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[2021] ZAGPJHC 564
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Mosuetsa v Mosuetsa and Others (A5056/2017) [2021] ZAGPJHC 564 (28 July 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: A5056/2017
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
In
the matter between:
DERRICK
THABO MOSUETSA
APPELLANT
And
PERCY
SULI MOSUETSA
FIRST RESPONDENT
GARY
SEFAKO MOSUETSA
SECOND RESPONDENT
TSHEPO
REUBEN MOSUETSA
THIRD RESPONDENT
MASTER
OF THE HIGH COURT
FOURTH RESPONDENT
REGISTRAR
OF DEEDS
FIFTH RESPONDENT
JUDGMENT
MAKUME
J
:
[1]
On the 13
th
October 2016 my brother Vally J ordered as follows:
1.1 The
Second Respondent (the Master) is directed to retrieve and reactivate
his files on the following deceased
estates:
i)
Sibongile Norma Mosuetsa – Estate Number 1999/08.
ii)
Mosuetsa Solomon Pusetso – Estate number 8893/2012.
1.2 The
Second Respondent is to receive a full and detailed report from
Derrick Thabo Mosuetsa as to what he has
done with regards to each of
the estates.
1.3 The
report referred to in paragraph 2 above is to be made available to
the first Applicant (Percy Mosuetsa),
the second Applicant (Gary
Sefako Mosuetsa) and the third Applicant (Tshepo Mosuetsa).
1.4 The
second Respondent is to convene a meeting between first Respondent
(Derrick Thabo Mosuetsa) and the three
Applicant and receive
representations from them regarding the finalisation of the
administration of the two Estates referred to
in 1 above.
1.5 The
second Respondent is to file a report with this court within five
months of the d ate of this as to finalisation
of the administration
of the two estates referred in paragraph 1 above.
[2]
Leave to appeal against the orders referred to above was granted. The
Appellants main
grounds of appeal being the following:
2.1
Whether when presented with an application to remove the Appellant as
the Master’s appointed representative
of the deceased estates,
it was available for Vally J to grant orders not sought by either the
first Respondent or the Appellant.
2.2
Whether the first Respondent has
locus standi
to seek removal
of the Appellant as the appointed Master’s representative to
the deceased estate of S.P. Mosuetsa’s
2.3
Whether the order by Kgomo J dated the 10
th
October 2013
in terms of which it was directed that the first Respondent be
evicted from the property situated at Erf [....] Molapo
Township,
Soweto (the property) is
res judicata
.
FACTUAL
BACKGROUND
[3]
In order to contextualise the dispute it is necessary to provide a
brief chronology
of salient events leading up to the proceedings in
the court below. What follows is a summary of relevant facts that
were either
common cause of not seriously disputed or refuted on the
papers.
[4]
The deceased Sibongile Norma Mosuetsa (Sibongile) and Solomon Pusetso
Mosuetsa (Solomon)
were married in community of property during or
about the year 1968.
[5]
It would appear that prior to their marriage Sibongile had given
birth to the first
Respondent. Solomon is not the biological father
of the first Respondent.
[6]
During the subsistence of their marriage the couple gave birth to the
Appellant Derrick
Thabo as well as Gary Sefako and Tshepo Reuben, the
second and third Respondents in this appeal.
[7]
The couple owned two properties namely:
i)
Erf
[....] Kgopotso Street, Molapo, Soweto (the property);
ii)
Erf
[....] Rockville, Soweto.
[8]
Sibongile passed away in the year 2003. The Appellant was issued with
letters of Authority
by the Master on the 21
st
February
2008 under Estate number 1999/08.
[9]
The letter of Authority authorised the Appellant to take control of
the assets of
the deceased (Sibongile) which includes Erf [....]
Molapo (the property) to pay the debts and to transfer the residue to
the heirs
entitled by law. The letter of Authority was issued in
terms of Section 18(3) of the Administration of Estate Act No 66 o
1965.
[10]
On the 20
th
December 2011 Solomon passed away and on the
12
th
April 2012 the Appellant was issued with Letter of
Authority by the Master.
