Dalindyebo v President of the Republic of South Africa and Others (2342/2014) [2014] ZAECMHC 34 (20 June 2014)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION,

MTHATHA

CASE NO. 2342/2014

In the matter between:

KING BUYELEKHAYA

ZWELIBANZIDALINDYEBO.........................................................................................................Applicant

and

PRESIDENT OF THE

REPUBLIC OF SOUTH AFRICA.......................................................................................First Respondent

MINISTER OF COOPERATIVE

GOVERNANCE AND

TRADITIONAL AFFAIRS...............................................................................................Second Respondent

THANDUXOLO MTIRARA..............................................................................................Third Respondent

PREMIER OF THE EASTERN

CAPE PROVINCE............................................................................................................Fourth Respondent

MEC FOR COOPERATIVE

TRADITIONAL AFFAIRS,

EASTERN CAPE...................................................................................................................Fifth Respondent

JUDGMENT

LAING AJ:

[1] The Applicant has brought an application in two parts:

(a) Part A is for, inter alia, an order interdicting the First Respondent from taking any further steps aimed at the withdrawal of the certificate of recognition in relation to the Applicant as King of the Abathembu, and associated relief; and

(b)Part B is for, inter alia, an order declaring the letter that was issued by the First Respondent on 23 July 2014 and which requested the Applicant to indicate why the above certificate should not be withdrawn, to be a nullity, together with an order declaring parts of the Traditional Leadership and Governance Framework Act 41 of 2003 ('the Act') to be unconstitutional, and associated relief.

[2] In terms of the above letter, the First Respondent indicated that a group of members from the Abathembu royal family, led by the Third Respondent, had requested the First Respondent to implement a decision taken on 29 September 2012 to remove the Applicant as king. The Applicant’s attention was drawn to the relevant provisions of the Act and he was requested to provide the First Respondent with written representations, within 30 days, as to why the latter should not withdraw the certificate of recognition.

[3] The Applicant reacted to the letter by convening a public meeting of the Abathembu in Mthatha on 27 July 2014. He alleges that it was decided at the meeting that the group that approached the First Respondent did not constitute the royal family and that the Applicant had a mandate to challenge the First Respondent’s actions.

[4] Consequently, the Applicant instructed his attorneys to write to the First Respondent. In a letter dated 1 August 2014, the Applicant’s attorneys demanded, amongst other things, that the First Respondent’s letter of 23 July 2014 be withdrawn and that the First Respondent famish the Applicant with a copy of the Second Respondent’s recommendation with regard to the withdrawal of the certificate of recognition, as contemplated in terms of section 10(3) of the Act. The First Respondent was given the deadline of 11 August 2014 by which to comply.

[5] On 7 August 2014, the Applicant instructed his attorneys to request information from the First, Second, Fourth and Fifth Respondents to enable him to protect his rights. The requests were made in terms of section 18(1) of the Promotion of Access to Information Act 2 of 2000 (PAIA).

[6] The Applicant contends strongly that the royal family of the Abathembu has never taken a decision to have him removed as king. In this regard, he asserts that the group of members who approached the First Respondent does not constitute the royal family. Furthermore, the Applicant argues that the distinction between structures of traditional leadership and the outcomes of popular elections would be raised in Part B of his application. The question would be whether the current statutory framework passed constitutional muster.

[7] In relation to Part A and for purposes of obtaining an interdict, the Applicant lists a number of rights that were allegedly affected by the conduct of the Respondents. More particularly, the Applicant pleads that the group of members in question never invited him to participate in the meeting at which the decision was taken to remove him. For various reasons, not relevant for immediate purposes, he avers that the conduct of the First Respondent was motivated by ulterior and improper motives and was mala fides. Moreover, the Applicant indicates that the harm that could be caused by the First Respondent’s removal of him as king could entail a violent split of the Abathembu nation.

[8] Specifically with regard to the Third Respondent, the Applicant alleges that his public posturing as representative of the royal

family, together with his making of defamatory and false accusations, would cause considerable harm and damage.

[9] No alternative remedy was available to the Applicant, so he avers, because neither the First nor the Second Respondent had reacted to his attempts to engage with them. Furthermore, the First Respondent had ignored the deadline of 11 August 2014, given on the Applicant’s behalf by his attorneys. If the interdict was not granted, then the inconvenience would operate against the Applicant and the Abathembu as a whole and the resulting hiatus would ‘almost definitely lead to bloodshed' 1 .In contrast, no inconvenience could be suffered by the Respondents because they had allowed the status quo to persist for two years since the complaints were initially raised.

[10] The impending expiry of the 30 -day deadline stipulated in the letter of the First Respondent and the potential for the outbreak of violence were given as the basis for the urgency of the application in respect of Part A.

[11] In response and on behalf of the First Respondent, the Director-General in the Office of the Presidency restricted himself

to Part A of the application. For immediate purposes, his interest in the matter was limited to opposing the Applicant’s prayer for costs. He indicated that the First Respondent had decided, in the interests of justice, not to consider the request by the Abathembu royal family to withdraw the certificate of recognition, pending the outcome of the relief sought in terms of Part B. Moreover, the First Respondent would not involve himself or participate in any dispute between rival groups of the royal family. However, the First Respondent intended to oppose the relief sought by the Applicant with regard to the constitutionality of the Act.

[12] By the time that the matter came before court, the Second Respondent had provided the Applicant with a copy of the recommendation that formed the basis upon which the First Respondent had issued the letter of 23 July 2014.

Accordingly, the Second Respondent has played a minor role in the matter, his opposition being restricted to the question of costs.

[13] With regard to the Third Respondent, the Applicant seeks an order interdicting him from making any public utterances on behalf of the royal family or representing himself as a duly appointed spokesperson thereof. The point was made by the Third Respondent that the Applicant had no locus standi to seek such relief where the royal family or its members had not been joined in the proceedings. They had a direct and substantial interest in the matter. Furthermore, the Third Respondent refuted the urgent basis for the application, saying that the Applicant could simply have written to the First Respondent and requested an extension of time within which to prepare his submissions, pending receipt of the information that he had requested. This would also have constituted an alternative remedy for the Applicant, avoiding the need for him to have launched the current proceedings. Importantly, the Third Respondent averred that the Applicant had failed to provide any substantiation for the allegations pertaining to the making of public utterances and defamatory statements. He also denied the allegations in relation to the threat of a violent split in the Abathembu nation.

[14] Despite their initial opposition to the application, the Fourth and Fifth Respondents played no role in the proceedings. To that extent, the Applicant presented a letter in terms of which the State Attorney indicated that the Fourth and Fifth Respondents were not in possession of any official records on the matter and had not participated at all in the decision by the royal family to remove the Applicant from office.2

[15] It was common cause amongst the parties that only Part A of the application was before court for present purposes. The outcome of Part A would have a bearing on Part B, possibly necessitating the filing of supplementary affidavits.3 As the matter stands, only the following issues remain for determination with regard to Part A: whether the Applicant has made a case for the relief that he seeks against the Third Respondent, and who is liable for costs.

[16] The Act forms the underlying subject of the application. The relevant provisions bear repeating:

10. Removal of kings and queens.-(l) A king or queen may be removed from office on the grounds of-

(a) conviction of an offence with a sentence of imprisonment for more than 12 months without an option of a fine;

(b) physical incapacity or mental infirmity which, based on acceptable medical evidence, makes it impossible for the king or queen to function as such;

(c) wrongful appointment or recognition; or

(d) a transgression of a customary rule or principle that warrants removal.

