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[2010] ZAFSHC 140
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Mbele v Mbele and Another (4007/2010) [2010] ZAFSHC 140 (4 November 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. 4007/2010
In the matter between:-
MAMOHAPI AMELIA
MBELE
…...............................................
Applicant
and
MOITSWADI PATIENCE
MBELE
….............................
First
Respondent
RF ADMINISTRATORS
….......................................
Second
Respondent
_____________________________________________________
HEARD ON:
4
NOVEMBER 2010
_____________________________________________________
DELIVERED ON:
4 NOVEMBER 2010
_____________________________________________________
JUDGMENT
_____________________________________________________
RADEBE, AJ
[1] On 9 August 2010 the
applicant brought application before this Honourable Court, seeking
an order in the following terms
(i) that the Court
substitutes the first respondent, wife of the deceased, and appoint
the applicant, mother of the deceased, as
executor of the estate of
the late Simon Shanki Mbele.
(ii) the Court to issue
an order that the estate of the deceased from the company be paid to
the deceased’s mother banking
account and the rest be divided
amongst the deceased’s children born out of wedlock.
The applicant, who
appeared in person, had lodged the application on her own, but it is
clear from the drafting of the papers that
she was being assisted by
someone who is either a para-legal or someone with a certain level of
legal education.
[2] The application is
being opposed by the first respondent on Legal Aid and she has
throughout been duly represented by Ms Oosthuizen.
There is neither
proof of service nor notice to oppose by the second respondent. I
shall therefore deal with the matter on the
basis that only the two
parties (the applicant and the first respondent) are before Court.
[3] The first respondent
(“the respondent”) filed her answering affidavit on 15
September 2010. In terms of Rule 6(e)
of the Uniform Rules, the
applicant had until 29 September 2010 to file and serve her replying
affidavit. The applicant failed
to timeously serve and file her
replying affidavit within the prescribed time limits. Such failure by
the applicant entitled the
respondent to invoke the provisions of
sub-rule 6(f) of the Uniform Rules. Hence, the notice of set-down was
served by the respondent
on 14 October 2010, in strict compliance
with the aforesaid sub-rule.
[4] The applicant
subsequently served and filed her replying affidavit on 19 October
2010, which was already 14 court days out of
time. There has been no
application for condonation of the late filing of the replying
affidavit. The respondent has also not made
any Rule 30 application
to have the replying affidavit struck off. However, in the light of
the fact that the applicant is not
formally represented and is an
unsophisticated lay person, I use my discretion to condone the late
filing of the replying affidavit
in order to give the applicant a
holistic and fair hearing.
[5] The applicant is an
adult female residing at 319 Boiketlo Village, Witsieshoek. She is
the mother of the late Simon Shanki Mbele
(“the deceased”)
who died intestate on 2 August 2009. The death certificate was issued
on 3 August 2009 and shows the
deceased’s ID number as 731130
5459 087. During his lifetime the deceased was married to the
respondent. The marriage certificate
shows such marriage to have been
in community of property and to have been by civil rites. The
deceased and the respondent resided
at 14379 Phase 6, Bloemfontein.
[6] On 14 August 2009 the
respondent was appointed as the executor of the estate of the
deceased, by virtue of the Letters of Authority,
No. 9457/2009,
issued by the Master of the Free State High Court, Bloemfontein in
terms of section 18(3) of the Administration
of Estates Act, No. 66
of 1965 (as amended). A copy of the Letters of Authority is annexure
“D” of the respondent’s
answering affidavit. By
virtue of these Letters of Authority, the respondent is duly
authorised to take control of the assets of
the estate of the
deceased.
[7] It is the applicant’s
case that these Letters of Authority were wrongly issued by the
Master and in her application the
applicant seeks an order that the
respondent be removed as executor and that she, the applicant, be
appointed in her place as a
substitute. Her application is therefore
two-fold although she does not say so in so many words. The third
relief she seeks, is
that the deceased estate due from the employer
be paid into her banking account.
[8] According to annexure
“D” (Letters of Authority) the assets of the deceased’s
estate comprised of:
8.1 Erf 14739, Phase 6,
Bloemfontein,
with a value of R2900.00
An Opel Corsa,
registration no.
VPY023GP, with a value of
R20000.00
8.3 Standard Bank account
no. 027706710 R200.00
8.4 Standard Bank account
R7000.00
8.5 Nedbank account
R5000.00
TOTAL
R35100.00
[9] During his lifetime
the deceased was employed by Fuelogic and enjoyed certain employment
benefits, including pension or provident
fund benefits. The applicant
has not specified which type of benefits defined contribution or
defined benefit type of scheme –
the deceased was entitled to.
