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[2022] ZANCHC 36
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V.A.K and Another v G.K and Others (842/2021) [2022] ZANCHC 36 (14 June 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
NORTHERN
CAPE DIVISION, KIMBERLEY
CASE
NO: 842/2021
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Magistrates: YES/NO
Circulate
to Regional Magistrates: YES/NO
In
the matter between:
V[….]
A[….] K[….]1
First Applicant
F[....]
X[....]
Second Applicant
and
G[….]
K[….]2
First
Respondent
ESKOM
PENSION AND PROVIDENT FUND
Second Respondent
GOVERNMENT
EMPLOYEES PENSION FUND
Third Respondent
THE
MASTER OF THE HIGH COURT
Fourth Respondent
JUDGMENT
CHWARO
AJ
:
Introduction
[1]
This application concerns a family feud about the administration of
the estate of
the late Z[….] K[….]3, (“
the
deceased
”) and the assignment of guardianship and care over
the deceased’s surviving minor children.
[2]
The ensuing dispute resulted in an urgent application being launched
out of this Division
of the High Court on 26 April 2022, where the
first and second applicants seek, except the usual costs order,
relief in the following
terms:
“
1.
Dispensing with the forms and service provided in
the Uniform Rules of Court and condoning non-compliance
with the
Uniform Rules of Court relating to service and time periods in terms
of Rule 6(12);
2.
That the will of Z[….] K[….]3 is declared invalid and
he is declared to have died
intestate;
3.
That the First Respondent be removed as the executor of the estate of
Z[....] K[....]3;
4.
That the First Respondent be ordered to return S B K and A O K to the
care of the Second Respondent;
5.
That the First Respondent is ordered to return the property
belong[ing] to the estate of the deceased;
6.
That the Second Respondent be interdicted against making any pension
payments to the First Respondent
or the estate account;
7.
That the Third Respondent be interdicted against making any pension
payments to the First Respondent
or the estate account
.”
[3]
The application is opposed by the first respondent. The two pension
funds and the
Master of the High Court did not enter the fray. The
latter’s limited involvement in the matter came through a
Directive
that was issued by this Court as more fully appears below.
Factual
matrix
[4]
The first applicant , V[….] A[….] K[….]1, is the
eldest surviving
child of the three children born of the marriage
between the late Z[....] K[....]3 (“
Mr
K[....]
”
) and the late Nomfundo Sylvia K[....], (”
Ms
K[....]
”).
His siblings, SBK and AOK, are 9 and 7 years old respectively.
[1]
[5]
The second applicant, F[....] X[....], is the maternal grandmother of
the first applicant
and his two siblings, (“
the K[….]
children
”). The first respondent, G[....] K[....]2, is the
paternal grandmother of the K[....] children.
[6]
The K[….] children lost their parents almost three months
apart from each other
during 2021, with the late Ms K[….]
passing away on 12 August 2021 and her husband on 25 November 2021.
[7]
During her lifetime, Ms K[….] attested to a last will and
testament in terms
of which she, amongst others, bequeathed her
estate to her three children and nominated her mother, the second
applicant, failing
a natural guardian, as the guardian of her minor
children in terms of section 18 of the Children’s Act No. 38 of
2005.
[8]
The nominated executor of the estate of the late Ms K[….] ,
FNB Fiduciary (Pty)
Ltd, renounced their appointment as such. The
first applicant was subsequently appointed as an executor of her late
mother’s
estate. The first applicant in turn appointed his
present attorneys of record,
Thomas Kouter Attorneys
, to
assist him in the administration of the estate.
[9]
There is no dispute regarding the validity of the will of the late Ms
K[….]
and the fact that the K[….] children are the
testamentary heirs in respect thereof.
[10]
During December 2021 in the course of his engagement with the Master
of the High Court in respect
of his late father’s estate, the
first applicant learnt about the appointment of his paternal
grandmother as an executrix
of her late father’s estate
pursuant to a document which was purportedly a will left by his late
father.
[11]
The document purporting to be the will of the late Mr K[….]
was, on the face of it, attested
to on 22 October 2021. It was
accepted and registered by the Master of the High Court, Kimberley on
31 January 2022 in accordance
with the provisions of
section 8
of the
Administration of Estates Act No 66 of 1965
.