(2) Whenever any of the grounds referred to in subsection (1) (a), (b) and (d) come to the attention of the royal family and the royal family decides to remove a king or queen, the royal family must, within a reasonable time and through the relevant customary

structure-

(a) inform the President, the Premier of the province concerned and the Minister, of the particulars of the king or queen to be removed from office;

(b) furnish reasons for such removal; and

(c) give written confirmation to the President that the Premier of the province concerned and the Minister have been informed accordingly,

[17] Consequent to the First Respondent's decision not to consider the request to withdraw the certificate of recognition, the apprehension

of harm on the part of the Applicant has fallen away. To determine the remaining issues, a necessary point of departure is the Third Respondent’s arguments with regard to locus standi and non-joinder.

[18] The requirements for locus standi are as follows: (a) the Applicant must have an adequate interest in the subject-matter of the litigation; (b) the interest must not be too far removed; (c) the interest must be actual, not abstract or academic; and (d) the interest must be a current interest and not a hypothetical one (see Cabinet of the Transitional Government for the Territory of South West Africa v Eins 1988 (3) SA 369, at 388A-H).4

[19] The Third Respondent has argued that the Applicant lacks locus standi for the relief sought against him. He alleges that the Applicant, on his own, cannot obtain an interdict against the Third Respondent, preventing the latter from making public utterances on behalf of the royal family or representing himself as spokesperson for the royal family. It may be a different matter, he acknowledges, where the royal family itself is the applicant for the relief in question.

[20] It is common cause that the Third Respondent has played an active role in this matter. He was instrumental in informing the First Respondent about the decision to remove the Applicant and in furnishing reasons for such removal. Whether or not the Third

Respondent is entitled to speak on behalf of the royal family is a matter that forms the subject of Part B of the application, but it is difficult to refute that the Applicant, as king, has an interest in the issues that arise with regard to the role of the Third Respondent. As king, the Applicant exerts authority over any number of traditional leaders who fall under his area of jurisdiction. The Third Respondent, purportedly acting on behalf of the royal family, has challenged such authority. The court is satisfied that the Applicant has sufficient interest in the matter to satisfy the requirements for locus standi. The Third Respondent’s argument in this regard holds no merit.

[21 ] With regard to the argument of non-joinder, the underlying principle is well established. A person must be joined when such

person has a direct and substantial interest in any order that the court may make; alternatively, when such an order cannot be sustained or carried into effect without prejudicing that party, unless the court is satisfied that he or she has waived his or her right to be joined (see Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) at 659).5

[22] The royal family has not been joined to the proceedings. Representing the Applicant, Mr Mpofu argued that this could not be done; the very identity of the royal family was in issue. Whether or not the decision taken to remove the Applicant was legal depends, in part, on whether or not the royal family had been properly constituted at the time. In the

circumstances, it was impossible to have joined the royal family, pending a determination of its membership and authority.

[23] The royal family, as such, appointed the Third Respondent as acting chairperson at a meeting held in Mthatha on 1 September 2012. This is alleged by the Third Respondent in his answering affidavit6 and is recorded in an annexure thereto, titled 'Confirmatory notes for the meeting of the royal family for the kingdom of Abathembu held on 1 September 2012 to discuss a document dated 23 July 2012 ' 7where the appointment is recorded as follows:

“4. Appointment of Chairperson and the Secretary. At the meeting, there was a requirement for the appointment of the Acting Chairperson and the Acting Secretary until further notice.

Names oflhanduxolo Mtirara [the Third Respondent] and Langalibalele Mtirara were proposed for the Acting Chairperson and the Acting

Secretary, respectively. Their names were accepted unopposed. (Notification).”

[24] It would be impossible to hold that the royal family, as the institution or structure that purportedly appointed the Third

Respondent, has no direct and substantial interest in the present proceedings. For purposes of Part A, the Applicant seeks an order in terms of which the Third Respondent’s authority as acting chairperson will be significantly curtailed- If the order is granted, then he will not be permitted to represent the royal family in any dealings with the public. He will not be permitted to declare the royal family’s stance on any matter and he will not be permitted to protect or promote its interests in the media. It can well be argued that he will not even be permitted to communicate the wishes of the royal family to the Abathembu traditional community itself

[25] While accepting the difficulties raised by Mr Mpofu in relation to the actual identity of the royal family, it cannot be denied that, at the very least, the individuals who were present at the meeting in question have a direct and substantial interest in this matter. They are the same individuals who appointed the Third Respondent, ostensibly unopposed.

[26] The question arises as to whether the royal family per se can be joined as a party in the proceedings. The royal family is recognised as an institution or structure in the Act. It is defined, in terms of section 1, as follows:

‘“royal family” means the core customary institution or structure consisting of immediate relatives of the ruling family within a traditional community, who have been identified in terms of custom, and includes, where applicable, other family members who are close relatives of the ruling family’.

[28] The same definition appears in the corresponding provincial legislation, viz. the Eastern Cape Traditional Leadership and

Governance Act 4 of2005. The roles and functions of the royal family are set out in section 24 thereof.

[29] As a core customary institution or structure, the royal family has been cited as a party in a number of cases that have come before other divisions of the High Court.8 This has not posed any apparent difficulties; the legal personality of the royal family does not appear to have been in issue.9 In any event, Rule 14(2) is sufficiently wide to permit joinder.10 Accordingly, it was incumbent on the Applicant to have joined the royal family as a party with a direct and substantial interest in the proceedings; alternatively, if the Applicant had indeed foreseen a dispute in relation to the identity of the royal family, then, at the very least, he should have joined the individuals who appointed the Third Respondent as acting chairperson at the meeting held in Mthatha on 1 September 2012. This was never done.

[30] Accordingly, the court accepts Third Respondent’s argument with regard to non-joinder. As a plea in abatement (see Anderson v Gordik Organisation 1960 (4) SA 244 (N) at 247D), it should bring the matter to an end.

[31] However, the court is also not convinced that the Applicant has made out a case against the Third Respondent on the strength of his main application. The requirements for an interlocutory interdict are well-known and often-quoted: (a) a prima facie right; (b) a well-grounded apprehension of irreparable harm if the interim relief is not granted and the ultimate relief is eventually granted; (c) a balance of convenience in favour of the granting of the interim relief; and (d) the absence of any other satisfactory remedy (see Setlogelo vSetlogelo 1914 AD 221, at 227).11

[32] The requirement of a prima facie right was qualified in Webster v Mitchell 1948 (1) SA 1186 (W), where Clayden J held, at 1189, that:

"... the right to be set up by an applicant for a temporary interdict need not be shown by a balance of probabilities. If it is “prima facie established though open to some doubt” that is enough... “12

[33] In the present matter, the Applicant seeks an interlocutory interdict against the Third Respondent, interdicting him from making any public utterances on behalf of the Abathembu royal house or representing himself as a duly appointed spokesperson of the royal house. The Applicant’s case rests on a very limited number of averments. He alleges that the Third Respondent continues to defame him and misrepresent himself as an official and spokesperson of the royal family;13 he later intimates the same, without expressly mentioning the Third Respondent;14 he subsequently repeats the allegations, referring to the Third Respondent’s 'public posturing” as a representative or spokesperson for the royal family and his making of defamatory and false accusations about the Applicant.15 Nowhere in his founding affidavit does the Applicant set out the precise content of any defamatory statements. He has also fails to disclose the context of such statements, as may exist. The Third Respondent- and the court, for that matter-has been left to speculate on the exact basis for the relief sought. It cannot be expected of either the Third Respondent or the court to surmise what may or may not be defamatory in any annexures attached to the Applicant’s founding affidavit.16

