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[2017] ZAFSHC 140
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Moeko v Moeko and Others (271/2017) [2017] ZAFSHC 140 (11 June 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 271/2017
In
the matter between:
MAKHOTSO
ALICE
MOEKO
Applicant
and
MALEFETSANE
JOSEPH MOEKO
1
st
Respondent
REGINA
DUMAZILE KHUTSOANE
2
nd
Respondent
MOHLOLO
ANDREW KOMAKO
3
rd
Respondent
HARRINGTONS
INCORPORATED
4
th
Respondent
REGISTRAR
OF DEEDS, BLOEMFONTEIN
5
th
Respondent
PHUTHADITJHABA
MAGISTRATE’S OFFICE
6
th
Respondent
MALUTI-A-PHOFUNG
MUNICIPALITY
7
th
Respondent
HEARD
ON:
6
JUNE 2017
JUDGMENT
BY:
MBHELE, J
DELIVERED
ON:
11
AUGUST 2017
[1]
This is an opposed application in terms whereof the applicant moves
for an order in the following terms:
1.
Declaring
that certificate of appointment under file number 216/94 issued at
Phuthaditjhaba Magistrate’s Offices in favour
of first
respondent is illegal, unlawful and null and void.
2.
Declaring
that title deed number: T7078/2012, registered in the names of
the second respondent on the property described as
[...] R. S.
Phuthaditjhaba is unlawful and null and void.
3.
Declaring
that the title deed number: T10867/2014, registered in the
names of the third respondent on the property described
as [...] M.
S. Phuthaditjhaba is unlawful null and void.
4.
That
the Honourable court make an order directing the registered of deeds
Bloemfontein, do cancel the abovementioned title deeds.
5.
That
the Honourable court make an order directing re-transfer of the said
properties to Sello William Moeko, being the original
owner thereof.
6.
The
first, second and third respondents to pay the costs of this
application as between attorney and client jointly and severally,
the
one paying the order to be absolved.
[2]
First respondent is the surviving son of the late William Sello Moeko
(the deceased). The deceased died on 03 September 1992.
It is the
applicant’s case that she is the surviving spouse of the
deceased whom she married on 27 June 1986, 7 months after
his divorce
from the first respondent’s mother.
[3]
Applicant and first respondent have each been issued with letters of
appointment from Phuthaditjhaba Magistrate court to
administer
the deceased’s estate. Applicant is of the view that she is the
sole beneficiary to the deceased’s estate.
[4]
First respondent sold two immovable properties belonging to the
deceased’s estate to the 2
nd
and 3
rd
respondents respectively. The said properties are the subject
matter of this application.
[5]
There are numerous factual disputes on the papers which are incapable
of resolution through motion proceedings.
[6]
The first dispute is whether the applicant was indeed married to the
deceased. Whether the applicant and first respondent
were duly
appointed as representatives of the estate.
[7]
It is, further, disputed that the applicant ever occupied the
properties at the centre of this application.
[8]
Where an application cannot be decided on affidavit the court has a
discretion to refer the matter for oral evidence with a
view to
resolving any dispute of fact apparent from the papers. (See
Rule 6(5)(g) of the uniform rules of court).
[9]
The general principles relating to referral of motion proceedings to
oral evidence was set out in
Kalil
v Decotex (Pty) Ltd and Another
1988 (1) SA 743
(A) 979F- J where, the court said the following:
“
The
applicant may, however, apply for an order referring the matter for
the hearing of oral evidence in order to try to establish
a balance
of probabilities in his favour. In those circumstances, the Court
should have a discretion to allow the hearing of oral
evidence in an
appropriate case. The alternative, viz refusal of the provisional
order of winding-up, represents a final decision
against the
applicant and, if such a decision is always made purely on the
affidavits, injustice may be done to the applicant.
In exercising
such discretion, the Court should be guided to a large extent by the
prospects of
viva
voce
evidence
tipping the balance in favour of the applicant. Therefore, if on the
affidavits the probabilities are evenly balanced,
the Court would be
more inclined to allow the hearing of oral evidence than if the
balance were against the applicant.”
[10]
In
Khumalo
v Director-General of Co-operation and Development
[1990] ZASCA 118
;
1991 (1) SA 158
at 167G-J the court said the following:
“
In
Moosa
Bros & Sons (Pty) Ltd v Rajah
1975
(4) SA 87
(D)
Kumleben
J, after a review of relevant authorities, arrived at the following
conclusions (at 93):
'
(a)
As a matter of interpretation, there is nothing in the language of
Rule 6(5)
(g)
which
restricts the discretionary power of the Court to order the
cross-examination of a deponent to cases in which a dispute
of fact
is shown to exist.”
(b)
The illustrations of “genuine” disputes of
fact given in the Room Hire case at 1163 do not and did
not purport
to set out the circumstances in which cross examination under the
relevant Thiensville rate of court could be authorised.
They a
portion do not determinate the circumstances in which such relief
should be granted in terms of the present rule 6(5)(g).
(c)
Without attempting to lay down any precise rule, which may
have effect of limiting the wide discretion implicit
in this Rule, in
my view oral evidence in or other form envisaged by the Rule should
be allowed if there are reasonable grounds
for doubting the
correctness of the allegations concerned.
(d)
In reaching a decision in this regard, facts peculiarly
within the knowledge of an applicant, which for that reason
cannot be
directly or refuted by the opposite party, are to be carefully
scrutinised”.
[11]
I cannot find on the papers before me, that the factual disputes can
be resolved in motion proceedings. The disputes
are genuine,
relevant and material.
[12]
I am of the view that the matter should be referred to oral evidence.
There are reasonable grounds to doubt the correctness
of two
sets of letters of authority issued to the parties.
ORDER
[13]
Consequently the following order is made:
1.
The
application is postponed to 9 October 2017 for certification, as
ready for hearing
viva
voce
evidence by the pre-trial Judge.
2.
The
issues to be determined are the following:
2.1
Whether
the applicant is the surviving spouse and sole heir of Sello William
Moeko’s estate.
2.2
The
validity of two letters of appointment issued to the applicant and
the first respondent.
3.
Should
any party wish to lead the evidence of any person who has not deposed
to an affidavit in these proceedings, that party shall
submit an
affidavit containing a summary of such person’s evidence
together with any documents upon which they rely and do
so within 15
days prior to the hearing of this matter.
4.
Whether
a party is entitled to call any witness who has not presently deposed
to an affidavit will be determined by agreement between
the parties
failing which on application to the court at the hearing of this
matter.
5.
The
provisions of Rule 35 are made applicable to this matter.
6.
Cost
to be costs in the application.
______________
NM
MBHELE, J
On
behalf of applicant:
Mr. Radebe
Instructed
by:
Bokwa Attorneys
Bloemfontein
On
behalf of respondents: Adv. Rautenbach
Instructed
by:
Phatshoane
Henney Attorneys
Bloemfontein