NONTOKOZO MARILYN HADEBE N.O v GRAHAM MANDA HADEBE (1078 of 2017) [2024] SZHC 392 (10 October 2024)

# NONTOKOZO MARILYN HADEBE N.O v GRAHAM MANDA HADEBE (1078 of 2017) [2024] SZHC 392 (10 October 2024) [ __](https://api.whatsapp.com/send?text=https://eswatinilii.org/akn/sz/judgment/szhc/2024/392/eng@2024-10-10) [ __](https://twitter.com/intent/tweet?text=https://eswatinilii.org/akn/sz/judgment/szhc/2024/392/eng@2024-10-10) [ __](https://www.facebook.com/sharer/sharer.php?u=https://eswatinilii.org/akn/sz/judgment/szhc/2024/392/eng@2024-10-10) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://eswatinilii.org/akn/sz/judgment/szhc/2024/392/eng@2024-10-10) [ __](mailto:?subject=Take a look at this document from EswatiniLII: NONTOKOZO MARILYN HADEBE N.O v GRAHAM MANDA …&body=https://eswatinilii.org/akn/sz/judgment/szhc/2024/392/eng@2024-10-10) [ Download DOCX (91.6 KB) ](/akn/sz/judgment/szhc/2024/392/eng@2024-10-10/source) Toggle dropdown * [Download PDF](/akn/sz/judgment/szhc/2024/392/eng@2024-10-10/source.pdf) Report a problem __ * Share * [ Download DOCX (91.6 KB) ](/akn/sz/judgment/szhc/2024/392/eng@2024-10-10/source) * [Download PDF](/akn/sz/judgment/szhc/2024/392/eng@2024-10-10/source.pdf) * * * * * Report a problem __ ##### NONTOKOZO MARILYN HADEBE N.O v GRAHAM MANDA HADEBE (1078 of 2017) [2024] SZHC 392 (10 October 2024) Copy citation * __Document detail * __Related documents * __Citations 1 / - Citation NONTOKOZO MARILYN HADEBE N.O v GRAHAM MANDA HADEBE (1078 of 2017) [2024] SZHC 392 (10 October 2024) Copy Media Neutral Citation [2024] SZHC 392 Copy Court [High Court of eSwatini](/judgments/SZHC/) Case number 1078 of 2017 Judges [Mamba J](/judgments/all/?judges=Mamba%20J) Judgment date 10 October 2024 Language English * * * Skip to document content 7 **IN THE HIGH COURT OF ESWATINI** **JUDGMENT** **HELD AT MBABANE CASE NO. 1078/2017** In the matter between **NONTOKOZO MARILYN HADEBE N.O APPLICANT** (Trustee for the time being of the Samkelo Family Trust) And **GRAHAM MANDA HADEBE RESPONDENT** **Neutral Citation:**_NONTOKOZO MARILYN HADEBE N.O v GRAHAM MANDA HADEBE (1078/2017)[[2023] SZHC 243](/akn/sz/judgment/szhc/2023/243)/24 .( 10 OCTOBER, 2024) _ **Coram : MAMBA J.** **Delivered : 10 OCTOBER , 2024** _[1] Civil law- law of marriage- Emaswati couple married under old South African Black Administration[Act 38 of 1927](/akn/sz/act/1927/38) (as amended). Community of property excluded by law. Validity or otherwise of marriage governed or regulated by Lex Loci Celebrationis._ _[2] Civil law and procedure- proof of foreign law- to be done by expert evidence._ _[3] Civil law- couple married out of community of property and of profit and loss- may establish or form a tacit universal partnership- not as a consequence of the marriage but by their simple act of contributing towards a joint venture for their common good._ _[4] Civil law- administration of estates- joint property- surviving spouse disposing of joint property without first winding up estate of deceased co-owner. Disposal incompetent or unlawful._ _[5] Civil law- landlord and tenant- claim for compensation by lessee for fixed improvements made. Lessee not having paid for his use and occupation of property. Lessee’s claim to be set off against lessor’s claim for lessee’s use and occupation of property- enrichment._ [1] This is essentially a dispute between siblings. The subject matter of the dispute is the occupation of the farm that was registered in the name of their father. The family house is also located or situated on the said farm. The farm is referred to as Farm 1005 situate at Siteki, in the district of Lubombo, Eswatini and measures 2,2227 hectares. [2] The applicant, Nontokozo Marilyn Hadebe, is an adult female of Siteki, but currently residing in the United Kingdom. She is the trustee for the time being of a Trust known as Samkelo Family Trust, which was formed by her late father during his life time. The Trust is the registered owner of the farm referred to above as per Deed of Transfer No.391 of 2013. She has launched these proceedings in her capacity as such Trustee. [3] The Respondent is Graham Manda Hadebe, an adult Liswati male person of Siteki in the district of Lubombo. He is the eldest surviving brother of the applicant and is in occupation of a portion of the Trust property and operates a carpentry business thereat under the style Woodcraft Services. In terms of the Notarial Deed of Trust, the grand-children of the Founder are the beneficiaries. The respondent concluded a lease agreement with his father and Founder of the Trust in 1997. The lease agreement was for the Respondent to be in occupation of a portion of the Trust property for a period of 5 years and to operate his business thereat. This agreement expired in June 2002 but the Respondent did not vacate the property nor was he evicted therefrom by the founder of the Trust. It is also noted that before this lease agreement, the parties had, on 02 May 1995 entered into a written lease agreement, for a period of 30 years, commencing on the said date. This lease agreement, it