it was not until April 2019 that she became aware of the 	Respondent’s ownership of the property that had been her home for decades. This  was confirmed in June 2019 when she was served with notice of application of her 	eviction from the property along with her tenants dubbed ‘illegal occupants’ by the  Respondent. As the proceedings unfolded and the papers scrutinized, it became  clear that the Respondent had applied for a letter of authority to the Master of the  High Court in Pretoria in 2015.

[8]	In his application, the Respondent either inadvertently or deliberately omitted to 	mention the Applicant as the surviving spouse of the deceased. This fact is borne 	out by the information contained in the next-of-kin affidavit wherein the Respondent  does not cite her name. It is common cause that the deceased lived and died in  [….] and that the First Respondent’s letter of authority was issued by 	the Master of the High Court in Pretoria. This was aside from the fact that by then 	Mpumalanga had its own Master of the High Court office in Nelspruit now 	Mbombela.

[9]	Registration of transfer of ownership of the property was never in either party’s 	name because their occupation has always been through the permit issued by the  authorities. Notwithstanding that the Respondent had never resided on the 	property during all the years, he still managed to register transfer of ownership into  his name. It is not seriously disputed that the municipality value of the property was 	above R300 000.00 when the Applicant verified it on the last occasion.

ASSERTIONS OF THE PARTIES

[10]	The Respondent contends that as one of two biological children of the deceased 	and since the deceased and the Applicant were cohabiting concubines, he was 	entitled to be appointed as the Master of the High Court’s representative of the 	deceased’s late estate. Moreover, his right to register transfer of ownership of the 	property into his name had been supported by his biological sister. While he admits  concubinage for the years alleged by the Applicant, he attaches no significant legal  consequences flowing therefrom.

[11]	The Respondent challenges, albeit not in so many words, the allegations that the 	Deceased and the Applicant concluded a marriage relationship in Barberton in 	1971. His main objection is that the Applicant claims that they did so at the old 	Home affairs in Barberton but she attaches no proof from Home Affairs. 	Furthermore, although she would have this Court believe that the second leg of 	lobola was concluded in 1987, the document intended to serve as 	acknowledgment of receipt of lobola firstly, does not bear the names of 	messengers from both families, secondly, it does not show what the agreed 	amount on lobola was and thirdly, how much was initially paid towards lobola.

[12]	The Applicant has furnished names of her siblings and those of the deceased as 	witnesses to their marriage whereas custom prescribes that it is aunts and/or 	uncles who would be involved in matters concerning lobola negotiations. Besides,           the application for the registration of the ostensible marriage was only made in  2019 after he had applied for the applicant’s eviction from the property. The  Respondent concludes from the above that there was therefore no marriage  between the parties.

[13]	The Respondent is also adamant that he is entitled to inherit the intestate estate 	in terms of the provisions of section 1(1)(b) of the Intestate Succession Act No 81 	of 1987 (“the Intestate Succession Act”). In essence, the provision is that where a 	deceased person is survived by a descendant and not a spouse, the descendant 	is entitled to inherit the deceased estate. Believing that the Applicant was not 	married either customarily or civilly, the Respondent, maintains that neither she 	nor her daughter is competent to inherit.

[14]	The Respondent contends that if this Court accepts that a marriage between the 	deceased and Applicant was in place as alleged, the court should find that the 	marriage was out of community of property as wives, in customary unions entered  into before the commencement of the Recognition of Customary Marriages Act No  120 of 1998 (“Recognition Act”) had no joint ownership of property with their  husbands. The provisions of section 7(1) of the Recognition Act are applicable to  such marriages and the marriage claimed by the Applicant falls under this  category.

[15]	Given the above, the Applicant would only be entitled to inherit a child’s share in 	terms of Section (1)(1)(c) of the Intestate Succession Act, which provides that a 	spouse in the position of the Applicant would be entitled to inherit the whole amount  set by the Minister from time to time or if the deceased’s estate is larger than the  amount so determined by the Minister from time to time, a person in the position  of the Applicant shall inherit a child’s share of the amount in excess.

[16]	The Respondent asserts that there exist genuine disputes of fact that go to the 	heart of the alleged marriage. This is in the light of the Applicant conceding that 	the purported marriage was not registered and there being no proof of any 	payment of lobola. The court should accordingly find that no such marriage ever 	existed.

[17]	Conversely, the Applicant asserts that available evidence demonstrates that a 	customary marriage, albeit not registered, existed between the deceased and 	Applicant. The Applicant is specifically mentioned by name by the authorities in the 	certificate concerning the deceased’s property at [….] as the wife of the 	deceased. Furthermore, at no stage did the Respondent live in the property since 	allocation to the deceased and Applicant.