[12]
In terms of this will, the first respondent was nominated as the
executrix of the estate and
guardian of the two minor children. The
first respondent, in her capacity as the appointed executrix through
the letters of executorship
bearing the Master of the High Court’s
date stamp of 2 February 2022, in turn appointed Gqadushe Attorneys
to assist her
in the administration of the late Mr K[….]’s
estate.
[13]
During or about January 2022, soon after the burial of the late Mr
K[….], the first respondent
took the two minor children to
reside with her at Khayelitsha, in the Western Cape province where
they are presently attending
school.
Issues
for determination
[14]
Having outlined the brief background facts, this Court is then called
upon to determine, except
the preliminary issue relating to urgency ,
the following substantive issues:
14.1.
The validity of the will of the late Z[....] K[....]3;
14.2. The validity of the
appointment of G[....] K[....]2 as an executrix of the estate of the
late Z[....] K[....]3 and matters
related thereto ;
14.3. Whether G[....]
K[....]2, the first respondent, should be ordered to return the minor
children to the care of F[....] X[....],
the second applicant; and
14.4. Whether a proper
case for the granting of interdictory relief sought against the Eskom
Pension and Provident Fund and the
Government Employees Pension Fund
has been made.
Urgency
[15]
During the hearing of the application no serious contention was
pursued regarding the urgency
of the matter. Nonetheless, the
application was heard on a semi-urgent basis following the order that
was obtained by agreement
on 29 April 2022.
[16]
Our courts have always recognised that there are varying degrees of
urgency and thus matters
ought to be enrolled regard being had to the
exigencies of a particular matter and the extent to which the
applicant seeks to relax
the rules of court relating to time
periods.
[2]
[17]
In
East
Rock Trading
[3]
,
the court explained what is expected of an applicant who launches an
application in terms of
rule 6(12)
in the following terms:
“
T
he
import thereof is that the procedure set out in
rule 6(12)
is not
there for taking. An applicant has to set forth explicitly the
circumstances which he avers render the matter urgent. More
importantly, the Applicant must state the reasons why he claims that
he cannot be afforded substantial redress at a hearing in
due course.
The question of whether a matter is sufficiently urgent to be
enrolled and heard as an urgent application is underpinned
by the
issue of absence of substantial redress in an application in due
course. The rules allow the court to come to the assistance
of a
litigant because if the latter were to wait for the normal course
laid down by the rules it will not obtain substantial redress.
It
is important to note that the rules require absence of substantial
redress. This is not equivalent to the irreparable harm that
is
required before the granting of an interim relief. It is something
less. He may still obtain redress in an application in due
course but
it may not be substantial. Whether an applicant will not be able
obtain substantial redress in an application in due
course will be
determined by the facts of each case. An applicant must make out his
cases in that regard.”
[18]
In my view, the application was properly enrolled to be heard on a
preferential date as it involves,
amongst others, the interests of
the two minor children and their proprietary rights as heirs in the
estates of their deceased
parents.
[19]
The applicants, and indeed the minor children, might be severely
prejudiced by a hearing in due
course given the imminent disbursement
of the respective pension benefits due to the respective estates of
their deceased parents.
[4]
[20]
Accordingly, the application deserves to be heard on a semi-urgent
basis and condonation for
non-compliance with the rules regarding
service and time periods ought to be granted.
The
applicable test to determine disputes in motion proceedings
[21]
These being motion proceedings, it is apposite to restate the general
principle which the court
would normally adopt to assess and
determine the conflicting versions presented by the parties.
[22]
It is an established principle that in motion proceedings and with
regard to factual disputes,
the Court must consider the conspectus of
the facts as set out by the applicant, together with any facts set
out by the respondent,
which facts the applicant cannot dispute and
to consider whether the applicant should, on those facts, obtain
final relief in an
opposed motion.
[5]
[23]
It is only under circumstances where serious and substantive doubt is
demonstrated on the case
presented by the applicant that the latter
cannot succeed in motion proceedings.
[6]
Validity
of the will
[24]
The first applicant disputes the validity of the document purporting
to be his late father’s
will, which nominates his paternal
grandmother as the executrix of the estate and the guardian of his
siblings. To this end, he
instructed his attorneys to appoint a
forensic handwriting expert to analyse and compare the signatures
appearing on the will with
the specimen signatures of his late father
to determine whether the signatures appearing on the will were indeed
those of his late
father.
