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2021
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[2021] ZAGPJHC 355
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Royeppen and Others v Masher and Others (2019/15061) [2021] ZAGPJHC 355 (31 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, JOHANNESBURG
CASE
NO: 2019/15061
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
YES
DATE:
31 May 2021
In
the matter between:
DAVID
ANDBOO ROYEPPEN
First Applicant
ERNEST
JOHN ROYEPPEN
Second Applicant
ENID
CHRISTINE
ROYEPPEN
Third Applicant
EARL
SAMUEL
ROYEPPEN
Fourth Applicant
EBRAHIM
KALANE
Fifth Applicant
SALAAMA
KALANE
Sixth Applicant
and
GLADWYN
TREVOR MASHER
First Respondent
MANO
MASHER
Second Respondent
GLACIER
FINANCIAL SOLUTIONS (PTY) LTD
Third Respondent
HANNES
NICO BEKKER NO
Fourth Respondent
COLETTE
MOONSAMY NO
Fifth Respondent
JUDGMENT
ALLY
AJ
INTRODUCTION
[1]
This is an opposed application in terms of which the Applicants claim
interdictory
relief and the removal of a beneficiary from a Will.
[2]
At the outset Counsel for the Applicants and First and Second
Respondent were asked
whether this matter needed to be referred to
oral evidence taking into consideration the differing allegations,
and both parties’
Counsel answered in the negative.
[3]
In respect of the interdictory relief, an Order had been granted by
my sister Dippenaar
J on 9 May 2019, which Order operated as an
interim interdict in respect of prayers 2, 3, 5 and 6
[1]
.
[4]
This Court must therefore determine whether the Applicants are
entitled to final relief
set out in the Notice of Motion and certain
ancillary relief.
THE
LAW
[5]
As this is an Application and the Applicants seek final relief the
principles laid
out in the Plascon-Evans
[2]
case are of importance and in my view must be applied:
In such a case the
general rule was stated by VAN WYK J (with whom DE VILLIERS JP and
ROSENOW J concurred) in
Stellenbosch Farmers' Winery Ltd v
Stellenvale Win
e
ry (Pty) Ltd
,
1957 (4) SA 234
(C) at p 235
E-G, to be:
".... where there
is a dispute as to the facts a final interdict should only be granted
in notice of motion proceedings if
the facts as stated by the
respondents together with the admitted facts in the applicant's
affidavits justify such an order....
Where it is clear that facts,
though not formally admitted, cannot be denied, they must be regarded
as admitted".
This rule has been
referred to several times by this Court (see
Burnkloof Caterers
Ltd vHorseshoe Caterers Ltd
.,
1976 (2) SA 930
(A), at p 938 A-B;
Tamarillo (Pty) Ltd v B NAitken (Pty) Ltd
,
1982 (1) SA 398
(A)
at pp 430-1;
Associated South African Bakeries(Pty) Ltd v Oryx &
Vereinigte Backereien (Pty) Ltd en Andere
,
1982 (3) SA 893
(A),
at pp 923 G - 924 D). It seems to me, however, that this formulation
of the general rule, and particularly the second sentence
thereof,
requires some clarification and, perhaps, qualification. It is
correct that, where in proceedings on notice of motion
disputes of
fact have arisen on the affidavits, a final order, whether it be an
interdict or some other form of relief, may be
granted if those facts
averred in the applicant's affidavits which have been admitted by the
respondent, together with the facts
alleged by the respondent,
justify such an order. The power of the court to give such final
relief on the papers before it is,
however, not confined to such a
situation. In certain instances the denial by respondent of a fact
alleged by the applicant may
not be such as to raise a real, genuine
or
bona fide
dispute of fact (see in this regard
Room Hire
Co. (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
,
1949 (3) SA 1155
(T), at pp 1163-5;
Da Mata v Otto, NO
,
1972 (3) SA 585
(A), at
p 882 D - H).”
[6]
The above exposition deals with the procedural aspects of this case
and which this
Court must consider when evaluating the papers.
EVALUATION
AND ANALYSIS
[7]
The deceased in this matter died on 12 April 2019 and is survived by
2 children, one
an adult and the other, a minor.
