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REPUBLIC OF SOUTH AFRICA
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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
1. REPORTABLE: NO
2. OF INTEREST TO OTHER JUDGES: NO
3. REVISED: YES
DATE: 9 May 2025
SIGNATURE OF JUDGE:
In the matter between:
MASHABA,KOYO
and
THE MASTER OF THE HIGH COURT
THE MINISTER OF POLICE
THE MOMENTUM INSURANCE
JUDGMENT
HF OOSTHUIZEN AJ CASE NO: 2022-7865
Applicant
First Respondent
Second Responde nt
Third Respondent
, .
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[1.] On 21 July 2021, the applicant's late wife ("the deceased ") was murdered at the
applicant's home.
[2.] For reasons which will become clear, the first respondent , the Master of th.e High
Court, has, almost four years later, failed to appoint an executor for the deceased
estate and the third respondent , Momentum Metropolitan Life ltd, has failed to
pay the benefits of a life policy which the deceased held with the third respondent
to the applicant as the nominated beneficiary under the policy. This unfortunate
delay is clearly prejudicial to the applicant as well as his four minor children.
[3.J Following the murder of the deceased, a criminal case was opened with the
South African Police Service ("the SAPS").
[4.] On 24 August 2021, the applicant reported the death of the deceased to the first
respondent and applied to be appointed as executor of the deceased estate. The
first respondent was not prepared to appoint the applicant as executor until it had
received a post-mortem report from the SAPS.
[5.] Despite numerous requests by the applicant, the SAPS has failed to provide a
copy of the post-mortem report to the applicant. It is apparently the stance of the
SAPS that the murder investigation has not been concluded and that the
provision of the post-mortem report may prejudice the investigation .
[6.] During September 2021, the third respondent received an anonymous tip-off
from a person claiming to be a family member of the deceased , accusing the
applicant of being involved in the deceased 's death.
[7.] On 18 January 2022, the investigating officer informed the third respondent that
the applicant was a suspect in the murder investigation. According to discussions
between the third respondent and the SAPS, the applicant apparently remains a
person of interest in the criminal investigation.
[8.J The applicant denies any involvement in the murder of the deceased .
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[9.] The third respondent is not prepared to pay the benefits under the policy to the
applicant until it has received a copy of the post-mortem report (which the third
respondent contends it is entitled to claim in terms of the provisions of the policy)
and/or it has received written confirmation from the SAPS that the applicant is no
longer a person of interest in the murder investigation . In the event that the
applicant is in fact involved in the murder of the deceased, the third respondent
intends to pay the benefits under the policy to the executor of the deceased
estate.
[10.] The third respondent's stance is informed by the following legal principles
enunciated in Oanielz NO v De Wet1
"[27] There are two principles of insurance Jaw which come into play
here.
(a) Firstly, that an assured may not intentionally precipitate the risk
insured against, and in doing so will preclude himself/herself from
claiming the benefit of the insurance .
(b) An assured, who intentionally perpetrates a criminal act relating to
the risk insured against, may render himself/herself unworthy, and
in such an event a court will not, as a matter of public policy, permit
such a person to claim the benefit under policy.
The first principle applies where the assured deliberately causes the risk.
The second applies where some turpitude on the part of the assured is
so connected with the risk and so repugnant to good morals, that public
policy requires that the assured cannot claim the benefit under the policy
{28] it is well established that, as a matter of general principle, an
offender is not entitled or allowed to derive any benefit from his own
criminal conduct ...
[49] In life insurance the event which gives rise to the right to payment
is death during the currency of the policy. The cause and circumstances
of death are generally irrelevant . For though a murderer ... can never
benefit from the insurance , the policy itself remains valid and the insurer
is not relieved from liability vis-a-vis the deceased 's estate."
2009 (6} SA 42 (C) para (27]
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[11.] In the event that it is found that the applicant was involved in the murder of his
wife, the applicant will also be unable to inherit any benefit under the will of the
deceased on the basis of the maxim de bloedige hand neemt geen erf. 2
[12.] On 15 February 2022, the applicant, acting in person, applied broadly for the
following urgent relief:
[12.1.] ordering the first respondent to appoint the applicant as the executor of
the joint estate;
[12.2.] ordering the second respondent , the Minister of Police, to deliver the
post-mortem report to the applicant and the first and third respondents ;
and
[12.3.J ordering the third respondent to pay the benefits under the policy to the
applicant.
[13.] The urgent application was opposed by all three respondents, who filed
answering affidavits.
[14.] On 15 February 2022, Bokaka AJ found that the application was not urgent and
removed it from the roll.
