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[2011] ZAKZDHC 33
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Motala and Others v Salejee and Others (9991/2010) [2011] ZAKZDHC 33 (15 July 2011)
IN THE
KWAZULU-N AT AL HIGH COURT, DURBAN
REPUBLIC OF
SOUTH AFRICA
CASE
NO.:9991/2010
In the matter between:
ZIYAAD MOT ALA
.....................................................................................
FIRST
PLAINTIFF
RASHIDA MOTALA
...............................................................................
SECOND
PLAINTIFF
FAZIELA BIBI AYOB MOTALA
.
............................................................
THIRD
PLAINTIFF
EBRAHIM ESSOP DESAI
.....................................................................
FOURTH
PLAINTIFF
ESMAIL SALEJEE
......................................................................................
FIFTH
PLAINTIFF
AMINA MOTAL
..........................................................................................
SIXTH
PLAINTIFF
ZAHEER MOTALA
..............................................................................
SEVENTH
PLAINTIFF
RAFIA MOTALA
.....................................................................................
EIGHTH
PLAINTIFF
JOUBEDA MOTALA
..................................................................................
NINTH
PLAINTIFF
FAAIZA MOTALA
....................................................................................
TENTH
PLAINTIFF
NAZIRA HASSAN
.
.............................................................................
ELEVENTH
PLAINTIFF
and
MOHAMMED AHMED SALEJEE
.........................................................
FIRST
DEFENDANT
ABDUL SAMED MOTALA
.
...............................................................
SECOND
DEFENDANT
MASTER OF THE HIGH COURT
........................................................
THIRD
DEFENDANT
JUDGMENT
Introduction
1. The
residual issue for consideration by this court is that of costs.
This is so after the first and second defendants withdrew
their
defence to the action herein, - in circumstances which could be
described as a last minute withdrawal. This they did without
tendering costs but contending that they are not liable. As such,
the entire argument before me was focused on the issue of costs.
As
one would expect in matters
like
this, for the court to come to one an appropriate decision, it needs
to traverse the merits of the matter, which, I propose
to do
shortly. However, a brief reflection on the background to the
dispute will be useful.
Background to the matter
2. The deceased, the late Ayob
Ismael Motala, signed a document purporting to be his last Will and
Testament (hereinafter his
Will) on 26 October 2004, The said Will
was said to be in accordance with Islamic law of Succession. Three
executors, were appointed
in the Will, one Amien Vania now deceased,
first and second defendants. The latter is also one of the deceased
children. The
deceased died on 23 October 2007. Subsequent thereto,
the Will was lodged with the third defendant who accepted it.
3. A dispute arose out of this
Will with the plaintiffs contending that it was invalid in that at
the time the deceased appended
his signature to the Will, he was
suffering from dementia or alternatively, other medical condition
which affected him to such
a degree that he was mentally incapable
of appreciating the nature and effect of his actions. To this
extent, an application
was brought to court to set aside the said
Will. On 20 July 2010, an order was granted by consent which among
others directed
the plaintiffs to institute the present proceedings
within one month.
4. The
plaintiffs instituted the proceedings in terms of the court order
and the two defendants filed their plea accordingly.
In the present
proceedings, the substantive order sought by the plaintiffs is that
I must declare the Will signed by the deceased
on 26 October 2004
null and void and that I should declare that he died intestate. So
much for the background.
The factual matrix of the
issues at hand
5.
I should state
from the onset that there is no evidence around the
circumstances
under which the Will was signed. There appears
though on reading the material properly
placed before me that
there exist bad blood between all the plaintiffs on the one hand
and
the second defendant on the other. With the first two
defendants having withdrawn their defence, plaintiffs presented
their evidence
on default basis.
6. Differently put, plaintiffs
evidence was uncontested. I will deal with the plaintiffs evidence
first although it was preceded
by argument pertaining costs. I do so
because it is necessary to understand the nature of the dispute here
and how it arose in
the first place.
7. Two
witnesses were called on behalf of the plaintiffs. Mr Jayprigason
Reddy (Reddy), their attorney of record was the first
to testify.
His evidence in brief is this. He has been dealing with the matter
for the last six or seven years prior to the trial,
(this being 14
March 2011). The deceased had two sons and two daughters. These are
the late Abdul Khaliek Motala (AK), the second
defendant, third
plaintiff and the second plaintiff. Second defendant wanted certain
things to happen pertaining his late brother
A K Motala who died in
2007. Certain documents were brought to Reddy regarding the deceased
during or about 2008. At that time
there was already a dispute about
the deceased mental state.
8. On 11 October 2004, fifteen
days before the Will was signed, a conference was held between the
parties with their respective
attorneys present. The second
defendant at the time was represented by Mr Aslam Mayat, of Shaukat
Karim and Company, Attorneys.
