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2024
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[2024] ZAFSHC 320
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Maree v Maree and Others (3457/2023) [2024] ZAFSHC 320 (17 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/ Not reportable
Case
no: 3457/2023
In
the matter between
MAGRIEL
DAVID MAREE
APPLICANT
and
ELIZABETH
MARGARETH MAREE
FIRST
RESPONDENT
MASTER
OF THE HIGH COURT
BLOEMFONTEIN
SECOND
RESPONDENT
WILLEM
LODEWYK SEYFFERT N.O.
THIRD
RESPONDENT
Neutral
citation: Magriel David Maree v Elizabeth Margareth Maree and Others
Coram:
Chesiwe J
Heard:
Heard on the papers as per the directive to file heads of
argument on 12 July 2024 and 19 July 2024 respectively.
Delivered:
This judgment was handed down in open court and
electronically by circulation to the parties’ representatives
by email and
released to SAFLII. The date and time for hand-down is
deemed to be 13h00 on 17 October 2024.
Summary:
Application
for leave to appeal to the full court of the Free State Division of
the High Court – Application based on findings
of facts and/or
the rulings of law of the Court a quo – Order amending the
first and final liquidation and distribution account
- Enforceability
of claim for loss of
habitatio
.
ORDER
The
Application for leave to appeal is granted to the Full Bench of this
Division against the whole judgment granted on 17 May
2024.
Costs
shall be costs in the appeal.
JUDGMENT
Chesiwe
J
[1]
The Applicant [who is the Second Respondent in the main
application] applies for leave to appeal against paragraphs 34.2,
34.3,
34.4 and 34.5 of the judgment delivered on 17 May 2014, in
terms of which it was ordered that:
1.1 The decision of
the Master of the High Court [the first respondent in the main
application] dated 12 May 2023 to uphold
the applicant’s [the
second respondent in the main application] objections to the first
respondent’s [the applicant
in the main application] claim for
habitatio
, as reflected in the first and final liquidation and
distribution account dated 5 July 2022, is set aside in terms of
section 35
of the Administration of Estates Act, no. 66 of 1965 (the
Estates Act);
1.2 The applicant’s
objection to the first and final liquidation and distribution account
are dismissed;
1.3 The Executor
[the third respondent in the main application] is directed to amend
the first and final liquidation and distribution
account dated 5 July
2023 to include and reflect the first respondent’s [the
applicant in the main application] claim in
respect of her right of
habitatio
in the amount of R1 113 481,50 as a claim for
habitatio
in terms of clause 5.2 of the last will and
testament of the late Leon Pieter Maree, read with clause 5 of the
ante-nuptial contract,
entered into between the late Leon Pieter
Maree and the first respondent [the applicant in the main
application] and registered
on 27 November 1997 under number
H1751/1997; and
1.4 The applicant
[second respondent in the main application] is directed to pay the
costs of the application.
[2]
Grounds of Appeal are listed in the notice for application for
leave to appeal and will therefore not be repeated herein.
[3]
Section 17(1)(a) of the Superior Courts Act 10 of 2013 (the
Superior Courts Act) provides
that:
“
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that –
(a)(i) the appeal would
have a reasonable prospect of success; or
(ii) there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration.”
[4]
Leave
to appeal in terms of
s 17(1)(a)
of the
Superior Courts Act should
be
granted only when there is sound, rational basis for the conclusion
that there are prospects of success on appeal.
[1]
[5]
Applicant contends that the First Respondent as the surviving
wife has no claim for maintenance against the estate of her deceased
spouse in terms of s 2 of the Maintenance of Surviving Spouses Act 27
of 1990 as the First Respondent had claimed R3 445 862, 75
from the
estate and that the First Respondent’s claim for loss of
habitatio
was enforceable. Further that there exist reasonable
prospects that another court would come to a different conclusion.
[6]
The First Respondent contends that the Applicant’s
grounds of appeal do not constitute any reason for the court of
appeal
to interfere with the court order as granted in its judgment
and furthermore that there are no prospects of success that another
court would come to a different conclusion.
[7]
In
an application for leave to appeal, the court is called upon to
consider whether another court would consider all the facts of
the
applicable case and come to a different conclusion. This process
calls upon the court to consider its own judgment and adjudicate
such
judgment from the perspective of the court of appeal. This invidious
position of the judge, is a call to consider to grant
or not to grant
an appeal.
[2]
[8]
Having considered all the grounds of appeal as well as
submission made on the written heads of argument as well as the
judgment
dated 17 May 2024, I am of the considered view that another
court will come to a different conclusion.
[9]
Consequently, the following order is made:
1.
The application for leave to appeal is granted to the full bench
of
this Division.
2.
Costs to be in the appeal.
CHESIWE
J
Appearances
For
the Applicant:
Adv.
R Van der Merwe
Instructed
by:
Honey
Attorneys
Bloemfontein
For
the First Respondents:
Adv.
C D Pienaar
Instructed
by:
Kϋhn
and Associates
Bloemfontein
[1]
Four
Wheel Drive Accessory Distributors CC v Rattan N.O
2019 (3) SA 451
(SCA), paragraph 34
[2]
(See
Rex v Baloi 1949(1) SA 523 (AD) at 524 to 525)