[34] To the extent that the Applicant has attempted to remedy the shortcomings of his founding affidavit by setting out his case in reply, this approach cannot succeed. As a general principle, a case stands or falls on the strength of an applicant’s founding affidavit. This is the case that the respondent is called upon to meet. A case cannot be made in reply when no case at all was made out in the original application (see Poseidon Ships Agencies (Pty) Ltd v African Coaling and Exporting Co (Durban) (Pty) Ltd 1980 (1) SA 313 (D), at 316A).17

[35] A further problem that confronts the Applicant is one to which the Third Respondent’s counsel, Mr Zilwa SC, drew attention during argument. The relief sought by the Applicant in terms of his Notice of Motion is not in respect of defamatory

conduct. It is an interdict against the Third Respondent’s making of public utterances on behalf of the Abathembu royal family

or representing himself as a duly appointed spokesperson thereof. The Third Respondent is required to deal with the relief sought, not anything else. No attempt was made by the Applicant to amend his Notice of Motion. For the Applicant to be successful in respect of the Notice of Motion as it stands, it would have been expected that the Applicant would have challenged, directly and unambiguously, the appointment of the Third Respondent as acting chairperson, whether at the meeting held in Mthatha on 1 September 2012 or at any other time. The decision taken in that regard remains intact and effective. Quite simply, the Applicant has failed to make any allegations that would persuade the court that the appointment was wrong. Overall, the Applicant has failed to make sufficient allegations to persuade the court that he has established a prima facie right, whether open to some doubt or otherwise, in relation to the Third Respondent’s conduct.

[36] The court is also not satisfied that the remaining requirements in Setlegelo have been met. The Applicant cannot be said to have demonstrated that no alternative remedy existed before instituting proceedings against the Third Respondent. There is nothing in the founding affidavit to suggest that the Applicant made any attempt to confront the Third Respondent about his conduct, be it right or wrong. There is no evidence of any correspondence or conversation to the effect that the Applicant requested the Third Respondent to desist from making public utterances or representing himself as spokesperson for the royal family. If anything, then the unfortunate impression has been created that the real lis lies against the First Respondent and that the proceedings against the Third Respondent have been added as an afterthought.

[37] No case for urgency was made out whatsoever in relation to the Third Respondent. The Applicant has simply failed to make any averments in that regard. The proper approach would be to strike the application from the Roll (see Luna Meubel Vervaardigers (Edms) Bpk v Makin (t/a Makin’s Furniture Manufacturers) 1977 (4) SA 135 (W), at 139F-140A).18 However, in light of the serious shortcomings in the application against the Third Respondent, the court declines to adopt this approach and is content to dismiss the application against the Third Respondent in its entirety.

[38] Consequently, the only remaining issue is that of costs. Neither the Applicant nor the First Respondent approached the court with clean hands. Mr Mpofu, for the Applicant, was unable to provide a satisfactory explanation for why his client had not simply requested an extension of time within which to make written representations. By the same token, Mr Dukada SCy for the First Respondent, could not indicate why his client had not responded adequately to the letter sent by the Applicant’s

attorneys on 1 August 2014. With regard to the Second Respondent, he had provided a copy of his recommendation to the Applicant by the time the matter came before the court. There is no indication that the Applicant ever requested a copy from him prior to the institution of proceedings, except in terms of section 18(1) of PAIA.19 The court cannot see any compelling reason for why either of the parties should be liable for the costs of the other. The Applicant is unsuccessful with regard to the relief sought against the Third Respondent; the latter is entitled to his costs. The Fourth and Fifth Respondents have played no role in the proceedings; the question of costs does not arise.

[39] For the reasons apparent from the judgment, there is no need for an Order in terms of paragraphs 2 and 3 of the Notice of Motion.

Similarly, no Order will be made for costs in respect of the Second, Fourth and Fifth Respondents.

[40] In the circumstances, the following Order is made, limited to Part A of the application:

(a) the relief sought in terms of paragraph 1 of the Notice of Motion is granted, except in relation to the Third Respondent, where no basis for urgency was established;

(b)the application against the Third Respondent, in terms of paragraph 4, is dismissed with costs, including the costs of two counsel; and

(c)the costs of Part A, with regard to the relief sought against the First Respondent, shall be costs in Part B, to be addressed at a subsequent hearing.

JGA Laing

Acting Judge of the High Court

Counsel for the Applicant:Adv D Mpofu and Adv L Kubukeli

Instructed by: Gubevu Hlalukana Inc

18 Owen Street Mthatha

(Ref: Hlalukana/NT)

5th Respondents: Adv N Duka da SC and

Adv L Baloyi-Mere

Instructed by: The State Attorney

Broadcast House 94 Sisson Street Fort Gale Mthatha

(Ref: Ms Klaasmani, 1020/14-A7)

Counsel for the 2nd Respondent: Adv M Lecoge

Instructed by: NZ Mtshabe Inc

ABSA Bank Building 137 York Road Mthatha

(Ref: Mr Mabanga)

GAUTENG DIVISION PRETORIA

CASE NO: A844/2012

DATE: 23 OCTOBER 2014

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

In the matter between;

SINGANGA WELSH MXIKI...........................................................................................................Appellant

VICTORIA NOMPUMELELO MBATA.....................................................................................Respondent

In re:

VICTORIA NOMPUMELELO MBATA........................................................................................Applicant

DEPARTMENT OF HOME AFFAIRS................................................................................1ST Respondent

MASTER OF THE NORTH GAUTENG HIGH COURT,

PRETORIA...............................................................................................................................2nd Respondent

SINGANGA WELSH MXIKI..................................................................................................3rd Respondent

MATOJANE J

[1] This is an appeal against a judgment of Teffo J in which she directed and ordered the Department of Home Affairs to register a customary marriage between the deceased and the appellant concluded on 3 November 2007 and issue to the appellant a Customary Marriage Certificate. The court a quo granted the father of the deceased leave to appeal to this Court.

[2] In her founding affidavit the appellant alleges that on 3 November 2007 she and the deceased entered into a customary union and have been staying together as husband and wife until the deceased met his untimely death on the 19 February 2009, A minor child was born out of this relationship. She and the deceased are registered owners of two immovable properties.

[3] In support of these allegations appellant has annexed to her founding affidavit a copy of an acknowledgment of receipt of the first installment of R10 000,00 towards her lobola of 11 beasts and 1 goat. It was agreed that the R10 000.00 was an equivalent of 5 beasts and there is a balance of six beasts and a goat. The deceased, however, died before the balance was paid. The appellant accordingly claims, on the strength of the affidavits filed in the papers, to be the deceased’s widow.

[4] That an amount of R10 000,00 was paid towards the appellant's iobola is not in dispute, but the deceased is father denies that a customary union was ever entered into as alleged and states that certain

essentials of a customary union were not finalized, in particular in that the appellant was never handed over to the deceased’s

family as required by customary law so that certain rituals including a marriage ceremony could be conducted. The deceased's father

contends that the negotiations and agreements reached on the 3 November 2007 did not constitute a customary marriage agreement.

