Daniels v Campbell NO And Others
| Jurisdiction | South Africa |
| Judge | Van Heerden, J |
| Judgment Date | 24 June 2003 |
| Docket Number | 1646/01 |
| Court | Cape Provincial Division |
| Hearing Date | 06 March 2003 |
| Citation | 2003 JDR 0400 (C) |
Van Heerden J:
Introduction
In terms of the Intestate Succession Act 81 of 1987, the surviving 'spouse' of a deceased person has the right to inherit from the intestate deceased estate, in accordance with certain rules governing the order of intestate succession set out
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in some detail in section 1 of the Act. The Maintenance of Surviving Spouses Act 27 of 1990, in turn, provides that when a 'marriage' is dissolved by death after the commencement of the Act (on 1 July 1990), the 'survivor' (ie the surviving 'spouse' has a claim for maintenance against the estate of the deceased 'spouse' in certain circumstances. Neither Act contains a definition of the word 'spouse' – in essence, the meaning to be given to the word 'spouse' in each of these Acts is what lies at the heart of this case.
On 27 November 1994, Mogamat Amien Daniels ('the deceased') died intestate. The main asset in his deceased estate is a house situate at 2A Athon Walk, Lucerne Place, Hanover Park, Western Cape ('the property'). The applicant and the deceased were married in accordance with Muslim rites on 2 March 1977. The marriage, which was at all times monogamous, was not solemnized by a marriage officer appointed in terms of the Marriage Act 25 of 1961. No children were born of this marriage. Throughout his marriage to the applicant (and indeed until his death), the deceased lived with the applicant in the property, and the applicant still lives there.
The property was transferred to the estate of the deceased on 29 July 1998 under Title Deed No. T 70953/98. On 25 January 2001, the first respondent was appointed by the Master of the High Court (the tenth respondent) as the executor of the estate of the deceased and, in these proceedings, the first respondent is cited in his official capacity as such.
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The deceased was survived by four children, namely two daughters, Shahieda Manuel and Sarah Daniels (the fifth and seventh respondents, respectively), and two sons, Mogamat Sharief Manuel (the sixth respondent) and Mogamat Cassiem Daniels ('M C Daniels'). M C Daniels died intestate on 12 June 1999, leaving four children, who are all still minors. Soraya Daniels (the third respondent) is the mother and natural guardian of two of these children, while Adelah Jakoet (the fourth respondent) is the mother and natural guardian of the other two minor children.
On 15 December 2000, the second respondent was appointed by the tenth respondent, in terms of section 18(3) of the Administration of Estates Act 66 of 1965, to take control of the assets in the deceased estate of M C Daniels, to pay the debts, and to transfer the residue of the estate to his heirs. The second respondent is cited in these proceedings in her official capacity as the section 18(3) respresentative of the estate of the late M C Daniels.
The eighth respondent is the Minister of Justice, who is cited in these proceedings in his official capacity as the member of the National Executive responsible for the administration of the Intestate Succession Act and the Maintenance of Surviving Spouses Act. The ninth respondent, also cited in his official capacity, is the Registrar of Deeds.
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The applicant now seeks an order in the following terms:
Declaring that the Applicant was, for the purposes of the Intestate Succession Act, 81 of 1987, the spouse of Mogamat Amien Daniels at the time of his death and is an heir in the Estate of the Late Mogamat Amien Daniels.
In the alternative to paragraph 1 above
Declaring that the omission in Section 1(4) of the Intestate Succession Act, 81 of 1987, of the following definition is unconstitutional and invalid:
"'spouse'" shall include a husband or wife married in terms of Muslim rites in a de facto monogamous union".
Declaring that Section 1(4) of the Intestate Succession Act, 81 of 1987, shall be read as though it included the following paragraph after paragraph (f):
"(g) 'spouse' shall include a husband or wife married in terms of Muslim rites in a de facto monogamous union".
Declaring that the orders in paragraphs 2.1 and 2.2 above shall have no effect on the validity of any acts performed in
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respect of the administration of an Intestate Estate that had been finally wound up by the date of this order.
