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JUDGMENT
SENYATSI J
Introduction
[1] This judgment is about the Rules of Court on Joinder of parties to the
proceedings. The applicant s seek to join the first, second, third, and fourth
respondents in the main action, asserting their substantial interest in the
dispute over the Will and Testa ment of the late M r. Phillip De Moor (“the
deceased”) who executed the will on the 20th of September 2021 before his
passing away. The applicants contend that they seek to join the respondents
as the fifth, sixth, seventh and eight respondents in the main action . The
application was signed and filed in May 2024 . However, the new firm that
signed it, Human and Human Attorneys, came on record formally in July
2024.
[2] the three respondents oppose the application , and the opposing sworn
statement has been filed by Ms. Sally Ann Vendel, the executrix of the
estate of the deceased. She is cited twice in the papers as the second and
the third respondent in her representative capacity and this is surprising as
I do not know whether it is print or drafting error .
Background
[3] The applicants are the plaintiffs in the main action and are challenging the
validity of the last will and testament of the deceased. The y seek that the
will of the deceased to be reviewed and set aside. In addition, they seek
that the deceased be declared by court in the action pro ceeding to have died
intestate. The first three defendants defend the action .
[4] The material provisions of the disputed will provide that the residue of the
deceased’s estate is to be left in trust for the sole benefit of the deceased’s
wife, namely, Ms. Jill Pamela De Moor. The nominated trustees are John
Gunnel, Sally Vendel, and Megan Vendel. Should she pre -decease him, the
residue of the trust is to be left in equal shares to the deceased’s two sons,
namely, Brendan and Graeme, the applicants in these proceedings and the
plaintiffs in the main case. For convenience’s sake, the parties will be
referred to as in the main case. The plaintiffs raise several grounds for
attacking the will such as the fact that the deceased did not have the
capacity to do a will as he was too frail and had scored 12/30 in the
cognition test to appreciate the consequences of his action at the time the
will wa s executed. They co ntend in the main action that he could not have
had the capacity to execute the will as he was in the frail centre care for the
aged.
[5] In the action proceedings, the first three defendants are all cited in their
personal capacity by the plaintiffs who state that they are the biologi cal
sons of the deceased. The plaintiffs state in their particulars of claim that
the first and the second defendants are nominated as the executors of the
Will of the deceased.
[6] The pleadings in the main action were exchanged culminating in the special
plea of misjoinder and the first and third defendants complained that they
have no interest in the matter as they are not the joint trustees with the
second defendant in the administration of the deceased’s estate. The second
defendant in the main action lamented that she was cited in her personal
capacity instead of her representative capacity. She contended that she has
no personal interest in the litigation.
[7] Following the special plea, the applicants sought to amend their pleadings
by citing the second defendant in her representative capacity and continued
with citing the other two defendants in their personal capacities. The
second defendant objected to the amendment notice on grounds stated in
the notice of objection. The plaintiffs replaced their legal repre sentatives
by a new firm in July 2024.
[8] The plaintiffs in the action proceedings filed Notice of Withdrawa l of
Joinder application against the first and the third defendants in October
2024 and refused to tender costs on the ground that they did not incur any
costs in the matter. This is strange as the Notice of Intention to Defend
clearly states that the legal representatives represent all three of them in the
action proceedings .
[9] On THE 30th of October 2024, the three defendants in the action
proceedings, filed Notice of Exception. There is no record of the Exception
proceedings being finalized, which likely led to the amendment
application.
Bases for joinder
[10] The basis for joining the first respondent in the main action , is that he is a
trustee created in terms of the Will of the deceased. The first respondent is
cited both in his personal and representative capacity as the trustee of the
estate of the deceased . He is also cited as the fifth respondent in his
personal capacity. The applicants contend that he has interest in the action
proceedings.
