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[2024] ZAGPPHC 744
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Masonte v Makota and Others (44131/2023) [2024] ZAGPPHC 744 (30 July 2024)

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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
Number: 44131/2023
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED: YES/
NO
30/07/2024
In
the matters between: -
JOHANNES
MISHACK VICTOR MASONTE

APPLICANT
And
MAKOTA
TSAKANE GERTRUDE

FIRST
RESPONDENT
THE
REGISTRAR OF DEEDS OFFICE(PTA)                      SECOND

RESPONDENT
MASTER
OF THE HIGH COURT

THIRD RESPONDENT
JUDGMENT
BAQWA
J,
Introduction
[1] The applicant seeks
an order declaring the title deed issued in favour of Mokgadi Mashika
Esther in respect of property described
as Erf 4[...] A[...] Township
Pretoria (the property), null and void.
[2] He further seeks an
order authorising the Master of the High Court of Pretoria, to set
aside the liquidation and distribution
of the property in the Estate
late Mokgadi Mashika Esther (The Estate)
[3] He also seeks an
order authorising The Registrar of deeds to register the property in
the names of the applicant and that the
costs of this application be
paid by the first respondent in the event that she opposes it.
The facts
[4] The Property was
owned by the late grandparents of the applicant. The late Johannes
Ratshego and Anna Mokgadi who were the parents
of the applicant’s
mother.
[5] The grandparents had
two children, Mutere Hilda Masonte and Ephraim Mokgadi.
[6] The property was held
under a permit which listed the grandparents’ names, Ephraim
and the applicant’s older brothers.
The applicants mother’s
name does not appear on the permit as she was already married into
the Masonte family, when it was
issued.
[7] Ephraim Mokgadi,
applicant’s uncle married Esther Mashika Mokgadi in 1972 and
they resided on the property. When the second
permit was issued only
the applicants grandparents, uncle and wife were reflected on it as
applicant’s older brothers had
moved out of the
house.
[8] The permit stated
that the uncle would be responsible for payment of the expenses
relating to the property.
[9] In 1979 the
applicant’s grandfather made a Will in which he appointed the
applicant’s mother as the executix of
his estate and appointing
her as the sole and heir to his estate. This act was in line with the
grandfathers wish to bequeath the
property to the applicant’s
mother as the applicant’s uncle did not have
progeny.
[10] Applicants uncle
fell sick in 1989.He was admitted to hospital and passed away. The
uncle’s wife did not move out of
the house after her husband’s
death as it was custom that she had to look after his ailing and
aging father-in-law.
[11] The applicant s
grandfather passed away on 28 August 1991 and the uncle’s wife
was the only person residing on the property.
Even though applicant’s
mother was the remaining heir, she did not evict her sister-in-law
considering the fact that she
was her late brother s widow and had
been residing at the property from the time of her
marriage.
[12] Applicant’s
mother became aware in 2011 that she had to register the applicant’s
grandfathers’ estate with
the Master of the High Court. She was
also not aware that she had to have the property transferred into her
name. She laboured
under the impression that if she was in possession
of a letter of authority she was now the owner of the
property.
[13] Applicant’s
mother passed away on 21 April 2014 but the applicant also did not
report her estate the Master explaining
it as an oversight on his
part.
[14]
Mashika Esther Mokgadi, the uncle’s wife’s passed away on
8 November 2021 and applicant tried to arrange a meeting
with her
family who were residing on the property. The meeting was intended to
discuss the way forward after the passing of the
uncle’s wife.
[15] He was however
advised by the uncle’s wife’s niece, the first
respondent, that since she was taking care of her
aunt till her death
she was entitled to inherit the property and applied for a protection
order in order to keep the applicant
at bay.
[16] The applicant then
came to know that his uncle’s wife had secretly registered the
property into her name without consulting
the applicant’s
mother and also applied for a title deed for the property. This
effectively excluded the applicant’s
mother even though she was
the only remaining heir.
Respondent’s
case
[17] The background facts
are common cause between the parties herein more particularly because
the respondent currently resides
on the property where she previously
lived with her aunt, the late Esther Mashika Mokgadi (Ephraim s
wife).
[18] The respondent’s
case is interwoven with points which she has raised as points in
limine
in her heads of argument where she submits that the
applicant
lacks locus standi
. She elaborates:
"18.1 Applicant’s
mother never had any ownership of the property in question.
18.2 No proven
executorships in custodianship representative of his late mother’s
estate. He is self-appointed with no supporting
affidavit.
18.3 No proof of
ownership by the applicant.
18.4 No single supporting
and complementary affidavit to support the claim.
18.5 Applicant disputing
and alleging on the validity of the Will without any shred of
evidence to prove. The allegation, applicant
was supposed to have
challenged the Will in terms of the Administration of Estates Act 66
of 1985.
18.6 The claim is
launched only after the death of all important and this after the
period of about fifty years of occupation by
Esther Mokgadi and her
husband.
18.7 The claim has
prescribed in terms of the prescription Act 68 of 1969, particularly
after thirty years of lawful possession
by Esther Mokgadi and her
husband.
18.8 No claims were made
to lifetime of the previous owners.
18.9 The case law, namely
Shanang and Motsoe NO
dealt with a completely different state
of facts. Put differently the case was dealing with a family house
and therefore does not
apply in these circumstances and set of facts.
18.10 There is no
documentation proof of fraud in the founding papers of the applicant.
18.11 The Letter of
Executorship issued to the respondent by the Master of The High Court
cannot be declared null and void with
first challenging same with
them in terms of the dictates of the Administration of Estates Act,
for the same reason they were supposed
