A legal battle is unfolding at the Mpumalanga High Court over the R44-million estate of the late former deputy president David Mabuza.
The court must determine which of his “two wives” — one citing a longstanding customary union, the other armed with a disputed posthumous marriage certificate — will be legally recognised and inherit his vast fortune.
At stake is not only the late leader’s multi-million-rand pension, but also the question of who, in the eyes of the law, truly stood by his side.
Recognition of a customary marriage
The case, which involves many other parties, centres on the recognition of a customary marriage, the equitable distribution of pension benefits, and the rights of dependants left behind by the deceased.
The applicants, Emunah Silinda (formerly Ruth Funi Silinda) and her daughter Tamara Silinda, are seeking urgent relief to secure financial support and recognition of their rights as dependants of the deceased.
They are challenging the nomination of Nonhlahla Patience Mnisi, the first respondent, as the sole beneficiary of Mabuza’s R44-million living annuity held by Alexander Forbes Financial Services, the second respondent.
Mabuza passed away on July 3, leaving behind a substantial estate and multiple dependants. At the heart of the dispute is a living annuity valued at R44-million, which Mabuza had invested through Alexander Forbes. The first respondent, Mnisi, claims to be Mabuza’s lawful spouse and sole beneficiary of the annuity. This based on a posthumously issued marriage certificate obtained from the Department of Home Affairs.
Posthumous registration of customary unions
The applicants, however, contest Mnisi’s claim. They assert that Emunah Silinda was married to Mabuza under customary law in 1999. Silinda seeks recognition of the marriage under the Recognition of Customary Marriages Act, which allows for posthumous registration of customary unions. She argues that the marriage was valid and subsisting at the time of Mabuza’s death, despite not being registered.
Tamara Silinda, a first-year medical student at the University of Cape Town, is also seeking interim financial relief to cover her tuition fees of R127, 990 per year and monthly living expenses of R40,000. She claims to be a major dependant of the deceased. And she argues that her father’s duty of support did not terminate upon his death.
The applicants’ case is built on several legal pillars. Emunah Silinda argues that her customary marriage to Mabuza meets all the requirements under the Recognition of Customary Marriages Act. She claims that lobola was paid, the marriage was negotiated and celebrated according to custom. And also that the union was never dissolved. Section 4(9) of the Act explicitly states, “Failure to register a customary marriage does not affect the validity of that marriage”.
Child’s right to parental care
In her affidavit, Silinda states: “I married my deceased husband, David Dabede Mabuza, in 1999 at my family home [in] Mkhuhlu Village, Mpumalanga Province, in accordance with customary law and tradition.
“The deceased expressed his intentions to marry me, initiating the traditional process of lobola negotiations between the Silinda and Mabuza families.”
Tamara Silinda contends that her father’s duty to support her as a dependant survives his death. And it is enforceable against his estate and financial resources. This principle is well-established in South African common law, and reinforced by Section 28(1)(c) of the Constitution. This guarantees every child’s right to parental care and basic necessities.
Tamara’s affidavit highlights her financial vulnerability following her father’s death.
“The sudden demise of my father resulted in my loss of support and basic necessities, including tuition, exacerbating my financial vulnerability.”
Equitable distribution of death benefits
The applicants challenge the nomination of Mnisi as the sole beneficiary of the living annuity. They argue that it unjustly excludes other lawful dependents. They cite Section 37C of the Pension Funds Act. This requires trustees to distribute death benefits equitably among dependents and nominees. And this is regardless of the deceased’s expressed wishes.
The applicants argue: “The nomination of the first respondent as the sole beneficiary of the deceased’s living annuity is invalid, unlawful, and contrary to public policy and constitutional principles.”
The applicants question the legality of the marriage certificate obtained by Mnisi after Mabuza’s death. They argue that no valid marriage can be concluded or registered posthumously.
Silinda’s affidavit states: “We challenge the legality of this certificate, as no valid marriage could have been concluded or registered after death.”
Interim order
The applicants seek an interim order declaring:
- The matter to be urgent and condoning non-compliance with court rules;
- An interdict restraining Alexander Forbes from disinvesting or transferring the annuity funds to Mnisi;
- Retention of the annuity funds in an interest-bearing account pending the finalisation of the case;
- Interim maintenance payments for Tamara Silinda’s tuition and living expenses;
- Access to the family home in Barberton for the applicants and other dependants to visit Mabuza’s grave.
In the final relief, commonly known as the Part B application, the applicants seek:
- Recognition of Emunah Silinda’s customary marriage to Mabuza;
- A declaration that the nomination of Mnisi as the sole beneficiary of the annuity is invalid. It is also contrary to public policy;
- Equitable distribution of the annuity among all lawful dependents;
- And setting aside of the posthumously issued marriage certificate obtained by Mnisi.
Several legal precedents
The applicants rely on several legal precedents to bolster their case. In Mbungela v Mkabi (2019), the Supreme Court of Appeal upheld the validity of a customary marriage even without formal registration, emphasising the evolving nature of customary law. Similarly, in Mashazi v African Products Retirement Benefit Provident Fund (2003), the court held that trustees must prioritise dependants’ rights over the deceased’s nomination.
The applicants argue that enforcing Mnisi’s sole nomination would undermine constitutional values of equality, dignity, and the best interests of children. They contend that the court has a duty to intervene where rigid formalities unjustly exclude lawful dependants.
Mnisi, the first respondent, claims to be Mabuza’s lawful spouse and sole beneficiary of the annuity. Alexander Forbes, the second respondent, has disclosed that the annuity funds have already been disinvested for transfer to Momentum. But they are currently suspended pending the outcome of the case.
The Master of the High Court and the GPAA are cited as respondents. This is due to their roles in estate administration and pension fund management. The Minister of Home Affairs is also involved, given the dispute over the validity of the posthumous marriage certificate.
