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[2024] ZAFSHC 94
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M.E.M and Others v K.M N.O. and Others (5111/2023) [2024] ZAFSHC 94 (27 March 2024)
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
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Application
no: 5111/2023
In
the matter between:
M[…]
E[…] M[…]
1
st
Applicant
K[…]
K[…]
2
nd
Applicant
O[…]
M[…]
3
rd
Applicant
T[…]
T[…]
4
th
Applicant
S[…]
M[…]
5
th
Applicant
and
K[…]
M[…] N.O.
1
st
Respondent
[In
her representative capacity as Executrix of the
Late
Estate of CT M[…]: Estate Number 2[…]]
THE
MASTER OF THE FREE STATE
HIGH
COURT, BLOEMFONTEIN
2
nd
Respondent
MOLEFI
THOABALA INC
3
rd
Respondent
OLD
MUTUAL LTD
4
th
Respondent
SANLAM
5
th
Respondent
CORAM:
VAN
ZYL, J
HEARD
ON:
6 OCTOBER 2023
DELIVERED
ON:
27
MARCH 2024
[1]
This matter served before me as an urgent application in terms
whereof the following
relief is being sought in addition to
condonation:
“
2.
A rule
nisi
is hereby
issued calling upon the respondents to show cause, if any …
why an order in the following terms should not be made
final, that:
2.1
The First Respondent and the Third Respondent as the agent of the
First Respondent
are interdicted from performing any functions
empowered by the Letter of Executorship issued by the Second
Respondent for the Late
Estate of C[…] T M[…]:
Estate Number 2[…], pending finalisation of the review
application of the Second
Respondent’s decision to appoint the
First Respondent as executrix to be brought by the Applicants;
2.2
The review application for what the Applicants’ term an
unlawful appointment
of the First Respondent by the Second Respondent
be filed five (5) days after the grant of the
interim
order in
this matter.”
[2]
During the hearing of oral arguments it became evident that the
applicants are seeking
the aforesaid relief to serve as an
interim
interdict with immediate effect, pending the finalisation of this
application, which relief was, due to an oversight, not included
in
the notice of motion. I consequently consider this to be part
of the relief which is being sought.
Background:
[3]
The first applicant, who is the deponent to the founding affidavit,
alleges that she
is the customary law wife of the late C[…]
T[…] M[…] (“the deceased”). According
to the
first applicant she is bringing the application on her own
behalf, as well as on behalf of three of the deceased’s
children,
being the second, third and fourth applicants, and also on
behalf of the deceased’s mother, being the fifth applicant.
[4]
The first respondent is the alleged firstborn of the deceased, cited
in her capacity
as executrix of the deceased’s estate.
The third respondent is a company of attorneys who was appointed by
the first
respondent to assist her as her agent in the administration
of the deceased’s estate. The fourth and fifth
respondents
are public companies, cited in their capacities as
institutions wherein the deceased allegedly held policies,
investments, etc.
[5]
The alleged status of the first applicant as being the customary wife
of the deceased,
is being disputed by the first and third
respondents. The paternity of the second, third and fourth
applicants are also being
disputed. The applicants stance is
that the first respondent, on the other hand, is also to undergo a
paternity test.
[6]
According to the applicant she and the deceased had been together as
partners since
2011. In September 2022 the deceased proposed to her.
The lobola processes proceeded in terms of the Sesotho and Setswana
cultures.
[7]
On 17 December 2022, upon conclusion of all the cultural requirements
for a customary
marriage, the applicant and the deceased celebrated
their union with their respective families. Affidavits of the
mother
of the deceased, the fifth applicant, and the brother of the
deceased, Mr B[…] M[…], are attached to the founding
affidavit, in which affidavits the conclusion of a valid customary
law marriage between the first applicant and the deceased, which
was
celebrated on 17 December 2022, are being confirmed.
[8]
According to the first applicant, the first respondent was not part
of the celebration
of the wedding, since she and the deceased had a
bad fallout prior to it and they were not on speaking terms at the
time and had
become estranged.