[5] Appellant states that on 3 November 2007 emissaries from the deceased family met with her family to conduct marriage negotiations. Her family was represented by her uncles and aunt. A Iobola amount was fixed and an agreement reached in terms of which a customary union came into existence between the deceased and herself. What remained to be finalized according to the appellant were the arrangement of the date of marriage ceremony and the exchange of gifts. Appellant states further that she and the deceased never registered their customary marriage as required in terms of the Recognition of Customary Marriage Act, 120 of 1998 (“the Act")

[6] The court a quo held that:

“The events of 3 November 2007 objectively taken Indicates that the marriage was negotiated and entered into in terms of section 3(1)(b) of the Act. Once the amount of iobola has been agreed upon and there is an undertaking to pay there can never be any other negotiations. The argument by the Third Respondent that on that particular day it was the initial stage of negotiations and that the negotiations were still not complete is without merit. After Iobola has been fixed what else could still be negotiated?”

[7] In terms of the Act a “customary marriage” means a marriage concluded in accordance with customary law. Section 3(1) sets out the requirements for the validity of a customary marriage as follows:

(1) For a customary marriage entered into after the commencement of this Act to be valid-

(a)...

(b)...

the prospective spouses-

(i) must both be above the age of 18 years; and

(ii) must both consent to be married to each other under customary law; and the marriage must be negotiated and entered into or celebrated in accordance with customary law.

[8] The payment of lobola is not as a requirement for the validity of a customary marriage yet it is intrinsically linked with its existence. In customary law man or a woman is not regarded as married until lobolo is paid. Lobolo is defined in the Act to mean “the property in cash or in kind, whether known as lobolo, bogadi, bohali, xuma, lumalo, thaka, ikhazi, magadi, emabheka or by any other name, which a prospective husband or the head of his family undertakes to give to the head of the prospective wife’s family in consideration of a customary marriage. ”

[9] The Act requires that “the marriage must be negotiated and entered into or celebrated in accordance with customary law" (my emphasis). The customary law of marriage, is in my view, correctly stated by Matlapeng AJ in Motsoatso v Roro & Another 2011 (2) ALL SA 324 at para 17 as follows:

“As described by the authors Maithufi I.P. and Bekker J.C., Recognition of Customary Marriages Act 1998 and its impact on Family Law in South Africa CILSA 182 (2002) a customary marriage in true African tradition is not an event but a process that comprises a chain of events. Furthermore it is not about the bride and groom. It involves the two families. The basic formalities which lead to a customary marriage are: emissaries are sent by the man's family to the woman’s family to indicate interest in the possibie marriage (this of course presupposes that the two parties i.e. the man and the woman have agreed to marry each other); a meeting of the parties’ relatives will be convened where ioboio is negotiated and the negotiated lobolo or part thereof is handed over to the woman’s family and the two families wit! agree on the formalities and date on which the woman wiil then be handed over to the man’s family which handing over may include but not necessarily be accompanied by celebration (wedding).” (my emphasis)

[10] In the present matter it is common cause that part of the negotiated lobolo was paid over to appellant’s family but the parties never agreed on the formalities and the date on which the appellant will be symbolically handed over to her in-laws, in her replying affidavit, appellant states that during December 2008 she and the deceased

visited the deceased parental home and spend 3 days with the deceased’s father and then later told appellant that she was

his daughter in law. As a customary marriage is a union of two family groups a bride cannot hand herseif over to her in-laws. Her family has to hand the bride over to her husband's family at his family’s residence where the elders will counsel the bride and the bridegroom in the presence of their respective families. Accordingly, in my view, it is the handing over of the bride, even if the lobolo has not been paid in full, that constitute a valid customary marriage not the payment of lobolo as the court a quo found. There can therefore be no valid customary marriage until the bride has been formally and officially handed over to her husband’s

family. See T.W Bennet, Customary Law in South Africa 18th Edition at 217,

[11] In my view, the most essential requirement of a customary marriage, the handing over of appellant to her husband’s family was never done. Accordingly a customary marriage though negotiated was never entered into or celebrated in accordance with customary law as required by the Act.

[12] In the result, I would allow the appeal and set aside the order of the court below and replace it with:

1. The application is dismissed with costs

K E MATOJANE

JUDGE OF THE HIGH COURT

I agree and it is so ordered.

C P RABIE

M MOLOPA-SETHOSA

(EASTERN CAPE LOCAL DIVISION, MTHATHA)

CASE NO. 1075/2014

IN THE MATTER BETWEEN:-

BEATRICE TINKY TYESI........................................................................................................APPLICANT

AND

NOMATHAMSANQA CYNTHIA JOBE........................................................................1st RESPONDENT

VUYANI VICTOR MSINDO...........................................................................................2nd RESPONDENT

MASTER OF THE HIGH COURT.................................................................................3rd RESPONDENT

GWILIZA UNDERTAKERS............................................................................................4th RESPONDENT

FIRST NATIONAL BANK MTHATHA.........................................................................5th RESPONDENT

MASETI AJ

INTRODUCTION

[1] The Applicant is the surviving spouse of the late Vuyisile Archibald Tyesi who died testate on 10 April 2014. She has applied for the declaration of invalidity and setting aside of the deceased’s .Will dated 28 November 2011 which has been accepted by the Master of the High Court on 14 April 2014. The Applicant also seeks ancillary relief.

[2] In opposing the main application, the First Respondent also filed a counter-application in terms whereof she seeks a declaration of validity of the deceased's Will as well as ancilliary relief.

[3] The applicant later amended her application to read:

[3.1] That non-compliance with the Rules of this Honourable Court relating to service of papers and treating of the matter as one of urgency be condoned.

[3.2] That the purported Will produced and submitted by the Second Respondent be declared partially invalid and has no legal force and effect to the extent that it takes away applicant’s matrimonial benefits derived from the marriage the applicant entered into with the deceased.

[3.3] That the applicant is the only surviving spouse of the deceased.

[3.4] That the 5th Respondent be interdicted and restrained from releasing funds from the Bank Accounts of the deceased to the First Respondent or any other person.

[4] In her final Heads of Argument prepared by Mr Mbenenge and filed of record on 30 June 2014 applicant's prayers have been slightly changed to read:-

[4.1] That the applicant is the only surviving spouse of the deceased.

[4.2] That the marriage between the deceased and the first respondent is void ab initio.

[4.3] That the last Will and Testament of the deceased dated 28 November 2011 has not had the effect of divesting the applicant of her half share to the estate of the deceased.

[4.4] Directing the Third Respondent to take into account the fact that the applicant is the sole surviving spouse of the deceased and entitled to 50% of the estate of the deceased when administering the estate of the deceased; and

[4.5] Directing that the costs of this application, including costs consequent upon the engagement of two Counsel be borne by the estate of the deceased.

THE FACTS

[5] Applicant in her Founding Affidavit stated that she is the widow and the surviving spouse of the late Vuyisile Archibald Tyesi having married to the deceased on 31 March 1956 by civil rights at Port Elizabeth.

[6] During 1969 the parties moved from Port Elizabeth to Mthatha where they acquired a number of properties including Tembuland Motors, No. 9 Spring Street, Erven 867 and 868 Mthatha, the residential home at No. 5 Hintsa Avenue, Myezo Park Mthatha and had some financial interest at First National Bank, Mthatha.

[7] During 1980’s the deceased got involved in an extra marital affair with the first respondent and this resulted to deceased

leaving the marital home and stayed with the first respondent at PAYNE Location in 2006.