The second respondent is cited as a registered financial services
provider which administered the
pension/provident fund for the
Fuelogic employees. The applicant alleges that the deceased was a
member of the said fund and that
certain benefits accrued as a result
of the death of the deceased. According to the applicant, the
beneficiaries who are entitled
to the assets of the deceased,
including employment benefits, are:
9.1 Mpho Rebecca Nhlapho,
ID 930227 0726 087, whom the applicant alleges is the daughter of the
deceased, born out of wedlock (hereinafter
called “Mpho”);
9.2 Teboho Mbele, ID
940510 5686 085, allegedly adopted by the deceased (hereinafter
called “Teboho”);
Tumelo Mbele, ID 920403
5774 081, allegedly adopted by the deceased (hereinafter called
“Tumelo”).
All three children are
allegedly under the applicant’s care.
[10] The respondent
opposes the application on the basis that:
10.1 the deceased never
had any children;
10.2 the deceased died
intestate, leaving no Will;
10.3 she was married to
the deceased by civil rites and in community of property and that
such marriage subsisted until the death
of the deceased;
further that the
applicant has no
locus standi
to bring an application on
behalf of the abovementioned children.
Applicant claims that she
was correctly appointed as the executor of the estate in terms of
section 18(3)
of the
Administration of Estates Act and
that the
Letters of Authority were correctly issued, regard being had that the
value of the estate of the deceased is less than
R125 000.00.
the distribution of the
pension fund benefits falls outside the scope of the
Administration
of Estates Act and
cannot be dealt with in terms of the Letters of
Authority.
[11] On the contrary:
11.1 The applicant
submits that she ought to be substituted for the respondent, as the
executor of the deceased estate and should
be issued with Letters of
Executorship rather than Letters of Authority seeing that the estate
of the deceased is in excess of
R150 000.00 when taking into account
that there are pension benefits as well as shares which have not been
disclosed to the Master.
She had been so advised by a certain Mr.
Papane of Bloemfontein. No proof by way of share certificates or
employer’s letters,
was attached to the applicant’s
papers.
11.2 In her replying
affidavit, paragraph 1.3, the applicant claims that Mpho is the
daughter of Maria Ntombe Nhlapho and was born
out of wedlock to Maria
and the deceased. In annexure “JX” to her founding
affidavit, the applicant states under oath
that all three children
are under her care and are still attending school. Further, by means
of a Capitec Bank statement, annexure
“RV” to the
replying affidavit, the applicant purports to show that Mpho’s
residential address is 52A Crutse
Street, White City, Soweto,
Johannesburg. Further she purports to show that the bank statement is
proof that the deceased paid
money on a monthly basis into the said
bank account as maintenance for Mpho. By these presentations the
applicant purports to show
that the deceased was indeed the
biological father of Mpho.
11.3 The applicant claims
that Teboho and Tumelo are adopted children of the deceased and are
under her care. In her founding affidavit,
the applicant avers that
she resides in Witsieshoek. In her heads of arguments she attaches
school reports of Teboho (annexure
“QX”) and Tumelo
(annexure “RY”) which reflect that the two children
attend school at Mampoi High School
in Mangaung Village and Tsebo
Secondary School at the Rankopane Village, Phuthaditjhaba.
11.4 Further, in her
replying affidavit, the applicant made new submissions regarding the
following:
11.4.1 Constitutional
rights to human dignity, equality and the advancement of human rights
and freedom. She referred to various
sections of the Constitution of
the Republic of South Africa Act, No. 108 of 1996 (the Constitution
Act) and to certain decided
cases);
11.4.2 The immovable
property, Erf 14739, Phase 6, Bloemfontein, which she alleges does
not belong to the respondent and the deceased
as she, the applicant,
gave a sum of R5 000.00 to her daughter, Ntsekiseng Mbele, to
purchase such from one P. May. She alleges
that the value of the
property is not as reflected on the Letters of Authority, but exceeds
that sum of R2 900.00. She, however,
did not attach any certificate
to show an alternative value. She says the property belongs to her.
11.4.3 Section 38 of the
Constitution Act gives her the right to approach a competent court
without her first being appointed as
a guardian of the three
children, Mpho, Teboho and Tumelo.
11.4.4 The total pension
benefit accruing to the estate is a sum of R150 000.00 less R10
000.00 already paid by the second respondent
to cover the funeral
costs. She has been advised by the aforesaid, Mr. Papane, that Teboho
and Tumelo are the registered beneficiaries
of the pension fund.
