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[2023] ZAFSHC 97
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Mokoena and Others v Masoeu and Others (2039/2022) [2023] ZAFSHC 97 (27 March 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been redacted
from this document in compliance with the law and
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YESINO
Application
number: 2039/2022
In
the matter between:
PULENG
MARIA MOKOENA
1st
Applicant
REMASOEU
PULENG FUNERAL HOMES (PTY) LTD
2nd Applicant
(Reg.
no.: 2020/625672/07)
REMASOEU
THATO FUNERAL (PTY) LTD
3rd
Applicant
(Reg.
no.: 2020/625369/07)
and
MARIA
MPOTSENG NHLAPHO-MASOEU
1st
Respondent
LYDIA
MOSIDI MASOEU THAELE
2nd
Respondent
MATSHEPO
SARAH MASOEU-LECHE
3rd
Respondent
UYLETA
NEL-MARAIS N.O
4th
Respondent
THE
MASTER OF THE HIGH COURT
5th
Respondent
THE
MOTOR FINANCE CORPORATION (PTY) LTD
6th
Respondent
AUCOR
BLOEMFONTEIN (PTY) LTD
7th
Respondent
CORAM:
VAN ZYL. J
HEARD
ON: 28 July 2022
DELIVERED
ON: 27 March 2023
[1]
This is the extended return date of a rule nisiwhich was granted on
an urgent ex parte basis in the following
terms:
"1.
Dispensing with the forms and service provided in the Uniform Rules
of Court and condoning the non-compliance
with the Uniform Rules of
Court relating to service and time periods in terms of Rule 6(12).
2.
That a rule nisi, with return date 2 June 2022, be issued calling on
the respondents to show cause why
an order in the following terms
should not be made final:
2.1
That the first, second and third respondents together are interdicted
and/or restrained from dealing in and/or transferring
and/or
dispensing with and/or in any manner alienating the estate forming
part of the late Tlala Doctor Masoeu (ID No: [....])
and that
includes, but is not limited to, the assets forming part of the late
Tlala Doctor Masoeu as it pertains to the second
and third
applicants.
2.2
That the first, second and third respondents together be and are
interdicted and/or restrained from dealing in and/or
transferring
and/or disposing of and/or in any manner alienating the estate
whether forming part of the estate of the late Tlala
Doctor Masoeu or
the business assets of the second and third applicants including the
assets of Remasoeu Funeral Home CC with registration
number
2005/099101/23.
3.
Pending the finalisation of the appointment of the executor appointed
by the Master of the High Court
in terms of the
Administration of
Estates Act, 66 of 1965
, the first to third respondents are
interdicted and/or restrained against the disposal of any asset
forming part of the Estate
Late Tlala Doctor Masoeu.
4.
That the first, second and third respondents be ordered to hand over
the administration of the deceased
estate to the Master of the High
Court, pending the finalization of the appointment of the executor of
the Estate Late Tlala Doctor
Masoeu in terms of the
Administration of
Estates Act, 66 of 1965
.
5.
The sixth respondent is interdicted and restrained from selling
and/or alienating the motor vehicle bearing
the description: 2014
MERCEDES-BENZ VITO 122, ENGINE NUMBER [....] , VIN NUMBER: WDF [....]
, pending the final appointment of
the executor of Estate Late Tlala
Doctor Mosoeu; and/or in the event that the sale has taken place, the
sixth respondent is interdicted
and restrained from transferring the
abovementioned vehicle to the buyer.
6.
The seventh respondent is interdicted and restrained from giving
effect to the sale by public auction
of the motor vehicle bearing the
description 2014 MERCEDES-BENZ VITO 122, ENGINE NUMBER [....] , VIN
NUMBER WDF [....] pending
the final appointment of the executor
of Estate Late Tlala Doctor Mosoeu; and/or in the event that the
auction has taken place,
the seventh respondent is interdicted and
restrained from transferring the abovementioned vehicle to the buyer.
7.
The relief as set out in paragraphs 2 to 4 above be granted and
operate with immediate effect.
8.
….
9.
Costs of this application to be paid by any of the respondents who
opposes this application and/or the relief sought,
jointly and
severally, one paying the other to be absolved."
