Setho v The Executor - Estate of Ntoahae Paul Setho and Others (2874/2020) [2021] ZAFSHC 178; 2021 (6) SA 483 (FB) (1 July 2021)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 2874/2020

In the matter between:

MASEBATA SUZAN SETHO Applicant

and

THE EXECUTOR: ESTATE OF NTOAHAE

PAUL SETHO First Respondent

GAONGALELOE AGNES SETHO Second Respondent

ANDREW SETHO Third Respondent

MASTER OF THE HIGH COURT,

FREE STATE DIVISION Fourth Respondent

HEARD ON: 10 JUNE 2021

JUDGEMENT BY: LOUBSER, J

DELIVERED ON: 1 JULY 2021

[1] The Applicant makes application for a declarator in the following terms:

1. Declaring that:

1.1 The marriage contract entered into between the Applicant and the late Ntoahae Paul Setho (I.D.....) on 7 December 1983 at St. Peter’s Parish in Bloemfontein gave rise to a putative marriage between them, which is binding on the deceased estate to date;

1.2 The property making up the joint estate that was amassed during the subsistence of the matrimonial union between the Applicant and the said Ntoahae Paul Setho, as at the date of the latter’s death on 1 December 2019, shall be divided as though a marriage in community of property had been concluded between them.

2. Directing the First and Fourth Respondents to deal with and administer the estate of the late Ntoahae Paul Setho in keeping with the above declaratory orders, and in particular on the basis that the deceased had been married to the Applicant in community of property since 7 December 1983 until his death on 1 December 2019.

3. (Relief to refer the matter for trial if found necessary).

4. Directing the Respondents who oppose the application to pay the costs thereof, jointly and severally, the one paying the others to be absolved.

[2] The Applicant is the wife of Mr. Ntoahae Paul Setho, hereinafter referred to as the deceased. He passed away on 1 December 2019. The Second Respondent is the first wife of the deceased, to whom he was married by civil rites before he married the Applicant. The Third Respondent is the biological son of the deceased born from his first marriage. The application is opposed by the 3rd Respondent.

[3] The facts, as they transpire from the papers before me, are mostly common cause. It is the case for the Applicant that she and the deceased were married in community of property in a church by a priest on 7 December 1983. They were therefore married for a total of 36 years when the deceased passed on. During the subsistence of the marriage, they had amassed assets together, including a home they purchased. This property was registered in the names of both of them. Until recently, the Applicant had been made to believe that the deceased and his first wife, the Second Respondent, were divorced. This is what the deceased had told her before they got married, although she had never seen any official divorce document. She believed him to this effect and never had any reason to doubt his word. According to her, she and the deceased had lived a peaceful life during the subsistence of their marriage.

[4] When she reported the death of her husband at the Master’s office, she was informed that the first marriage was perhaps not validly terminated. According to records in the Master’s possession, the deceased was still married to his first wife. According to the Applicant, she was thereafter advised that she and the deceased had a putative marriage, because the first marriage might not have been validly terminated by divorce proceedings at the time of the second marriage. If there was never a divorce, she was not aware of such a fact. Through all the years she bona fide believed that her husband and the 2nd Respondent were legally divorced.

[5] The Applicant went on to say that before she married the deceased, he one day told her that he was going to court to deal with a matter involving his first wife. She reasonably assumed at the time that he was referring to divorce proceedings. Before they got married, the deceased was living alone at the home he had once shared with the 2nd Respondent. At the time, he had told the Applicant that they were separated, and that she had left their home to live at her parent’s

home. Later on, after they became engaged, the deceased moved in with her at her place to live there permanently with her. At around the same time, the 2nd Respondent returned to the home she had once shared with the deceased. To the Applicant’s understanding, the 2nd Respondent has lived there ever since. This fortified her impression that all ties, legally and otherwise, were determinately severed

between the deceased and the 2nd Respondent. It needs mentioning that the papers before me do not indicate who the owner or owners of the home in question was.

[6] The Applicant further says the 2nd Respondent never gave her any reason to believe that the first marriage still subsisted. They had come across each other on occasion. Even at the funeral of the deceased, which the 2nd and 3rd Respondents attended, they never gave any indication to her that the 2nd Respondent was still the wife of the deceased.

[7] In his opposing affidavit the 3rd Respondent states that his mother and the deceased were also lawfully married, and that there never was any divorce. For this reason, he says, the marriage between the deceased and the Applicant was null and void. He and his mother simply believed the deceased and the Applicant were merely living together through all the years.

[8] In a confirming affidavit, the 2nd Respondent confirms that she and the deceased had lived separate lives through all the years, although they never came to the divorce

process as such.

[9] In her replying affidavit, the Applicant says that she indeed realises that her marriage to the deceased was void. All that she now seeks, is the consequences of a putative marriage, that is that the assets in the estate must be divided between herself and the deceased estate as though they were married in community of property.

[10] The Third Respondent and his mother do not dispute the allegation by the Applicant that she had reason to believe that the first marriage of the deceased was validly terminated. They also do not dispute the allegation that the Second Respondent had moved back into the house she and the deceased had once shared, and that she had lived there ever since. They also provided no information in their affidavits as to any assets or property that the Second Respondent and the deceased had amassed during their communion. What they did disclose, however, was that the Second Respondent and the deceased were married to each other on 4 November 1972. They were therefore married for 11 years when the deceased married the Applicant. It is not indicated in the papers before me for how long the deceased and the Second Respondent were already living separate lived when the second marriage took place.

