Mabase v Dlamini (A1299/2005) [2007] ZAGPHC 199 (14 September 2007)

Mabase v Dlamini (A1299/2005) [2007] ZAGPHC 199 (14 September 2007)

The appeal was upheld because the magistrate's prior order declaring no customary marriage existed between the respondent and the deceased was valid and had not been set aside, rendering the issue res judicata. The respondent therefore lacked locus standi as surviving spouse. Furthermore, the document presented as the deceased's will was not drafted or executed by the deceased, but rather by an attorney based on instructions, which does not satisfy the requirements of section 2(3) of the Wills Act as interpreted by the Supreme Court of Appeal. The court a quo erred in accepting the respondent's version without resolving clear disputes of fact through oral evidence and in disregarding the...

Citation
[2007] ZAGPHC 199
Parties
Appellant: Mkhatshane Johannes Mabase; Respondent: Lebogang Naome Dlamini
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
14 September 2007
Case Number
A1299/2005
Procedural Posture
Civil Appeal / Appeal From Order of Court a Quo; Leave to Appeal Granted by Supreme Court of Appeal
Outcome
Appeal upheld; order of court a quo set aside and substituted with dismissal of application with costs.
Judges
Van der Merwe, Mavundla, Phalane
Legal Topics
Customary Marriage, Recognition of Customary Marriages Act, Wills Act Section 2 3, Res Judicata, Locus Standi
Family and Children Civil Procedure Customary Marriage Recognition of Customary Marriages Act Wills Act Section 2 3 Res Judicata Locus Standi

Case Brief

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Parties

Mkhatshane Johannes Mabase

Appellant

Lebogang Naome Dlamini

Respondent

Procedural Posture

Civil Appeal / Appeal From Order of Court a Quo; Leave to Appeal Granted by Supreme Court of Appeal

Legal Issues

  1. 1 Whether the respondent was married to the deceased in terms of customary law and thus the surviving spouse.
  2. 2 Whether the document drafted by the attorney constituted the valid last will of the deceased under section 2(3) of the Wills Act.
  3. 3 Whether the magistrate's prior ruling on marital status rendered the matter res judicata.

Ratio Decidendi

The appeal was upheld because the magistrate's prior order declaring no customary marriage existed between the respondent and the deceased was valid and had not been set aside, rendering the issue res judicata. The respondent therefore lacked locus standi as surviving spouse. Furthermore, the document presented as the deceased's will was not drafted or executed by the deceased, but rather by an attorney based on instructions, which does not satisfy the requirements of section 2(3) of the Wills Act as interpreted by the Supreme Court of Appeal. The court a quo erred in accepting the respondent's version without resolving clear disputes of fact through oral evidence and in disregarding the...

Court Disposition

Appeal upheld; order of court a quo set aside and substituted with dismissal of application with costs.

Orders

  • The application is dismissed with costs.
  • The order of the court a quo is set aside and replaced with this order.