Former Mthatha Judge Duncan Dukada’s widow Hlombekazi Dukada will get half of most of the assets accumulated during their 40-year marriage despite them holding separate estates in terms of their marriage property regime.
The Mthatha High Court has ruled that Dukada and his wife had formed a tacit partnership agreement during 1990 in respect of their family businesses and that they had conducted their growing empire – which included hardware stores, a bookshop, tiling and supermarket franchises – as equal partners until the death of Dukada last year.
For that reason, said Judge Richard Brookes, Hlombekazi was entitled to half of the assets of the partnership or, alternatively, to the payment by his estate of half the net value of the partnership assets.
The judgment is an important one in terms of how property accrued during a marriage may be divvied up in the event of the death of one of the spouses, even if they were married out community of property as in the case of the Dukada couple.
The pair were married out of community of property in 1976, which meant they chose to keep that their estates separate.
But despite much of the property accumulated during their marriage being in the name of Dukada, Brookes said that in reality, half of it belonged to Hlombekazi by virtue of the tacit business partnership they had enjoyed.
Hlombekazi, who has a BCom degree majoring in accounting and business management as well as honours, packed in her teaching career to pursue various businesses with her then attorney husband in the 1990s.
While he took care of the legal aspects of their growing businesses, she took care of the commercial side. She drew only what Brookes referred to as a “modest salary” with most of the profits being ploughed back into their businesses and into the purchase of other investments such as property which was rented out.
All the properties purchased with the profits of their joint ventures were in Dukada’s name and thus became part of his estate, which on his death would have been distributed in terms of his will.
But Brookes said the tacit business partnership they had formed in 1990 meant Hlombekazi should benefit as an “equal partner” to the tune of half of the assets accumulated as a result of the businesses.
Hlombekazi made a point of not laying claim to any properties purchased by Dukada using the profits from his legal practice.