11.4.5 Mr. Papane having
informed her that there are shares valued at R86 000.00 which the
deceased owned and which he had purchased
from the company and which
have not been registered with the Master of the Free State High
Court.
11.4.6 The treatment by
Dr. T.L. Khubeka-Molefe, which is annexure B to the respondent’s
answering affidavit, was intended
to treat respondent’s
infertility as it was the respondent who could not bear children.
11.4.7 The prejudice that
will be suffered by the children as a result of the issuing of the
Letters of Authority in favour of the
respondent and which the
applicant alleges were issued fraudulently.
[12] The respondent’s
case is encapsulated in the following paragraphs:
12.1 She is the widow of
the deceased, having been married to him in community of property on
27 May 2008. She is therefore entitled
to be appointed as executor in
terms of section 18(3) of the Administration of Estates Act and to be
the deceased heir;
12.2 No children were
born of the aforesaid marriage and the deceased did not bear any
children as a result of his diagnosed infertility.
The deceased also
did not have adopted children. She therefore denies that Mpho is a
child of the deceased. The deceased never
paid any monthly
maintenance for Mpho - Tumelo and Teboho are children of the
deceased’s brother and the deceased was not
their adoptive
parent. There are further no supporting affidavits or adoption papers
attached to the applicant’s founding
and replying affidavit to
prove any form of paternity or adoption.
[13] The respondent
raises the issue of
locus standi
of the applicant acting on
behalf of the minor children. She further submits that the
applicant’s failure to cite the Master
of the High Court as the
party that issued the Letters of Authority makes her (the
applicant’s) case frivolous.
[14] Since the deceased
died intestate, his estate devolves in terms of the laws of intestate
succession. This means that as a surviving
spouse, she is entitled to
inherit by the operation of
section 1(1)(c)
of the
Intestate
Succession Act, No. 81 of 1987
. She further alleges that the deceased
had no children entitled to inherit as intestate heirs. Even if there
were children descendants,
the entire estate would still devolve to
her in its entirety since the child’s share would be less than
the gazetted amount
of R125 000.00. This would make her the sole heir
of the estate.
[15] The pension fund
benefit of the deceased’s estate does not form part of the
estate of the deceased and is specifically
excluded from the estate
in terms of the Pension Fund Act. The issue of the distribution of
the pension fund benefit can only be
addressed thereby and not by the
provisions of the
Administration of Estates Act.
[16
]
POINTS
IN
LIMINE
16.1 The applicant
alleges that the three children are under her care. However, her own
annexures show that the children are not
residing with her and are
not under her care. Mpho’s address is reflected in annexure
“RV” of applicant’s
replying affidavit as 52A
Crutse Street, White City, Johannesburg. It is further evident from
annexure “RV” that all
the cash withdrawals shown therein
were done in Johannesburg and surrounding areas.
The applicant has failed
to explain why maintenance would be paid into Mpho’s banking
account and not into her account if
she is the person under whose
care Mpho is. Annexure “RV” further shows varying amounts
of cash deposits being done
at random dates rather than on monthly
basis. There is no suggestion in annexure “RV” that the
deceased is the person
who made the cash deposits. Moreover, even
after the death of the deceased in August 2009, the deposits continue
to be made well
into the year 2010. The second page of annexure “RV”
shows random deposits during December 2009, which were not made
on a
monthly basis, but at intervals of one week. There is no indication
on this bank statement as to who makes these deposits
which are made
at different places, like Vanderbijlpark, Bloemfontein, QwaQwa,
Johannesburg and Sebokeng.
Tumelo’s Identity
number is 920403 5774 081 as shown in annexure “JX” of
the applicant’s founding affidavit
and his date of birth is
1992/04/03 as shown in annexure “QX” of the applicant’s
heads of argument. He was
therefore 18 years old and a major when
the application was brought. On that point alone, irrespective of
whether there was
legal adoption or not, the applicant lacks
locus
standi
. The applicant has failed to show this Court that Teboho
and Tumelo are under her care and guardianship.
Applicant has also not
shown that she has a direct and substantial interest in the right
to inheritance and to the pension benefits,
both of which are the
subject matter of litigation in this matter. I refer here to the
decision in
AUCAMP EN 'N ANDER v NEL NO EN ANDERE
1991
(1) SA 220
(O) at 233 B – C where the issue of
locus
standi
in matters similar to this one was revisited. The Court
had this to say:
“
Namens
tweede respondent is betoog dat tweede applikant geen
locus
standi
in hierdie aansoek het nie omdat hy geen belang daarby het nie en ook
geen benadeling bewys het nie aangesien hy beweer dat dit
nie vir hom
saak maak wie die kandidaat is wat verkies word nie.”