[25]
An entity known as
Handwriting Info Scientific
was appointed
to conduct forensic examination by comparing the signatures that
appeared on the document purporting to be the will
of Mr K[….]
with the specimen signatures sourced from various documents that were
signed by Mr K[….] during his lifetime.
[26]
In the report, which was attached to the applicants’ founding
papers, the conclusion of
the handwriting expert is that the
signatures which were uplifted from the disputed will do not resemble
the specimen signatures
which were taken from a total of eight
official documents provided to the handwriting experts that were
signed by the late Mr K[….]
during his lifetime between April
2010 and August 2021.
[27]
The first respondent disavows any knowledge of the document
purporting to be the will of her
late son, Mr K[….]. She
contends that on her instructions, her attorneys,
Gqadushe
Attorneys
, did inform his son’s former employer, the
Northern Cape Department of Public Works and Roads, that Mr K[….]
died intestate. This fact is further buttressed by the notice
of death form (J294) , which she had to complete for submission
to
the Master, reflecting that her son died intestate.
[28]
In the end, the first respondent formed common cause with the
applicants that the document purporting
to be the will of her late
son cannot be valid and falls to be declared invalid
ab initio
.
[29]
In the execution of his duties, the Master of the High Court is
enjoined to accept and register
a document purporting to be a will
provided that on the face of it, such document is complete, appears
to be regular and meets
the prescribed formalities prescribed in
terms of
section 2(1)(a)
of the
Wills Act, No. 7 of 1953
.
[7]
[30]
It is a trite principle of our law that the acceptance and
registration of a document purporting
to be a will by the Master is
an administrative function which does not translate into confirmation
of its validity. It is only
a court of law, once called upon to do
so, that can determine and pronounce on the validity of a will.
[8]
[31]
Forgery is one of the recognised grounds upon which the validity of a
will may be contested.
In the event of challenging the will on this
ground, the applicants would bear the onus to establish that the will
was indeed a
forgery.
[9]
[32]
Despite there being consensus between the applicants and the first
respondent that the purported
will falls to be declared invalid and
of no force and effect as none of them could vouch for its origin and
validity, this Court
became concerned by the fact that it was
nevertheless submitted by someone at the Master’s office where
it was accepted and
registered as such.
[33]
On the basis of this concern and after having sought the views of the
respective parties in writing,
this Court issued a Directive calling
upon the Master to file a report outlining the circumstances and the
reasons informing the
appointment of the second respondent as an
executrix.
[34]
In his initial report dated 23 May 2022, the Master of the High
Court, Mr C D Davids, informed
this Court that, amongst others,
the document that was presented as a will of the late Z[....]
K[....]3 was lodged by Gqadushe
Attorneys on 31 January 2022 and that
the Letters of Executorship was issued on 2 February 2022 to the
nominated executor as per
the will.
[35]
The Master’s report was availed to the parties. It became
apparent that the Master compiled
his report of 23 May 2022 without
having perused the answering affidavit filed on behalf of the first
respondent in opposing this
application. A subsequent Directive was
issued by this Court for the Master to consider the first
respondent’s answering
affidavit and, if needs be, file a
supplementary report.
[36]
The Master did file a supplementary report on 25 May 2022. In this
report, the Master confirmed
the contents of his earlier report
except to state that he was unaware as to who lodged the will with
his office. Subsequent thereto,
this Court requested the respective
parties to file additional written submissions in reaction to the
reports by the Master.
[37]
On consideration of the submissions and the papers filed of record,
considered against the similar
view expressed by the parties, it is
common cause that the document purporting to be the will of Z[....]
K[....]3 is not
valid.
[38]
Besides being disavowed by the respective parties , the uncontested
report of the handwriting
expert also confirmed that the signatures
appearing on the document purporting to be the will of the late Mr
K[….] did not
correspond with the true signatures as sourced
from various specimen submitted for comparison.
[39]
On the bases of all these factors, it is my finding that the document
purporting to be the will
of the late Z[....] K[....]3 was
executed as a result of fraud and is therefore declared invalid
ab
initio
in its entirety. Resultantly, Mr K[….] died
intestate.
Appointment
of the first respondent as an executrix
[40]
To the extent that the first respondent, G[....] K[....]2, was
appointed as the executrix of
the estate of the late Z[....]
