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[2017] ZAFSHC 130
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Vermeulen NO v Rammile and Others (3401/2016) [2017] ZAFSHC 130 (18 July 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: 3401/2016
In
the matter between:
ELIZABETH
VERMEULEN NO.
Applicant
and
MPHO MAGDALINE
RAMMILE
First
Respondent
THE REGISTRAR OF
DEED BLOEMFONTEIN
Second Respondent
THE MANGAUNG
METROPOLITAN MUNICIPALITY
Third
Respondent
THE MEC FOR
CO-OPRATIVE GORVERNANCE
AND TRADITIONAL
AFFAIRS, FREE STATE
PROVINCE
Fourth Respondent
THE MEC FOR HUMAN
SETTLEMENT
FREE STATE PROVINCE
Fifth
Respondent
THE MASTER OF THE
FREE STATE HIGH COURT
BLOEMFONTEIN
Sixth
Respondent
HEARD
ON:
23 June 2017
DELIVERED
ON:
18 July 2017
MHLAMBI,
J
[1]
This is an application for leave to appeal against the entire order
of my sister Ebrahim J, delivered on 22 September 2016,
in terms of
which the rule
nisi
was discharged and it was
ordered that the costs of the entire application were to be borne by
the applicant
de
bonis propriis.
Due
to Ebrahim J’s unavailability, the matter was placed before me
for hearing on 23 June 2017. The application is opposed.
[2]
On 28 July 2016 a rule
nisi
returnable
on 25 August 2016 was issued calling upon the respondents to show
cause if any why the following order should not be
granted:
“
2.1
That the first respondent be prohibited from selling and/or
alienating and/or encumbering in any manner the property known as:
Erf
[...] Mangaung (Ext 6), district Bloemfontein, Province Free State
In Extent 457 (Four Hundred and
Fifty Seven) square metres Held by Deed of Transfer T3457/1994
2.2
That the second respondent be authorised and/or ordered to register a
caveat over the property and/or make a note in its records
to the
effect that the first respondent is not entitled to sell and/or
alienate and/or encumber the property in any manner as referred
to in
paragraph 1 supra.”
[3]
In her founding affidavit, the applicant stated that she was the duly
appointed
testatrix
in the estate of the late Ramosiane Andrew Rammile as per the letters
of executorship issued by the Master of the Free State High
Court,
Bloemfontein, dated 24 October 2013. The deceased and the surviving
spouse, Morakane Jeanett Rammile, were married to each
other in
community of property on 29 October 1983.
[4]
The deceased passed away on 7 July 2001. In his Last Will and
Testament he bequeathed the immovable property situated at [...]
M.
S., Bochabela, Bloemfontein to the daughter and the first respondent,
Mpho Magdaline Rammile. At all times the first respondent
knew that
she was only entitled to inherit the deceased’s 50% share of
the immovable property. Consequently, on 26
September 2008
a deed of sale was entered into between the first respondent
and the surviving spouse in terms of which
the latter sold her one
half share in the immovable property to the first respondent for the
amount of R 90 000.00.
[5]
On 10 September 2008, letters of executorship were issued in terms of
which the first respondent was appointed as the executrix
in the
deceased’s estate, replacing Mr Horn, who was since deceased.
Due to a shortfall in the estate, the immovable property
was sold by
public auction and realized the amount of R 284 070.00. The
first respondent refused to sign the transfer documents
to enable the
new purchasers to have the property transferred into their names. She
was removed by the Master as executrix for
her failure to adhere to
the Master’s request to sign the transfer documents. The
applicant was appointed by the Master as
the executrix on 24 October
2013.
[6]
The immovable property, also known as erf No. [...] Mangaung
(Extension 6) was at all times owned by the third respondent
as it
was only allocated to the deceased and the surviving spouse, but
never transferred into their names. Having sold the property
to the
estate and the surviving spouse on 7 August 2014, the third
respondent instructed Messers Cooper Majiedt to act as conveyancers
and to effect the registration of the property into the name of the
estate of the deceased and the surviving spouse. The transfer
could
not take place as the property had already been transferred onto the
first respondent’s name during March 2016 at the
instance of
the fourth respondent. The applicant then caused an application to be
filed seeking relief as set out above.
