Widow gets marital property back from late husband's son

Widow gets marital property back from late husband's son.
Widow gets marital property back from late husband's son.
Image: 123RF/stockstudio44

A KwaZulu-Natal widow has succeeded in getting her marital home placed in her name after challenging her late husband’s will.

Thokozani Maphumulo brought an application in the Durban High Court‚ challenging the validity of her late husband’s will‚ which had bequeathed the property to his son‚ Simiso. The court declared the will invalid and set it aside.

“The court further declared that the subsequent transfer of the property to Simiso was unlawful and ordered the Registrar of Deeds to transfer the property into Ms Maphumulo’s name‚” the Legal Resources Centre (LRC) said in a statement.

Maphumulo had been married to Musawenkosi Maphumulo in a customary marriage. The couple lived together in KwaMashu since 1992.

“She acquired this property with her husband during the subsistence of their marriage. Ms Maphumulo’s husband died on 28 October 2013. He executed a will wherein he bequeathed his entire estate to his son from his first marriage‚ Simiso Maphumulo‚” the LRC‚ which represented Thokozani‚ said.

The property‚ according to the LRC‚ was subsequently transferred to Simiso in December 2015. After the transfer‚ Simiso attempted to evict the widow from the property.

Last year‚ the LRC represented Thokozani Maphumulo in the Constitutional Court‚ where she sought confirmation of a Limpopo High Court order which had declared that Section 7(1) of the Recognition of Customary Marriages Act (RCMA) was invalid and unconstitutional.

The section denies any marital property rights to women who entered into customary marriages before the promulgation of the act. The Constitutional Court confirmed the order of the High Court‚ which found that the provision discriminated unjustifiably against women in polygamous customary marriages.

The apex court found that “wives and husbands will have joint and equal ownership and other rights to‚ and joint and equal rights of management and control over‚ marital property”.

“The Constitutional Court made it clear that only members of that house are entitled to enjoy benefits that flow from the existence of the property‚ including rights of inheritance to the property‚” the LRC said.

Thokozani was required to bring a separate application to challenge the transfer and ownership of the property‚ which she did in the Durban High Court.

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