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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 2019- 19990
In the matter between:
CLIFFORD RABONTSI RAPOO Applicant
and
THABO MODISE First Respondent
CASSANDRA NOMBULELO MODISE Second Respondent
CATHARINA MARIA CORNELIA VAN D YK Third Respondent
NEDGROUP TRUST Fourth Respondent
FIRSTRAND BANK LTD Fifth Respondent
J VAN ZYL BEYERS & RAUTENBACH Sixth Respondent
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE: 22 April 2025 SIGNATURE
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THE REGISTRAR OF DEEDS, JHB Seventh Respondent
MASTER OF THE HIGH COURT Eighth Respondent
Delivered: 22 April 2025 – This judgment is handed down electronically by
circulation to the parties' representatives via email, upload ing it to CaseLines and
releas ing it to SAFLII.
ORDER
1. The application is dismissed with costs.
2. The applicant, in his personal capacity, shall pay the costs of the application,
with the cost of counsel to be paid on Scale B .
3. The counter -application is dismissed, with no order as to costs.
JUDGMENT
BESTER AJ:
[1] The late Chache Victor Rapoo and his wife, the l ate Lettie Rapoo, in life were
marrie d in community of property and owned the property known as Erf 1[ …] M[…]
T[…] (the property), which is the subject matter of this application. Upon the death of
the late Lettie on 2 July 2003, their son, the applicant , was appointed as the executor
of her estate. Upon the death of the l ate Chache on 14 May 2018, the applicant was
also appointed as the executor of his estate.
[2] On 13 August 2018, the applicant, in his capacity as the executor of the two
estates, entered into an agreement with the first and second respondents whereby
the estates sold the property to them . On 25 April 2019, the transfer was registered
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under Deed T[ …]. In the first week of June 2019, the applicant launched this
application, seeking an order that the Registrar of Deeds be directed to cancel the
deed of transfer . Only the first and second defendants oppose the application. I refer
to them as the respondents unless the context requires otherwise.
Does the applicant have locus standi in iudicio?
[3] The applicant assert ed in his founding affidavit that he brings the application
as executor of his late father’s estate. In support of his legal standing to do so, he
attached his letters of executorship dated 12 October 2018.
[4] The respondents challenged this assertion and presented the Master’s letter
of appointment of NedGroup Trust as the executor of the estate on 27 May 2019.
NedGroup Trust is cited as the fo urth respondent.
[5] It is well established that only the executor can institute proceedings on behalf
of an estate.
1 In his replying affidavit, the applicant sought to meet this difficulty by
asserting a direct and substantial interest in the property because he is a signatory to
the sale contract. The applicant, however, signed the contract in his official capacity as the executor of his late father’s estate. His alternative appr oach is thus nothing
more than a different way to assert a right to represent the estate, for which he does
not have the authority. [6] In an apparent attempt to cure this problem, the applicant delivered a
supplementary founding affidavit two and a half years later , in which he proffered his
position as the executor of his mother’s estate as a new basis for asserting legal standing in this application. When he instituted the proceedings, the applicant was
no longer the executor of his late father’s estate and thus was the applicant in his personal capacity for all intents and purposes. Not only did the applicant not seek
leave to supplement his papers, but he also did not apply for substitution of parties to
become the applicant in his capacity as the executor of his late mother’s estate.
1 See for instance MM on behalf of GM v Member of the Executive Council for the Department of
Health North -West Province 2024 JDR 1617 (SCA) in para [23].
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[7] Co-owners of property must join in litigation when the property is the subject
matter of the litigation.2 The applicant , thus, would remain unable to pursue the relief
sought in this application as the executor of his late mother’s estate. He cited
Nedgroup Trust as a respondent, but this was because it was the nominated executor of his late father’s will, which he claims to be disputing, and not in its capacity as the executor of that estate. In any event, the applicant didn't serve the supplementary founding affidavit, where he for the first time asserted his standing as
the executor of his late mother’s estate, on Nedgroup Trust. As a result, it is not
before the court in its capacity as the executor, and it has not been informed that this
relief is being sought.
[8] As a result, the applicant cannot obtain the relief sought even if a substitution
were to be granted. Substitution of the applicant , insofar as the applicant’s papers
could be understood to ask for such relief, is not granted.
The respondents’ condonation application
[9] The respondents delivered their answering affidavit s on 23 September 2019,
several weeks out of time. They apply for condonation of this delay on the basis that
they had not learnt of the existence of the application until September 2019, without
identifying the exact date. The respondents do not offer a detailed explanation.
However, I am satisfied that it is in the interest of justice
3 to allow the respondents’
answering affidavits for a single reason: but for the respondents revealing that the
applicant is no longer the executor of the estate of his late father , that fact would
likely not have been placed before the court at all.
The counter -application
[10] In their answering affidavit , the respondents complained that the applicant had
failed to vacate the property and purported to claim occupational rental in terms of
2 See for instance Morgan and Another v Salisbury Municipality 1935 AD 167.
3 Ferris v FirstRand Bank Ltd 2014 (3) SA 39 (CC) at 43 G – 4 A.
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the sale agreement. The contract makes provision for payment of occupational
interest should the seller s remain in occupation of the property after the transfer date
(contrary to what the applicant asserts in his replying affidavit ). However , the estates
were the sellers . The applicant is a party to the sale agreement only in his capacity
as the executor of the two deceased estates. The respondents’ claim lies against the
estates and not the applicant personally . The applicant is before the court in his
personal capacity. For this reason, the counter -application must fail.
[11] The respondents did not deliver a notice of motion for their counter -application
but merely sought relief in their answering affidavit. The application in total covers
mere lines in the affidavits of both the respondents and the applicant. In these circumstances, no separate costs order would be appropriate with respect to the
counter -application.
Costs
[12] The papers reveal two motives on the part of the applicant to have pursued
this application.
[13] Initially , he was appointed as executor of his late father’s estate on the
assumption that this father died intestate. A will subsequently materialised, and the fourth respondent was appointed in terms of the will. This , in turn, caused the
transferring attorney to refuse to pay the sale proceeds over to the applicant, apparently until clarity was obtained on how the proceeds should be paid out. The
applicant disputes the will’s validity but set s out no grounds for doing so, nor has he
taken steps to obtain a declaration or other relief regarding this issue.
[14] In addition, the applicant remains in occupation of the property and has done
so cost -free since the transfer of the property.
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[15] With the above in mind, and as the applicant has not proceeded in a
representative capacity in pursuing the application, he clearly should pay the cost s of
the application personally .4
Conclusion
[16] In the result , the following order is made:
a) The application is dismissed with costs .
b) The applicant, in his personal capacity, shall pay the cost s of the
application, with the cost of counsel to be paid on Scale B.
c) The counter -application is dismissed, with no order as to costs.
A Bester
Acting Judge of the High Court of South Africa
Gauteng Local Division, Johannesburg
Heard: 4 September 2024
Judgment Date: 22 April 2025
Appearance for the Applicant: Mr BM Dile, instructed by Dile Attorneys.
Appearance for the First and Second Respondents: Mr Mathunsi, instructed by Prince Katise Attorneys.
No appearance for the Third to Eighth
Respondents.
4 See Conradie v Smit 1966 (3) SA 368 (A) at 377; Estate Orr v The Master 1938 AD 336 at 342;
Hayle tt v Haylett 137 AD at 462.