2
Introduction
[1] The applicant, Glacier Financial Solutions (Pty) Ltd, has delivered an interpleader
notice under the following circumstances:
(a) The applicant is part of the Sanlam Life Insurance Limited (“Sanlam”) group
of companies. It administers a Living Annuity policy, purchased by Nthofela
Albert Motanyane (“the deceased”) on 25 November 2011 (“the policy”), on
behalf of Sanlam.
(b) The estimated death benefits (i.e., proceeds) under the policy amount to
approximately R2.7 million.
(c) On 6 March 2021, the deceased passed away.
(d) A dispute has arisen between the first claimant, on the one hand, and the
second and third claimants, on the other, about which of the claimants are
entitled to the benefits of the policy. In view of the fact that all three of them
share the same surname, and with due respect to them, I intend to refer to
each of the claimants by their first name.
(e) The applicant contends that it is under liability in respect of which it was, or
expected to be, sued by the claimants making adverse claims. As a result,
and on 13 October 2022, the applicant instituted interpleader proceedings
calling on the claimants to deliver particulars of their respective claims and
requesting the Court to make a decision in regard to the applicant’s liability
to the claimants and/or the validity of their competing claims in terms of rule
58(6) of the Uniform Rules of Court.
[2] The parties’ respective positions, and the relief sought by each of them, is set out
in a joint practice note dated 3 October 2024.
1 Their respective positions may be
summarised as follows:
1 I digress to briefly mention that a joint practice note is, in my view – and notwithstanding that it is expressly
required in all opposed motion matters by virtue of paragraph 25.17 of the Revised Consolidated Practice
Directive 1 of 2024 – an indispensable requirement for the effective adjudication of opposed motions. It
provides the necessary framework for courts to efficiently navigate opposed motions , incorporates
important matters agreed to between the parties and highlights the issues to be determined by the court.
Parties are therefore urged to attend pre-hearing conferences, and to prepare joint practice notes, with
3
(a) The applicant seeks directions from the Court in relation to its liability, if any,
to one or more of the claimants in terms of rule 58, together with an order
that its taxed or agreed costs occasioned by the interpleader proceedings
may be deducted from the amounts paid out to a party with a valid claim.
(b) Nonhlanhla seeks an order in terms of rule 58(6) that the competing claims
be adjudicated here and now (i.e., in these interpleader proceedings), that
Nonhlanhla’s claim be accepted and that the proceeds of the policy be paid
out in accordance with the below-defined third nomination, namely:
i. to Nonhlanhla as to 34%;
ii. to Palesa as to 33%; and
iii. to Pheteho as to 33%.
(c) Palesa and Pheteho, on the other hand, seek an order that Nonhlanhla’s
claim be rejected and directing that the proceeds of the policy be paid out
in accordance with the below-defined second nomination, namely to Palesa
and Pheteho in equal shares. In the heads of argument filed on their behalf,
however, as well as in argument advanced before me, Palesa and Pheteho
seek an order that the issue of the validity of the third nomination, as well
as Palesa and Pheteho’s allegations of fraud committed by Nonhlanhla in
respect thereof, be referred in terms of rule 58(6)(c) for the hearing of oral
evidence.
The Relevant Factual Background
[3] The following facts are common cause:
2
the necessary care and diligence, for courts will not lightly permit parties to deviate from their agreements
and other matters contained in a joint practice note (see for example, albeit in the context of pre -trial
conferences, Filta-Matix (Pty) Ltd v Freudenberg and Others 1998 (1) SA 606 (SCA) and National Union
of Metalworkers of South Africa and Others v Driveline 2000 (4) SA 645 (LAC) at [16] and [82]). In the
matter before me, the parties’ legal representatives did precisely as they were supposed to do. The joint
practice note was of much assistance to this Court, for which it expresses its gratitude.
practice note was of much assistance to this Court, for which it expresses its gratitude.
