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[2021] ZAGPPHC 393
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F.M and Others v G.M and Others (11955/2017) [2021] ZAGPPHC 393 (9 June 2021)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG HIGH
COURT, PRETORIA)
Case No: 11955/2017
REPORTABLE: YES
/ NO.
OF
INTEREST TO OTHER JUDGES: YES / NO.
REVISED.
DATE:
9/6/2021
In
the matter between:
F
M[…]
1
ST
APPLICANT
D
M[…]
2
ND
APPLICANT
M
M[…]
3
RD
APPLICANT
and
G
M[…]
1
ST
RESPONDENT
M
M[…]
2
ND
RESPONDENT
Y
M[...]
3
RD
RESPONDENT
THE
MASTER OF THE HIGH COURT
4
TH
RESPONDENT
THE
REGISTRAR OF
DEEDS
5
TH
RESPONDENT
JUDGMENT
Maumela J.
1.
In
this case, the applicants applied for an order towards the
cancellation of a title deed over the property referred to as Erf
[…]
[..]Street […], P[…]. This property is registered in
favor of the First Respondent. In the order sought,
the Applicant
also seeks for his Attorneys of record to be appointed as liquidators
who shall dispose of the property accordingly.
The application is
opposed.
2.
The
Defendant raised points
in
limine
.
The First Point in Limine raised is that the Applicants filed
documents in their second indexed bundle to this application that
do
not form part of any affidavit. The Defendants also raise the issue
that this includes among other items, letters of authority
and a
report from the Registrar of Deeds. The Defendants point out that
these documents do not form part of the founding or replying
affidavit of the Applicants.
3.
The
Defendants point out that a litigant in civil proceedings has the
option of approaching a court for relief on application as
opposed to
an action. Should a litigant decide to proceed by way of application,
Rule 6 of the Uniform Rules of Court applies. This will set out
the applicable sequence and the timing for the filing of the
affidavits
by the respective parties. They point out that an
advantage inherent to application proceedings, even if opposed, is
that they
can lead to a speedy and efficient adjudication and
resolution of the disputes between the parties. Unlike in actions, in
application
proceedings, the affidavits take the place, not only of
the pleadings, but also of the essential evidence which would be led
at
the trial.
4.
It
is trite that in application proceedings, evidence must be led before
court, by way of affidavit. The affidavits are limited
to three sets.
The Defendants point out that the Rule was succinctly explained
in the Supreme Court
of Appeal judgment in the case of
Hano
trading CC v J R 209 Investments (Pty) Ltd and Another
[1]
where
the court stated the following: “
it
follows thus, that great care must be taken to fully set out the case
of the party on whose behalf an affidavit is filed. It
is therefore
not surprising that the Rule 6 (5) (e) provides that further
affidavits may only be allowed at the discretion of the
court.”
5.
In
The case of
Standard
Bank of SA Ltd v Sewpersadh and Another
[2]
,
it was held: “
[13]
clearly, a litigant who wished to file a further affidavit must make
a formal application for leave to do so. It cannot simply
sign the
affidavit into the court file (as appears to have been the case in
the instant matter). I am of the firm view that this
affidavit falls
to be regarded as pro non scripto.”
Rule
6 (5) (e) establishes clearly that the filing of further affidavits
is only permitted with the indulgence of the court. A court,
as
arbiter
,
has the sole discretion whether to allow the affidavits or not. A
court will only exercise its discretion in this regard where
there is
good reason for doing so.
6.
The
Defendants point out that the Applicants in this case did not even
attempt to file a supplementary affidavit in order to request
the
court to exercise its discretion towards allowing such affidavit to
be filed of record. Instead, the Respondents merely attempted
to
place the documents before court via the indexes they filed. The
Defendants make the point that this is not compliant with the
Rules
of Court. On that basis, they submit that these documents ought to be
deemed to be inadmissible.
SECOND
POINT
IN
LIMINE
:
PRESCRIPTION:
7.
The
First Applicant also indicated that there is no possibility that the
opposing parties in this matter may ever resolve their
dispute on
paper and that is why he and the other Applicants had to launch this
application in order to obtain relief. The first
Applicants stated
that Ms. Manamela has accepted her appointment as ‘Receiver and
Liquidator’ to dispose of the property.
Her consent in that
regard is attached as “FM5”. The First Respondent stated
that from the time of the death of the
deceased until now, only the
First, Second and Third Respondents have benefited from possession
and use of the property. He said
that in that regard, he and the
other Applicants reserve their rights to sue for damages to such
extent as they suffered such.
8.
The
First, Second and Third Respondents attested to affidavits in
opposition of this application. Margret Manzini, the Second
Respondent,
resident at No 1[...] […] Street, […],
Gauteng, stated that she and the other two Respondents are biological
children
of the deceased; the late J M M[…] who died on the
20
th
of October 2008. She stated that at his demise, the deceased left
behind the property referred to. She told court that her biological
son purchased the property from her and the other beneficiaries at an
amount of R 25 000-00, (Twenty-Five Thousand Rand).
