Summary of Judgment

1. Introduction

The proceedings took the form of a motion application in which the applicants sought relief directed at the cancellation of an existing title deed and the re-registration of immovable property (Erf 7804, Maokeng, Kroonstad, Free State) in specified proportional shares. The property was held under Deed of Transfer T9180/1992, and the applicants’ substantive objective was to secure recognition of their alleged inheritance rights in that property.

The parties comprised Judith Molefe, Gloria Molefe, Mmamnini Notsi, and Lehlohonolo Moliko as applicants. The respondents were the Executor of the Estate Late Edgar Molefe (first respondent), Thandiwe Molefe (second respondent), and the Registrar of Deeds, Bloemfontein (third respondent). The first and second respondents opposed the application.

Procedurally, the opposed motion included an interlocutory issue concerning the late filing of a supplementary affidavit by the first and second respondents. A condonation application for that late filing was brought and was granted. At the hearing, counsel for the second respondent raised three points in limine: alleged prescription of the claim, alleged non-applicability of the Intestate Succession Act 81 of 1987, and the existence of material disputes of fact incapable of determination on the papers.

The general subject-matter was an inheritance-related dispute about whether, and on what basis, the applicants were entitled to shares in a property connected to the estates of Dikeledi Alina Molefe (the applicants’ deceased mother/grandmother) and Edgar Molefe (deceased), and whether the matter could be determined on affidavit evidence given the conflicting versions advanced by the parties.

2. Material Facts

It was common cause that the dispute concerned a property associated with the late Edgar Molefe and that the applicants asserted inheritance rights flowing from the fact that the property allegedly originally belonged to their late mother, Dikeledi Alina Molefe. The court accepted as background that the first and second applicants, together with Edgar Molefe, were children of Dikeledi Alina Molefe, and that the fourth and fifth applicants were grandchildren of Dikeledi Alina Molefe. It was also accepted that the second respondent, Thandiwe Molefe, was Edgar Molefe’s spouse.

The documentary facts recorded in the judgment included that the Deed of Transfer documents reflected a transfer to Likeledi (Dikeledi) Alina Molefe on 25 March 1992, followed by a transfer to Edgar Molefe and Aletta Alphonsina Molefe on 29 June 2018, and thereafter a transfer resulting in the property being held by Edgar Molefe and Thandiwe Faith Molefe. The judgment further recorded that the property was registered in equal shares in the names of Edgar and Thandiwe Molefe.

Material factual disputes emerged on the papers. One disputed issue was the second respondent’s allegation that, after Dikeledi Alina Molefe’s death, the late Edgar Molefe paid money to certain family members (identified in the judgment as Gloria Molefe and Sefora Molefe) in amounts proportionate to their inheritance, allegedly to enable him to become the sole owner and register the property in his name (and that of his then wife). The applicants disputed this and the court noted that no proof of such payment was attached.

A further material dispute concerned who the heirs/biological children of Dikeledi Molefe were for purposes of inheritance, including the basis upon which the fourth and fifth applicants (as grandchildren) asserted their entitlement. The papers also revealed dispute about the historical basis upon which Edgar Molefe became reflected as heir, including the second respondent’s reliance on the notion that he was the only male child, implicating the doctrine of male primogeniture.

These factual conflicts were treated by the court as central to whether the matter could be resolved in motion proceedings or required a referral to oral evidence.

3. Legal Issues

The court was required to determine, at the preliminary stage, whether the points in limine should succeed and thereby dispose of the application (in whole or part), or whether the matter should proceed to the ventilation of evidence. The principal legal questions were whether the applicants’ claim was defeated by prescription, whether the applicants could rely on the Intestate Succession Act 81 of 1987 in the circumstances, and whether the application was procedurally inappropriate due to disputes of fact on material issues.

The prescription issue entailed the application of statutory provisions (primarily section 12 of the Prescription Act 68 of 1969) to the facts, including the questions of when the “debt” became due, and when the applicants acquired or ought reasonably to have acquired knowledge of the relevant facts and the identity of the debtor. The debate also intersected with the relevance of sections 18 and 20 of the Prescription Act as discussed in the judgment, and with the historical framework associated with the Black Administration Act 38 of 1927.

The Intestate Succession issue engaged the relationship between the constitutional setting, the historical operation of the Black Administration Act, and the impact of constitutional jurisprudence on rules such as male primogeniture, as discussed with reference to Bhe and Others v Magistrate, Khayelitsha, and Others.

The dispute-of-fact issue was predominantly procedural in character, requiring a value judgment about whether the conflicts on the papers were sufficiently material that motion proceedings were unsuitable, necessitating a referral to oral evidence.

4. Court’s Reasoning

On prescription, the court directed itself to section 12 of the Prescription Act 68 of 1969, emphasising that prescription commences when the debt is due and that a debt is not deemed to be due until the creditor has knowledge of the identity of the debtor and the facts from which the debt arises (including deemed knowledge obtainable through reasonable care). The court noted that, on the papers as presented, it was unclear when prescription commenced, and it could not be determined with certainty whether and when the applicants had the requisite knowledge, or when the “debt” became due in the sense contemplated by section 12. The second respondent’s assertion of a buy-out arrangement and payment was treated as unsubstantiated on affidavit because it was not supported by documentary proof.

