Makhathini v Gwala and Another (22180/2016) [2018] ZAGPJHC 586 (31 October 2018)

Makhathini v Gwala and Another (22180/2016) [2018] ZAGPJHC 586 (31 October 2018)

The court found that the papers before it were insufficient to determine the true nature of the relationship between Ms. Gwala and the deceased, and whether it had proprietary consequences under customary or civil law. The applicant's description of Ms. Gwala as merely an ex-girlfriend was inadequate, given the deceased had lived with Ms. Gwala for years prior to his death. The division of the jointly owned property and the applicant's entitlement as executrix could not be resolved without further evidence, including whether constitutional issues regarding occupation and eviction were implicated. The matter was postponed for oral evidence and further inquiry into the real issues.

Citation
[2018] ZAGPJHC 586
Parties
Applicant: Eunice Sonosini Makhathini; Respondent: Octavia Hlengiwe Gwala; Respondent: Master of the High Court
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
31 October 2018
Case Number
22180/2016
Procedural Posture
Civil Application / Ruling on Unopposed Motion; Postponed for Oral Evidence
Outcome
Application postponed for oral evidence; costs reserved.
Judges
Spilg
Legal Topics
Customary Marriage, Division of Joint Property, Executor Powers, Right of Occupation
Family and Children Land and Property Customary Marriage Division of Joint Property Executor Powers Right of Occupation

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Parties

Eunice Sonosini Makhathini

Applicant

Octavia Hlengiwe Gwala

Respondent

Master of the High Court

Respondent

Procedural Posture

Civil Application / Ruling on Unopposed Motion; Postponed for Oral Evidence

Legal Issues

  1. 1 Whether the relationship between Ms. Gwala and the deceased was dissolved or constituted a customary marriage with proprietary consequences.
  2. 2 Whether the undivided half share of the jointly owned property should fall into the deceased estate administered by the applicant.
  3. 3 Whether Ms. Gwala's rights to occupy the property are affected by constitutional protections and require a PIE notice before any eviction or sale.

Ratio Decidendi

The court found that the papers before it were insufficient to determine the true nature of the relationship between Ms. Gwala and the deceased, and whether it had proprietary consequences under customary or civil law. The applicant's description of Ms. Gwala as merely an ex-girlfriend was inadequate, given the deceased had lived with Ms. Gwala for years prior to his death. The division of the jointly owned property and the applicant's entitlement as executrix could not be resolved without further evidence, including whether constitutional issues regarding occupation and eviction were implicated. The matter was postponed for oral evidence and further inquiry into the real issues.

Court Disposition

Application postponed for oral evidence; costs reserved.

Orders

  • The application is postponed to 16 November 2018 at 10am in court 6D for purposes of determining issues to be referred to oral evidence.
  • The first respondent is to appear in court on that day with or without legal representation.