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[2023] ZAFSHC 220
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Masoeu v Masoeu and Others (2039/2022) [2023] ZAFSHC 220 (2 June 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:
2039/2022
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE TO MAGISTRATES:
YES/NO
In the matter between:
PULENG
MARIA MOKOENA-MASOEU
Applicant
and
MARIA
MPOTSENG NHLAPHO-MASOEU
1
st
Respondent
LYDIA
MOSIDI MASOEU
2
nd
Respondent
MATSHEPO
SARAH MASOEU-LECHE
3
rd
Respondent
CORAM:
M E MAHLANGU, AJ
JUDGMENT
BY:
M E MAHLANGU, AJ
HEARD
ON:
25 MAY 2023
DELIVERED
ON
: 2 JUNE 2023
Introduction
[1]
The applicant was married to out of community of property and without
the accrual system being
applicable to the late Tlala Doctor Masoeu
on 30 July 2020. The deceased is the father of the respondents.
[2]
The applicant alleges that, upon the death of her husband, the
respondents dissipated and derived
undue benefit from the estate of
her late husband.
Background
[3]
On 4 May 2022, the applicant launched an urgent application in which
she sought a
rule nisi
returnable 4 June 2022 wherein she
interdicted the respondents from dealing with the estate of the
deceased. The rule nisi was
extended to 28 July 2022 and the
judgement was handed down on 27 March 2023 where the
rule nisi
was partly amended and confirmed and was also partly dismissed. The
following was part of the order granted on 27 March 2023:
“
2.
(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: 5[…]) 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
.”
[4]
On 11 April 2023, the applicant launched an urgent contempt of court
order application in which
she sought the following order from the
court:
“
2.
That the First, Second and Third Respondents are in contempt of
paragraph 2(a) of the order of
this Court, granted on 27 March 2023,
under case number 2039/2022
.”
[5]
The urgent application became opposed and was postponed to 14 April
2023. It was further postponed
to 28 April 2023 for the filling of
opposing and replying affidavits. The following order was made by the
court pending the hearing
of the urgent application:
“
5.
The respondents undertake that:
5.1
They will desist from conducting any business of Ramasoeu Funeral
home and/or Ramasoeu Funeral Home,
and any other matters in relation
to the deceased estate of Tlala Doctor Masoeu, pending the outcome of
this application
.”
[6]
The contempt of the court order urgent application was heard on 25
May 2023 in which after having
heard the legal representatives of
both parties, the following order was granted:
1.
Point
in limine of the locus standi
is
dismissed with costs in the cause.
2.
Points
in limine
2 to 4 are granted with costs
in the cause
3.
Merits of the matter to proceed.
[7]
Upon granting of the order mentioned above, Adv Nhlapo-Merabe, the
counsel for the applicant,
requested the reasons for the judgment
only relation to paragraph 2 of the order. The merits could not be
heard and the judgement
was reserved.
POINT IN LIMINE
[8]
Second and Third
points in limine
: that the
confirmatory affidavits attached to the contempt of court application
do not comply with the Regulation 3 and 4 of the
Regulations
Governing the Administration of the Oath (the Regulations)
8.1
The respondents submitted that commissioning of the confirmatory
affidavit of Uyleta Claudine Nel-Marais
and Samuel Mokhotho is not in
terms of Regulations 3(1) and 4(1) of the Regulations. Regulations 1
and 2 set out the nature of
the oath or affirmation to be taken and
the form in which it is administered. The Regulations have been
promulgated in terms of
section 10 of the Justices of Peace and
Commissioners of Oath Act, Act 16 of 1963 (Act).
8.2
Section 3(1) and 4(1) of the Act provides that:
“
3(1)
The deponent shall sign the declaration
in
the presence of the Commissioner of Oaths
.
4(1)
Below the deponent’s signature or mark the commissioner of oath
shall certify that the deponent has
acknowledged that he knows and
understands the contents of the declaration and he shall state
the
manner, place and date of taking the declaration
.”
8.3
Bothe the confirmatory affidavits of Nel-Marais and Mokhotho reads as
follows:
“
this
affidavit has been sworn in to and signed before me at EXCELSIOR the
11 day of APRIL 2023 by the above-mentioned deponent….”
8.4
The Commissioner of Oaths that attended to the commissioning of the
confirmatory affidavits is a practicing
attorney of Bloemfontein by
the name of Munashe E.T Nyangani.