[8]
Counsel for the Applicant’s main submission, related to
categorising the relationship
between First Respondent as an
agreement for services to be rendered and as such, this agreement
should be held to be unconscionable,
unreasonable or unfair in terms
of
Section 48
of the
Consumer Protection Act 68 of 2008
, as amended
and accordingly, in terms of
Section 52
of the said Act set aside
such agreement in whole or in part.
[9]
In order to succeed on this leg of the argument, the Applicants must
prove on the
basis of the facts pleaded by them and admitted by the
Respondents, they are entitled to the relief claimed in the Notice of
Motion.
[10]
At this point it needs to be mentioned that the papers are replete
with allegations and counter-allegations
and in relation to the case
sought to be made out by the Applicants, Respondents deny the facts
set out by the Applicant as well
as the inferences sought to be drawn
from such facts.
[11]
The Respondents have also denied having exercised undue influence on
the deceased to do anything
in terms of any documents signed by the
deceased.
[12]
The denials and counter-allegations contained in the papers brings
about a situation wherein
I am unconvinced of Applicants’ case
and applying the
Plascon-Evans
principles, the relief claimed
by the Applicants is unsustainable on the papers.
[13]
Both Applicants’ Counsel and Respondents” Counsel made it
clear to the Court that
they do not wish this matter to be referred
for oral evidence or to trial.
[14]
I have taken Counsels’ submissions into account regarding their
view on oral evidence and
am of the view that this case will be dealt
with on the papers before me. This route is taken having expressed to
both Counsel
why they should seriously consider referring the matter
to oral evidence and both having declined my invitation.
[15]
The Applicants have enjoined the Court to find that there was an
agreement between the deceased
and the First Respondent for services
and as such the agreement falls under the abovementioned
Consumer
Protection Act. In
my view I am unable to agree with this submission
on the papers before me. As a result I find that there was no
agreement in accordance
with the
Consumer Protection Act and
hence
Applicants’ request to set aside ‘the agreement’ is
dismissed.
[16]
I have already mentioned above that I am unable to hold, on the
papers before me, that the First
Respondent unduly influenced the
deceased.
[17]
Counsel for the Applicants made it clear that an invalidation of the
Will was not being sought
but that the Applicants were requesting
that the First and Second Respondents not be permitted to benefit
from the Will nor the
Annuity in any way. Having stated above that on
the papers I am unable to decide on the facts in favour of the
Applicants, taking
into consideration, the
Plascon Evans
principles, the relief sought by the Applicants in this regard
must be dismissed also.
[18]
In the result, I am of the view that the interim Order by my sister
Dippenaar J on 6 May 2019
[3]
falls to be discharged and the application in terms of further relief
from paragraph 2 to 8 of the Notice of Motion is dismissed.
COSTS
[19]
I was informed by both Counsel that they were acting in this matter
pro bono.
The normal rule is that costs should follow the
result and that the Court has a discretion when making an award for
costs. The discretion,
however, must be exercised judiciously and it
is my view that in this matter any costs incurred by either party
should be for their
own account.
[20]
Counsel for the Applicant submitted strenuously that the First and
Second Respondents should
pay the costs of the application should the
case be decided in their favour.
[21]
I have, however, for the reasons mentioned above decided that each
party should pay their own
costs where same have been incurred.
CONCLUSION
[20]
Accordingly the following Order shall issue:
1)
The interim Order granted by Dippenaar J dated 6 May 2019 is
discharged;
2)
The further relief claimed in the Notice of Motion is hereby
dismissed;
3)
Each party to pay their own costs where same was incurred.
G
ALLY
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION OF THE HIGH COURT, JOHANNESBURG
Electronically
submitted therefore unsigned
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines. The
date for
hand-down is deemed to be 31 May 2020.
Date of hearing: 31
August 2020
Date
of judgment: 31 May 2021
Appearances:
Applicants
:
Adv. T. Moloi
Kalima
Attorneys
justink@kalimaattorneys.co.za
1
st
and 2
nd
Respondents :
Adv. R. Baboolal-Frank
ENS
Africa Attorneys
nmbanjwa@ensafrica.com
[1]
Caselines:
Section 001
-
187
[2]
Plascon-Evans Paints Limited v Van Riebeeck Paints (Pty) Ltd
1984 AD
51
@ para 8-9
[3]
Caselines:
001- 188 to 001-190