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[2021] ZAGPPHC 242
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Phalala and Another v Mashamaite and Another (87755/2190) [2021] ZAGPPHC 242 (26 April 2021)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
PROVINCIAL DIVISION, PRETORIA
CASE
NO: 87755/2190
REPORTABLE:
NO
OF INTEREST TO OTHER
JUDGES:
NO
REVISED
Date
of hearing: 01 March 2021
In the matter between:
PHALALA;
CHRISTINA
MATLAE
1
ST
APPLICANT
PHALALA
;
VICTOR
2
ND
APPLICANT
And
MASHAMAITE;
MAUPYE RIBSON
1
ST
RESPONDENT
MASTER OF THE HIGH
COURT : PRETORIA
2
ND
RESPONDENT
JUDGMENT
NYATHI
AJ
INTRODUCTION
[1]
The First and Second Applicants filed an Application for review
against the Respondents
in which they are seeking an order in the
following terms:
1.1
That the decision of the Second Respondent of appointing the First
Respondent as the executor of the estate of the late
Mmeselane
Mackvellen Phalala be set aside.
1.2
Alternatively, that the First Applicant be appointed as co -executor
in the estate of the late Mmeselane Mackvellen
Phalala under estate
number […].
1.3
That the liquidation and distribution account be amended and ordered
the insertion of full properties registered
under the name of the
deceased together with the business interests held under the names of
the deceased.
1.4
The costs occasioned by the opposition of this application for
review.
1.5
Further and/ alternative relief as seems appropriate
to this Court.
FACTUAL
POSITION
[2]
The First Respondent was appointed to be an executor of the deceased
estate on
the 4"' September 2017, after being nominated by the
mothers of the deceased children. The fact that the deceased had died
intestate, was unmarried and is survived by children borne by the
various mothers who nominated the First Respondent for executorship
is common cause between the Applicants and the First Respondent. It
is a fact that is underplayed by the Applicants and emphasised
by the
First Respondent, which is unsurprising in any event.
[3]
In 2018, an application under case number 16868/18 was launched
against the Applicants
by the First Respondent, interdicting
the Applicants from interfering with the administration of the estate
of the deceased.
The application was struck off the roll for lack of
urgency and has not been re-enrolled to date.
[4]
The First and Second Applicants, who are the deceased's mother and
brother respectively,
then filed the present application, for the
review and setting aside of the decision of the second respondent.
[5]
The First Respondent requests in his answering affidavit that the
court should
dismiss the application, based on the points in limine
of lack of locus standi, irregular proceedings and non-joinder. The
Applicants
sought condonation for the late filing of this review
application. The First Respondent opposes the application, while the
Second
Respondent does not.
[6]
Having regard to the importance of the matter at issue, I granted the
condonation
application and went on to hear submissions by Counsel
for both sides.
THE
POINTS IN LIMINE
[7]
The First Respondent raised three points in limine, the first of
which is that
the Applicants lacked the requisite locus standi to
bring this application. In his answering affidavit, the First
Respondent states
that the Applicants do not have a direct and vest
ed interest in the relief that they seek.
[8]
The second point in limine was an allegation by the First Respondent
that the Applicants
have brought the application in an irregular
fashion . Namely, that the Applicants have brought the review
application in terms
of
section 95
of the
Administration of Estates
Act 66 of 1965
which states that
8.1
"Every appointment by the Master, of an executor, tutor,
curator or interim curator, and every decision, ruling, order,
direction
or taxation by the Master under this Act shall be subject
to appeal to or review by the Court upon motion at the instance of
any
person aggrieved thereby, and the Court may on any such appeal or
review confirm, set aside or vary the appointment, decision, ruling,
order, direction or taxation, as the case may be."
8.2
The Promotion of Administrative Justice Act (hereinafter referred to
as
"PAJA") entitles a party to bring a review of an
administrative decision. More specifically section 3 of PAJA
stipulates
that, a person can review an administrative action which
materially and adversely affects the rights or legitimate
expectations
of any person if such decision is procedurally unfair.
[9]
The First Respondent contends that the Applicant should rather have
complied with
Rule 53 of the High Court Rules. I will curtail my
analysis of this point of objection at this stage for reasons that
will appear
later in this judgment.
