Govender v Ragavayah NO and Others

• Jurisdiction: South Africa
• Judge: Moosa AJ
• Judgment Date: 06 November 2008
• Citation: 2009 (3) SA 178 (D)
• Docket Number: 6715/08
• Hearing Date: 29 October 2008
• Counsel: DD Naidoo for the applicant. S Naidu for the first, second and third respondents. No appearance for the fourth, fifth or sixth respondents. K Pillay (with M Ioannou) for the amicus.
• Court: Durban and Coast Local Division

Moosa AJ: A

Order sought by applicant

[1] (a)

The applicant seeks in terms of her notice of motion a declarator as follows, and other relief: B

The word spouse as used in the Intestate Succession Act 81 of 1987, includes a surviving partner to a monogamous Hindu marriage.

(b)

Alternatively, together with other consequential relief, an order declaring that a universal partnership existed between the applicant and the deceased. C

(c)

At the court hearing the applicant did not persist in seeking an order for the alternative relief.

Heads of argument

[2] There were useful heads of argument filed by the applicant's counsel, D Mr Naidoo, in support of the relief sought by the applicant. There were also very comprehensive and helpful heads of argument (56 pages) filed by two counsel who sought to be admitted as amicus curiae (duly representing the Women's Legal Centre Trust) and in essence they supported the main relief sought by the applicant. E

[3] Advocate S Naidu appeared on behalf of the first, second and third respondents (hereinafter referred to as the 'opposing respondents') who opposed the relief sought.

[4] There was a notice by the fourth respondent (the Master of the High F Court) that he would abide the decision of the court and that it was not his intention to oppose the relief sought by the applicant. There was no notice, affidavit or heads of argument filed by the fifth respondent, namely the registrar of deeds. The sixth respondent filed a notice to abide the decision of the court.

Preliminary observations G

[5] At the outset it needs to be noted that a similar issue was decided upon by Patel J in Singh v Rampersad and Others 2007 (3) SA 445 (D), in which an order was sought that a monogamous marriage in terms of Hindu rites should be recognised as a 'marriage' in South African law in H the light of the rights afforded to persons in the Constitution and that there should be such recognition despite the fact that such marriage is not recognised and acknowledged to be a marriage in terms of South African law.

[6] Patel J came to the conclusion that such marriage could not be so I recognised for the reasons set out in his well-reasoned judgment.

[7] However, in the present application before court the applicant seeks somewhat different relief in that she seeks a declaration that for the purposes of the Intestate Succession Act 81 of 1987, a widow married by Hindu rites should be regarded as a 'spouse'. J

Moosa AJ

A [8] It was submitted by the amicus curiae that the application primarily concerns the interpretation and constitutionality of certain provisions of the Intestate Succession Act (hereinafter referred to as the Act).

[9] It is common cause that on 1 January 2007 Balasundran Narainsamy (the husband of the applicant) died intestate (he will hereinafter be B referred to as 'the deceased').

[10] The opposing respondents were the first respondent, who is the executor of the deceased's estate as well as the deceased's father; the second respondent who is the deceased's father, and the third respondent C who is the deceased's mother.

[11] The effect of the opposition by the opposing respondents is that if they are successful, the second and third respondents will stand to inherit the deceased's estate in its entirety in equal shares to the exclusion of the applicant; on the other hand, if the applicant is successful in the relief D that she seeks, she will inherit the deceased's entire estate.

[12] It is common cause that the applicant and the deceased were married to each other on 22 August 2004 according to the rites and customs of the Hindu religion. The opposing respondents themselves admit, inter alia, that a Hindu marriage ceremony was conducted in E public; that the first respondent who is the father of the deceased had, in terms of Hindu rites and customs, represented the deceased in obtaining the applicant's parents' consent to marry, and further performed all functions required of him in terms of Hindu rites and customs at the marriage ceremony; that the applicant and deceased had a monogamous F marriage in accordance with the rites, customs and traditions of the Hindu religion; that the applicant and deceased respected the vows that they took at the Hindu marriage ceremony to be faithful and committed to each other in a monogamous union they considered binding; and that the said marriage was not registered in terms of the Marriage Act 25 of 1961.

G [13] There were no children born of the marriage.

[14] The deceased died on 1 January 2007, under three years after the marriage in terms of Hindu rites. The first respondent was appointed an executor in the deceased's estate.

H [15] There appears to be a dispute on the papers in that it is alleged by the opposing respondents that the deceased's estate may be insolvent, a fact which is denied by the applicant. However, in my view, this is not an issue which affects the relief sought by the applicant in her application.

I [16] The applicant disputes the correctness of the liquidation and distribution account prepared by the first respondent.

[17] The applicant placed reliance on the case of Daniels v Campbell NO and Others 2004 (5) SA 331 (CC) (2004 (7) BCLR 735) and alleges that the facts of that case fall squarely within the circumstances in which J she finds herself.

Moosa AJ

[18] The opposing respondents disagree and rely on the judgment in A Singh v Rampersad 2007 (3) SA 445 (D).

Points of opposition

[19] There appear to be five points of opposition:

(a)

That the Daniels case is totally different and should not have any B persuasive value, particularly as the deceased's relationship with the applicant was of short duration;

(b)

that as the marriage was not registered the Marriage Act ought not to apply;

(c)

that the applicant was at all material times a housewife and had no C business acumen and did not contribute constructively to the deceased's estate (the applicant has alleged that she assisted the deceased in the operation of his business by attending to the administration and bookkeeping work in respect thereof and that she contributed to the acquisition of assets in the deceased's estate, and she had supported and cared for him during the existence of D their union);

(d)

that because the applicant had broken all ties with the deceased's family she deserved nothing;

(e)

that the...