[9]
It is the first applicant’s case that she and the deceased
intended registering
their marriage with the Department of Home
Affairs within three months after the celebration thereof, as is
required by law. Sadly,
the first applicant`s mother passed away on 4
February 2023, confirmation of which is attached to the founding
affidavit in the
form of a death certificate. The first
applicant did not take her mother’s passing well. In
March 2023, when
the first applicant was in a better mental state,
the deceased’s health took a turn for the worst and he was
hospitalised
until his passing on 20 April 2023.
[10]
Due to the aforesaid circumstances, the deceased and the first
applicant never registered their
marriage. In May 2023, the
first applicant initiated proceedings to have her customary marriage
registered in the Regional
Court, Bloemfontein, under case number
Free State/BFN/RC/696/2023, with the support of the deceased’s
family. The case
is still pending. The first respondent
brought an application to be joined in those proceedings and is
opposing the application
for the said registration. A copy of
the notice of motion and founding affidavit were attached to the
answering affidavit
by the 1
st
– 3
rd
respondents.
[11]
When the deceased was hospitalised, the first applicant informed the
family, including the first
respondent, thereof. The first
respondent visited the deceased at hospital, but when his condition
deteriorated, the first
respondent, according to the first applicant,
started behaving strangely by attempting to limit access to the
deceased and making
enquiries about his policies and pension funds.
[12]
According to the applicant it came to her attention during May 2023
that the first respondent
had been appointed as the Executrix of the
deceased’s estate. She was perplexed as to how it could
have occurred.
In
limine
:
[13]
The first and third respondents raised two points
in liminé
,
namely in respect of urgency and secondly, in respect of
locus
standi.
[14]
I will deal first with the issue of urgency.
Urgency:
[15]
According to the first and third respondents the applicants failed to
make out a proper case
for purposes of urgency and should any urgency
be considered to have been established, such urgency is self-created.
[16]
It is trite that a case for urgency needs to be made out in the
founding affidavit. It is consequently
necessary to consider the
events as they unfolded since the time the first applicant became
aware of the first respondent’s
appointment as Executrix, as
set out by the first applicant in her founding affidavit. The
applicants attempted to supplement their
grounds of urgency in their
replying affidavit, which is not allowed.
[17]
The first applicant does not indicate when in May 2023 the
appointment came to her knowledge.
However, the first applicant
states that upon learning of the said appointment, she engaged the
fifth applicant and the deceased’s
brother in May 2023.
According to her they were as perplexed as she was. The
deceased’s children were then engaged.
They are not the
biological children of the first applicant. They are the
second, third and fourth applicants and a 16-year-old
minor, who is
not presently before court. Upon engaging the children, they
were informed by them that on 1 May 2023, a day
after the deceased’s
funeral, the first respondent invited all the children out for lunch
under the guise of getting to know
each other better since it was the
first time that some of them met during that stage. The second
to fourth applicants relayed
how the first respondent stated that she
needs them to sign documentation which will allow her to safeguard
their interest in the
estate (including the interest of the minor
child who was allegedly made to sign without the assistance of her
guardian).
Three affidavits of the second, third and fourth
respondents in which they confirm the incident, are attached to the
founding affidavit.
The affidavit of the third applicant is the
most comprehensive and reads as follows:
“…
on
the 01/05/23 on Monday after the funeral, K[…] M[…]
invited me to lunch with the other siblings namely P[…]
and
T[…] for us to get to know each other better. At Spur
Steak Ranch, B[…] S[…] who is the fiancé
of K[…]
M[…], came late at the restaurant with a document which he
explained is a document that gives him authority
to check what we as
the children of the deceased are entitled to. We all agreed
because we had no reason not to as he is
a lawyer by profession.
I later found out that K[…] and B[…] excluded all
children from being beneficiaries
and that is why I declare that I
did not give executorship to them because we were manipulated for us
to agree and sign the document
that B[…] brought on that day.”