[18]	Apart from the fact that the Respondent had knowledge of the deceased and 	Applicant’s concubinage for all those years, he would not mention her as a 	surviving spouse in the ‘next of kin affidavit’. The Applicant submits that had the 	Master of the High Court been aware of her existence, the Respondent would not 	have been appointed as the Master’s representative in the estate late of the 	deceased. 

[19]	The office of the Master of the High Court: Mpumalanga in Mbombela, opened its 	doors to the public in 2012. Thus, when the deceased died in 2014 it was in 	operation already. Given those facts, the Applicant finds it curious that instead of 	opening an estate late file of the deceased in Mbombela with the Master of the 	High Court, the Respondent deliberately chose to open it with the Master of the 	High Court in Pretoria.

[20]	The person who repudiates the Applicant’s inheritance (the Respondent) does not  appear anywhere on the certificate in support of the deceased’s occupation of the  property. The Deceased was the holder of the Certificate but was not the owner 	of the property. The deceased became entitled to acquire ownership of the  property through the introduction of the Upgrading of Land Tenure Rights Act 112  of 1991.

[21]	Other than the above, the Applicant contends that since she has been in 	occupation of the property for more than 30 years, in terms of Section 1 of the 	Prescription Act No. 68 of 1969 (“the Prescription Act”), she has automatically 	acquired ownership. The Applicant has acquired 50% of the property because she  has spent most of the period in excess of 30 years living in a marriage in 	community of property with the deceased.

ISSUES

[22]	It is apparent from the above facts and arguments of the parties that this Court 	ought to decide on the following:

 22.1	Were the deceased and Applicant customarily married?

22.2	Assuming that they were, what are the legal proprietary implications that     flowed therefrom insofar as intestate succession is concerned?

22.3	Does Section 1 of the Prescription Act find application in this matter?

22.4	Are there issues that require referral to oral evidence caused by disputes of  fact?

LEGAL FRAMEWORK

[23]	Customary marriages are governed by the Recognition Act. As such, any 	discussion on this subject should begin with the preamble to the Recognition Act 	especially as it sets the tone in which the inequalities, inequities and indignities to 	which customary wives were subjected ought to be addressed. The relevant 	portions of the preamble provide as follows:

“… to regulate the registration of customary marriages; to provide for the equal 	status and capacity of spouses in customary marriages; to regulate the proprietary consequences of customary marriages and the capacity of spouses of such marriages; to regulate the dissolution of customary marriages;” 

 [24]	Section 2 of the Recognition Act lays down that: “A marriage which is a valid 	marriage at customary law and existing at the commencement of this Act is for all 	purposes recognised as a marriage.”

[25]	Section 4(9) states that failure to register a customary marriage does not 	affect the validity of that marriage. Section 6 provides:

“A wife in a customary marriage has, on the basis of equality with her husband and subject to the matrimonial property system governing the dispose of them, to enter into contracts and to litigate, in addition to any rights and powers that she might have at customary law.”

[26]	Section 7 is headed, Proprietary consequences of customary marriages and contractual capacity of spouses, and it states:

“(1) The proprietary consequences of a customary marriage entered into 
before the commencement of this Act continue to be governed by 
customary law.

(2) A customary marriage entered into after the commencement of this Act in which a spouse is not a partner in any other existing customary marriage, is a marriage in community of property and of profit and loss between the spouses, unless such consequences are specifically excluded by the spouses in an antenuptial contract which regulates the matrimonial property system of their marriage.”

EVALUATION

EXISTENCE OF CUSTOMARY MARRIAGE

[27]	The Respondent challenges the fact that the Applicant and deceased ever 	concluded a marriage but admits that they had lived together for approximately 	43 years before the demise of the deceased in 2014. It is common cause that 	thereafter the Applicant continued to live on the property to date. The existence 	of the customary marriage between the two parties should not occupy this Court 	for long because there are several pieces of evidence to which to turn to 	determine its existence.

[28]	Firstly, the certificate issued in terms of Proclamation 293/1962, Chapter 2, 	Regulation 8(1) in terms of the Native Trust and Land Act 18 of 1936 which 	provided for the establishment of the kind of township that [….] was 	during 1981 specifically cites the Applicant as the wife of the deceased. It must be 	right to infer that prior to issuing the certificate and populating it with information, 	the authorities would have taken the trouble of establishing the marital status of 	the Applicant and deceased because the system had entrusted them with such 	duty. They investigated and were satisfied that the Applicant and deceased were 	customarily married.

[29]	The fact of the existence of the customary marriage is supported even by people 	who would have ordinarily declined to side with the Applicant. These are the cousin  of the deceased and his sister, Sambile Beauty Magagula. Why would they, as  blood relations of the deceased, confirm that the deceased and Applicant were married when they were not. In the circumstances, it is reasonable to conclude  that the deceased and Applicant were in fact customarily married. 

