The Factual Matrix: Disputed Customary Marriage and Control Over the Deceased’s Estate
In Peteke v Khumalo and Others (2025-009348) [2025] ZAGPPHC 447 (6 May 2025), the applicant approached the High Court of South Africa, Gauteng Division, Pretoria on an urgent basis in terms of Rule 6(12) of the Uniform Rules of Court, seeking to interdict the further administration of his late wife’s deceased estate pending the outcome of proceedings concerning the validity of their customary marriage. At the heart of the matter lies the applicant’s claim to patrimonial rights in the estate of the deceased, premised on an alleged valid customary marriage concluded more than a decade earlier.
The applicant submitted that the deceased, whom he referred to as his customary law wife, had passed away leaving behind a contested will, and that the respondents—her children and family members—had taken possession of her estate, including a Mercedes Benz sedan, without proper authority in terms of the Administration of Estates Act 66 of 1965, particularly section 13, which prescribes that no person shall liquidate or distribute a deceased estate unless duly authorised through letters of executorship.
To substantiate the existence of the customary marriage, the applicant relied on lobola negotiations and partial payment of the agreed bride price, supported by a signed lobola letter. He also annexed documentation such as a life insurance policy from ABSA Bank naming him as “Spouse”, arguing that he and the deceased had lived together as husband and wife for eleven years. The respondents, however, contested the existence of a valid marriage and the applicant’s entitlement to the estate, asserting that the deceased’s testamentary wishes should prevail.
Despite the absence of a court declaration confirming the marriage’s validity at the time of hearing, the applicant insisted that the estate should be frozen to avoid irreversible harm to his proprietary interests. His argument was that, pending the determination of the separate application to declare the customary marriage valid, the respondents’ continued control over the estate was not only premature but also unlawful and prejudicial.
The court was thus tasked with balancing the preliminary nature of the applicant’s claim against the necessity of preventing potential dissipation of assets in circumstances where legal standing, capacity, and patrimonial rights were under active dispute.
Legal Thresholds for Interim Relief: Prima Facie Rights, Harm, and Judicial Discretion
In determining whether the applicant was entitled to the interim interdict he sought, the Court applied the well-established requisites for interim relief, namely the existence of a prima facie right, the threat of irreparable harm, the balance of convenience, and the absence of a suitable alternative remedy. These requirements, as restated in the judgment, remain central to any urgent relief brought under Rule 6(12) of the Uniform Rules of Court.
The pivotal question concerned whether the applicant had demonstrated a prima facie right, particularly in light of the unresolved dispute over the validity of his customary marriage. In this regard, the Court gave cautious weight to the evidence presented—such as the lobola letter, the duration of cohabitation, and official documents referencing the applicant as a spouse—holding that a prima facie right existed, even if subject to doubt. This interpretation echoed the principle articulated in Webster v Mitchell 1948 (1) SA 1186 (W), as qualified in Gool v Minister of Justice 1955 (2) SA 682 (C), which recognises that a right capable of being established prima facie may be sufficient for interim relief even if open to challenge.
With regard to irreparable harm, the Court found that the risk of dissipating estate assets prior to a proper determination of marital status constituted a serious threat to the applicant’s proprietary interests. The administration of the estate in the absence of letters of executorship, as mandated by section 13 of the Administration of Estates Act 66 of 1965, further exacerbated this risk.
The Court then considered the balance of convenience. On the applicant’s version, there was a significant risk of injustice if the estate continued to be administered without legal oversight. On the other hand, the respondents would suffer comparatively minimal prejudice if the administration were temporarily suspended. The Court accepted that where prospects of success in the main proceedings are strong, the need to tip the balance in favour of the applicant becomes less crucial, a principle acknowledged in Olympic Passenger Services (Pty) Ltd v Ramlagan 1957 (2) SA 382 (D).
Finally, the applicant had no alternative remedy, as allowing the estate to be administered and potentially depleted before judicial clarification on the marital relationship would render any future relief hollow. On the totality of these considerations, the Court exercised its discretion in favour of granting the interim relief.
Judicial Relief and Costs: Preserving the Estate Pending Marital Status Determination
Having satisfied the legal criteria for interim relief, the Court granted an order to halt the administration of the deceased estate pendente lite, pending the resolution of the separate application for the recognition and registration of the alleged customary marriage. The respondents were interdicted from further dealing with the estate and were specifically ordered to return certain assets, including a vehicle unlawfully appropriated in the absence of letters of executorship.