Accordingly,
the property was transferred into the names of her son. The Second
Respondent said that she was shocked to find out
that the Applicants
issued an application 4 years after the property had been
transferred. She said that the Applicants claimed
to be children of
the deceased who are entitled to a portion of the property. She
stated that she and her co-Respondents had never
met or seen the
Applicants.
9.
The
Respondents also point out that no documentary proof is attached to
either the founding affidavit or replying affidavit in which
it is
averred that the Applicants are the children of the deceased. In
order to be successful in their claim, the Applicants must
prove on
the balance of probabilities that they are in fact children of the
deceased. The Respondents argue that the onus to prove
that they are
children of the deceased rests firmly on the Applicants however, that
onus has not been discharged.
10.
The
Respondents submit that the application has prescribed because it was
lodged more than three years after they became aware of
the relevant
facts. Concerning merits, it is submitted that the Applicants have
failed to discharge the evidentiary burden placed
upon them by
neglecting to provide proof that they are children of the deceased.
The Respondents submit that on that basis alone,
the application
stands to be dismissed with costs. The Respondents also submit that
it is clear from the papers that there is a
material dispute of fact
and the Applicants were aware that the dispute cannot be decided
solely on the papers.
11.
The
Respondents also submit that they have defences at their disposal
which they intend to raise against the claim brought against
them.
They
submitted that the relief sought against them is premature because no
claim has been lodged against the estate by the Applicants
and should
the property be transferred back to the estate; the executors are
entitled to deal with the property. Based on that,
the Respondents
submit that this application is wholly defective and it has to be
dismissed with costs on an attorney and client
scale.
12.
This
Application was brought more than 8 years after the Applicants became
aware of their claim against the estate of the deceased
and more than
6 years after the property was transferred into the name of the First
Respondent. Furthermore, the Applicants state
that when they became
aware of the transfer of the Property into the names of the First
Respondent, they approached the Fourth
Respondent to inform same that
they are children of the deceased. More than 3 years elapsed from the
time the Applicants brought
this matter to the office of the Master.
That is the timing at which this Application was served.
13.
This
application was opposed because the Fourth Respondent was still busy
with investigations. It was submitted that the application
is
therefore premature. The First Applicant stated that since a
determination has been made, and since the Applicants have become
recognized as children of the deceased, he was advised to no longer
pursue the application. The First Applicant was advised that
it is
better to proceed and cancel the First Respondents’ ownership.
A further advice was that at the same time, Ms. Phuthi
Manamela of
Phuthi Manamela Attorneys is to be appointed as ‘Receiver and
Liquidator’ for her to dispose of the property.
As such, the
initial application was withdrawn. The court is to consider whether
the Applicants have made their case so that the
prayers they seek can
be granted.
DEFENCES RAISED BY THE THIRD RESPONDENTS.
14.
THE
APPLICANT’S RIGHT TO CLAIM.
The
Respondents point out that the basis on which the Applicants seek
relief as per their notice of motion is that they claim to
be
children of the deceased and that they too deserve to be among those
who deserve to inherit from the estate of the deceased.
On that
basis, they contend that they are therefore entitled to the property
which was transferred to the First Respondent.
15.
The
Applicants brought this application without providing any proof that
they are in reality children of the deceased. No documentary
proof
was attached to either their founding affidavit or their replying
affidavit in which it is stated that they are children
of the
deceased. In order to be successful in their claim, the Applicants
must prove on the balance of probabilities that they
are in fact
children of the deceased. They bear that onus and in order to succeed
in their application, they ought to discharge
it. The Respondents
state in their opposing affidavit that they have never met the
Applicants so that they have not engaged them
where they could have
denied or agreed to the claim that the Applicants are children of the
deceased.
16.
The
Respondents point out that the only evidence provided by the
Applicants to try and support their claim is a marriage certificate
of the deceased. However, the marriage certificate provides no
evidentiary proof of the identity of the Applicants. They point
out
that a mere birth certificate which is easily obtainable from the
Department of Home Affairs could have shed a light about
who the
father of the Applicants is. Nonetheless, such documentation was not
provided by the Applicants. Neither have the Applicants
taken the
Court into their confidence by giving an explanation about why such a
document was not provided together with the Founding
or Replying
papers.
17.
The
Respondents take issue with the averment made by the Applicants where
they, (the Applicants), allege that a determination was
made in which
they have been recognized as children of the deceased. They raise the
issue that while the Applicants made this contention,
they failed to
provide proof regarding how and by who this determination was made.
18.
It is trite
law that in an application like this, it is incumbent upon the
Applicant to state his or her entire case in the founding
affidavit
so as to enable the Respondent to be conversant with the entirety of
the nature of the case he or she has to answer to.