[12] The basis for seeking to join the second respondent is that she is an
executrix of the estate of the deceased and that she has interest in the action
proceedings. She i s also cited as the third respondent in her capacity as the
trustee of the trust created in terms of the Will of the deceased. She is also
cited as the sixth respondent in her personal capacity. The applicants
contend that she has an interest in the action proceedings.
[13] The fourth respondent is cited in her capacity as the trustee of the trust
formed in terms of the Will of the deceased. She is, furthermore, cited as
the seve nth respondent in her personal capacity. The applicants contend
that she has an interest in the action proceedings.
[14] The applicants contend that from the reading of the Will, the respondents
have been enjoined with wide powers by the deceased and consequently,
so the contention goes, the respondents have a substantial interest in th e
outcome of the litigation in the action proceeding. Consequently, so they
argue, the respondents must be joined in the action.
[15] The Master of the High Court is cited as the eighth respondent and has not
participated in this application.
Basis for opposition of the joinder and misjoinder
[16] The first respondent firstly, challenges the legality of the sworn statement
on the ground that the commissioner of oaths did not initial each page of
the founding sworn statement . Secondly , the contends that his citation in
the matter both in his representative and personal capacity is inappropriate
because he repudiated his nomi nation as a trustee before the institution of
the proceedin gs. Furthermore , it is contend ed on his behalf that because the
trust was never formed, it is premature to cite him in the matter and the
relief sought against him is therefore incompetent . He is neither a joint
trustee of the estate because the disputed Will nominates only one trustee ,
namely, the second respondent. He has no personal interest in the outcome
of the main litigation. Conse quently, so it is averred, he has no material
and personal or representative interest in the outcome of the action
proceeding and that he should not have been cited in the main action
proceeding.
[17] As far as the second respondent is concerned, she disputes that she has
personal interest in the action because the disputed Will clearly nominates
her as the trustee. She cont ends that it is inappropriate that she is cited in
her personal capacity because she has no material and personal interest in
the outcome of the main litigation . She states furthermore that it is
inappropriate for the applicants to cure the misjoinder by way of a joinder
application because citi ng her through the joinder application amounts to
substitution and the joind er is intended to introduce two new parties.
[18] Furthermore, so she contends, citing her in her capacity as the trustee of
the estate is premature as the trust has not yet been formed. Accordingly,
so she contends, she has no material and subs tantial interest in the outcome
of the litigation in her personal and her representative capacity as the
trustee of the deceased’s estate and that the application to join her i n those
two capacities should be dismissed.
[19] As regards the proposed joinder of Megan Vendel , in her capacity as the
executrix of the estate, it is contended th is is incompetent. The submission
is that the third respondent is not nominated as an executrix of the estate in
terms of the Will and for that reason alone, so the submission goes, it is
incompetent to cite in that capacity.
[20] Furthermore, she is cited in her personal capacity , but no averments have
been made against her and therefore , so the argument goes, no cause action
exists against her in her personal capacity . Accordingly, s he has no material
and substantial interest in the outcome of the litigation in her personal
capacity . Furthermore, so it is contended, it is premature to cite her as the
trustee and that this is inappropriate because the trust has not been
established.
[21] The respondents contend that it is peremptory when the Will is challenged
that all the beneficiaries be joined because the real dispute is between the
plaintiffs and the beneficiaries . They contend that the applicants have
failed to cite all the beneficiaries and that the proceedings are therefore
irregular.
The issues for determination
[22] The issues for determination can be summarised as follows: -
(a) Whether the commissioning of the founding affidavit is proper;
(b) Whether there is a misjoinder of a party which render s the proceedings irregular.
and
(c) Whether the second respondent should be joined as a defendant in the main action.
I will deal with each issue in relation to the legal principles applicable to
each issue as set out below.