[18]
Armed with the aforesaid information, the first applicant approached
the applicants’ attorney
of record, who made an enquiry from
the second respondent (“the Master”). The enquiry
revealed that the first
respondent reported the deceased’s
death on 3 May 2023 and the Letters of Executorship was issued on 4
May 2023. In
the Death Notice the first respondent cited
herself as the only child of the deceased and further stated that the
deceased was
single. She did, however, indicate the fifth
applicant to be the mother of the deceased.
[19]
The applicants’ attorney of record objected to the appointment
of the first respondent
as executrix since, according to the
applicants, the appointment was based on misinformation. The
letter addressed to the
Master is dated 23 May 2023 and
inter alia
stated the following:
“
3.
The above estate was reported at your office at the beginning of May
2023 by K[…] M[…], who claims
to be the child and
beneficiary of the deceased and that she has been issued with a
Letter of Executorship 2[…]. According
to information
submitted to your office the executor indicated she is the sole
beneficiary of the deceased and that the deceased
never married …
However, there is a
customary wife, who is in the process of registering the customary
marriage with the Department of Home Affairs
and other 5 (five)
children who did not nominate the heir to be an executor, therefore
we implore your good selves to retract withdraw
the letter of
executorship to allow all the beneficiaries to partake in the
process.
4.
We will appreciate if you can issue us with the withdrawal letter as
soon as possible,
because she has already submitted claims on
insurance policies of the deceased
and my clients were contacted
in that regard.” (My emphasis)
[20]
The letter was received by the Master’s office on 24 May 2023.
However, it was already
a month later, only on 23 June 2023, that the
Master addressed a letter to the third respondent, advising it of the
complaint which
had been lodged and afforded the third respondent a
period of seven days to reply.
[21]
On 3 July 2023 the third respondent, under the hand of B[…]
S[…] (the fiancé
of the first respondent) from the
third respondent, responded to the Master stating that seven days are
“
a deviation from what we are accustomed to when dealing
with your office
” and indicated that they will reply within
21 working days. It was further stated in the letter that
“
there are certain anomalies in this complaint
”
and further “
that the estate is engaging in pending
litigation that will have a material bearing on this complaint
amongst other things
”.
[22]
According to the first applicant, the third respondent would have, on
the basis of his letter,
replied by 24 July 2023. However, this
date would actually have been closer to 3 August 2023, since Mr S[…]
of the
third respondent indicated in his letter that he will reply
within 21 “
working days
”. Be that as it may,
at the time of the signing of the founding affidavit, 27 September
2023, to the applicants’
knowledge at the time no response had
yet been forthcoming from the third respondent (via the Master).
[23]
It has now become evident from the answering affidavit that the third
respondent indeed reacted
to the letter of the Master regarding the
complaint by the applicants, which response was by means of a letter
dated 25 August
2023, addressed to the Master. According to the
first and third respondents the said letter had apparently been
forwarded
by the Master to the applicants’ attorney of record,
but for some unknown reason the applicants clearly do not have any
knowledge
of the said letter.
[24]
However, it is common cause that the applicants received a letter,
dated 21 July 2023, from Mr
S[…] of the the third respondent
addressed to the applicants’ attorney of record. A copy
of the said letter
is attached to the founding affidavit as annexure
“FA14”. Although the said letter was not a response
to the
complaint as such, reference is made to the complaint,
averring that by means of the complaint the first and third
respondents
became aware of the first applicant’s intention to
apply for the registration of the alleged customary marriage.
In
the said letter the applicants’ attorney of record was
advised that the first and third respondents will be opposing the
application for registration of a customary marriage, that they are
in the process of finalising a High Court application to accept
a
particular document as the Last Will and Testament of the deceased
and a demand was made that the applicants and other family
members
are to allow the first and third respondents to take control and
possession of all the deceased’s assets which, at
that stage,
were in the possession or control of the applicants and other family
members.
