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[2021] ZAGPPHC 288
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Mapea v Mapea and Others (36401/2018) [2021] ZAGPPHC 288 (12 May 2021)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 36401/2018
NOT
REPORTABLE
NOT
OF INTEREST TO OTHERS
REVISED
In
the matter between:
LESETJA
ROCKY
MAPEA
Applicant
And
PHEPHETHWA
ELSIE MAPEA N.O
First Respondent
MASTER
OF THE HIGH COURT
Second
Respondent
SIZAKELE
MONICA NHLAPHO
Third Respondent
Delivered.
This judgment was handed down electronically by circulation to
the parties’ representatives by email. The date and time for
hand down is deemed to be 10h00 on 12 May 2021.
JUDGMENT
SKOSANA
AJ
[1]
In this matter the applicant seeks the following order:
1.1
That a declaratory order be made in terms of section 2(3) of the
Wills Act 7
of 1953 (“the Act”) that the copy of an
affidavit marked “RM1” dated 27 January 2006(hereinafter
referred
to as “the note”) constitutes the Will and last
testament of the deceased, Ms Mpheu Monicca Makhubela;
1.2
Directing that the applicant personally is the only beneficiary with
regard
to the disposition of the immovable property situated at no.
945 Block C, Soshanguve, Pretoria (“the property”).
1.3
That the second respondent be ordered to accept the note for purposes
of the
provisions of the
Administration of Estates Act 66 of 1965
;
1.4
That the second respondent be directed to recall all letters of
executorship
issued to the first respondent;
1.5
That the first respondent be ordered to pay the costs of this
application if
she opposes it.
[2]
At the commencement of the proceedings before me, the applicant
applied
for postponement of this matter which I refused. I set out
the reasons for such refusal at a later stage in this judgment. The
matter has a long-convoluted history, I will only mention those
portions of such history which I find relevant for the purposes
of
this judgment.
[3]
The property which is central to the dispute in this matter is
immovable
property which is situated at no. 945 Block C, Soshanguve,
Pretoria. The property belonged to one Mr Jan Makhubela who passed
away
on 09 August 2002 and who was married to Ms Monicca Mpheu
Makhubela (“the deceased”). Subsequent to the death of Mr
Jan Makhubela, the deceased was issued with a certificate of
appointment under the Regulations for Administration and Distribution
of Estates of the Deceased Blacks published under Government Notice
No. R200 of 1987.
[4]
The deceased in turn died intestate on 16 October 2007. The first
respondent,
Elsie Phephethwa Mapea is the applicant’s
biological mother and the only child of Mr Jan Makhubela and the
deceased. She
was also appointed by the second respondent as
executrix in the estate of the Mr Jan Makhubela. The deceased is
therefore the applicant’s
grandmother on the maternal side. The
applicant was 24 years at the time of death of the deceased, being 16
October 2007.
[5]
Central to the applicant’s case is the note which is attached
to
his founding affidavit as annexure “RM1”. It comprises
an affidavit apparently made by the applicant’s grandmother
in
which she states that the is the lawful owner of the property and has
given it to the applicant. The applicant alleges that
the first
respondent (his own mother) failed to disclose the note to the second
respondent (the Master) at a time when she was
issued with the letter
of executorship. According to the applicant the note establishes that
the deceased wished the property to
be inherited by, and be given to,
him.
[6]
The applicant, first and third respondents lived together in Mamelodi
for a number of years. After the death of the deceased, the first
respondent committed to sell the property to the third respondent.
The third respondent secured a loan from the bank in this regard but
since transfer could not take place immediately due to the
delay in
the finalization of the deceased estate, the third respondent
occupied the property and paid occupational rent to the
first
respondent. All of this allegedly occurred with the knowledge and
consent of the applicant.
[7]
On 18 August 2017, the third respondent obtained an order of this
court
under case number 33141/17 against the first respondent
compelling her to transfer the property into the name of the third
respondent.
Subsequent to such court order, the first respondent
brought an application for rescission of that court order which was
dismissed
on 14 November 2018.
[8]
Thereafter the applicant instituted the present proceedings on 24 May
2018 without citing and/or notifying the third respondent. The
applicant obtained an order on an unopposed basis on 13 September
2018. This order was in conflict with the order obtained earlier by
the third respondent for the transfer of the property into
her name.