2 Joint Practice Note 3 October 2024, para 9 at 04-4 – 5.
4
(a) Nonhlanhla is not, and Palesa and Pheteho are, the biological children of
the deceased.
(b) On 22 May 1996, the deceased married Nonhlanhla’s mother (“Carol”) when
Nonhlanhla was 2 years old.
(c) In September 2010, the deceased had a stroke, which resulted in a speech
impediment. He ceased working and commenced therapy for his disability.
(d) On 25 November 2011, the deceased, on the advice of his broker, one Frik
Grobler (“Grobler”) (who at the time of his death had assisted the deceased
with his financial portfolio for a period in excess of 20 years), facilitated his
purchasing the policy from Sanlam, and administered by the applicant, with
proceeds from his retirement fund, and in respect of which the estimated
death benefits are R2 706 684.95.
(e) In terms of the policy, the deceased was entitled to nominate a beneficiary
who would receive the specified death benefits in the event of his passing.
In addition, the deceased was entitled to revoke or replace the nomination
of a beneficiary unilaterally. Any nomination or replacement was valid only
if it was:
i. in writing;
ii. signed by the deceased; and
iii. received by the applicant prior to his death.
(f) Over the years the deceased nominated beneficiaries.
(g) On 2 November 2011, the deceased nominated Carol as a beneficiary to
the policy ("the first nomination").
(h) The deceased and Carol were divorced in the Regional Court, on 18 April
2018, having signed a settlement agreement dated 19 February 2018.
(i) On 6 April 2017, the deceased removed Carol, his then ex-wife, and
nominated Palesa and Pheteho as beneficiaries in equal shares ("the
5
second nomination"). The second nomination was accompanied by an
affidavit by the deceased which confirmed that the deceased had suffered
a stroke which left his ability to communicate (verbally and in writing)
impaired. The deceased signed the second nomination by way of affixing
his thumb print to each page in front of the Commissioner of Oaths.
(j) On 5 July 2020, Nonhlanhla was also nominated as a beneficiary together
with Palesa and Pheteho, with Nonhlanhla to receive 34%, Palesa 33% and
Pheteho 33% of the death benefits ("the third nomination"). The third
nomination was signed electronically, in accordance with the applicant's
internal processes and the Electronic Communications and Transactions
Act 25 of 2002, and accepted by Sanlam and the applicant.
(k) On 6 March 2021, the deceased died.
[4] The relationship between Nonhlanhla, on the one hand, and Palesa and Pheteho,
on the other, is unfortunately very acrimonious. Whilst Nonhlanhla contends that
the third nomination is valid and binding – having been accepted by the applicant
as such – Palesa and Pheteho accuse Nonhlanhla of having fraudulently
procured an amendment to the policy by way of the third nomination, to the extent
that they have proffered criminal charges against her.
[5] As a result of the competing claims, and the applicant’s inability
3 or hesitation to
make payment of the death benefits in accordance with the third nomination,
Nonhlanhla on 10 June 2022 instituted an application in this Court, under case
number 2022-20040, against Palesa, Pheteho and the applicant in which she
seeks an order, inter alia, compelling Palesa and Pheteho to complete and
submit the necessary documents to the applicant and that the applicant then
distribute the death benefits to the parties in accordance with the third nomination
(“main application”).
[6] Palesa and Pheteho opposed the main application and filed an answering
affidavit therein. They also sought, by way of a counter-application, an interdict
affidavit therein. They also sought, by way of a counter-application, an interdict
3 At some stage, Palesa and Pheteho hampered payment of the death benefits in accordance with the
third nomination by failing to furnish, inter alia, copies of their identity documents to the applicant.
6
against the applicant prohibiting it from making payment of the death benefits in
accordance with the third nomination until such time as it had investigated and
reported on the validity of the third nomination.
[7] The parties have incorporated their respective affidavits in the main application,
by way of their particulars in these interpleader proceedings. This is an important
issue to which I will return later.