The judgment underscores the Court’s commitment to protecting the integrity of deceased estates in circumstances where legitimacy of entitlement is disputed and legal procedures have not been followed. It reaffirmed that no individual may assume control over an estate without formal appointment, and doing so may warrant judicial censure.
In awarding costs on an attorney and client scale against the first and second respondents, the Court signalled its disapproval of their conduct in pre-empting the legal process and undermining the rights of a putative spouse whose claim—though not yet adjudicated—was not frivolous. The punitive costs order served as a cautionary measure against extrajudicial administration of estates and reinforced the obligation to act within the bounds of statutory and procedural requirements.
The relief granted reflects a cautious but firm approach: while the final determination on the customary marriage remains pending, the estate must be preserved in its current state to prevent injustice. The ruling thus strikes a balance between procedural fairness and the protection of potential patrimonial rights, all within the framework of urgency and interim judicial intervention.
Questions and Answers
What was the legal basis for bringing the application on an urgent basis?
The application was brought under Rule 6(12) of the Uniform Rules of Court, which allows for matters to be heard on an urgent basis where a party will not be afforded substantial redress in due course if the normal rules are followed.
What interim relief did the applicant seek from the Court?
The applicant sought to preserve the status quo by halting the administration of the deceased estate until the finalisation of a separate application to confirm the validity of a customary marriage between himself and the deceased.
Why was the validity of the customary marriage a central issue in the case?
The applicant’s patrimonial rights in the deceased estate depended on whether a valid customary marriage existed, which would have created a joint estate and limited the extent to which the deceased could bequeath assets.
What did the Court consider in assessing whether a prima facie right existed?
The Court considered the lobola agreement, partial payment of lobola, long-term cohabitation, and documentary evidence indicating that the applicant was regarded as a spouse.
How did the Court treat the question of irreparable harm?
The Court accepted that allowing the estate to be administered without legal authority could result in the dissipation of assets and permanent prejudice to the applicant’s proprietary claims.
Did the applicant have an alternative remedy available?
No, the Court found that there was no satisfactory alternative remedy available to the applicant other than seeking judicial intervention to preserve the estate.
What role did the balance of convenience play in the Court’s decision?
The Court held that the applicant stood to suffer significantly greater prejudice if the interim relief was refused, whereas the respondents would experience minimal prejudice if it was granted.
What is the significance of section 13 of the Administration of Estates Act in this matter?
It prohibits any person from administering a deceased estate without being formally appointed by the Master of the High Court, and this provision was central to the applicant’s complaint about the respondents’ conduct.
Did the Court determine the validity of the customary marriage?
No, the Court made it clear that it was not deciding on the validity of the marriage; that issue was pending before another court and would be determined in separate proceedings.
What authority did the Court rely on in defining a prima facie right?
The Court applied the principle from Webster v Mitchell 1948 (1) SA 1186 (W), as qualified in Gool v Minister of Justice 1955 (2) SA 682 (C), that a right may be accepted as prima facie established even if some doubt exists.
Was the applicant successful in his application?
Yes, the Court granted the interim interdict and ordered that the estate administration be suspended pending resolution of the marital status and the appointment of an executor.
Did the Court award costs in the matter?
Yes, costs were awarded against the first and second respondents on an attorney and client scale, a punitive measure reflecting the Court’s disapproval of their actions.
What asset was specifically mentioned as needing to be returned to the estate?
A Mercedes Benz sedan unlawfully taken possession of by the respondents was ordered to be returned within ten days of the order.
How long had the applicant and the deceased allegedly lived together?
According to the applicant, they cohabited as husband and wife for a period of eleven years following lobola negotiations and payment.
What was the Court’s overall approach to the application?
The Court adopted a pragmatic and cautious approach, granting interim relief without deciding the merits of the marriage claim, but ensuring that the estate was protected in the interim to avoid potential injustice.
Written by Bertus Preller, a Family Law and Divorce Law attorney and Mediator at Maurice Phillips Wisenberg in Cape Town and founder of DivorceOnline and iANC. A blog, managed by SplashLaw, for more information on Family Law read more here.
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