About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 7
|
|
Nhlapho-Masoeu and Others v Mokoena and Others (4373/2021) [2022] ZAFSHC 7 (27 January 2022)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case number:
4373/2021
In
the matter between:
MARIA
MPOTSENG NHLAPHO-MASOEU
1
st
Applicant
LYDIA
MOSIDI MASOEU THAELE
2
nd
Applicant
MATSHEPISO
SARAH MASOEU-LECHE
3
rd
Applicant
and
PULENG
MARIA MOKOENA
1
st
Respondent
REMASOEU
PULENG FUNERAL HOME
2
nd
Respondent
REMASOEU
THATO FUNERAL
3
rd
Respondent
THE
MASTER OF THE HIGH COURT (BLOEMFONTEIN)
4
th
Respondent
HEARD
ON:
20
JANUARY 2022
JUDGEMENT BY:
LITHEKO, AJ
DELIVERED
ON:
27 JANUARY 2022
INTRODUCTION
[1]
On the 23
rd
September 2021 the Applicants obtained an
interim prohibitory interdict against the Respondents on an urgent
ex
parte
basis in the following terms:
1.
“The application is found and held to be urgent and the
applicant’s non-compliance
with the requirements of the Rules
of court relating to service and time periods is waived and/or
condoned.
2.
The first respondent (and second and third respondents as the case
may be) is/are
hereby interdicted and/or restrained from dealing in
and/or transferring and/or disposing of and/or in any manner
alienating the
estate or any of the proceeds therefrom, forming part
of the joint will (attached here marked A) of the late Tlala Doctor
Masoeu
(ID number [….] and Rachel Motsilisana Masoeu (ID
number. [….]) and
3.
The first respondent (and second and third respondents as the case
may be) is/are
hereby interdicted and/or restrained from dealing in
and/or transferring and/or disposing of and/or in any manner
alienating any
part of the estate be it forming part of a will and/or
any other testamentary document by and/or any community estate (if
any)
between the first respondent and the late Tlala Doctor Masoeu
(ID number [….]), and
4.
The relief set out in paragraph 2 and 3 above is granted operate as
interim orders
with immediate effect pending the final determination
and outcome of Part B of this application.
5.
The applicants are hereby ordered and directed to forthwith serve on
the respondents
5.1. a
copy of any order granted in respect of paragraphs 2 and 3 above;
5.2.
the notice of motion in this application and the founding
affidavit together with its annexures; and
5.3. a
notice informing the respondents that the return date referred to
below may be anticipated on 24 hours
written notice to the applicants
at the address of the applicants’ attorneys.
6.
Calling on the first and/or the respondents to show cause on 28
October 2021
at 9h30 or soon thereafter as the matter may be heard
why the interim orders in paragraph 2 and 3 should not be made final,
and
why the respondents should not be ordered to pay costs of the
application.”
[2]
On the 27th October 2021 the respondents delivered their answering
affidavit and on
the 28
th
October 2021 the Rule
Nisi
was extended to the 20
th
January 2022. The applicants
served their replying affidavit on the 10
th
January 2022
and filed it with the Registrar on the 11
th
January 2022.
THE RELEVANT
FACTUAL BACKGROUND
[3]
The applicants are the biological children (although not the only
children) of the
late Rachel Motsilisana Masoeu, who died on the 5
th
July 2019 and the late Tlala Doctor Masoeu, who died on the 1
st
September 2021. The deceased will hereinafter be referred to as the
late Mr and Mrs Masoeu respectively.
[4]
The late Mr and Mrs Masoeu, who were married to each other on the
24
th
April 1978 in community of property, executed a joint
will on the 22
nd
January 2019 (the 2019 joint will).
Clause 3.1 of the
2019 joint will stipulates that,
“we appoint the
surviving spouse as the sole and universal heir or heiress of all our
estate and effects, movable and immovable,
wherever situate and
nothing excluded”.
