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[2023] ZAECMHC 13
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Njokweni v Qina and Others (3839/2022) [2023] ZAECMHC 13 (23 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MTHATHA)
Case
No. 3839/2022
In the matter between:-
AMEN
NJOKWENI
Applicant
and
THANDUXOLO
QINA
First Respondent
DEPARTMENT
OF JUSTICE AND CORRECTIONAL
Second Respondent
SERVICES
THE
MASTER OF THE HIGH COURT, MTHATHA
Third Respondent
JUDGMENT
BANDS
AJ:
[1]
The application was brought in two parts. Only part A
of the
application was before me for determination.
[2]
The applicant applied to interdict and restrain the first
respondent,
on an urgent basis, from dissipating, tampering with or otherwise
disposing of the assets of the estate of the late
Nkokheli Sizwe
Njokweni (“
the deceased
”), pending the outcome of
the relief set out in part B of the Notice of Motion.
[3]
Part B is
an application for rescission of an order of this court, granted on 8
November 2022, directing the third respondent to
accept a copy of the
deceased’s Will as his last Will and Testament (interchangeably
referred to as “
the
order
”
and “
the
Will proceedings
”
as the context dictates). The applicant, in seeking the
rescission, relies on the provisions of Uniform Rule 42(1)(a);
[1]
alternatively, the common law.
[2]
The applicant further seeks an order that the appointment of the
first respondent as the master’s representative of
the
deceased’s estate be declared unlawful and that he be removed
as the executor of the deceased’s estate, together
with
ancillary relief.
[4]
Part A of
the application was opposed by the first respondent
[3]
on two grounds. Firstly, that the application is not urgent,
and secondly, that the applicant has failed to meet the requirements
for an interim interdict. Prior to dealing with the aforesaid
issues, and the relevant applicable legal principles, I turn
briefly
to the common cause facts.
[5]
Pursuant to the demise of the deceased on 6 January 2021,
the first
respondent called a meeting at his offices with the deceased’s
children, on 5 June 2021. During the meeting,
the first
respondent read out the contents of the deceased’s Will and
provided the deceased’s children with copies
thereof.
Clause 3 of the Will reads as follows:
“
I hereby
appoint Mr Tanduxolo Richard Qina of Qina & Sons Attorneys to be
the executor of my estate and the Master of the High
Court should
dispense with furnishing security by my executor.
”
[6]
That such a meeting was held, was pertinently raised
by the first
respondent in an answering affidavit filed by him in a separate
application, to which the applicant and the first
respondent are
parties, under case number 3841/2022. I return later, in this
judgment, to these latter proceedings, which
are running parallel to
the present application. Such meeting was further raised by the
first respondent in his founding
affidavit filed in the Will
proceedings. The answering affidavit filed by the first
respondent in the application under case
number 3841/2022, to which a
copy of the papers filed in the Will proceedings was attached, is
incorporated into the first respondent’s
answering affidavit
filed in the present application. Accordingly, both prior
affidavits are before me. The applicant,
in paragraph 37.2 of
his founding affidavit in the present proceedings, confirms the
holding of such a meeting.
[7]
Notwithstanding the aforesaid, and on the basis that
the deceased had
died intestate, the applicant, following his nomination, was
appointed as the Master’s Representative in
accordance with the
provisions of
section 18(3)
of the
Administration of Estates Act 66
of 1965
on 29 July 2021. The applicant, in the face of the
aforesaid common cause facts; and the positive assertions made by the
first respondent, in all three of the aforementioned proceedings,
regarding the applicant’s concealment of the Will at the
time
of his appointment, is silent on how he came to be appointed in such
circumstances.