8.5
The respondents submitted that, the confirmatory affidavits do not
comply with Regulation 3(1) as the
affidavit was signed at Excelsior
whereas the Commissioner of Oaths was in Bloemfontein. The respondent
further submitted that
after the issue was raised in the opposing
affidavit the applicant could have made some means to correct the
signing of the confirmatory
affidavits for them to comply with
Regulation.
8.6
The applicant submitted in her heads of arguments that the deponents
in both affidavits have affirmed
that they know and understand the
contents of the affidavits and that the Commissioner of Oaths have
attested to both affidavits.
She further submitted that, the
affidavits were pre-signed and that they were to be attested and
commissioned in Excelsior where
Mr Mokhoto is based. Mr Mokhoto
presented himself in Bloemfontein and the parties simply omitted to
change the area in which they
were to be signed. I am of a view that,
the explanation given by the applicant does not make the affidavits
to comply with Regulation
3(1) and 4(1).
8.7
In the matter of
S v Kahn 1963(4) SA 897 (A) at 900C
the court
stated that it has the discretion to refuse or receive an affidavit
attested otherwise than in accordance with the Regulations
depending
upon whether substantial compliance with the regulations has been
proved or not.
8.8
In the case of
Cape Sheet Metal Works v JJ Calitz Builder
1981 (1)
SA 698
(O) at 699 A-B
the court held that the provisions of
Regulations 3 are not peremptory. In the case of
R v Sopete
1950(3)SA769(E) at 774F-G
referred to the court by the
respondents, the court said the following about the directory nature
of the regulations:
“
But
to say that the provisions are directory does not mean that all the
rules are treated as ‘wasted paper’, for they
are by
decisions already quoted treated as of great value and failure to
comply with them gives the court a discretion to treat
the affidavit
as of no value in proper cases
”.
8.9
The respondents also referred the court to the case of
Firstrand
Bank Limited v Briedenhann
2022 (5) SA 215
in which it was held
that:
“
The
language of Regulation 3(1) when read in the context of the
Regulations as a whole, suggests that the deponent is required to
append their signature to the declaration in
the
physical presence of proximity of the commissioner
.
This accords with the concern for place, in so far as the exercise of
the authority to administer an oath is concerned, as appears
from the
act. Regulations 2, 3 and 4 must be read as a whole since they
provide for the manner in which an oath or affirmation
is
administered. The process follows a logical a sequence which requires
the commissioner to satisfy themselves that the deponent
understands
the nature of the oath; administer it; obtain confirmation of the
taking of the oath by signature on the document and
thereafter, to
append their signature with details of place, area and designation.
These latter steps are to occur in the presence
of the commissioner.
It is apparent that the entire process is envisaged to occur in the
presence of the commissioner.
The
essential purpose of the Regulations is to provide assurance, to a
court receiving an affidavit, that the deponent, properly
identified
as the signatory, has taken an oath
.
The signature of the declaration in the presence of the commissioner
establishes a guarantee that the consequences of oath taken
are
understood and accepted.
In
my view, the plain meaning of the expression ‘in the presence
of’ within its context in regulation 3(1), requires
that the
deponent to an affidavit takes the oath and signs the declaration in
physical proximity to the commissioner
.”
(my emphasis)
8.10
The respondents further submitted in their heads of arguments that,
all the averments relating to Mr Mokhoto
and Ms Nel-Marais in the
applicant’s replying affidavit concerning to commissioning of
their affidavits amounts to hearsay.
The reason for the respondent’s
averment is that no confirmatory affidavit is annexed to the replying
affidavit to confirm
the averments as far as they relate to them. I
agree with the respondents’ submissions.
8.11 I
am of the view that the confirmatory affidavits of Mr Mokhoto and Ms
Nel-Marais do not comply with regulation
3(1) and 4(1) of the
Regulations and therefore does not amount to affidavits.
[9]
Fourth point
in limine
: Leave not granted to
file a supplementary affidavit.
9.1
The respondents submitted that, the applicant filed the supplementary
affidavit to the contempt of court
application without seeking leave
to file it in terms of Uniform Rules of Court 6(5)(e).
9.2
The respondents further submitted that, the applicant supplementary
affidavit filed without leave of
court is
pro non scripto
and
should be disregarded.
9.3
The applicant submitted that, the filling of the supplementary
affidavit was necessitated by the respondents’
being in
contempt of the court order granted on 13 April 2023. She further
submitted that the deviation from the Rules of Court
necessitated by
the respondent’s contempt of the Court order.
9.4
It is common cause between the parties that the applicant instituted
motion proceedings against the
respondents. The respondents opposed
the application and filed the answering affidavit. The applicant
filed the replying affidavit
in response to the answering affidavit.