Prayer
8 above made provision for service of the order and the application
papers.
Background:
[2]
The first applicant, who is the deponent to the founding affidavit,
was married out of community of property
with the exclusion of the
accrual system to Tlala Doctor Mosoeu, the deceased father of the
first to third respondents, from 30
July 2020 until his passing on 1
September 2021.
[3]
The first applicant deposed to the affidavit in her personal capacity
and also on behalf of the second applicant,
the third applicant and
Thato Masoeu.
[4]
Mr Masoeu and his first wife, Rachel Motsilisana Masoeu got married
to each other on 24 April 1978. Sadly,
Mrs Masoeu passed away on 5
July 2019. Thereafter Mr Masoeu married the first applicant on 30
July 2020. Sadly, Mr Masoeu passed
away on 1 September 2021. The
first applicant is consequently the widow of the late Mr Masoeu.
[5]
The first, second and third respondents were born from the marriage
of the late Mr and Mrs Masoeu.
[6]
With regard to the fourth respondent, the following is stated in the
founding affidavit:
"14.
The fourth respondent is Uyleta Nel-Marais who is cited herein in her
capacity as the prospective Executor of Estate Late
Tlala Doctor
Masoeu who is most likely to be appointed as the Executor imbued with
a responsibility to oversee the affairs of the
deceased estate. The
appointment of Uyleta Nel-Marais is not yet finalized because the
nominations of the guardians in terms of
the Will of the late Mr
Masoeu is currently outstanding. It will however be gleaned from
documentation from the Master of the High
Court that the Will and
Testament dated 8 June 2021 has been accepted and the fourth
respondent's appointment stands to be finalized."
[7]
The Master of the High Court, Bloemfontein was cited as the fifth
respondent in his capacity as the official
responsible for the
administration of deceased estates within his area of jurisdiction.
[8]
Since the passing of the late Mr Masoeu, litigation has ensued
between the applicants and the first to third
respondents.
[9]
On 21 September 2021 the first to third respondents issued an ex
parte urgent application against the first
to third applicants under
case number 4373/2021 as a result of which a rule nisi was issued,
dated·23 September 2021, which,
in short, interdicted the
present applicants from dealing in any way whatsoever with the assets
of the Estate Late Tlala Doctor
Masoeu. The rule nisi was to be
operative pending the finalization of the dispute in Part B of the
Notice of Motion issued in that
application, which was to deal with a
dispute pertaining to the validity of the Will of the first applicant
and the late Mr Masoeu,
dated 8 June 2021 as oppose to the Will of
the late Mr and Mrs Masoeu, dated 22 January 2019.
[10]
On 27 January 2022 Litheko AJ discharged the aforesaid rule nisi
issued
on 23 September 2021.
Business
entities:
[11]
According to the applicants there are various business entities which
are "an integral part of the estate which
must be administered
by the executor'. Reference is then made to the following entities:
11.1
Remasoeu Funeral Home CC, Registration No. 2005/099101/23 in which
the late Mr Masoeu had a 45% interest
and the late Mrs Masoeu had a
45% interest, whilst the first respondent has a 10% interest in the
close corporation.
11.2
The second respondent, with registration number 2020/625672/07.
According to the first applicant herself
and the late Mr Masoeu were
the two directors, each with a 50% shareholding in the company.
11.3
The third respondent, with registration number 2020/625369/07, of
which entity the late Mr Masoeu and the
applicant were the two
directors, each with 50% shareholding in the company.
[12]
In the founding affidavit the following allegations are made in
relation to the purpose of the application:
"21.
This application is interdictory in nature and is instituted by the
applicants in response to the fact that the
respondents are
attempting to or have embarked on disposing of and/or alienating
assets that form part of the Estate Late Tlala
Doctor Masoeu and/or
assets which belong to the second and third applicant-entities which
in any event directly or indirectly form
part of the Estate Late
Tlala Doctor Masoeu.
22.
This interdictory relief is further intended to operate so that the
Executor of the Estate Late Tlala Doctor Masoeu
may carry out her
duties as required by the
Administration of Estates Act, 66 of 1965
to administer all assets forming part of the estate.
23.
