(CAPE OF GOOD HOPE PROVINCIAL DIVISION) CASE NO. 1646/01 In the matter between: JULEIGA DANIELSApplicant and ROBIN GRIEVE CAMPBELL N.O. First Respondent MELISSA FOURIE N.O. Second Respondent SORAYA DANIELS Third Respondent ADELAH JAKOET Fourth Respondent SHAHIEDA MANUELFifth Respondent MOGAMAT SHARIEF MANUEL Sixth Respondent SARAH DANIELS Seventh Respondent MINISTER OF JUSTICE Eighth Respondent REGISTRAR OF DEEDS Ninth Respondent MASTER OF THE HIGH COURTTenth Respondent ________________________________________________________________ JUDGMENT DELIVERED : 24 JUNE 2003
________________________________________________________________ VAN HEERDEN J: Introduction In terms of the Intestate Succession Act 81 of 1987, the surviving ‘spouse’ of a deceased person has the right to inherit from the intestate deceased estate, in accordance with certain rules governing the order of intestate succession set out in some detail in section 1 of the Act. The Maintenance of Surviving Spouses Act 27 of 1990, in turn, provides that when a ‘marriage’ is dissolved by death after the commencement of the Act (on 1 July 1990), the ‘survivor’ (ie the surviving ‘spouse’ has a claim for maintenance against the estate of the deceased ‘spouse’ in certain circumstances. Neither Act contains a definition of the word ‘spouse’ – in essence, the meaning to be given to the word ‘spouse’ in each of these Acts is what lies at the heart of this case. On 27 November 1994, Mogamat Amien Daniels (‘the deceased’) died intestate. The main asset in his deceased estate is a house situate at 2A Athon Walk, Lucerne Place, Hanover Park, Western Cape (‘the property’). The applicant and the deceased were married in accordance with Muslim rites on 2 March 1977. The marriage, which was at all times monogamous, was not solemnized by a marriage officer appointed in terms of the Marriage Act 25 of 1961. No children were born of this marriage. Throughout his marriage to the applicant (and indeed until his death), the deceased lived with the applicant in the property, and the applicant still lives there. The property was transferred to the estate of the deceased on 29 July 1998 under Title Deed No. T 70953/98. On 25 January 2001, the first respondent was appointed by the Master of the High Court (the tenth respondent) as the executor of the estate of the deceased and, in these proceedings, the first respondent is cited in his official capacity as such. The deceased was survived by four children, namely two daughters, Shahieda Manuel and Sarah Daniels (the fifth and seventh respondents, respectively), and two sons, Mogamat Sharief Manuel (the sixth respondent) and Mogamat Cassiem Daniels (‘M C Daniels’). M C Daniels died intestate on 12 June 1999, leaving four children, who are all still minors. Soraya Daniels (the third respondent) is the mother and natural guardian of two of these children, while Adelah Jakoet (the fourth respondent) is the mother and natural guardian of the other two minor children. On 15 December 2000, the second respondent was appointed by the tenth respondent, in terms of section 18(3) of the Administration of Estates Act 66 of 1965, to take control of the assets in the deceased estate of M C Daniels, to pay the debts, and to transfer the residue of the estate to his heirs. The second respondent is cited in these proceedings in her official capacity as the section 18(3) respresentative of the estate of the late M C Daniels. The eighth respondent is the Minister of Justice, who is cited in these proceedings in his official capacity as the member of the National Executive responsible for the administration of the Intestate Succession Act and the Maintenance of Surviving Spouses Act. The ninth respondent, also cited in his official capacity, is the Registrar of Deeds. The applicant now seeks an order in the following terms:
‘1. Declaring that the Applicant was, for the purposes of the Intestate Succession Act, 81 of 1987, the spouse of Mogamat Amien Daniels at the time of his death and is an heir in the Estate of the Late Mogamat Amien Daniels.
In the alternative to paragraph 1 above
Declaring that the omission in Section 1(4) of the Intestate Succession Act, 81 of 1987, of the following definition is unconstitutional and invalid:
“’spouse’” shall include a husband or wife married in terms of Muslim rites in a de facto monogamous union”.
Declaring that Section 1(4) of the Intestate Succession Act, 81 of 1987, shall be read as though it included the following paragraph after paragraph (f):
“(g) ‘spouse’ shall include a husband or wife married in terms of Muslim rites in a de facto monogamous union”.
