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[2020] ZALMPPHC 67
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Elmarie Bierman Attorneys and Another v Kutu and Others (6114/2018, HCAA11/2019) [2020] ZALMPPHC 67 (19 August 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED.
COURT
A QUO
CASE
NO: 8141/2017
APPEAL
CASE NO: HCAA12/2019
In
the matter between:
ELMARIE
BIERMAN ATTORNEYS
FIRST APPELLANT
TSHIDI
LISHEN MOKOBANE
SECOND APPELLANT
and
THOMAS
MAFENE KUTU
FIRST RESPONDENT
PHINEAS
MAFENE KUTO
SECOND RESPONDENT
ELIZABETH
TENDANI KOTO
THIRD RESPONDENT
MARGARETTSHUNKIMANYELO
FOURTH RESPONDENT
MAPULA
ANNA MACHOBANE
FIFTH RESPONDENT
JUDGMENT
THE
COURT:
[1]
This is an appeal against the judgment
and order by a single Judge (Muller J) of this Division in terms
whereby the last will and
testament of the late Meita Johanna Keto
was declared invalid and the letters of executorship issued to the
First Appellant was
also declared invalid from date of its issue.
This appeal is with leave of the Court a
quo
.
[2]
The Master of the High Court, Polokwane
was cited as the First Respondent in the Court a
quo
but did not take part in the
proceedings. The Appellants in this appeal were the Second and Third
Respondents respectively. The
First Appellant is the appointed
executor in terms of the last will and testament in issue and the
Second Appellant is the sole
beneficiary in terms of the said will.
[3]
All the Respondents in the present
appeal, together with the Second Appellant, are the surviving
children of the late Meita Johanna
Keto ("the deceased").
[4]
The late Meita Johanna Keto ("the
deceased") had six children. All six children lived and grew up
with the deceased at
Stand 2362 Zone B Seshego.
[5]
The deceased was allegedly uneducated
and could not read or write. Due to the deceased's alleged inability
to read and write, the
deceased was unable to notice that the
surnames of the children were misspelt and as a result the six
siblings surnames are spelled
differently.
[6]
During 2014 the deceased became very ill
and called all the children (whom were all at that stage already
majors) to a meeting.
It was agreed at the meeting that the deceased
will be placed in an old age home. The deceased was taken by all six
children to
Kwena Moloto Old Age Home. After approximately 6 (six)
months, the deceased was moved to Martha Hoffmeyer Old Age Home. The
deceased
became very ill and passed away on the 1
st
of April 2015 whilst living in Martha Hoffmeyer Old Age Home.
[7]
A dispute arose during 2017 as to whom
the family house situated at Stand 2362 Zone B Seshego belonged. The
Respondents aver that
the house belongs to all six of the deceased's
children, whilst the Appellants aver that the house was inherited by
the 2nd Appellant
as sole heir of the estate of the deceased in terms
of a valid last will and testament of the deceased dated 5 April
2011. It is
this dispute as to who the lawful owners of the property
are, that gave rise to the Respondents bringing an application in the
Court a
quo
on
or about
4
December
2017.
[8]
The Respondents prayed for the following relief in their Notice of
Motion:-
1.
That
the document titled "Last Will and Testament" dated 5th of
April 2011, be declared invalid and not the Last Will
and Testament
of the late Meita Johanna Koto.
2.
That
the letter of authority issued by the First Respondent on 1 August
2017 to the Second Respondent be declared invalid from date
of issue.
3.
That
the Second and Third Respondents be ordered to pay the cost of this
Application.
[9]
Attached to the Respondents Notice of Motion was a founding affidavit
in support of
the application. The Respondents served their
application on the Appellants on the offices of Elmarie Bierman
Attorneys on 4 December
2017.
[10] The
Appellants served their Answering Affidavit on the Respondents
attorneys of record on the 17
th
of October 2018 and filed
their Answering Affidavit at Court on 18 October 2018. Except for the
points
in limine
raised, the Appellants' Answering Affidavit
constitutes a bare denial of the allegations made by the Respondents.
[11]
This court does not intend to deal with
the points
in limine
raised
except for the third point
in limine.
The third
point
in limine
raised by the Appellants
were raised on the basis that the Respondents founding affidavit had
no attachments attached to it.
[12]
The Appellants stated as follows in
paragraph 5.1, 5.2 and 5.3 of their Answering Affidavit:-
"5.1
Applicants depose in paragraphs 20, 21 and 23 of their Founding
Affidavit that there are the following:
a Protection Order, a Will,
Letter of Authority all of which are not attached or reasons
furnished for such non-attachment as required.
