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[2023] ZAFSHC 298
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Pretorius and Another v Malan and Others (1503/2023) [2023] ZAFSHC 298 (31 July 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 No: 1503/2023
REPORTABLE: NO
OF
INTEREST TO OTHER JUDGES: NO
CIRCULATE TO MAGISTRATES: NO
In
the matter between:
YVONNE
PRETORIUS
1
st
Applicant
RACHEL
CHARLOTTE VAN NIEKERK
2
nd
Applicant
and
HILDA
MALAN
1
st
Respondent
GERHARD
ROBIN KOTZE N.O.
2
nd
Respondent
MASTER
OF THE HIGH COURT BLOEMFONTEIN
3rd
Respondent
ABSA
BANK
4
th
Respondent
HEARD
ON:
15 JUNE 2023
JUDGMENT
BY
:
MHLAMBI, J
DELIVERED
ON:
This judgment
was handed down electronically by circulation to the parties’
legal representatives by email and released to
SAFLI. The date and
time for the hand-down are deemed to be 14h30 on 31 July 2023
[1] The
relief sought in this application is for the court to grant an order
that the written will
by the late Rossouw Gouws dated 17 March 2020
is declared “
to have been the intended last will and
testament, of the deceased Rossouw Gouws”.
[2] The
application is opposed by the first respondent who alleged that the
deceased made a further
will dated 28 April 2022 which revoked all
previous wills.
[3] At
the inception of the hearing, the applicant’s counsel handed up
a draft order entreating
the court to refer the matter to oral
evidence on the issue of whether the second will dated 28 April 2022
is the last will and
testament of the deceased. This approach was
vehemently opposed by the first respondent. The first respondent
contended that the
real question to be asked was whether the second
will constituted a valid will and, if it did, whether it revoked all
previous
wills. According to the first respondent, the application
should be dismissed with costs as the applicants should have
instituted
an action instead of approaching the court by way of
motion.
[4] The
applicants stated in the founding affidavit that the deceased died on
18 April 2022, having
signed a last will and testament in the
presence of two witnesses on/or about 17 March 2021. After the
deceased’s demise,
the first respondent produced and presented
a second will that was signed on 28 April 2022 whereupon the third
respondent appointed
the second respondent as the executor of the
deceased estate. The applicants alleged that both the witnesses to
the second will,
Felicia Christine Blom and Martin Du Bryn, confirmed
that it was not valid as they did not sign it in front of the
deceased but
separately. This will was placed in between other
documents and presented to the deceased who signed it unaware that he
was doing
so.
[5] The
first respondent alleged that the fourth respondent was appointed as
the executor of the deceased
estate on 13 October 2022. On realising
that the estate was reported twice, the third respondent appointed
the second respondent
as the executor as he was nominated as such in
terms of the second will. The letters of executorship issued to the
fourth respondent
were revoked. According to the first respondent,
the applicants have not sought an order declaring the second will to
be invalid
and void. It was, therefore, valid and revoked the
previous will.
[6]
The first respondent denied that she promised Mrs Blom and Mr Du Bryn
a piece of land in return
for signing the April 2022 will as
witnesses. She admitted that the witnesses and their families stayed
at her residence situated
at 3[…] R[…], Bloemdal,
Bloemfontein from January 22 until 24 December 2022. On 31 January
2023, the applicant’s
attorney addressed a letter to her
attorneys accusing her of influencing the witnesses to sign the
second will in the absence of
the deceased on the promise of a piece
of land. At her instance, the administration of the estate was stayed
until 7 April 2023
pending the first applicant’s application or
summons, based on the first respondent’s alleged fraud and/or
the submission
of a null and void will for administration purposes as
per the letter dated 7 February 2023 addressed to the applicant’s
attorneys.
[1]
The application had not been launched at this stage and the
applicants were aware of the dispute.
[2]
[7]
Before launching the application, the applicants stated that they
investigated the validity of
the second will, which led to the two
witnesses deposing to affidavits that pronounced that the second will
was signed by them
in the presence of the deceased at his residence.
The first respondent was also present. The deceased was of sound mind
as he signed
the will in their presence. The contents of the
witnesses’ affidavits were clearly contradictory to the version
raised in
the founding papers.
[3]
According to the first respondent, the applicants were aware that
they did not disclose all the relevant facts to the court and
secondly were aware of the contradictory versions put up by Mrs Blom
and Mr Du Bryn prior to the institution of the application.
[4]
Furthermore, on 10 February 2023 the applicants were aware of the
factual dispute regarding the validity of the second will as
its
validity was already denied in February 2023.