Again in the case of
ROODEPOORT-MARAISBURG TOWN COUNCIL v EASTERN PROPERTIES (PROP)
LTD
1933 AD 87
at 101 it was pointed out that in bringing an
action, a person has to show that he has a direct interest in the
matter. The following
was held in that respect:
“
The
actio
popularis
is undoubtedly obsolete, and no one can bring an action and allege
that he is bringing it in the interest of the public, but by
our law
any person can bring an action to vindicate a right which he
possesses (
interesse
)
whatever that right may be and whether he suffers special damage or
not, provided he can show that he has a direct interest in
the matter
and not merely the interest which all citizens have.”
The applicant seeks to
rely on section 38 of the Constitution Act which has the following
relevant portions:
“
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights.”
The provision goes on to
list persons who may approach the court. Of relevance are the
following categories.
“
(a) anyone
acting in their own interest;
(b) anyone acting on behalf of another
person who cannot act in their own interest.”
In
DE REUCK v
DIRECTOR OF PUBLIC ROSECUTIONS, WITWATERSRAND LOCAL DIVISION, AND
OTHERS
2002 (6) SA 370
(W) it was decided that the applicant
is entitled to attack the constitutional validity of the statutory
provision complained of
as he was bringing the proceedings in his own
interest. The applicant in this case has failed to satisfy the
requirement in section
38(a) and (b).
The applicant’s
failure to show this Court that she has the necessary
locus
standi
is further reinforced by her lack of qualification even
with referrence to
section 19
of the
Administration of Estates Act,
which
stipulates that in appointing executors dative the Master
gives preference to the following persons:
“
(i)
surviving spouse or her nominee;
if no surviving spouse, an heir or
his nominee;
if no heir, a creditor or his
nominee;
or the tutor or curator of any heir
who is a minor or a person under curatorship.”
The respondent is a
surviving spouse and since the deceased died intestate, the question
of executor testamentary does not arise.
She is therefore an executor
dative. On the other hand, the applicant has failed to show that she
is a tutor or curator of the
children in whose interest she purports
to act. She has also not shown that she qualifies as a creditor or an
heir of the deceased’s
estate. When addressing the court this
morning, she acknowledged that the three children in respect of whom
she purports to act,
are not living with her; that Mpho lives with
her maternal grandmother in Johannesburg and that Tumelo and Teboho
are sons of Abraham
Mbele, who is still alive.
[17] The applicant has
cited the respondent in her personal capacity and there is nothing
wrong with that seeing that this application
is governed partly by
the provisions of
section 54(1)(a)
of the
Administration of Estates
Act. However
, since the respondent was appointed by the Master of the
Free State High Court, she acts in a delegated authority. The
applicant
ought to have demonstrated by way of documentary proof that
she has notified the Master of her intending to remove the respondent
from her office. In order for her to be appointed as executor of the
estate, in substitution of the respondent, the applicant has
to
approach the Master and comply with all the requirements of
nomination acceptance of trust as executor or undertaking in terms
of
section 18(3)
of the
Administration of Estates Act. There
is also no
Master’s report filed by the applicant as would normally be the
case.
[18]
Section 54(1)(a)
of
the
Administration of Estates Act provides
that an executor may at
any time be removed from office by court if certain specific grounds
are established. These are listed
as follows:
(a) he has at any time be
a party to an agreement or arrangement in terms of which he has
undertaken that he will, in his capacity
as executor, grant or
endeavour to grant to or obtain or endeavour to obtain for any heir,
debtor or creditor of the estate any
benefit to which he is not
entitled;
(b) .....
(c) .....
(d) for any other reason
the court is satisfied that it is undesirable that he should act as
executor of the estate concerned (e.g.
maladministration).
Section 54(1)(b)
stipulates that an executor may be removed from such office by the
Master on the ground of specific conditions which are tabulated
therein.
The procedures to be
followed are specified in that section and there is no need to repeat
them here.
[19] The applicant has
failed to satisfy this Court that she is entitled to an order of the
removal of the respondent in her office
as executor of the estate, in
that she (the applicant) has not shown that any of the grounds
detailed in
section 54(1)(a)
have been found to exist.
