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[2018] ZAGPJHC 706
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Sukati v Executor (Musa Motsa) Deceased Estate Sabelo Sukati and Others (2017/39865) [2018] ZAGPJHC 706 (28 November 2018)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE
NO:
2017/39865
In the matter
between:
SANDILE
SUKATI
Applicant
and
THE
EXECUTOR (MUSA
MOTSA)
1
st
Respondent
DECEASED ESTATE
SABELO SUKATI
MASTER
OF THE HIGH
COURT
2
nd
Respondent
MINISTER
OF HOME
AFFAIRS
3
rd
Respondent
SIBUZANI
GUMEDE
4
th
Respondent
NESISA
GUMEDE
5
th
Respondent
REGISTRAR
OF
DEEDS
6
th
Respondent
JUDGMENT
RAMAPUPUTLA,
AJ
:
FACTS OF THE CASE
[1] The applicant is an adult male
born on […] August 1987. At the age of 13 in the year
2000 he lost his grandmother
whom he’d been residing.
According to the applicant, after 2011 he moved to stay with his
uncle, Sabelo Sukati (the
deceased) in Johannesburg. He avers that he
was under the care and guardianship of (the deceased) ever since. His
mother left for
the United States of America in 2003. At the
time he was 16 years old. The deceased was the brother to the
applicant’s
mother and they shared the Sukati surname. The
applicant’s mother is still alive and is living in the United
States of America.
Nothing is said about the applicant’s
father.
The applicant brings this application
seeking the following orders:
1.
A
declaration
that he is the son and child of the deceased, Sabelo Sukati and is
entitled to inherit a share of the estate which had
devolved upon his
surviving children;
2. Alternatively, a declaration that
the applicant and all surviving children of the deceased are entitled
to inherit equally the
remainder of his estate in equal shares;
3. That third respondent registers the
birth of the applicant as the child of the deceased in his books, as
at date of birth;
4. That the second respondent reopens
an enquiry into the finalisation and distribution of the deceased
estate;
5. Alternatively, the second
respondent be directed to suspend all determinations and finalisation
of the deceased estate pending
the outcome of this application;
6. That the second respondent be
directed to consider the applicant as an heir to the estate of the
deceased;
7. Costs;
8. Alternative relief.
[2]
The
deceased passed away on 4 July 2013. He died intestate. On 13
September 2013 the Master issued Letters of Executorship
in
respect of the deceased’s estate to the first respondent in
terms Administration of Estates Act
[1]
.
[3] The applicant is employed with a
government department the specifics of which are not provided. At the
time of the hearing of
this application the applicant was 31 years
old.
THE FOLLOWING FACTS ARE COMMON
CAUSE
[4] The applicant lived at the
deceased’s house from the age of 16 (Sixteen) and all his
entire high school career was completed
while residing at the
deceased’s house.
[5]
Throughout
he used the surname Sukati which is also his mother’s surname
.
[6] The applicants mother (the
deceased’s sister) is still alive.
[7] The deceased is survived by four
children. He was divorced with two children and had two additional
children from two different
women.
[8] The deceased’s four children
are to inherit from the deceased estate.
[9] At the time of this application
the liquidation and distribution account laid for inspection at the
Master’s office.
ISSUES TO BE DETERMINED BY THE
COURT
[11]
The
first respondent opposes the application on the ground that the
applicant was never adopted by the deceased
.
The
second to the sixth respondents are not opposing this application.
[12]
The
issue for determination in this application is whether the applicant
is an adopted son of the late Sabelo Sukati (the deceased)
and if he
was, whether he is entitled to inherit from the deceased estate
.
[13]
The
court also has to determine whether the adoption was in terms of
in terms of Children’s Act
[2]
or African customary law
.
[14]
The
court further has to determine whether the applicant’s
objection to the administration of the estate by the Executor is
compliant with the Administration of Estates Act and whether he has
followed prescribed procedure
.
RESPONDENT’S ARGUMENT
[15] The 1st respondent objects to the
application and argues that the applicant was not adopted by the
deceased and fails to prove
whether his adoption is in terms of
Children’s Act or African Customary law. It is argued that
looking after someone does
not create adoption.
REASONS FOR JUDGEMENT
[16] Adoption in South Africa is
achieved statutorily through the Children’s Act or by African
Customary law. The applicant
seeks this court to declare that
he is the son of the deceased due to the fact that he lived with the
deceased and the deceased
treated him like his own son.
[17]
It is
clear from the facts of the case that the applicant was not adopted
in terms of the Children’s Act since he failed to
produce any
documentary evidence to that effect. Such documentary evidence would
have been readily available if it existed. It
is therefore
unnecessary to deal with the requirements for such adoption.
[18]
The
only possible way that the applicant could have been adopted is
through customary law. If indeed the applicant’s adoption
is
based on customary law, the court must first establish the
requirements of an adoption in African customary law. The
requirements for adoption under customary law are found in Makgoka
J’s (as he then was) judgment of
Maswangaye
v Baloyi N.O and Another.