[8] According to Nonhlanhla, it was only in March 2021 that she learned for the first
time of the fact that she is not the biological daughter of the deceased. She says
that this revelation came as a great shock to her (which comes as no surprise) ,
in particular because the deceased had regarded Nonhlanhla as his daughter
and raised her as such. She further bears the deceased’s surname and her birth
certificate reflects her as being the deceased’s daughter.
[9] After the deceased took up residence in a retirement village in or around 2018,
Nonhlanhla says that she often cared for him, to the extent that she cooked for
him and ran errands for him. According to her, she was his primary caregiver.
Pheteho admits that Nonhlanhla ran errands for the deceased from time to time,
but says that he too cooked for the deceased and delivered food to him during
the lockdown period.
[10] Despite suffering a stroke and a consequent speech impediment, the deceased
remained in control of his faculties and otherwise functioned normally. Not only
is this confirmed by Nonhlanhla, but a medical doctor, who examined the
deceased shortly after his stroke for purposes of the deceased submitting a
disability claim with Discovery, did not conclude that the deceased was incapable
of managing his own affairs. Notably, Palesa and Pheteho only baldly deny that
the deceased remained in control of his faculties and functioned normally other
than his speech impediment.
4
[11] According to Nonhlanhla, in and during June 2020, the deceased asked her to
4
[11] According to Nonhlanhla, in and during June 2020, the deceased asked her to
make contact with Grobler to ask for a change of beneficiary document for one of
his policies, which she duly did, having spoken to Grobler’s assistant for this
4 Main Application, AA para 24.1 at 01-132.
7
purpose, and whose confirmatory affidavit is attached to Nonhlanhla’s particulars
in terms of rule 58. The circumstances surrounding this request are that the
deceased spoke to Grobler, who was a trusted confidante of the deceased, and
his broker and financial advisor since 2001, and informed him that he wished to
make certain amendments to the policy. Like his assistant did, Grobler also
deposed to confirmatory affidavits in support of Nonhlanhla’s version, and did so
in both the main application and in the interpleader proceedings.
[12] The third nomination was subsequently executed in and during July 2020 and
accepted by the applicant as such. In regard thereto, Palesa and Pheteho accuse
Nonhlanhla of “...having unduly influenced [the deceased] and changed the
beneficiaries to the living annuity policy...”
5 (The words in square brackets are
mine) Little more is said than this. At the most, they say that:
(a) Nonhlanhla and Grobler “colluded” against Palesa and Pheteho. 6 Why or
how they would do so is not said.
(b) Because Nonhlanhla had access to the deceased’s laptop and cellphone,
that “...leaves doubt as to who actually completed and signed the third
nomination form.”7
(c) Palesa was appointed by the deceased in terms of a Power of Attorney to
do one thing or another. For the third nomination to be valid, it ought to have
been signed by Palesa on the deceased’s behalf.8
(d) They have acted to protect their late father’s wishes.
[13] Despite Palesa and Pheteho’s subsequently appointed attorneys contending, in
and during March 2021, that the deceased “...lacked the physical capacity to sign
any documents since he suffered the stroke...”, 9 Palesa herself applied to be
5 Id at para 15.2. See also Interpleader, 2nd and 3rd Claimants’ Affidavit, para 8.1 at 01-91.
6 Id at para 26.
7 Interpleader, 2nd and 3rd Claimants’ Affidavit, para 8.1 at 01-91.
8 I pause to point out, however, that as a consequence of my findings herein, Palesa was not required to
participate in the execution of the third nomination because the deceased had allegedly executed a
power of attorney in her favour. Nor could someone armed with a power of attorney amend beneficiaries
in terms of the applicable terms and conditions of the policy.