The court further referred to section 18 of the Prescription Act, which preserves the operation of laws prohibiting the acquisition of land or rights in land by prescription. The judgment also discussed section 20 of the Prescription Act in the context of “Black law,” indicating that, on the court’s reading, the prescription point was not properly sustained in the circumstances described in the papers. In addition, the court considered the dictum in Eskom v Bojanala Platinum District Municipality 2003 JDR 0498 (T) concerning the argument that a claim may not become due only when a claimant attains legal certainty; the court’s use of this authority formed part of its broader conclusion that the prescription objection, as advanced, did not justify dismissal of the application at this stage.

On the historical legal framework, the court considered provisions of the Black Administration Act 38 of 1927 (including sections referred to as dealing with the devolution and administration of property according to “Native law and custom,” and the forum for disputes about administration or distribution of deceased estates). The judgment accepted that, prior to the constitutional era, the Black Administration Act applied in a manner that entrenched male primogeniture in the administration of certain estates. The second respondent’s version relied on the proposition that Edgar Molefe inherited because he was the eldest/only male child, thereby excluding his sisters.

The court evaluated this reliance through a constitutional lens, referring to section 9(1) of the Constitution of the Republic of South Africa, 1996 and to section 39(2), which requires the promotion of the spirit, purport, and objects of the Bill of Rights when interpreting legislation and developing customary law. The court observed that male primogeniture in inheritance conflicts with these constitutional commitments and cited Bhe and Others v Magistrate, Khayelitsha, and Others (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004) for the proposition that the traditional justification for the rule of male primogeniture cannot be assumed to operate in the same way in contemporary circumstances.

At the same time, the court’s conclusion was not framed as a final determination of entitlement on the merits. Instead, the court emphasised that the papers disclosed multiple factual disputes central to the outcome, including whether a buy-out agreement existed, whether payments were made, and who the rightful heirs were (including disputes about biological children and the claims of grandchildren). The judgment also noted the relevance of the timing of Dikeledi Molefe’s death (recorded as October 1991) and the retrospective effect discussed in relation to the constitutional invalidation of section 23 of the Black Administration Act in Bhe, but treated these matters as further demonstrating that the dispute could not properly be resolved on affidavit.

The decisive procedural evaluation was that the disputes were material, went to the heart of the competing claims, and were not capable of resolution in motion proceedings. For that reason, the court held that the matter should be referred for oral evidence, and that the points in limine did not warrant the dismissal of the application on the papers.

5. Outcome and Relief

The court dismissed the points in limine raised by the first and second respondents, namely prescription, the contention regarding reliance on the Intestate Succession Act, and the attempt to dispose of the matter on the papers notwithstanding disputes of fact. The dismissal of these preliminary objections was made without an order as to costs.

The court ordered that the matter be referred for oral evidence in order to address and resolve the identified disputes of fact. The court further ordered that costs would be costs in the trial, thereby postponing any final allocation of costs until the factual issues had been ventilated and determined.

Cases Cited

Eskom v Bojanala Platinum District Municipality 2003 JDR 0498 (T).

Bhe and Others v Magistrate, Khayelitsha, and Others (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) (15 October 2004).

Legislation Cited

Intestate Succession Act 81 of 1987.

Prescription Act 68 of 1969.

Black Administration Act 38 of 1927.

Constitution of the Republic of South Africa, 1996 (Act 108 of 1996).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the preliminary objections advanced by the first and second respondents did not justify dismissal of the application on the papers. In particular, it held that prescription could not be determined against the applicants on the existing affidavits, and that the matter involved several material disputes of fact, including issues relating to alleged buy-out payments and the identification of heirs. The court held that these disputes rendered motion proceedings inappropriate and justified a referral to oral evidence. The points in limine were dismissed without a costs order, the matter was referred for oral evidence, and costs were ordered to be costs in the trial.

LEGAL PRINCIPLES

Prescription under the Prescription Act 68 of 1969 commences when a debt is due, and a debt is not deemed due until the creditor has knowledge of the identity of the debtor and of the facts giving rise to the debt, including knowledge that could be acquired by the exercise of reasonable care as contemplated in section 12.

Where the commencement and running of prescription cannot be determined on the affidavits, and where material factual allegations (such as alleged payments or agreements relevant to the claim) are unproven or disputed, prescription is not appropriately determined as a dispositive point in limine on motion papers.

The doctrine of male primogeniture in inheritance, as historically associated with the administration of estates under the Black Administration Act 38 of 1927, conflicts with constitutional norms of equality and the interpretive injunction in sections 9(1) and 39(2) of the Constitution, as reflected in the constitutional jurisprudence discussed in Bhe and Others v Magistrate, Khayelitsha, and Others.

Where the papers reveal material disputes of fact bearing on decisive issues—such as the existence of a buy-out agreement or the identification of heirs—the proper course is not final relief on motion, but a referral to oral evidence so that the contested factual issues can be tested and resolved.