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[2021] ZAGPPHC 235
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Maleka v Master of the High Court, Pretoria and Others (2020/46493) [2021] ZAGPPHC 235 (19 April 2021)
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IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION,
PRETORIA
CASE
NO:
2020/46493
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED
Date:
19 April 2021
DATE
OF
HEARING:
4
th
MARCH 2021
In the matter between:
MALEKA,
PHOGOTI
Applicant
and
MASTER OF THE HIGH COURT,
PRETORIA
First
Respondent
MANYAKA,
MARIA
HUNADI
Second
Respondent
REGISTRAR OF
DEEDS,
PRETORIA
Third
Respondent
NDLOVU,
GRACE
Fourth
Respondent
ABSA BANK
LIMITED
Fifth
Respondent
JUDGMENT
NYATHI AJ:
[1].
This is an opposed application in which the applicant seeks an order
against the respondents
in the following terms:
(a) An order in
terms whereof the appointment of the Second Respondent as an
executrix of the estate late Mapula Evah Manyaka
[ ID Number: […]]
by the First Respondent is reviewed and set aside in terms of section
91 of the Administration of Estates
Act 66 of 1965;
(b) An order in
terms whereof the Second Respondent is removed as Executrix of the
estate of the deceased Mapula Evah Manyaka
[ID Number: […]] in
terms of
section 54
(1) (a) of the
Administration of Estates Act;
(c) An order in
terms whereof the Second Respondent is declared incapable, for the
period of her life, to hold office of executrix;
(d) An order in
terms whereof the liquidation and distribution of the estate of the
late Mapula Evah Manyaka (ID Number: […]]
is reviewed and set
aside;
(e) An order in
terms whereof the deceased estate of the late Mapula Evah Manyaka [ID
Number: […]] is to be liquidated
and distributed
de nova
(f) An order
in terms whereof the Applicant or her nominee shall replace the
Second Respondent as executrix;
(g) An order
in terms whereof the purchase and sale agreement between the Second
Respondent and the Fourth Respondent
dated 27 November 2018 is
reviewed and set aside;
(h) An order
in terms whereof the decision of the Third Respondent to transfer the
deed of title in respect of Erf […],
City of Tshwane
Metropolitan Municipality, Gauteng to the Fourth Respondent is
reviewed and set aside;
(i) An order
in terms whereof the transfer of the immovable property, namely Erf
[…], City of Tshwane Metropolitan
Municipality, Gauteng
from the estate of the late Mapula Evah Manyaka [ID Number: […]]
to the Fourth Respondent and all
subsequent transfers is set aside
and declared null and void and cancelled;
(j) The
Registrar of Deeds (Pretoria) be and is ordered to cancel the title
deed […] in respect of ERF […],
City of Tshwane,
Gauteng, Registration Division JR, Province of Gauteng, and to cancel
all the rights accorded to the Fourth
Respondent (Grace Ndlovu)
and the Fifth Respondent (ASSA Bank Limited) by virtue of the deed;
(k) That the
Mortgage Bond No: […] be simultaneously cancelled with Title
Deed No: […], and which bond is registered
in favour of Fifth
Respondent, ABSA Bank Limited;
(I) An order
in terms whereof the Second Respondent is ordered to pay the costs of
this application,
de bonis propriis;
(m) An order in
terms whereof any other party opposing this application shall be
liable for costs of application, together
with the Second Respondent,
jointly and severally, one paying and the other absolved.
(n) Further
and/or alternative relief.
[2].
The first, third and fourth respondents have not filed any opposing
documents and opted
to abide by the outcome of the application.
APPLICANT’S
AFFIDAVIT
[3].
The applicant in her founding affidavit alleges that the deceased:
3.1 had
died intestate.
3.2
was not survived by a spouse and did not have any children in her
life.
3.3
had elected to raise her sister’s children as her own. The
second respondent was also
raised in the same house by the deceased.
[4].
She sharply takes issue with the second respondent’s use of
the
Manyaka surname. Applicant further accuses the second respondent of
having deceived the first respondent and misrepresented
herself as a
descendent of the deceased and sole heir to her estate.
[5].
The applicant
states that she and the second respondent’s mother
were
cousins.
SECOND
RESPONDENT’S ANSWERING AFFIDAVIT
[6].
Second respondent raises four (4) points
in limine
at the
onset and then responds to the applicant's allegations.
6.1
Firstly; there is a dispute of fact which cannot be resolved on the
papers. Second
respondent alleges that applicant’s application
is premised on the fact that the former is not the biological child
of the
deceased. Consequently, so the allegation goes, she is not
eligible to inherit, in terms of the
Intestate Succession Act No 81
of 1987
. The second respondent submits that on this ground alone, the
application ought to be dismissed with punitive costs.
6.2
The second point
in limine
deals with second respondent’s
locus standi to be the heir presumptive and the reverse
situation in so far as the Applicant
is concerned.
6.3
The third point relates to procedural matters more specifically that;
whilst
Section 95
of the
Administration of Estates Act 66 of 1965
does provide foe a review to be instituted in appropriate cases, such
review should comply with the provisions of
Rule 53
of the Rules of
the High Court. The second respondent avers that the applicant failed
to comply with the said
rule 53
in that the record of the master’s
proceedings does not form part of the purported review application.
