Delaying legal processes can lead to loss of legal rights
This month we are telling a story, not of “justice delayed being justice denied”, but of delayed legal processes which can lead to the loss of legal rights and denial of justice.
Mrs Malinga died in 2016, leaving 2 sons, Daniel (34) and Sivuyile (19). At the time of her death, she died without a will, therefore she died intestate. At the time she was still married to the man who she was introduced to by her church 15 years before (2001), got married to and who left her home a year later without them getting divorced. Ever.
The story begins in 1980 when she married the father of her eldest son and they divorced in 1987. In 1994 she bought a house as a single woman. 7 years later, in 2001, through her neighbour’s church she was introduced to Mr Booi and encouraged to marry him. They were married (in community of property) but the relationship lasted about a year. Mr Booi left the house and moved away. Although the church was keenly instrumental in marrying the couple a year before, nothing was done at this stage by the church, Mr Booi or Mrs Malinga to dissolve the marriage.
Mrs Malinga raised Sivuyile on her own and on her death in 2016 her employer, Mrs Jacobs, continued to take care of Sivuyile. When he finished school, she encouraged him to take legal advice in regard to his mother’s house.
Brothers Daniel and Sivuyile met with a lawyer for advice in regard to reporting their mother’s estate, consisting only of the house, valued at R400 000. They were advised that their mother’s house belonged in equal shares to their mother’s estate and to Mr Booi, by virtue of their mother’s marriage in community of property to Mr Booi. The whereabouts of Mr Booi, who left the house 15 years before, was unknown to the brothers.
As their mother died intestate, their mother’s half share of the house devolves in terms of the law of intestacy which states that the surviving spouse (Mr Booi) and her children inherits her share in equal shares but subject to the provision that the first R250 000 of her estate goes to her husband. As the value of the house was R400 000, Mr Booi was therefore entitled to the whole house, and the sons entitled to nothing.
By doing nothing when Mr Booi left the marriage, the house which Mrs Malinga bought and paid for, eventually falls to her erstwhile husband, and not to her children. No divorce (with forfeiture of benefits) and no will resulted in her boys not being legally entitled to anything.
The eldest son Daniel already had his own house and was not perturbed too much (although the situation was very confusing for him), but Sivuyile at this stage was living alone in his late mother’s house. He decided to find Mr Booi and after almost a year he traced him to his place of employment in Green Point. Mr Booi listened carefully to the whole story and the legal consequences of the marriage, the failure to divorce and the directions of the law of intestacy, which resulted in the boys having no entitlement to the house.
If the story ends here, Mr Booi benefits by getting the whole estate of a woman he had a very short relationship with, while the deceased’s sons have to walk away with nothing.
Legal? Yes. Unfair? Sure. The end of the story? Fortunately, not. Mr Booi wanted “to do the right thing” and while he is also struggling to make ends meet, he decided to give Mrs Malinga‘s house back to her son Sivuyile. A rare happy ending due to the honourable actions of a man poor in possessions but rich in honour and morals.
The bottom line is not to delay what needs to be done in law. Think carefully about the implications of marriage before you tie the knot. Divorce the man that left your life. Get your will in order so that it reflects your last wishes.
Stay warm and see you again next month.
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