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[2023] ZAFSHC 384
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M.M.M v Mhlekwa and Others (2029/2022) [2023] ZAFSHC 384 (9 October 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 2092/2022
In
the matter of:
M[...]
M[...] M[...]
Applicant
And
TLALENG
ALINA MHLEKWA
First
Respondent
THE
MASTER OF THE FREE STATE HIGH
COURT
BLOEMFONTEIN
Second
Respondent
K[...]
C[...] M[...]
Third
Respondent
K[...]
G[...] M[...]
Fourth
Respondent
CORAM:
NAIDOO, J
HEARD
ON:
15 JUNE 2023
DELIVERED
ON: 9 OCTOBER 2023
JUDGMENT
[1]
This is an application for,
inter alia
, declaratory orders in
the following terms:
1.1
The applicant was involved in a permanent heterosexual
life
partnership with the late J[...] M[...] M[...] (the deceased);
1.2
The applicant is entitled to benefit from the estate
of the deceased
in terms of the Intestate Succession Act;
1.3
The applicant is entitled to claim maintenance from the
estate of the
deceased in terms of the Maintenance of Surviving Spouses Act;
1.4
The finalisation of the administration of the estate
of the deceased
by the first respondent be held in abeyance pending finalisation of
this application;
1.5
Costs to be paid out of the proceeds of the estate.
Adv RJ Nkhahle
represented the applicant, while AdvDM Gruwer represented the first,
third and fourth respondents.
[2]
The applicant’s case briefly is that she and the deceased were
not married to
each other but were in a heterosexual life partnership
and as such she was entitled to inherit from his estate. The deceased
had
three biological sons at the date of his death, the youngest of
whom is the deceased’s son, K[...] M[...], with the applicant.
He was a minor at the time that this application was launched, while
the two other sons were from two other women, and were adults
at the
time this application was launched. The applicant initially cited
only the first and second respondents in the application.
[3]
The first respondent, who is the executrix of the deceased’s
estate, raised
in her Answering Affidavit, a number of points
in
limine
, the first of which was the non-joinder of the deceased’s
sons, who were his descendants. The applicant denied that it was
necessary for her to have joined the deceased’s sons as parties
to these proceedings, contending that the first respondent’s
assertion that they have a direct and substantial interest in the
outcome is unsustainable. The matter was heard on 25 August 2022
by
my brother Molitsoane J, who comprehensively set out the background
to this matter. His ruling was delivered on 15 September
2022. He
considered only the first point
in limine
of non-joinder. He
undertook an analysis of the provisions of Uniform Rule 10 and the
requirements for joinder of interested parties
in legal proceedings,
which included discussing the relevant cases in support of the
settled law that persons with a direct and
substantial interest in
the proceedings should be joined thereto. A direct and substantial
interest has been held to be a legal
interest in the subject matter
of the case which could be prejudicially affected by the order of the
court. [
Standard Bank of SA Ltd v Swartland Municipality and
Others 2011(5) SA 257 (SCA)
]
[4]
Molitsoane J’s concluding remarks, at para 11, before he
delivered his order
were the following:
“
While the nub of
this application is the declaration whether the applicant was in a
permanent heterosexual partnership with the
deceased during his
lifetime. The other prayers follow from the determination of the
declaration of the heterosexual life partnership.
The interests that
the biological children of the deceased have in the outcome of this
case relate to the right to inherit from
the estate of their father.
It cannot simply be said that such a right is financial in nature.
The right to inherit is a legal
interest in the subject matter of the
litigation which interest may be prejudicially affected by the
judgment this court may hand
down. Should this court find that the
applicant was in a heterosexual life partnership with the applicant
(sic), it follows that
whatever the biological children were to
inherit from the estate of their father may be affected. The relief
sought clearly affects
their right to succession. It is axiomatic
that they ought to have been joined in these proceedings. In my view
failure to join
them is fatal to the applicant’s case. It is
unnecessary to deal with the other issues raised in this application
in view
of the order I make...”
[5]
The court made the following order:
“
1.
The matter is stayed for a period of three months calculated from the
date of this order to enable the applicant
to join the biological
children of the Late J[...] M[...] M[...] in the main application,
whose rights may be affected by the relief
sought by the applicant;
2.
Costs shall be costs in the main application”
3.
In the event of the joinder referred to in 1 above not being
effected, the respondents may approach this
court on the same papers
duly amplified for the dismissal of the main application with costs
[6]
Subsequent to this order the applicant brought an application to join
only the two
adult sons of the deceased, the third and fourth
respondents. Her reasoning for not joining her minor son as a party
is that he
is under her care and she will take care of his interests,
therefore it is unnecessary to join him as a party. This is in spite
of the court order of 15 September 2022 directing that the biological
children of the deceased be joined as parties. The applicant
persisted in this view, even after it was pointed out by the first
respondent that the minor child K[...]’s interests would
not be
properly protected by the applicant, as the relief she seeks is
prejudicial to K[...]’s right of inheritance.
