Monyepao v Ledwaba and Others

The deceased, Mr Tlou Coliphta Phago, died intestate in December 2012. Two women, Ms Matsatsi Dinah Tiny Monyepao (the appellant) and Ms Mokgaetji Maria Ledwaba (the first respondent), each claimed to have been married to him under customary law at the time of his death and were appointed as co‑executors of his estate. It was common cause that Mr Phago and Ms Ledwaba concluded a customary marriage in mid‑2007, which was never dissolved by a court. During the subsistence of that marriage, Mr Phago purportedly entered into another customary marriage with Ms Monyepao in 2010. Ms Ledwaba also entered into a civil marriage with a third party, Mr Andrew Kwele, in 2009. Ms Monyepao applied to the High Court for declaratory and ancillary relief, including an order that Ms Ledwaba’s customary marriage had been dissolved, alternatively that Ms Ledwaba forfeit the benefits of the marriage, and that Ms Ledwaba be removed as executor. The High Court of first instance ordered forfeiture of benefits. On appeal, a full court set that order aside and dismissed the application, leading to the present appeal before the Supreme Court of Appeal.

The appeal was dismissed with costs. The order of the full court dismissing the appellant’s application was upheld, and costs were ordered to be paid from the deceased estate. Ancillary orders were made regarding condonation and the preparation of an excessive appeal record.

The case reaffirms important principles in South African customary marriage law: that customary marriages can be dissolved only by a court decree; that a civil marriage entered into during the subsistence of a customary marriage is a nullity; and that forfeiture of patrimonial benefits is available only in divorce proceedings and not at the behest of third parties. It clarifies the limits of relief available in estate disputes involving customary marriages.