[8]
Following the applicant’s appointment, the applicant
launched
the application under case number 3841/2022, seeking that the first
respondent be ordered to give a full account of the
estate money held
in the first respondent’s trust account; and that such monies
be paid over to the estate account, held
by the applicant. The
first respondent opposed the application
inter alia
on the
basis that: (i) the deceased had executed a valid Will in terms of
which he was nominated as the executor; (ii) the applicant,
at the
date of his appointment, was aware of the existence of the deceased’s
Will and concealed this fact from the third
respondent; (iii) the
applicant’s appointment was irregular and unlawful; (iv) should
the first respondent be ordered to
pay the monies to the applicant,
such payment would be in direct conflict with the wishes of the
deceased as expressed in his Will;
and (v) the first respondent had
launched the Will proceedings, under case number 3839/2022, seeking
an order that the third respondent
be directed to accept a copy of
the deceased’s Will.
[9]
I pause to
mention that whilst the applicant was not cited as an interested
party in the Will proceedings nor was a copy of the
application
served on him at the time of its issue on 5 August 2022,
[4]
the first respondent’s answering affidavit, under case number
3841/2022, to which a full copy of the papers filed in the
Will
proceedings was attached, was served on the applicant’s
attorney of record on 30 August 2022. I pause to mention
that
the applicant is represented by the same firm of attorneys across all
the aforementioned applications.
[10]
The Will proceedings ultimately served before the court on 8 November
2022, unopposed, and the order was issued. Subsequent thereto,
by letters of authority granted by the Assistant Master of
the High
Court, Mthatha, on 13 December 2022, the first respondent was
appointed as the Master’s Representative of the deceased’s
estate.
[11]
I return to the facts, as alleged by the applicant, which form the
basis
for the interim relief sought. In short, the applicant
contends that the first respondent brought the Will proceedings and
obtained the order, which the applicant seeks to rescind, in a
clandestine manner.
[12]
The applicant further contends that he only became aware of the
order,
and subsequent letters of authority granted in favour of the
first respondent, on 9 January 2023. He thereafter caused
correspondence
to be directed to the first respondent on 13 January
2023 seeking an undertaking that the first respondent refrain from
implementing
the terms of the Will and “
pend the liquidation
and distribution of the deceased’s estate pending the
rescission application sought to be made shortly
.”
The first respondent communicated his refusal to accede to such
request on 16 January 2023. The application
was thereafter
launched on 18 January 2023 and served on the first respondent on the
same day. Whilst the matter was originally
set down for hearing
on 24 January 2023 before Tokota J, being an ordinary motion court
day, the matter was postponed to 31 January
2023 for argument,
presumably due to the applicant’s replying affidavit having
been filed at 08h18 on the morning of 24 January
2023.
[13]
The
applicant seeks to create the impression that he had no knowledge of
the application in the Will proceedings prior to 9 January
2023.
This is patently false. Significantly, whilst the applicant
refers to the papers filed by the first respondent
in the application
under case number 3841/2022; he is decidedly silent on the fact that
a copy of the Will proceedings had been
attached thereto.
Accordingly, as of 30 August 2022, some 5 months prior to the launch
of this application, the applicant
was aware of the Will proceedings
and the relief sought therein and, for whatever reason, elected not
to enter the fray.
[5]
The
applicant offers no explanation for his inaction, despite having
knowledge of the proceedings, nor for his non-disclosure
of such
knowledge in either of his affidavits filed in the present
application. The applicant’s failure to disclose
to this
court, what I consider to be a material fact, casts doubt on the
bona
fides
of the applicant.
[14]
I pause to
mention that the applicant, prior to the launch of any of the
aforementioned proceedings, was expressly advised in writing
by the
first respondent on 7 July 2022, of his ongoing communication with
the offices of the third respondent regarding the location
of
deceased’s original Will
[6]
and of his intention to implement the wishes of the deceased in
accordance therewith. High Court proceedings were threatened,
should they be necessary. It can accordingly come as no
surprise to the applicant that the first respondent, upon obtaining
the order, and following his appointment, would seek to implement the
Will without further delay.
[15]
In the
circumstances of such inaction on the part of the applicant, in the
context of the present proceedings, I am of the view
that any
urgency, which may have existed, if any at all, is self-created.