[11]
On the 14
th
October 2007 Solomon had deposed to an
affidavit at Moroka Police Station in which he said that he is the
owner of the house situated
at [....] Molapo, Soweto that he is
donating that property to the Appellant.
[12]
On the 12
th
December 2012 the fifth Respondent (the
Registrar of Deeds) Transferred the property to the Appellant and his
wife Gertrude Teboho
Mosuetsa (Deed of Transfer number
T00047855/2012)
[13]
On the 10
th
October 2013 under case number 45494/2011
Kgomo J issued an order evicting the first Respondent Percy Suli
Mosuetsa from the property.
That judgment still stands and has never
been appealed.
[14]
It was shortly after the judgment by Kgomo J that the first
Respondent issued a notice of motion
citing himself as the first
Applicant supported by Gary and Tshepo as second and third Applicants
in which he sought the following
relief:
14.1 That the
second Respondent (the Master) be ordered to remove the first
Respondent (Derrick Thabo Mosuetsa) as an Executor
or representative
of the Estate of Sibongile Norma Mosuetsa 1999/08 and Estate of
Solomon Pusetso Mosuetsa estate number 8893/2012.
14.2 That the
second Respondent be ordered to appoint an independent Executor in
both the estates of the late Sibongile and
Solomon Mosuetsa.
14.3 That the third
Respondent (the Registrar of Deeds) be ordered to reverse transfer of
ownership of the property described
as [....] Kgopotso Street,
Molapo, Soweto from the first Respondent’s name
14.4 That the
fourth Respondent be ordered and interdicted from carrying out and or
executing a warrant of ejectment against
the first Applicant (Percy
Suli Mosuetsa) and all those claiming occupation through him whilst
this matter is still pending.
14.5 That the
annexure PSM3 be declared null and void and that the estates of both
Sibongile and Solomon Mosuetsa be administered
in terms of interstate
succession.
[15]
Pleadings were closed and the matter served before my brother Monama
J who then issued the following
order on the 7
th
November
2014:
15.1 The
application is postponed
sine die
.
15.2 The first
Respondent (Derrick Mosuetsa) is ordered to finalise the
administration of his late mother’s estate and
his late
father’s estate within 3 months from 7
th
November
2014 or any extended time that may be agreed to by the Master of the
High Court.
15.3 In the event
that the first Respondent fails, refuses and or neglect to perform as
ordered above, the Master of the High
Court is ordered to remove him
as the representative of the two estates. In that event the relatives
of the deceased are ordered
to commence the appointment for the
administration of the two estates
de novo
.
15.4 Pending the
compliance with order 2 above the first Respondent and his wife are
prohibited to alienate the property mentioned
in order 5 below.
15.5 The eviction
of the first Applicant from the property known as Erf [....] Molapo,
Soweto is postponed sine die pending
the proper finalisation of the
liquidation and distribution of the estate as ordered in order 2
above.
[16]
On the 21
st
April 2016 this matter served before Coppin J
who made an order that the Master of the High Court (Second
Respondent) should furnish
a report about the two estates. The matter
was postponed to the 30
th
May 2016 and then to the 8
th
August 2016 for hearing in the opposed motion roll. It was then heard
by Vally J who made the order that is the subject of this
appeal.
[17]
The property situated at Molapo originally belonged to the parents of
Solomon namely Isaac and
Pauline Mosuetsa, Solomon donated that
property to Derrick the Appellant as it had been the instruction of
his grandparents.
[18]
On the 13
th
April 2016 the Appellant complied with the
order by Monama J and deposed to an affidavit in which he stated that
he had finalised
the administration of the estate in that he had
already taken transfer of the property at Molapo which in any case
had been donated
to him by his father which means that in any case
when Solomon passed away the Molapo property did not fall within his
estate.
[19]
In his report the Appellant stated that the home at Rockville was
still registered in the names
of his parents and that the house was
occupied by his brothers namely Gary and Tshepo. He stated that
because of lack of funds
the three of them have not been able to
finalise the transfer of that property to the three of them as the
only heirs to that property.
He finally in paragraph 3.4 stated that
“
there are no assets remaining in the estate which require
distribution, liquidation and administration
.”
