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[2022] ZAFSHC 364
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Phoka v Chaka and Others (1591/2020) [2022] ZAFSHC 364 (4 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1591/2020
Reportable:
YES/NO
Of
interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
RETHABILE
ELIZABETH PHOKA
Applicant
And
DIMAKATSO
CHAKA
1
st
Respondent
MASTER OF THE HIGH
COURT
2
nd
Respondent
BLOEMFONTEIN
MACHINI ISMAEL
MOTLOUNG N.O.
LEGAL AID SOUTH
AFRICA
3
rd
Respondent
HEARD
ON:
09 JUNE 2022
JUDGMENT
DANISO,
J
DELIVERED
ON:
This
judgment was handed down electronically by circulation to
the
parties' representatives by email and by release to SAFLII. The date
and time for hand-down is deemed to be 15h00 on 4 October
2022.
[1]
The late Mr. Madoko Moses Phoka (“the deceased”) was the
father of the
applicant who was born from his previous marriage. He
died intestate on 7 May 20219. At the time of his demise he was
involved
in an intimate relationship with the first respondent, they
lived together at his family home with the first respondent’s
child (“the minor chid”) who was born during the
subsistence of their relationship.
[2]
During his lifetime the deceased was employed as a Chef by the South
African Defence
Force. Approximately a month after his death, the
applicant was contacted by the deceased’s employer to submit a
claim for
the deceased’s death benefits held by the Government
Employees Pension Fund (“the GEPF”) a pension fund
registered
in terms of section 4 of the Pension Funds Act.
[1]
Upon submitting her claim, the applicant discovered that the first
respondent had also lodged a claim for the deceased’s
death
benefits in her personal capacity and on behalf of the minor child.
The applicant objected to the first respondent’s
claim alleging
that the minor child was not the deceased’s biological child as
a result, the GEPF suspended the processing
of the claims pending the
ascertainment of the minor child’s paternity. The parties were
also directed to submit a letter
of authority duly issued by the
second respondent.
[3]
On 24 June 2020 the applicant launched an application in this court
comprising of
Part A in terms of which she sought an order compelling
the first respondent: to hand over the deceased’s
personal
documents including his original identity document; to
subject the minor child to a paternity (DNA) test to determine
whether the
deceased is the biological father of the minor child and;
in the event that the DNA test establishes that the deceased was not
the biological father of the minor child, the applicant seeks an
order in Part B on the following terms:
“
1.
a declaration that the minor child is not entitled to the death/
pension benefits and/or
the deceased estate of the late Madoko Moses
Phoka.
2.
that the Second Respondent issue a letter of authority granting the
Applicant
the authority to take control of the assets of the deceased
estate as the sole beneficiary of the deceased estate within 30 days
of this order.
3.
that First, Second and Third Respondents are ordered to pay the costs
of this
application jointly and severally, the one paying, the other
to be absolved in the event of opposition of this application.
4.
further and/or alternative relief.”
[4]
The order sought in Part A was granted by Raikane, AJ on 10 December
2020 then on
24 February 2022 Daffue, J amplified the order to
include the following provisions:
“
6.
The applicant shall ensure that the DNA tests results relied upon by
applicant
are properly confirmed under oath, which affidavit shall be
filed not later 10 March 2022.
7.
The first respondent shall subject the applicant, her child and any
willing blood
relative of the deceased to DNA testing which should be
done not later than 17 March 2022.”
[5]
It is the applicant’s case that pursuant to the court order,
the minor child
underwent DNA testing on 14 September 2021 and on 28
March 2022.
[2]
The results have
confirmed that the deceased was not the biological father of the
minor child and since the deceased never maintained
the minor child
during his lifetime, the minor child is not entitled to the estate of
the deceased.
[6]
The applicant states that the first respondent was never married to
the deceased,
her allegations pertaining to a customary marriage she
entered into with the deceased and that he maintained her and the
minor
child should be disregarded as they were only raised in her
replying affidavit to Part B. No such allegations were stated in the
replying affidavit to Part A, in fact the first respondent admitted
that after the minor child was born DNA test were carried out
on the
minor child when the first respondent sued the deceased for child
maintenance. Except to allege the DNA tests proved that
the deceased
was the biological father of the minor child, the first respondent
has since failed to provide the results as proof
in that regard. The
applicant is thus entitled to the relief she seeks in Part B, except
for the order directed at the second respondent
in prayer 2 of the
applicant’s notice of motion.
[7]
The application is opposed by the first respondent
[3]
on the grounds that the DNA results do not prove that the deceased
was not the minor child’s biological father they merely
prove
that the applicant and the minor child are not blood related which
can be expected in the absence of a blood relative of
the deceased
from whom blood samples were taken for the determination of the minor
child’s paternity. The DNA results are
for that reason
inconclusive and this outcome was in fact anticipated by the first
respondent hence she had requested that the
minor child’s DNA
be tested against a member of the deceased’s paternal family,
her request was rebuffed by the applicant.
It must also be borne in
mind that the basis on which the applicant seeks the relief is that
she is the only child of the deceased
based on the fact that she was
born during the subsistence of the erstwhile marriage of her mother
and the deceased, nowhere in
her founding affidavit does she allude
to the fact that she is the biological child of the deceased. In that
regard, it is highly
probable that the deceased was not the
biological father of the applicant which would explain why the
applicant has been found
not to be blood related to the minor child.
