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[2018] ZAGPJHC 91
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Y P v Absa Bank Limited and Another (28182/2017) [2018] ZAGPJHC 91 (20 April 2018)
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Certain
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THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case
number: 28182/2017
Not
reportable
Not
of interest to other judges
Revised.
20/4/2018
In
the matter between:
Y
P
Applicant
OBO
O C &
J
M
and
ABSA
BANK
LIMITED
First
Respondent
SHONGWE
BONISWA
Second
Respondent
JUDGMENT
Molahlehi,
J
Introduction
[1]
This
is an application for rescission of the summary judgment of this
court made on 10 August 2017. The rescission in terms of the
applicant's papers is made in terms of rule 42 (1) (a) and (b) of the
Uniform Rules of the High Court (the Rules) The applicant
also seeks
the removal of the second respondent, Mrs. Boniswa Shongwe (Boniswa)
as executrix of the estate of her late husband.
[2]
The
applicant, Ms Yeni Ndondumiso Passionate (Yeni), contends that she is
entitled to the relief sought because the summary judgment
was made
in her absence.
[3]
Rule
42 of the Rules provides:
“
The court may, in addition to
any other powers it may have,
mero
mutu
or upon application of
any party affected, rescind or vary:
(a)
An order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby;
(b).
. .”
[4]
Yeni
based her
locus
standi in judicio
on
the grounds that she has substantial interest in the matter because
she is the biological guardian of her children born
of the
extramarital relationship she had with the deceased. In support of
this contention she attached to her founding affidavit
a one sentence
affidavit which states nothing more than that the deceased is their
biological father. She also attached the birth
certificate of the
children.
[5]
The
surnames of the children, appearing on the birth certificate which
are attached to the founding papers are not the same as that
of the
deceased. She has not attached any supporting affidavit to support
her contention that she had a relationship with the deceased.
Nor has
she in the context of the children using a different surname to that
of the deceased attached any supporting evidence in
that regard.
She further contended that the first respondent did not have
locus
standi
standing
to foreclose the property which was the subject matter of the summary
judgment.
[6]
The
other point that she raised is that the appointment of Boniswa as the
executrix of the late deceased estate of her husband was
unlawful
because she had stated after the death of her husband that she was
not interested in the estate and did not wish to inherit
from it.
[7]
In
this proceedings the first respondent raised
locus
standi
of the applicant as a preliminary point. The first point relates to
the issue of whether the children on whose behalf she instituted
these proceedings are children of the deceased. It should be apparent
from the above discussion that Yeni has failed to make out
a case in
as far as the relationship between the deceased and the children is
concerned. It follows therefore that the point as
raised by the first
respondent stands to succeed.
[8]
The
other point raised by the first respondent is that the mortgage bond
over the property in question was registered in its favour.
In
argument Yeni conceded that the deceased had obtained a loan from the
first respondent, and that was secured by a mortgage bond.
The
mortgage bond in the sum of R520 000.00, was signed by the
deceased, Mr Oben and the executrix, Mrs Boniswa Shongwe. In
the
particulars of claim the first respondent cited as
domicilium
citandi et executandi
[…] M. Road Bellevue East Township, Johannesburg, Gauteng.
This has not been disputed by the applicant neither has it been
disputed that the notice in terms of
s 129
(1) of the
National Credit
Act of 2005
was delivered by registered mail to the same address.
[9]
It
follows in law that the first respondent as a secured creditor in the
deceased estate had to first be paid before any contribution
could be
made to the heirs of the deceased. In the circumstances the person
who had a direct and substantial interest in the foreclosure
proceedings which were instituted by the first respondent, was
Boniswa in her personal capacity and nominated capacity as executrix.
The name of the applicant appears nowhere in any of the official
documents concerning the loan which was taken by both the deceased
and Boniswa.
[10]
It
is quite clear from the facts of this case that the house was
foreclosed in order to settle the outstanding debt due to the first
respondent. The contention that the first respondent should have
conducted some investigation about the executrix and to have her
removed from her nominated position has no merit. It is the Master of
the High Court in terms of
s 54
of the Administration of the Deceased
Estate Act who has power to seek an order removing the executrix from
her position.
[11]
In
light of the above, I am of the view that the applicant has failed to
make out a case showing that she has direct and substantial
interest
in the claims between the first respondent and the executrix of the
estate. Accordingly, I find that Yeni lacks
locus
standi
institute these proceedings.
Order.
[12]
The
application is accordingly dismissed with costs.
_______________________
E
Molahlehi
Judge
of the High Court; Johannesburg.
Representation:
For
the Applicant: In person
For
the Respondent: Adv AP Ellis
Instructed
by: Strauss Daly Inc
Heard
on: 17 March 2018
Delivered
on: 20 April 2018