[20]
On the 26
th
May 2016 the Master of the High Court (Second
Respondent) filed a report pursuant to the order by Coppin J dated
the 21
st
April 2016. In the report the second Respondent
says that on the death of Solomon his three children namely Derrick,
Sefako and
Tshepo became the only interstate heirs to their father’s
estate and that the Appellant was duly appointed as the Estate
Representative.
[21]
Of critical importance is what the Master says in paragraph 6 of his
report which reads as follows:
“
I
hereby confirm that as the Master issued letter of Authority the
matter has been filed off.”
[22]
The supplementary master’s report dated the same day made it
clear that once a Section
18(3) Letter of Authority is issued it is
the end of the Master’s involvement in the estate that is why a
file is therefore
closed and filed away.
ISSUES
FOR DETERMINATION IN THIS APPEAL
[23]
The following issues are in my view pertinent for the resolution of
the disputes in this appeal:
i)
On
the death of Mrs Sibongile Norma Mosuetsa what happened to her
estate?
ii)
The
effect of the judgment by Kgomo J dated the 10
th
October 2013.
iii)
The
orders granted by Vally J are they orders resulting from what was
asked for by the Respondents.
iv)
Has
the Appellant and the second Respondent (the Master) complied with
the orders by Monama J and Coppin J.
v)
The
difference between an appointment in terms of Section 18(3) of the
Administration of Deceased Estate and the issue of letter
of
Executorship.
vi)
The
first Respondent having correctly identified in his heads that he is
only entitled to inherit from the estate of his deceased
mother, the
question is what did the late mother’s estate comprise of?
[24]
It is perhaps appropriate to have an understanding as to what a
Letter of Authority issued by
the Master in terms of Section 18(3) of
the Administration of Estate Act means to the holder thereof.
[25]
It is common cause that if the gross value of an estate is presently
less than R250 000.00 the
master has a choice, he can appoint an
Executor to administer the Estate in accordance with the provisions
of the Administration
of Estates Act or give directions to a person
of his choice to finalise the estate in a fast and simple manner.
[26]
If the Master decides on a Section 18(3) appointment he issues a
written directive in which the
person charged with the duties is
ordered to take control of the estate assets, pay the estate
liabilities and transfer ownership
of the residue to the
beneficiaries. The master then regards the matter as finalised and
closes his file. The onus to execute the
directive rests entirely
with the person charged therewith. The provisions of the
Administration of Estate Act regarding the administration
of an
estate are not applicable in such a case. Consequently it is not
necessary to publish a notice to creditors or to prepare
an estate
account. The master exercises no control over the administration and
no master’s fees are payable.
[27]
At the time of the death of Sibongile the value of the estate was
less than the prescribed amount
of R125 000.00 hence the master
issued the Appellant with a section 18(3) Letter of Authority.
WHAT
HAPPENED TO THE ESTATE OF MRS SIBONGILE NORMA MOSUETSA
[28]
In answering the first question as to what happened to the estate of
Mrs Sibongile Norma Mosuetsa
on her death the answer lies in the
provision of Interstate, Succession Act 81 of 1987. Sibongile and her
husband were married
in community of property. The Section 18(3)
letter of Authority issued to the Appellant stated that the value of
her estate was
R44 000.00. This is less than the prescribed amount of
R125 000.00. This means that the whole assets devolved to Mr Solomon
Mosuetsa
in his capacity as the surviving spouse to the exclusion of
all others.
[29]
On the 9
th
October 2007 Mr Solomon Pusetso Mosuetsa who
had inherited his late wife’s half share in respect of the
property situated
at Molapo then decided to donate same to the
Appellant as he was entitled to do. So when Mr Solomon Pusetso
Mosuetsa died in the
year 2011 that property was no longer an asset
in his estate. In a letter addressed to the Registrar of Deeds dated
the 7
th
December 2012 the Master confirmed that the
donation was valid and that the property will not be dealt with in
terms of Interstate
succession.
[30]
When his Lordship Kgomo J granted judgment against the first
Respondent during 2013 it was on
the basis that the Appellant was the
undisputed owner of the property.