[8]
The first respondent contends that the applicant’s actions
herein are simply
motivated by malice, to strip the first respondent
and the minor child of all and any benefits of the deceased estate
that they
are entitled to and this is evidenced by the fact that
despite having hauled the first respondent to court the applicant
ignored
the terms of the court order granted in her favour, that the
minor child’s DNA be tested against that of the blood relative
of the deceased. The applicant instead, tested her own DNA against
that of the minor child and when the results returned inconclusive,
the applicant swiftly evicted the first respondent and the minor
child from their home.
[9]
The first respondent admits that when the minor child was born on 15
August 2012 she
was not married to the deceased. She however states
that at that time she had been in an intimate relationship with the
deceased
since 2009. On 27 August 2012 the deceased paid Lobola to
her family to formalize their relationship. Annexure “A”
attached to her replying affidavit is a copy of the Lobola agreement
concluded and signed by the family members of both the deceased
and
the first respondent. The first respondent further states that at the
time of his death, the deceased was solely responsible
for
maintaining her and the minor child as she had stopped working in
order to care for the deceased when he fell ill.
[10]
It is the first respondent’s case that by virtue of her
customary marriage to the deceased and
that he also provided
financial support to her and the minor child, both the first
respondent and the minor child are entitled
to be regarded as
beneficiaries of maintenance and inheritance from the deceased’s
estate. The application must accordingly
fail.
[11]
I agree with the first respondent’s contentions. This
application is fundamentally flawed in
many respects. On the
available facts, the trigger of these tenuous proceedings is the
GEPF’s decision to suspend the processing
of the claims for the
deceased’s death benefits pending the determination of the
minor child’s paternity.
[12]
The applicant’s reliance on the presented DNA results is
unsound. These particular results do
not constitute proof that the
deceased was not the biological father of the minor child, they
merely allude to the kinship between
the applicant and the minor
child namely that: the applicant and the minor child do not have the
same biological father. See on
the analysis conclusion, page 1 of the
Annexure “D”.
[13]
There is no merit to the applicant’s criticism of the
applicant’s failure
to present the DNA results she referred to
in her replying affidavit to Part A for the reason that, it is the
applicant who failed
to present evidence that the minor child was
nominated as a beneficiary of the deceased’s deaths benefits on
the basis of
being the biological child of the deceased.
[14]
Schedule 1 of the Government Pension Fund Rules contains the Rules of
the Government
Employees Pension Fund. Section 1 thereof defines a
beneficiary as a dependant which is any person, not only a biological
child,
in respect of whom the member is legally liable for
maintenance including a person whom a member is not legally liable
for maintenance,
if such a person was at the time of the death of the
member dependent to the member for maintenance.
[4]
The fact that at the time of his demise, the deceased lived with the
first respondent and the minor child and also provided for
them is
indisputable.
[15]
At the time the applicant launched these proceedings she was well
aware that a material dispute
of facts might arise in relation to the
status of the deceased and the first respondent’s relationship
and/or living arrangements
yet she insisted on proceeding on motion
proceedings. In argument, counsel for the applicant was adamant that
the order sought
by the applicant is obtainable on the papers alone.
I disagree.
[16]
The first respondent’s averments pertaining to the deceased
having been a party to a customary
marriage, the alleged financial
support dependency of the first respondent and the minor child on the
deceased during his lifetime
are not farfetched or improbable. These
allegations constitute real, genuine and bona fide disputed facts and
their veracity cannot
in my view, be determined without being
supplemented by oral evidence. As succinctly pointed out by Harms DP
in
National
Director of Public Prosecutions v Zuma
[2009]
ZASCA 1
;
2009
(2) SA 277
(SCA) at
para 25 that:
“
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It
is well established under the Plascon-Evans rule that where in motion
proceedings disputes of facts arise on the affidavits,
a final order
can only be granted only if the facts averred in the applicant’s
(Mr Zuma) affidavits, which have been admitted
by the respondent
(NDPP), together with the facts alleged by the latter, justify such
order. It may be different if the respondent’s
version consists
of bold or uncreditworthy denials, raises fictitious disputes of
fact, is palpably implausible, far-fetched or
so clearly untenable
that the court is justified in rejecting them merely on the papers.”
[17]
There is nothing peculiar about the second respondent having raised
these issues
in her replying affidavit to Part B, they are clearly
intended to respond to the relief sought in Part B.
[18]
In conclusion, having regard to the available facts, I’m not
persuaded that
the
applicant
has made out a case for the relief she seeks. The appropriate remedy
under these circumstances would be to dismiss this
application.
[19]
In the premises, I make the following order:
1. The
applicant’s application, Part B is dismissed with costs.
NS
DANISO, J
APPEARANCES:
Counsel on behalf
of Applicant:
Mr. Modisenyane
Instructed by:
Modisenyane
Attorneys
MrModisenyane@gmail.com
law@modisenyaneinc.co.za
BLOEMFONTEIN
Counsel on behalf
first Respondent:
Adv. Nyezi
Instructed by:
Lengau Attorneys
C/O Mpobole &
Ismail
lengauatt@gmail.com
BLOEMFONTEIN
[1]
Act 24 of 1956.
[2]
Pages 84 and 116 to 120 (“Annexure “D) of the indexed
bundle are copies of the “DNA results.”
[3]
The second and third respondents abide the decision of this court.
[4]
See also section 1 of the Pension Funds Act.