[3]
According
to the judgement the element of publicity is central to the process
of customary adoption. The publicity takes the form
of a small,
symbolic ceremony to mark the occasion. Adoption is a significant and
life-altering development for all concerned,
the child, the natural
parent(s) as well as the adoptive parent(s)
.
[19]
In
the case of
Kewana
v Santam Insurance Co. Ltd
[4]
the child was adopted after his father died and his mother became
mentally ill. He was cared for by relatives, who decided that
the
deceased should adopt the child. The deceased agreed. A traditional
ceremony was held, attended by the deceased’s family,
the local
chief and neighbours. A male relative was present as the ‘eye’
of the family, and he informed the gathering
that the purpose of the
ceremony was that the child was accepted and recognised as the child
of the deceased. A sheep was slaughtered
for the enjoyment of the
guests and a goat was slaughtered ‘to give the occasion the
significance and solemnity of an act
being done in accordance with
tribal customs.’ The deceased was present at the ceremony
.
[20]
In
an article
written
by Professor Maithufi
[5]
,
a widely acknowledged expert in African law the process of adoption
in terms of customary law is outlined as follows:- The relatives
are
called to a meeting where the envisaged adoption is to take place.
After this meeting, the adoption has to be reported to the
traditional leader of the area or his or her representative. The
formalities relating to the agreement between the families of
the
adopted child and the adoptive parent(s), as well as the report to
the traditional leader or his or her representative are
aimed at
indicating that the adopted child has been formally transferred from
one family to another. Even in cases where adoption
was not reported
to the traditional leader, the adoption would still be valid if due
publicity was given to the process and there
was agreement between
the families of the adopted child and the adoptive parent(s). The
validity of an act of adoption in terms
of customary law largely
depends upon the agreement between these families. A traditional
ceremony which may involve the slaughtering
of small livestock is
normally held to mark the adoption.’
[21]
Courts
do not easily infer adoption especially where the biological
parent(s) of a child are alive. It is recommended that a court
should
take it’s time to conclude that there has been an informal,
de
facto
adoption
.
In
the case of
Flynn
v Farr
[6]
the
child’s parents were divorced when he was very young. His
mother married another man, who raised him like his own
son. From the
evidence before court, it was clear that the step-father was part of
the child’s life from the time he was
five years old and they
enjoyed a good and healthy relationship. He was raised by his mother
and his step-father and resided with
them in the family house. His
step-father afforded him the support and affection which any father
would have for his own son. However,
the child was never legally
adopted by his step-father, ostensibly because his biological father
would not grant his consent for
such adoption to take place. After
his step-father’s death, the executrix applied to the court for
a declaratory that the
child, then an adult, had been
de
facto
adopted by the deceased. The court declined to grant the relief
sought.
[22]
I agree
with the above and add that adoption is like the second birth of an
adopted child. The publicity surrounding the adoption
is to let
everyone know that a child is going to be nurtured according to the
customs, norms and values of the adoptive parents.
The adoptive
parents are welcoming a new member to their family and they let this
fact be known to all and sundry
.
[23]
The Applicant does not suggest that there was any ceremony to
formalise his adoption. Therefore the publicity aspect
which
is an essential element in a customary adoption is lacking.
[24]
Furthermore,
the applicant’s mother is still alive and lives in the United
States of America. There is no averment that she
had given her
consent for such an adoption. There is also no averment that she was
unable and unwilling to take care of the applicant
.
[25]
The
deceased and the applicant’s mother share a surname and thus it
is not surprising the deceased and applicant share the
Sukati
surname.
[26]
The Applicant
suggests that the deceased was his guardian and in an attempt to
prove this averment he attached a receipt from the
department of home
affairs dated 20 February 2018. He avers that he will receive
confirmation of guardianship after three months.
On the hearing of
this application no such confirmation was provided and no explanation
was provided as to the absence of such
confirmation
.
[27]
The deceased is
survived by his own 4 children who are beneficiaries to his estate
.
[28]
No
concrete evidence of adoption is brought before the court. This
application is replete with averments which fail to substantiate
the
averment that the applicant was the son of the deceased.
[29]
It is my opinion that
the
applicant avers adoption as a means of claiming ownership over the
assets of the deceased.
[30] I conclude that the applicant was
not adopted by the deceased neither in terms of statute or customary
law. He is also
not declared the deceased’s son and is
therefore not entitled to share in the estate of the deceased.
Wherefore
prayers 1,2,3,4 are dismissed.
[31]
The
next issue is whether the applicant is entitled to an order
compelling the Master of the High Court to re-open an enquiry into
the finalisation and distribution of the deceased estate;
alternatively, the Master be directed to suspend all determinations
and finalisation of the deceased estate pending the outcome of this
application. This appears to me to be nothing more than an objection
to the validity of the process of the liquidation which resulted in
the liquidation and distribution account. The account is still
lying
for inspection and has not been confirmed by the Master at the time
of this application.
