Litigation: Customary marriage confusion costs widow family home

Noeliot Menziwa 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 12 years ago. When he signed the sale agreement, the late Jikeleza Menziwa said he was unmarried as he mistakenly believed that his customary marriage was not legally recognized as a valid marriage. A Cape Times report says his widow, Noeliot, approached the courts seeking an order that the subsequent registration of transfer of ownership of the property 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.’

Noeliot’s case before the High Court relied on section 15(2)(a) and (b) of the Matrimonial Property Act, 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. According to her version, 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, the buyer instituted eviction proceedings against her. ‘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,’ Lekhuleni found.