Declaring that the orders in paragraphs 2.1 and 2.2 above shall have no effect on the validity of any acts performed in respect of the administration of an Intestate Estate that had been finally wound up by the date of this order.
Declaring that the Applicant is, for purposes of the Maintenance of Surviving Spouses Act, 27 of 1990, the survivor of Mogamat Amien Daniels and is entitled to lodge a claim for maintenance in the Estate of the Late Mogamat Amien Daniels and to have such claim determined by the First Respondent.
In the alternative to paragraph 3 above
Declaring that the omission from the definition of “survivor” in Section 1 of the Maintenance of Surviving Spouses Act, 27 of 1990 of the words “and includes the surviving husband or wife of a de facto monogamous union solemnized in accordance with Muslim rites” at the end of the existing definition is unconstitutional and invalid.
4.2 Declaring that the definition of “survivor” in Section 1 of the Maintenance of Surviving Spouses Act, 27 of 1990, is to be read as if it included the following words after the words “dissolved by death”: “and includes the surviving husband or wife of a de facto monogamous union solemnized in accordance with Muslim rites”. The first and second respondents are the only respondents opposing this application. Factual background
As indicated above, the applicant presently resides at the property and has done so for a very long time. She married one Mogamat Amien Wilson (‘Wilson’) on
2 February 1969 and, on 7 July 1969, the said Wilson submitted a written application to the City of Cape Town to rent a council dwelling. On 15 October 1976, the City of Cape Town allocated a council dwelling (the abovementioned property) to the applicant. By that time, the applicant and Wilson had been divorced from each other, the City of Cape Town had been apprised of this fact, and the property was according allocated to the applicant in her own name. The applicant and her children took occupation of the property during October 1976 and she has occupied the property continuously since that time. When she married the deceased by Muslim rites on 2 March 1977, the applicant informed the City of Cape Town of this marriage and furnished it with a copy of her marriage certificate. In accordance with its then applicable housing policy, the City of Cape Town subsequently transferred the tenancy of the property to the deceased, who was the principal breadwinner of the family at that time. The transfer of tenancy was effected on 17 July 1978. It would appear that, under the so-called ‘National Sales Campaign’, tenants of council houses were later given the opportunity to purchase such houses and, on 24 September 1990, a written instalment sale agreement was entered into between the City of Cape Town (as seller) and the deceased (as purchaser), in terms whereof the deceased purchased the property from the City of Cape Town for a purchase price of R3 915.00, less a 10% discount. The applicant also signed the Deed of Sale, ostensibly thereby consenting to the deceased purchasing the property. The Deed of Sale, however, incorrectly reflects that the applicant was married to the deceased in community of property. Although it is not possible, on the papers before this Court, to ascertain any details in this regard, it would appear that the applicant was employed for lengthy periods during her marriage to the deceased and that she contributed substantially towards the household expenses, including the rental and later the purchase price of the property and the service charges levied in respect of the property. The deceased died on 27 November 1994 without leaving a will and, on 29 July 1998, the property was transferred to the ‘Estate of the late MOGAMAT AMIEN DANIELS’. The outstanding balance owing on the purchase price of the property was written off in terms of ‘the State discount’ when such transfer was registered in the Deeds Registry. Some years prior to the death of the deceased, the late M C Daniels and the third respondent had erected a shack on the property. After the death of the deceased, the applicant’s continued occupancy of the property was threatened by the late M C Daniels and the third, fifth, sixth and seventh respondents. This threat to the applicant’s continued occupancy of the property and her belief that she was entitled to the property, led to the applicant instituting proceedings in this Court in July 1998 under Case No. 9787/98 (‘the 1998 application’), wherein she sought an order, inter alia declaring that she was ‘entitled to all right, title and interest in and to’ the property. In the 1998 application, the late M C Daniels was cited in his personal capacity as the first respondent and the Master of High Court (the present tenth respondent) was cited as the second respondent. While the Master indicated that he would abide by the decision of the Court, the 1998 application was opposed by the late M C Daniels. On 10 May 1998, the said application was dismissed with costs by Steyn AJ. A full copy of the papers in the 1998 application, as also a copy of the judgment and order of court, are attached to the founding affidavit deposed to by the applicant in the present application. Subsequent to the dismissal of the 1998 application, the tenth respondent indicated in writing that, as the applicant was married to the deceased in terms of Muslim rites only, she is not