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REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

DURBAN AND COAST LOCAL DIVISION CASE NO. 17413/2005

In the matter between:

MOLLY PATRICIA ZULU Applicant

and

THANDIWE PHYLIS ZULU First Respondent

THANDIWE PHYLIS ZULU N.O. Second Respondent

MASTER OF THE HIGH COURT Third Respondent

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JUDGMENT

delivered on 25 February 2008

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HUGO J

This is an application for an order awarding the applicant a one-half share of the estate of Thulani Cyril Zulu (the deceased) who died on 5 July 2004.

The applicant’s claim is based on the allegation that she was married to the deceased in community of property. There are two minor children born of their marriage. The applicant submits that subsequent to the death of the deceased she learnt that he was previously married to the first respondent. The first respondent does not dispute that the applicant was married to the deceased but submits that the applicant’s marriage is null and void by virtue of her prior marriage to the deceased. Both the applicant and first respondent produced copies of their marriage certificate in support of their claim of marriage to the deceased.

In our law a civil marriage is a monogamous marriage. Both “marriages” in issue here are civil marriages, so that one need not delve in the complexities surrounding customary marriages. The second marriage is therefore bigamous and void.

From the evidence before the Court the first respondent entered into a civil marriage with the deceased on 19 November 1974. The said marriage was in community of property. First respondent submits that her marriage is valid and remained in existence until the death of the deceased. From the marriage certificate produced by the applicant it would seem that the applicant also entered into a civil marriage with the deceased on 16 October 1985. The applicant does not dispute the deceased’s prior marriage to the first respondent or the validity thereof. Therefore in the absence of any evidence that the deceased’s prior marriage was terminated, the marriage between the deceased and the first respondent was a lawful marriage. The marriage which the deceased entered into with the applicant was bigamous. By the time of the hearing of this matter the applicant accepted that the civil marriage entered into between herself and the deceased was unlawful.

In the circumstances the applicant claimed that the marriage between herself and the deceased was a putative marriage and that she is entitled to a one-half share of the deceased’s estate. Her claim is based on her allegation that she had entered into the marriage in good faith and that the marriage was in community of property. She claims further that the intention of the deceased and herself was to create a universal partnership.

Where one or both parties in good faith are ignorant of the fact that their marriage is in fact invalid, but they believe it to be valid, then the marriage is at most a supposed or putative marriage. But in law the term “putative marriage” is not merely one which a supposed marriage partner believes to be valid, but one which the law itself characterises as such and then attaches to it certain legal consequences. Schafer, Family Law Service, page 50.

According to the applicant, during the subsistence of her marriage, she heard rumours of the deceased being married. When she had confronted him with the rumours he denied them and she accepted that fact. She was however aware that the deceased had children from other woman. She denies the first respondent’s allegation that she was aware of his prior marriage and submits that this fact was discovered after the demise of the deceased. From the evidence before the Court I am satisfied that the applicant was unaware of the deceased’s prior marriage at the time of her marriage and by in entering into her marriage with the deceased she acted in good faith. The question is then whether the applicant’s marriage to the deceased was therefore a putative marriage, which carried with it proprietary consequences.

Where one or both parties to a marriage were bona fide at the time of entering into the “marriage” and they had not excluded the community of property by an ante-nuptial contract, the party acting in good faith may nevertheless claim that there was a community of property and therefore he/she is entitled to an appropriate share as if the marriage is dissolved. See Ex parte L (also known as A) 1947 (3) SA 50 (C), Mograbi v Mograbi 1921 AD 275. Neither of these two cases, nor any other that was argued before me, or that I could find, deals with the position where there is an existing valid community of property.

According to the applicant during the subsistence of her marriage to the deceased, the latter purchased a property which was transferred into their names. There is no evidence of this fact, save that there appears that the deceased had a right, title and an interest in and to the property, on which the applicant resides, by virtue of a Deed of Grant. The applicant submits that she made payments towards the matrimonial home and paid for renovations and improvements to the property.

Where a person is married in community of property, all assets, save for those expressly excluded therefrom, form part of a joint estate and each spouse enjoys an equal undivided share of such joint estate. During the subsistence of the marriage the spouses thereto cannot by agreement divide the estate in such a way that their assets become separate property of the individual spouses and nor can one of the parties transfer his undivided half share of the estate. Lawsa, Vol 16, 2^nd edition, page 75.

The joint estate between the deceased and the first respondent was not terminated prior to the applicant’s marriage. In the circumstances all the assets of the deceased formed part of the joint estate between himself and the first respondent. The deceased was entitled to an undivided half share of that joint estate. In the absence of any property excluded from the joint estate the deceased could not have created a new community of property regime with the applicant.

The applicant also alleges that she and the deceased intended to form a universal partnership.

With regard to the partnership, the essential elements of a partnership are:

(a) that each of the partners brings something into the partnership, or binds himself/herself to bring something into it, whether it be money, or labour or skill;

(b) that the business should be carried on for the joint benefit of both parties;

(c) that the object should be to make profit; and

(d) that the contract between the parties should be a legitimate contract.

See Lawsa Vol 19 2^nd Ed, page 197

In order for the agreement of partnership to be valid all four requirements must be met. As the deceased was previously married in community of property, the contract between himself and the applicant was not lawful and the deceased must have been aware of same. Therefore not only would the contract of partnership have lacked an essential element, namely that it must be lawful, the deceased could never have intended to create a community of property or a universal partnership with the applicant. There is also no proven object to make a profit. In the circumstances no universal partnership and no community estate existed between the applicant and the deceased.

In our law where a spouse is induced to enter into a void marriage when unbeknown to such spouse the marriage is void, such a spouse has a right to claim damages resulting from such inducement. See Snyman v Snyman 1984 (4) 262 (W). In the circumstances the only claim which the applicant could have against the estate of the deceased is a claim for damages.

I note that certain beneficiaries of the deceased’s estate are minors. Such minors were entitled to be represented in these proceedings by a curator ad litem or guardian. Neither party to this proceeding had arranged for such representation on behalf of the minors. However as the minors’ interests in and to the estate of the deceased remain unaffected by this decision, nothing more need be said about that..

The application is accordingly dismissed with costs.

Date of hearing: 12 February 2008

Date of judgment: 25 February 2008

Counsel for Applicant: Mr A M Kwitshana

Instructed by: Khoza Ngcobo Drummond & Xulu (KNDX) Inc.

Third Floor, 21 Aliwal Street

DURBAN

Counsel for 1^st and 2^nd Resp.: Ms J F Nicholson

Instructed by: W E White

c/o Sarah Pugsley & Associates

504A Windermere Road

DURBAN

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