The legal principles
Commissioner of oaths
[23] The commissioning of sworn statements is regulated by section 7 of the
Justices of the Peace and Commissioners of Oaths A ct 16 of 1963 (the Act)
and the Regulations1 promulgated in terms thereof. Section 7 of the Act
provides as follows: -
“Any commissioner of oaths may, within the area for which he is a commissioner
of oaths, administer an oath or affirmation to or take a solemn or attested
declaration from any person: Provided that he shall not administer an oath or
affirmation or take a solemn or attested declaration in respect of any matter in
relation to which he is in terms of any regul ation made under section ten
prohibited from administering an oath or affirmation or taking a solemn or
attested declaration, or if he has reason to believe that the person in question is
unwilling to make an oath or affirmation or such a declaration. ”
[23] Regulation 4 provides as follows: -
(1) Below the deponent’s signature or mark the commissioner of oaths shall certify
that the deponent has acknowledged that he knows and understands the contents
of the declaration and he shall state the manner, place and date of taking the
declaration.
(2) The co mmissioner of oaths shall —
1 REGULATIONS GOVERNING THE ADMINISTERING OF AN OATH OR AFFIRMATION [Updated to
23 April 1982]
(a) sign the declaration and print his full name and business address
below his signature; and state his designation and the area for which
he holds his appointment, or the office held by him if he holds his
appointment ex officio. ”
[24] In this case, the point in limine raised is that the commissioner of oaths did
not initial each page of the sworn statement . In Department of Correctional
Services v Baloyi2, was faced with the challenge of the authority of the person
who signed the sworn statement as a commissioner of oaths and Molahle hi J (as
then was) held as follow s:
“[3] In order to satisfy the status of an affidavit, the founding affidavit has
to comply with the requirements set out in regulation 4 of the Regulations.
Regulation 4(1) reads as follows:
"(1) Below the deponent's signature or mark the commissioner
of oaths shall certify that the deponent has acknowledged that he
knows and understands the con tents of the declaration and he is
required to state the manner, place and date of taking the
declaration."
[4] Regulation 4 (2) of the Regulations reads as follows:
"(2) The commissioner of oaths shall –
(a) sign the declaration and print his full name and business
address below his signature; and
(b) state his designation and the area for which he holds his
appointment, or the office held by him if he holds his
appointment ex officio ."
[5] The appointment or designation of a Commissioner of Oaths is don e by the
Minister in terms section 6 of the Act. The designation is done on the basis
of the office which a person occupies, such as an attorney or a police
officer. ”
2 [2016] JOL 36586 (LC)
[25] It was submitted on behalf of the respondents that the commissioner must
initial each page of the document and affix their signature and details at
the end .
Misjoinder
[26] Rule 10 of the Uniform Rules regulates how parties may by joined to the
proceedings and states as follows: -
“(1) Any number of persons, each of whom has a claim, whether jointly, jointly and
severally, separately or in the alternative, may join as plaintiffs in one action
against the same defendant or defendants against whom any one or more of such
persons propos ing to join as plaintiffs would, if he brought a separate action, be
entitled to bring such action, provided that the right to relief of the persons
proposing to join as plaintiffs depends upon the determination of substantially
the same question of law or fact which, if separate actions were instituted, would
arise on each action, and provided that there may be a joinder conditionally upon
the claim of any other plaintiff failing.
(2) A plaintiff may join several causes of action in the same action.
(3) Several defendants may be sued in one action either jointly, jointly or severally,
separately or in the alternative, whenever the question arising between them or
any of them and the plaintiff or any of the plaintiffs depends upon the
determination of substantially the same question of law or fact which, if such
defendants were sued separately, would arise in each separate action. ”
[27] The approa ch on whether or not to join a party to the proceedings is
whether the court’s order may affect the interests of third parties.3 The test
is whether or not a party has a direct and substantial interest in in the subject
matter of the action, that is, a legal interest in the subject matter in the
3 Erasmus Superior Court Practice D1 -124; See also Amalgamated Engineering Union v Minister of Labour
1949(3) 637 (A) at 657 ; Transvaal Agricul tural Union v Minister of Agriculture and Land A ffairs 2005 (4) SA
212 (SCA) at 22 6F -227F, Electrical Solution s(Pty) Ltd v City of Johannesburg Metropolitan Council
86870/19) [2021] ZAGPPHC 146 (16 March 2021) para 76.