[31]
This means that when my brother Monama J, Coppin J and Vally J made
the orders as they did in
respect of the property such orders had no
effect. The estate of Mrs Sibongile Norma Mosuetsa had been finally
wound up when her
husband inherited her half share in terms of
Interstate Succession Act.
THE
EFFECT OF THE JUDGMENT BY KGOMO J DATED THE 10
TH
OCTOBER
2013
[32]
That judgment confirmed the changed ownership of the property based
on the donation made by Mr
Solomon Pusetso Mosuetsa. It vested
ownership of the property on the Appellant. That situation still
maintains to date hereof and
has not been challenged. Any subsequent
attempt to get judgment based on the right of ownership of the home
at Molapo became
res judicata
. Accordingly, all the orders by
Monama, Coppin and Vally J could not reverse this fait accompli.
[33]
In the court a quo the first Respondent sought an order that
ownership of the property described
as [....] Kgopotso Street,
Molapo, Soweto (the property) be reversed from the names of the
Appellant and his wife to that of the
deceased parents (See prayer 3
of the notice of motion dated 18
th
October 2013).
[34]
The Application by the first Respondent came against the backdrop of
a judgment and order by
Kgomo J dated the 10
th
October
2013 under case number 45494/2011 in which he found in favour of the
Appellant as the registered owner of the property
that the first
Respondent had no title or right to remain on the property.
[35]
In paragraph 5 of his answering affidavit dated the 19
th
May 2014 the Appellant Derrick Mosuetsa specifically raised the issue
of
res judicata
. That plea remained alive throughout and was
never dealt with.
[36]
Brand JA in the matter of
Prinsloo N.O. v Goldex 2014 (5) 297 SCA
at page 301 paragraph 10
said the following:
“
The
expression “
res judicata
”
literally means that the matter has already been decided. The gist of
the plea is that the matter or question raised by
other side had been
finally adjudicated upon in proceedings between the parties and that
it therefore cannot be raised again. According
to Voet 42 1.1. the
exception was available at common law if it were shown that the
judgment in the earlier case was given in a
dispute between the same
parties, for the same relief on the same ground or on the same cause
(See
National Sorghum Breweries Ltd t/a
Vivo African Breweries v International Liquor Distribution (Pty) Ltd
[2000] ZASCA 159
;
2001 (2) SA 232
(SCA)
. In time the
requirements were however relaxed in situations which gave rise to
what became known as issue estoppel.”
[37]
Ownership of the Molapo property was at the centre of the dispute in
the matter before Kgomo
J and it is also at the centre of this
application. It so happens that the parties are the same in both
matters. The court a quo
as well as on previous occasions when this
matter was set down should have decided the matter on the plea of
res
judicata
or issue
estoppel
. It would have brought an end
to the first Respondent’s application.
THE
ORDERS GRANTED BY VALLY J
[38]
In the court a quo the first Respondent sought various orders at the
centre of which was that
the Appellant be removed as a Representative
of the estates of his parents and for an Independent Executor or
Estate representative
be appointed by the master so that the new
Executor reopen the estates and deal with the issue around succession
and inheritance
afresh.
[39]
The orders by Vally J do not address what the first Respondent sought
in that it was ordered
that the master should retrieve and reactivate
the two estate files and to receive a full and detailed report from
the Appellant
as to what he has done with regards to each of the
estates.
[40]
The SCA
in Fischer and Another v Ramahlele and Others
2014 (4) SA
614
at page 620 paragraph 13 and 14
expressed itself as follows
on such issues:
“
(13)
Turning then to the nature of civil litigation in our adversarial
system, it is for the parties, either in the pleadings or
affidavits
(which serve the function of both pleadings and evidence) to set out
and define the nature of dispute and it is for
the court to
adjudicate upon those issues.
That is so even where the
dispute involves an issue pertaining to the basic human rights
guaranteed by our Constitution for (i)
it is impermissible for a
party to rely on a Constitutional complaint that was not pleaded”
(14) It is not for the
court to raise new issues not traversed in the pleadings or
affidavits however interesting or important they
may seem to it and
to insist that the parties deal with them.”