to be cited as the first
respondents.
18.12 The application is
premature to due to the reasons advanced in the previous paragraphs,
"The Verbatim quote in paragraph
18 above in essence summarises
the respondent’s case in this application
The law
[19]
The
Wills Act 7 of 1953
provides that a Will, much is completed and
regular on the face of it, is presumed to be valid until its
invalidity has been established,
and the onus is on the person
alleging the invalidity to prove such invalidity.
[20] A Wil is invalid if
the requirements regarding formalities and capacity to make and to
witness are not met or if the testator
does not have the necessary
animus testandi
(intention to make a will).
[21]
In
Botha
NO vs Leboka-Radebe and Others
[1]
the court considered whether fraud should result in the cancellation
of a title deed relating to immovable property.
[22] In that case, the
first respondent had through fraudulent means and by misrepresenting
to the third respondent (the Master)
that she was the surviving
spouse of the deceased, first obtained Letters of Authority,
entitling her to take control of the assets
of the deceased and
causing the property to be transferred into her name by having the
deed of transfer relating to the property
endorsed to that effect by
the fifth respondent (The Registrar of deeds).
[23]
The court followed the decition in
Namasthethu
Electrical (Pty) Ltd vs City of Cape Town and another
[2]
where it was held that fraud is conduct which violates every
transaction known to the law. The court also affirmed that fraud
unravels everything and that the first respondent committed fraud in
that she misrepresented to the office of the Master that she
was the
surviving spouse of the deceased, when in fact and in truth they had
divorced many years before his death.
[24] The court also
outlined the requirements for transfer which are twofold:
(a) Delivery effected by
registration of transfer in the Deeds Office and,
(b) The existence of a
real agreement, the essential elements of which are an intention on
the part of the transferor to transfer
the property and an intention
on the part of the transferee to aquire ownership of the property.
Analysis
[25] Just to
recapitulate, Johannes Ratsego Mokgadi and Anna Mokgadi are the
deceased parents of applicant’s mother (also
deceased).
Johannes passed away on 28 August 1991.
[26] The late
grandparents were the rightful owners of the property in question and
they had two children, Mutere Hilda Masonte
and applicant’s
uncle Ephraim Mokgadi.
[27] Ephraim married
Esther Mashika Mokgadi and they had no children. They therefore
continued living with their parents on the
property as they had no
children.
[28] In 1979 the
grandfather, Johannes made a Will in which he appointed applicant’s
mother as the executor of his estate
and appointing her as the sole
and universal heir to his estate and effects, movable and immovable
whether the same to be in possession,
reversion, reminder or
expectancy, nothing excepted.
[29] In 1989 Ephraim
passed away and was subsequently followed by the passing of the
grandparents.
[30]
Esther Mokgadi, the daughter-in-law of Johannes was left as the sole
occupier of the property. Hilda Masonte who obtained Letters
of
Authority as the sole heiress of Johanne’s s estate did not
complete the winding up of that estate and she decided not
to evict
her sister-in-law Esther from the property.
[31] Unbeknown to Hilda
and behind her back, Esther misrepresented herself as the rightful
person to inherit Johannes property,
to the Master. She succeeded in
her fraudulent act to the extent that the property was transferred
into her name. She committed
this fraud despite Hilda having
registered her father’s estate in 2011 and obtained Letters of
Executorship.
[32] Applicant’s
mother passed away on 21 April 2014 and Esther passed on in November
2021.It was only after the father’s
death that applicant
discovered the fraud.
[33] The following facts
stand out. The applicant is the sole surviving heir of Hilda Masonte.
Secondly the Will of Johannes has
never been disputed or contested.
[34] The first
respondent, who is a niece of Esther is claiming ownership of the
property on the basis of a Will made by Esther
in her favour.
[35] Evidently, due to
the fraud that Esther had committed and her misrepresentations to the
Master all her subsequent acts have
to unravel due to her fraudulent
acts.
[36] In the circumstances
I have come to the conclusion that the applicant has made out a case
for the relief sought.
Conclusion
[
37]
The first respondent has filed a counterclaim against the applicant
regarding the improvement effected to the property to the
value of
R350 000.00.
[38] In that regard, I
find that applicant would be unduly enriched if this court finds in
his favour without compensating the first
respondent for the said
improvement, to the value of R198 663.17 it as the total costs
of the improvement
[39] I however find that
the first respondent has failed to prove improvements to the value of
R350 000-00. She has however
succeeded to prove improvements, to
the value of R198 663.17 as the total costs of the improvements.
[42] In the result, I
make the following order:
1.
The title deed issued in favour of Mokgadi Mashika Esther in respect
of the property situated at Erf
4[...] A[...] Township, Pretoria is
declared null and void.
2.
The Master of the High Court, Pretoria is directed and authorized to
set aside the distribution of the
property situated in Erf 4[...]
A[...] Township, Pretoria pending the finalization of this
Application.
3.
The Registrar of Deeds is ordered to register the property described
as Erf 4[...] A[...] Township, Pretoria,
into the names of the
Applicant.
4.
The first Respondent to pay the costs of this application.
Counterclaim
5. The applicant is
ordered to pay the first respondent the sum of R 198 663.17 in
respect of improvement to the property.
6. Each party to pay its
own costs.
SELBY BAQWA
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Date
of hearing:  03 June 2024
Date
of judgment:  24 July 2024
Appearance
On
behalf of the Applicants
Mrs
Molope-Mandondo
Instructed
by
Molope-Madondo
Attorneys
Molopemadondoattorneys@gmail.com
On
behalf of the Respondents
Adv
Mafanele
Instructed
by
Manganje
G T Attorneys
Mafanele@gmail.com
[1]
(
16835/2021)
(2022) ZAGPJHC 724.
[2]
(201/19)
2020 ZASCA74 (29 June 2020).