K[....]3 as per the will and as more fully appears on the report of
the Master, such appointment
falls to be reviewed and set aside in
terms of the provisions of
section 95
of the
Administration of
Estates Act, No. 66 of 1965
.
[41]
In opposing the relief sought by the applicants, the deponent to the
answering affidavit indicated,
amongst others, that the first
respondent was not appointed as an executrix as per the will.
[42]
It was contended that she was nominated by the surviving major
children of the late Z[....]
K[....]3, namely N[....]
G[....]and L[....] F[....], who were allegedly born out of wedlock
from other relationships that the late
Mr K[….] had prior to
his marriage with Ms K[….].
[43]
Considered in their context, these assertions about having been
appointed pursuant to nomination
by the two children of Mr K[….]
are in clear contrast to the report submitted by the Master detailed
above.
[44]
In the report of the Master, the late Z[....] K[....]3 died
having left a will and the
same will nominated the first respondent
as an executrix, which nomination was duly endorsed by the Master in
accordance with the
provisions of
section 14(1)(a)
of Act 66 of 1965.
The Master did not appoint the first respondent in accordance with
any nomination by anyone as suggested in
the opposing affidavit.
[45]
In any event, a letter attached to the opposing affidavit and
purporting to be a nomination letter
from N[....] G[....]reveals that
the latter simply states that she is in Ireland visiting her mother
and thus appoint one Buyiswa
K[....] to represent her. No admissible
evidence has been provided to indicate that the said N[....]
G[....]is the daughter of
the late Z[....] K[....]3 and that
she consulted the first applicant , as one of the surviving major
heirs, in relation to
her purported nomination of the first
respondent as an executrix.
[46]
Similarly, the affidavit signed by one L[….] F[….] ,
who states that she gave permission
to the first respondent “
to
stand for her in everything
” that related to her
father, Z[....] K[....]3, does not constitute a proper
nomination letter to the first respondent
to act as an executrix of
the estate.
[47]
Based on the lack of credible admissible evidence demonstrating that
the deceased was her biological
father as well as her lack of
consultation with the first applicant, this affidavit of L[....]
F[....]renders her purported nomination
of the first respondent as
alleged to be doubtful.
[48]
The position of L[....] F[....]is further exacerbated by the fact
that she is not mentioned amongst
the names of the surviving children
of the deceased in the death notice (J294 form) completed and signed
by the first respondent
on 14 December 2021 and attached to the
opposing papers. Her name was also not mentioned in the next-of-kin
affidavit (J192 form)
completed and signed by the first respondent,
which is also attached to the opposing affidavit.
[49]
In my view, the validity of the alleged nomination of the first
respondent by the L[....] F[....]and
N[....] G[....], without the
involvement of the first applicant and a duly appointed
representative of the minor children, is doubtful.
The inescapable
conclusion is that there was no valid nomination of the first
respondent as executrix by the known heirs of the
late Z[....]
K[....]3.
[50]
In the result, the appointment and issuance of the Letters of
Executorship by the Master on 2
February 2022 to G[....]
K[....]2 either as per the will which has been declared invalid
ab
initio
, or through the purported nomination as alleged, is
reviewed and set aside and such appointment falls to be withdrawn by
the Master.
Return
of the goods taken by the first respondent
[51]
The first applicant contends that his paternal grandmother not only
took his siblings along with
her to Cape Town, but also took along
one of the motor vehicles belonging to his family, the keys of the
other motor vehicle which
is left in Kimberley, the remote control of
the house gates and other documentation relating to his deceased
parents. In response
to these averments, the first respondent
contends that she took these items in the exercise of her duties as
an executrix.
[52]
The position of the first respondent as an executrix has been dealt
with above. In the absence
of any legal title empowering her to take
possession of and remain with the movable properties belonging to the
estate, the first
respondent had no basis to remove the movable items
belonging to the K[....] children from their family home in
Kimberley.
[53]
These items must be returned to the family home to enable the
appointed executor or his/her agent
to proceed to deal with them in
accordance with the law. It is expected of her appointed attorneys ,
who have been appointed as
administrators of the estate on her
behalf,
Gqadushe Attorneys
, to ensure that a proper account is
made in respect of all the items and goods received by the first
respondent in her capacity
as an executrix and that same are returned
to be dealt with by whoever would be appointed as an executor.