matter of the litiga tion which may be affected prejudicially by the judgment
of the court.4
[28] Under common law, the court has the inherent power to order joinder of
further parties in an action which has already began to ensure that persons
interested in the subject matter of the dispute and whose rights may be
affected by the judgment are before court.5
[29] The objection on the ground of misjoinder should be taken in limine and if
not then taken it cannot be ordinarily raised subsequently.6
[30] It is trite that in proceedings to declare a will invalid, it is peremptory to
cite not only the executor but also the beneficiaries because the real dispute
is between the plaintiff and the beneficiaries. 7
Joinder
[29] I now deal with the legal principles applicable to joinder, that is, whether
the second defendant who is cited in her personal capacity in the main
action can through th is application be joined as both in her personal
capacity and representative capacity.
[30] Rule 30 (3) states as follows:
“If at the hearing of such application the court is of opinion that the proceeding or
step is irregular or improper, it may set it aside in whole or in part, either as against
all the parties or as against some of them, and grant leave to amend or make any such
order as to it seems meet. ”
4 Judicial Service Commission v Cape Bar Council 2013 (1) SA 170 (SCA) at 176H -I; In re BOE Trust Ltd and
Others NNO 2013 (3) SA236 ( SCA ) at 241H -I
5 Esquire Electronics Ltd v Executive Video 1986( 2) SA 576 (A) at 590J - 591C
6 Rabinowitz and ANOTHER NNO v Ned-Equity Insurance Co Ltd 1980( 3) SA 415 (W) at 419E
7 See Kethel v Kethel ’s Estate 1949 (3) SA 598(A) at 603 para 1
[31] The adjudication of a rule 30 application entails two stages8. First, the court
must determine whether the proceeding or step complained of was indeed
irregular. If it was, "the Court is empowered to set it aside, wholly or in
part. The court, however, has a discretion . . .. It is entitled in a proper case
to overlook an irregularity in procedure that does not cause substantial
prejudice to the party complaining of it ,..".9
[32] In Afrocentrics Projects and Services (Pty) Limited t/a Innovative
Distribution v State Information Technology Agency (SITA) SOC Limited
and others10Kollapen J confirmed the approach on Rule 30(3) and said the
following: -
“[26] Rule 30(3) contemplates a two -stage process. A court must first satisfy itself
that the proceeding or step is irregular or improper. If it is so satisfied, it has the
wide power to set the proceeding aside in its entirety or in part, grant leave to
amend or make any order as it deems fit. These are, no doubt, wide powers.
Following its conclusion that a step or proceeding is irregular or improper, a
court however, is required to make an order.
[27] Court orders are required to bring a level of certainty to the proceed ings and
directions issued by a court must not be contained in the judgment but in the
concluding order.11 In Ntshwaqela the Appellate Division held that the order
with which the judgment concludes is:
". . . the executive part of the judgment which define s what the
Court requires to be done or not done, so that the defendant or
respondent, or in some cases the world, may know it."12
[28] A court must effectively dispose of the dispute that has come before it, and in
doing so, it must act in accordance with its powers relative to the matter at
hand. This is after all what provides the certainty and finality that parties seek
when they bring a dispute to a
8 Beecham Group Plc v Colgate -Palmolive Company [2013] JOL 30997 (GNP) at para 19.
9 See Harms Civil Procedure in the Supreme Court, B30.8.
10 [2023] JOL 57251 (CC) at para 26.
11 Administrator, Cape and another v Ntshwaqela and others [1989] ZASCA 167, 1990 (1) SA 705 (A) [also
reported at [1990] 2 All SA 34 (A) – Ed] ("Ntshwaqela") at 716B –C.
