Judge Mbulelo Jolwana said it was clear that Nontobeko Sylvia Benge might have been misled by the deceased and lured into a marriage. Picture: African News Agency (ANA) Archives
Pretoria - The Eastern Cape High Court recently ruled that a grandson is the rightful heir to his grandfather’s inheritance instead of the second wife, whom he married while his divorce was not finalised.
In 2017, Zolani Bobani tried to report his grandfather’s death at the master’s office in Mdantsane, where he was told that the letter of authority had already been issued to his second wife, Nontobeko Sylvia Benge, and was also shown the marriage certificate.
After getting this information, Bobani approached the high court to annul the marriage on the basis that it was bigamous. He also wanted Benge not to benefit anything from his grandfather’s assets, including a house in Mdantsane. He also wanted to be appointed executor of his grandfather’s estate.
The late Mhlophe Simon Bobani and the late Ntombizakhe Maudlena Bobani got married in community of property in 1980 and had one child, Zolani’s mother, who also passed away.
In 1986, while still married to his first wife, Bobani entered into another civil marriage with Benge.
In her court papers, Benge said her relationship with Bobani started in 1983, and he told her that he was in the process of divorcing his wife.
Benge also filed court papers that showed that the late Bobani had instituted divorce proceedings against his first wife in 1984 and the divorce proceedings were never concluded at the time of the wife’s death in 2006.
When considering the facts, Judge Mbulelo Jolwana said it was clear that Benge might have been misled by the deceased and lured into a marriage, however, that does not clothe the marriage with validity.
Judge Jolwana said had Benge taken the same steps that she took after the death of the deceased to obtain confirmation of the status of the divorce, she would have discovered that the divorce proceedings between the late couple were still pending.
“At that time, all it would have taken her would have been, for instance, for her to ask the deceased to produce a decree of divorce or ask him to go to the relevant court with her to verify the status of the divorce proceedings,” said Jolwana.
He further added that he found it difficult to believe Benge’s allegation that when she and the deceased went to the then Ciskei Department of Interior to get married, the deceased told officials that he was divorced.
“Clearly, those officials would have asked the deceased for a decree of divorce before proceeding to officiate the marriage. It is more likely that the first respondent (Benge) and the deceased misled the officials at the Ciskei Department of Interior by telling them that they were both not married.
“...I therefore find that the purported marriage between Mhlophe Simon Bobani and the first respondent, Nontobeko Sylvia Benge was invalid,” he said.
Judge Jolwana declared the letter of authority that was in Benge’s possession unlawful.
Jolwana also appointed Zolani as the executor of his grandfather’s estate.
He further ordered Benge to the pay costs of the application.
IOL