Declaring that the Applicant is, for purposes of the Maintenance of Surviving Spouses Act, 27 of 1990, the survivor of Mogamat Amien Daniels and is entitled to lodge a claim for maintenance in the Estate of the Late Mogamat Amien Daniels and to have such claim determined by the First Respondent.
In the alternative to paragraph 3 above
Declaring that the omission from the definition of "survivor" in Section 1 of the Maintenance of Surviving Spouses Act, 27 of 1990 of the words "and includes the surviving husband or wife of a de facto monogamous union solemnized in accordance with Muslim rites" at the end of the existing definition is unconstitutional and invalid.
Declaring that the definition of "survivor" in Section 1 of the Maintenance of Surviving Spouses Act, 27 of 1990, is to be read as if it included the following words after the words "dissolved by death":
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"and includes the surviving husband or wife of a de facto monogamous union solemnized in accordance with Muslim rites".
The first and second respondents are the only respondents opposing this application.
Factual background
As indicated above, the applicant presently resides at the property and has done so for a very long time. She married one Mogamat Amien Wilson ('Wilson') on 2 February 1969 and, on 7 July 1969, the said Wilson submitted a written application to the City of Cape Town to rent a council dwelling. On 15 October 1976, the City of Cape Town allocated a council dwelling (the abovementioned property) to the applicant. By that time, the applicant and Wilson had been divorced from each other, the City of Cape Town had been apprised of this fact, and the property was according allocated to the applicant in her own name. The applicant and her children took occupation of the property during October 1976 and she has occupied the property continuously since that time.
When she married the deceased by Muslim rites on 2 March 1977, the applicant informed the City of Cape Town of this marriage and furnished it with a copy of her marriage certificate. In accordance with its then applicable housing policy, the City of Cape Town subsequently transferred the tenancy of the property to
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the deceased, who was the principal breadwinner of the family at that time. The transfer of tenancy was effected on 17 July 1978.
It would appear that, under the so-called 'National Sales Campaign', tenants of council houses were later given the opportunity to purchase such houses and, on 24 September 1990, a written instalment sale agreement was entered into between the City of Cape Town (as seller) and the deceased (as purchaser), in terms whereof the deceased purchased the property from the City of Cape Town for a purchase price of R3 915.00, less a 10% discount. The applicant also signed the Deed of Sale, ostensibly thereby consenting to the deceased purchasing the property. The Deed of Sale, however, incorrectly reflects that the applicant was married to the deceased in community of property.
Although it is not possible, on the papers before this Court, to ascertain any details in this regard, it would appear that the applicant was employed for lengthy periods during her marriage to the deceased and that she contributed substantially towards the household expenses, including the rental and later the purchase price of the property and the service charges levied in respect of the property. The deceased died on 27 November 1994 without leaving a will and, on 29 July 1998, the property was transferred to the 'Estate of the late MOGAMAT AMIEN DANIELS'. The outstanding balance owing on the purchase price of the property was written off in terms of 'the State discount' when such transfer was registered in the Deeds Registry.
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Some years prior to the death of the deceased, the late M C Daniels and the third respondent had erected a shack on the property. After the death of the deceased, the applicant's continued occupancy of the property was threatened by the late M C Daniels and the third, fifth, sixth and seventh respondents. This threat to the applicant's continued occupancy of the property and her belief that she was entitled to the property, led to the applicant instituting proceedings in this Court in July 1998 under Case No. 9787/98 ('the 1998 application'), wherein she sought an order, inter alia declaring that she was 'entitled to all right, title and interest in and to' the property. In the 1998 application, the late M C Daniels was cited in his personal capacity as the first respondent and the Master of High Court (the present tenth respondent) was cited as the second respondent. While the Master indicated that he would abide by the decision of the Court, the 1998 application was opposed by the late M C Daniels. On 10 May 1998, the said application was dismissed with costs by Steyn AJ. A full copy of the papers in the 1998 application, as also a copy of the judgment and order of court, are attached to the founding affidavit deposed to by the applicant in the present application.
Subsequent to the dismissal of the 1998 application, the tenth respondent indicated in writing that, as the applicant was married to the deceased in terms of Muslim rites only, she is not a surviving spouse for the purposes of the Intestate Succession Act and therefore 'does not stand to inherit' from the intestate estate
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of the deceased. The tenth respondent...
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