Ex parte Madikiza et Uxor

• Jurisdiction: South Africa
• Judge: Miller AJ
• Judgment Date: 08 December 1994
• Docket Number: 921/94
• Hearing Date: 08 December 1994
• Court: Transkei Supreme Court

D Miller AJ:

The applicants, who are husband and wife, were married to each other at Umtata on 9 July 1987. Their marriage certificate reflects that they were married in community of property and of profit and loss. This Court, on 26 May 1994, issued a rule nisi calling upon interested parties, if any, to show cause why:

(a)

E the marriage certificate of the parties should not be rectified by the insertion therein of the words 'out of community of property' and the deletion of the words 'in community of property and profit and loss' that presently appear in such marriage certificate;

(b)

the marriage of the parties should not be declared to be a marriage having the consequences of a marriage out of community of F property;

(c)

the rights of the existing creditors of the parties should not remain unaffected.

It was also ordered that the rule nisi be served upon the Registrar of G Deeds and the Minister of Interior and be published once in the Daily Dispatch newspaper and in the Government Gazette.

The rule nisi was duly served and published as ordered and, in response to the publication in the newspaper, opposing affidavits were filed by one Rashida Joosub Carrim and on behalf of T-Tyres and Retreaders (Pty) Ltd, H both claiming to be creditors of the applicants and accordingly interested parties in the application of the applicants.

In her founding affidavit, which was deposed to on 20 May 1994, the applicant states:

'I humbly submit that it was an error that our marriage certificate had been endorsed as a marriage in community of property as we duly advised I the officers that we desire our marriage to be out of community of property.

I have had an opportunity to purchase a house and with this in mind I approached a financial institution and on production of the marriage certificate I was informed that I was married in community of property and cannot have the property registered in my name and to raise a mortgage bond accordingly.

It has been our intention at all times that our marriage should have the J consequences of a marriage out of community of property.

Miller AJ

A It is not our intention to prejudice our creditors by this application and we shall cause notice of this application to be published in the Government Gazette and Daily Dispatch.'

The second applicant confirmed the contents of first applicant's founding affidavit in a verifying affidavit.

B The opposing creditors state that they, during July 1993, entered into written agreements with the second applicant in terms of which second applicant bound himself as surety and co-principal debtor for the obligations of a company called Border Tyres (Pty) Ltd to T-Tyres and Retreaders (Pty) Ltd and, in respect of Rashida Carrim, the second applicant recorded his indebtedness to...