[25]
In my view, considering the contents of the letter of 21 July 2023,
it must have been evident
to the applicants at that stage already
that the first and third respondents were intending to continue with
the administration
of the estate despite the pending complaint lodged
by the applicants. Despite this, the applicants took no further steps
other
than continue waiting for correspondence which was not
forthcoming.
[26]
In addition, annexure “FA13” to the founding affidavit
reflects an e-mail, dated
22 August 2023, which was sent by the
Master to the applicants’ attorney of record wherein he advised
the said attorney that
he forwarded the complaint to the executor’s
agent for comment. The Master furthermore stated the following:
“
Kindly be advised
the Master cannot and does not withdraw an appointment letter based
on the fact that the (
sic
)
is an object (
sic
)
lodge (
sic
). We
have to provide an opportunity to respond to the other party i.e.
hear the other side based on the objection.
The Master has again
requested the executor to elaborate on his response with regard to
your complaint.
We are awaiting same form
the executor.”
[27]
Despite having been advised that the Master was not to withdraw the
appointment of the Executrix
on the mere existence of the complaint,
the applicants still failed to take remedial action.
[28]
The applicants’ attorney of record requested the Master to
provide them with timelines
as to when he anticipate receiving the
response from the first and third respondents, whereupon the Master
responded on 23 August
2023 by means of an e-mail that he provided
the third respondent with (an additional) seven working days to
reply, calculated from
18 August 2023.
[29]
On 30 August 2023 the applicants’ attorney of record addressed
a reminder e-mail to the
Master. This e-mail reads as follows:
“
1.
The above matter together with your e-mail dated 23 August 2023
refers.
2.
As per your e-mail, you advised that the Executor herein was given
seven (7)
days from the 18
th
August 2023 to elaborate on
this reply.
3.
It is common cause that today was the last day for the Executor to
reply and
you undertook to inform us accordingly.
4.
We hereby confirm that up to this point, no response has been
forwarded to us.
5.
As a result thereof, we request that the Executor herein be removed
as per our
objection dated 23
rd
May 2023. We trust
the above is in order and looking forward to your favourable
response.”
[30]
Despite the long time period which had already lapsed by then from 23
May 2023, alternatively
from 21 July 2023, alternatively from 22
August 2023, and despite the fact that no response was forthcoming,
on the applicants’
version, from either the first and third
respondents or the Master, the applicants failed to take any steps in
an attempt to remedy
the situation. Not only did they not launch an
interdict application at that stage, but they also failed to make use
of their alternative
remedies, such as an application to compel the
Master and/or a review application in respect of the Master’s
decision to
have appointed the first respondent as Executrix. Had
they instituted a review application by then already, it would, in
all probability
would have been finalised by the time the present
application was launched.
[31]
Ms Ngubeni, who appeared on behalf of the applicants, relied in her
oral arguments on the principles
enunciated in
Nelson Mandela
Metropolitan Municipality & Others v Greyvenouw CC & Others
2004 (2) SA 81
(SE) at para [34]:
“
In this case, the
first applicant did not drag its feet. It undertook efforts to
resolve the problem that it had found at
Crazy Zebra by notifying the
owners of their alleged non-compliance with the law, by attending a
meeting in an effort to resolve
the problem and when that failed, by
requiring an undertaking. When that was not forthcoming, it
investigated further so
that it had evidence of the level of noise
emanating from the Crazy Zebra. In my view it approached its
statutory duty of
safeguarding the rights and interests of
rate-payers in a responsible manner by seeking to persuade the
respondents to comply and
only then approaching the Court for
relief. In these circumstances, it cannot be said that the
first applicant has been dilatory
in bringing the application.
There is consequently no merit in this point.”
[32]
Ms Ngubeni also referred to the judgment of
South African
Informal Traders Forum & Others v City of Johannesburg &
Others
2014 (4) SA 371
(CC) at paras [35] to [38], in which
judgment the aforesaid principles were confirmed and applied.