[15.) During October 2024, the applicant delivered an amended notice of motion and
a so-called updated founding affidavit and applied for a date for the hearing of
the application on the opposed motion roll.
[16.] The applicant failed to serve a notice of set down of the allocated hearing date
on the respondents .
[17.] The applicant moreover uploaded heads of argument to Caselines, which
contains information about events which had occurred since 15 February 2022
but which information was not included in the updated founding affidavit, as one
would have expected.
Danielz NO v De Wet supra para [49]
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[18.] When the matter was called on Monday, 5 May 2025, there was no appearance
on behalf of the first and second respondents but Adv Linde appeared on behalf
of the third re~pondent.
[19.] In an application for condonation for the late delivery of the third respondent 's
heads of argument (which were uploaded to Caselines on Friday, 2 May 2025)
the third respondent's attorney indicated that the applicant had failed to serve a
notice of set down with the allocated hearing date on the third respondent and
that he only became aware of the allocated hearing date on 22 April 2025 when
he visited this application on Caselines.
(20.J In view of the applicant's failure to serve a notice of set down on the first and
second respondents and due to their non-appearance on 5 May 2025, I indicated
to the applicant that I was not in a position to grant any relief against the first and
second respondents but that I was prepared to postpone the application to the
first available date on the opposed motion roll, being 25 August 2025.
[21.] I was moreover prepared, in the interest of justice, to afford the applicant the
opportunity to file a supplementary founding affidavit to deal with all relevant
events since 15 February 2022, when the application was removed from the
urgent roll. This would enable the se_cond respondent to deliver a supplementary
answering affidavit to explain the outcome of the murder investigation and more
specifically to indicate whether the applicant is still a suspect/person of interest
and whether he will be prosecuted or not. Such information will enable the third
respondent to make an informed decision whether it should pay the benefit of the
policy to the applicant or to the executor of the deceased estate.
[22.] In view of the .fact that the third respondent was represented on 5 May 2025, I
heard argument on the relief which the applicant sought against the third
respondent. The third respondent sought the dismissal of prayer 3 of the
amended notice of motion with costs.
[23.] In view of the fact that:
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[23.1.) the liability of the third respondent to pay the benefit of the policy to either
the applicant or the deceased estate is not disputed by the third
respondent ;
[23.2.] the applicant has a valid claim for payment of the benefit under the policy
in the event that it is found that he was not involved in the murder of his
wife; and
[23.3.] it remains unclear whether the applicant is entitled to payment of the
benefit under the policy
it would be inappropriate at this stage to make a ruling on the relief which is
sought by the applicant against the third respondent. I reiterate that the relief
which is sought by the applicant against the second respondent and the content
of the second respondent's envisaged supplementary answering affidavit may
very well enable the third respondent to make a decision on the payment of the
benefits under the policy.
[24.] I am accordingly of the view that the application as a whole must be postponed
to the opposed motion roll of 25 August 2025.
[25.] In view of the fact that the notice of set down had not been served on the third
respondent, it was unnecessary for the third respondent to appear on 5 May
2025. The third respondent should accordingly pay its own costs in respect of
the appearance on 5 May 2025.
ORDER
[26.] I accordingly grant the following order:
[26.1.] the application is postponed to the opposed motion roll of 25 August
2025;
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[26.2.] the applicant is directed to approach the Registrar to ensure that the
application is properly enrolled for hearing on the opposed motion roll of
25 August 2025;
[26.3.] the applicant is ordered to serve this judgemen t forthwith on the
respondents;
[26.4.] the applicant is authorised to deliver a supplementary founding affidavit
within 15 court days of this order to deal with all relevant events which
occurred since the application was removed from the urgent roll on 15
February 2022;
[26.5.] the first, second and third respondents are authorised to deliver
supplementary answering affidavits within ten court days of receipt of the
applicant's supplementary founding affidavit;
[26.6.] the applicant is authorized to deliver a supplementary replying affidavit
within ten court days of receipt of the supplementary answering
affidavit(s);
[26.7.] the third respondent is ordered to pay its own costs in respect of the
appearance on 5 May 2025.
ACTING JUDGE OF THE HIGH COURT
This Judgment was handed down electronically by circulation to the parties' and or
parties' representatives by email and by being uploaded to CaseLines . The date and
time for the hand down is deemed to be 1 0h00 on this 9 May 2025.
Appearances
The applicant appeared in person.
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There was no appearance on behalf of the first and second respondents.
Adv D Linde, instructed by Keith Sutcliffe & Associates appeared on behalf of the third
respondent.
Date of Hearing: 5 May 2025
Date of Judgment: 9 May 2025