In the case
of
Director
of Hospital Services v Mistry
[3]
,
Diemont JA stated the following: “
When,
as in this case, the proceedings are launched by way of notice of
motion, it is to the founding affidavit which a Judge will
look to
determine what the complaint is. As was pointed out by Krause J
in Pountas’ Trustee v Lahanas
[4]
and
as has been said in many other cases: “…an applicant
must stand or fall by his petition and the facts alleged
therein and
that, although sometimes it is permissible to supplement the
allegations contained in the petition, still the main
foundation of
the application is the allegation of facts stated therein, because
those are the facts which the respondent is called
upon either to
affirm or deny”. Since it is clear that the applicant
stands or falls by his petition and the facts therein
alleged, “it
is not permissible to make out new grounds for the application in the
replying affidavit” (
per VAN
WINSEN J in
SA
Railways Recreation Club and Another v Gordonia Liquor Licensing
Board
[5]
.)”
Also
see
Minister
of Safety and Security v Mhofe
[6]
,
at paragraph 9 as well as
Monteoli
v Woolworths (Pty) Ltd
[7]
,
at paragraph 25 to 29.
19.
The
Respondents also submit that the Fourth Respondent does not have
inherent powers to adjudicate or to decide on matters such
as
paternity and the validity of a particular heir. They argue that the
Applicants ought to have approached the court in order
to establish a
valid and credible determination on whether they are children of the
deceased and are entitled to the relief sought
in this application or
not.
EVALUATION.
20.
In this
case, responding to the founding affidavit by the Applicants, the
Respondents raised points
in
limine
which they substantiated. In that regard, the first point
in
limine
they raised is about the fact that the Applicants
filed
documents in their second indexed bundle to this application which do
not form part of any affidavit. In that regard, the
documents
referred to are among other items, letters of authority and a report
from the Registrar of Deeds.
21.
The
second point
in
limine
raised by the Respondents is about the fact that the Applicants
lodged their application outside the required time period. The
application was served on the
31
st
of May 2017. There is no dispute about the fact that the Applicant
became aware of the fact that they have a claim in October 2008.
At the
same time, the
Fourth
Respondent issued a letter of executorship in 2008 in favour of the
Second and Third Respondents. Subsequent to that, the
Property in
question was purchased by and transferred to the First Applicant in
2010.
22.
This
application was brought more than 8 years after the Applicants became
aware of their claim against the estate of the deceased.
This was
more than 6 years after the property was transferred into the name of
the First Respondent. The Applicants state that
when they became
aware of the transfer of the Property by the Fourth Respondent to the
names of the First Respondent, they approached
the Fourth Respondent
to inform same that they are children of the deceased. This was more
than 3 years after the Applicants reported
this matter to the Master
and from the date on which service of this Application was done.
23.
This begs
the question whether the Applicants were still within good time to
launch this application. Where that is concerned, Section
12 of the
Prescription Act comes into issue where it provides the following:
(1) Subject to the
provisions of subsections (2), (3), and (4), prescription shall
commence to run as soon
as the debt is due.
(2) ...
(3) A debt shall not
be deemed to be due until the creditor has knowledge of the identity
of the debtor and of the facts from which
the debt arises: Provided
that a creditor shall be deemed to have such knowledge if he could
have acquired it by exercising reasonable
care."
24.
It is
indisputable
that
by the time the Applicants brought this application, their claim had
prescribed. They made no attempt to explain their delay
in an
affidavit, neither did they apply for condonation of the delay. In
fact, despite being solicited on numerous occasions, the
applicants
did not file heads which could have addressed the points
in
limine
and the issues raised by the Respondents.
25.
It is trite
that the onus lies with the Applicants to prove their claim against
the Respondents. In the case of in
Selamolele
v Makhado
[8]
,
on the aspect of the onus of proof in civil matters, Van der Spuy, AJ
stated the following: “
The
onus of proof and the legal requirements as to the discharge thereof
It is common cause that plaintiff bears the overall onus
of proof,
i.e. he must prove his version that he was pushed from behind and did
not fall fortuitously backwards after a scuffle
with defendant. It
may be that defendant has some duty of adducing evidence in support
of the latter version but the onus of proof
in the overall case never
shifts and remains on plaintiff.
See
Pillay v
Krishna
[9]
.”
26.
The
question relating to whether the deceased is father to the Applicants
has not been resolved. Scientific proof of paternity requires
to be
conducted. Valid results of such a test need to be produced for
consideration by the court in order to enable the court to
make a
determination. Neither the Master of the High Court, (the Fourth
Respondent), nor this court can decide on the paternity
of the
Applicants and the validity of a particular heir.
27.
As a
result, they Applicant have not proven that they are children of the
deceased and are entitled to the relief sought in this
application.
Consequently,
the court finds that the Applicants did not prove their case against
the Respondents the application stands to be
dismissed with costs.
28.
In the
result, the following order is made:
ORDER.
28.1.
The application is
dismissed with costs.
T.A.
Maumela.
Judge of the High Court of South Africa.
[1]
.
2013 (1) All SA 142 (SCA).
[2]
.
2005 (4) SA 148 (C).
[3]
.
1979 (1) SA 626
(A), at 635H–636B
[4]
.
1942 WLD 67
at page 68.
[5]
.
1953 (3) SA 256
(C) at 260
[6]
.
[2007] 4 All SA 697 (SCA).
[7]
.
2000 (4) SA 735 (W).
[8]
.
1988(2) SA 372 (V), at page 374.
[9]
.
1946 AD 946
at 952-3.