This application is launched as a way to safeguard the assets of the
Late Tlala Doctor Mosoeu and the efficacy of
the first and second
applicants. The applicant seeks the relief set out in the
accompanying Notice of Motion, aimed generally at
safeguarding the
interest .of the applicants as well as protecting movable and
immovable property."
[13]
From the contents of the Will of the late Mr Masoeu and the first
applicant, dated 8 June 2021, it is evident that the
late Mr Masoeu
bequeathed:
"44.1
His furniture held in the communal home which we share, to me.
44.2
The Remasoeu Thate Funeral Home (Pty) Ltd (the third applicant), with
branches situated in Ladybrand, Clocolan,
Ficksburg, Steynsrus and
Senekal to Thate Masoeu.
44.3
His vehicles that he owned and which are registered in his name at
the time of his passing to me.
44.4
His shares in the business Remasoeu Funeral Home to me. His shares in
this business at the time of his passing
were arguably 90%. His
shares in the Remasoeu Puleng Funeral Home (Pty) Ltd (second
applicant) and all its branches to me."
[14]
Following the passing of the late Mr Masoeu, the first, second and
third respondents registered their own private company,
Rebomasoeu
Enterprise Services, Registration No. 2021/419571/07, which company
was registered on 22 February 2021, with its principal
business
address at 11 Malan Street, Senekal. The second and third respondents
are active directors and the first respondent·
resigned as
director on 18 January 2022. The following is alleged in paragraph 46
of the founding affidavit:
"...
the first, second and third respondents have used the Rebomasoeu
Enterprise Services entity to dissipate or derive undue
benefit
and/or alienate the estate of my late husband including the assets of
the other businesses forming part of the entities
mentioned above".
[15]
The applicants addressed in a number of paragraphs the alleged
conduct of the first to third respondents in relation
to the Remasoeu
Funeral Home CC. For reasons which will become evident later in this
judgment, I do not consider it necessary to
deal with the details of
those allegations.
[16]
The first applicant alleges that aside from the business interest of
the Estate Late Tlala Doctor Masoeu which must be
protected, the
first to third respondents chased her out of the communal home which
she shared with her late husband, being 28
Busschau Street, Senekal.
This happened a few days after the burial of the late Mr Masoeu. She
could not even pack her personal
belongings and have been without
same since September 2021 and has since not been able to return to
the communal home.
[17]
On 26 April 2022 the first applicant became aware that the first
respondent completed and signed a voluntary surrender
of vehicle to
the sixth respondent. The said vehicle, with description 2014
MERCEDES-BENZ VITO 122, ENGINE NUMBER [....] , VIN
NUMBER: WDF[....]
is registered in the name of the late Mr Masoeu. According to
the first applicant the first respondent
therefore did not have the
requisite authority to sign a consent to sell and/or a voluntary
surrender of the said vehicle. As already
pointed out earlier, the
Will of 8 June 2021 bequeathed all vehicles in the name of the late
Mr Masoeu to the first applicant.
The seventh respondent appears to
be in the process of selling the said vehicle.
[18]
The applicants further dealt with the requirements for an interdict
in the founding affidavit.
[19]
Two aspects which I need to underline is that it is evident from the
founding affidavit that the Master of the High Court,
the fifth
respondent, has accepted the Will dated 8 June 2021. This is evident
from annexure "MAS1" attached to the founding
affidavit.
[20]
It is furthermore evident from the replying affidavit that the fourth
respondent has been formally appointed as executrix
of the Estate
Late Tlala Doctor Masoeu on 18 July 2022, as evident from the Letters
of Executorship issued by the Master of the
High Court, annexure "2"
to the replying affidavit.
The
first to third respondents' answering affidavit:
[21]
In the first to third respondents' answering affidavit they dealt in
detail with the reasons for the late filing of their
answering
affidavit. I do not deem it necessary to repeat same herein. I am
satisfied with the explanation advanced and condonation
for the late
filing of their answering affidavit is consequently to be granted.
[22]
In broad the following aspects are referred to and/or relied upon by
the first to third respondents in their opposition
to the
confirmation of the rule nisi:
1.
That there is a similar matter pending before the Magistrate's Court
and that the applicants are therefore
forum shopping.
2.
The applicants' attorneys of record have previously represented the
first to third respondents.