An applicant cannot content itself to merely sit
back and delay the
assertion of his or her rights, and by doing so, create his or her
own urgency. Such conduct does not
amount to urgency justifying
the determination of the matter in accordance with
Rule 6(12).
[7]
[16]
It is trite
that in the event of a finding that the matter is not of sufficient
urgency to warrant being entertained in accordance
with Uniform
Rule
6(12)
, the appropriate order is generally to strike the matter from
the roll.
[8]
[17]
However, in the event that I am incorrect in my decision on urgency,
I am in any event not satisfied that the applicant has made out a
case for the granting of an interim interdict. Accordingly,
in
the exercise of my discretion, I turn to deal with part A of the
application.
[18]
The
applicant, in order to persuade this court that he is entitled to an
interim interdict, must establish: (i) the right that forms
the
subject matter of the main application and which he seeks to protect,
on a
prima
facie
basis at least (even if open to come doubt); (ii) a well-grounded
apprehension of irreparable harm if the interim interdict is
not
granted and the ultimate relief sought in the main application is
eventually granted; (iii) the balance of convenience favours
the
granting of interim relief; and (iv) he has no other satisfactory
remedy.
[9]
[19]
The proper
approach for deciding matters of this nature was articulated in
Spur
Steak Ranches Ltd and Others v Saddles Steak Ranch, Claremont and
Another
:
[10]
“
Save that the
requirement of a prima facie right established though open to some
doubt, is the threshold test, the factors are not
considered
separately or in isolation, but in conjunction with one another in
the determination of whether the Court should exercise
its overriding
discretion in favour of the grant of interim relief. I refer
here to Olympic Passenger Services (Pty) Ltd
v Ramlagan
1957 (2) SA
382
(D); Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton and 1
1996 (3) SA 706
(C) at 714C-G Page 10 of 19 Another
1973 (3) SA 685
(A) and Beecham Group Ltd v B-M Group (Pty) Ltd
1977 (1) SA 50
(T).
In determining whether
or not the applicants crossed the threshold, the right relied upon
for a temporary interdict need not be
shown by a balance of
probabilities, it is enough if it is prima facie established though
open to some doubt.
The proper approach is
to take the facts set out by the applicants together with any facts
set out by the respondents, which the
applicants cannot dispute, and
to consider whether having regard to the inherent probabilities the
applicants should, not could,
on those facts obtain final relief at
the trial.
It is also necessary
to repeat that although normally stated as a single requirement, the
requirement for a right prima facie established,
though open to some
doubt, involves two stages. Once the prima facie right has been
assessed, that part of the requirement which
refers to the doubt
involves a further enquiry in terms whereof the Court looks at the
facts set up by the respondent in contradiction
of the applicant's
case in order to see whether serious doubt is thrown on the
applicant's case and if there is a mere contradiction
or unconvincing
explanation, then the right will be protected. Where, however, there
is serious doubt then the applicant cannot
succeed
.”
[20]
In considering the elements of an interim interdict in the context of
the present application, I make no factual findings in respect of
part B of the applicant’s application. I now turn
to
consider the said elements.
Prima
facie right
[21]
On a proper
construction of the applicant’s papers, and simply put, the
applicant’s right, which he seeks to protect,
is his right
[11]
to inherit as an intestate heir of the deceased’s estate.
The applicant further relies on his right to take control
of the
assets of the deceased estate. In this regard, the applicant’s
contention is that “
[a]cceptance
of an invalid Will by the Master of the High Court directly effects
my right to take control of the assets of the estate.
”
Of necessity, such rights can only exist in the absence of the
deceased’s Will.
[22]
In the
context of this application, and in light of the relief sought in
part B for a rescission, it is required of the applicant
to
establish,
prima
facie,
that
material facts were withheld from, or deliberately misrepresented to
the court, or that the order was sought without notice
to the
applicant;
[12]
alternatively,
that there is a reasonable explanation for the applicant’s
default; that the application has been made
bona
fide;
and
that the applicant has a
bona
fide
defence, which
prima
facie
has some prospect of success.
