Rasakanya v Mbuyane and another
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Mashile J |
| Judgment Date | 08 August 2023 |
| Citation | 2023 JDR 3173 (MN) |
| Hearing Date | 08 August 2023 |
| Docket Number | 2702/2021 |
| Court | Mpumalanga Division, Mbombela |
Mashile J:
INTRODUCTION
On 7 December 2021, this Court per Mashile J refused to grant an order declaring the First Respondent to have been legally married to Freddy Ngwako Motume (“the deceased”) by customary law. The Court directed the First Respondent to present affidavits of emissaries from both families who were present at the time when ‘lobola’ negotiations took place. On 21 December 2021 and ostensibly following compliance with the order of this Court dated 7 December 2021, Roelofse AJ granted an order declaring the customary marriage to be legal and directed the Department of Home Affairs to register it.
This application is aimed at rescinding the order of Roelofse AJ dated 21 December 2021 and it is brought in terms of Rule 42(1) alternatively, Rule 31(2)(b) of the Uniform Rules of Court (“Rules”) and/or the common law. Following directly from the prayer for the rescission of the order as described above, the Applicant seeks an order for deregistration of the purported marriage between the First Respondent and the deceased and cancellation of the marriage certificate by the Department of Home Affairs pending the outcome of the referral of this matter for oral evidence. During the hearing of this matter, I was advised that the Applicant was no longer persisting with its relief that the customary marriage existing between the First Respondent and the deceased be declared legally invalid.
FACTUAL MATRIX
2023 JDR 3173 p3
Mashile J
The factual background is succinctly captured in the heads of argument of the Applicant. To avoid reinventing the wheel and since it is not contested in large part, I will proceed to borrow extensively therefrom. On 5 may 2020 when the deceased died, he was survived by six of his sisters among which is the Applicant. In terms of Clause 3 of his will executed on 2 February 2017, he nominated his sisters and children as beneficiaries of his late estate.
Subsequent to his burial, in June 2020 the Applicant visited the office of the Master of the High Court in Mahikeng (“the Master”) to enquire whether one of her family members had, in line with a resolution adopted by the family, opened an estate late file. She was staggered when informed that the First Respondent had, after identifying herself as the wife of the deceased, opened a late estate file. The Applicant was further advised that the Master refused to issue letters of executorship to the First Respondent in the absence of a marriage certificate. During July 2020, a meeting was held in the presence of the First Respondent at the office of Jague Venter Attorneys for the reading of the deceased’s last will and testament.
In February 2021, the Applicant was informed by her siblings during a conference call that the First Respondent sought a Court order declaring her to be the lawful wife of the deceased, which order was subsequently granted. The Applicant then approached master of the High Court at Mafikeng and received confirmation that the office of the Master had issued letters of executorship to the First Respondent. The Applicant subsequently, through her attorneys of record, obtained all the papers filed in support of the First Respondents’ application seeking to be declared the lawful wife of the deceased.
It is common cause that in her application mentioned above, the First Respondent neither joined the Applicant nor any of the beneficiaries of the estate late of the deceased. This is notwithstanding her knowledge that when she launched her application on 22 September 2020, she was mindful of the existence of the last will and testament of the deceased because she was at the reading of the will in July 2020. Moreover, the First
2023 JDR 3173 p4
Mashile J
Respondent was aware of the identity of the deceased’s six sisters as well as their respective places of residence before the order was granted on 21 December 2020.
The Applicant alleges that the First Respondent’s full knowledge of the existence of the last will and testament of the deceased aside, she failed to alert the Court in her founding affidavit of the existence of beneficiaries of the estate late of the deceased. In fact, at Paragraph 7.9 of her founding affidavit to which she deposed on 11 September 2020, she expressly and unambiguously advises the Court to the contrary - the deceased died without leaving a valid will and testament known to her. As such, she concluded, that it was for that reason that until then no executor or executrix had been appointed to administer his estate.
ASSERTIONS
The Applicant contended that the Court order of 21 December 2020 was erroneously granted insofar as the Court would not have granted it had it been appraised of all the facts surrounding the matter. Such information, argued the Applicant, pertains to the First Respondent stating under oath that the deceased died intestate when in fact she knew that the opposite was true. The Court would have insisted in the joinder of the beneficiaries because they had a substantial and direct interest in who would be appointed as executor or executrix. The failure to join the beneficiaries would have rendered the application fatal.
To the extent that the First Respondent deliberately misled the Court by informing it that the deceased died without leaving a valid will and therefore intestate, the order of the 21st of December 2021 was fraudulently obtained. The First Respondent intentionally furnished the Court with incorrect information. The information benefitted her as she obtained an order declaring the customary marriage between the deceased and her valid. The Court acted thereupon to the detriment of the Applicants and her siblings who are beneficiaries under the will. The order stands to be rescinded as such.
2023 JDR 3173 p5
Mashile J
The First Respondent denies that she was under any obligation to join the beneficiaries as they lack direct and substantial interest in the matter. Their Interest extend to no more than being family of the deceased and the fact that they were also beneficiaries...
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