[30]	 It is inconceivable that the Applicant and deceased could have lived together for 	43 years without a marriage. Even if they were not married, it is this Court’s opinion  that it will be in the interest of fairness and justice that the relationship between  them be recognized and that certain proprietary consequences should flow  therefrom. The reason for this is plain – the lives of people who had lived together  for that long would be inextricably connected in so many ways. One matter that comes to mind is ownership of their properties. The parties would have bought and  sold properties together. As such, their lives would be intertwined and to undo it upon the death of the other would in this instance amount to total injustice.

[31]	I note the criticism of the Respondent that the court cannot ‘turn a blind eye’ to the  absence of certain of the requirements necessary for the existence of a valid 	customary marriage. The Respondent points to lack of any form of proof from 	the Old Home Affairs in Barberton verifying the conclusion of the marriage between  the parties. Furthermore, argues the Respondent, the Applicant mentions her siblings and those of the deceased as witnesses of the customary marriage when it is the uncles and aunts who would usually act as delegates in such matters.

[32]	Rigorous adherence to all the requirements of a customary marriage may, in 	certain instances, result in absurdity. The Applicant and deceased have spent 43 	years living, for all intents and purposes, as husband and wife yet upon one of 	them dying, the survivor is still expected to produce lobola receipts that were 	prepared approximately 50 years ago. As though that was not sufficiently farcical, 	the Applicant is expected to remember who negotiated lobola and how much was 	paid all those years back. 

[33]	All this, in the face of relatives of the deceased, his sister and cousin, confirming 	that the parties lived together as husband and wife. Why would they recognize the  deceased’s marriage to the Applicant if it did not happen? Confirmation of the marriage by the deceased’s step daughter, Riekie, and the Applicant’s sister 	although not independent witnesses, is significant.

[34]	It cannot be treated insouciantly especially in circumstances where it corroborates 	what has already been verified by the deceased’s own relatives. The requirements to which the Respondent refers and with which he expects compliance pale into nihility when compared to the 43 years of the parties’ life together. This Court’s assessment of the facts and circumstances thus leads to the inexorable conclusion that the parties were customarily married. 

PROPRIETORY LEGAL CONSEQUENCES OF A CUSTOMARY MARRIAGE 

[35]	Having quoted the preamble supra, I should immediately state that Section 7(1) of the Recognition Act has been declared unconstitutional. The current position is that subject to Parliament amending the legislation, the order of the Constitutional Court in Gumede v President of the Republic of South Africa and others governs the legal position. The application of Section 7(1) in Gumede would                   have meant that the parties’ customary marriage would have been 	subjected to the dictates of the discriminatory Zulu customary laws, which made a customary wife before the Recognition of Customary Marriages Act incompetent to lay a claim on the family property either during the subsistence thereof or upon dissolution. I must immediately add that the Zulu customary laws in this context are not distinctive as they are echoed almost throughout the South African legal systems regulating customary marriages. 

[37]	The applicant in the Gumede case approached court contending that Section 7(1) 	was unconstitutional insofar as it sought to distinguish between the patrimonial consequences of monogamous customary marriages depending on whether they 	were entered into prior or after the introduction of the Act. The basis of the 	argument was that the distinction amounted to unjust discrimination founded on gender and race against customary wives. The court proceeded to hold that these provisions discriminate on the basis of gender as only women in a customary marriage are subject to these unequal proprietary consequences. The provisions were as such, declared discriminatory and indefensible.  

[38]	The court also held that the subjection of a customary wife in KwaZulu-Natal to her husband's marital power, the husband's exclusive ownership and control of all family property unfairly discriminated against women on the ground of their gender. Customary wives were on the basis of those provisions subject to the unequal consequences of 'old' customary marriages as they were considered incapable of holding or controlling, or unfit to hold or control, property. In that manner, the customary wives are rendered vulnerable because they are stripped of their dignity, disadvantaged and dependent. Holding that all customary marriages would henceforth be in community of property regardless of the date of their conclusion, the court stated at Paragraph 51:

	“For several good reasons, it would not be just and equitable to limit the 	retrospective effect of the declaration of invalidity. Suffice it to point to three 	reasons only. First, the Recognition Act has provided for customary marriages 	since 15 November 2000 to be in community of property. It would not be just and 	equitable to order that the declaration of invalidity should have a prospective effect 	only, when the equality challenge relates to pre-recognition marriages. In other words, a prospective order would not grant any, or effective, relief to wives in marriages concluded before the start of the Recognition Act. Second, whilst the Recognition Act is remedial in purpose, the provisions of so 7(1) and (2) of the Recognition Act are improperly under-inclusive. The discrimination they spawn is so egregious that it should not be permitted to remain on our statute books by limiting the retrospective operation of the order we are to make, or even by suspending the order of invalidity to allow parliament to rectify the error. Third, the retrospective regime which the order would permit is properly aligned to the prospective regime created by parliament in the Recognition Act in relation to post-recognition marriages. The effect of the order we are to make is that all 	customary marriages would become marriages in community of property. The recognition of the equal worth and capacity of all partners in customary marriages 	is well overdue and no case has been made out as to why it should be delayed any further.”

