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[2010] ZAGPPHC 267
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Executor in the Estate of Mnguni and Another v Mahlaba and Others (12230/2010) [2010] ZAGPPHC 267 (11 June 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 12230/2010
DATE:11/06/2010
In
the matter between:
EXECUTOR
IN THE ESTATE OF
THE
................................................................
First Applicant
LATE BRAIN JAPIE MNGUNI
LYDIA
KEDIBONE
MNGUNI
...........................................................................
Second Applicant
and
OLIVIA
M.
MAHLABA
.......................................................................................
First
Respondent
BRIAN
RADEBE
...........................................................................................
Second Respondent
SIZWE
RADEBE
............................................................................................
Third Respondent
ALEXANDER
RADEBE
.................................................................................
Fourth
Respondent
VUSI
MNGUNI
..................................................................................................
Fifth
Respondent
ANY OTHER UNLAWFUL OCCUPIERS OF
ERF
761 MAMELODI TOWNSHIP,
PRETORIA
..........................................
Sixth
Respondent
THE CITY OF TSHWANE METROPLOITAN
MUNICIPALITY
.................................................................................................
Seventh
Respondent
JUDGMENT
MAKGOKA,
J:
[1]
This is an application wherein the applicant, in her capacity as the
surviving spouse of her deceased husband, as well as the
duly
appointed executrix in the estate of her deceased husband, seeks an
order evicting the first to sixth respondents from immovable
property
situated at erf 761 Mamelodi Township, Tshwane.
[2]
Although a notice of intention to oppose was delivered on behalf of
the first to sixth respondents, only the second respondent
has
delivered an opposing affidavit.
[3]
The applicant is the surviving spouse of the late Brian Japi Mnguni
(the deceased) who passed away on 28 July 2008. The applicant
also
acts in this application as the duly appointed executrix in the
deceased's estate as per letters of executorship No. 1917/08,
issued
to her by the Master of this Court on 22 September 2008.
[4]
Of the six respondents, it appears that the first respondent does not
reside at the property. It is not clear from the papers
what her
interest in the matter is, or why she has been joined as a
respondent, save far a bald assertion that she is "cited
herein
for the purpose of completeness of the matter under case no.
53189/2008 and relief sought and order sought (sic) in the
Notice of
Motion will apply to her."
[5]
It appears the opposing parties are somewhat related, though how,
does not appear from papers.
[6]
In his very short opposing affidavit, the second respondent denies
that the second applicant was married to the deceased, and
seems also
to question the validity of the letters of executorship. A further
aspect seemingly placed in issue by the second respondent,
is the
ownership of the property. I shall immediately consider these
aspects.
[7]
In the absence of any counter-application to declare the second
applicant's marriage to the deceased invalid, I must accept,
on the
facts before me, that they were valid married. I cannot question that
on a mere valiant ispe dixit of the second respondent.
The second
aspect relating to the validity of the letters of executorship issued
to the applicant, suffers the same critisism.
Such remains valid and
of force, until duly withdrawn by the Master or the issuing thereof
is set aside by this Court. Neither
of the two scenarios obtain in
the present application.
[8]
I turn now to the issue of ownership of the property. In this regard,
the applicant has attached to her affidavit, a copy of
the Deed of
Grant T17329/2000, in terms of which the City Council of Pretoria, on
31 October 1999, ceded and transferred all rights
and title in full
and free property, to one Delphine Pontsho Skosana, ID No:
430815034085.
[9]
It appears to be common cause that the said individual is the late
mother of the deceased. It is not clear from the papers as
to when
the deceased's mother passed away. However, on 9 June 2008, the
Master, in terms of
section 39
(3) of the
Administration of Estates
Act 66 of 1965
, directed that the property was inherited by the
deceased.
[10]
The deceased having inherited the said property, it then became an
asset in the joint estate of the deceased and the applicant
on their
marriage, assuming they were married to each other in community of
property.
[11]
In his assertion that the applicant is not the owner of the property,
the second respondent attached to his affidavit, an affidavit
deposed
to on 24 March 2010 by one Masesi Elizabeth Zulu. I quote in full the
contents of the said affidavit as is, without alteration
to grammar
or spelling.
"I
sold my house which is No: 761 Section C in Mamelodi West on 1975 to
Anna Mnguni who was married. Radebe and Anna bought
the house for his
great children whos mother passed away. The children is Brain Radebe
and Themba Radebe. The house was registered
to Morgan Radebe who was
Anna elders son on that time. Due to my understanding I know that the
house as a family house belongs
to his great children."
[12]
The second respondent further states that the property was originally
acquired from the deponent of the affidavit referred
to above, who
sold it to Anna Mnguni, who was married to Mr. Radebe and later
registered in the name of Morgan Radebe, who apparently
is the
deceased father of the first respondent. It is significant that all
these allegations are not supported by any documentation
such as Deed
of Grant or Title Deed.
[13]
The above is the high water mark of the second respondent's case. The
second respondent, and any of the other respondents for
that matter,
can claim no superior right to the property than that established by
the applicant. The applicant is the surviving
spouse of the deceased,
who in turn inherited the property from his late mother, after the
latter had purchased the property from
the City Council of Pretoria.
[14]
I am therefore satisfied that the second to sixth respondents are in
unlawful occupation of the property, and that the applicant
has
established a proper case for their eviction.
[15]
The procedural and technical requirements of the Prevention of
Illegal Eviction from and Unlawful Occupation of Land Act 19
of 1998
have been complied. There is no suggestion that I am dealing here
with the elderly, young children, the disabled or a woman-headed
household.
[16]
I am therefore disposed to order the eviction of the second to sixth
respondents. I must do so in an orderly manner, by affording
the
respondents sufficient time to vacate the property.
[17]
I therefore make the following order:
1.
The second, third, fourth, fifth and sixth respondents are ordered to
vacate the property known as erf 761 Mamelodi Township,
Tshwane,
within 1 (one) calendar month of this order;
2.
Should the said respondents not comply with the order to vacate as
set out in the preceding paragraph, the Sheriff Wonderboom
and
members of the South African Police Service (SAPS) are hereby
authorized to assist in the eviction of the said respondents
to give
effect to this order.
3.
Each party shall pay its own costs.
T
M MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
HEARD : 3 JUNE 2010
JUDGMENT
DELIVERED : 11 JUNE 2010
FOR
THE APPLICANTS : MS RR MABUSELA (ATTORNEY)
FIRM
OF ATTORNEYS : MOHUBE SETSOALO MABUSELA INC,
PRETORIA
FOR
THE SECOND RESPONDENT : MR L MUZWAYINE (ATTORNEY)
FIRM
OF ATTORNEYS : L MUZWAYINE ATTORNEYS,
PRETORIA
NO
APPEARANCE FOR THE FIRST, THIRD, FOURTH, FIFTH SIXTH AND SEVENTH
RESPONDENTS.