[5]
[8]
In their reply, the applicants stated that
the failure to pursue the matter further was their consideration
that
it had come to an end as the witnesses confirmed in their affidavits
in September 2022 that the second will was valid.
[6]
Three months later, in December 2022, the witnesses contacted the
first applicant voluntarily and advised her that they had lied
in
their affidavits. They did not sign the second will in front of the
deceased.
[7]
The applicants did not foresee a factual dispute as it did not lie
with the affidavits deposed to by the witnesses. The issue for
determination was a crisp one: if the witnesses signed voluntarily in
the presence of the deceased, the April will was valid, if
not, the
March will was valid.
[8]
Should the court be of the view that the matter cannot be determined
on the papers, then the matter should be referred to oral
evidence in
the interests of sound administration of justice.
[9]
[9] Rule 6(5)(g) of the
Uniform Rules of Court provides that where an application cannot
properly be decided on affidavit,
the court may dismiss the
application or make such order as it deems fit with a view to
ensuring a just and expeditious decision.
In particular, but without
affecting the generality of the aforegoing, it may direct that oral
evidence be heard on specified issues
with a view to resolving any
dispute of fact and to that end may order any deponent to appear
personally or grant leave for such
deponent or any other person to be
subpoenaed to appear and be examined and cross-examined as a witness
or it may refer the matter
to trial with appropriate directions as to
pleadings or definition of issues, or otherwise.
[10]
The subrule is of wide import and empowers the court, where an
application cannot properly be decided on affidavit, to make
such
order as it deems fit with a view to ensuring a just and expeditious
decision. It is undesirable to attempt to settle disputes
of fact
solely on probabilities disclosed in contradictory affidavits as
opposed to
viva
voce
evidence.
[10]
As a general rule an application for the hearing of oral evidence
must be made
in
limine
and not once it becomes clear that the applicant is failing to
convince the court on the papers or on appeal.
[11]
Motion proceedings, unless concerned with interim relief, are all
about the resolution of legal issues based on common cause
facts.
Unless the circumstances are special, motion procedures cannot be
used to resolve factual issues because they are not designed
to
determine probabilities.
[11]
The court should adopt a process that is best calculated to ensure
that justice is done with the least delay on the merits of the
case.
[14] In this matter,
the dispute of fact is neither massive nor complicated and its
resolution is dependent upon
the evidence of the two witnesses to the
second will. It is therefore not advisable to dismiss the application
but to refer it
to oral evidence. This, in my view, ensures that
justice is done with the least delay on the merits of the case. It
would therefore
be proper that the two witnesses to the second will
be subpoenaed to appear and be examined and cross-examined as
witnesses. I
therefore conclude that the application to refer this
matter to oral evidence on the disputed fact of the validity of the
second
will should be allowed.
[15] The first respondent presented a
strong argument that she was entitled to an award for costs. I am
however not inclined to
grant such an order and am of the view that
costs should stand over for later adjudication.
[16] For these reasons, the following
order is made:
ORDER:
1.
The matter is referred to oral evidence for
the resolution of the dispute surrounding the validity of the will
signed on 28 April
2022.
2.
The following witnesses, Ms Felicia
Christine Blom and Mr Martin du Bruyn, are ordered to personally
appear in this court to be
examined and cross-examined as witnesses
on a date to be determined in terms of paragraph 3 below.
3.
The applicants, in consultation with the
first respondent, must arrange and apply to the registrar for a date
of hearing of this
matter and inform the two witnesses accordingly.
Alternatively, the applicants must subpoena the said witnesses to
appear to be
examined and cross-examined as witnesses.
4.
At the hearing of the oral evidence, the
affidavits will stand as evidence.
5.
Costs to stand over for later
adjudication.
MHLAMBI, J
On
behalf of the Applicant:
Adv.
C Ploos Van Amstel
Instructed
by:
Lovius
Block Attorneys
31
First Street
Westdene
Bloemfontein
On
behalf of the respondent:
Adv.
CD Pienaar
Instructed
by:
Maree
& Partners
46
Donald Murray Avenue
Park
West
Bloemfontein
[1]
Page
104 of the Indexed Papers.
[2]
Paragraph
35 of the Answering affidavit.
[3]
Paragraph
36.8 of the Answering Affidavit.
[4]
Paragraph
39 of the Answering Affidavit.
[5]
Paragraph
40 of the Answering Affidavit.
[6]
Paragraph
14 of the Replying Affidavit.
[7]
Paragraphs
15 and 18 of the Replying Affidavit.
[8]
Paragraph
52 of the Replying Affidavit.
[9]
Paragraph
51 of the Replying Affidavit.
[10]
Room
Hire CO (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155
(T) at 1162.
[11]
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) paras
26-27.