5.2
Applicants further depose in paragraph
24 of their Founding Affidavit that letters were written to both
Elmarie Bierman Attorneys
and Master of the High Court, 2nd and 3rd
Respondents herein, which letter or letters are not attached, all of
which are expected
to be in their possession.
5.3
The Applicants failed to attach required
proof to the confidence of this Honourable Court in order to assist
the Court to properly
assess and therefore adjudicate their matter
fairly and adequately base on its papers."
[13]
No reply was filed by the Respondents to
the Appellants Answering Affidavit. The application was set down for
hearing on the 20th
of February 2019 before the court
a
quo.
[14]
The
points
in limine
were not entertained in
the
court a quo.
During
the hearing of the matter the Appellants attempted to raise an issue
with the fact that no attachments were attached to the
Respondents
Founding Affidavit in support of their application.
[15]
At the outset of the matter Mr.
Mokgotho, who appeared for the Appellants in the
court
a quo,
raised a point
in
limine
that no case for relief was
made out in the founding affidavit.
[16]
The approach to be taken in such matters
has been set out in
Bowman N.O. v De
Souza Roldao
1988 (4) SA 326
Tat 327.
"In limine Mr Zeiss, who
appears for the respondent, argued that the applicant has not made
out a case in the founding affidavit
to entitle him to any relief in
terms of the notice of motion; he submits that there is a material
and fatal lacuna in the founding
affidavit which cannot be cured.
Generally speaking, an
applicant must stand or fall by his founding affidavit; he is not
allowed to make out his case or rely upon
new grounds in the replying
affidavit. See, for example, Director of Hospital Services v Mistry
1979 (1)
SA 626
(A)
at 635 in fin
-
636 where Diemont
JA said 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
1924
WLD 67
at
68 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".'
What should be set out in the
founding affidavit and the particularity required has been dealt with
in
a
number
of cases; see, for example, Joseph and Jeans v Spitz and Others
1931
WLD 48
;
Victor v
Victor
1938
WLD 16
at
17 and Tiffy's Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd
and Others
1974
(4) SA 362
(T) at 3698.
Each case will depend on its own facts. The correct approach is set
out in the Titty's Bar case supra
as
follows:
'It lies, of course, in the
discretion of the Court in each particular case to decide whether the
applicant's founding affidavit
contains sufficient allegations for
the establishment of his case. Courts do not normally countenance
a
mere skeleton of
a
case
in the founding affidavit, which skeleton is then sought to be
covered in flesh in the replying affidavit.'
This type of objection must be
considered on the basis of an exception to
a
declaration or
a
combined summons.
The relevant considerations
are:
(a)
the founding affidavit alone is
to be taken into account;
(b)
the allegations in the founding
affidavit must be accepted
as
established facts;
(c)
are these allegations, if proved,
sufficient to warrant
a
finding
in favour of the applicant?"
See
also
Business
Partners Ltd v World Focus 754 CC 2015 (5) SA 525 (KZD).
[17] The
court a
quo
did not entertain this complaint and argument as
the court a
quo
was in possession of a Notice of Motion and
Founding Affidavit with Annexures attached thereto and as a result
proceeded to hear
the matter and grant an order in terms of the
prayers of the Notice of Motion in favour of the Respondents on 20
February 2020,
as the court, having read the papers filed and on
record before it, and after having heard counsel for the respective
parties was
satisfied that the Appellants failed to set out a
bona
fide
defence in their Answering Affidavit.
[18] Only
at the hearing of the matter did the Appellants realise that the
Respondents filed a different
Founding Affidavit with Annexures
thereto than what was served on the Appellants.
[19] The
Founding Affidavit served on the Appellants (the original founding
affidavit) differs in material
respects from the Founding Affidavit
(secondary founding affidavit) on the court file in the following
respects:-
a)
Paragraph 15 of the Founding
Affidavit
The said paragraph of the original
founding affidavit reads as follows:-
" During her stay in
Martha Hoffmeyer my mother's became very sick and died on the 1
st
of April 2015."
and
The said paragraph of the
secondary founding affidavit reads as follows:-
"
During her stay in Martha Hoffmeyer my mother's became very sick and
died on the 1
st
of April 2015. (ANNEXURE TK-1)"
b)
Paragraph 21 of the Founding
Affidavit
The said paragraph of the original
founding affidavit reads as follows:-
"The
order was not granted and TSHIOI LISHEN MOKOBANE called for
a
meeting on 05
August 2017. At the meeting TSHIDI LISHEN MOKOBANE all of
a
sudden produced
a
will and
testament purportedly drawn up and signed by my late mother."
and
The said paragraph of the
secondary founding affidavit reads as follows:-
"The
order was not granted and TSHIOI LISHEN MOKOBANE called for
a
meeting on 05
August 2017. At the meeting TSHIDI LISHEN MOKOBANE all of
a
sudden produced
a
will
and testament purportedly drawn up and signed by my late mother.
