Musefuwa and Others NNO v Mathivha and Others

• Jurisdiction: South Africa
• Judge: Le Roux CJ
• Judgment Date: 29 November 1988
• Citation: 1990 (3) SA 446 (V)
• Hearing Date: 29 November 1988
• Court: Venda Supreme Court

Le Roux CJ:

This matter has been brought before me in the form of a review proceeding against an inquiry held by a magistrate in terms of reg 3(2) of the regulations framed under s 23(10) of the Black Administration Act 38 of 1927, and promulgated under Government Notice J before 7

Le Roux CJ

A January 1966, to determine the persons entitled to the property of the deceased and in terms of the regulations. This inquiry was held at Thohoyandou initially on 3 March 1987 and was only completed on 25 August 1987.

The matter initially came before me as a review and, after studying B the procedure relating to inquiries under deceaseds' estates, I came to the conclusion that this matter was not reviewable as of course, that an appeal would possibly lie to this Court in terms of the regulations but that the proper course in view of the proceedings and the deficiencies in the proceedings would be to bring the matter on common law review, giving notice to the magistrate and to the other parties concerned.

C The Director-General for Justice and Minister for Justice were not necessary parties, in my view. The problem which arose must shortly be set out. The deceased was a wealthy man, his estate was eventually valued for purposes of distribution at R143 180. At the initial trial it was said that his estate was worth R71 709 but subsequently further assets were discovered which added to the value of the estate.

D The magistrate presumably acted in terms of reg 2(d) of the regulations relating to the devolution of estates of deceased Blacks where no will has been found. This regulation has to be quoted and it reads as follows:

'When any deceased Bantu is survived by any partner -

(i)

...

(ii)

with E whom he had entered into a customary union; or

(iii)

who was at the time of his death living with him as his putative spouse;

or by any issue of himself and any such partner, and the circumstances are such as in the opinion of the Minister to render the application of Bantu law and custom to the devolution of the whole, or some part, of his property inequitable or inappropriate, the Minister may direct that F the said property or the said part thereof, as the case may be, shall devolve as if the said Bantu and the said partner had been lawfully married out of community of property, whether or not such was in fact the case, and as if the said Bantu had been a European.'

The further provision in subpara (e) of reg...