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2024
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[2024] ZAGPJHC 187
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Makgamatha v Ngwenya (028546-2023) [2024] ZAGPJHC 187 (27 February 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO
: 028546/2023
DATE
:
13-11-2023
REPORTABLE:
NO.
OF
INTEREST TO OTHER JUDGES: NO.
REVISED.
27
/02/202
In
the matter between
MMANOKO
JEANNEKE MAKGAMATHA
Applicant
and
NAKEDI
SALMINA NGWENYA
Respondent
JUDGMENT
FISHER,
J
: This is an application for
joinder. The joinder application is in respect of the main
application which is an application
to remove two persons as the
executors of the estate of a deceased person.
The allegations made in
the main application relate to the biological parentage of the
respondents in the main application.
A central to the dispute
in the matter is whether an agreement of settlement dated 2 May 2013
was made an order of court on the
divorce of the applicant for
intervention and the deceased, whose estate is the subject of the
main application or whether another
document dated 5 April 2023 was
the settlement agreement that was made the order of court.
In terms of the
settlement agreement contended for by the applicant for intervention,
she retains an interest in the immovable property
which is the
subject matter of the estate. As such she has a direct and
substantial interest in the estate and the manner
in which the estate
is to be distributed amongst the heirs of the deceased.
It bears mention that the
applicants in the main application seek the removal of the
respondents in the main application on the
basis that they contend
that they (the respondents) are not the biological heirs of the
deceased. The applicant for intervention
is their mother.
Counsel for the parties
have been referred by me to statute dealing with the regulation of
the customary law applicable in intestate
succession. It
appears that neither counsel had reference to this statute in their
advice to their clients.
The import of the statute
is that a descendant for the purposes of intestate succession can be
a non-biological child if certain
circumstances are met. The
respondents in the main application who are sought to be removed as
executors will no doubt rely on
this provision in due course.
Given the fact that the
applicant for intervention has the necessary interest, there is no
reason why she should not be joined in
the matter. Indeed, if
her version is found to be correct in due course, she should have
been joined from the outset.
In these circumstances, I
make the following order:
The applicant in the
application to intervene, Ms Mmanoko Jeannete Makgamatha, is granted
leave to intervene in the main application
under case number
2023/028546.
The costs are costs to be
in the cause.
FISHER J
JUDGE OF THE HIGH
COURT
DATE
:
27/02/2024