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[2008] ZAWCHC 255
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Volkwyn v Williams and Others (4398/2007) [2008] ZAWCHC 255 (28 August 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
:
4398/2007
DATE
: 28
AUGUST 2008
In
the matter between:
MICHAEL
VOLKWYN
Applicant
and
DIANA
WILLIAMS
1
st
Respondent
THE
MASTER OF THE HIGH COURT
2
nd
Respondent
SMITH
TABATA BUCHANAN BOYES 3
rd
Respondent
JUDGMENT
FOURIE,
J
The
applicant launched this application as a matter of urgency, seeking
an order setting aside the last will and testament of
the late Isaac
Theodore Volkwyn and declaring an earlier will to be the testator's
final will. The first and second respondents
oppose the relief
sought by the applicant and the only issue to be determined at this
stage is the point
in
limine
raised
by first and second respondents in their Rule 6(5)(d)(iii) notices.
This
sub-rute provides that where a respondent intends to raise a
question of law in response to an application, it may do so
by way
of a notice indicating the intention in this regard. It is common
cause that these notices were timeously received by
applicant by
registered mail. The legal issue raised in the notices is one of
non-joinder, the first and second respondents contend
that in the
light of the relief sought by the applicant it is necessary for all
the beneficiaries, as well as the co-executor
of the estate, who may
be affected by the relief, to be joined as parties to the
application.
The
law in this regard is clear, any person who has a direct and
substantial interest in any order which the Court might make
in
proceedings is a necessary party to the proceedings and must be
joined as a party. This principle applies equally to proceedings
relating to wills. In proceedings in which an order is claimed
declaring a will invalid, as in the instant matter, the executor
of
the deceased estate, as well as all the beneficiaries named in the
will are regarded as necessary parties. No order adverse
to their
interests should be given by a court without having them formally
joined as parties to the proceedings; such joinder
has to take place
in accordance with the provisions of Rule 10 read with Rule 6(14).
In fact, in
Associated
Manganese Mines of South Africa Limited v Claassens
1954(3) SA768 at 776 F-G, the Appellate Division held that a Court
should refuse to give a decision adverse to the interests
of
interested beneficiaries without having them joined as parties.
It
is clear that the four children of the testator are interested
parties. They are Mr Michael Volkwyn, the applicant, Mrs Diana
Williams, the first respondent, Mr Roy Volkwyn and Miss Barbara
Volkwyn. In addition, the co-executor, Mr M Sey, is also an
interested party. Roy and Barbara Volkwyn, as well as the
co-executor, have not been joined as parties. This non-joinder, as I
have already indicated, precludes the Court from deciding the issue
of the validity of the last wili and testament of the testator,
executed on 30 May 2001.
Mr
Michael Volkwyn, the applicant, who appears in person, has urged me
to dismiss the issue of law raised by first and second
respondents.
He says that the serving of the notices in terms of Rule
6(5)(d)(iii), is merely a delaying tactic.
Having
regard to the legal principles to which I have already alluded, the
serving of the notices by first and second respondents
was the
correct procedure to follow. The beneficiaries, Roy and Barbara
Volkwyn, as well as the co-executor, are necessary parties
and ought
to have been joined by the applicant. The applicant has argued that
both Roy and Barbara Volkwyn have had notice of
these proceedings
and do not wish to be joined. Barbara Volkwyn was also present in
Court today. However, even if Roy and Barbara
Volkwyn had given
formal notification of their intention not to intervene in these
proceedings, it would not suffice. Such notification
would not
amount to an undertaking to be bound by any judgment which may be
given by the Court.
In
Amalgamated
Engineering Union v Minister of Labour
1949(3) SA 637 (A) it was put as follows, at 662:
"Mere
non-intervention, or even an intimation of non-intervention, with
nothing more to it, after receipt of a notice of
legal proceedings
short of citation, cannot therefore, to my mind, be treated as if It
were a representation, express or tacit,
that the party concerned
will submit to and be bound by any judgment that may be given."
It
follows that without the formal joinder of Roy and Barbara Volkwyn,
as well as Mr Bey, I am precluded from deciding the merits
of this
application. Respondents, in particular second respondent, have
urged me to finally dismiss the application; however,
applicant is a
layman and I am accordingly not disposed to finally closing the
doors of the court for him.
The
respondents do seek a cost order in their favour. They submit,
correctly in my view, that applicant was notified of the defect
in
the application, several months ago, but, this notwithstanding, he
has seen fit to pursue the matter without seeking to remedy
the
defect. The first and second respondents were accordingly put to
unnecessary legal costs in opposing the application. I agree
that in
these circumstances the respondents are entitled to their costs.
In
the result the following order is made;
1.
The
APPLICATION
IS STAYED PENDING THE JOINDER OF THE FOLLOWING PERSONS AS PARTIES:
MR ROY VOLKWYN: MS BARBARA VOLKWYN AND MR MARTIN
BEY
;
2.
The
APPLICANT
IS TO PAY THE COSTS OF OPPOSITION INCURRED BY FIRST AND SECOND
RESPONDENTS, INCLUDING THE COSTS OF TODAY'S HEARING.
FOURIE,
J