[5]
On the 30
th
July 2020 the late Mr Masoeu married the 1
st
respondent out of community of property without accrual and on the
8
th
June 2021 they executed a joint will (the 2021 joint
will). The revocation clause thereof provides that,
“We hereby
revoke, cancel and annul all previous wills and testamentary
dispositions made and executed by us and declare this
to be our last
will and testament”.
THE APPLICANTS’
VERSION REGARDING APPLICATION FOR AN INTERIM ORDER.
[6]
The Rule
Nisi
was issued on the basis of the allegations which
are contained in paragraphs 30 up to and including 42 of the founding
affidavit
and they may be summarised as follows,
[7]
The applicants are the beneficiaries of the estate of the late Mr and
Mrs Masoeu as
stipulated in the 2019 joint will.
After the death of the
late Mr Masoeu, the 1
st
respondent unlawfully ordered an
employee of Remasoeu Funeral Home CC, a company of which the 1
st
applicant is a 10 percent shareholder, to deposit R10 000.00
into the 1
st
respondent’s personal banking account.
She took control of the
estate of the late Mr and Mrs Masoeu and thereby deprived the
applicants of their rights as the beneficiaries
of the estate.
The applicants aver
further that the 1
st
respondent is in control of all the
bank and phone sim cards belonging to Remasoeu Funeral Home CC which
control enables her to
divert all the business of that company to the
2
nd
and 3
rd
Respondents, the companies co-owned
by the 1
st
respondent and the late Mr Masoeu and which
were incorporated after the death of the late Mrs Masoeu.
It is on the basis of the
foregoing assertions that the Applicants submit that there is a real
danger that they, in their alleged
capacities as the beneficiaries of
the joint estate of the late Mr and Mrs. Masoeu, would suffer
irreparable harm if the 1
st
respondent is not interdicted
from further dissipating that joint estate.
THE REPLYING
AFFIDAVIT OF THE APPLICANTS
[8]
As indicated earlier in this judgment, the applicants’ replying
affidavit was delivered
out of the prescribed time limits and in her
heads of argument Ms Macakati, who appeared for the respondents
raised issue with
this non-compliance with the Uniform Rules of Court
on the part of the Applicants. Mr Bodlani, appearing for the
applicants applied
informally for condonation of the late filing of
the replying affidavit. Ms Macakati opposed this application. Counsel
for the
applicants and the respondents advanced arguments in this
regard. Although I have decided to exercise my discretion in favour
of
granting the applicants the indulgence, based on the conclusion
that I have reached, nothing turns around the admission or rejection
of the applicants’ replying affidavit and nothing more needs to
be said on this issue.
THE VERSION OF THE
RESPONDENTS
[9]
In opposing the application the respondents denied that, (a) the
applicants are the beneficiaries
of the estate of the late Mr and Mrs
Masoeu in terms of the 2019 joint will, (b) the 1
st
respondent is dissipating or alienating the assets of the joint
estate of the late Mr and Mrs. Masoeu.
[10]
The 1st respondent avers that the applicants, with the assistance of
the 3
rd
applicant's husband, together with Thapelo Masoeu
and Themba Masoeu unlawfully evicted her from the property that she
occupied
with the late Mr Masoeu. Although she reported this unlawful
eviction to the police, they did not restore her into possession of
the property as they considered the issue to be a civil matter.
[11]
The 1
st
respondent has made a counter-accusation that the
1
st
applicant is the one who has taken over the business
of Remasoeu Funeral Home CC and she is conducting same under the name
and
style of Rebomasoeu Funeral Home. This new entity is used to
siphon off and/or divert and/or generally to dissipate Remasoeu
Funeral
Home businesses for the benefit of the 1
st
applicant.
THE ISSUE
[12]
When I called upon Counsel for the parties to identify the legal
issue that this application raises,
they were in agreement that the
confirmation or discharge of the Rule
Nisi
issued herein is
dependent upon the determination of Part B of the application.
