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  • Mbali v Mhlekwa N.O and Another (2092/2022) [2022] …

Mbali v Mhlekwa N.O and Another (2092/2022) [2022] ZAFSHC 248 (15 September 2022)

80 Reportability
Trusts and Estates
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Brief Summary

Succession — Intestate succession — Declaration of rights — Applicant sought declaratory orders regarding her status as a permanent heterosexual life partner of the deceased and entitlement to benefits from his estate — First Respondent opposed application on grounds of non-joinder of the deceased's biological children, asserting they have a direct and substantial interest in the outcome — Court held that the biological children’s rights to inherit from the estate constitute a legal interest that may be prejudicially affected, necessitating their joinder in the proceedings — Application stayed for three months to allow for joinder of the biological children, with costs reserved for the main application.

Comprehensive Summary

Summary of Judgment


1. Introduction


This judgment concerns an application for declaratory relief brought in the Free State Division of the High Court, Bloemfontein. The applicant, Mase Minah Mbali, sought declarations relating to her alleged status as the deceased’s permanent life partner, and the consequent entitlement to inherit under intestate succession and to claim maintenance from the deceased estate.


The first respondent, Tlaleng Alina Mhlekwa N.O, was cited in her capacity as the executrix of the deceased estate, having been appointed by the Master under Letters of Executorship No 9086/2021. The second respondent was the Master of the High Court, Free State Province, Bloemfontein, cited because of the Master’s role in the administration of deceased estates.


The matter was opposed only by the first respondent, who raised special pleas including non-joinder of the deceased’s biological children and an objection that the relief sought was bad in law and/or premature. The court determined the matter on the basis of the non-joinder point and did not reach the further objections.


The general subject-matter of the dispute was whether the applicant’s alleged relationship with the deceased constituted a permanent heterosexual life partnership and, if so, whether that status could ground claims under the Intestate Succession Act and the Maintenance of Surviving Spouses Act, with the practical consequence that the distribution of the deceased estate could be affected.


2. Material Facts


It was largely common cause that the deceased, John Mahamba Maluleke, had been married to Irene Maluleke. One child was born of that marriage, Kgomotso Gordon Maluleke, on 2 February 2003. Irene died during 2004.


The applicant alleged that after Irene’s death she began a romantic relationship with the deceased and that she moved in with him around October 2004. On 16 November 2005, the applicant and the deceased had a child, Kamogelo Mbali. The deceased later died on 9 July 2021.


After the deceased’s death, the first respondent was appointed as executrix by the Master. A dispute arose in the administration of the estate because the first respondent did not accept the applicant’s assertion that she had been in a permanent marriage-like relationship (a permanent heterosexual life partnership) with the deceased. This refusal prompted the applicant’s approach to court for declaratory relief.


The applicant further stated that the deceased had another child from a relationship prior to his marriage to Irene, namely K[....] C[....] M[....], and that the deceased had not married that child’s mother. The judgment treated the existence of the deceased’s biological children as central to the procedural question whether they ought to have been joined, rather than resolving the merits of the applicant’s partnership claim.


The court’s reasoning proceeded on the basis that the relief sought, if granted, would potentially affect the shares to which the deceased’s biological children might become entitled in intestate succession and related estate administration.


3. Legal Issues


The central legal question determined was whether the deceased’s biological children had a direct and substantial legal interest in the relief sought such that they were necessary parties who had to be joined, and whether the failure to join them was fatal to the proceedings in their current form.


This was primarily a question of procedural law (joinder/non-joinder) informed by the substantive implications of the declaratory orders sought. The dispute required the court to assess the legal effect of the declarations on non-parties’ rights in the estate, which is an application of legal principles to the procedural posture and the nature of the relief claimed, rather than a determination of contested factual issues on the merits of the relationship.


Although the first respondent also raised that the relief was bad in law and/or premature, the court expressly found it unnecessary to decide those issues once it upheld the non-joinder point.


4. Court’s Reasoning


The court approached the matter by identifying the “nub” of the application as the declaration that the applicant had been in a permanent heterosexual life partnership with the deceased. The remaining prayers—entitlement to benefit under intestate succession, entitlement to maintenance from the estate, and the request that the administration be held in abeyance—were treated as consequential upon the partnership declaration.


In addressing joinder, the court referred to Uniform Rule 10(3) (relating to the joinder of multiple defendants) and then applied the settled principle that parties with a direct and substantial interest must be joined in applications seeking declarations of rights. The court adopted the formulation that a direct and substantial interest is a legal interest in the subject matter that may be prejudicially affected by the court’s order, and it relied on authority emphasising that courts should not make orders affecting persons without affording them a hearing.