12 Id at 716B.
The discussion and reasons
[26] I now consider the issues raised starting with the alleged invalid sworn
statement . of the document. The basis of the point by the respondents is
that the commissioner of oaths has failed to initial each page of the
document. I disagree with the submission. The commissioner of oaths is
Suzzane Chitty, a Solicitor who signed the affidavit in Edinburgh,
Scotland. Section 8 of the Act permits the Minister to appoint a person
holding any office outside of the Republic to be appointed as a
commissioner of oaths. It has not been su ggested by the respondents that
the solicitors in Scotland do not fall in that category. The only attack is that
each page of the affidavit has not been initialled by the commissioner. In
my view, the defence must fail because the section 4 does not speak of
initialling each page of the affidavit by the commissioner when
commissioning the affidavit.
[27] Turning to the misjoinder of the sole beneficiary to the will of the deceased,
being the mother to the plaintiffs, it is improper not to have cited her in the
main action because the real dispute is with her and none of the parties
cited to sought to be sighted. This failure in my view, constitutes a serious
irregularity because as the sole beneficiary of t he entire estate, she is
entitled to participate in the proceedings challenging the will that benefits
her.
[28] Furthermore, after receiving t he answering sworn statement and after it
was brought to their attention that the trust has not been registered, the
plaintiffs withdrew their action a gainst the first , third and fourth
respondents in their capacities the trustees. The notice of withdr awal is
silent on withdrawal against those parties in their personal capacities and
it is difficult to un derstand why the silence. The Notice is also silent about
withdrawal of the action against the executrix in her personal capacity.
[29] No costs were tendered for withdraw al against the three parties mentioned
in the Notice of Withdra wal and the Notice states that they have not
incurred any costs. There is not basis why such contention is made . The
statement fails to appreciate that the parties were cited in their personal and
representative capacities. It follows in my view that their costs ought to
have been tendered.
[30] Furthermore , it is not clear what the aim of the plaint iffs is with regards to
the parties cited in their personal capacities as th e defendants have no
personal interest in the litigation. This is so because, firstly, they are not
the beneficiaries of the estate . Secondly as regards their citation as the
trustees , this is impermissible because the trust has not been formed and
registered. The plaintiffs did not in their replying sworn statement , gainsay
what the defendants contended regarding the non -registration of the trust .
Thirdly, the only party that ought to be cited is the executrix, which is the
second defendant but only in her official capacity and not her private
capacity or as a trustee.
Conclusion
[29] The amendment sought as it stands, creates not only confusion, but
unacceptable to the parties cited. As already indicated, of the cited parties,
the only party with the real interest in the executrix, that is the second
defendant but only to the extent that she should be cited as such and in no
other capacity. The rest of the parties who remain cited their personal
capacities have no interest in the proceedings because the will does not make
them the beneficiaries of the estate of the deceased. To cite them in their
personal capacities as the plaintiffs have done is impermissible.
[30] Lastly, fai lure to join the sole beneficiary of the estate constitutes serious
irregularity . However, because I have no application to declare the
proceedings irregular in terms of Rule 30 A, I will not say more on the point.
[31] It follows therefore, under the circumstances that the application for
amendment of the pleadings must fail insofar as the parties cited are cited
in their personal capacities.
[32] The only am endment allowed should therefore be that the second
defendan t/respondent should be cited in her rep resentative capacity as the
executrix and not in her personal and her capacity as the trustee.
Order
[31] The following order is made:
a) The citation of the second respondent in her capacity as the
executrix is granted;
b) The citation of all the parties in their personal capacities is re fused ,
DATE APPLICATION HEARD : 14 April 202 5
DATE JUDGMENT HANDED DOWN : 12 June 2025
APPEARANCES
Counsel for the Applicant: Adv S Van Dyk
Instructed by: Human and Human Incorporated
Counsel for the 1st – 7th Respondents : Adv Z Hoosen
Instructed by: Brittan Law