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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA,

MPUMALANGA DIVISION, MIDDELBURG

(LOCAL SEAT)

CASE NO: 2355/2018

In the matter between:

MUSA MAUREEN MBELE N.O.                                                                        APPLICANT

and

DIKILEDI SOMBANE                                                                                    RESPONDENT

JUDGMENT

BRAUCKMANN AJ

 

INTRODUCTION

[1] The application was launched by the applicant in her capacity as the Executrix of the Estate Late Goodman Ndumiso Mbele T 3565/214 (“the deceased”) seeking the following relief:

1.1 a declaratory order declaring that the deceased is the registered owner of a property known as stand […] Extension 2 Embalenhle Mpumalanga (the property);

1.2 declaring that the applicant in her personal capacity is entitled to one undivided half a share of the property;

1.3 declaring the as void ab origine and invalid and setting aside any sale by the deceased prior to 12 May 2013 of the property without the written consent of the applicant in her personal capacity.

2. Interdictory relief is sought against the respondent from:

2.1 entering the property;

2.1 collecting and receiving any rental income from any tenant(s) staying at the property at the time of granting of this order or at any future time.

3. That the respondent be ordered to pay the costs of the application only in the event of opposition.

 

FACTS

[2] The applicant and the deceased were married to each other on 7 July 1976.  As evidence of their marriage the applicant annexed a marriage certificate (in electronic form) obtained from the Department of Home Affairs.

[3] The deceased passed away on 12 May 2013 and the applicant was appointed as the Executrix in the deceased’s estate.

[4] The deceased is the owner of a property known as stand 412 Extension 2 Embalenhle Mpumalanga (“the property”).

[5] It is the applicant’s case that in terms of the marital regime of in community of property, the applicant is the owner of an undivided half share in the property, and as such the deceased could not sell the property to any third person without her written consent thereto.

[6] It is common cause that no deed of sale (in writing) as required in terms of the Alienation of Land Act[1] was ever signed by the deceased and the applicant in her personal capacity and/or the respondent’s deceased father (Mr Sombane).

[7] Annexure D to the applicant’s notice of motion is a document which reads:

’18 Dec 2005

To whom it may concern

Dear Sir,

This is to certify that Goodman Ndumiso Mbele ID […], sold […] resident to William Sunnyboy Sombane at Zone 2 Embalenhle and the change owner was not done, not I give the permission to change the ownership at your possible convenience time.

I hope and trust that my request shall be taken in deed consideration you could always contact me at this no [...] at any convenient time.

Yours faithfully

Goodman N. Mbele’.

[8] The respondent, after the deceased passed away constantly collected rental monies from the tenants of the property to the detriment of the deceased estate.

[9] The respondent has no right to collect the rental monies, as the property was never legitimately “sold” to the respondent’s father.

[10] In the respondent’s heads of argument, and opposing affidavit, the following is stated:

1. It is admitted that the property is owned by the deceased and therefore the property vests in the applicant in her capacity as executrix;

2. It is admitted that there is no deed of sale in respect of the property;

3. It is denied that the applicant was married in community of property to the deceased or that the applicant is entitled to the interdictory relief preventing her from entering the property and collecting the rentals. 

[11] The respondent’s opposition to the declarator sought in respect of the marital regime between the applicant and the deceased is of no moment, or interest to the respondent.

[12] As the respondent admitted that the applicant, in her capacity as Executrix, owns the property and that the respondent has no right to collect the rental money in respect of the property nor to enter the property. 

[13] It follows that any collection by the respondent of rental monies is unlawful.

[14] Being the owner of the property, and without any allegation by the respondent as to why she is entitled to enter the property or collect the rentals, it is abundantly clear that the applicant has made out a clear right why, she in her capacity as the Executrix, is entitled to the rental money and to an interdict preventing the respondent from collecting the said rental money or entering the premises.

[15] It goes without saying that should the respondent collect the rental money the estate will be prejudiced.  There is no other remedy that the applicant could exercise but to approach the court for the interdict.

[16] In as far as the declaratory order sought by the applicant that the applicant and the deceased was married in community of property, such order cannot be given.  No marriage certificate indicating the marital regime of the applicant and deceased could be provided.

[17] It is common cause that the applicant and the deceased were married on 10 July 1976.  Civil marriages between black persons were governed by section 22(6) of the Black Administration Act[2].

[18] In terms of the said act any marriage between black persons that took place before 1988 was automatically out of community of property unless the parties, one month before the conclusion of the marriage declared in a certificate that they wished the legal consequences of in community of property to be applicable to their marriage.

[19] No such certificate was produced by the applicant and therefore I cannot make such an order in the absence of proof.

[20] In Setlogelo vs Setlogelo[3] it was stated that the following requirements must be fulfilled before an interdict (final) can be granted

1 a clear right;

2 an injury reasonably apprehended and

3 absence of an alternative remedy.

From the founding affidavit read with the concessions made by the respondent at the hearing of the application and in her heads of argument, the applicant is entitled to an order as set out below.

 

COSTS

[21] I originally considered not granting any costs in this matter.  However the respondent was invited by the applicant not to oppose this application.  It is important to note that no deed of sale existed and therefor the sale of the property could not be proved by the respondent what so ever.  The respondent’s decision to become embroiled in the declarator about applicant’s marital status (in or out of community of property) was ill conceived, alternatively ill advised.  Whether the applicant was married in or out of community of property to the deceased is of no moment. 

[22] I will therefor order the respondent to pay the costs of the application.  

[23] I therefor make the following order:

1. That the declarator be issued with the following terms:

1.1 declaring that the late Goodman Ndumiso Mbele (“the deceased”) is the registered owner of a property known as stand […] Extension 2 Embalenhle Mpumalanga (the property).

1.2 declaring as invalid void ab origine and setting aside any sale by the deceased prior to his death 12 May 2013 of the property without the written consent of Musa Maureen Mbele.

2. The respondent is interdicted from:

2.1 entering the property;

2.1 collecting or receiving any rental income from any tenant(s) staying on the property at the time of granting of this order or at any future time.

3. The respondent is ordered to pay the costs of the application.

 

______________________________

HF BRAUCKMANN

ACTING JUDGE OF THE HIGH COURT

REPRESENTATIVE FOR THE APPLICANT:                    

INSTRUCTED BY: VAN DEN BERG & KOEKEMOER ATTORNEYS  

REPRESENTATIVE FOR THE RESPONDENT:       

INSTRUCTED BY: VAN DEVENTER & CAMPHER INC.       

DATE OF HEARING: 21 NOVEMBER 2019                  

DATE OF JUDGMENT: 28 NOVEMBER 2019        

 

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