3.
The fact that the first applicant signed the second Will has the
effect that she stands to be disqualified
from inheriting in terms of
the Will.
4.
That the first applicant has no authority or standing to represent or
act on behalf of the second applicant.
5.
That the applicants have embarked on a commercial rivalry with the
first to third respondents and have
set out to incapacitate their
business endeavours.
6.
That the applicants are usurping the duties and obligations of the
fourth and fifth respondents.
7.
That the first to third respondents still have an intention to appeal
the decision under case number
4373/2021 in respect of the discharge
of the interim order which was granted in their favour and also in
respect of the validity
of the Will.
Consideration
of the merits of the application:
[23]
In my view the issue raised by the first to third respondents
regarding the legal representation of the applicants and/or
the fact
that the executrix, the fourth respondent, is a member of Lovius
Block Attorneys, being the applicants' attorneys of record,
are not
to be dealt with and/or are irrelevant to the merits of the present
application. Should the first to third respondents
wish to take the
issue further, they should do so in the appropriate manner and
appropriate forum.
[24]
With regard to the fact that the first applicant has also obtained an
interdict in the Magistrate's Court, it is in my
view evident that
the nature and effect of that interdict are vastly different from the
relief which is being sought in the present
application. It
consequently did not bar the applicants to have approached court by
means of the present application for the relief
requested.
[25]
In respect of the questioning of the first applicant's authority to
act on behalf of the second applicant, this aspect
was duly addressed
in the replying affidavit.
[26]
The first to third respondents' intention of instituting an appeal
and/or any other process in opposition to the acceptance
of the Will,
does not constitute a defence to the present proceedings. Presently
the Will has been accepted by the Master and the
executrix has been
appointed accordingly.
[27]
With regard to the first to third Respondents expressed concern that
the applications are usurping the powers and roles
of the fourth and
fifth respondents, being the executrix and the Master, I am in
agreement with the principle that same should
not be allowed. As the
papers currently stand, there is no indication that the fourth
respondent, the executrix, has actively commenced
with her duties and
obligations as executrix. In these circumstances I am in agreement
with the applicants that the assets of the
Estate Late Tlala Doctor
Masoeu should be protected. However, as previously stated, the
applicants are not to usurp the powers
and roles of the executrix and
the Master. I consequently intend to prevent such a situation by
amending the relief which I propose
to grant, appropriately.
[28]
Mr Lekala, who appeared on behalf of the first to third respondents,
stated as follows in his heads of argument, which
contentions he also
repeated during his oral argument:
"8.2
It is a basic principle of our law as expressed in the Supreme Court
of Appeal in the matter Ex Parle Body Corporate Caroline
Court
2001
(4) SA 1230
(SCA) that interested parties who may be prejudiced by an
order issued by court should be joined in a suit as also expressed in
Rule 6(2) of the Uniform Rules of Court.
8.3
The result, I submit that failure of bringing entities alleged to be
using assets of the late estate is fatal and any order
to the effect
of interrupting its operation without the opportunity of refuting the
false allegations would be a fundamental flaw
and grossly prejudicial
to the core."
[29]
The applicants failed to site Remasoeu Funeral Home CC, of which the
first respondent holds a 10% members' interest as
a party to the
present proceedings. This is despite the fact that paragraph 2.2 of
the rule nisi seeks an interdict pertaining
to the assets of Remasoeu
Funeral Home CC.
[30]
This relief cannot be granted in the absence of Remasoeu Funeral Home
CC having been cited as a party to this application.
A close
corporation is a separate legal entity and as such, should have been
cited as a party to the proceedings in order for the
applicants to
obtain any relief against it. This is also the reason why I did not
deem it necessary to deal with the allegations
in the founding
affidavit pertaining to Remasoeu Funeral Home CC.
[31]
The principle is mutatis mutandis applicable to Rebomasoeu Enterprise
Services (Pty) Ltd, since it also constitutes a
separate legal
entity.
[32]
However, in my view this does not prevent me from interdicting the
first to third respondents to deal with the assets
of the Estate Late
Tlala Doctor Masoeu, which also prevents them from doing so by means
of Remasoeu Funeral Home CC and/or Rebomasoeu
Enterprise Services
(Pty) Ltd.