[10]
The third point in limine relates to non -joinder . The First
Respondent submits that the Applicants
have cited the First
Respondent in his personal capacity instead of in his official
capacity as executor of the deceased estate.
THE
APPLICABLE LAW
[11]
The estate of a person who dies without leaving a valid will is
distributed in terms of the provisions
of the
Intestate Succession
Act 81 of 1987
. This Act came into operation on the 18 March 1988.
[12]
Section 1 (1) (b) provides that: "If after the commencement of
this Act a person (herein referred to as the "deceased")
dies intestate, either wholly or in part, and ...is survived by a
descendant, but not by a spouse, such descendant shall inherit
the
intestate estate;"
[13]
Section 1 (2) of the
same Act states that
"Notwithstanding
the
provision of any law or the common law, but subject to the provisions
of this Act and section 5 (2) of the Children's Status
Act, 1987,
illegitimacy shall not affect the capacity of one blood relation to
inherit the intestate estate of
another
blood relation."
[14]
The primary rule of
statutory interpretation is that if the meaning of the words is
clear, it should be put into effect, and, indeed,
equated with the
legislature's intention (Principal Immigration Officer v Hawabu 1936
AD 26)
[1]
[15]
This traditional
plain meaning approach to statutory interpretation is still firmly
entrenched in our law with courts reluctant
to
challenge it
needlessly.
[2]
[16]
The law governing
locus standi is long established but was revisited by
the
Supreme Court of Appeal (SCA) in recent times. In Four Wheel Drive
Accessory Distributors CC v Leshni Rattan NO 2018 JDR 2203
(SCA), the
SCA
considered
the requirements for
locus
standi,
being
that the appellant must
have an adequate interest in the subject matter of the litigation;
the interest must not be too remote;
the interest must be actual; and
the interest must be current (not hypothetical) and concluded that
the court
a
quo
rightly
found that the appellant had failed to establish
locus
standi.
This
was dispositive of
the
matter in this case.
[3]
CONCLUSION
[17]
The First and Second Applicants in this application are the
deceased's mother and brother,
respectively. It is common cause that
the deceased was not married at the time of his demise. And that he
is survived by several
children. The provisions of the
Intestate
Succession Act have
been summarised above and are explicit on who
should succeed the deceased
[18]
Whilst the Applicants make allegations that the assets that
constitute the estate were part of a family business,
they remain
mere assertions with no evidence that is probative of the existence
of such a family business.
[19]
The evidence presented in this application, considered holistically,
leads me to a conclusion that the First Respondent has persuaded me
that the First and Second Applicants have no direct and substantial
interest in the matter to qualify to apply for the remedy they are
seeking.
[20]
In the circumstances, it is unnecessary to traverse the merits of the
remaining points in limine, having sustained the submission that the
two Applicants lack the requisite locus standi.
The application is
dismissed with costs jointly and severally, the one paying the other
to be absolved.
J.S.
NYATHI
Acting Judge of the High
Court
Gauteng Division,
Pretoria
Date judgment delivered:
26 April 2021.
On behalf of the
Applicant: Adv Mabotsane Nteso
Instructed by Kgoshishi
A. Mamabolo Attorneys Inc.
Ref: KAM/EST/016/2019
Tel: 015 297 7430
Fax: 086 2269 210
C/O AL. Maree Inc
79 Bronkhorst Street.
Groenkloof, PRETORIA
Tel: 012 346 0049
Fax: 0866 201 202
E-mail:
info@almlaw.co.za
Ref: Ms AL Maree/JS
Mahlangu/KS3
On behalf of the
Respondent: Adv Nyiko Mhlongo
Instructed by: Mashamaite
MR Attorneys Inc, Pretoria
206 Sophie de Bruyn
Street.
Olivetti House
Tel:
(012) 3211152
Email:
m
rmashamaiteattorneys@gmail.com
Ref:
MMR/146/2017
[1]
Referred with approval by Christo Botha -
Statutory
Interpretation
4
th
Edition 2007.
[2]
Public
Carriers
Association
v
Toll
Road
concessionaries (Pty)
Ltd
1990 (1)
SA
925
(A)
at
934J,
Swanepoel
v Johannesburg City
Council
[1994] ZASCA 80
;
1994 (3) SA 789
(A) at 794B
[3]
Jonathan Witts-Hewinson
-
Cliffe Dekker Hofmeyr 27 February 2019.