The court rejected the applicant’s contention that the biological children’s interest was insufficient to require joinder. It reasoned that the children’s interest was not merely financial in a loose sense, but a legal right to inherit from their father’s estate. Because the declarations sought could enlarge the class of persons entitled to inherit and/or claim against the estate, the children’s potential inheritance could be reduced or otherwise affected. On that basis, their rights in succession were directly implicated.


Applying these principles, the court concluded that it was “axiomatic” that the biological children ought to have been joined, as the relief sought could prejudicially affect their succession rights. The failure to join them was treated as fatal to the application in its current posture, making it unnecessary to deal with the remaining defences.


Instead of dismissing the application outright at that stage, the court exercised case management through an order staying the matter to allow joinder, coupled with a mechanism permitting dismissal if joinder was not effected within the stated period. The costs order was similarly deferred to be determined as part of the main application.


5. Outcome and Relief


The court did not decide the merits of whether the applicant was in a permanent heterosexual life partnership with the deceased, nor whether she was entitled to inherit or claim maintenance. It determined only the procedural issue of non-joinder.


The matter was stayed for three months from the date of the order to permit the applicant to join the deceased’s biological children as parties to the main application, on the basis that their rights may be affected by the relief sought. The court ordered that costs be costs in the main application. It further directed that if joinder was not effected within that period, the respondents could approach the court on the same papers (duly amplified) for an order dismissing the main application with costs.


Cases Cited


Standard Bank of South Africa Limited v Swartland Municipality and Others 2011 (5) SA 257 (SCA)


Henri Viljoen (Pty) Ltd v Awerbuch Brothers 1953 (2) SA 151 (O)


Legislation Cited


Intestate Succession Act 81 of 1987


Maintenance of Surviving Spouses Act 27 of 1990


Rules of Court Cited


Uniform Rule of Court 10(3)


Held


The court held that the deceased’s biological children had a direct and substantial legal interest in the declaratory relief sought because the orders could affect their rights of succession in the deceased estate. As a result, they were necessary parties who had to be joined, and the failure to join them rendered the application procedurally defective in its present form. The court stayed the proceedings to allow joinder and deferred costs to the main application, with provision for potential dismissal if joinder was not effected.


LEGAL PRINCIPLES


The judgment applied the principle that in proceedings seeking a declaration of rights, all parties with a direct and substantial interest in the outcome must be joined. A direct and substantial interest was treated as a legal interest in the subject matter that may be prejudicially affected by the order ultimately made.


The court applied the further principle that a court should not determine issues in a manner that binds or prejudices persons who were not joined and therefore were not afforded a hearing, reflecting the procedural fairness requirement that affected parties must be given an opportunity to participate where their rights may be impacted.


In the context of deceased estates, the court treated a potential heir’s right to inherit as a legal interest of sufficient weight to require joinder where relief sought could alter the distribution of an estate by recognising an additional claimant (here, through a declaration of a permanent life partnership leading to intestate succession and maintenance claims).

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[2022] ZAFSHC 248
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Mbali v Mhlekwa N.O and Another (2092/2022) [2022] ZAFSHC 248 (15 September 2022)

