Monyepao v Ledwaba and Others

The late Mr Tlou Coliphta Phago died intestate on 22 December 2012. Two women claimed to have been married to him under customary law at the time of his death: Ms Ledwaba (first respondent) and Ms Monyepao (appellant). Both were appointed as co-executors of his estate. Ms Ledwaba married Mr Phago in a customary marriage in June or July 2007. Ms Monyepao alleged this marriage ended in February 2008, which Ms Ledwaba denied. Between 17 July 2010 and 28 August 2010, Ms Monyepao and Mr Phago entered into a customary marriage while Mr Phago's customary marriage to Ms Ledwaba was still subsisting. On 26 November 2009, Ms Ledwaba married Mr Andrew Kwele in a civil marriage, while still customarily married to Mr Phago. Ms Monyepao brought an application seeking: (a) a declaration that Ms Ledwaba's customary marriage to Mr Phago was dissolved in February 2008; (b) alternatively, that Ms Ledwaba forfeit her patrimonial benefits; (c) that immovable property be awarded to Ms Ledwaba's minor child; (d) that the Master revoke Ms Ledwaba's appointment as co-executor; and (e) that Ms Monyepao be appointed sole executor. The court of first instance granted the alternative relief ordering forfeiture of Ms Ledwaba's benefits. The full court set aside this order and dismissed the application.

• Whether a customary marriage between two parties was dissolved in February 2008 without a formal decree of divorce
• Whether a subsequent civil marriage by a party to an existing customary marriage invalidates or dissolves the earlier customary marriage
• Whether a court has jurisdiction to order forfeiture of patrimonial benefits of marriage outside of divorce proceedings
• Whether a party to a marriage who is not seeking divorce has standing to claim forfeiture of benefits on behalf of another party
• Whether the Master can be ordered to remove an executor and appoint another without proper grounds

1. The appellant was granted condonation for late filing of the record and the appeal was re-instated. 2. The first respondent's application for condonation for late filing of a notice of cross-appeal was dismissed. 3.1 Provisional order that no fee or disbursement may be levied by attorneys in respect of any part of the record except pages 1-125, the court of first instance judgment (8 pages) and the full court judgment (14 pages). 3.2 Parties granted leave to make representations within 10 days as to why the provisional costs order should not be final. 4. The appeal was dismissed with costs. 5. The first respondent's costs of the appeal and the appellant's costs of the condonation applications shall be paid from the deceased estate of the late Tlou Coliphta Phago.

The binding legal principles established are: (1) A customary marriage may only be dissolved by a court decree of divorce on the ground of irretrievable breakdown of the marriage in terms of section 8(1) of the Recognition of Customary Marriages Act 120 of 1998. A customary marriage cannot be terminated by informal separation or abandonment. (2) A civil marriage entered into by a party while that party is already married under customary law is a nullity and has no effect on the validity of the prior customary marriage (following Netshituka v Netshituka 2011 (5) SA 453 (SCA)). (3) The power to order forfeiture of patrimonial benefits of marriage under section 9(1) of the Divorce Act 70 of 1979, as incorporated by section 8(4) of the Recognition of Customary Marriages Act, arises only as an adjunct to a decree of divorce and can only be claimed by one party to a marriage against the other in divorce proceedings. A third party has no standing to seek such relief, and a court has no jurisdiction to order forfeiture in proceedings that are not divorce proceedings.

Plasket JA made critical observations about the conduct of the litigation and the legal representatives: (1) The court criticized the compilation of an appeal record consisting of 544 pages of which only 147 were relevant, noting that attorneys have a duty to familiarize themselves with the rules of court and that ignorance is not an acceptable excuse. The court made a provisional order that attorneys would not be entitled to charge for the irrelevant portions of the record. (2) The court questioned why Ms Bierman (the appellant's attorney) and Mr Maponya (the respondent's attorney) were cited as parties when no relief was sought against them and they had no discernible legal interest in the matter. (3) The court noted that the founding affidavit failed to make out a case for several heads of relief sought, observing that claims for awarding property to a minor and for removal of executors were unsupported by evidence and incompetent. (4) The court commented that an intestate estate must be liquidated and distributed in accordance with the rules of intestate succession through the proper executor processes.

This case clarifies important principles in South African customary marriage law: (1) It confirms that customary marriages can only be dissolved by court decree of divorce under the Recognition of Customary Marriages Act, not by informal abandonment or separation. (2) It reaffirms the principle from Netshituka that a civil marriage entered into while a person is already married under customary law is a nullity and does not dissolve or invalidate the earlier customary marriage. (3) It establishes that forfeiture of patrimonial benefits under section 9 of the Divorce Act is relief that can only be granted ancillary to divorce proceedings, and cannot be sought by third parties or in standalone applications. (4) The case also serves as a reminder about proper compilation of appeal records and the attorneys' duty to familiarize themselves with court rules. The judgment protects the rights of parties to customary marriages and ensures that such marriages receive the same legal protection and procedural requirements as civil marriages.