[33]
However, in the very same
Greyvenouw
-judgment referred
to above, the court also referred to the judgment which is considered
to be the
locus classicus
on self-created urgency, namely
Schweizer Reneke Vleis (Mkpy) (Edms) Bpk v Minister van Landbou
& Andere
1971 (1) PH F11 (T) where the following was
stated at F11 – 12:
“
Volgens die
gegewens voor die Hof wil dit vir my voorkom dat die applikant
alreeds vir meer as ‘n maand weet van die toedrag
van sake
waarteen daar nou beswaar gemaak word. Die aangeleentheid het
slegs dringend geword omdat die applikant getalm het
en omdat die
tweede respondent, soos die applikant lankal geweet het, of moes
geweet het, van die besigheid in Schweizer-Reneke
geopen het.
Die applikant mag gewag het vir inligting van die eerste respondent
soos in die skrywe aangevra maar dit was
geensins nodig vir die
doeleindes van hierdie aansoek, wat op die nie-nakoming van die
audi
alteram partem
-reël gebaseer is, om so
lank te wag om die Hof te nader nie. Al hierdie omstandighede
inaggenome is ek nie tevrede dat
die applikant voldoende gronde
aangevoer het waarom die Hof op hierdie stadium as a saak van
dringendheid moet ingryp nie.
Ek is dus, in omstandighede, nie
bereid om af te sien van die gewone voorskrifte van Reël 6.”
[34]
In
Tukela
v Minister of Public Works
(P578/17)
[2017] ZALCPE 29 (19 December 2017) the Court referred to the
aforesaid
Schweizer
Reneke Vleis
-judgment
and held as follows at paras [14] – [15]:
“
[14]
It is trite that an Applicant cannot create his or her own urgency by
delaying bringing an application. This Court will not
come to the
assistance of an applicant who has delayed approaching the Court. See
National Police Services Union & Others v
National Negotiating Forum & Others
(1999) 20 ILJ 1081 (LC) at 1092 paragraph [39] where Van Niekerk, AJ
(as he then was) stated the following:
‘
The
latitude extended to parties to dispense with the rules of this court
in circumstances of urgency is an integral part of a balance
that the
rules attempt to strike between time-limits that afford parties a
considered opportunity to place their respective cases
before the
court and a recognition that in some instances, the application of
the prescribed time-limits or any time-limits at
all, might occasion
injustice. For that reason, rule 8 permits a departure from the
provisions of rule 7, which would otherwise
govern an application
such as this. But this exception to the norm should not be available
to parties who are dilatory to the point
where their very inactivity
is the cause of the harm on which they rely to seek relief in this
court. For these reasons, I find
that the union has failed to satisfy
the requirements relating to urgency.’
[15] I am in light of the
afore-going of the view that the Applicant has created her own
urgency by the substantial delay. I am
of the view that the
application falls to be struck of the role.”
[35]
In
Director of Public Prosecutions (Western Cape) v Midi
Television (Pty) Ltd t/a E TV
2006 (3) SA 92
(C) the
aforesaid principle was stated as follows at para [47]:
“
[47]
The next question to determine is whether the matter was urgent or
that an urgency was self-created. It is correct that an
applicant
cannot create its own urgency by delaying bringing the application
until the normal rules can no longer be applied.”
[36]
Arising from and connected to the aforesaid principle, is the
consequent obligation on an applicant
in an urgent application to
explain all periods of delay for purposes of making out its case for
urgency. The relevant principle
applicable to condonation
applications in this regard is consequently
mutatis
mutandis
applicable to an urgent
application.
In
High Tech Transformers (Pty) Ltd v
Lombard
(2012) 33 ILJ 919 (LC) the importance of a reasonable
and acceptable explanation for a delay was accentuated at para [25]
of the
judgment:
“
[25] …
Condonation is not merely
for the asking as was duly pointed out by the court in
NUMSA
& another v Hillside Alluminium
[2005] ZALC 25
;
[2005]
6 BLLR 601
(LC):
'[12]
Additionally, there should be
an acceptable
explanation tendered in respect of each period of delay
.
