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Customary law wife interdicts late husband's children from selling house

Deceased's older kids did not recognise the couple's marriage

Tina Hokwana Legal Practitioner
File photo.
File photo.
Image: EVGENYI LASTOCHKIN/123RF

A widow, who married her husband in customary law, has successfully convinced the court to interdict the children of the deceased from selling her marital home. 

The North Gauteng High Court in Pretoria recently ruled that the applicant, Makhosi Mthembu, should be treated as an heir by the respondents, the husband's children, and that she was entitle to her late husband's estate. The children had been refusing to accept Mthembu as their father's wife, claiming that their lobola negotiation were never completed and that there was not marriage certificate.  

Mthembu found out about a pending auction of the house on February 14 this year after the auctioneer her. She had been living in the house with a minor child she had with the deceased. Two children of the deceased from a previous relationship, the respondents, had intended to sell the property and other assets and share the proceeds among themselves. 

Through her attorneys, a letter of demand was sent to the executors (respondents) threatening an interdict to stop the auction should it proceed. According to court documents, there was no response. She then made enquiries on February 19 at the Master’s office about the status of the administration of her late husband’s estate but was informed that the file was missing. 

The executors submitted that the application was not urgent, however, their stance was that the property needs to be sold very soon. They further persistently denied that the applicant was married to their late father despite the applicant producing a marriage certificate from home affairs as evidence of the marriage and a document evidencing the lobola negotiations. 

The document was dated October 26 and stated that lobola was paid in part on October 26 2019 and that a further R40,000 was still outstanding. The letter further stated that negotiations would continue July 25 2020. Home affairs issued the marriage certificate on March 23 2023, which is after the deceased’s death on June 3 2021.

Judge Susannah Jane Cowen said in terms of section 4(2) of the Recognition of Customary Marriages Act, either spouse can register the customary marriage at home affairs. She further said section 4(4)(a) of the Act states that a registering officer must, if satisfied that the spouses concluded a valid customary marriage, register the marriage by recording the identity of the spouses, the date of the marriage, any lobola agreed to and any other particulars prescribed.

The marriage certificate was therefore prima facie proof of the marriage under the Recognition of Customary Marriages Act.

Notwithstanding the production of the marriage certificate, the court heard that the executors had no intention of recognising the applicant as a surviving spouse of their late father. They argued that the lobola letter does not prove the marriage was negotiated and entered in accordance with customary law, as the negotiations were incomplete. They contended that Mthembu was the deceased’s fiancé and produced the funeral pamphlet which recorded her status in that way. 

In conclusion, they accepted that if it is found that Mthembu is a surviving spouse, then they will administer the estate accordingly. However, until that happens, they have no intention of administering the estate recognising any rights she may have as an heir or otherwise.    

In deciding the matter, judge Cowen accepted that the executors did and do intend to sell the property. She was therefore of the view that the applicant was entitled to some relief.

Firstly, an order that restrains the executors from disposing of any asset of the deceased estate without the permission of the Master and complying with all relevant provisions of the Administration of Estates Act. This was necessary because in the face of the marriage certificate Mthembu must be treated as an heir unless and until the marriage is disproven via proper process, said the judge.

The applicant claimed half of the joint estate and a child’s share for the minor child she had with the deceased. Furthermore, she did not consent to the sale of the immovable property.

Secondly, the judge said that Mthembu was entitled to an order directing the respondents to formally reply to her claim that she is the surviving spouse of the deceased and, if rejected, to furnish reasons.

The executors (respondents) were ordered to pay the costs of the application.

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