[41]
In the
Minister of Safety and Security v Slabber t
[2010] 2 ALL SA
474
(SCA)
at paragraph 11 the court said:
“
A
party has a duty to allege in the pleadings the material facts upon
which it relies. It is impermissible for a Plaintiff to plead
a
particular case and seek to establish a different case at the trial.
It is equally not permissible for the trial court to have
recourse to
issues falling outside the pleadings when deciding a case.”
[42]
What is evident is that the orders that are being appealed against do
not deal with what the
first Respondent had come to court for. The
question that arose before us as a court of appeal is whether to
remit the matter back
to the court a quo or whether to deal with the
issues raised. We decided on the latter.
[43]
In deciding on this appeal two issues are in my view dispositive on
the dispute. The first is
the issue of
locus standi
and
secondly the issue of
res judicata
.
[44]
An executor can only be removed from his position by a court if a
court is satisfied that it
is undesirable that such a person should
act as such. In such an instance a person who has an interest in the
administration of
the estate must furnish sufficient or good cause
and reason why such a person should be removed.
[45]
An executor may also be removed by the master in terms of Section
54(2) of the Administration
of Estate Act if such person amongst
others fails to perform satisfactorily any duty imposed upon him or
her under the Act or fails
to comply with any lawful orders at the
request of the master.
[46]
The first Respondent has not succeeded in his removal application to
place himself within the
requirements of Section 54(1) of the
Administration of Estate Act. He has no interest in the estate of
Sibongile Norma Mosuetsa
his mother because the property devolved
upon his stepfather Solomon Mosuetsa who disposed of the property in
Molapo to the Appellant.
[47]
In the matter of
Four Wheel Drive Accessory Distribution CC v
Leshni Rattan NO SCA case No. 1048/17
decided on the 26
th
September 2018 the court in dealing with the issue of
locus standi
said the following at paragraph 7:
“
[7]
The logical starting point is locus standi:- whether in the
circumstances the Plaintiff had an interest in the relief
claimed,
which entitled it to bring the action. Generally the requirements for
locus standi
are these. The Plaintiff must have an adequate interest in the
subject matter of the litigation usually described as a direct
interest in the relief sought, the relief must not be too remote, the
interest must be actual, not abstract or academic and it must
be a
current interest and not a hypothetical one. The duty to allege and
prove
locus standi
rests on the party instituting the proceedings.”
[48]
In the founding affidavit the first Respondent denies that the late
Solomon Mosuetsa signed an
affidavit in which he donated the Molapo
property to the Appellant. He said that he intended calling an expert
to prove that it
was not a genuine signature. He did nothing after
that neither did he challenge the judgment by Kgomo J. He has no
locus standi
to seek the removal of the Appellant as the
Executor in both estates.
[49]
As regards to issue of res judicata, it is worth mentioning that the
Applicant as well as the
master complied fully with the interlocutory
orders as directed by Monama J and Coppin J and duly filed reports in
that respect.
[50]
In his supplementary report dated the 26
th
May 2016 the
Master told the court that:
i)
On
the 21
st
February 2008 he issued letter of authority in favour of the
Applicant in terms of Section 18(3).
ii)
Secondly
that on their side an estate is finalised once letters of authority
have been issued.
[51]
If the first Respondent is not happy with how the Appellant dealt
with the estate his claim lies
against the beneficiary without
recourse to the Master’s office. The first Respondent should
file a claim against what he
says should have been transferred or
awarded to him.
[52]
In the result I make the following order:
ORDER
1.
The appeal is upheld.
2.
The judgment and order by
Vally J is hereby set aside and substituted with the following order:
2.1
The application is
dismissed with costs.
DATED
at JOHANNESBURG this the 28 day of JULY 2021.
M
A MAKUME
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEARANCES
DATE
OF HEARING
:
17 MAY
2021
DATE
OF JUDGMENT :
28 JULY 2021
APPEARANCES
:
ADV
MUNDEL SC
INSTRUCTED
BY
:
CARVALHO INC.
FOR
RESPONDENTS :
MR M. MOTAUNG
INSTRUCTED
BY
:
SOWETO
JUSTICE CENTRE