a surviving spouse for the purposes of the Intestate Succession Act and therefore ‘does not stand to inherit’ from the intestate estate of the deceased. The tenth respondent stated further that, ‘in terms of the Intestate Succession Act the estate devolves upon the descendants of the deceased per stirpes’. Furthermore, a claim for maintenance against the estate of the deceased, lodged with the first respondent on the applicant’s behalf by her attorneys of record, was rejected by the first respondent on the grounds that – ‘In terms of the present legal system, your client, who was married to the deceased in terms of Muslim rites, is not a surviving spouse as contemplated in the Maintenance of Surviving Spouses Act 27 of 1990 and thus is not entitled to maintenance. In terms of this Act “the survivor” means the surviving spouse in a marriage dissolved by death. Currently, marriages in accordance with Muslim rites are not considered valid legal marriages.’ Having regard to the answering affidavit filed on behalf of the first and second respondents in these proceedings, and to the arguments advanced by Mr Breitenbach and Ms Bawa, who appeared for the respondents before me, the issues which arise for determination may be summarised as follows:
Is the question whether the applicant can, on constitutional grounds, inherit from the deceased in terms of the Intestate Succession Act res judicata or, alternatively, is the applicant estopped from raising this issue again?
Can the word ‘spouse’, as utilised in the Intestate Succession Act and in the Maintenance of Surviving Spouses Act, be interpreted to include a person in the position of the applicant, i.e., a husband or wife married in terms of Muslim rites in a de facto monogamous union?
If, on a proper construction of these Acts, a husband or wife married in accordance with Muslim rites in a de facto monogamous union cannot be regarded as a ‘spouse’ for the purposes of the Intestate Succession Act and the Maintenance of Surviving Spouses Act, is the failure to provide for such persons in such Acts unconstitutional and invalid and, if so, can such invalidity be ‘cured’ by ‘reading in’ the provisions proposed by the applicant?
Res judicata and issue estoppel
Counsel for the respondents argued that, on a proper application of the rule of res judicata or, alternatively, of the ‘doctrine of issue estoppel’, the question whether the applicant can, ‘on constitutional grounds’, inherit from the deceased in terms of the Intestate Succession Act cannot be raised in the present proceedings. According to counsel, in the 1998 application, the applicant unsuccessfully sought ‘essentially the same relief’ on a number of grounds, one of which was ‘essentially the same as that now advanced’. In accordance with the rule of res judicata, ‘where a final judgment has been given in a matter by a competent court, then subsequent litigation between the same parties, or their privies, in regard to the same subject-matter and based upon the same cause of action is not permissible and, if attempted by one of them, can be met by the exceptio rei judicatae vel litis finitae. The object of this principle is to prevent the repetition of law suits, the harassment of a defendant by a multiplicity of actions and the possibility of conflicting decisions’ (per Corbett JA (as he then was) in Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 835F-G). The requirements for the common law defence of res judicata and the (English-inspired) doctrine of issue estoppel were discussed by Thring J in the recent case of Holtzhausen & Another v Gore NO & Others 2002 (2) SA 141 (C) at 148E-150G. The court set out the requirements for the defence of res judicata, as stated by the Supreme Court of Appeal in National Sorghum Breweries Ltd (t/a Vivo African Breweries) v International Liquor Distributors (Pty) Ltd 2001 (2) SA 232 (SCA) at 235I, namely –
‘(i) dat die twee aksies tussen dieselfde partye aanhangig gemaak is;
(ii) dat die skuldoorsaak in beide gedinge dieselfde was, en (iii) dat dieselfde regshulp in beide aksies gevorder is.’ (See further in this regard Rabie‘Estoppel’ in LAWSA Volume 9(first reissue, 1996) paras 421-443 and the cases there cited.) The learned judge pointed that, under the influence of the English doctrine of issue estoppel, it had been held in several cases - amongst them Horowitz v Brock & Others 1988 (2) SA 160 (A), Kommissaris van Binnelandse Inkomste v ABSA Bank Bpk 1995 (1) SA 635 (A) and Bafokeng Tribe v Impala Platinum Ltd & Others 1999 (3) SA 517 (B) - that the second and third requirements mentioned above are not immutable and can be relaxed in order to ensure overall fairness. As regards the doctrine of issue estoppel, Thring J agreed with the description by Friedman JP in the Bafokeng Tribe case (supra) of the requirements of this doctrine and its application in the South African case law. The relevant passage in the Bafokeng Tribe case (at 566F-J) reads as follows:
‘The doctrine of issue estoppel has the following requirements: (a) where a court in a final judgment on a cause has determined an issue involved in the cause of action in a certain way, (b) if the same issue is again involved, and the right to reclaim depends on that issue, the determination in (a) may be advanced as an estoppel in a later action between the same parties, even if the later action is founded on a dissimilar cause of action.