[13]
In respect of the further relief sought by the applicant for the
removal of the first respondent as the Master’s representative,
the applicant is required to establish,
prima
facie,
conduct justifying such relief. The aforesaid is to be
considered with due regard to the principles referred to in
Steak
Ranches Ltd and Others (supra).
[23]
The applicant proceeds from the premise that the order was granted on
the basis of “
misrepresentation, non-disclosure or fraud
.”
In developing this argument, the applicant contends that the first
respondent concealed from the court, communication
between his
offices and the third respondent, dated 11 May 2023, in which the
third respondent alleges not to have received the
original Will.
The applicant’s contention is misleading.
[24]
The letter in question was attached by the first respondent to his
founding
affidavit in the Will proceedings, as annexure “TQ7”.
Seemingly, the purpose of such allegation is that “
had the
Court known that the original Will was never given to the Master, the
court would not have granted the application on the
basis that the
Will was lost.
” The reason for such contention is
that the High Court, in directing the third respondent to accept a
copy of the deceased’s
Will as his last Will and Testament,
directed “
an illegality
” given that there exists
no provision in the Administration of Estate’s Act which
permits the lodgement of a copy of
a Will. The applicant loses
sight of the fact that this is precisely the reason why the first
respondent launched the Will
proceedings, which are legally
competent. It is immaterial whether the first or third
respondents had ever been in possession
of the deceased’s
original Will.
[25]
The applicant further contends that the third respondent’s
decision
not to accept the copy of the deceased’s Will, prior
to the granting of the order, stands until set aside. In the
face
of the order expressly directing the third respondent to accept
the copy of the deceased’s last Will and testament, such
contention has no foundation in law.
[26]
In
addition, it is the applicant’s case that the first respondent,
in the Will proceedings “
did
not tell
[the]
court
that we considered the Will
”
to be “
an
end product of forgery
”
and moreover that the Will in question is invalid in numerous
respects. The applicant, apart from the aforesaid broad
allegations, says no more regarding the alleged forgery nor does he
state the manner in which he contends the Will to be invalid.
The applicant has failed to present evidence of a single primary fact
in support of the aforesaid contentions, in the absence of
which,
such contentions amount merely to conclusions of law.
[14]
[27]
It
is trite that where proceedings are brought by way of application, it
is incumbent upon an applicant to raise the issues on which
it seeks
to rely, in the founding affidavit. It must define the relevant
issues and set out the evidence upon which it relies
to discharge the
onus of proof resting on him or her.
[15]
[28]
This is more so in the present application where the first
respondent,
in his affidavit filed in the proceedings, under case
number 3841/2022, as well as in his affidavit filed in the Will
proceedings,
repeatedly stated
inter alia
that (i) at the time
of the deceased’s death, the deceased and his wife were already
divorced; (ii) the deceased and his children
had no relationship
whatsoever; (iii) the deceased, on 27 February 2019, procured an
order evicting his ex-wife; (iv) the deceased
had purposefully
disinherited his children and ex-wife; and (v) when the
Will was read to them in June 2021, the deceased’s
children
were not shocked to hear of their disinheritance.
[29]
The applicant in the present proceedings makes no attempt to address
the aforesaid allegations, which on the probabilities, favour the
existence of the Will. Moreover, on the probabilities, had
the
applicant been of the view that the Will was forged; alternatively,
invalid, not only would he, upon becoming aware of the
Will in June
2021, have brought an application to declare the Will invalid, which
application has to date not been brought, but
it is highly improbable
that the applicant would have remained on the side-lines upon
becoming aware of the Will proceedings on
30 August 2022.
[30]
The applicant further alleges that the letters of authority issued to
the first respondent are irregular in that
section 18(3)
of the
Administration of Estates Act is
not applicable to persons nominated
to act as an executor in terms of a will. The basis for such
submission is presumably
a misreading of the heading to
section
18(3)
, which reads: “
[p]roceedings on failure of nomination
of executors or on death, incapacity or refusal to act, etc.