[8] In her answering affidavit the first respondent stated that she is the widow of the deceased having been married to deceased by customary rite. The actual date, month and year of the marriage have not been mentioned

[9] The first respondent does not specifically deny the fact that the applicant is the only lawfully married wife of the deceased as reflected in paragraph 26 of the founding affidavit but in paragraph 16 of her answering affidavit denies the contents of paragraph 26 as being without any legal or factual basis despite the production of a marriage certificate.

[10] In paragraph 4 of her replying affidavit applicant stated that she would have known if the deceased was married by customary union as the deceased would have requested permission from her to many a second wife as the Senior wife. There is no legal basis for this averment.

[11] In paragraph 24.3 of her replying affidavit the applicant stated that the 1st respondent has failed to prove on the balance of probabilities that she was married to the deceased.

[12] In paragraph 3.2 of her further answering affidavit, this Court having ordered on 8 May 2014 that both parties should file further affidavits, the first respondent stated that she first stayed with the deceased as his girlfriend and later the deceased sent dowry emissaries to her maiden home for the negotiation and payment of Iobola on his behalf. Thereafter they consummated and celebrated their marriage in terms of customary law. There has been no mention whether the customary marriage was ever registered or not. The date month and year of the celebration have not been mentioned, one will assume hat it was from 2006 onwards.

THE ISSUES

[13] There are three issues which should be determined by this Court namely:

[13.1] The first issue is whether the marriage entered into between the applicant and the deceased bears the consequences of a marriage in community of property and of profit and loss or not.

[13.2] The second issue is whether there was a valid customary marriage between the first respondent and the deceased or not.

[13.3]The third issue for determination by this Court is whether the deceased’s Will was executed in compliance with the provisions Wills Act No. 7 of 1953 (as amended) in particular Sections 2 and 4 of the Act.

[14] When the matter was heard on 20 June 2014 this Court mero motu raised the question of whether the marriage between the deceased and the applicant had not, by virtue of Section 22 (6) of the Black

Administration Act 38 of 1927, been out of community .of property.

THE LAW

[15] Section 22 (6) of the Black Administration Act 38 of 1927 provides:

“ (6) A marriage between Blacks, contracted after the commencement of this Act, shall not produce the legal consequences of marriage in community of property between the spouses: Provided that in the case of marriage contracted otherwise than during the subsistence of a customary union between the husband and any woman other than the wife it shall be competent for the intending spouses at any time within one month previous to the celebration of such marriage to declare jointly before any magistrate, Commissioner, or marriage officer (who is hereby authorised to attest such declaration) that it is their intention and desire that community of property and of profit and loss shall result from their marriage and thereupon such community shall result from their marriage except as regards any land in a location held under quitrent tenure such land shall be excluded from such community”

[16] The Courts had applied the provisions of Section 22 (6) in a number of authorities namely:

[16.1] IN KOZA VS KOZA 1982 (3) SA 462 (T) AT 463 E-G MCCREATH J had this to say:

" The appellant and the respondent, who are both Blacks as defined in the Black Administration Act 38 of 1927, were married to each other on 9 July 1972. As no declaration had been made by the parties prior to the marriage as provided in Section 22 (6) of the said Act the marriage did not produce the legal consequences of marriage in community of property. There is no suggestion of any other ante-nuptial agreement having been entered into between the parties with regard to their proprietary rights after marriage. ”

[16.2] IN EX PARTE MINISTER OF NATIVE AFFAIRS IN RE MOLEFE VS MOLEFE 1946 AD 315. This was a case stated by the Minster of Black Affairs under the provisions of Section 14 of Act 38 of 1927 as amended in which

the Minister asked the Court to give a decision as to the true effect of Section 22 (6) of Act 38 of 1927 upon the proprietary rights of Black spouses who contracted a legal marriage at a time when no customary union subsisted between the husband and some other woman, and who did not make a declaration in terms of Section 22 (6) that they desired their marriage to be in community of property.

WATERMEYER C.JL at page 318 had this to say:

“In the case of a legal marriage where no question of domicile outside of the union is involved, the proprietary rights of the spouses

resulting therefrom, must be governed by the common law of South Africa except in so far as specific provisions have been introduced

by statute, which alter the common law. At common law a husband and wife can, as between themselves, by an ante-nuptial agreement, regulate their proprietary rights after marriage. ”

Such an agreement is binding between the spouses, but is of no effect so far as persons not party thereto are concerned, unless it is duly entered into and registered in accordance with the law governing ante-nuptial contracts. If they do not regulate their proprietary rights by ante-nuptial agreement then community of property and of profit and loss will come into existence between

them................... Consequently the common law must be applied, with specific modification that community of property, does not result from such a marriage unless a contract in terms of Section 22 (6) is entered into. It follows, as between the spouses, that their proprietary rights are regulated by whatever ante-nuptial agreement they may have made, or if they have made none, then the consequences which ordinarily follow a valid marriage will follow in their case. The answer to the Minister’s question was that there was no community of property or of profit and loss between the spouses but in other respects their proprietary rights are the same as if they had been Europeans who had contracted a legal marriage without having entered into any valid ante-nuptial contract. Their proprietary rights were not governed by the customary law.

[17] The approach by Watermeyer C.J. in Molefe’s case had influenced the development of common law to be applied side by side with Section 22 (6) of the Black

Administration Act 38 of 1927. In Ex Parte Spinazze and Another NNO 1985 (3) SA 650 (A) the deceased married his wife in Italy on 5 May 1956 while he was domiciled and resident in Johannesburg, South Africa. He came to Italy only to marry and returned to South Africa after the wedding and continued to be permanently resident and domiciled in

Johannesburg until his death on 21 June 1980. The parties entered into an ante-nuptial contract in writing which was registered at the Deeds Office, Pretoria. It later transpired that the registration of the ante-nuptial contract did not comply with Sections 86 and 87 of the Deeds Registries Act. The Master took the value that the marriage was out of community of property in terms of the ante-nuptial contract whilst the wife was of the view that the marriage was in community of property. The wife applied to Court for a declaratory order that the marriage was one in community of property or alternatively was one in community of property as against and insofar as third parties were involved.

CORBETT J.A. (as he then was) at 658 A and 666 B stated as follows:

“An ante-nuptial contract which has not been registered or properly registered, though of no force or effect against, persons not party thereto, is valid inter partes. Where one of the parties to the contract has died, then obviously the contract would be operative as between the estate of the deceased party and the surviving party or parties. It would determine, inter partes, their property rights.................It is clear that in terms of Section 86 of the Deeds Registries Act an ante-nuptial contract not registered in the manner and within the time mentioned in Section 87 is no force or effect against any person who is not a party thereto. Having regard, however, to the common law and the legislative background to the Act (which I have sketched above), an ante-nuptial contract which has not been so registered, is valid and effective as between the parties thereto (see Hahlo: “Law of Husband and Wife" 5th edition 1985 at 261 to 262). Indeed, it seems likely................. that even a verbal antenuptial contract, if properly proved, would have such validity inter partes. ” (my own bold letters for emphasis).