[54]
In concluding this particular aspect of the judgment, it is apposite
to make the following observation:
Forgery amounts to a criminal
offence and in certain instances, forgery of a will might lead to the
guilty party being disqualified
from inheriting from the will.
[10]
One would have expected the office of the Master to have proper
systems in place in terms of which the office can easily
identify and
confirm the identity of a person who submits a will for registration.
However, it seems that the Master is unable
to identify the person
who submitted the document purporting to be the will of the late Mr
K[....] to his office for acceptance
and registration. This Court
would refrain from making any determination in that regard.
[55]
This Court finds comfort in the fact that in his founding affidavit,
the first applicant indicated
that he has laid a criminal charge with
the South African Police Service in relation to the document that was
submitted to the
Master purporting to be the will of the late Mr
K[....].
[56]
It is my hope that the law enforcement agencies will conduct thorough
investigations and pursue
the matter to its logical conclusion in
identifying the culprit, whose sole intention was to misrepresent the
fact that Mr K[....]
died intestate, impose the first respondent as
the executrix of the estate of Mr K[....] and nominate her as the
legal guardian
of the minor children.
Return
of the
minor children to the care of
the second respondent
[57]
In prayer 4 of the notice of motion reproduced in paragraph 2 above,
the applicants seek an order
directing the first respondent to return
the two minor children to the care of the second applicant.
[58]
The basis for the relief sought is premised on what the applicants
contend to be the testamentary
nomination of the second applicant as
a guardian of the minor children by the late Ms K[....], who in
clause 5 of her will, pronounced
her wish with regard to guardianship
in the following manner:
“
5.
Guardianship
5.1. Failing
a natural guardian, I nominate my mother F[....] X[....] as the
guardian of my minor children with full
parental rights and
responsibilities as contemplated in section 18 of the Children’s
Act No. 38 of 2005.
5.2. If it
should become necessary for any of the minor children to take up
residence with their guardian, I direct
that the costs of travel for
such children, as well as that of any person who my executors may
authorise to accompany them, shall
be borne by my estate.”
[59]
Ms K[....]’s testamentary wishes must be considered in line
with the provisions of section
27 of the Children’s Act,
providing for the assignment of guardianship through a will under
circumstances where the assigning
parent is the sole guardian of the
child.
[60]
On consideration of the facts in this matter, it is apparent that at
no stage during their lifetime
was there a stage where Ms K[....]
became the sole guardian of the minor children, which would have
entitled her to assign guardianship
as she did. The common cause
facts are that Ms K[....] predeceased her husband resulting in the
latter remaining as the sole guardian
of the minor children. As
indicated above, Mr K[....] died intestate and did not nominate
anyone for possible appointment as a
legal guardian of the minor
children.
[61]
The first applicant posits that prior to their removal to Khayelitsha
in Cape Town by the first
respondent, his siblings always lived with
their deceased parents at their family home in Kimberley, where they
attended school.
He avers that the conduct by the first respondent
not only deprives him of his entitlement to stay and reside with his
siblings
but is also an affront to the rights of the nominated
guardian, the second applicant.
[62]
On the other hand, the first respondent avers that after the death of
her daughter-in-law, she
had to move to Kimberley during October 2021
where she stayed at the K[....]’s homestead to take care of the
two minor children
and her son, the late Mr K[....].
[63]
Her short stay in Kimberley was not without incidents. She had
confrontations with her grandson,
the first applicant, which led her
to obtain a protection order against him. After the burial of her
son, she eventually went back
to Cape Town with the two minor
children to continue with their care and well-being, including
securing schooling for them.
[64]
It is without doubt that the first respondent removed and uprooted
the minor children from their
family home without any court order or
agreement between the involved parties. This amounts to self-help and
conduct that cannot
be countenanced and must be frown upon, given the
unfortunate turn of events where the K[....] children lost their
parents within
a very short period of time.
[65]
Notwithstanding the above, the fundamental question remains whether
it will be in the best interests
of the minor children to be uprooted
from Khayelitsha where they are presently residing with the first
respondent and attending
school and the first respondent be ordered
to return them to Kimberley.
[66]
It is a well-established principle of our law that in the
determination of any aspect relating
to minor children, that the
applicable standard that is employed by courts is the best interests
of the minor children.
