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[2022] ZAECELLC 7
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Abrahams and Another v Abrahams and Another (570/2021) [2022] ZAECELLC 7 (1 March 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION,
CASE
NO: 570/2021
Date
heard: 17 February 2022
Date
delivered: 1 March 2022
In
the matter between
MONIQUE
ABRAHAMS
First Applicant
(First
Respondent in the main application)
DENVER
ABRAHAMS
Second Applicant
(Second
Respondent in the main application)
And
MOIRA
SHARON
ABRAHAMS
First Respondent
(Applicant
in the main application)
THE
MASTER OF THE HIGH COURT,
PORT
ELIZABETH
Second Respondent
(Third
Respondent in the main application)
JUDGMENT
LOWE
J:
1.
This is an opposed interlocutory
application in terms whereof First and Second Applicants seek leave
to file a further affidavit
and leave to subpoena Mr. Mohamed Shuaib
Ahmed to appear and be examined and cross-examined as a witness at
the hearing of the
main application in due course.
2.
As to the costs of the application the
notice of motion simply sought that these be costs in the cause.
3.
The origin of the dispute between the
parties is raised in a further application relating to the last Will
and Testament of Applicants’
late father (the main application)
First and Second Applicants in the this interlocutory application
being First and Second Respondents
in the main application. The
contention of First Respondent in the main application (as Applicant
in the main application) is simply
that the signature on the relevant
Will is a forgery.
4.
First Respondent in the interlocutory
application (Applicant in the main application) opposes the
interlocutory application for
reasons which are not by any means
clear.
5.
In summary the origin of the interlocutory
application relates to Applicant’s attempt, in the main
application, to obtain
a confirmatory affidavit in support of their
case from the said Mr. M.S. Ahmed, as well as, in addition to this,
Applicant’s
wish to file a further affidavit in opposition to
the main application.
6.
The further background is well summarized
in Applicant’s heads of argument paragraph 7 - 10 which are
quoted below:
“
7.
With regard to Mr. Ahmed, the Applicants allege, that the deceased
approached Mr. Ahmed to assist him
in drawing up his last will and
testament. Their attorney of record made several attempts to obtain a
confirmatory affidavit of
Mr. Ahmed prior to the service and filing
of their answering affidavit in the main application, however, to no
avail. According
to the Applicants, Mr. Ahmed will be able to confirm
that he assisted the deceased in drawing up his last will and
testament dated
13 December 2018, but unfortunately the Applicants’
attorney of record’s efforts to obtain a confirmatory
affidavit,
to confirm this, came to naught.
8.
With regard to the further affidavit, the
Applicants seek to explain a discrepancy between affidavits filed on
their behalf in the
Magistrate’s Court, Port Elizabeth, in
domestic violence proceedings, and the answering affidavit filed in
the main application.
9.
In the Applicants’ answering papers
in the main application, First Applicant made the allegation that
neither she nor Second
Applicant was aware of the will, and that it
was only at the reading of the will on 1 June 2020 that they were
notified and had
sight of it for the first time. However, in their
affidavits filed in the Magistrate’s Court they allege that
they were aware
of the existence of the will prior to the deceased’s
death.
10.
It is contradiction which the Applicants
seek to explain in a further affidavit to be filed.”
7.
In their opposition First Respondent admits
that Applicants had difficulty in obtaining a confirmatory affidavit
from Mr. M.S. Ahmed
but deny that Ahmed had been approached by her
late husband. The affidavit descends into argument with frequent
reference to the
replying affidavit in the main application. It must
be said in fact that it is difficult to discern the basis of any
material defense
to the interlocutory relief which is sought in both
respects.
8.
It is no more nor less than a vain attempt
to force Applicants to proceed in the main application absent a
supporting affidavit
from Mr. Ahmed on the one hand and denying the
opportunity of explaining the issues already summarized above
relevant to the time
in which they first had knowledge of the Will in
issue.
9.
First Respondent’s heads of argument
take the matter little further and the difficulties faced in opposing
the application
on both issues was fully disclosed and ventilated in
the arguments raised before me. It need only be said that counsel for
First
Respondent understandably had some difficulty in advancing
cogent reasons why the relief sought should not be granted.
10.