[18] Courts have consistently recognised marriages in community of property inte partes despite the provisions of Section 22 (6) of Act in the following cases:-

[18.1] In MATHABATHE Vs MATHABATHE 1987 (3) SA 45 (W) at 51C-D STEGMANN J said in relation to unregistered informal antenuptial contracts that to be binding on the parties, such an antenuptial contract need not be registered. It need not even be in writing. It was pointed out that the use of the term “ante-nuptial contract” may be relatively broad or relatively narrow and the Judge suggested an even wider meaning. Referring to Molefe’s case, at 52H-J he stated:

'It is apparent from the context that throughout this passage the learned Chief Justice was using the expression “ante-nuptial agreement ” to refer to an agreement which expressly or by tacit common intention of the parties, dealt with proprietary rights. Nevertheless there is in my view no reason why the expression “ante-nuptial ” contract should not in an appropriate context be used 'in a still broader sense to refer to a pre-marital agreement which does not deal with proprietary rights expressly or tacitly and which leaves them to be dealt with by implication of law

[18.2.] IN JOSEPHINA NANGULA MOFUKA VS TEOFILUS MOFUKA NAMIBIAN HIGH COURT CASE NO, P1 379/2000 heard on 19 May 2000 and judgment delivered on 14 December 2001. The plaintiff alleged that she was married to the defendant in community of property. The defendant denied and pleaded that the marriage was contracted out of community of property and based his plea on the following:-

“The parties are black and their marriage was solemnized North of the police zone in terms of Section 17 (6) of the Black Administration

Proclamation No. 15 of 1928 (corresponding to Section 22 (6) of Black Administration Act 38 of1927). In terms of the said section,

marriages between Blacks are automatically out of community of property, unless the intending spouses made a declaration one month prior to the marriage before a Magistrate or marriage officer that they want their marriage to be in community of property. No such declaration was made ”

MARITZ J had this to say: “From 1 January 1929 the position was comprehensively regulated in South Africa by Section 22 of the Black

Administration Act, 1927. Being a mandated territory of the Republic of South Africa at the time, the legislative authorities in the then South West Africa soon followed suit with the promulgation of the Black Administration Proclamation, 1928 Section 17 dealt with “marriage” in almost identical terms as Section 22 of Act 38 of 1927 (RSA).

The effect of this section on the legal consequences of civil marriages between Blacks contracted after 31 July 1950 in the area defined as the “Police Zone" is significant. No longer does community of property follow unless excluded rather, the converse applies. The marriage is out of community of property, unless declared or agreed otherwise.

The plaintiff testified on the circumstances surrounding their marriage with the defendant. It is apparent from her evidence that, even if it is assumed that she and the defendant had been entitled to do so, they did not make a joint declaration to a Magistrate or Marriage Officer as contemplated in Section 17 (6), Their marriage, not producing the legal consequences of marriage in community of property between the spouses, is therefore one out of community of property.

But is that the end of the enquiry in view of her evidence that she and the defendant had agreed that their marriage would be in community of property? I think not. Two further questions arise in that regard. Can the parties agree to the conclusion of their marriage that, as between them the matrimonial property regime would be different to the one applicable by law to their marriage? If so did the parties enter into such an agreement?

It is trite that in common law, the parties are at liberty to enter into such an agreement. Authority for that proposition has again been confirmed in Ex Parte Spinazze & Another by Mr Justice Corbett, (see citation and quotation at paragraph 17 above in order to avoid repetition).

In the absence of any rebutting evidence by the defendant, I must conclude that the plaintiff proved on a balance of probabilities that she and the defendant expressly agreed prior to the conclusion of their marriage that the proprietary consequences thereof inter se would be that of a marriage concluded in community of property. In the alternative, and in any event, they impliedly and by conduct so agreed”.

Maritz J ordered that the marriage between the plaintiff and the defendant had been concluded out of community of property but, as between the plaintiff and the defendant, the marriage has the effect of one concluded in community of property.

[18.3] IN BOPAPE AND ANOTHER VS MOLOTO 2000 (1) SA 383 T AT 387 In this case both Plaintiffs were married to each other in community of property and the second plaintiff started an extra-marital affair with the defendant in respect of whom he bought an immovable property for her without the knowledge and consent of the first plaintiff. When the first plaintiff became aware of all the expenses both the first and second plaintiffs claimed repayment of the expenditure on behalf of the first Plaintiff

MARITZ J at page 387 A remarked: " To accomplish a lawful donation or an alienation without value, the consent of both spouses is required. When it is clear that such

consent is absent, the alienation cannot be lawful. In my view it follows of necessity that such alienation is void. ”

And at 388 F-G. “Furthermore it would smack of injustice if a paramour were to be allowed to retain gains which are clearly

prejudicial to a joint estate. The moment the cause for the acquisition fails away, it follows of necessity in my view that the

particular asset or assets must return whence it or they came, being the joint estate. In my view the defendant has no right of retaining what she has received and the plaintiffs have every right to recover it”

It should be noted that in the BOFÁPE case the two spouses jointly claimed the asset from the defendant being money of the joint estate spent by the second plaintiff on his paramour (the defendant).

[19] Section 22 of the Black Administration Act, 1927 was repealed by the Marriage and Matrimonial Property Act No. 3 of 1988. The repeal does not have any retrospective effect.

[20] On 1 November 1984, the Matrimonial Property Act 88 of 1984 was enacted which inter alia abolished the marital power a husband had over a wife in a civil marriage or in terms of common law. The effect hereof was that, as from 1 November 1984, the marital power which a husband had over his wife in terms of a marriage concluded in terms of the repealed section 22 (6) of the Act was repealed with retrospective effect but this retrospectively only applies to marital power and does not affect the status of the marriage solemnized in terms of Section 22 (6).

[21] In applying the law into the facts of the present case I first wish to deal with the following undisputed facts:

[21.1] It is undisputed that the applicant is the surviving spouse of the deceased having been married to the deceased by civil rights on 3 March 1956 in Port Elizabeth.

[21.2] it is further undisputed that during the subsistence of the marriage the deceased and the applicant acquired the properties listed in paragraph 6 supra.

[21.3] That on 5 August 2005 before that Acting Mr Justice Mathee under Mthatha High Court Case 758/2005 an interim interdict was granted and Rule Nisi issued calling upon the deceased to show cause why he should not be interdicted from transferring the property of the joint estate to the Third Respondent (then Mr LCM Ludidi, the purchaser) or any other purchaser without the written consent of the applicant and why the joint estate of the applicant and the deceased should not be divided into two equal halves and the said order be published in the Government Gazette and a local newspaper to protect the creditors of the joint estate. It is not clear whether the Rule Nisi was confirmed or discharged on the return date.

[21.4] On 1 November 2006, the year following the above mentioned case, the deceased made a Will where he declared that he was married in community of property. For this reason one would assume that the Rule Nisi was confirmed.

[21.5] From the correspondence between the then deceased’s Attorneys, Potelwa & Company, and the applicant's previous Attorneys, Mantyi Attorneys dated 21 February 2007 it appeal's that Erven 867 and 868 Mthatha were sold and the Applicant's half share of the proceeds of the sale was paid directly to her (see pages 121 of the Court documents, Annexure TD3 and 125 Annexure TD5).

[21.6] The Deed of Sale (at page 126 of the Court documents Annexure TD6) reflects the Sellers, applicant and deceased, as being married in community of property to each other.

[21.7] An Affidavit in terms of Regulation 68 (1) of the Regulations under the Deeds Registries Act 47 of 1937 (page 131 Annexure TD6) reflects the applicant and the deceased as being married in community of property to each other.

[22] Both parties were granted an opportunity to file further affidavits and the first respondent, in her further affidavit (page 140 paragraph 3.2.) stated that she first stayed with the deceased as his girlfriend who later sent dowry emissaries to her maiden home for the latter to negotiate and pay lobola on his behalf Thereafter they consummated and celebrated their marriage in terms of the customary marriage.