”
The applicant, in quoting the aforesaid heading has mistakenly
omitted the abbreviation “etc”, and has
accordingly
sought to interpret the heading, as a closed list, with insufficient
regard to the provisions contained therein.
[31]
In terms of
section 18(3):
“
If the value of
any estate does not exceed the amount determined by the Minister by
notice in the Gazette, the Master may dispense
with the appointment
of an executor and give directions as to the manner in which any such
estate shall be liquidated and distributed.”
[32]
Accordingly, regardless of whether a deceased has died intestate or
not,
where the value of the estate is less than R250,000.00, being
the current amount determined by the Minister by notice in the
Gazette,
the Master may instead of issuing letters of executorship,
issue letters of authority in terms of
section 18(3).
The
further allegation that neither the applicant nor his family members
were called upon to make recommendations to the
third respondent
regarding the proposed executor is immaterial in the context of the
present matter and is accordingly misplaced.
[33]
Lastly, the applicant’s alleges that the first respondent has
wilfully
made a false inventory and accordingly has committed an
offence in accordance with
section 102
of the
Administration of
Estates Act and
falls to be removed as the Master’s
Representative in terms of
section 54
of the Act. In support of
this allegation the applicant relies on the assets, as recorded in
the first respondent’s
letter’s of authority, and on the
allegation that R500,000.00, which the applicant contends to have
been paid to the first
respondent by the deceased, does not form part
of the assets listed in his letters of authority.
[34]
On the applicant’s own version “
[a]n amount of
R500,000.00 is accepted to have been paid to
[the first
respondent]
by my late father but for a different reason.
”
This different reason, as alleged by the first respondent in
his affidavit filed in the application under case number
3841/2022,
upon which affidavit the applicant relies for the aforesaid
allegation, is that the said sum of money was paid to him
by the
deceased for litigation costs pertaining to various litigious matters
handled by him on behalf of the deceased. In
any event, on the
probabilities, and in the absence of any evidence to the contrary,
there is nothing to suggest that list of assets
recorded in the first
respondent’s letters of authority, including the values
thereof, were not simply obtained by the third
respondent from the
inventory already submitted by the applicant. I say this
because the deceased’s assets and their
values as contained in
the first respondent’s letters of authority are identical to
those reflected in the applicant’s
letters of authority.
[35]
For the above reasons I am not persuaded that the applicant, on his
own
version, has met the threshold test, which version is in any
event cast into serious doubt by the facts set out by the first
respondent,
which the applicant cannot dispute.
[36]
In light of the aforesaid finding, it is not necessary to consider
the
remaining elements of an interim interdict. Notwithstanding
this, I intend to briefly address the elements pertaining to:
(i) the
apprehension of irreparable harm should the interim relief not be
granted; and (ii) the absence of a satisfactory alternative
remedy.
My failure to deal with the element regarding the balance of
convenience does not mean that I have found same to
be present, such
issue is left open).
Irreparable
Harm
[37]
The contention that the applicant will suffer irreparable harm is set
out rather vaguely in the applicant’s founding affidavit, such
allegations being confined to paragraph 75 thereof, which
reads as
follows:
“
My
mother who was married in community of property with my deceased
father, my siblings and I will suffer irreparably once the impunged
Will is accepted. Once Mr. Qina effects the liquidation and
distribution of my father's estate and render (sic) his account,
I
and my family members who are deceased heirs will suffer
irreparably.
”
[38]
Leaving aside that the Will has already been accepted, the said
allegations
amount to no more than a broad conclusion, in support of
which no primary facts have been placed before this court.
Irreparable
harm may be defined as the loss of property (including
incorporeal property and money) in circumstances where its recovery
is impossible
or improbable. The applicant makes no allegation
that recovery of any money, if distributed by the first respondent,
would
be impossible or improbable.