The issues can be shortly dealt with as I
do below.
THE SUBPOENA OF MR.
AHMED
11.
Rule 6(5)(g) of the Rules of Court make it
clear that the Court may on application order that a person be
subpoenaed to appear and
be examined and cross-examined as a witness
in application proceedings.
12.
The
sub-rule is clearly not restricted to cases where oral evidence is
called for to resolve disputes of fact appearing in the affidavits
already filed
[1]
.
13.
But
just as in this matter the sub-rule applies to a party in an
application who requires the evidence of a person to be heard who
is
unwilling or unavailable to make an affidavit, that person being
subpoenaed with the leave of the court for the purpose of giving
viva
voce
evidence
[2]
.
14.
This is just such a matter and in my view a
proper case is made out for the relief sought in this regard.
LEAVE TO FILE A
FURTHER AFFIDAVIT
15.
Rule 6(5)(e) authorizes a Court in
appropriate circumstances to, in its discretion, permit the filing of
further affidavits.
16.
Again
in summary and whilst there are normally three sets of affidavits in
motion proceedings, a court may in the exercise of its
discretion
permit the filing of further affidavits where a consideration of the
fundamental issues relevant requires such affidavit
to enable the
true facts (relevant to the issues and dispute) to be adjudicated.
[3]
17.
The
test is no more nor less that of justice and equity, that is a
question of fairness to both sides as to whether or not further
sets
of affidavits should be permitted. This requires a proper explanation
as to why such an affidavit is required to be filed,
and was not
already so filed, and the Court must be satisfied that there is no
prejudice in this regard which cannot be remedied
by an appropriate
order as to costs
[4]
.
18.
In this matter there is a reasonable
explanation as to why the evidence was not produced previously. The
facts disclose that it
is of considerable materiality to the matter
and there is in essence no prejudice to First Respondent in the
interlocutory application
if leave is granted to deal with this
supplementary affidavit in further affidavits. In my view upon First
and Second Applicants
(Respondents in the main application) filing
such additional affidavit, the First Respondent (Applicant in the
main application)
should be afforded leave to deal therewith insofar
as she wishes to do so as appears from the order below.
19.
In short, I am satisfied that a proper case
is made out for the filing of such supplementary affidavit.
20.
It is unnecessary to deal with the issue of
costs for the reason that these were sought to be in the cause and no
cogent argument
was advanced as to why this should not be so.
ORDER
21.
In the result the application is granted
and the following order issues:
1.
That First and Second Applicants are
granted leave to file a further set of affidavits comprising an
affidavit by Second Applicant
dated 6 September 2021 together with a
confirmatory affidavit from First Applicant of the same date, within
5 days hereof;
2.
That First Respondent be granted leave to
file an affidavit in answer to the above, should she wish to do so,
within 10 days of
the filing of the affidavits referred to above;
3.
That First and Second Applicants are
granted leave to subpoena Mr. Mohamed Shuaib Ahmed to appear and be
examined and cross-examined
as a witness at the hearing of the main
application in due course.
4.
That the costs of the application are to be
costs in the cause.
M.J.
LOWE
JUDGE
OF THE HIGH COURT
Appearing
on behalf of the Applicants: Adv. T. Zietsman
Instructed
by: Greyvensteins Inc, Mr. Labuschagne
Appearing
on behalf of the Respondents:
Instructed
by: Andrew Meldrum Attorneys, Mr. A. Meldrum
[1]
Khumalo
v Director-General of Co-Operation and Development
[1990] ZASCA 118
;
1991 (1) SA 158
(A) at 167G; Moosa
Bros
and Sons (Pty) Ltd vs Rhaah
1975 (4) SA 87
(D) 91A – 93F.
[2]
Apleni
vs Minister of Law and Order
1989 (1) SA 195
(A) at 199C – E;
Eramus Superior Court Practice
2
nd
Ed Vol 2 D1 – 71.
[3]
South
Pinansula Municipality vs Evans
2001 (1) SA 271
(C) at 283A –
H; Dawood vs Mohamed
1979 (2)
SA
361
(D) at 365H.
[4]
In
Erasmus Superior Court Practice 2
nd
Ed vol 2 D1 – 68 sets out the factors that the Court will
consider
in
such an application.