[11]
This standard was even applied prior to the enactment of the
Constitution
[12]
and related
legislative prescripts governing matters related to children.
[67]
This principle was enshrined in section 28(2) of the Constitution and
provides that the best
interests of a child are of paramount
importance in any matter that concerns the child. This constitutional
principle is also found
in section 9 of the Children’s Act, No.
38 of 2005, (”
the Children’s Act
”).
[68]
In
Minister
of Welfare and Population Development
[13]
the apex court held that in applying the “best interests”
standard, courts must be flexible as individual circumstances
of each
case would determine which factors are more necessary and important
in securing the best interests of a particular child.
[69]
In
Fetal
Assessment Centre
,
[14]
the apex court reminded
us as follows regarding the best interests of the minor child
assessment:
“
I
n
South Africa, in addition to section 28(2) of the Constitution, the
common law principle that the High Court is the upper guardian
of
children obliges courts to act in the best interests of the child in
all matters involving the child. As upper guardian
of all
dependent and minor children, courts have a duty and authority to
establish what is in the best interests of children..”
[70]
Though there is a provision in the will of the late Ms K[....] about
her wishes in relation to
her minor children’s guardian, one
cannot disregard the fact that subsequent to her demise, Mr K[....]
remained the sole
surviving guardian of the minor children. Since he
died intestate, the interests of his immediate family members,
including the
K[....] children’s paternal grandmother, cannot
be ignored in the ultimate decision on who should be appointed as
their legal
guardian.
[71]
Having due regard to the interests of the two families involved in
this dispute, the need
for stability in the lives of the two
minor children and the general reluctance by courts to abruptly
interrupt the schooling activities
of the minor children, it is my
view that there is a need for a substantive application envisaged in
sections 23 and 24 of the
Children’s Act to allow a court
having jurisdiction to determine and decide on the assignment of
guardianship and care in
respect of the two minor children.
[72]
It is common cause that the minor children are presently residing
with the first respondent and
attend school in the Cape Town area.
There are no sufficient facts, supported by objective reports by,
amongst others, a family
advocate or similarly placed professional,
relating to the suitability or otherwise of either of the
parties to be awarded
the right to exercise guardianship and care,
including custody, in respect of the two minor children.
[73]
The exercise of guardianship over a minor child involves the
administration and safeguarding
of the child’s property
and property interests, assistance or representation in
administrative, contractual and other legal
matters and to give or
refuse consent on a variety of issues involving the minor child.
[15]
[74]
As an upper guardian of the minor children
[16]
and with due regard to their best interests relating to their present
residence, schooling and need to have family relations with
their
brother, the first applicant and their maternal and paternal
families, it is my view that a substantive application envisaged
in
sections 23 and 24 of the Children’s Act, supported by all
relevant and necessary information , ought to be initiated
by
any of the interested parties to allow a Court having jurisdiction
over the minor children, to finally determine the rights
of the
parties in relation to the contact, care and guardianship of the two
minor children.
[75]
It will not be in the best interests of the two minor children to be
removed from their current
place of residence and school under
circumstances where the rights relating to their contact, care and
guardianship have not been
finally determined.
[76]
The need to reach finality on guardianship , care and primary
residence of the two minor children
is important and it will be
remiss of me for not directing all interested parties to expedite the
initiation of an application
referred to above so as to allow a
competent Court having jurisdiction to determine these matters
in the best interests of
the two minor children.
Interdictory
relief against the two pension funds
[77]
The first respondent mounted a defence of
res judicata
in
respect of the relief sought by the applicants in prayers 6 and 7 of
the notice of motion reproduced above. In substantiation
of this
point, it was contended that the applicants brought a similar
application for interim relief against the same pension funds
at the
Regional Court for the Regional Division of the Northern Cape,
Kimberley and that the
rule nisi
obtained there was discharged
on 8 March 2022.
[78]
It is trite that a party seeking reliance on
res judicata
must
be able to demonstrate the involvement of the same parties in the
present and past litigation, which was on the same cause
of action on
the basis of the facts and the law and that the court gave judgment
on the substantive issues which it was called
upon to determine.