[9]
The third respondent then successfully brought a rescission
application
against the order of 13 September 2018 which included an
application for her joinder as the third respondent in the present
application.
In that regard, a court order was granted in favour of
the third respondent including an order of costs against the
applicant.
Thereafter, the third respondent duly filed her opposing
affidavit to the present proceedings.
[10]
Not only did the applicant fail to file a replying affidavit but he
also failed to
take any further steps to prosecute the application
with the result that the third respondent applied for a set down. The
applicant’s
attorneys also withdrew as his attorneys of record
at the beginning of March 2021. A proper notice of withdrawal as
attorneys of
record in terms of
Rule 16(4)
was filed in that regard.
[11]
Notwithstanding that such notice drew the applicant’s attention
to the provisions
of
Rule 16(2)
which requires him to appoint a new
attorney or to provide an address on which service of process could
be effected, he has failed
to do so. According to the notice of
withdrawal itself, it was provided to the applicant by electronic
mail.
Court’s
finding
[12]
The applicant has not filed heads of argument nor has he delivered a
replying affidavit
to the third respondent’s opposing
affidavit. The first respondent was duly appointed as an executor in
the estate of Jan
Makhubela and such appointment still stands. The
first respondent made a formal offer to purchase the property in
favour of the
third respondent on 22 October 2015 which was accepted
by the third respondent. The applicant signed as a witness on such
purchase
agreement. As a result, the third respondent has made
substantial improvements on the property.
[13]
The applicant relies on the note for his claim. He prays for an order
that the note
be declared as the deceased’s Will and last
Testament in terms of
section 2(3)
of the
Wills Act which
provides:
“
(3)
If a court is satisfied that a document or the amendment of a
document drafted or
executed by a person who has died since the
drafting or execution thereof, was intended to be his Will or an
amendment of his Will,
the court shall order the Master to accept
that document, or that document as amended, for the purposes of the
Administration of
Estates Act, 1965 (“Act 66 of 1965”),
as a Will, although it does not comply with all the formalities or
the execution
or amendment of Wills referred to in sub-section (1).”
[14]
The third respondent denies that the note is the deceased’s
will and that it
evidences the deceased’s intention to bequeath
the property to the applicant. The applicant has not replied and
therefore
the version of the third respondent should be accepted.
There are other potent factors militating against the acceptance of
the
note as the Will of the deceased, which include the following:
14.1
Section 2(3) requires me to be satisfied that the document was
drafted by the deceased.
The commissioner of oaths who attested the
affidavit (the note) has not filed any affidavit to confirm it. The
applicant states
that he was told that such commissioner has been
moved to another police station but does not furnish reasons why he
could not
follow him to that police station or wherever he is;
14.2
The contents of the affidavit themselves are vague. The deponent
states that she “
declared
” that she “
gave
”
the property to the applicant who resides with her;
14.3
It is not clear what previous declaration this statement refers to.
It also conflicts with
the evidence at hand since the applicant was
not residing with the deceased but at all material times resided with
her mother in
Mamelodi;
14.4
The importance of the requirement of two witnesses signing a Will
simultaneously with a
testator is that they should confirm that the
signature was appended to that Will by the testator. In the case of
the testator
signing by making a mark, a commissioner of oaths must
certify the identity of the testator and that the Will so signed is
that
of the testator. Even such assurance is absent in the present
case;
14.5
The applicant also avers that he was 24 years old when the note was
executed but fails
to clarify why he could not see the significance
of keeping a copy thereof for himself and of producing it earlier;
14.6
On the contrary, he makes contradictory statements in his affidavit.
On one hand he avers
that the first respondent failed to inform him
of the note but on the other, he says that the very first respondent
informed him
of the document. There would be no need to inform him of
a document which was executed in his presence. His grandmother would
have
taken him along for the very purpose that he should know about
the existence of the note. The applicant only produced the note in
2018, 12 years after its execution and 11 years after the death of
the deceased;
14.7
Fundamentally, what the note says is legally invalid. At the time
when it was executed
the property still belonged to Mr Jan Makhubela
and had not been transferred to the applicant’s grandmother.
