L.M and Another v J.M and Another (63462/12) [2014] ZAGPPHC 1026 (10 December 2014)

L.M and Another v J.M and Another (63462/12) [2014] ZAGPPHC 1026 (10 December 2014)

The court found that the farms in question were not communal land but were purchased and registered in the deceased's name, making them subject to the rules of intestate succession and constitutional principles. The application of primogeniture, which excluded the children of the second wife from inheriting, was inconsistent with the Constitution's guarantee of equality. The deceased had allocated the two farms to his wives for the benefit of their respective houses, and this arrangement should have been respected in the winding-up of the estate. The court held that the property should devolve to the children of the second wife, and ordered the transfer of portion 302 to the applicants...

Citation
[2014] ZAGPPHC 1026
Parties
Applicant: L[...] M[...]; Applicant: G[...] N[...] M[...]; Respondent: J[...] M[...]; Respondent: Registrar of Deeds
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
10 December 2014
Case Number
63462/12
Procedural Posture
Civil Application / Judgment
Outcome
Application granted. Portion 302 of the farm declared property of the second wife and her children; transfer ordered.
Judges
Molefe
Legal Topics
Customary Law of Succession, Primogeniture, Intestate Succession, Equality Under Constitution, Polygamous Marriage Inheritance, Development of Customary Law
Land and Property Family and Children Constitutional Law Customary Law of Succession Primogeniture Intestate Succession Equality Under Constitution Polygamous Marriage Inheritance +1 more

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Parties

L[...] M[...]

Applicant

G[...] N[...] M[...]

Applicant

J[...] M[...]

Respondent

Registrar of Deeds

Respondent

Procedural Posture

Civil Application / Judgment

Legal Issues

  1. 1 Whether, according to Venda custom, the death of a family head in a polygamous marriage disturbs his allocation of land to his wives.
  2. 2 Whether the eldest son, as heir under Venda custom, inherits property in the Western sense of ownership.
  3. 3 Whether customary law should be developed to treat children of a polygamous deceased equally for inheritance purposes.

Ratio Decidendi

The court found that the farms in question were not communal land but were purchased and registered in the deceased's name, making them subject to the rules of intestate succession and constitutional principles. The application of primogeniture, which excluded the children of the second wife from inheriting, was inconsistent with the Constitution's guarantee of equality. The deceased had allocated the two farms to his wives for the benefit of their respective houses, and this arrangement should have been respected in the winding-up of the estate. The court held that the property should devolve to the children of the second wife, and ordered the transfer of portion 302 to the applicants...

Court Disposition

Application granted. Portion 302 of the farm declared property of the second wife and her children; transfer ordered.

Orders

  • Portion 302 of the Consolidated Farm Witfontein No 1, Registration Division J. S. in the District of Groblersdal is declared the property of S[...] T[...] M[...].
  • The Registrar of Deeds is directed and authorized to register Portion 302 into the names of the first and second applicants and their sibling A[...] M[...] M[...].