9 Correspondence 30 March 2021, para 2.1 at 01-251.
8
substituted as the executrix in the deceased’s estate based on a will purportedly
executed by the deceased in and during 2016 – if the deceased allegedly lacked
physical capacity to effect the third nomination in July 2020, why did he not lack
such capacity when executing a will in 2016? Furthermore, and having regard to
Palesa and Pheteho’s erstwhile attorneys’ correspondence dated 30 March
2021, their real gripe appears to be the last will and testament purportedly
executed by the deceased in 2019; they contend that that will is invalid and that
Nonhlanhla forged the deceased’s signature thereon. By way of example, they
demanded an undertaking from Nonhlanhla that:
10
“...we request that you confirm and provide us with a written undertaking that no payments
of the deceased Glacier Investment Policy or Living Annuity or any other investment or
policy which Is beneficiary nominated shall be distributed to any beneficiary or heir until
such time as the validity of the Last Will and Testament has been confirm by an expert and
a Court with competent jurisdiction.” (Emphasis added)
[14] It is the 2019 will that is effectively in dispute; not the third nomination as defined
herein. Palesa and Pheteho appear to rely on the alleged forging of the 2019 will
as circumstantial evidence proving that Nonhlanhla, “...Mr Grobler and Marie
Victor [Grobler’s assistant] colluded to fraudulently submit documents which
does not reflect the last wishes of [the deceased].”
11 (The words in square
brackets are mine) Notably, despite indicating that a handwriting expert’s report
would be procured to show that the deceased’s alleged signature on the 2019
will was forged, no such report has been produced by Palesa and Pheteho.
[15] Despite Palesa and Pheteho threatening in July 2021 that they would institute an
urgent application to prohibit Nonhlanhla from attempting to obtain her 34%
share of the death benefits, no such application was ever instituted. Nor did they
share of the death benefits, no such application was ever instituted. Nor did they
approach the court or the Financial Services Board as threatened in July 2021.
[16] What followed was a relatively prolonged exchange of correspondence between
the parties’ respective attorneys – Palesa and Pheteho accusing Nonhlanhla of
10 Id at para 3.
11 Main Application, AA para 35.3 at 01-138.
9
having fraudulently procured her nomination as a beneficiary under the policy,
and Nonhlanhla disputing same.
[17] It is with the above background in mind that I turn to analyse the competing claims
of the claimants in light of rule 58. I should however point out , first, that whilst
Palesa and Pheteho rais ed two material non-joinder points by way of points in
limine in the main application, they did not persist with such points vis-à-vis the
applicant in the interpleader proceedings.
Analysis of Competing Claims
[18] The crisp issue for determination, as I see it, is whether Palesa and Pheteho bona
fide and genuinely dispute the validity of the third nomination, or differently put,
whether their allegations of fraud against Nonhlanhla are such as to raise a real,
genuine and bona fide dispute of fact disentitling Nonhlanhla to the relief sought
or justifying a referral of the matter to oral evidence in terms of rule 6(5)(g) read
with rule 58(6), which is what Ms Bekker, who appeared before me on behalf of
Palesa and Pheteho, submitted is the appropriate order to be made.
[19] I should however say something first about Ms Bekker’s submissions to the effect
that this is not an ordinary motion matter in view of the fact that Rule 58 envisages
the delivery of “particulars” only, which are not required to be clothed in the form
of an affidavit and which do not need to set out the claimants’ competing claims
with the same precision as a pleading.
12 I understood Ms Bekker to disavow the
relief explicitly claimed by Palesa and Pheteho in the interpleader proceedings,
namely that the Court should make an order, in terms of Rule 58(6)(a), that they
were, to the exclusion of Nonhlanhla, entitled to the death benefits of the policy.
Ms Bekker sought to persuade me that Palesa and Pheteho have not completely
and fully advanced their case in these or in the main proceedings and that they
should be permitted to supplement it, either by way of discovery (in the event of
should be permitted to supplement it, either by way of discovery (in the event of
the matter being referred to oral evidence) or by way of a supplementary affidavit.
12 Corlett Drive Estates v Boland Bank Bpk 1979 (1) SA 863 (C) at 867G, approved in Kamfer v Redhot
Haulage (Pty) Ltd 1979 (3) SA 1149 (W) at 1153–4.