She was merely
appointed as an executrix for that estate and could
only authorize transfer of any of the assets. However, those assets
including
the property did not belong to her and she could therefore
not lawfully give the property to the applicant as the note purports
to do.
14.8
It troubles me why the note surfaced when the first respondent began
to lose the battle
to the third respondent in respect of the
property. It is also concerning that the note purports to deal only
with the property
(the house) and not any other assets of the
deceased. In any event, the deceased could not include the property
in her Will because
she was not the lawful owner thereof. This then
defeats the very purpose of the declarator sought by the applicant as
the note
only concerns the property.
[15]
In the circumstances, I am not satisfied that the document was
drafted or executed
by the deceased and that it was intended to be
her Will. Since prayer 1 of the notice of motion is pivotal to the
applicant’s
case, there is no need to deal with the rest of the
relief sought therein.
[16]
As stated earlier, I dismissed the applicant’s informal
application for postponement.
My reasons are briefly as follows:
16.1
The third respondent successfully applied for joinder in the past.
She then filed an opposing
affidavit on 04 March 2021 and served it
on the applicant’s attorneys, MK Mabote Inc on the same day. On
the following day,
being 05 March 2021 the applicant’s
attorneys executed a notice of withdrawal as attorneys of record for
the applicant in
which they stated among others that such notice has
been served on the applicant by electronic mail.
16.2
The third respondent has, in anticipation of the request for
postponement, filed a supplementary
affidavit in opposition thereof
and in which she sets out grounds for such opposition. In such
supplementary affidavit the following
appears:
16.2.1
The notice of withdrawal as attorneys of record was served on the
third respondent’s attorneys on 09 March
2021;
16.2.2
On 12 April 2021, Mabote Inc supplied the applicant’s email
address to the third respondent’s attorneys
as
“rockymapea@gmail.com” and the third respondent served a
notice of set down through it on the same date;
16.2.3
On 13 April 2021, the third respondent’s heads of argument as
well as the index was served by email on
the applicant;
16.2.4
On 29 April 2021, a Mr Francois Nortje from the third respondent’s
attorneys telephoned the applicant and
requested him to respond to
emails and acknowledge receipt of documents;
16.2.5
On 29 April 2021, the applicant responded from the above-mentioned
email an acknowledged receipt of documents;
16.2.6
On 05 May 2021, the applicant sent an email, from the same email
address, to the third respondent’s attorneys
informing them
that he had approached the Legal Aid Board for assistance and that
the Legal Aid Board indicated that it was a short
notice and that he
should request a postponement. In argument before me the applicant
indicated that the Legal Aid Board refused
to provide him with
anything in writing.
16.3
The applicant flatly denied that he was aware of the withdrawal of
his attorneys until
late in April 2021. However, he was unable to
explain why he would not receive the numerous emails sent to him
through the email
address which he admits as belonging to him and
which he later used to acknowledge receipt and to communicate further
in this matter.
16.4
There is immense prejudice to the third respondent which will be
caused to the third respondent
by any further delay of this case and
which cannot be cured by an order of costs. In any event, an order of
costs would serve little
purpose as the applicant is currently
unemployed.
16.5
The third respondent has a court order in her favour entitling her to
the transfer of the
property. That order has not been challenged by
the applicant. I do not see how this court would be able to grant the
relief that
the applicant seeks in the present application while it
is in conflict with that judgment and order.
[17]
In the light of the above, I deem it appropriate to refuse the
applicant an indulgence
of a further postponement of this matter.
[18]
As to costs of this application, the general rule is that they must
follow the result.
I do not find any reason to deviate therefrom. In
any event, the conduct of the applicant as demonstrated by the
history of the
matter outlined above leaves much to be desired. The
least that could be done to show the court’s displeasure at
such conduct
is to mulct him with the costs of this application.
[19]
In the premises, I make the following order:
1.
The application is dismissed;
2.
The applicant is ordered to pay the costs of this application.
DT
SKOSANA (AJ)
Acting
Judge of the High Court
Gauteng
Division, Pretoria
Appearances:
For
Applicant:
Mr LR Mapea (in person)
For
First Respondent:
No appearance
For
Second Respondent: No appearance
For
Third Respondent:
Mr A Van Staden
Anton Van Staden Attorneys
243 Jan Van Riebeeck Street
Pretoria North, Pretora