These averments were not confirmed by an independent person who witnessed the events, for example one of the dowry emissaries. Therefore it is difficult to give any weight to these averments without a confirmatory affidavit. There are no proofs that the said customary

marriage was registered though in terms of Section 4(9) of the Recognition of Customary Marriages Act 120 of 1998 failure to register a customary marriage does not affect the validity of that marriage.

[23] I first prefer to deal with the issue of whether the marriage entered into between the applicant and deceased had the consequences of a marriage in community of property or not.

[24] In the absence of any rebutting evidence by the first respondent the applicant under paragraph 21 above proved on a balance of probabilities that she and the deceased agreed that the proprietary consequences of their marriage inter se would be that of a marriage concluded in community of property. In the alternative, and in any event they impliedly and by conduct during the subsistence of their marriage conducted their mam age as one in community of property. See judgment of Corbett J in paragraph 17 above where he referred to a verbal ante-nuptial contract and Stegmann J in Mathabathe’s case in paragraph 18.1 and in Ex Parte Spinazze case in paragraph 18.2 above.

[25] The second issue is whether there was a valid customary marriage between the first respondent and the deceased or not.

[26] Section 10 (4) of the Recognition of Customary Marriages Act 120 of 1998 upon which the applicant relies provides:

“Despite subsection (1), no spouse of a marriage entered into under the Marriage Act, 1961, is, during the subsistence of such marriage, competent to enter into any other marriage. ”

[27] The First Respondent's Counsel contended that the marriage between the applicant and the deceased was not governed by the Marriages Act No. 25 of 1961 to which the section refers.

[28] One of the requirements for the validity valid of customary marriages in terms of Section 3 (l)(b) is that the marriage must be negotiated and entered into or celebrated in accordance with customary law.

[29] Section 4(4) (a) deals with registration of customary marriages and provides:

“A registering officer, must, if satisfied that the spouses concluded a valid customary marriage, register the marriage by recording the identity of the spouses, the date of marriage, any lobola agreed to and any other particulars prescribed. ”

[30] In paragraph 10 Supra the applicant stated that if the deceased was married by customary union to the first respondent she would be required to first give consent to such customary union.

In PALESA N.O, Vs MOLEKO 2013 (4) ALL SA 166 (GSJ) KGOMO J referred to the Constitutional Court judgment (on 30 May 2013) in MODJADJ FLORAH MAYELANE Vs MPHEPHU MARIA NG WEN YANA and THE MINISTER OF HOME AFFAIRS reported as MAYELANE Vs NGWENYAMA and ANOTHER 2013 (8) BCLR 918 (CC) where the central question was.

a) “Should the consent issue have been determined by the Supreme Court of Appeal?

b) Is the consent of a first wife necessary for the validity of her husband's subsequent marriage? This entails considering:

i. Whether the Recognition Act directly prescribes the first wife’s consent as a requirement for validity; and

ii. Whether living................custom makes such a prescription?”

The Constitutional Court answered the above questions in the affirmative, categorically stating that any subsequent customary marriage entered into by a husband without the express consent of the wife is invalid and of no force and effect.

[31] IN MOTSOATSOA VS RORO AND ANOTHER 2011 (2) ALL SA 324 (GSJ) The Court held that in terms of Section 3(1) one of the crucial elements of a customary marriage was the handing over of the bride by her family to her new family namely that of the groom as it was the handing over of the bride that distinguished mere cohabitation from marriage. Until the bride had formally and officially been handed over to the groom’s people there could be no valid customary marriage. In the present case the first respondent has not satisfied this requirement.

[32] I have not come across any authority either in terms of the Black Administration Act, 1927, Marriage Act, 1961, the Marriage and Matrimonial Property Law Amendment Act 3 of 1988, the Matrimonial Property Act 88 of 1984 or the Recognition of Customary Marriages Act 120 of 1998 that contemplates the existence side by side of a civil marriage and a subsequent customary union.

[33] Therefore the customary marriage contracted between the first respondent and the deceased is null and void.

[34] The third issue is whether the deceased's Will was executed in compliance with the provisions of the Wills Act No. 7 of 1953.

[35] Both Counsel consented that the Will is valid though applicant’s Counsel argued that the Will is partially invalid in so far as it deals entirely with the joint estate instead of the deceased’ half-share of the Joint estate.

[36] Both Counsel did consent further that the requirements of the Wills Act in terms of Section 2 of ACT No. 7 of 1953 have been complied with,

[37] I agree with First Respondent's Counsel that Will should either be valid or invalid. I have never come across any authority that declared a Will partially invalid.

[38] In the premises the Will of the deceased dated 28 November 2011 is valid.

[39] I now make the following order

1. That the Will and Testament dated 28 November 2011 which was filed with the Master of the High Court, Mthatha on 14 April 2014 is declared a valid Will of Vuyisile Archibald Tyesi,

2. That a declarator do hereby issue that the said Will and Testament referred to in paragraph 1 above disposes only of the portion of the share of Vuyisile Archibald Tyesi,

3. That the Master of the High Court is directed to, when administering this Estate, only dispose by Will of Vuyisile Archibald Tyesi only 50% of the joint Estate and to give the other 50% to the only surviving spouse of the deceased, namely, Mrs Beatrice Tinky Tyesi,

4. That the counter- claim is dismissed and that the first respondent should pay her own costs of the counter- claim,

5. That the costs of the application shall be costs in the joint Estate.

PLC MASETI

ACTING JUDGE OF THE HIGH COURT

PAKADE ADJP:

[1] I have read the judgment prepared by my brother, Maseti AJ and I agree with the orders proposed therein and the accompanying reasons but the following is the concurring judgment to bring lucidity to reasons for judgment.

[2]This judgment concerns the interpretation of a Will left by Vuyisile Archibald Tyesi (hereinafter called "Mr Tyesi") upon his death and an interdict against the respondents.

[3]The applicant is the surviving spouse of Mr Tyesi (“the testestor " ) married to him by civil rites in Port Elizabeth in 1956. The first respondent is the girlfriend of Mr Tyesi who resides at Payne Farm in Mthatha but who asserts herself as the wife of Mr Tyesi married to him in terms of customary law.

[4]The litis contestatio between the applicant and the first respondent concerns the validity of the Will and the interdictory relief as incidental to the main relief.

The interdictory relief is against -the first respondent from burying and interfering with the body of Mr Tyesi; -third respondent from executing the Will and appointing the second respondent m terms thereof; - the fourth respondent from releasing the body of Mr Tyesi to the first respondent; - and against the fifth respondent from releasing funds kept in Mr Tyesi’s bank accounts to the first respondent.

[5]The application is opposed by the first respondent who has deposed to the answering affidavit and who has also filed a counter- application seeking -a declarator to the validity of the Will and also seeking the same interdict, sought by the applicant against her to be granted against the applicant.

[6] On 24 April 2014, Mjali J granted an order by consent interdicting both the applicant and the first respondent from burying the body of Mr Tyesi and the fourth respondent from releasing his body pending the final determination of this application . As a result of the interim interdict the body of Mr Tyesi was still in the mortuary at the time of the hearing of this application on 20 June 2014. It is, however, important to mention that during the hearing of the application both counsel, Mr Kunju, counsel for the applicant and Mr Bodlani, counsel for the first respondent informed the court that there is nolonger any dispute in the relief sought by the first respondent which relates to her right to bury the body of Mr Tyesi and Mr Kunju conceded that the applicant is abandoning the relief he had sought in this respect. Accordingly and without any further ado, the Court issued an order that Mr Tyesi be buried by the first respondent and that a sum of one hundred and sixty thousand rand be withdrawn from the bank account of Mr Tyesi at First National Bank to cover the burial expenses. As at the time of the hearing there was only one issue remaining for determination and that concerned the validity of the will of Mr Tyesi.