[79]
In
Yellow
Star Properties v MEC Department of Development Planning and Local
Government
,
Gauteng
[17]
the rationale behind res judicata was succinctly explained in the
following terms:
“
The
underlying ratio of the
exceptio
rei judicatae vel litis finitae
is that
where a cause of action has been litigated to finality between the
same parties on a previous occasion, a subsequent
attempt by one
party to proceed against the other on the same cause of action should
not be permitted
”
[80]
I am unable to sustain the defence of
res judicata
as raised
by the first respondent. Firstly, the second applicant was not a
party in the litigation which ensued in the Regional
Court and thus
the first requirement relating to similar parties having been
involved in the same litigation cannot be satisfied.
Secondly, the
papers do not demonstrate which legal or factual issue was placed
before the Regional Court for its determination
and lastly, it is not
clear whether the order discharging the
rule nisi
can be
equated to a judgment which was based on particular findings on the
facts and the law.
[81]
For these reasons, the point of
res judicata
as taken by the
first respondent falls to be dismissed.
[82]
It is trite law that an applicant seeking a final interdictory
relief must establish and
satisfy three requirements, being that such
an applicant has a clear right, that there is an irreparable harm
ensuing and the absence
of a suitable alternative remedy.
[18]
[83]
The basis upon which the first respondent claimed entitlement to be
appointed as an executrix
of the estate of the late Mr K[....] has
been fully canvassed elsewhere in this judgment. Having also found
that the late Mr K[....]
died intestate, it follows that his estate
ought to be dealt with in accordance with the provisions of
section
1(1)(b)
of the
Intestate Succession Act, No. 81 of 1987
.
[84]
It is not in dispute that the first applicant is the appointed
executor of the estate of her
late mother. As one of the descendants
of her late father, the first applicant has a clear and definite
right, sourced from the
above legal position which places him as one
of the descendants entitled to inherit from the intestate estate.
[85]
This right entails ensuring that the pension benefits emanating from
his late parents’
employers are paid over to the correct and
properly appointed executor for administration in accordance with the
applicable law.
This will , at the end, ensure that the benefits
accrue to the rightful descendants and/or heirs.
[86]
The first applicant, and indeed the two minor children, stand to
suffer irreparable harm should
the status quo be left undisturbed.
The first respondent’s appointment as an executor has been
found wanting and any payment
of the pension benefits in an estate
account under her control would result in irreparable harm to the
descendants, especially
under circumstances where these benefits may
be depleted.
[87]
The need to protect the pension benefits becomes even more important
since the interest of the
minor children, who are also descendants
and thus potential beneficiaries, are still to be determined in
relation to the appointment
of a possible legal guardian and the
responsible person/s who would be awarded their primary residence and
care.
[88]
I can think of no other suitable alternative relief other than an
interdict which is intended
at preventing the disbursement of pension
benefits to the estate account that was operated under the authority
of the first respondent.
Sans her appointment as an executrix, the
first respondent has no authority or entitlement to cause pension
benefits pay-outs to
be paid into an estate account that was opened
as a result of her purported appointment as such.
Costs
[89]
The general rule is that the costs follow the results
[19]
.
The determination of an appropriate costs order is a discretionary
matter which is entrusted on a Court having due regard to the
particular circumstances of each case, the issues and parties
involved as well as the general conduct of the parties in the course
of the litigation.
[90]
This application was initiated by the applicants in their endeavour
to safeguard the estate of
the K[....] children from being
administered by an executrix who was appointed under dubious
circumstances and where there was
uncertainty about the document
purporting to be a will of their father. The applicants further
sought to protect the rights of
the two minor children regarding the
assignment of a legal guardian.
[91]
It is without any doubt that the applicants are substantially
successful in this application,
and I find no other compelling
reasons that would dissuade me to allow the costs to follow the
results. The costs should, however,
not be inclusive of the costs
occasioned by the employment of two counsel as I find no
justification for such costs given the nature
of the issues in
dispute.
ORDER
[92]
The following order is made:
1.
The document purporting to be the will of
the late Z[....] K[....]3 is declared invalid, null and void.
2.
It is hereby declared that the late
Z[....] K[....]3 died intestate.
3.
The Master of the High Court, Kimberley is
directed to remove the first respondent, G[....] K[....]2, as the
executrix of the estate
of the late Z[....] K[....]3.
4.
G[....] K[....]2 is ordered to forthwith
return the movable items in her possession to the K[....] household,
represented by the
first applicant, situated in Kimberley,
including:
4.1.
The motor vehicle;
4.2.
