THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case 2024- 007943
In the matter between:
NOMATHEMBA EUNICE MOTSEPE Applicant
and
MTHENJWA DAVID HLATSHWAYO
First Respondent
JOSEPHINE MOTSEPE & ANNA
MOTSEPE
Second Respondent
GOVERNMENT EMPLOYEES
PENSION FUND (GEPF)
Third Respondent
DEPARTMENT OF EDUCATION,
SEDIBENG DISTRICT, SEBOKENG
Fourth Respondent
MASTER OF THE HIGH COURT,
SOUTH GAUTENG Fifth Respondent
This judgment has been delivered by uploading it to the CaseLines digital data base of the Gauteng Division of the High Court of South Africa, Johannesburg, and by email to the attorneys of record of the parties. The deemed date and time of the delivery is
10H00 on 12 February 2025.
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED: Yes
Date: 12 February 2025 _________________
JUDGMENT
DU PLESSIS J
Introduction
[1] The applicant seeks an order to declare the last will and testament of the
deceased invalid, null, and void, and tha t the estate be distributed in terms of the
Intestate Succession Act .1
[2] The matter was enrolled on the opposed motion roll after the first respondent,
the attorney who drafted the will, filed an answering affidavit on the day the matter was to be heard on the unopposed motion roll. No other answering affidavits were filed.
However , the records show that all the parties received the n otice of m otion, the
founding affidavit, the confirmatory affidavit and the annexures.
[3] As proof of service of the notice of set down, the applicant uploaded proof that
the notice was emailed to the first respondent and the second respondent (s) –to the
first respondent. There were no read receipt s attached. Service of the notice of set
down occurred on 27 June 2024. An updated notice of set down was filed on
CaseLines on 25 January 2025, but there was no proof of service of such notic e found
on CaseLines.
[4] There is no notice of appointment of attorneys of record on behalf of the second
respondent (s) on record. in this matter . Additionally, there is no evidence that they
consented to service via email to the first respondent's email address. Therefore,
proper service on the second respondent(s) , the two individuals who stand to benefit
under the will being contested, did not occur.
[5] It is perhaps also at this juncture necessary to not e that the second respondent
and third respondent are incorrectly cited on the papers. The respondents must be
1 Act 81 of 1987 .
2
cited individually, and in the case of Ms Jos ephine being deceased, the executor of
her estate should be cited.
[6] At the hearing I voiced my concerns that there w as no proper service on the
second respondent (s). Counsel for the applicant, Mr Mateya, submitted that it was
served on the first respondent. I indicated that there is nothing on the papers indicating
that the first respondent represents the second respondent(s) in the matter , nor that
they have agreed to email service to his email address . He could not take the matter
further.
[7] I t is a cornerstone of our legal system that a person is entitled to notice of legal
proceedings against such person.
2 In this context, the service of a notice of set down
is crucial for several reasons . From a constitutional perspective, a litigant has the right
to be informed of proceedings affecting them ( to enable compliance with the audi
alterm partem principle). It may also be that a respondent did not oppose due to an
oversight, and such service allows them to act before a final order is made.
Conversely, when such a final order is made, the losing party cannot later claim they
were unaware of the proceedings.
[8] On the other hand, a party claiming they were unaware of the proceedings can
apply for recission of judgment in certain circumstances .
3 In such instances , service
can stre ngthen the applicant 's case by showing that due notice was given, reducing
the possibilit y of a judgment being overturned on procedural grounds.4 This also
ensures that there is finality and certainty in litigation.
[9] But perhaps more pertinently – courts rely on proper notification of proceedings
to all parties to ensure that justice is done transparently. It ensures adequate procedural safeguards when granting orders. That is why in matters, especially
matters where there is no appearance for the opposition, it is essential that the applicant can show that there was proper service and that all parties are aware of the
2 Steinberg v Cosmopolitan National Bank of Chicago 1973 (3) SA 885 (RA) at 892C .
3 Rule 31(2)(b) and Rule 42.
4 Elia and Others v Absa Bank Ltd [2023] ZAGPJHC 649 par 18.
3
proceedings in court. If they choose not to enter an appearance, they do so at their
own peril.
[10] Accordingly, there was no proper service on the second respondent(s), and the
matte r stands to be removed from the roll.
Order
[11] The following order is made:
1. The matter is removed from the roll due to lack of proper service
on the second respondent (s).
____________________________
WJ du Plessis
Judge of the High Court
Gauteng Division, Johannesburg
Heard on: 10 February 2025
Decided on: 12
February 2025
For the Applicants:
H Mateya instructed by SME Mohai
Attorneys