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
no: 2092/2022
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
MASE
MINAH
MBALI
Applicant
and
TLALENG
ALINA MHLEKWA
N.O
1st
Respondent
MASTER
OF THE HIGH COURT, FREE STATE PROVINCE,
BLOEMFONTEIN
2
nd
Respondent
JUDGEMENT
BY:
MOLITSOANE,
J
HEARD
ON:
25
AUGUST 2022
DELIVERED
ON:
15
SEPTEMBER 2022
[1]
The
respondent
seeks
certain
declaratory
orders
set
out
as
follows.
In
the Notice of Motion:
"1.
That the applicant was involved in a permanent heterosexual life
partnership with the late JOHN
MAHAMBA MALULEKE ("the
deceased");
2.
That the applicant is entitled to
benefit from the estate of the deceased in terms of the Intestate
Succession Act;
3.
That the application is entitled to
claim maintenance from the estate of the deceased in terms of the
Maintenance of Surviving Spouse
Act;
4.
That
the
finalization
of
the administration of the estate
of
the
deceased
by
the first respondent be held in abeyance
ending the finalization of this application;
5.
Cost to be paid out of the proceeds of
the estate;"
[2]
The application is opposed by the First
Respondent only. The opposition is based on the special pleas:
"1.
That the respondent failed to join the biological children of the
deceased; and
2.
that the relief sought was either bad in
law and/or premature.
[3]
The facts of this matter are largely
common cause or are not seriously in dispute. One John Mahamba
Maluleke was married to one
Irene Maluleke. They had one child
Kgomotso Gordon Maluleke, born on 02 February 2003. Irene passed away
during 2004. It is the
case for the applicant that following the
passing on of Irene, she began a romantic relationship with the
deceased. It is the case
of the applicant that around October 2004
she moved in with the deceased.
[4]
On 16 November 2005 the deceased and the
applicant were blessed with a child, Kamogelo Mbali. The deceased
passed away on 09 July
2021. The First Respondent was appointed the
executrix by the Master of the High Court by virtue of Letters of
Executorship No
9086/2021.
[5]
According to the applicants, prior to
the deceased marriage to Irene, the deceased had a child, K[....]
C[....] M[....], although
he never married the latter's mother.
[6]
It is the case of the applicant that she
was in a permanent marriage relationship with the deceased. The First
respondent refused
to accept that fact and this prompted this
application.
[7]
It is the contention of the First
Respondent that the biological children of the deceased have a direct
and substantial interest
in the relief sought and that failure to
join them will affect them prejudicially.
[8]
Uniform Rule 10(3) provides for the
joining of multiple defendants as follows:
"(3)
Several defendants may be sued in one action either jointly, jointly
and severally, separately or in the alternative,
whenever the
question arising between them or any of them and the plaintiff or any
of the plaintiffs depends upon the determination
of substantially the
same question of law or fact which, if such defendants were sued
separately, would arise in each separate
action."
[9]
It
is settled that the interest's parties must be joined in an
application for a declaration of rights. What concludes a direct
and
substantial interest is the legal interest in the subject matter. The
court in Standard Bank of SA Ltd v Swartland Municipality
and
Others
[1]
said the following:
"[9]
It is now settled that an applicant for intervention must meet the
direct and substantial interest test in order to succeed.
What
constitutes a direct and substantial interest is the legal interest
in the subject matter of the case which could be prejudicially

affected by the order of the court. This means that the application
must show that is has a right adversely affected or likely
to be
affected by the order sought. But the applicant does not have to
satisfy the court at the stage on intervention that it will
succeed.
It is sufficient for such applicant to make allegations which, if
proved, would entitle it to relief.
[10]
If the applicant shows that it has some right which is affected by
the order issued, permission to intervene must be granted.
For it is
a basic principle of our law that no order should be granted against
a party without affording such party a predecision
hearing. This is
so fundamental that an order is generally taken to be binding only on
parties to the litigation.
[11Once
the applicant for intervention shows a direct and substantial
interest in the subject-matter of the case, the court ought
to grant
leave to intervene. In Greyvenouw CC this principle was formulated in
these terms:
"In
addition, when, as in this matter, the applicant base their claim to
intervene on a direct and substantial interest in
the subject-matter
of the dispute, the Court has no discretion: it must allow them to
intervene because it should not proceed in
the absence of parties
having such legally recognised interest."
[10]
The applicant contends that the assertion that the biological
children of the deceased have a
direct and substantial interest in
the outcome of the relief sought is unsustainable. It is contended
that 'there are at least
five prayers in the Notice of Motion
excluding the costs and any other relief which the court might
consider.
[11]
While
the nub of this application is the declaration whether the applicant
was in a permanent heterosexual life partnership with
the deceased
during his life time. The other prayers follow from the determination
of the declaration of the heterosexual life
partnership. The
interests that 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.
[2]
Should this court find that the applicant was in a heterosexual life
partnership with the applicant, 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 other issues raised
in this application in view of the order I make. I
accordingly make
the following orders:
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 JOHN MAHAMBA
MALULEKE in the main application, whose rights may be affected by the
relief sought by the applicant;
2.
Cost 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.
P.
MOLITSOANE, J
For
the Applicant:                                       N.W

.PHALATSI
Instructed
by:                                             NW

PHALATSI & PARTNERS
96
HENRY STREET, 2nd FLOOR
METROPOLITAN
BUILDING
BLOEMFONTEIN
For
the First Respondent:

CVOSLOO
Instructed
by:                                             VOSLOO

ATTORNEYS
ARANDWAGPARK
22
Mc
HARDY AVENUE 82,
BRANDWAG
BLOEMFONTEIN
[1]
2011(5) SA 257 (SCA).
[2]
Henri Viljoen(Pty) Ltd v Awerburch Bros 1953(2) SA 151(0).

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