Cape Town - A Khayelitsha woman has lost her bid in the Western Cape High Court to reverse the sale of her house, which she says her late husband sold without her knowledge about a decade ago.
When he signed the sale agreement, the late Jikeleza James Menziwa said he was unmarried as he mistakenly believed that his customary marriage was not legally recognised as a valid marriage.
His widow, Noeliot Nosiwaphi Menziwa had approached the courts seeking an order that the subsequent registration of transfer of ownership of the property to Nonkululeko Priscilla Ndokwana, be declared null and void.
Judge James Lekhuleni found: “My conclusion is that the first respondent (the buyer) did not know that the second respondent (the deceased) was married when the impugned sale agreement was concluded and could not reasonably have known this. The applicant’s application is hereby dismissed.”
The applicant and her husband were allegedly married by customary union in 1980.
On July 10, 2010, unbeknown to her, her husband concluded an agreement of sale of his property for R84 000.
At that time, Noeliot was in the Eastern Cape.
Her case before the high court relied on section 15(2)(a) and (b) of the Matrimonial Property Act 88 of 1984, which provides that a spouse married in community of property shall not, without the written consent of the other spouse, alienate any right in any immovable property without the written consent of the other.
According to her version in the court documents, Noeliot said following legal mediation an agreement was reached with the buyer of the house that she would refund the purchase price of the property and the house would be transferred to her name.
However Ndokwana (the buyer) instituted eviction proceedings against her.
Ndokwana alluded to the fact that she was informed that the husband passed away towards the end of 2021.
After the passing, Noeliot instituted the legal proceedings, which Ndokwana criticised, as it had been over a decade since the sale.
Before his passing, the now-deceased husband filed a confirmatory affidavit that he was indeed married to Noeliot by customary law rites.
In his confirmatory affidavit, he had stated that he was not married to her when he concluded the sale agreement, as he mistakenly believed that his customary marriage was not legally recognised as a valid marriage.
He said he was was unaware that customary marriages enjoyed the same recognition as civil marriages.
“Crucially, the alleged customary marriage between the parties was not registered.
“Even if the first respondent had inquired with (the) Home Affairs department about the marital status of the second respondent, Home Affairs would have informed her that the second respondent was not married.
The second respondent’s confirmatory affidavit that he was unmarried corroborates the version of the first respondent,” Judge Lekhuleni found.
Cape Times