(ANNEXURE TK-2 and TK-3"
[20]
This court is of the view that had the
court
a
quo
had
to adjudicate on the original founding affidavit, and having applied
the relevant considerations as set out
in
Titty's Bar case supra,
the court
a
quo
in all likelihood would not have
granted the order it did.
[21]
The Appellants furthermore argued that
had the secondary founding affidavit been served on them, the
Appellants would have not answered
to the allegations made by the
Respondents as they did, which constituted a bare denial.
[22]
Unfortunately this court does not have
any reply or explanation before it by the Respondents and the
Respondents legal representatives
in respect of the two different
sets of Founding Affidavits.
[23]
The amendment of the founding affidavit
by inserting and attaching annexures thereto in support of the
Respondents application without
following the correct court procedure
and without having served the correct founding affidavit on the
Appellants, alternatively
by having removed certain pages of the
original founding affidavit and substituting them with amended pages
is questionable and
leaves much to be desired.
[24]
In order to succeed on a claim that a
judgment be set aside on the ground of fraud it is necessary for the
applicant to allege and
prove
(a)
that the successful litigant was a party to the fraud, (b) that the
evidence was in fact incorrect, (c) that it was made fraudulently
and
with the intent to mislead, (d) that it diverged to such an extent
from the true facts that the court would, if the true facts
had been
placed before it, have given a judgment other than which it was
induced by the incorrect evidence to give.
[25]
In Moraitis
Investments (Pty) Ltd v Montie Dairy (Pty) Ltd (799/2016)
[2017]
ZASCA 54
(18 May
2017) the Supreme Court of Appeal at paragraph 12 held :
"[12] The issue is far
more nuanced than the arguments suggest. The approach differs
depending on whether the judgment is a
default judgment or one given
in the course of contested proceedings. In the former case it may be
rescinded in terms of either
rule 31(2)(b) or rule 42 of the Uniform
Rules, or under the common law on good cause shown. In contested
proceedings the test is
more stringent. A judgment can be rescinded
at the instance of an innocent party if it was induced by fraud on
the part of the
successful litigant, or fraud to which the successful
litigant
was
party.
As
the
cases
show, it is only
where the fraud
-
usually in the
form of perjured evidence or concealed documents
-
can be brought
home to the successful party that restitutio in integrum
is
granted and the
judgment
is set
aside. The mere
fact that a wrong judgment
has
been given on the
basis
of
perjured evidence
is
not
a
sufficient basis
for setting aside the judgment. That
is
a
clear
indication that once a Judgment
has
been given it
is
not lightly set
aside, and De Villiers JA said
as
much in
Schierhout."
[26]
It was further held in paragraph 13
of the
Moraitis Investments
(Pty) Ltd case
supra:-
"Apart
from fraud the only other basis recognised in our
case
law
as
e
mpowering
a
court to set
aside its own order
is
justus error. In
Childerley, where this
was
discussed in
detail, De Villiers JP said that 'non-fraudulent misrepresentation is
not
a
ground
for setting aside
a
judgment' and
that its only relevance might be to explain how an alleged error came
about. Although
a
non-fraudulent
misrepresentation, if material, might provide
a
ground for
avoiding
a
contract, it does
not provide
a
ground for
rescission of
a
judgment. The
scope for error as
a
ground for
vitiating
a
contract is
narrow and the position is the same in regard to setting aside
a
court order.
Cases of justus error were said to be 'relatively rare and
exceptional'. Childerley was considered and discussed by
this court
in De Wet without any suggestion that the principles it laid down
were incorrect."
[27]
From the face value of the documents
filed in this Appeal and the discrepancies thereto, in this court's
view, amounts to fraudulent
misrepresentation.
[28]
The question however remains whether the
mere fact that a wrong judgment has been given on the basis of
perjured evidence in this
case will constitute a sufficient basis for
setting aside the judgment.
[29]
As referred to by the court a
quo
in
Katz
and Another v Katz and Others
[2004] 4 All SA 545
(CC)
the
court made the following observation:-
"There is
a
legal presumption in
favour of the validity of the will bearing the outward marks of
genuineness. This is based on probability and
the philosophy of life.
Because human experience
shows
that in the vast majority of cases wills which in
a
matter of form
exhibit no [omitted] defect prove to be what they purport to be. That
is genuine documents."