The prayers sought in
Part B are stated as follows in paragraph 43 of the founding
affidavit,
“
42.1 (sic) that
the terms and stipulations of the joint will of the late Tlala Doctor
Masoeu and the late Rachel Motsilisana Masoeu,
the testators are
valid and the true reflection of the last will and testament of the
testators.
42.2
the estate of the joint will mentioned above is not part of and is
specifically excluded from any estate,
if any, including but not
limited to any accruals in terms of the
Matrimonial Property Act 88
of 1984
, as the case may be, between the first respondent and the
late Tlala Doctor Masoeu.
42.3 An
order diverting the first respondent and/or the respondents
altogether or whoever may be in possession
of any of the estate
belonging to and owned by the joint estate to immediately return same
to the joint estate”.
THE LEGAL
PRINCIPLES
[13]
Either party to a mutual or joint will may, while both are alive,
revoke his or her share of the mutual
will with or without
communication to the other party. But after the death of one
party, the survivor may not revoke his
or her share of the mutual
will where both of the following further conditions or circumstances
occur: (a) the mutual will effects
a “massing” and (b)
the survivor has accepted some benefit under the will.
[1]
[14]
Notwithstanding its form, a joint will is simply two separate wills
embodied for convenience in one
document.
[2]
[15]
Sometimes, a joint will is in fact the will of the first-dying only,
e.g. where the will appoints the
survivor of the testators as the
sole heir of the first-dying.
[3]
EVALUATION AND
APPLICATION OF LAW TO THE FACTS
[16]
The applicants brought this application on allegations that they are
the beneficiaries of the estate
of their late parents, Mr and Mr
Masoeu. As Mr Bodlani argued, they rely on the provisions of clause 3
and 5 of the 2019 joint
will. The only part of clause 3 that
finds application in this matter is clause 3.1 which I quoted
hereinabove. Clauses 3.2
up to and including 4.5.13 would have
applied if the late Mr and Mrs Masoeu had died simultaneously.
Clause 5 stipulates that,
“
Any benefits which
an heir may derive out of this Will shall be his or her own separate
property, and where he or she marries or
is married in community of
property, such benefit shall not form part of the joint estate, nor
in case of a female heir, shall
it be subject to the marital power of
her husband. Furthermore, it shall not be subject to execution for
the debts and liabilities
of her husband, nor, in the event of his
insolvency, shall it fall within the insolvent estate.”
[17]
Mr. Bodlani argued that because the late Mr. Masoeu accepted the
benefits under the 2019 joint will,
and as that will is still in
force, so the argument went, he could not revoke it. He argued that
the revocation clause in the 2021
joint will could, on a proper
interpretation thereof, not have been intended to refer to the 2019
joint will because the 1
st
respondent was not the
Testatrix of the 2019 joint will. As authority for the proposition
that once a testamentary beneficiary
has accepted the benefits under
a joint will, it becomes irrevocable, Mr Bodlani referred me to the
case of Mochochoko vs Mochochoko
2019 JDR 0026 (FB), at paragraph 19.
In that case, Daffue J,
quoting Wille’s Principles of South African Law (supra) at page
727 – 728 stated the following,
“
If the survivor
abides by the will and accepts benefits thereunder. he/she cannot
later on revoke such joint will in a later will.
He/she is under an
obligation to allow the property to devolve in terms of the joint
will”.
[18]
Although the above is a correct statement of the law of testate
succession, Mr. Bodlani quoted the
Mochochoko case out of context.
The joint will that was referred to in that quote is one that
effected a massing
[4]
of the estates. The case of Mochochoko is therefore of no relevance
in this application.
[19]
It is abundantly clear that the 2019 joint will did not effect a
massing as the late Mrs Masoeu appointed
the late Mr Masoeu as, “the
sole and universal heir of all her estate and effects, moveable and
immovable, wherever situated
and nothing excluded”. Upon
the death of the late Mrs. Masoeu, the late Mr, Masoeu acquired
ownership of all the properties
belonging to their joint estate and
he was consequently entitled to deal therewith in any manner that he
preferred, including,
as he has done, bequeathing it to the 1
st
respondent.