10
[20] The problem with the above submissions, as I see it, is that the parties, including
Palesa and Pheteho, elected to advance their claims in these proceedings by
way of affidavit, in which case the normal rules applicable to affidavits should
apply. They also incorporated their respective affidavits from the main application
into their affidavits in the interpleader proceedings. In other words, the parties
have advanced their evidence in respect of the subject matter of these
proceedings in toto, whether by way of the affidavits in the main application or the
affidavits in the interpleader proceedings, or both. Indeed, included in the record
before me is a founding affidavit by Nonhlanhla in the main application, a n
answering affidavit by Palesa and Pheteho therein, and a replying affidavit to
Palesa and Pheteho’s answering affidavit, which Nonhlanhla incorporated into
her affidavit filed in the interpleader proceedings. I thus have before me the three
affidavits that would otherwise have formed part of the record in the main
application. For all intents and purposes, this is an opposed motion by a different
name. I can thi nk of no better a situation wherein a court can “...there and then
adjudicate upon such claim...” as contemplated in rule 58(6)(a). Why else would
rule 58(6)(a) exist?
[21] Despite reference being made in Ms Bekker’s heads of argument to the “fact” that
Palesa and Pheteho intend to cross-examine some or other witness, or that they
are possessed of documents which provide “...clear and unequivocal evidence of
Nonhlanhla’s fraud...”,
13 I do not see any factual basis for these submissions, and
I respectfully disagree with Ms Bekker’s submissions that Palesa and Pheteho’s
affidavits, properly construed, reserve their right to supplement, or disclaim that
the contents thereof are not exhaustive of their evidence in the matter.
[22] I accordingly find that I can determine the matter “here and now” as contemplated
[22] I accordingly find that I can determine the matter “here and now” as contemplated
in Rule 58(6)(a); all of the relevant evidence is before me.
[23] Returning to the issue at the heart of the matter, namely whether Palesa and
Pheteho have raised a real, genuine and bona fide dispute of fact, it is appropriate
to restate certain trite principles of our law pertaining to disputes of fact in motion
13 Ms Bekker’s heads of argument, para 3 at 03-9.
11
proceedings (the parties having elected to place their respective particulars under
rule 58 before court by way of affidavit).14
[24] The general rule when dealing with disputes of fact in motion proceedings is as
set out in Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd,15 where the
court referred to Stellenbosch Farmers’ Winery Ltd (Pty) Ltd v Stellenvale Winery
(Pty) Ltd16 and held as follows:
“... Where there is a dispute as to the facts a final interdict should only be granted in notice
of motion proceedings if the facts as stated by the respondent together with the admitted
facts in the applicant’s affidavits justify such an order...In certain instances the denial by
the Respondent of a fact alleged by the Applicant may not be such as to raise a real,
genuine or bona fide dispute of fact (Room Hire Co (Pty) Ltd v Jeppe Street Mansions
(Pty) Ltd 1949 (3) SA 1155 ( T) at pp 1163-5). If in such a case the respondent has not
availed himself of his right to apply for the deponents concerned to be called for cross
examination under rule 6 (5)(g) of the uniform rules of court and the court is satisfied as to
the inherent credibility of the applicant’s factual averment, it may proceed on the basis of
the correctness thereof and include this fact amongst those upon which it determines
whether the applicant is entitled to the final relief which it seeks.... Moreover, there may be
exceptions to this general rule, as for example where the allegations or denials of the
respondent are so far -fetched or clearly untenable that the court is justified in rejecting
them merely on the papers.”
[25] In Soffiantini v Mould,17 the court held as follows in relation to the determination
of disputes of fact:
“In the case of Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd, 1949 (3) SA
1155 T at 1165 Murray, then AJP, said:
‘A bare denial of the applicant’s material averments cannot be regarded as sufficient to defeat
the applicant’s right to secure relief by motion proceedings in appropriate cases. Enough must
be stated by respondent to enable the Court to conduct a preliminary examination... and to
ascertain whether denials are not fictitious intended merely to delay the hearing.’