Issue estoppel is a rule of res judicata but is distinguished from the Roman-Dutch Law exception in that in issue estoppel the requirement that the same subject-matter or thing must be claimed in the subsequent action is not required. Issue estoppel has a twofold requirement. Issue estoppel has been applied in our law in decisions of Provincial and Local Divisions. However, in the Kommissaris case supra the Court accepted that the expression “issue estoppel” had been in use in our law for a long time, and is a useful description of these cases which do not strictly conform to the threefold requirements of res judicata, because the same relief is not claimed on the same cause of action, but nothwithstanding that the defence may be successful. Issue estoppel is also founded on public policy to avoid a multiplicity of actions in order “inter alia to conserve the resources of the courts and litigants”. There is a tension between a multiplicity of actions and the palpable realities of injustice. It must be determined on a case by case foundation without rigidity and the overriding or paramount consideration being overall fairness and equity.’ (See also Signature Design Workshop CC v Eskom Pension and Provident Fund & Others 2002 (2) SA 488 (C) at 492H-493I, 497J-498F; Rabie op cit para 444 – 447 and the other authorities there cited.) A perusal of the papers before the court in the 1998 application makes it clear that the applicant’s present cause of action in respect of the Intestate Succession Act was not raised in any way in the affidavits filed. On the contrary, in seeking an order declaring that she was ‘entitled to all right, title and interest in and to’ the property, the applicant relied on an oral agreement between her and the deceased in terms of which ‘indien hy voor my sou sterwe, … die betrokke onroerende eiendom uitsluitlik myne sou wees,’ as well as acknowledgements by the deceased during his lifetime that ‘die onroerende eiendom nie syne is nie omdat hy my en die kinders daarin kom kry het’. It appears from the judgment of Steyn AJ that the possibility of an alternative cause of action, based on constitutional grounds, was only raised by applicant’s counsel during the hearing of the application, and that applicant’s counsel requested that the matter be postponed so that, inter alia, the notice of motion could be amended and affidavits supplemented to provide for the applicant's proposed alternative cause of action (‘beweerde beoogde alternatiewe eisoorsaak’). This application for a postponement was opposed by counsel representing M C Daniels, the then first respondent, and was ultimately refused by Steyn AJ. The relevant parts of the judgment delivered in the 1998 application read as follows:
‘Mogamat het intestaat gesterf op 27 November 1994. Volgens Intestate Erfreg erf sy boedel op sy kinders. (Sien in hierdie verband die Wet op Intestate Erfreg, Wet 81 van 1978 [sic – 1987] en wel artikel 1(1)(b).) Applikant kan nie van Mogamat erf nie, aangesien daar nie 'n wettige huwelik bestaan het, soos bepaal deur Suid-Afrikaanse Huwelikswetgewing nie. Daar was nie aanvanklik namens applikant aangevoer of in haar beëdigde verklaring beweer dat sy geregtig is om te erf van Mogamat nie, maar ek sal later weer na hierdie aspek verwys.’
Dealing with the applicant’s cause of action based on an oral agreement between her and the deceased in terms of which the applicant would, upon the deceased’s death, be the owner of the property, Steyn AJ held that any such agreement would be null and void for failure to comply with the formalities prescribed by section 2 of the Alienation of Land Act 68 of 1981, and then continued:
‘… Die applikant kan derhalwe nie steun op hierdie eisoorsaak nie. Tydens die aanhoor van die aansoek het die advokaat vir die applikant, mnr Jethro, te kenne gegee dat hy ook op grond van 'n alternatiewe eisoorsaak namens applikant