[20]
The effect of clause 5 of the 2019 joint will is that the property
that the late Mr. Masoeu inherited
in terms of that will could not
form part of any joint estate in the event he remarried in community
of property nor could it be
subject to execution for the debts
specified in that clause. It is not a resolutive condition as
Mr. Bodlani argued, which,
if not fulfilled stripped the late Mr
Masoeu of his ownership of the inheritance.
[21]
Mr Bodlani argued further that because the late Mr. Masoeu’s
registration and incorporation of
the 2
nd
and 3
rd
respondent companies, which he co-directed with the 1
st
respondent constituted the formation of a joint estate between them,
ownership of the property that he inherited reverted to the
joint
estate and fell to devolve in terms of the rules of intestate
succession. This, he argued, is the basis whereupon he submitted
the
applicants are the beneficiaries of the portion of the estate of the
late Mrs Masoeu. I do not agree with Mr Bodlani in this
regard as
this is plainly not a correct statement of the law.
[22]
Even if the incorporation of the 2
nd
and 3
rd
respondent companies could be construed as an act
of establishing a joint estate between the 1
st
Respondent and the late Mr. Masoeu, as argued by
Mr. Bodlani, that would not have disentitled the late Mr. Masoeu to
inherit in
terms of the 2019 joint will.
CONCLUSION
[23]
The 2019 joint will, although it was executed by both the late Mr and
Mrs. Masoeu jointly, it essentially
turned out to be the will of the
late Mrs. Masoeu, as the first-dying for the reason that it appointed
the late Mr. Masoeu as the
sole and universal heir of the late Mrs.
Masoeu. The legal effect of this in my view is that all the
applicants were disinherited
and they are therefore not the
beneficiaries of the estate of the late Mr Masoeu who became the sole
beneficiary of the estate
of the late Mrs Masoeu when the latter
died.
Although the 2019 joint
will was valid, it did not have any effect on the right of the late
Mr Masoeu to bequeath the property he
inherited in terms thereof. I
have found that the 2019 joint will is as good as having been the
will of the late Mrs. Masoeu.
No benefit could be derived
therefrom by any of the applicants when she died.
The Rule
Nisi
issued on the 23
rd
September 2021 therefore, falls to be
discharged as the applicants have not shown on a preponderance of
probabilities that they
have any rights to the estate that they
claimed to be the beneficiaries of. Even if the 1
st
applicant has a 10 percent shareholding in the Remasoeu Funeral Home
CC, the remedy that she seeks in this application is not the
only
remedy to enforce her rights.
THE ORDER
[24]
I therefore make the following order:
The Rule Nisi issued on
the 23
rd
September 2021 is hereby discharged. The
Applicants are ordered to pay the costs of the application, inclusive
of the costs of
the 28
th
October 2021.
M. S. LITHEKO, AJ
For
the Applicants:
Adv.
L. Bodlani
Instructed
by:
Mjobi
& Associates Inc., Pretoria
Per
Moroka Attorneys,
Bloemfontein
For
the Respondents:
Adv.
I. Macakati
Instructed
by:
Lovius
Block Inc. Bloemfontein
/roosthuizen
[1]
Kruger
vs Terblanche
1978 (2) SA 198
(T) at 205
[2]
Warren
and Tupin vs The Master and Silberbauer
1913 CPD 784
at 791
[3]
Wille’s
Principles of South African Law, 9th Edition at page 691, Skead vs
Fourie (1896) 3 O R 183
[4]
Massing
is a disposition by the testators in a mutual will of their joined
property or a portion of it in favour of the survivor,
giving him or her a limited interest (usufructuary or fiduciary) in
the joined property, and providing that on his or her death
such
property is to go to some other person or persons. See Rhode v
Stubbs 2005(5) SA 104 (SCA) at [12]