[39]	Counsel for the Respondent would, the decree of the court in Gumede at Paragraph 51 supra notwithstanding, have this Court believe that the unconstitutionality of Section 7(1) means that the old customary law position still pertains. I will for now assume that Counsel for the First Respondent was oblivious of the outcome of the Gumede judgment and its retrospectivity on all customary marriages being in community of property. The Gumede case was referred and confirmed in another Constitutional Court case of Ramuhovhi and others v President of the Republic of South Africa and others. Accordingly, I am bound to follow in the footsteps of the Constitutional Court and hold that the marriage between the parties was one in community of property it being immaterial whether it was registered or not.

ACQUISITION OF OWNERSHIP THROUGH PRESCRIPTION 
 
[40]	Section 1 of the Prescription Act provides that ‘Subject to the provisions of this 	Chapter and of Chapter IV, a person shall by prescription become the owner of a 	thing which he has possessed openly and as if he were the owner thereof for an 	uninterrupted period of thirty years or for a period which, together with any periods for which such thing was so possessed by his predecessors in title, constitutes an uninterrupted period of thirty years.’ Section 20 of the same Act states that ‘in so far as any right or obligation of any person against any other person is governed 	by Black law, the provisions of this Act shall not apply.’

[41]	The Applicant argued that even if this Court were to rule that she was not 	customarily married to the deceased and that the deceased’s estate could not 	devolve upon her, she would still be entitled to ownership of the property as she 	has been in occupation of it for more than 30 years. In view of this Court’s decision on the existence of the customary marriage between the deceased and Applicant, this Court is not categorically required to express any opinions on the subject. Perhaps it is best left to a more suitable moment in the future when another court becomes seized of the subject.

DISPUTES OF FACT

[42]	It would appear that the Respondent thinks that disputes of fact would suddenly 	materialise by simply wishing them. That cannot be so and it is fallacious. Disputes 	of fact must be bona fide. I am reminded in this regard of what the Supreme Court 	of Appeal said at Paragraph 12 of Wightman v Headfour (PTY) LTD 

“Recognising that the truth almost always lies beyond mere linguistic                                  determination the courts have said that an applicant who seeks final relief on motion must in the event of conflict, accept the version set up by his opponent unless the latter’s allegations are, in the opinion of the court, not such as to raise a real, genuine or bona fide dispute of fact or are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers: Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E-635C. See also the analysis by Davis J in Ripoll-Dausa v Middleton NO 2005 (3) SA 141 (C) at 151A-153C with which I respectfully agree. (I do not overlook that a reference to evidence in circumstances discussed in the authorities may be appropriate.)”

[43]	The disputes of fact to which the Respondent refers is his contestation of the 	parties’ customary marriage. It has been demonstrated that contrary to the  	Respondent’s belief, the deceased and Applicant were married. The fact that the 	Respondent disagrees does not bring about genuine disputes of fact. 	Accordingly, there is no merit in the Respondent’s assertion concerning 	disputes of fact and it is rejected.

[44]	In consequence of the finding that there was a customary marriage between the 	Applicant and deceased and that there are proprietary consequences that flow 	therefrom, I see no need to deal with how the deceased’s estate is to devolve upon his survivors. That is left to the relevant Master of the High Court to deal with. In  the premises, I regard the order below as appropriate.

ORDER

1	The appointment of the Respondent as the Master’s Representative in the estate 	of the deceased that is registered with the Third Respondent under reference 	number 837/2015 is set aside;

2	The registration of ownership of the house at [….] MPUMALANGA into the name of the First Respondent as recorded on Deed of Transfer [….] is reversed and the property is returned to the deceased estate to be dealt with by a newly appointed executor executrix;

3	The First Respondent is directed to pay the costs of this application. 

	______________________________
B A MASHILE
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA

This judgment was handed down electronically by circulation to the parties and/or parties’ representatives by email. The date and time for hand-down is deemed to be 24  February 2021 at 10:00.

APPEARANCES:
						
Counsel for the Applicant:			Mr MG Boshoff			
Instructed by:					Tollig Attorneys				
			
Counsel for Respondent:				Adv K Shai		
Instructed by:					BV Mbungela Attorneys
											
Date of Hearing:					10 December 2020			
Date of Judgment:					24 February 2021