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[2015] ZAGPPHC 123
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Lenyai and Another v Rooth and Wessels Inc and Others (84265/2014) [2015] ZAGPPHC 123 (3 March 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(NORTH GAUTENG,
PRETORIA)
CASE NO:
84265/2014
DATE: 3 MARCH
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
ONKGOPOTSE
LENYAI
...........................................................................................
FIRST
APPLICANT
KEITUMETSE
TOKOLOGO
MOTSEPE
...........................................................
SECOND
APPLICANT
And
ROOTH AND WESSELS
INC
...............................................................................
FIRST
RESPONDENT
MASTER OF THE
HIGH COURT,
PRETORIA
............................................
SECOND
RESPONDENT
PAUL
VRANAS
.......................................................................................................
THIRD
RESPONDENT
CORINE
VRANAS
..............................................................................................
FOURTH
RESPONDENT
MAMOGOLO
MATUBATSE
.................................................................................
FIFTH
RESPONDENT
ROSINA
MOTUBATSE
....................................................................,.....................
SIXTH
RESPONDENT
THANALEI
LENEMAKULA
..........................................................................
SEVENTH
RESPONDENT
FIRST NATIONAL
BANK
....................................................................................
EIGTH
RESPONDENT
JUDGMENT
1. The applicants
issued an application pertaining to the last will and testament of
their late father, Jacob Koos Pali Motubatse
who passed away on 15
September 2008. They seek an order in the following terms:
“
1.
An order setting aside and declaring null and void the purported
fraudulent Will of the late Jacob Koos Pali Motubatse signed
and
dated the 29
th
August 2008;
2. That the
Second Respondent be directed to withdraw and cancel letters of
executorship granted in favour of the First Respondent
in the estate
of the late Jacob Koos Pali Motubatse and that such letters be set
aside and declared of no force with immediate
effect;
3. An order
declaring that the “First” will of the late Jacob Koos
Pali Motubatse dated and signed on the 28
th
February 1987
be effective immediately;
4. Costs of suit;
5.
Further or alternative relief.
”
2. Annexed to the
papers are documents purporting to be the Last Will and Testament of
Jacob Koos Pali Matubatse dated 29 August
2008 and 28 February 1987
respectively. The first applicant contends that the Last Will and
Testament dated 28 February 1987 of
which the original was kept with
First National Bank and a copy with the mother of the applicants to
this application.
3. It appears to the
naked eye that the testator’s signatures on the two respective
documents dated 28 February 1987 and 29
August 2008 differ
remarkably. The “first” will and testament appearing at
pages 21 and 22 is identical to the one
appearing at page 30 and 31
which was in safekeeping at First National Bank. It appears that the
original that was kept by the
bank had been signed and the one which
was in the possession of the applicants’ mother, Louisa Motsepe
has the names of the
witnesses and the testator written in where
their signatures appear on the original.
4.
Furthermore, at pages 39 and 40 of the papers appears a confirmatory
affidavit deposed to by Dr JF Benson who was treating the
late Jacob
Koos Pali Motubatse
“
...from
18 August 2008 until he passed away on 15 September 2008.”
He
further states under oath that
“
...I
confirm that the patient
(sic)
mental state from
the 21
st
August 2008 developed a delirium due to severe pneumonia and
was
(sic)
intubated
and ventilated until his death on the 15
th
of September 2008.”
At
paragraph 4 of his affidavit he states "...
The
patient was not of sound mind between the periods mentioned at
paragraph
3
above. He could
not be able to make proper
(sic)
decision.”
5. A case of fraud
has been opened under CAS 877/05/2011 and is still under
investigation.
6.
The application was served on the third and fourth respondents by
Sheriff by
“
...affixing
a copy thereof to the PRINCIPAL GATE of the residence...which is kept
locked and thus prevents alternative service...’’.
There
was no opposition to this application and no opposing papers were
filed. The first and second respondents wrote letters stating
in
essence that they abide by the court’s decision.
7. In light of the
aforegoing, an order is granted in the following terms:
IT IS ORDERED:
7.1 THAT the will
of the late Jacob Koos Pali Motubatse (“the testator”)
dated 29 August 2008 be and is hereby set aside
and declared null and
void.
7.2 THAT the
Second Respondent be and is hereby directed to withdraw and cancel
all the Letters of Executorship issued pursuant
to the testator’s
will dated 29 August 2008.
7.3 THAT the will
of the testator signed and dated 28 February 1987 be and is hereby
declared to be his last valid will and testament.
7.4 THAT the
costs of the application be paid from the estate of the testator.
G. WEBSTER
JUDGE IN THE HIGH
COURT