The High Court in Johannesburg ruled that a woman who married her late sister’s husband, could not be the sole executor of the late husband’s estate, as she was not his only wife.
Mpine Phasha was married to Fredis Phasha who was also her sister’s husband.
Fredis first got married to Mathebela Phasha in 1976 and they had four children during their marriage.
In 1980, Mathebela became ill and could no longer take care of her children and fulfil her role as a wife. Using their Sepedi customs, her family requested her sister Mpine to step into her role.
Mpine got married to Fredis and also had four children.
Fredis died on February 21, 2021, and elders in the Phasha family determined that Mokgwale Phasha should be appointed as the executor of the estate.
Mokgwale is Mathebela and Fredis’ son.
On June 28, 2021, Mathebela also died.
In November 2021, Mokgwale discovered that his aunt, Mpine, had already approached the Master of the High Court in Johannesburg and was appointed as the executor of the estate.
Among other things, the estate includes a number of private cars and livestock to the value of R99,000.
This prompted Mokgwale to launch an application to ensure that the executor was appointed in accordance with the family elders’ wishes.
Having weighed both arguments, Judge Shanaaz Christine Mia said Mpine did not only marginalise her sister, but she completely discounted her in the estate as though she did not exist.
Judge Mia said there was no basis to discriminate between the two spouses.
She further mentioned that there was no reason for Mpine to hold a more superior position than Mokgwale’s mother in the marriage.
“Given the circumstances, the spouses' portion could not be allocated to one spouse alone ...This would be contrary to the Constitution and the purpose of the Act,” she said.
Judge Mia ordered the Master of the High Court to consider Mokgwale as the co-executor of the estate.
Mpine was interdicted from alienating in anyway or encumbering the immovable properties, pending the finalisation of the application.
She was also ordered to furnish Mokgwale with all bank accounts opened in the name of the estate, any amount paid into such bank accounts and any claim launched against the estate.
Judge Mia ordered Mpine to pay the costs of the application.