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[2019] ZAGPPHC 91
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Selwane v Mogale and Another (60621/17) [2019] ZAGPPHC 91 (22 March 2019)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No: 60621/17
22/3/2019
In
the matter between:
DAVID
MOROBI SELWANE
Applicant
and
BESSIE
MOKGADI
MOGALE
1
st
Respondent
MASTER
OF
THE
SOUTH GAUTENG HIGH COURT
2
nd
Respondent
JUDGMENT
MNGQIBISA-THUSI
J
[1]
The applicant, Mr David Morobi Selwane, seeks an order in terms of
which:
1.1
the
first respondent, Mrs Bessie Mokgadi Mogale, is ordered to surrender
to the applicant all assets, (inclusive of motor vehicles,
documentation relating to the motor vehicles and any income generated
through the vehicles) and identity document of the late Matsobane
Piel Masemola ("the deceased"):
1.2
In
the event of the first respondent failing to surrender the assets as
set out in the notice of motion. the South African Police
be directed
to assist the sheriff, Halfway House. I executing the order sought;
and
1.3
Costs
on an attorney and client scale.
[2]
In his founding affidavit, the applicant alleges that on 13 June 2017
the Master of
this court appointed him as the executor of the
deceased estate. Attached
to
the founding affidavit is the death certificate of the deceased.
However, the applicant has not attached the said letters of
executorship he is relying on for
his
claim. In his replying affidavit the applicant claims to be the son
of the deceased.
[3]
The
applicant further alleges that on 29 July 2017 he caused to be
delivered to the first respondent a letter of demand for the
surrender of the assets of the
deceased
estate to him.
[4] It
is the applicant's contention that as the duly appointed executor of
the deceased
estate. the refusal by the first respondent to release
the deceased estate into his control prevents him from performing his
duties
as an executor as envisaged in s 26 of the Administration of
Estates Act
[1]
.
[5] On
behalf of the first respondent it was submitted that the first
respondent was
married
lo the deceased by customary marriage. Attached to the first
respondent's answering affidavit, as proof of the marriage,
is a copy
purporting to be marriage. certificate. The said copy reflects that
the marriage was entered into on 13 August 1987.
It is the first
respondent's contention that the applicant obtained the letters of
executorship through fraudulent means as he
was not known to her and
1t was questionable where he obtained the deceased's documents in
order to apply for appointment as executor
of the deceased
estate.
Further, the first respondent contends that the applicant's
appoin1ment as executor of the deceased estate is suspicious
if one
lakes into account the provisions of s 19 of the Act which gives the
surviving spouse of a deceased person preference with
regard to the
appointment of an executor.
[6] With
regard to the assets sought by the applicant it is the first
respondent's contention
that not all motor vehicles in her possession
were owned by the deceased and therefore cannot be sought to be
surrendered to the
applicant.
[7] The
following disputes are apparent in this matter.
7.1 Whether the
first respondent was married to the deceased;
7.2 Whether the
applicant 1s the deceased son;
7.3 In the event
that the first respondent was married to the deceased, the basis on
which the applicant was appointed
an executor of the deceased estate.
[8]
Motion proceedings are decided on the papers filed by the parties. In
case where there is
a factual dispute that can only be resolved
through oral evidence,
[2]
action proceedings are appropriate unless the factual dispute is not
real and genuine.
[3]
In
Stellenbosch
Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd.
[4]
The court held
that where there is a dispute of facts, final relief should only be
granted in notice or motion proceedings if the
facts as stated by the
respondent together with the admitted facts in the applicant's
affidavit justify such an order.
[5]
[9]
This rule applies irrespective or where the
onus
lies. Where a
factual dispute exists or arises during the hearing of an application
and the applicant does not seek the matter to
be referred either to
oral evidence on a specific issue which is in dispute or to trial,
the court has a discretion either lo dismiss
the application or
direct that oral evidence be heard or that the matter goes to trial.
[10]
Taking into account that in its answering affidavit. the first
respondent had already alleged she was
married to the deceased by
customary law and that
she
was not aware of the applicant being the son of the deceased, the
applicant should have foreseen the existence of a dispute
of facts
which cannot be
resolved
on
the
papers. It was up to the app
lican
t
at the beginning of the hearing to seek a referral lo oral evidence
on the issues mentioned in paragraph
7
above. Bearing in mind the undes1rab1llty of a court to
mero
motu
refer
anexisting factual dispute to oral evidence, in view of the fact that
the applicant
did
not seek a hearing of oral evidence in the alternative to his
prayers, I am of
the
view
that
the appropriate order must be lo dismiss the application. I am
satisfied that the applicant has not shown sufficient cause
why the
relief sought
should
be granted.
[11] With
regard to costs, the applicant had
,
In
the event
he succeeds a cost order on an attorney and client scale. I am of the
view that since the first respondent
is
the successful party, that she is entitled to costs on the same scale
as sought by the applicant
[12]
In the result the following
order is granted:
The application Is dismissed with
costs on an attorney and client scale'.
N
P MNGQIBISA-THUSI
Judge of the High Court
For
Applicant Khorombl Mabuli Attorneys and for Respondent Sibanda
Bukhosi Attorneys
[1]
Act 66 of 1965
[2]
Plascon -E vans Paints Ltd v Van Riebeck Paints (Pty)
Ltd
[1984] 2 An SA 366
(A).
[3]
Soffiantini v Mould
[1956] 4 All SA 171
€.
[4]
1957 (4) SA 23-4
((C). See also
Joh-Air (Pty) Ltd v Rudman
1980
(2) SA 420
(T) at 428-429;
Santino Publishers CC v Waylite
Marketing
CC
2010 (2) SA 53
(GSJ) qt 56F – 57B.
[5]
At 235 E-G.