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[2015] ZAECMHC 83
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Ndamase and Others v Master of the High Court, Mthatha and Others (1279/2015) [2015] ZAECMHC 83 (26 November 2015)
IN THE HIGH
COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
CASE NO. 1279/2015
Date heard:
24 November 2015
Date
delivered: 26 November 2015
In
the matter between:
THOZAMA
KHONZAPHI NDAMASE & 3
OTHERS
Applicants
and
MASTER
OF THE HIGH COURT, MTHATHA & 3
OTHERS
Respondents
JUDGMENT
BROOKS
AJ:
[1]
The four applicants are sisters. Their late mother died on 24
December 1989 and their brother, the late NDOYISILE MAJOR
KONZAPI
(the deceased) was appointed as executor to her estate. That
appointment was challenged by the applicants in this
court under case
no 21/2011. The challenge was unsuccessful and the applicants
attach to the founding affidavit in this matter
a copy of the
judgment issued by the late DUKADA J. In due course, on 22 May
1991 the deceased took transfer of certain immovable
property from
his late mother’s estate.
[2]
The deceased died intestate on 20 November 2014 and his wife, the
third respondent herein, as his surviving spouse, appears
to have
been appointed as executor to his deceased estate, the second
respondent herein, estate no 000717/2015.
[3]
The first and the fourth respondents have been cited nomine officio.
The first respondent has filed a notice to abide
by the court’s
decision. No response to the application has been made by the
fourth respondent.
[4]
The applicants seek an order in the following terms:
“
1.
Directing the
first, second and
third respondents to join the applicants in the Estate 000717/2015 as
the co-heirs;
2. That
the refusal to join the applicants in the deceased Estate no
000717/2015
be declared wrongful and unlawful;
3. That
any document disinheriting the applicants be declared unlawful and
with
no legal force;
4.
That the respondents be ordered to pay costs of this application only
in the
event of opposing this application.”(sic)
[5] The
application is opposed by the second and the third respondents.
No answering affidavit has been filed. As they
are entitled to
do, the second and the third respondents have filed a notice in terms
of rule 6 (5) (d) (iii) of the Uniform Rules
of Court in which they
raise a point of law which they contend is dispositive of the
application. The point of law raised
is to the effect that the
applicants have failed to establish “a cause of action”.
Accordingly, the issue to
be determined is whether, on their own
papers, the applicants have established an entitlement to relief.
[6] In
essence, the relief sought by the applicants amounts to a final
mandatory interdict. The availability of such relief
in
appropriate circumstances is well established in our law.
[1]
[7] The
requirements for a final interdict are similarly well
established.
[2]
The applicants must demonstrate:
·
a clear right;
·
an injury
committed or reasonably apprehended;
·
the absence of
any satisfactory alternative remedy.
[8] It
is plain from a reading of the founding affidavit that the applicants
remain discontent about the devolution of their late
mother’s
estate. The background to the application which they brought
under case no 21/2011 is repeated in the founding
affidavit filed in
this matter. The cornerstone of the present application appears
to be expressed in the following paragraph
[3]
contained
in the founding affidavit:
“
I
am advised that in terms of the law of succession Act 81 of 1987 the
third Respondent is legally bond to consult us winding up
of this
Estate as we are the biological children of Nonkululeko Franscina
Mto.” (sic).
It is
clear from the remaining portions of the founding affidavit that
“this Estate” refers to the second respondent
and that
“Nonkululeko Franscina Mto” was the applicants’
late mother.
[9] The
judgment of the late DUKADA J delivered in case No 21/2011 stands.
The estate of the applicants’ late mother
was distributed to
the deceased pursuant thereto. The applicants contend that the
legislation upon which that judgment was
determined is discriminatory
and unconstitutional. These contentions appear to have been
raised by the applicants under case
No. 21/2011 and were dealt with
by the late DUKADA J in his judgment.
[10] Section 1
(1) (a) of the Intestate Succession Act 81 of 1987 (the Act)
provides:
“
1.
Intestate
succession.
–
(1) If after the commencement of this Act a person (hereinafter
referred to as the “deceased”) dies intestate,
either
wholly or part, and-(a) is survived by a spouse, but not by a
descendant, such spouse shall inherit the
intestate
estate;”
[11] It
is common cause that the third respondent is the surviving spouse of
the deceased. As sisters of the deceased, the
applicants do not
qualify as “descendents” of the deceased. The
entitlement of the third respondent as surviving
spouse to inherit
the estate of the deceased is prescribed and protected by the
provisions of s1 of the Act. No factual or
legal basis exists
for the claim made by the applicants in paragraph 16 of the founding
affidavit.
[12] In
my view, the applicants have failed to demonstrate a clear right to
the relief sought.
[13] In
the circumstances, there is merit in the point of law raised by the
second and the third respondents in opposition to the
application.
On their own papers, the applicants cannot succeed and the
application falls to be dismissed. There is
no reason why costs
should not follow the result.
[14] The
following order is issued:
“
The
application is dismissed with costs.”
__________________________________
RWN
BROOKS
JUDGE
OF THE HIGH COURT (ACTING)
Appearances:
For
the applicants: MR H N MHONGOZELI
of H N MKHONGOZELI ATTORNEYS,
MTHATHA
For
the second and
third
respondents: ADV. AM BODLANI
instructed by VV MSINDO &
ASSOCIATES, MTHATHA
[1]
TRANSNET BPK h/a COACH EXPRESS EN ‘N ANDER
v VOORSITTER, NASIONALE VERVOERKOMMISSIE , EN ANDERE
1995 (3) SA 844
(T) 847F.
[2]
VAN DEVENTER v IVORY SUN TRADING 77 (PTY) LTD
2015 (3) SA 532 (SCA) 540 C.
[3]
Paragraph 16 of the founding affidavit.