Court name
High Court of eSwatini

Phathaphata v Sibandze and Others () [2000] SZHC 90 (20 October 2000);

Law report citations
Media neutral citation
[2000] SZHC 90
Coram
Sapire, CJ









1


SWAZILAND
HIGH COURT


Ndzabandzaba
John Phathaphatha


Applicant


vs


Sibandze
Phephisiie S. & 2 Others


Respondents


Civil
Trial no. 7805/2000


JUDGMENT


(20/10/2000)


Coram
Sapire, CJ


For
Applicant Mr. Ntiwane


For
Defendant Mr. Hlophe


The
applicant, coming to court as a matter of urgency, has sought an
order


"declaring
the applicant to be the husband of the late Sibongile Juliet
Vilakati; or alternatively, an order that the administration of the
estate of the late Sibongile Juliet Vilakati be stayed pending an
action to be instituted within 14 days of the date of the order or
such declarity order."


The
applicant sets out in his affidavit that he is the businessman of
Manzini and that the 1st respondent is an adult married woman. She is
alleged to be the executrix dative in the estate of the late
Sibongile Juliet Vilakati. The Master of the Supreme Court is joined
in the application as is the Attorney General. These are formal
joinders which have no baring on the relief claimed.


2


The
applicant claims that in 1994 he fell in love with the deceased who
died on the 5th December, 1999. He says that in May 1996 he married
the deceased according to Swazi Law and Custom and describes the
process by which he says this marriage was celebrated. Suffice it to
say that the 1st respondent disputes that the marriage took place.
The subsistence of the marriage was questioned in this court when the
deceased died. It was the deceased's family were given privilege of
burying her rather than the applicant it being held that there was no
proper evidence of the marriage having taken place.


The
applicant now relies on photographs which, were not available at the
earlier hearing but which he says prove that a marriage took place.
These photographs in themselves are insufficient to be conclusive on
this account. It is clear that there is a dispute of fact, of which
the applicant was aware. He should not have proceeded by

way
of application.


After
the deceased had died the estate was reported to the master by the
deceased's relatives who the applicant claims are unknown to him.


The
applicant claims a right to be involved in the administration of the
estate and to be an heir of the deceased. He requests that the court
declare that he was married to the deceased and entitled to all the
rights that flow out of his marriage to her.


The
1st respondent opposes the granting of any order as claimed by the
applicant. Several points are raised in limine.


The
first point is that there is a dispute of fact which should have
precluded the commencement of the proceedings by way of application.
The respondent refers to the previous application and on the basis
thereof submits that the validity of the applicant's marriage has
already been decided. As the previous application was not a final
decision on this particular issue it cannot be said that this matter
was res judicata. It is clear that there was a dispute as to the
marriage and this can only be decided on evidence hence the
alternative claim made by the applicant.


3


I
am however not disposed to grant the alternative claim for a stay of
the liquidation and distribution of the estate. Having regard to the
method and procedures for the administration of the estate and having
regard to the necessity for the filing of the liquidation and
distribution account it is not an urgent matter that a different
executor be appointed. The first respondent as executrix has to
administer the estate in terms of the provisions of the provisions of
the administration of estates act. None of the assets of the estate
can be disposed off until such time as the account has been produced
and lain for inspect.


The
applicant has ample time to object to the account and to raise the
issues which he now seeks to do on paper. He may also as he says
institute an action for declaration that he was the husband of the
deceased but as yet no such action has been instituted. If at a later
stage once the action has been instituted the applicant may apply for
such relief as he may show is necessary to protect his rights.


The
application is dismissed with costs.


S.W.
SAPIRE,

CJ