Condonation is not there simply for the asking. Applications for
condonation are not a mere formality. The onus rests on
the applicant
to satisfy the court of the existence of good cause and this requires
a
full, acceptable and ultimately reasonable
explanation
. … Nevertheless, to do
justice to the aims of the legislation, parties seeking condonation
for non-compliance are obliged
to set out full explanations
for
each and every delay throughout the process
.’”
(My emphasis)
[37]
By that time, being 30 August 2023, the applicants must surely have
realized that the correspondence
is not contributing to a solution,
that the first and third respondents were adamant to continue with
the administration of the
estate and that the Master was not going to
withdraw the appointment of the first respondent and/or take any
other steps to remove
the first respondent as Executrix merely based
on the complaint. It must also have been evident That the Master and
the third respondent
were dragging their feet in finalising the
correspondence in relation to the complaint.
[38]
The actual grounds for the alleged urgency, are contained in
paragraphs 48 and further of the
founding affidavit:
“
48. On 21
September 2023, I attended the offices of Old Mutual Ltd to enquire
as to the status of my late husband’s
policies and whether any
withdrawals had been made by the Executrix or her agent. I learnt of
the following policies held under
my late husband`s name with Old
Mutual, which were payable to the estate:
48.1
…
49. I was also
informed about a policy held with Sanlam …
50. My late
husband also had another policy with Sanlam estimated to be …
51. There is
a real fear that should the Executrix receive the aforementioned
policy pay-outs, the funds will not be
used for the benefit of the
estate or any of the Applicants which include my late husband`s
children and his very elderly mother.
His unnamed minor child will
also be prejudiced.
52. As
Executrix, the First Respondent has access to further prejudice the
estate and beneficiaries, including a minor
child and an elderly
lady.
53. There is
a real fear that policies will be paying out imminently and that
these funds may be squandered. The Estate
will have no way of
recovering these funds as the first Respondent is unemployed.
54
Estate properties are at risk of vandalism and theft, due to no
action by the First and Third Respondents.
55. The
urgency in this matter is palpable and the consequences should this
interim interdict not be granted, would
be dire for Applicants and
the minor child.”
[39]
The applicants failed to explain the lapse of time between 30 August
2023 and 21 September 2023
and also why they made the enquiries about
the policies only on 21 September 2023. This is especially so
considering that, on their
own version, the applicants have known
already on 23 May 2023 that the Executrix “
has already
submitted claims on insurance policies of the deceased
”, as
stated in their letter of complaint addressed to the Master.
[40]
In addition, the proceeds from policies would have to be paid into
the deceased`s estate bank
account. The first and third respondent
will not be entitled to “squander” the money as they deem
fit as alleged in
the founding affidavit. All monies received from
the relevant policies will have to be reflected in the liquidation
and distribution
account. Should the applicants not be satisfied with
the relevant entries in the said account, they will have the
alternative remedy
of lodging an objection thereto at the Master in
terms of
section 35
(7) of the
Administration of Estates Act, 66 of
1965
.
[41]
The allegation pertaining to the estate properties which are at risk
of vandalism and theft due
to non-action by the first and third
respondents, is a reference to allegations earlier in the founding
affidavit that “
the first and/or third respondents have
failed and or neglected to make electricity payments to the
municipalities wherein my late
husband had homes and the electricity,
as well as alarm systems have been disconnected”
. From a
perusal of the four Municipal tax invoices attached to the founding
affidavit in support of these allegations, it is evident
that the
invoices stretch over the time period of 17 July 2023 to 18 September
2023. The first applicant further alleges that she
had to make
payments to the said creditors to ensure that some risk is mitigated.
The four proof of payment receipts attached to
the founding affidavit
cover the time period of 5 July 2023 to 11 September 2023.
[42]
The problems with regard to non-payment of the relevant creditors
therefore originated from and
were to the knowledge of the first
applicant since July 2023 already. The applicants never lodged a
complaint with the Master against
the first and third respondents in
this regard, nor did they take any other remedial steps. The
applicants can therefore not rely
on the said non-payments for
purposes of urgency, since, at best for the applicants, it
constitutes self-created urgency.
