Govender N.O and Others v Gounden and Others (AR452/2015) [2018] ZAKZDHC 69; 2019 (2) SA 262 (KZD) (24 August 2018)

Govender N.O and Others v Gounden and Others (AR452/2015) [2018] ZAKZDHC 69; 2019 (2) SA 262 (KZD) (24 August 2018)

The court held that the Matrimonial Property Act requires spousal consent only for the receipt of an inheritance, not for its renunciation. The operative verb in s 15(3)(b)(iii) is 'receive', and the consent required is that of the heir whose inheritance is at issue, not the spouse who would benefit from the joint...

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Citation
[2018] ZAKZDHC 69
Parties
Appellant: Harold Govender N.O.; Appellant: Shahina Maharaj N.O.; Appellant: Miriam Bibi Abdool Rahman; Appellant: Mahomed Farhad Gounden; Respondent: Lutchmi Gounden; Respondent: Rianna Nivedita Gounden; Respondent: Master of the High Court, Durban; Respondent: Fredrelike Arthemis Liasides N.O.
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
24 August 2018
Case Number
AR452/2015
Procedural Posture
Civil Appeal / Appeal From Judgment of the High Court
Outcome
Appeal dismissed with costs.
Judges
K Pillay, Koen, Ploos Van Amstel
Legal Topics
Matrimonial Property Act, Renunciation of Inheritance, Intestate Succession, Community of Property, Spousal Consent, Administration of Estates
Family and Children Civil Procedure Matrimonial Property Act Renunciation of Inheritance Intestate Succession Community of Property Spousal Consent Administration of Estates

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Parties

Harold Govender N.O.

Appellant

Shahina Maharaj N.O.

Appellant

Miriam Bibi Abdool Rahman

Appellant

Mahomed Farhad Gounden

Appellant

Lutchmi Gounden

Respondent

Rianna Nivedita Gounden

Respondent

Master of the High Court, Durban

Respondent

Fredrelike Arthemis Liasides N.O.

Respondent

Procedural Posture

Civil Appeal / Appeal From Judgment of the High Court

Legal Issues

  1. 1 Whether a spouse married in community of property requires the consent of the other spouse to validly renounce the benefits of an intestate inheritance.
  2. 2 Whether the renunciation of inheritance by the first respondent was valid without spousal consent.
  3. 3 Whether the timing of the renunciation (pre or post dies venit) affects its validity.

Ratio Decidendi

The court held that the Matrimonial Property Act requires spousal consent only for the receipt of an inheritance, not for its renunciation. The operative verb in s 15(3)(b)(iii) is 'receive', and the consent required is that of the heir whose inheritance is at issue, not the spouse who would benefit from the joint estate. The renunciation by the first respondent was validly executed and did not require the consent of her spouse or his estate. The act of renunciation does not amount to a donation or alienation to another person, but simply results in the inheritance devolving according to the Intestate Succession Act. The timing of the renunciation, whether pre or post dies venit, does not...

Court Disposition

Appeal dismissed with costs.

Orders

  • Insofar as the consent of this court might be required for the withdrawal of the application to adduce further evidence, such consent is granted.
  • Each party will be liable for their own costs of the application to adduce further evidence, the opposition thereto, and the dismissal of the appellants’ notice in terms of uniform rule 30 read together with uniform rule 41(1)(a).