The details of the discussions of that
conference are contained in a letter dated 20 October 2004,
addressed by Mr Reddy to Shaukat
Karim and Company. As there was a
dispute about the deceased state of mind already at the time, with
the second defendant holding
that there is nothing untoward with the
deceased mind, plaintiffs required that the deceased be present in
the meeting. Second
defendant's attorney was amenable to this but
second defendant was totally against it saying that his father could
not and would
not attend any meeting.
9. One of the issues giving
rise to grave concern in the meeting of 11 October 2004, was a draft
sale agreement between the deceased
and the second defendant. In
this document, the deceased intended selling his member's interest,
loan account and beneficial
interest in a close corporation to the
second defendant.
10. Sometime
in 2006, third plaintiff approached court in which he sought a
relief that a
curator
ad litem
be
appointed to the person of the Ayob Ismail Motala (the deceased).
This application was granted. Among others a purchase and
sale
agreement between the deceased and the second defendant was given to
the curator ad litem by the former. Again in terms
of this agreement
the deceased sold his member's interest, loan account and beneficial
interests he held in two Close Corporations
and one Trust to the
second defendant. During the interview with the curator ad litem,
.the second defendant admitted to the
deceased (his father) not
being in 'any mental state at all, at the moment'.
11. On the 17 October 2006, a
meeting took place among some of the children of the deceased
represented by Mr Reddy on the one
hand and the second defendant,
then represented apparently by Attorney Mrs Zubeida Seedat on the
other. It was in this meeting
that the rest of the family became
aware of the existence of the Will when it was opened by Mrs Seedat,
On 30 October 2006, Mr
Reddy addressed a letter to Seedat on his
client's behalf among others advising that they intended challenging
the validity of
the Will and setting aside any disposition
pertaining thereto. On 31 October 2006, Mrs Seedat replied stating
that she was not
acting for the second defendant but was
endeavouring to facilitate a meeting of estranged family members
with whom she had a
long association. Furthermore, she advised that
she was obliged to, and would as an officer of Court submit the Will
to the office
of the third defendant. This, she did.
12. It is in
the above context that the third defendant received the Will. He,
thereupon appointed the executors who include second
defendant, in
terms of the Will. The order taken by consent before me on 20 July
2010, set aside among others the appointment
of the second defendant
and other executors in the estate of the deceased.
13. Second plaintiff, Professor
Ziyaad Motala, is the son of the late Mr AK Motala and the grandson
of the deceased. He is the
family representative in the matter. He
is a law Professor at Howard University in the United States of
America (USA). He testified
about the deceased state of mind in
instances where the latter visited him. At that time the deceased
behaved in strange ways
and would not even recognize his
grandchildren.
14.
The evidence
of Professor Motala is supported by various clinical and medical
documented evidence filed of record. Without isolating
one from the
other, I make reference to the report prepared by Dr Ozayr S. Ameen,
a specialist Neurologist. The report is dated
17 February 2011. In
his concluding paragraph he has this to say:
4
Although I
have not personally seen Mr A.I. Motala, had I been given the above
history and examination findings in 2001/2002,1
would have
recommended at that stage already that curator bonis be appointed to
look after his financial affairs. Mr A.I. Motala's
cognitive skills
and ability to make complex decisions such as drawing up of a Will
and understanding the attributes of a trust
were not sufficient for
him to truly understand the implications of such decisions. I base
these conclusions on the information
given to date. Nevertherless, I
reserve the right to review any data or opinion presented herein,
should
other information become available.'
This concluded plaintiff s oral
evidence.
Submission by Counsel
15. Mr Omar for the first and
second defendants contended that the two were not liable for costs
in this matter. His contention
is that once the Executors of the
deceased estate were removed, the Estate was not before court and
therefore no relief could
be granted until such time that new
executors are appointed. On this score, he referred me to a number
of decided case law.
16. Mr Aboobaker for the
plaintiffs took a different approach. He submitted that defendants'
legal analysis of the case law is
wrong. In cases where executors
have been appointed and set aside or removed the question of joinder
or non-joinder does not
arise. He furthermore referred me to the
provisions of the Administration of Estate Act 66 of 1965. In
particular, sections 8(4)
and 22(1). In terms thereof, the Master
may refuse, where for any reason a document purporting to be a Will
or where there is
objection to the nomination of a person as an
executor, to accept the Will until the validity thereof has been
determined by
the Court. Inherent in this argument is that in such
instance the court could and have determined the validity of a will
without
executors being cited. Like Mr Omar, Mr Aboobaker referred
me to various decided cases and literature on the subject matter.
Analysis of the submissions
and conclusion by Court.