[39]
No information is provided as to why the applicant contends that he
or
any of the other intestate heirs will suffer irreparably, and
accordingly the applicant’s assertion, as set out above, is,
in
my view, insufficient to establish a well-grounded apprehension of
harm, should the interim interdict not be granted.
[40]
The further allegations upon which the applicant seeks to rely under
this heading, which were raised in the applicant’s heads of
argument for the first time, presumably to address the shortcomings
on the applicant’s papers, are not properly before me and
cannot serve to assist the applicant.
[41]
I now turn to consider the absence of an alternative satisfactory
remedy.
No
other satisfactory remedy
[42]
This element is often closely linked to the element regarding the
apprehension
of irreparable harm since if there is some other
satisfactory remedy, the injury cannot be described as irreparable.
[43]
As already stated, there is no evidence before this court which
suggests
that the recovery of any money, if distributed by the first
respondent, would be impossible or improbable. Moreover, the
applicant makes no allegation as to why no alternative legal remedy
is available to him and more particularly, why he cannot obtain
adequate redress in some or other form of relief in the event of an
eventual finding that the deceased had died intestate.
By way
of example, nothing precludes the applicant from claiming, by way of
an enrichment action, payment of the money distributed
to any
beneficiary under the Will.
[44]
I am accordingly not satisfied that the applicant has established the
absence of an alternative satisfactory remedy.
[45]
For the reasons set out, the applicant’s application for an
interim
interdict cannot succeed. I see no reason why the costs
should not follow the result. The first respondent, in the
heads of argument filed of record, does not persist with an attorney
client cost order. I am, in any event, not inclined to
grant
such a cost order herein.
[46]
I make the following order:
1. The
application for an interim interdict is dismissed with costs.
I
BANDS
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
the applicant:
Mr
Zono
Instructed
by:
A.S.
Zono & Associates
Suite
153 – 1
st
Floor, ECDC Building
Mthatha
For
the first respondent:
Mr
Sintwa
Instructed
by:
T.
Qina and Sons
28
Madeira Street
Clublink
Building
Mthatha
Coram:
Bands
AJ
Date
heard:
31
January 2023
Judgment
delivered:
23
March 2023
[1]
The applicant contends that the order was erroneously sought and
erroneously granted in his absence.
[2]
It is the applicant’s case that the order was granted on the
basis of misrepresentation; non-disclosure; or fraud.
[3]
The second and third respondents abide by the decision of this
court.
[4]
For which the first respondent proffers no explanation.
[5]
For example, by launching intervention proceedings.
[6]
And the third respondent’s contention that only a copy had
been lodged.
[7]
Lindeque
and Others v Hirsch and Others, In Re: Prepaid24 (Pty) Limited
(2019/8846) [2019] ZAGPJHC 122 (3 May 2019).
See
also:
Masipa and Another v Masipa
(23224/2020) [2020] ZAGPPHC
214 (4 June 2020).
[8]
Commissioner
for South African Revenue Service v Hawker Air Services (Pty) Ltd;
Commissioner for South African Revenue Service
v Hawker Aviation
Services Partnership and Others
2006
(4) SA 292 (SCA).
[9]
Erikson
Motors (Welkom) Ltd v Protea Motors, Warrenton & Another
1973 (3) SA 685
(A).
[10]
1996 (3) SA 706 (C).
[11]
As well as the rights of his siblings and his mother to inherit as
intestate heirs of the deceased.
[12]
This being with reference to the relief sought by the applicant in
accordance with Uniform
Rule 42(1)(a).
[13]
This being with reference to the alternative relief sought by the
applicant in accordance with the common law.
[14]
Rees
and Others v Harris and Others
2012 (1) SA 583
(GSJ).
See
also:
Swissborough Diamond Mines (Pty) Limited and Other v
Government of the Republic of South Africa and Others
1999 (2)
SA 279
(W).
See
also:
Radebe and Others v Eastern Transvaal Development Board
1988 (2) SA 785 (A).
[15]
Swissborough
Diamond Mines (Pty) Limited and Other (supra).