[33]
From a consideration of the totality of the papers, and considering
the requirements for the granting of a final interdict,
I am
satisfied that the applicants have made out a proper case for the
relief sought pertaining to the dissipation and/or alienation
of the
assets of the Estate Late Tlala Doctor Masoeu. However, no relief can
be granted with regard to the entities which are not
before court.
[34]
I further consider it appropriate and necessary that the interdictory
relief be subjected to the authority and the instructions
of the
executrix and the Master, respectively.
[35]
Furthermore, I am of the view that certain paragraphs of the rule
nisi have become redundant in view of the appointment
of the
executrix.
Costs:
[24]
The applicants sought in their Notice of Motion costs against any of
the respondents who oppose the application.
[25]
The first to third respondents are mutatis mutandis seeking costs
against the applicants.
[26]
The application was postponed and the rule nisi extended on 2 May
2022 to 28 July 2022, with the wasted costs to sta·nd
over. In
my view those costs are to be costs in the application.
[27]
The applicants have been ubstantively successful with the present
application. However, this matter basically constitutes
a family feud
as the result of a Will and different family businesses which are
directly or indirectly connected to the Late Estate.
In the
circumstances and in exercising my discretion, I consider it
appropriate that the costs of the application be paid by the
Estate
Late Tlala Doctor Masoeu, which costs are to include the reserved
costs of 2 June 2022.
Order:
[28]
I consequently make the following order:
1.
Condonation is granted for the late filing of the first to third
respondents· answering affidavit.
2.
With regard to the rule nisi contained in paragraphs 2.1 - 6 of the
court order dated 4 May 2022, the
following is ordered with reference
to the respective paragraphs of the court order:
(a)
Paragraph 2.1: The rule nisi is amended to read as follows:
"That
the first, second and third respondents together are interdicted
and/or restrained from disposing and/or dealing in and/or
transferring and/or dispensing with and/or in any manner alienating
the assets forming part of the Estate Late Tlala Doctor Masoeu
(ID
No: [....]) and that includes, but is not limited to, the assets
forming part of the Estate Late Tlala Doctor Masoeu as it
pertains to
the second and third applicants subject to the authority and/or
instructions of the Master and/or the executrix."
So
amended, the rule nisi is confirmed.
(b)
Paragraph 2.2: The rule nisi is discharged.
(c)
Paragraph 3: The rule nisi is discharged.
(d)Paragraph 4:
The rule
nisi is discharged.
(e)
Paragraph 5: follows:
The
rule nisi is amended to read as
"The
sixth respondent is interdicted and restrained from selling and/or
alienating the motor vehicle bearing the description:
2014
MERCEDES-BENZ VITO 122, ENGINE NUMBER [....] , VIN NUMBER: WDF[....]
, and/or in the event that the sale has taken place,
the sixth
respondent is interdicted and restrained from transferring the
abovementioned vehicle to the buyer subject to the authority
and/or
instructions of the Master and/or the executrix of the Estate Late
Tlala Doctor Masoeu."
So
amended, the rule nisi is confirmed.
(f)
Paragraph 6: The rule nisi is amended to read as follows:
"The
seventh respondent is interdicted and restrained from giving effect
to the sale.by public auction of the motor vehicle
bearing the
description 2014 MERCEDES-BENZ VITO 122, ENGINE NUMBER [....] , VIN
NUMBER: WDF[....] , and/or in the event that the
auction has taken
place, the seventh respondent is interdicted and restrained from
transferring the abovementioned vehicle to the
buyer subject to the
authority and/or instructions of the Master and/or the executrix of
the Estate Late Tlala Doctor Masoeu."
So
amended, the rule nisi is confirmed.
3.
The costs of the application, including the reserved costs of 2 June
2022, are to be paid by the Estate
Late Tlala Doctor Masoeu.
C.
VAN ZYL, L
On
behalf of the applicants: Adv
I Macakati
Instructed
by: Lovius
Block Attorneys
BLOEMFONTEIN
On
behalf of the first to third respondents: Adv
R Lekala
Instructed
by: Mpakati
Inc. Attorneys
PRETORIA
c/o
MM Hattingh Inc.
BLOEMFONTEIN