[30]
Given that a will, which is regular and
complete on the face of it, is presumed to be valid until its
invalidity has been established,
the onus is on the person alleging
invalidity to prove such allegation (see
Kunzs
v Swart and Others
1924 AD 618).
The
standard of proof is the same as that which applies in all civil
cases - proof on a balance of probabilities.
[31] The
Respondents failed to set out a
prima
facie
case in
the original founding affidavit and failed to prove their case on a
balance of probabilities. By removing and/or replacing
the original
founding affidavit with a second version thereof, the Respondents,
knowing that they failed to make out a case, cured
the defect by
attaching Annexure's thereto.
[32] The
Appellants have been deprived of their right to a fair trial and to a
great extent to the
audi alteram partem principle.
The conduct
of the Respondents and/or their legal representatives are
unjustifiable and not in the interest of justice.
[33] The
declaration of the Last Will and Testament dated 5 April 2011 to be
invalid and not the Last will
and Testament of the Late Meita Johanna
Keto is extremely prejudicial to the Appellants, which prejudice
cannot be cured at a later
stage.
[34]
This court is of the view that the mere
fact that a wrong judgment has been given on the basis of perjured
evidence in this case
will indeed constitute a sufficient basis for
setting aside the judgment and as a result the appeal must succeed.
[35]
Now, this court will deal with the
conduct of the Respondents and/or their legal representatives.
[36] Legal
practitioners must maintain the highest standards of honesty and
integrity. They must treat the
interest of their clients as
paramount, provided that their conduct shall be subject always to:-
a)
Their duty to court;
b)
The interest of justice;
c)
The observation of the law; and
d)
The maintenance of the ethical standards
prescribed by any code of Conduct, or other code of ethics applicable
to them and any ethical
standards generally recognised by the
profession.
[37]
This court is of the view that the
Respondents and/or their legal representatives have conducted
themselves in an unethical and
unprofessional manner which
constitutes a serious breach of the code of conduct for legal
practitioners, candidate legal practitioners
and juristic entities
and which conduct causes the legal profession and the justice system
of South Africa an embarrassment and
grave harm.
[38]
This court is therefore of the view that
in protecting the high standards of the legal profession and the
interest of justice, that
the attorney and counsel for the
Respondents be reported to the Legal Practice Council and their
respective other governing body
councils and that their conduct be
investigated and if necessary steps be taken against the legal
representatives.
[39]
The only issue that now remains is the
issue of costs. As a general principle costs should follow the
result. The manner in which
the Respondents and/or legal
representatives for the Respondents conducted themselves, leaves much
to be desired. This Court's
displeasure should be marked by an
appropriate cost order and there is no reason why a punitive cost
order on an attorney and own
client scale should not include a cost
order
de bonis propriis.
Order
[40]
The following order is made:-
1.
The appeal is upheld with costs.
2.
The order granted on 20 February
2019 by the court a quo is set aside in its entirety.
3.
The application is referred to
the Court a quo for hearing de novo.
4.
The Respondents to file and serve
within 10 days from date of this order the Notice of Motion and
Founding Affidavit in the application
on the Appellants.
5.
The Appellants to file and serve
within 15 days after having been served with the Notice of Motion and
Founding Affidavit, an Answering
affidavit.
6.
The Respondents to file a reply,
if any, within 10 days after receipt of the Answering Affidavit.
7.
The matter is referred to the
Legal Practice Council, Limpopo for investigation and possible
further steps to be taken against the
attorney and/or counsel for the
Respondents (Applicants in the court a quo)..
8.
The Respondents to pay 50% (fifty
percent) of the costs of the application and the costs of this
appeal, and the Respondent's legal
representatives, Adv. P.J. Van
Eeden and Pheladi Molepo Attorneys, to pay the other 50% of the costs
of the application and of
this appeal
de
bonis propriis,
jointly and
severally, the one to pay the other to be absolved, on a punitive
cost scale as between attorney and own client.
E.M.
MAKGOBA
JUDGE
PRESIDENT
LIMPOPO
DIVISION
M.F.
KGANYAGO
JUDGE
OF THE
HIGH
COURT
M.
NAUDE
ACTING
JUDGE OF
THE
HIGH COURT
APPEARANCES:
HEARD
ON:
14 AUGUST 2020
JUDGMENT
DELIVERED ON: 19 AUGUST 2020
For
the Appellants:
Adv. K.S.D. Mohoto
Instructed
by:
S. Rangoanasha Inc. Attorneys
For
the Respondent:
Adv. P.J. Van Eeden
Instructed
by:
Pheladi Molepo Attorneys