would appear, was solely entered into to enable the Respondent to seek financial assistance from financial institutions for his business. The agreement was, however, not notarially registered as decreed by law and its validity is doubtful. [4] The Founder of the Trust, Robert Bennett Samkelo Hadebe got married to Esther Phambekile Tshabalala on 19 April, 1952. The marriage was solemnised in Barberton, in the Republic of South Africa. The marriage certificate specifically states that Community of property is excluded in terms of the applicable law. The applicable law of course being the law of South Africa. It is trite law that in terms of Private International Law, the law governing or regulating the validity or otherwise of the marriage is the law of the country where the marriage was celebrated (_Lex Loci_ _Celebrationis)_ , the Republic of South Africa, in this case. [5] It is hereby noted in passing that Section 22 (6) of the then Black Administration [Act 38 of 1927](/akn/sz/act/1927/38) (as amended) provided that: ‘A marriage between Blacks, contracted after the commencement of this Act, shall not produce the legal consequences of a marriage in Community of property between the spouses: provided that in the case of a marriage contracted otherwise than during the subsistence of a customary union between the husband and any woman other than the wife, it shall be competent for the intending spouses at anytime within one month previous to the celebration of such marriage to declare jointly before any magistrate, . . . that it is their intention and desire that Community of property and of profit and loss shall result from their marriage, and thereupon such community shall result from their marriage except as regards any land in a location held under quitrent tenure such land shall be excluded from such community.’ [6] Esther died intestate on 18 May, 2012 and whilst her death was reported to the office of the Master, her estate was never wound up. It would also appear that no executor was ever appointed in this case. Robert on the other hand died, also intestate on 01 November, 2016. This was after registering the Trust in 2013. [7] On 28 July 2017, the applicant instituted this application seeking the following prayers against the Respondent, namely: ‘1. Evicting and or ejecting the Respondent and all those holding title through or under him from the Trust property . . . . 2\. Demolition of any and all structures erected by the Respondent on the Trust property. 3\. Payment to the Applicant of all monies collected as rental by Respondent on the Trust property. 4\. Costs of suit on the scale as between Attorney and own client.’ This application was dismissed by this Court on 26 February 2019. This dismissal culminated in a successful appeal before the Supreme Court which ordered that the matter be remitted to this Court for oral evidence to be heard on the following specific issues: To determine: ‘(i) The validity of the transfer by Robert Bennett Samkelo Hadebe of Farm 1005 into the name of Samkelo Family Trust without having first wound up the estate of Esther Phambekile Hadebe. (ii) The validity or right of the Respondent to claim rentals from the block of flats (Block C) situated on the property. (iii) The validity and enforceability of the alleged 30 -year-long lease concluded by Robert Bennett Samkelo Hadebe . . . and the Respondent. (iv) In the light of all of the above to determine the amount of compensation to be paid to the Respondent in respect of the improvements he effected on the immovable property and who is liable to pay the compensation.’ The Supreme Court also granted leave to the Respondent to remain in occupation of Blocks C, D and the business premises. This is, pending the finalisation of this application. The parties have both led their respective evidence in support of their case and I hereby proceed to narrate and analyse this evidence with a view to determine the issues that have been set out in the order by the Supreme Court. _30 YEAR-LONG LEASE_ [8] I have already referred to the validity or otherwise of the 30 year-long lease agreement. This is a purely legal issue or question. The lease in question, it is common cause, was not executed before a notary public. Section 30 (1) of the Transfer Duty [Act 8 of 1902](/akn/sz/act/1902/8) provides as follows: ‘No lease of any land for a period of not less than 10 years or for the natural life of any person mentioned therein or which is renewable from time to time at the will of the Lessee indefinitely or for periods which together with the first period thereof amount to not less than 10 years, shall be of any force and effect . . . unless executed before a Notary Public.’ The Respondent has submitted that although the said lease agreement does not comply with the strictures of the relevant law, the Court must nonetheless hold that it is valid because the Landlord did not at any time in a period of close to 14 years attempt to evict the Respondent from the premises. It was submitted that this was an act of peremption. I cannot accept this outlandish submission. The provisions of the Act quoted above are very clear and to the point. The section visits such an agreement or contract with a status of invalidity if it fails to comply with the Act. The very act of contracting such an agreement is a violation of the Act by the Landlord; by both parties infact. It is this very act that is rendered of no force and effect, if the agreement is not executed before a Notary Public. No further act of peremption, would, logically appear to add any weight to it. I dare say, a party may not, generally, acquiesce to an illegality. For this reason, the 30 year long lease agreement was of no force or effect. It is invalid for failure to be executed before a Notary Public. [9] The Respondent has further averred that ‘. . . the lease was so that I secure loans, trading licences amongst other things’ and the parties were not aware of the legal implications thereof. By this I understand the Respondent to be saying that the agreement was signed for purposes of persuading or hoodwinking prospective financiers into granting a loan to the Respondent for his business. It is also noteworthy that this long term agreement was executed on 02 May 1995, yet two years later in 1997, the parties executed the five year lease. This suggests, in my view, that neither party regarded the earlier agreement as of any lawful effect or biding on them. Save for clause 5 of the long term lease which provides that ‘proceeds from bye products such as off-cuts and sawdust, shall be credited to the Lessor’, there is no provision for rental in this agreement. This is further evidence suggesting that this document was not intended to be a lease agreement or contract at all. [10] When the 5 year lease expired, the parties thereto continued in their relationship as before. The non-eviction of the Respondent from the farm at the end of the lease legally brought into existence a tacit relocation or extension of the lease. The land is used as a residential and business site. Although the residential or lilawu was built first, the business area or site is much bigger. Infact it is the dominant entity or part. The carpentry business operates on a yearly licence granted by the relevant licencing authority. For this reason, I would hold that the extension referred to brought into operation a year-to-year lease between the parties and this is what obtains between them. Rental of course may be calculated or determined to be payable on a monthly basis. I see no contradiction in the two issues, that is, extension being on a yearly basis whilst rental being payable monthly. I shall deal with the rental issue below in this judgment when I discuss the issue of compensation. _TRANSFER OF FARM TO FAMILY TRUST_ [11] The undisputed evidence by the Respondent is that the farm was purchased for a sum of E4,000.00 and 75% of the purchase price was paid by Esther Hadebe, the mother of the parties herein. This was in 1973. She worked as a nurse and retired in or about 1992. The founder of the Trust only paid the sum of E1000.00. Not only did she contribute towards the purchase of the farm but also built or constructed two houses on the farm using her pension pay-out. Clause 4 of the purported long term lease acknowledges this fact. It records that she is granted signatory powers for all transactions involving rental, service, provision for water, telephone and electricity with regard to all structures on the farm, due to that she owns two residential houses (Block A and B) while the Respondent owns the other two (Block C and D) and the said workshop. Again, this is clear evidence that Esther contributed financially towards the purchase of the farm and its improvement. That the farm was not legally registered in her name does not detract from this central fact that she was together with her husband a joint owner of the farm. [12] Esther died in May 2012, just a year before her husband formed the Family Trust and donated the farm to it. Because they were not married in community of property, her husband, being the surviving spouse was legally obliged to report her death to the office of the Master of the High Court within 14 days of her death and this report had to be accompanied by ‘an inventory of all goods and effects belonging to the deceased . . . and of all other goods and effects known to have belonged to the deceased . . . .’ (Per section 13 (1) of The Administration of Estates Act of 1902). [13] After Esther died, her estate was reported to the Master’s office by the Respondent but was never wound up or in any way dealt with. According to the Respondent, when he pleaded with his father to wind up the estate, the latter remonstrated with him by telling him he was the master of his own house. This culminated in a peace binding injunction being granted against the Respondent. Had the estate been dealt with or processed, I have no doubt that Esther’s rights in the farm in question would have been duly recognised and extricated from the rights or obligations of her husband. Therefore, it stands to reason that when her husband formed the Trust and donated the property to it, he was in error in doing so. He donated to the Trust property that was not entirely his. In law, he could not do so. He had power to donate only that which belonged to or was owned by him. This is trite law and is too plain to argue. [14] I have already referred to the fact that the marriage certificate in question specifically states that community of property is excluded in the marriage. This legal bar does not, however, disallow joint ownership of whatever nature. It excludes only that which accrues by virtue of the marriage. Because of this fact or conclusion, I am in full agreement with Counsel for the Respondent that Esther and her husband were in a tacit universal partnership in owning, amongst other things, the farm in question. They both contributed towards the purchase price and improvement of the farm and this was for their common benefit. Indeed they resided on and used the farm jointly. Sometime there was a school of thought that held that there could be no tacit universal partnership between a married couple. This has since been shown to be incorrect and has been categorically jettisoned. See _Fifi Clemence Mikango and 3 Others v Anastasia Stylianou and 8 Others (1943/2019)[[2021] SZHC 151](/akn/sz/judgment/szhc/2021/151) (20 September 2021)_ and the cases therein cited. Perhaps one ought to emphasise that this partnership was created not by the marriage or as a consequence thereof but rather inspite of the marriage. It was as a direct result of the acts of the couple in managing or running their affairs or lives. In 1973, about 21 years into their marriage, they decided to purchase the farm in question. [15] From the above analysis of the facts and legal principles involved, it is the finding of this Court that the transfer of the farm by Robert Bennett Samkelo Hadebe into the name of Samkelo Family Trust without having first wound up the estate and separating or severing the interest or rights of Esther Phambekile Hadebe was and is invalid in law, inasmuch as he also transferred the proprietory rights of Esther Hadebe without lawful authority or mandate. _RENTALS FOR BLOCK C_ [16] It is common cause that Blocks C and D were constructed by the Respondent. (See paragraph 11 above). Initially, he rented out block C and used the monthly rentals to maintain his aged parents. When the parents died, he then collected the rentals. This block of flats and the business premises were built by the Respondent with the express approval and consent of his parent. Again, he hired out Block C with their knowledge and consent – or at least without any objection from them. For these reasons, there is no doubt in my mind whatsoever that the Respondent is the rightful person to collect and benefit from the rentals of Block C. _COMPENSATION FOR IMPROVEMENTS_ [17] From the conclusions reached above, it is plain to me that the legal implications; particularly due to the unlawful donation of the farm to the Family Trust by the founder of the Trust, this donation and transfer are set aside as being unlawful. The donation is unbundled and the farm must revert to the ownership of the Estates of the Hadebes, i.e., Robert and Esther. The fact that the farm has already been transferred to the Trust is no bar to such illegal transfer being corrected or reversed. Legally, Robert could not pass any better title over the farm than he himself had (_nemo plus iuris ad alium transferre potest quam ipse haberet)_. His rights over the farm were encumbered, restricted by or shared with those of his wife, Esther. [18] Some of the improvements on the property were made by the Respondent with the consent of his parents. He has financially benefited and continues to benefit from these structures. The Respondent, I think, is liable to recompense the estate for his use and occupation of the property by way of a _condictio_ founded on undue enrichment because no man may enrich himself at the cost or expense of another. There is no evidence that he has ever paid for his occupation of the various structures he has built and occupies on the farm. Whatever monies he has expended on these improvements and the current value of these, must be calculated and juxtaposed or set off against the financial value or extent to which he has financially benefitted or been enriched by occupying the farm. In short, his occupational benefits must be subtracted from the value of the improvements he has made. However, from the material before me, it is impossible to determine the fair- yearly or monthly- market rental charge for the space or premises occupied by the Respondent. A professional evaluation or assessment is required and neither party has supplied this to the Court. It is not inconceivable though that at the end of the day a negative value for compensation may be arrived at; meaning that the Respondent is in rental arrears. [19] The improvements effected by the Respondent constitute a real lien, sometimes referred to as a salvage or improvement lien as opposed to a debtor- and- creditor lien. In _Lobo Properties (Pty) Ltd v Express Lift Co. (SA) (Pty) Ltd 1961 (1) SA 704 (C),_ the Court stated as follows: ‘Where the mutual intent to contract is clear, and in the absence of circumstances justifying an inference of a de facto intent to be bound by some specific criterion, our Courts appear to favour an implied intent to be bound to what is fair and reasonable. In _Inkin v Borehole Drillers 1949 (2) SA 366 (A) . . . and in Middleton v Carr 1949 (2) SA 374 (A) . . ._ the Appellate Division unmistakably and unquestioningly adopted this approach with reference to contracts of employment. Voet . . . was more dogmatic in propounding, as a generality the criterion of ‘the rent usually stipulated.’ The two criteria are, of course, not mutually exclusive: where a fixed custom exists, it would generally supply the answer as to what is fair and reasonable; but the latter criterion is more elastic and allows for assessment in the absence of fixed custom. . . . When, however, it comes to an award of what is due to the owner in respect of a period of use and occupation already enjoyed by the tenant or would-be tenant, there would still be a technical distinction in that a claim under the former would be brought ex contractu for rent and under the latter it would be condiction to achieve equitable adjustment; but there need not necessarily be any distinction of practical importance. I have pointed out above that in the first type of situation our Courts, in the absence of circumstances justifying a different inference, favour a construction whereby the lessee is liable for a fair and reasonable amount as rental. In assessing the amount the Court seeks to arrive as nearly as possible at the rental value of the property in the open market. Under the condiction which lies in the second type of situation, the basis of assessment is (save for a possible qualification to be mentioned later) exactly the same. The would-be lessee is liable to pay to the owner a reasonable sum for the use and occupation which he enjoyed: and as is apparent _inter alia_ from the above passage cited from _Van den Heever,_ the rental value of the property in the open market would again be the criterion for assessment of this reasonable sum. It is true that the purpose of the condictions is to prevent undue enrichment of the putative lessee at the expense of the owner. And it may well be that for this reason an inquiry under the condiction ought to be permitted to extend into the wider sphere of the question whether in the particular circumstances of the specific case the putative lessee was in truth enriched at all, and if so, whether to the full extent of the rental value. . . . Thus, when a plaintiff relying on the condiction alleges that reasonable compensation for use and occupation enjoyed by a defendant amounts to the sum claimed, this should be understood as implicitly conveying that the defendant has been enriched to that extent, and disputation of the tacit averment would be incumbent on the defendant, without however affecting the onus resting on the plaintiff in the event of a proper challenge.’ [20] In assessing the valuation of the improvements made by the Respondent, one must as a matter of common sense, bear in mind that the various valuation reports were made for a specific purpose; namely for a ‘Bank Facility’: (see page 79 clause 2.0). [21] The farm belongs to the Estates of the deceased. Any improvements made thereon accrue to the said Estates. Therefore, if any compensation is due to the Respondent for improvements made by him, such compensation is due by the said Estates. This compensation is, however, unascertainable on the material before Court. [22] In summary, I conclude that: (a) The 30 year-long term lease agreement entered into by and between the Respondent and his father is of no force and effect in law. (b) The donation and transfer of Farm 1005, Siteki, Lubombo District, Eswatini by Robert Bennett Samkelo Hadebe to the Samkelo Family Trust is null and void _ab’initio_ and is hereby set aside. (c) The rentals in respect of Block C must be payable to the Respondent, and (d) The value of compensation for improvements made by the Respondent on Farm 1005 Siteki, is unascertainable on the material before Court. Such compensation, if any, would be due and payable by the two estates of the deceased parents. [23] This is a family dispute and neither side has been shown to have been malicious or frivolous in these proceedings. In fact both have been found to have a legitimate or justifiable reason to litigate in this case. Any order for costs against either party would potentially divide the family. This would be undesirable. In the exercise of my discretion, I order that each party bears its own costs of these proceedings. [24] For the aforegoing reasons, I make the findings stated in paragraph 22 hereinabove. In addition, each party is ordered to pay its own costs of this matter. **MAMBA J.** **FOR THE APPLICANT: MAGAGULA & HLOPHE ATTORNEYS** **FOR THE RESPONDENT: RODRIGUES & ASSOCIATES** #### __Related documents ▲ To the top >