[7]During the hearing, the Court raised, mero motu, the issue of the type of civil marriage of the applicant with Mr Tyesi in view of the fact that the applicant omitted to aver whether that marriage is in or out of community of property. The Court further observed that the Marriage Act, 25 of 1961 does not apply to this marriage because it was concluded in 1956 and that the proprietory consequences thereof could be regulated by the Black Administration Act , 38 of 1927 in terms whereof , as a matter of policy at the time and in terms of section 22(6) thereof marriages of blacks were presumed to be out of community of property unless the parties had entered into an antenuptial contract . Mr Bodlani agreed with this statement of the law while Mr Kunju requested time to reflect on it. Accordingly Mr Kunju was granted leave to file supplementary heads of argument but both counsel advanced argument on the validity or otherwise of the Will.

[8]Mr Kunju abandoned the grounds of objection on the validity of the will based on the absence of the signature of Mr Tyesi on the will and also on that one of witnesses on which the applicant had challenged the validity of the Will. He submitted though that the Will is partially valid to the extent that Mr Tyesi had bequeathed all the estate including that of the applicant in a marriage in community of property . Whether the marriage is in community of property or not depends on the legislation which regulates it, so submitted Mr Kunju. However , Mr Bodlani countered this argument by submitting that whosoever has a claim against an estate should submit that claim to the executor and that the applicant should have adopted this route without coming to court. A short answer to this submission is that the executor would distribute the estate to already determined beneficiaries by the Will. The executor would not divest a testamentary beneficiary of his benefit. Therefore the applicant was justified to come to court to seek a declarator of her share.

[9]Mr Bodlani further submitted that the applicant has not made a case for a share because she omitted to produce evidence that the marriage is in community of property and that the result of such failure is that in terms of section 22(6) of the Black Administration Act, 38 of 1927 the marriage is out of community of property . There could have been merit in this submission had section 23 of this legislation not have been amended and subsequently declared unconstitutional by the Constitutional Court in Bhe and Others v Magistrate Khayelitsha and Others1. The repeal was with retrospective effect from 27 April 1994. Mr Tyesi died after 15 October 2004 and his estate should have been

administered in tenns of the Administration of Estate Act, 66 of 1965 and Intestate Succession Act, 81 of 1987 if there was no will. At the time of his death in April 2014 he was legally married to the applicant in a marriage which they had both acquieced to be a marriage incommunity of property and they had conducted themselves in accordance with that agreement. Therefore when Mr Tyesi made a will disposing of property he was disposing of only his portion of the joint estate and not also of the portion belonging to the applicant in a marriage incommunity of property. Whatever property he has bequeathed to somebody else that refers to a portion of his share of the joint estate and does not affect the share of the applicant in the joint estate.

[10] In the circumstances and as I have already alluded in the preceding paragraphs I agree with the Orders so proposed.

It is so ordered.

L.P. PAKADE

ACTING DEPUTY JUDGE PRESIDENT

For the Applicant : Mr V. Kunju

Instructed by: C.B Nguza & Associates

27 Victoria Street

Cathedral

Mthatha

For the First Respondent: Mr M. Bodlani

Instructed by : L.G Nogaga Attorneys

45 Leeds Road Mthatha

Date of hearing : 20 June 2014

1 See paragraph 70, at p 35.

2 See paragraph IS of the Applicant's replying affidavit, at p 142. The letter from the State Attorney is attached to the affidavit as 'BZD 2.2', at p 157.

3 See paragraph 82 of the Applicant's founding affidavit, at p 38. In addition, see paragraphs 3.2 - 3.4, pp 174 -175.

4 See, too, Jacobs v Waks [1991] ZASCA 152; 1992 (1) SA 521 (A) at 533J-534A, where the court held, at 534A-D, that locus standi was not "n tegniese begrip met vas omlynde grense nie'. An assessment of the sufficiency of a litigant's interest depended on the circumstances of the case (as quoted in Van Logger enberg DE, Erasmus- Superior Court Practice (Service 45, Juta & Co Ltd, 2014), at B1-126A).

5 The principle has been affirmed and applied in a long line of case law that has followed, the most recent cases including CityofTshwane Metropolitan Municipality v Cable City (Pty) Ltd (CCT 85/09) {2009] ZACC 34; 2010 (5) BCLR 445 (CC) at para 12; Standard Bank of South Africa Ltd v Swartland Municipality 2011 (5) SA 257 (SCA) at 482F-H; and Umndeni (Clan) of Amantungwa and Others v The MECfor Housing and Traditional Affairs, KwaZulu-Natal (513/09) [2010] ZASCA142 at para 38.

6 See paragraph 10 of the Third Respondent's answering affidavit, at 111.

7 See Annexure TM 1', especially paragraph 4, attached to the Third Respondent's answering affidavit, at 117-122.

8 See the following decisions, all emanating from the North-West High Court: Mamogate v Premier, North West Province and Others (227/2006) [2006] ZANWHC 63 (13 October 2006); Mabaiane v Premier of the North West Provincial Government and Others (1575/2009) [2010] ZANWHC 22 (29 April 2010); Masilo NO v Bakubung-ba-Ratheo Traditional Council and Others (1737/2010) {2010] ZANWHC 10 (22 September 2010); and Maakane and Others v Premier of the North-West Province and Others (2715/2010) [2011] ZANWHC 29 (23 June 2011). See, too. King Nephawe, Azwidowi Tshidziwelefe XXXIJl v President of the Republic of South Africa and Others [2014] JOL 31597 (LT), in the Limpopo High Court, Thohoyandou.

9 It was observed by Hendricks J, obiter dicta, in Monneng Royal House v Premier of the North West Province and Others (227/12) (2012] ZANWHC15 (17 April 2012), at paragraph [19], that the royal family is an entity that can sue and be sued in its own name.

10 Rule 14(2) provides that '[a] partnership, a firm or an association may sue or be sued in its name.' The meaning of 'association' is given in Rule 14(1) as '...any unincorporated body of persons, not being a partnership'

11 The principles have been followed to date and remain in application; see National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC) at 235 D-E.

12 The requirement was further qualified by Ogiivie Thompson J in Gool v Minister of Justice 1955 (2) SA €82 (C), at 688D-E, but the case is not immediately relevant for present purposes, other than to observe that Ogiivie Thompson J endorsed the approach outlined in Webster v Mitchell.

13 See paragraph 10 of the founding affidavit, p 17.

14 See sub-paragraph 41.5, p 27.

15 See paragraph 63, p 33.

16 The courts do not approve of such an approach and regard it as improper. See Standard Bank of SA Ltd v Hand (2011] JOL 27368 (GSJ), at paragraphs [4] to [6].

17 The principles are discussed, too, in Van Loggerenberg, supra {n 4), at Bl-45 to Bl-47.

18 Op cit, Bl-55 to 81-56.

19 In that regard, the request was made or» 7 August 2014. The Second Respondent had a period of at least 30 days within which to make a decision in relation to the request, which may be deferred for a further period of 30 days. See sections 25(1) and 26(1} of PAIA.

1 2005{1)SA 580 (CC)