[7]
In her answering affidavit the first respondent conceded that, even
though her late father bequeathed the immovable property
to her, both
she and the surviving spouse were entitled to 50% share each of the
property.
[1]
For reasons she did
not know, the third respondent transferred the property onto her name
only.
[2]
She denied that she
fraudulently arranged that the property be transferred into her name.
She was willing to pay the surviving
spouse 50% of the value of the
estate even before the finalisation of this application, should the
surviving spouse be willing
to accept such payment.
[3]
[8]
A number of grounds were raised in opposition of the application. I
shall not deal with all the grounds save for two which were:
8.1
The applicant lacked the necessary
locus standi
to seek the
orders in paragraph 2.3 and 2.4 and that no case was made out in the
founding affidavit to seek such orders;
8.2
The applicant’s case, that there was a shortfall in the estate,
was based on conjecture as no facts were advanced in support
thereof.
However, in oral argument, the ground for lack of
locus standi
was
abandoned.
[9]
The court a
quo
did not
furnish reasons for its ruling; in the absence of which these can be
gnawed from the transcribed record. In the transcribed
record it is
said:
[4]
“
what
concerns me is the deceased’s wishes. His wishes and his(sic)
made it very clear that(sic) he wants, this is his right
that he is
casting onto his family through the first respondent and I am not
going to sit here and negate that right just for a
few counsel had
said, but I want to hear what Mr Mfazi has to say about that matter”.
It is
therefore evident that the court was in favour of the idea that the
first respondent should keep the “ family ancestral
home
because her father left it to her in terms of the will” and
“
because I believe that a family
home has got to be preserved for the family at all costs……
I know she is has been
naughty and I know she is probably sat back
and done nothing because she is in a position of strength and all of
that I am well
aware of but that does not concern me
”
[5]
dispite the first responded not having done anything in the past
eight years either to facilitate the finalisation of the
administration
of the estate or the payment of the surviving spouse’s
half share of the estate or property.
[10]
The court agreed with the first respondent’s counsel that there
was no reason for selling the property at an auction
as these were no
estate creditors. The shortfall was brought about by the auctioneer’s
commission, and the conveyancers’
fees.
[6]
Having referred to the liquidation and distribution account, counsel
for the first respondent contended that the administration
costs were
less than R 2 000.00.
[7]
This argument is without merit, especially viewed from the point that
it was conceded that the only asset in the estate was the
immovable
property.
[8]
There was no
suggestion in the papers, and in argument, as to how the estate was
expected to raise funds to,
inter
alia
,
pay for the administration costs, beneficiaries, obvious creditors as
suggested in the arguments, Master’s and executor’s
fees.
Besides, the testator could not bequeath property or assets he did
not own.
[11]
It was contended by the first respondent’s counsel, and the
court a
quo
agreed,
that the applicant was, in law, not an executor and therefore, not
suited as the Master’s decision to appoint the
first respondent
had not been set aside and therefore still valid. This argument is
also without merit.
[12]
In the light of the above mentioned, and the provisions of
section 17
of the
Superior Courts Act 10 of 2013
, I am of the opinion that the
appeal would have a prospect of success and I therefore make the
following order.
ORDER:
Leave
to appeal to the full bench of the Free State Division, Bloemfontein
is granted.
____________
JJ
MHLAMBI, J
Counsel
for Applicant:
Adv. WJ Groenewald
Instructed
by:
Kramer Weihmann & Joubert INC.
BLOEMFONTEIN
Counsel
for Respondents: Adv Mfazi
Instructed
by:
Molefi Thoabala INC
BLOEMFONTIEN
[1]
Paragraph
3.3 of the Answering Affidavit
[2]
Paragraph 3.4
[3]
Paragraph 3.4
[4]
Line
15-20: Page 10
of the transcribed
record
[5]
Line
10-15: Page 10
of the transcribed
record
[6]
Line
5-15: Page 12
of the transcribed
record
[7]
Line
18-22: Page 12
of the transcribed record
[8]
Line
2-6: Page 14
of the transcribed record