[10]
Rule 6(1)(e) of the Uniform Rules of Court reads as follows:
“
(1)
Save where proceedings by way of petition are prescribed by law,
every application shall be brought
on notice of motion supported by
an affidavit as to the facts upon which the applicant relies for
relief.
(2)
…
(3)
…
(4)
…..
(5)
(a) to (c) ….
(d)
Any person opposing the grant of an order sought in the notice of
motion must-
(i)
….
(ii)
within fifteen days of notifying the applicant of his intention to
oppose the application, deliver
his answering affidavit, if any,
together with any relevant documents; and
(iii)
….
(e)
Within 10 days of the service upon him of the affidavit and documents
referred to in subparagraph
(ii) of paragraph (d) of subrule (5) the
applicant may deliver a replying affidavit.
The
court may in its discretion permit the filling of further affidavits
”
[11]
Rule 6(5)(e) clearly states that the Court has a discretion whether
to allow further affidavits or not. The
court could only exercise its
discretion only when an application to file further affidavits had
been launched.
[12] In
the unreported matter of
Ndlebe v Budget Insurance Limited
(7457/2017) [2019] ZAGPJT 320 (22 February 2019) (Ndlebe)
at
paragraph 7 it was held that:
“
It
is trite that there are normally three sets of affidavits in motion
proceedings. However, the Court has a wide discretion to
allow the
filing of further affidavits
. It
is upon the litigant who seeks to file a further affidavit to provide
an explanation to the satisfaction of the Court that
it was not
malicious in its endeavour, to file the further affidavit and that
the other party will not be prejudiced thereby
.”
[13] It
was held in
Hano Trading v JR 209 Investments 2013(1) SA 161 that:
“
[11]
Rule 6(5)(e) establishes clearly that the filing of further
affidavits is only permitted with the indulgence of
the court. A
court, as arbiter, has the sole discretion in this regard where there
is a good reason for doing so.
[12]
This court stated in James Brown & Hamer (Pty) ltd (Previously
named Gilbert Hamer & Co Ltd) v Simmons
NO 1963(4) SA 656 (A) at
660D-H that:
‘
It
is in the interest of the administration of justice that the well-
known and well established general rules regarding the number
of sets
and the proper sequence of affidavits in motion proceedings should
ordinarily be observed.
That is
not to say that those general rules must always be rigidly applied:
some flexibility, controlled by the presiding Judge
exercising his
discretion in relation to the facts of the case before him, must
necessarily also be permitted
……”
(my emphasis).
[13]
It was then later stated by Dlodlo J in Standard Bank of SA Ltd v
Sewpersadh and Another
2005 (4) SA 148
(C) in paras 12-13:
“
The
applicant is simply not allowed in law to take it upon himself and
[to] file an additional affidavit and put same on record
without even
serving the other party with the said affidavit…….
Clearly
a litigant who wished to file a further affidavit must make formal
application for leave to do so
.
It cannot simply slip the affidavit into the Court file (as it
appears to have been the case in the instant matter). I am of the
firm view that this affidavit falls to be regarded as pro non
scripto’”
[14] As
it has been mentioned in
Ndlebe
herein above, it is trite that
three sets of affidavits are allowed, i.e the supporting affidavit,
the answering affidavit and
the replying affidavit. It is further
trite that the applicant must stand and fall by his founding
affidavit. The party who seeks
to file further affidavit, must do so
by obtaining leave from the court. The Court has a sole discretion
whether to allow any further
affidavit or not.
[15] I
am therefore of a view that the supplementary affidavit filed by the
applicant falls to be regarded as
pro non scripto.
Costs
[16]
One of the point
in limine
have been dismissed and the
other 3 points
in limine
were granted. I am therefore of a
view that no order as to costs to any of the parties should be made.
Order
[17] I
consequently make the following order was made:
1
.
Point
in limine of the locus standi
is dismissed with
costs in the cause.
2.
Points in limine
2 and 3 are granted with costs in the cause
3.
Merits of the matter to proceed.
E. MAHLANGU AJ
Counsel
for Applicant:
Adv
K Nhlapo-Marabe
Attorneys
for Applicant:
UC
Nel-Marais
Lovius
Block Attorneys
31
First Avenue, Westdene
Bloemfontein
Ref:
U Nel-Marais/at/LM0213
Counsel
for Respondents:
Adv
H.J Stander
Attorneys
for the Respondents:
Stander&
Associates
29
President Steyn Avenue Westdene
Bloemfontein
Email:
chantelle@stanprok.co.za
Ref:
HJS/GM0833