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[2023] ZAFSHC 144
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Nyuba v April N.O and Others (2918/2021) [2023] ZAFSHC 144 (4 May 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2918/2021
In
the matter between:
NYUBA
MADINTJA
ANNAH
Applicant
And
WANDILE
MELBOURNE APRIL
N.O.
1
st
Respondent
S[…]
T[…] on behalf of the minor child
T[…]
S[…]
2
nd
Respondent
THE
MASTER OF THE HIGH COURT: BLOEMFONTEIN
3
rd
Respondent
THE
REGISTRAR OF DEEDS: BLOEMFONTEIN
4
th
Respondent
THE
METSIMAHOLO LOCAL MUNICIPALITY
5
th
Respondent
THE
FIRST NATIONAL
BANK
6
th
Respondent
CORAM:
LOUBSER, J
HEARD
ON:
23
MARCH 2023
JUDGEMENT BY:
LOUBSER, J
DELIVERED
ON:
The judgment was handed down electronically
by circulation to the
parties’ legal representatives by email and released to SAFLII
on 4 MAY 2023. The date and time for
hand-down is deemed to be 4 MAY
2023 at 11:30
[1]
This is an application that came before this court on an opposed
basis.
The relief sought by the applicant can be summarised as
follows:
1.1
That the 1st respondent be discharged from his duties as the executor
of the estate of the late Nyolohelo
Thomas Rantsane (estate no.
23077/2014) with immediate effect.
1.2
That the applicant’s attorneys, N. J. Belcher Attorneys, be
appointed as the new executors in the said
estate within ten days.
1.3
That the 4th respondent be ordered to cancel the registration of the
immovable property situated at 24 P[…]
Street, Sasolburg, in
the name of the minor child who is represented by the 2nd respondent,
and to transfer the property back into
the name of the deceased
estate mentioned above, and
1.4
That the 1st and 2nd respondents be ordered to pay the costs of the
application on the attorney and client
scale.
[2]
The factual matrix that
gave rise to the launching of this application appears from
the
affidavits and additional documentation filed by the respective
parties. The deceased featuring in the papers died on 31 May
2014 in
a car accident. He left no will behind and he therefore died
intestate. According to the 2nd respondent, he was the biological
father of the minor child T[…] S[…]. The child has
recently reached the age of majority. The 2nd respondent was never
married to the deceased nor did they live together. They were only in
a romantic relationship for a period of time. It was during
this time
that she fell pregnant with the said child.
[3]
Section 1(1)(b) of the Intestate Succession Act
[1]
provides that, if a person dies intestate, and he is survived by a
descendant, but not by a spouse, such descendant shall inherit
the
intestate estate. In compliance with this provision, the 1st
respondent caused the residential property situated at 24 P[…]
Street, Sasolburg, to be transferred into and to be registered in the
name of the said child on 11 March 2021 by the offices of
the 4th
respondent. The child was the only descendant of the deceased, and
the property concerned appeared to have been the only
asset in the
deceased estate. According to the Deed of Transfer, the property was
valued at the sum of R600 000.00.
[4]
The applicant, on the other hand, based her application on the
premise
that the deceased was not the biological father of the child
and that the property in question therefore ought not to have been
transferred into her name after the death of the deceased. The
applicant is the biological sister of the deceased. According to
her,
the deceased had denied responsibility for the pregnancy of the 2nd
respondent before his death. He even wanted to have a
paternity test
done prior to his untimely death, she says. The applicant further
mentions in her founding affidavit that she had
rented the property
in question out to tenants after the death of the deceased, and that
the monthly rentals were paid to her.
On 18 June 2021 she was
surprised to hear that the property has meanwhile been transferred
into the name of the child.
[5]
The applicant also states in her founding affidavit that her attorney
sent a letter to the 1st respondent on 30 March 2021 informing him
that she had arranged for a paternity test to be done on the
child at
Pathcare, for which test she had already paid. However, the 2nd
respondent and the child failed or refused to attend the
paternity
test appointment, the applicant says. As far as the 1st respondent is
concerned, the applicant alleges that the 1st respondent
was
initially instructed by herself before his appointment as executor.
Later she was surprised to learn that the 1st respondent
was now
acting as the attorney for the 2nd respondent and her child.
According to her, the 1st respondent knew of the dispute relating
to
the paternity issue, but had nevertheless proceeded to cause the
transfer of the property into the name of the 2nd respondent’s
child. At the hearing of this application, counsel appearing for the
applicant has pointed out additional aspects which could be
interpreted as irregular conduct by the 1st respondent in the
administration of the deceased estate. Most of those issues are not
mentioned in the founding affidavit.
[6]
Now it is clear that there is a massive and material dispute of fact
on
the application papers before me. This dispute relates to the
question whether the deceased was the biological father of the child
or not. Since there is no scientific evidence before the court in
this respect, the court is not in a position to make a reliable
finding. There is also no prayer in the notice of motion for an order
to compel the 2nd respondent’s child, who has now reached
the
age of majority, to undergo tests to determine the question of
paternity. Nor is there any request made by either of the parties
to
have the matter referred to oral evidence so that this aspect can be
properly canvassed. It is undesirable that a court
mero
motu
orders a referral to oral evidence.
[2]
[7]
The court therefore has to resort to the established principles
regarding
the adjudication of applications where there are material
disputes of fact on the papers before the court. These principles
dictate
that a final order will only be granted on notice of motion
if the facts as stated by the respondent together with the facts
alleged
by the applicant that are admitted by the respondent, justify
such an order.
[3]
In the present proceedings, the facts as stated by the 2nd respondent
(that the deceased was the father of the child) together
with the
facts alleged by the applicant that are admitted by the respondent
(none for all intents and purposes) do not allow for
the relief
sought by the applicant.
[8]
It is also crystal clear to this court that the relief sought for the
discharge of the 1st respondent as executor of the estate, is fully
dependent on a reliable finding that the deceased was not the
father
of the child. This is so, because if it could be found that he in
fact was the father, it would not serve any meaningful
purpose to
remove him as executor of the estate, despite the fact that certain
irregularities could have been committed in the
administration of the
estate. The result hereof is that the question of paternity goes to
the core of all the relief sought in
the application. So much was
conceded by counsel appearing for the applicant responding to a
question by the court. He conceded
that if the child had gone for
tests to establish paternity, this application would not have been
launched at all.
[9]
It follows that the application cannot succeed. To my mind, there
exists
no reasons why the costs of the matter should not follow the
result. The costs will include the costs of the condonation
application
that preceded this application. In the condonation
application, the court granted condonation for the late filing of the
answering
affidavit to the 2nd respondent. Costs were ordered to be
costs in the cause on that occasion.
[10]
The following order is made:
1.
The application is dismissed with costs,
including the costs of the condonation application for the late
filing of the answering
affidavit by the 2nd respondent.
________________
P.
J. LOUBSER, J
For
the applicant:
Adv.
B. T. Ngqwangele
Instructed
by:
G.
M. Makete Attorneys, Johannesburg
c/o
M. C. Radebe Attorneys, Bloemfontein
For
the 1st and 2nd respondents:
Mr.
Masoha
Instructed
by:
Jam
Jam Attorneys, Sasolburg
c/o
Rampai Attorneys, Bloemfontein
[1]
Act
81 of 1987
[2]
Santino Publishers CC v Waylite Marketing CC 2010 (2) SA 53 (GSJ)
[3]
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A)