Malo and Another v Siswana and Another (A137/2008) [2010] ZAWCHC 128 (11 June 2010)

Malo and Another v Siswana and Another (A137/2008) [2010] ZAWCHC 128 (11 June 2010)

The court found that the executrix's marriage to the deceased was invalid as the deceased's customary marriage to the first respondent was still subsisting and had not been dissolved by a court. Consequently, the executrix had no authority to sell or transfer the property to the appellants. The sale and transfer did not confer lawful ownership on the appellants, who were aware of the lack of authority. The respondents, as heirs under customary law and in light of the Bhe decision, were lawful owners and occupiers of the property. The magistrate's refusal to grant eviction was correct, as the respondents' occupation was not unlawful and the applicants had no valid claim to ownership or...

Citation
[2010] ZAWCHC 128
Parties
Applicant: Thembile Livingstone Malo; Applicant: Nontuleleko Florence Malo; Respondent: Buzeka Siswana; Respondent: Lonwabo Siswana
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
11 June 2010
Case Number
A137/2008
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Judgment Refusing Eviction Application
Outcome
Appeal dismissed with costs.
Judges
Traverso, Samela
Legal Topics
Prevention of Illegal Eviction Act, Customary Marriage, Intestate Succession, Primogeniture, Ownership Transfer, Constitutional Right to Housing
Land and Property Civil Procedure Family and Children Prevention of Illegal Eviction Act Customary Marriage Intestate Succession Primogeniture Ownership Transfer +1 more

Case Brief

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Parties

Thembile Livingstone Malo

Applicant

Nontuleleko Florence Malo

Applicant

Buzeka Siswana

Respondent

Lonwabo Siswana

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Judgment Refusing Eviction Application

Legal Issues

  1. 1 Whether the respondents' occupation of the property was unlawful.
  2. 2 Whether the executrix had authority to sell and transfer the property to the appellants.
  3. 3 Whether the appellants acquired lawful ownership of the property.

Ratio Decidendi

The court found that the executrix's marriage to the deceased was invalid as the deceased's customary marriage to the first respondent was still subsisting and had not been dissolved by a court. Consequently, the executrix had no authority to sell or transfer the property to the appellants. The sale and transfer did not confer lawful ownership on the appellants, who were aware of the lack of authority. The respondents, as heirs under customary law and in light of the Bhe decision, were lawful owners and occupiers of the property. The magistrate's refusal to grant eviction was correct, as the respondents' occupation was not unlawful and the applicants had no valid claim to ownership or...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.