17. Firstly, I wish to express
my gratitude to both legal counsel for the material they referred me
to. To the extent that I might
not have consulted each and everyone
it is because I have a different view of what the issues are at
hand.
18. As a stating point I
conclude on the evidence at hand that the deceased did not possess
the necessary legal capacity to appreciate
the consequences of
drawing up a Will at the times he signed the document which purports
to be his last Will and Testament, being
the 26 October 2004.
Therefore, this document is invalid in law and falls to be set aside
as such.
19. The deceased at all
material times resided with the third plaintiff and worked closely
with the second defendant. The evidence
at hand overwhelmingly shows
that second defendant was aware of the deceased mental condition.
Instead, he took advantage thereof.
While he opposed the matter
strenuously, he did not refute the evidence at hand either by
providing counter medical evidence
or other forms of evidence. He,
with the first defendant consented to the nullification of their
appointment. He provides no
argument why the Will should be
considered valid.
20. With regards to the issue
of non-joinder, the following would suffice. As the third defendant
has accepted the contested Will
as valid, he could only appoint the
executors as nominated therein. Once these are set aside by a court
order, the Master's hands
are tied. The plaintiffs have no powers to
seek to appoint executors in a will which is the subject of dispute.
The power to
appoint an executor only vests with the third
defendant. Other interested parties can only make a recommendation,
nothing more.
The situation becomes untenable where the purported
Will itself is the subject of a dispute. Mr Omar seems to suggest
that when
a Will is disputed the estate of the deceased is
necessarily a litigant in court. This is not so. I think his
analysis of Ohlsson's
Cape Breweries Ltd v Hamburg is wrong.
21.
In the present
matter, the challenge is against a document which purports to
dispose the deceased estate in a particular way.
Until third
defendant appoints someone as executor, the deceased estate vests in
him. In the present matter it is inconceivable
that the first two
defendants would have been removed on the basis that the very
foundation of their appointment, in this instance
the purported Will
is legally invalid, and yet to argue in the same breath that other
executors could still have been appointed
in substitution thereof.
The argument is unsound in law and falls to be dismissed.
Costs
22. Mr
Aboobaker has argued for punitive costs against both first and
second defendants in both actions under case numbers 9991/2010
and
10743/2009. His contention is that defendants did not raise their
defence bona fide. He further argued for a special costs
order
relating to the traveling of the first and second plaintiffs. Both
these are based in the USA and Canada respectively.
The reason
thereto is that both these witnesses had purchased their low costs
non refundable air tickets in time with a view
of attending a trial.
First plaintiff had to travel and testify in court. He was there
also as a family representative to give
instructions to Counsel.
23. It is trite law that the
award of costs is a matter of discretion by Court. Ordinarily the
successful party will be awarded
his or her costs. In a matter like
this one the Court is bound to look at the merits of the case
despite the fact that, that
part is now resolved. It is evident that
at all material times, the defendants' defence was suspect. I
incline myself with Mr
Aboobaker that this defence was from the
onset not raised bona fide. For that reason I find no justification
why the deceased
estate should be mulcted with costs where this
could be avoided. Furthemore, plaintiffs are entitled to attend a
trial where
they are parties. While their evidence might be rendered
unnecessary by the withdrawal of the defence, the fact that a
dispute
remained unresolved in so far as the costs are concerned,
did not exonerate them completely from attending trial. In any event
if they bought non refundable tickets, it is only fair that they be
recompensed their costs.
24. In the circumstances, I
make the following order:
(a) The document dated 26
October 2004, purporting to be the last Will and Testament of Ismail
Ayob Motara (or Motala), is hereby
declared to be invalid and is
hereby set aside.
(b) It is hereby declared that
Ismail Ayob Motara (or Motala) born on 21 June 1916 and who died on
6 October 2006, died intestate.
(c) First and Second defendants
are ordered to pay the costs on an attorney and client scale in
cases No.9991/2010 and 10748/2009
jointly and severally, the one
paying the other to be absolved.
(d)
Any
other costs including costs in this matter as well as special costs
pertaining to the air tickets of the first and second
plaintiffs are
to be borne by the first and second defendants on a party and party
scale, jointly and severally, the one paying
the other to be
absolved.
NGWENYA
AJ
Appearances
Date
of Hearing: 14
March
2011
Date of Judgment: 15 July 2011
Plaintiffs Counsel: Advocate T
N Aboobaker SC
Plaintiffs
Attorneys: Jay Reddy Attorneys
206 Moore Road
GLENWOOD
DURBAN
Ref:
JR/M346
Defendant's
representation: MS Omar
M S Omar & Associates
Suite
1603,Nedbank
30
Albert Street
DURBAN
Tel:
(031) 3063282