None v Tshabalala (15549/2011) [2013] ZAGPJHC 100 (3 May 2013)

None v Tshabalala (15549/2011) [2013] ZAGPJHC 100 (3 May 2013)

The court found that the applicant was validly married to the deceased by civil marriage, which subsisted until his death. The purported customary marriage between the respondent and the deceased was declared invalid, as it was entered into during the existence of the civil marriage. The applicant was validly appointed as executrix and entitled to control and possession of all estate assets, including the immovable property. The respondent's claim for universal partnership was not sufficiently pleaded in the initial papers and was reserved for separate judgment. The respondent was ordered to allow the applicant access to the estate assets to enable her to perform her duties as executrix....

Citation
[2013] ZAGPJHC 100
Parties
Applicant: Sibongile Margaret None; Respondent: Lydia Nomasonto Tshabalala
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
3 May 2013
Case Number
15549/2011
Procedural Posture
Civil Trial / Judgment After Trial on Merits; Counterclaim Reserved
Outcome
Applicant's civil marriage and executrix status confirmed; respondent's customary marriage declared invalid; respondent's counterclaim dismissed except for universal partnership and ejectment, which are reserved for later judgment.
Judges
PM Mojapelo
Legal Topics
Customary Marriage Validity, Universal Partnership Claim, Administration of Estates, Ejectment, Letters of Executorship, Interdict
Family and Children Land and Property Civil Procedure Customary Marriage Validity Universal Partnership Claim Administration of Estates Ejectment Letters of Executorship +1 more

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Parties

Sibongile Margaret None

Applicant

Lydia Nomasonto Tshabalala

Respondent

Procedural Posture

Civil Trial / Judgment After Trial on Merits; Counterclaim Reserved

Legal Issues

  1. 1 Whether the respondent was legally married to the deceased under customary law.
  2. 2 Whether the applicant's civil marriage to the deceased subsisted at the time of death.
  3. 3 Whether the respondent is entitled to a declaration of universal partnership with the deceased.

Ratio Decidendi

The court found that the applicant was validly married to the deceased by civil marriage, which subsisted until his death. The purported customary marriage between the respondent and the deceased was declared invalid, as it was entered into during the existence of the civil marriage. The applicant was validly appointed as executrix and entitled to control and possession of all estate assets, including the immovable property. The respondent's claim for universal partnership was not sufficiently pleaded in the initial papers and was reserved for separate judgment. The respondent was ordered to allow the applicant access to the estate assets to enable her to perform her duties as executrix....

Court Disposition

Applicant's civil marriage and executrix status confirmed; respondent's customary marriage declared invalid; respondent's counterclaim dismissed except for universal partnership and ejectment, which are reserved for later judgment.

Orders

  • The applicant was validly married in community of property to the late Lewis None, and the marriage subsisted at the time of his death.
  • The purported customary marriage between the respondent and the deceased is declared null and void ab initio and of no force and effect.