The second respondent
thus submits that the application is for this
defect alone, fatally flawed and stand to be dismissed.
6.4
A further procedural point relates to the applicant seeking an order
for
the removal of the second respondent from the office of executor
of the estate in terms of
section 54
(1) of the
Administration of
Estates Act. The
subsection stipulates five specific instances of
misconduct for which a Court can order the removal of an executor of
an estate.
The second respondent submits that not even one of
those specific instances of misconduct was alleged or proved against
her.
Thus, the reliance on
section 54
(1) is misplaced and the
application ought to be dismissed with punitive costs.
6.5
The fourth point in limine is an allegation that the applicant’s
founding
affidavit is vague and embarrassing. Essentially this point
relied on a reference to by the applicant to the master of the High
Court Polokwane in the affidavit. This was conceded by the
applicant’s Attorney as a genuine typing error.
[7].
The second respondent then devotes a chapter in her replying
affidavit with the heading “history of birth and schooling”.
Herein she avers that she was born on the […] in
[…]
[…]. That she is the surviving and only daughter of the late
MANYAKA Mabotha Frank and MANYAKA Mapula Evah. She
attached a birth
certificate to this effect. It should be noted that the birth
certificate does not bear the names or identity
numbers of the
parents are.
[8].
The subsequent paragraphs of second respondent’s affidavit
go
to great lengths to set out the factual situation about this dispute
and goes on to deny and contradict the applicant’s
assertions.
[9].
In her reply the applicant also goes on the offensive in denying
the
second respondent's averments. This whilst stating that there is no
dispute of fact in these proceedings.
FACTUAL
POSITION
[10].
It is common cause that the deceased died on the 19 September 2009
without
a will.
[11].
The applicant alleges that she is the surviving sister of the
deceased and the only heir to her estate. She further states that
second respondent is not a blood relative, let alone a daughter
of
the deceased. The second respondent alleges that she is the surviving
and only daughter of the deceased. What the parties contend
in
turn is that the one party having locus standi to be an heir, the
other lacks such, and vice versa.
LEGAL
POSITION
[12].
One of the first things to be established when adjudicating a
litigious matter is whether the party initiating the proceedings has
the necessary
locus standi,
in other words, does he or she
have a sufficient and adequate direct interest in the subject matter
of the litigation to qualify
to approach the courts. See
Four
Wheel
Drive
Accessory
Distributors
CC
v. Leshni Rattan
N.
O.
2019 (3) SA 451
(SCA)
[13].
A similar requirement is expected of a defendant or respondent
to
allege and prove their locus standi in a matter. In so far as the
second respondent is concerned, her locus standi in these
instant
proceedings arise from the fact of her being an appointed executor of
the deceased estate when the application was launched.
In
Booysen
and Others v Booysen and Others
2012 (2) SA 38
(GSJ) it was held
that: “
In regard to the legal status of both the
deceased estate and the executor, the deceased estate is not a
separate persona, but the
executor is such person for
the purposes of the estate and in whom the assets and the liabilities
temporarily
reside in a representative capacity.
The executor only, has
locus standi
to
sue or to be sued.”
[14].
I now turn my attention to the legal principles governing the
existence
or otherwise of a dispute of fact in application
proceedings. In
Room Hire
Co
(Pty) Ltd v Jeppe Street
Mansions
1949 (3) SA 1155
(T) the court held that the crucial
question is whether there is a real dispute of fact. Where such is
apparent, it is undesirable
for the court to attempt to settle
disputes of fact solely on the probabilities disclosed in
contradictory affidavits.
[15].
Where a dispute of fact is shown to exist, however, the court has a
discretion as to the future course of the proceedings. The court may
adopt a robust common-sense approach and call for viva voce
evidence
to be led to resolve the dispute of fact in terms of
Rule 9.
This
approach was laid out in
Soffiantini v Mould
1956 (4) SA 150
(E).
[16].
If the above approach clearly cannot yield the result of resolving
the dispute
of fact then the parties may be sent to trial in the
ordinary way (either on the affidavits as constituting the pleadings,
or else
with a direction that pleadings be filed; otherwise, the
application may be dismissed with costs.
CONCLUSION
[17].
The dispute relating to locus standi is but one of many disconnects
contained in the affidavits filed
of record by the applicant and the
second respondent in this epic battle of wits. It points to the
intractability of the issues
central to the opposite contentions by
the party. This does not lend the matter to easy determination
without more on the affidavits
alone. The existence of the dispute of
fact is clearly an event that could be foreseen by the applicant on
her version alone.
[18].
I conclude that this matter should have been brought before court by
way of action proceedings.
[19].
In the circumstances, the application is dismissed with costs.
JS
NYATHI
Acting Judge of the
High Court Gauteng Division, Pretoria
HEARD
ON:
4th
March 2021
JUDGMENT
DATE:
19th
April 2021
FOR THE
APPELLANTS:
Mr JV Skosana
INSTRUCTED
BY:
JV Skosana Attorneys
FOR THE RESPONDENTS:
Adv Clinton Muza
INSTRUCTED
BY:
Mabapapa Attorneys Inc