The keys to the motor vehicle in Kimberley;
4.3.
Remote control of the Kimberley household
gate; and
4.4.
All documents and items belonging to and/or
relating to the deceased, Mr and Mrs K[....].
5.
That either the first and second applicants
or the first respondent and any other interested party who seeks to
be assigned guardianship
and care, including custody of the minor
children are directed to initiate, with the Court having
jurisdiction, an application
envisaged in
section 23
and
24
, read
with
section 29
of the Children’s Act 38 of 2005 within thirty
( 30) days from the date of this order.
6.
The Family Advocate, Kimberley is directed
to liaise with the Family Advocate, Cape Town to jointly prepare a
report for presentation
to the Court dealing with the application
envisaged in paragraph 5 above on the best interests of the two minor
children on the
aspects of guardianship, primary care, residence and
contact.
7.
That pending the finalisation of an
application envisaged in paragraph 5 above:
7.1.
the two minor children are to temporarily
reside with the first respondent who shall exercise such rights and
responsibilities in
relation to them;
7.2.
the first respondent shall ensure that the
first and second applicants have reasonable contact with the minor
children at all times,
which contact includes:
7.2.1.
telephone or electronic contact at reasonable times; and
7.2.2.
contact visits during long school holidays.
8.
The Eskom Pension and Provident Fund be and
is hereby interdicted from making any payment in respect of the
pension benefits of
the late N[….] S[….] W[….]
K[....] to the first respondent and/or to the estate account opened
by and/or on
behalf the first respondent in her capacity as the
executrix of the estate of the late Z[....] K[....]3.
9.
The Government Employees Pension Fund be
and is hereby interdicted from making any payment in respect of the
pension benefits of
the late Z[....] K[....]3 to the first
respondent and/or to the estate account opened by and/or on behalf
the first respondent
in her capacity as the executrix of the estate
of the late Z[....] K[....]3.
10.
The first respondent is ordered to pay the
costs, which costs shall be limited to the costs of one counsel.
O.K.CHWARO
ACTING
JUDGE OF THE HIGH COURT
NORTHEN
CAPE DIVISON, KIMBERLEY
DATE
OF HEARING: 13 May 2022
DATE
OF JUDGMENT: 14 June 2022
REPRESENTATIONS:
For
the applicants:
Adv P Mthombeni
With
him Adv T Tyuthuza
Instructed
by:
Thomas
Kouter Attorneys
Kimberley
For
the first respondent: Adv J Mongala
Instructed
by:
Gqadushe
Attorneys
Kimberley
[1]
The
full names of the minor children are withheld.
[2]
Luna
Meubels Vervaardigers (Edms) Bpk v Markin and another
1977 (4) SA
135
(W) at 137A-F
[3]
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite
and Others [2011] ZAGPJHC 196 (23 September 2011) at paras
6-7
[4]
See
Mogalakwena
Local Municipality v The Provincial Executive Council, Limpopo and
Others
[2014] 4 All SA 67
(GP) at para 64
[5]
Stellenbosch
Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd
1957 (4) SA
234
( C) which was later refined in Plascon-Evans Paints Ltd v
Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)
[6]
Webster
v Mitchell
1948 (1) SA 1186
(W) and Gool v Minister of Justice and
Another
1955 (2) SA 682
(C)
[7]
RP Pace
et
al
:
Wills and Trusts, Issue 22,November 2018, LexisNexis, p36(2)
[8]
Ibid
[9]
See
Pillay and Others v Nagan and Others
2001 (1) SA 410
(D)
[10]
Footnote
6 above
[11]
Fletcher
v Fletcher 1948 1 SA 130 (A)
[12]
Constitution
of the Republic of South Africa Act, 1996
[13]
[2000] ZACC 6
;
2000
(3) SA 422
(CC) at para 18
[14]
H
v Fetal Assessment Centre
2015 (2) SA 193
(CC) at para 64
[15]
Vide section 18(3) of the Children’s Act
[16]
See
Botes v Daly and Another
1976 2 SA 215
(N) at 222A–H.
[17]
[2009] 3 All SA 475
(SCA) at para 21
[18]
Setlogelo
v Setlogelo 1914 AD 221
[19]
Ferreira
v Levin, Vryenhoek v Powell
[1996] ZACC 27
;
1996 (2) SA 621
(CC) at para 3