[43]
In the circumstances I am not satisfied that the applicants have made
out a proper case for purposes
of urgency.
[44]
However, I do not agree with the contention by Mr Snellenburg, who
appeared on behalf of the
first and third respondents, assisted by Mr
Naidoo, that the conduct of the applicants constituted an abuse of
process and that
the application should therefore be dismissed.
[45]
The application consequently stands to be removed from the roll.
[46]
In the circumstances it is unnecessary to deal with the second point
in liminé
and/or with the merits and/or with any other
issues raised in the application.
Costs:
[47]
Ms Ngubeni submitted that should the applicants be successful with
the application, the first
respondent and the third respondent should
be ordered to pay the costs of the application, the first respondent
to pay same
de bonis propriis
in her personal capacity.
[48]
Mr Snellenburg submitted that should the first and third respondents
be successful, that applicants
should be ordered to pay the costs.
[49]
In
Law of Costs
, AC Cilliers, October 2023 – SI
48, at para 10.9 the learned author states as follows, with reference
to applicable authorties:
“
The
general rule that costs follow the event is qualified in litigation
concerning deceased estates. In such litigation there is,
for
instance, the strong possibility that costs may be ordered to come
out of the deceased estate, irrespective of the outcome
of the
proceedings.”
The
following is stated at para 10.14:
“
The
court often orders costs to come out of deceased estates not only
where the validity and construction of wills are concerned,
but also
in matters relating to the general administration of such estates.
”
[50]
The present application fundamentally concerns the administration and
the future administration
of the deceased`s estate. The first and
third respondents are consequently before court in their respective
capacities as Executrix
and as agent of the Executrix. Without
determining the issue of
locus standi,
I deem it necessary to
state outright that in terms of
section 4(9)
of the
Recognition of
Customary Marriages Act, 120 of 1998
, non-registration does not
affect the validity of the marriage. Paternity testing may confirm
that the second to fourth applicants
are the biological children of
the deceased. The first to fourth applicants are therefore before
court as potential heirs in the
presently intestate estate of the
deceased.
[51]
In my view the concerns raised by the applicants regarding the manner
in which the first respondent
came to be appointed as Executrix, are
reasonable and especially
bona fide
when considered against
the background of the totality of the allegations and circumstances.
The said appointment may have a direct
impact upon the administration
of the estate.
[52]
The manner in which the third respondent responded to the
correspondence of the Master in respect
of the applicants` complaint,
does not impress me. It was not for the first and/or third respondent
to have determined the time
frame within which to respond –
they were to adhere to the time frame set by the Master. The
impression is that they were
loath to respond. This is also evident
from the fact that they apparently had the liberty of two extensions
of time for purposes
of responding to the complaint. This attitude of
theirs, together with the Master`s failure to have promptly provided
the first
and the third respondents with the applicants` complaint,
and to have restricted the first and third respondents to the initial
time period within which to respond to the complaint, played a
significant role in the applicant`s failure to have approached court
timeously.
[53]
In the circumstances I deem it fair and reasonable that the costs of
the application be paid
from the estate of the deceased, but that
such costs be restricted to a party and party scale.
Order:
[54]
I consequently make the following order:
1.
The application is removed from the roll.
2.
The costs of the application are to be paid from the estate of the
late C[…] T[…] M[…],
Estate no: 002[…] on
a party and party scale.
C.
VAN ZYL, J
On
behalf of the applicants:
Adv.
T. Ngubeni
Instructed
by
:
Zwelibanzi
Ngququ Inc
BLOEMFONTEIN
Ref:
NGQ 0001
william@zngququattorneys.co.za
palesa@zngququattorneys.co.za
On
behalf of the 1
st
and 3
rd
respondents:
Adv.
N. Snellenburg SC
Assisted
by:
Adv. K. Naidoo
Instructed
by:
Thebe
Attorneys Inc
BLOEMFONTEIN
Ref:
Molefi Thoabala
info@thebeattorneys.co.za