[32] The Administration of Estates Act
consolidates the laws regarding the liquidation and distribution
accounts pertaining to deceased
estates. Amongst other purposes the
Act serves is the provision of a procedure to be followed in raising
any objection to the liquidation
and distribution account.
[33]
Any
person interested in the estate may lodge with the Master any
objection with the reasons therefor. The objection must be lodged
in
duplicate. The objection must be lodged at any time before the expiry
of the period allowed for inspection of the liquidation
and
distribution account. After receiving such objection, the Master
shall deliver or transmit by registered post to the executor
a copy
of any such objection together with copies of any documents which
such person may have submitted to the Master in support
thereof.
[7]
[34]
The executor shall, within fourteen days after receipt by him of the
copy of the objection, transmit two copies of his comments
thereon to
the Master.
[8]
[35]
If, after consideration of such objection, the comments of the
executor and such further particulars as the Master may require,
the
Master is of opinion that such objection is well-founded or if, apart
from any objection, he is of opinion that the account
is in any
respect incorrect and should be amended, he may direct the executor
to amend the account or may give such other direction
in connection
therewith as he may think fit.
[9]
[36]
Any person aggrieved by any such direction of the Master or by a
refusal of the Master to sustain an objection so lodged, may
apply by
motion to the Court within thirty days after the date of such
direction or refusal or within such further period as the
Court may
allow, for an order to set aside the Master's decision and the Court
may make such order as it may think fit.
[10]
[37]
If
any such direction affects the interests of a person who has not
lodged an objection and the account is amended, the account
as so
amended shall, unless the said person consents in writing to the
account being acted upon, again lie open for inspection
in the manner
and with the notice and subject to the remedies hereinbefore
provided.
[11]
[38]
Meyerowitz
[12]
emphasizes that the objection must be lodged in duplicate with the
related reasons. The objector may submit any documents which
he or
she sees fit in support of his or her objection.
[39]
For the objection to be compliant, it must be in a proper form.
The Master's ruling thereon will, however, only be given after the
account has
lain open for inspection and after the
procedure laid down has been followed.
[13]
[40]
In
casu
the only averment made regarding objecting to the administration of
the deceased’s estate is that applicant and the deceased’s
ex-wife went to the Master’s offices several times but they
were given a short shrift. The applicant avers that the Master
says
he does not have
locus
standi
in the liquidation
and distribution of the estate of the deceased Sabelo Sukati
,
and thus this application.
I
have no evidence before me that indicates that the applicant followed
procedure as prescribed by the Administration of Estates
Act. I have
no authority to order the Master to act as requested by the applicant
in the absence of any indication to a proper
approach to the Master.
The procedure as laid down by the Administration of Estates Act has
to be complied with before the court
can be approached for any
relief.
Wherefore
prayers 5, 6, 7, 8,
are dismissed.
[41]
The
applicant must pay the first respondent’s costs. The only issue
that remains is the scale of costs. Applicant’s
conduct has led
to the diminishing of the deceased estate. This will cause financial
prejudice to the heirs who are the real children
of the deceased. The
executor has to be paid from the estate in defending this
application.
[42]
I conclude that
this is a vexatious application. This is also illustrated by the fact
that no proper service was effected through
the Sheriff against the
other respondents as required by the Uniforms Rules of court.
[43]
The
Applicant
is
ordered to pay
costs
on
the attorney and own client scale.
[44]
Wherefore I make
the following order:-
1. The application is dismissed.
2. The Applicant is ordered to pay
costs on attorney and own client scale.
_______________________
N.E. RAMAPUPUTLA
Acting Judge of the High Court,
Johannesburg Local Division
Counsel for applicant: Adv SW Mkhize
Instructed by: Selamolela Attorneys
No 123 cnr Albertina Sisulu Drive
Suite 9
TH
Floor
Mansion House Johannesburg
Counsel for the 1
st
respondent: Mr R Motsa
Instructed by: Motsa (Musa) Attorneys
Office no. 1
West Side 1
ST
Floor
No. 62 Charle Cilliers Avenue
Malanshof Building
Alberton North
Date of Hearing: 31 October 2018
Date of Delivery: 28 November 2018
[1]
Section
13 and 14 of The Administration of Estates Act 66 of 1965
(hereinafter referred to as the
Administration of Estates Act).
[2
]
38
of 2005 (
the
Children’s Act).
[3]
62122/2014) [2015]ZAGPPHC917 para 18.
[4]
1993
(4) SA 771
(TkA)772 (I-J).
[5]
Maithufi,
I “Adoption according to customary law -
Kewana
v Santam Insurance Co.
Ltd
1993
(4) SA 771
(Tk) Followed.” (2001) 34
De
Jure
390
at 391 - 392.
[6]
2009
(l) SA 584 (C).
[7]
Section
35(7).
[8]
Section
35(8).
[9]
Section
35(9).
[10]
Section
35(10).
[11]
Section
35(11).
[12]
D.
Meyerowitz
The
Law and Practice of Administration of Estates and their Taxation
(2010) at 16.14 - 16.18
[13]
Götz v The Master and others NNO
1986 (1) SA 499 (N) page
504.