[11] Now the facts of the matter dictate that it must be accepted that the second marriage was bigamous and therefore null and void because the first marriage was never validly and lawfully terminated. However, the facts also show that the second marriage falls in the category that is recognized in our law as a void marriage where one or both parties bona fide, but mistakenly, believe it to be a valid marriage.[1]

[12] In the present case the Applicant has made out a proper case that she had bona fide believed her marriage with the deceased to be a valid marriage. It was only after 36 years that she learnt that this was not the case.

[13] The learned authors Visser and Potgieter[2] point out that the law recognizes a putative marriage in order to soften certain consequences of a marriage that is null and void. The putative marriage doctrine therefore constitutes a common law application to the general rule that a void marriage has no legal

consequences.[3] The instances where a putative marriage tempers the harsh consequences of a void marriage, relate mainly to two issues, namely

the children of the marriage and the patrimonial consequences thereof. If, for instance, both parties were bona fide at the time entering into the putative marriage, and the marriage was without an ante-nuptial contract in which community of property was excluded, the marriage is in community of property.

[14] If only one of the parties was bona fide, the marriage will also be in community of property if this dispensation will be to the advantage of the innocent spouse. In the

case of a second civil marriage in community of property entered into by a person who was already a spouse in a civil marriage in community of property with someone else, as in the present case, the position is apparently somewhat different. In the Zulu case[4] it was held that, as a joint estate still existed between the common spouse and his first wife, no new community of property regime could be created between the common spouse and his second wife.

[15] The facts of that case were mostly similar to the facts of the present case. Hugo, J relied on Lawsa, vol. 16, 2nd edition, page 75 in finding that in a marriage in community of property, all assets, save for those expressly excluded therefrom,

form part of a joint estate and each spouse enjoys an equal undivided share of such joint estate. During the subsistence of the marriage the spouses thereto cannot by agreement divide the estate in such a way that their assets become separate property of the individual spouses and nor can one of the parties transfer his undivided half share. The learned Judge found that the joint estate between the deceased and his first wife was not terminated prior to his marriage with his second wife. In the circumstances, all the assets of the deceased formed part of the joint estate between himself and his first wife. The deceased was entitled to an undivided half share of that joint estate. In the absence of any property excluded from the joint estate the deceased could not have created a new community of property regime with his second wife.

[16] The correctness of this decision has however been questioned by B. S. Smith in his article “Rethinking the Application of the Putative Spouse Doctrine in South African Matrimonial Property Law”.[5] In this article, the learned author emphasizes that the putative marriage is based on the premise that the harsh consequences of a void marriage should be avoided for the sake of the bona fide spouse. “The approach adopted by the learned Judge flies in the face of the well-entrenched raison d’ȇtre of the putative marriage by in fact penalising the innocent spouse for the actions of the party who was not only fully aware of the fact that he was already married, but moreover, according to the Judge was fully aware of the unlawfulness of his second marriage”.

[17] In my view, there is much to be said for the views expressed by the learned author, especially when the facts of the present matter are considered. The Applicant was bona fide in her beliefs, and the deceased must have known that his marriage to the Applicant was unlawful. Moreover, the undisputed facts of the matter are to the effect that, de facto, the community of property between the deceased and his first wife came to an end when they began living separately. She remained behind in their common home, where she continued to live for many years. There is no evidence of any other assets or property forming part of the first marriage in community, or what happened to it. On the other hand, the Applicant spent most of her life contributing directly or indirectly to the growth in the “joint estate” with the deceased.

[18] In such circumstances it would be unjust, unfair and contrary to the interest of justice to deprive the Applicant from the half share to which she is certainly entitled. To argue otherwise, would be to ignore the established legal principle that a putative marriage exists as a common law qualification to the general rule that a void marriage has no legal consequences.

[19] This approach appears to me to be consistent with the values and the norms written into the Constitution. A court is enjoined by Section 39(2) of the Constitution to promote the spirit, purport and objects of the Bill of Rights. The Bill of Rights provide in Section 25 that no one may be deprived of property except in terms of law of general application. Should this court decide against the Applicant, then she would be deprived of property to which she has shown a half share.

[20] In the premises, the following orders are made:

1. It is declared that the marriage contract entered into between the Applicant and the late Ntoahae Paul Setho (I.D.....) on 7 December

1983 at St. Peter’s Parish in Bloemfontein gave rise to a putative marriage between them, which is binding on the deceased

estate to date.

2. It is further declared that the property making up the joint estate that was amassed during the subsistence of the matrimonial union of the putative marriage between the Applicant and the said deceased, as at the date of the latter’s death on 1 December 2019, shall be divided as though a marriage in community of property had been concluded between them.

3. The First and Fourth Respondents are directed to deal with and administer the estate of the late Ntoahae Paul Setho in keeping with the above declaratory orders, and in particular on the basis that the deceased had been married to the Applicant in community of property since 7 December 1983 until his death on 1 December 2019.

4. The Third Respondent to pay the costs of the application on a party and party scale.

______________

P. J LOUBSER, J

For the Applicant: Adv. A. I. B Lechwano

Instructed by:

Fixane Attorneys

Bloemfontein

For the Third Respondent: Adv. D. C. Hattingh

Instructed by: Webbers

Attorneys

/roosthuizen

[1] Zulu v Zulu 2008 (4) SA 12 (D) at para 15; Visser and Potgieter Introduction to Family Law 68

[2] Introduction to Family Law 68

[3] Heaton and Kruger Family Law 35

[4] See footnote 1

[5] Published in (2010) 24 International Journal of Law, Policy and the Family 267-299