One of the
initial points
in limine
raised by the first respondent is
that the applicant failed to appoint a
curator ad litem
to act
for and in the interests of the minor child.
[7]
After the third and fourth respondents were joined to the
proceedings, they filed an opposing
affidavit to the applicant’s
Founding Affidavit in the main application, which was deposed to by
the fourth respondent. In
essence they agreed with the Answering
Affidavit by the first respondent. The fourth respondent alleges that
the applicant is acting
mala fide
in that she attempted to
obtain a court order, without the knowledge of the deceased’s
descendants. He further denies that
the applicant was in a permanent
heterosexual life partnership with the deceased, or that she moved in
with the deceased shortly
after the death of the deceased’s
wife, Irene, who was the fourth respondent’s mother. He avers
that his father would
have observed the traditional mourning period
after his mother’s death
[8]
The fourth respondent, further alleges that while there was a
relationship between the deceased
and the applicant, it was not one
akin to that of husband and wife, nor was it for the period
(seventeen years) which the applicant
alleges. The relationship also
lacked the element of reciprocal support, as the applicant often
abandoned the deceased, especially
when he became ill just before his
death. The applicant did not attend the funeral of the deceased. The
deceased also did not have
an exclusive relationship with the
applicant, but had relationships with several other women, which the
applicant was aware of.
In addition, the deceased’s brother,
Wilson, was also involved in a romantic relationship with the
applicant at the time
she was in a relationship with the
deceased.
[9]
The fourth respondent also denied that the applicant looked after him
subsequent to the death
of his mother and alleges that it was his
father and his uncle Wilson who took care of him. He also did not
stay with his maternal
grandmother as alleged by the applicant. On
this point I mention that the applicant, in her Replying Affidavit
alleges that she
did indeed take care of the fourth respondent and
attached a confirmatory affidavit by the brother of the late Irene
(fourth respondent’s
mother), confirming that he lived with the
applicant and the deceased when she took care of the fourth
respondent. This is in direct
conflict with the fourth respondent’s
allegation that it was his paternal uncle, Wilson, that took care of
him. In response
to the court’s question, Mr Nkhahle conceded
that it would have carried more weight had the applicant attached
affidavits
from her family and that of the deceased in support of her
case. She, of course does not explain why this was not done.
[10]
In addition, the fourth respondent denies strongly that the applicant
was involved in any of the business
activities of the deceased, that
she was involved in the expansion of his businesses or the building
of his estate, alleging that
his uncle Wilson, ran the businesses
with the deceased. Another important aspect raised by the fourth
respondent is that the applicant
was never introduced to the
deceased’s family, who did not know her. The applicant’s
family was likewise unknown to
the deceased’s family as they
had never been introduced.
[11]
The parties prepared Heads of Argument on the merits of the matter
and in fact argued the merits as well.
In my view, it is unnecessary
to traverse the merits, as important preliminary issues militate
against dealing with the merits
at this stage. The most important of
these is the order of Moilitsoane J, directing that the “biological
children”
of the deceased were to be joined in these
proceedings. There was no specific exclusion of K[...] from that
order. The applicant’s
interpretation of the order to mean that
the court referred only to the biological children born of other
women and not her minor
son is illogical and misplaced. So too is the
applicant’s denial that K[...]’s interests will not be
prejudiced by
this application. I am in agreement with the remarks of
Molitsoane J in this regard, in the extract from his judgment, which
I
cited earlier.
[12]
K[...] was a minor at the time the application was launched and was
still so when the matter
was heard. It was necessary not only to join
him to these proceedings but to appoint an independent person in the
form of a
curator ad litem
to ensure that his interests were
properly protected. The applicant’s failure to do so on the
basis of the misguided notion
that she as his guardian could
adequately protect his interests, is fatal to her application. The
fourth respondent raised the
valid point that there is no indication
that K[...] is even aware of these proceedings. In addition,
the disputes of fact
raised by the fourth respondent go to the very
heart of the applicant’s case, which case she did not
substantiate in any
way. Such disputes are material and cannot be
resolved on the papers. The applicant ought to have realised this and
taken steps
not to proceed further and incur further costs in this
matter. Applying the test in the case of Plascon Evans, I find that
material
disputes of fact have arisen, which prevent this court from
making a final order. The applicant would best be served if she had
proceeded by way of action proceedings instead of Motion proceedings.
[13]
In the circumstances I make the following order:
The application is
dismissed with costs, such costs to be paid by the applicant
S
NAIDOO J
On
Behalf of the Applicants:
Adv
RJ Nkhahle
Instructed
by:
NW
Phalatsi & Partners
2
nd
Floor Metroploitan Building
96
Henry Street
Bloemfontein
(Ref:
MBA1/0001)
On
Behalf of the 1
st
, 3
rd
&
4
th
Respondents:
Adv
DM Grewar
Instructed
by:
Vosloo
Attorneys
22
Brandwag Park
82
McHardy Avenue
Brandwag
Bloemfontein