[20] When the matter was
argued before me this morning, the applicant informed the Court that
she managed to submit somewhat elaborate
and “sophisticated”
papers because a certain Mr. Papane, whom is known as an attorney,
was drafting the application
papers and assisted her in drafting and
filing of the heads of argument. This confirmed what the respondent
alleges in her answering
affidavit (i.e. paragraph 2.11) that she had
on 2 July 2010 received a phone call from Mr Papane promising her
that he would help
her get her pension benefits from the second
respondent within three days, for a fee of R30 000.00. Respondent
rejected that suggestion.
When she was served with the notice of
motion, she recognised the phone number appearing thereon as that
belonging to Mr. Papane.
In her address, the applicant wanted the
Court to believe that she did not have Mr. Papane’s contact or
office details. She
was less than honest with the Court.
[21] In regard to this
type of behaviour by the applicant, I refer to the judgment in the
unreported case of this Division, Case
no. 1677/2010, in the matter
of
I S PAPANE AND ANOTHER
, dated 2 September 2010,
where the Honourable Mr Justice Rampai made the following remarks in
paragraph 4 thereof:
“
I was
reliably informed by more than 2 people in chambers that the first
applicant has opened a Close Corporation elsewhere in the
city where
he projects himself as an attorney. This particular matter clearly
shows that the first applicant parades himself in
the eyes of the
public as a member of the legal profession who can represent them in
court of law.”
This kind of behaviour is
unacceptable. This causes the general public to ultimately lose
confidence in the operation of the courts
as well as in the
judiciary, especially if courts allow people who pass-off as
attorneys or advocates to prepare such ill-conceived
applications for
unsuspecting members of the public.
[22] The applicant has
asked for a costs order in her favour. The respondent vehemently
objects to this suggestion, arguing that
the fact that the applicant
is indigent and was being assisted by Mr. Papane, does not entitle
her to be treated differently from
any other litigant. Counsel for
respondent acknowledges that she is on Legal Aid. However, she argues
that the Legal Aid Board
is financed through taxpayers funds and
nothing precludes the Legal Aid Board from recovering fees if
possible. I fully agree with
such contention and I refer to the
decision in
BIOWATCH TRUST v REGISTRAR, GENETIC RESOURCES, AND
OTHERS
2009 (6) SA 232
(CC) where it was held that the fact
that a party is indigent does not entitle her to be accorded a
privilege status and should
be held to the same standards as any
other party. The proper approach is to give primary consideration on
whether the order will
promote advancement of constitutional justice.
The court has to have regard to whether litigation was undertaken to
assert a constitutional
right and whether litigation has been
undertaken in an improper fashion.
[23]
In casu
, it
is undoubted that, as I have said above, that the applicant, through
the assistance of Mr. Papane, brought this application
without having
a
locus standi
and did not follow the procedures prescribed in
section 54(1)
of the
Administration of Estates Act. I
refer also to
the case of
PELSER v DIRECTOR OF PUBLIC PROSECUTIONS,
TRANSVAAL, AND OTHERS
2009 (4) SA 52
(T) at 55 D – E
where it was held:
“
In bringing
the application, the applicant purported to be acting on behalf of a
group or class of people, namely all the accused
in the criminal
trial. A point
in
limine
was taken by the State on the ground that the applicant had not made
out a case of class representation.”
And at 57 D the court
held that:
“
This was
clearly a baseless application ..... It is important, in this
respect, to note that the applicant, as with the other accused,
is
having his fees paid by the Legal Aid Board. In other words, unless
it is ordered otherwise, Mr Smit is going to be paid by
the Legal Aid
Board for his services in respect of this application. The court
agrees with counsel for the State that the taxpayers'
money may not
be abused in this manner.”
In the matter before
Court the respondent is assisted financially by the Legal Aid Board.
If an order is not made that the applicant
pays the costs of this
ill-conceived and baseless application, then the Legal Aid Board will
be severely prejudiced by not being
able to recover the costs
incurred in assisting the respondent.
[24] In the
circumstances, the following order is made:
24.1 The application is
dismissed with costs.
24.2 The applicant is
directed to approach the Registrar of this Honourable Court to depose
to an affidavit regarding the legal
assistance she received from Mr.
Papane and to what fees he charged for the legal services rendered,
for onward transmission to
the Judge President.
________________________________
MADAME JUSTICE N.H.
RADEBE, AJ
On behalf of the
applicant: In person
On behalf of first
respondent: A. Oosthuizen
Instructed by:
Bloemfontein Justice
Centre
BLOEMFONTEIN
Ref. x284243110
/sp
2010/11/09 12:02 PM
2010/11/10 12:53 PM