In a case of husband versus mother-in-law, the Gauteng South High Court in Johannesburg has dismissed a man’s application to be appointed executor after he stole R40,000 from his late wife’s bank account. The court found he was not a fit and proper person.
Tseko Gogfrey Sikhosana had approached the court seeking to be declared husband and to be appointed executor of his late wife’s estate.
The court ruled in Sikhosana’s favour that there was a valid customary marriage entered into between him and his late banker wife, Nomfundo Lucia Kabini, who died suddenly in July 2021 due to Covid-19 complications, just four months after their union. The couple had met on Facebook around 2020.
The court ordered the Department of Home Affairs to register the union under the Recognition of Customary Marriages Act.
Kabini's mother, Mary-Jane, had disputed that a valid customary marriage took place in March 2021 when the Sikhosana family paid R30,000 in lobolo for Kabini.
She had argued that under Ndebele customs, the two had not been married, but had only entered into lobolo negotiations with a view to marrying. The families agreed on eight cows, or R82,000. A balance of R52,000 was still to be paid.
Acting Judge Dawid Marais ruled that the requirements for a customary union were met when he heard how the Sikhosanas dressed Kabini, who is Ndebele, in their cultural shweshwe dress, exchanged rings, and celebrated the union on the same day.
Kabini’s father had also handed her over to Sikhosana on the same day, and it was accepted by all parties that it was a "joyful occasion".
Marais also heard how Kabini was buried in shweshwe dress in recognition of her status as a wife, but it also heard how it was the Kabinis who buried her, as Sikhosana did not have the financial means to bury her.
The court also heard how R40,000 was stolen by Sikhosana from the bank account of his deceased wife. He did not deny the claim, nor did he offer a rebuttal during court proceedings.
Marais also heard an application from Sikhosana seeking to remove Mary-Jane as the executor of his wife's estate.
This was ultimately dismissed by the court, as Sikhosana made no arguments to support this part of his application.
"No case was made out for the order sought. Sikhosana is seeking Mary-Jane’s removal as executor with a view on himself being appointed as executor.
"It must be emphasised that on the papers before the court, Sikhosana is not a fit and proper person to be appointed as an executor.
"Mary-Jane led evidence that the Sikhosana stole the sum of R40,000 from the deceased’s account after her death," said Marais in his judgment.
The court also said Sikhosana failed to lead evidence in court about Ndebele customs in his bid to declare the lobolo negotiations as a customary union.
Despite finding in Sikhosana’s favour in his bid to be declared husband, Marais was scathing, saying Sikhosana was untruthful and unhelpful to his own cause.
Marais also failed to explain why there was an unexplained lease agreement between Sikhosana and the deceased, but accepted the pair had been living together as husband and wife after their March 2021 union.
"It is really through chance that he will be successful with his main relief (to be declared customary husband).
"One may even go further to state that he will be successful despite certain untruthful statements.
"He was entirely unhelpful during arguments. It can be fairly stated that Sikhosana will be successful in obtaining the main relief sought, despite the lack of effort on his part.
"There was evidence that he stole money belonging to the deceased’s estate, which he failed to refute," said Marais.
Marais ordered Home Affairs to register a customary marriage union between Sikhosana and Kabini, but it dismissed Sikhosana’s bid to be declared executor, finding he was not fit and proper.
The court ordered Sikhosana to pay 25% of Mary-Jane’s legal costs.