IN
THE HIGH COURT OF SWAZILAND
Civ.
Case No. 2446/95
In
the matter between:
ESTHER
NKAMBULE Applicant
and
SIBONGILE
MASINGA Respondent
CORAM: S.W.
Sapire A.J.
FOR
APPLICANT Miss Gwiji
FOR
RESPONDENT Mr. B. Simelane
Judgment
(23/11/95)
This
is an application brought as a matter of urgency where a rule nisi
was granted on 25/10/95 calling upon the respondent to show cause on
the 3/11/95 why (a) the respondent should not be ordered to transfer
possession of a Mazda LDV bearing registration number SD 946 XM to
the applicant. (b) The respondent should not pay the costs of the
application. It was further ordered that pending the outcome of from
any manner whatsoever alienating or disposing of the motor vehicle.
Directions
for service of the order were provided for and the order was serving
in terms thereon. This is the extended return day of such order.
In
support of her application, the applicant alleged that she was an
adult widower of Mahwalala Zone 5, Mbabane. Clearly she meant a
widow. The respondent was alleged to be an adult major spinster. The
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applicant
claims that she was married to Albert Msuthu Nkambule by civil rites
on the 9th April, 1976 at Mbabane and has produced a marriage
certificate from which it would appear that the marriage was entered
into without an antenuptual contract. The marriage accordingly was in
community of property.
The
applicant's husband died on the 3rd September 1995 after a short
illness.
The
applicant alleges that during his lifetime, the deceased had an
extramarital affair with the respondent who is personally known to
the applicant.
It
seems that during March 1994, the deceased purchased a motor vehicle
namely a Mazda 1DV registration number SD 946 XM from City Motors in
Mbabane. The purchase price was E14,000.00 and the deceased paid for
it on the 30th March 1994. According to the allegations in the
founding affidavit, the motor venlcia in question had earlier been
sold to one Alex Matsebula of Manzini from whom it was repossessed by
City Motors who then sold it to the deceased.
The
deceased had never caused registration of ownership of the car to be
changed into his name and it is still registered in the name of
Matsebula. The applicant alleges the respondent is presently in
possession of the motor vehicle and despite demand by the applicant,
the respondent has refused to return the vehicle to the applicant.
The applicant claims to require the vehicle to be released for the
purposes of the administration of her late husband's estate.
The
applicant has also filed supporting affidavits which generally are
intended to corroborate her allegations that the motor vehicle in
question is the property of the deceased.
The
respondent has filed an affidavit in which notice is given that
certain matters would be raised in limine. The first of these is that
the applicant has no locus standi to make the application as she has
not even alleged that she is the executor in the estate. The
respondent also deals with the merits and suffice it to say that she
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claims
ownership of the vehicle in question. On the merits there is clearly
a conflict of fact which could not be resolved without recourse to
the hearing of oral evidence. This however will not be necessary as I
have come to the conclusion that the point in limine raised by the
respondent disposes of the application.
The
founding affidavit does not disclose whether an executor has been
appointed to administer the Estate of the deceased or not nor is any
mention named of any curator having been appointed as contemplated in
the act to preserve the assets of the estate pending the appointment
of an executor. It is only the executor or such curator who would
have locus standi to recover property of the deceased.
I
was referred to Section 19 of the Estates Act 28 of 1902 by counsel
for the applicant as giving the applicant authority and to bestow
upon her locus standi to make the present application. The section to
which I was referred provides under the heading "Possession by
survivor of estate in community of property" and reads:
"When
one of two spouses who have been married in community of property
dies; the joint estate shall remain under the charge of the survivor,
until the executor of the deceased, or the tutor testamentary or
dative of the minor children of the marriage, or the Master or
curator bonis, lawfully appointed to such minor children, takes
proceedings for the administration, distribution and final settlement
of the said joint estate:"
The
founding affidavit does not say whether an executor or other officer
has been appointed as contemplated in paragraph 19, nor for that
matter does it state that such an officer has not been appointed. No
basis for the applicapability of the section is therefore laid.
Moreover
the motor vehicle in question has never been in possession of the
applicant. It is difficult therefore to see how that part of the
joint estate could remain under her charge. The section does not give
the applicant the power as a non owner or even has the surviving
partner in a marriage in community of property the right to institute
an action to recover property the ownership of which is disputed.
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In
the circumstances the rule nisi will be discharged and the
application is dismissed with costs.
S.W.
SAPIRE
ACTING
JUDGE
Footwear 