14 Both Nonhlanhla, on the one hand, and Palesa and Pheteho, on the other (at least in their affidavit filed
in the interpleader proceedings), seek to have their respective claims to the death benefits of the policy
adjudicated in their favour. They both seek final relief (though in Ms Bekker’s heads of argument, Palesa
and Pheteho seek an order that the matter be referred to oral evidence).
15 1984 (3) SA 623 (A).
16 1957 (4) SA 234 (C) at 235E-G.
17 1956 (4) SA 150 (E) at 154E-H.
12
See also the case of Prinsloo v Shaw, 1938 AD 570.
If by a mere denial in general terms a respondent can defeat or delay an applicant who
comes to Court on motion, then motion proceedings are worthless, for a respondent can
always defeat or delay a petitioner by such a device.
It is necessary to make a robust, common -sense approach to a dispute on motion as
otherwise the effective functioning of the Court can be hamstrung and circumvented by the
most simple and blatant stratagem. The Court must not hesitate to decide an issue of fact
on affidavit merely because it may be difficult to do so. Justice can be defeated or seriously
impeded and delayed by an over-fastidious approach to a dispute raised in affidavits.”
[26] There is another general principle that weighs heavily with me in the present
matter and it is this: the more serious the allegation or its consequences, the
stronger must be the evidence before a court will find the allegation established.18
In view of this fact, and having regard to the further fact that a party wishing to
rely on fraud must not only plead it, but also prove it clearly and distinctly, 19
Palesa and Pheteho are required to clearly and distinctly plead not only the
necessary facta probanda, but also the relevant facta probantia in order to (i)
sustain their claim to the death benefits to the exclusion of Nonhlanhla (ii)
alternatively to raise a genuine and bona fide dispute of fact in relation to
Nonhlanha’s case.
20 It is apposite to recall that fraud is not easily inferred.21
[27] In Mouton v Park 2000 Development 11 (Pty) Ltd,22 it was held that:
“At the same time, it is equally well established that where a dispute of fact is not a ‘real,
genuine or bona fide’ one the Court will be justified in ignoring it and may proceed to find
on the applicant’s version thereof. So too, where the respondent’s version is clearly or
palpably far-fetched or untenable, the Court may take a robust approach and decide the
palpably far-fetched or untenable, the Court may take a robust approach and decide the
matter on the basis of the applicant’s version. As always, in evaluating the contents of the
affidavits the Court must have due regard for the treatment which the respondent has given
18 Gates v Gates i1939 AD 150 at 155; see also National Director of Public Prosecutions v Zuma 2009 (2)
SA 277 (SCA) at [27].
19 Courtney-Clarke v Bassingthwaighte 1991 (1) SA 684 (Nm) at 689F–G.
20 It is trite to state that, in motion proceedings, affidavits serve the dual function of pleadings and evidence
– see in this regard and for example ABSA Bank Ltd v Kernsig 17 (Pty) Ltd 2011 (4) SA 492 (SCA) at
[23].
21 Gilbey Distillers and Vintners (Pty) Ltd v Morris NO 1992 (2) SA 217 (SE) at 226A; Loomcraft Fabrics
CC v Nedbank Ltd 1996 (1) SA 812 (A) at 822G-H.
22 2019 (6) SA 105 (WCC) at 85.
13
to the averments under reply. In this respect a respondent has a duty to engage with the
facts which are put up by the applicant, and to deal with them fully and comprehensively.
Any ‘skimpiness’ and improbabilities in his version may thus count against him.” (Emphasis
added)
[28] Not only do Palesa and Pheteho bear the onus to prove fraud in order to succeed
with their claim; insofar as they seek a referral of the matter to oral evidence, they
are required to show that their allegations of fraud are such as to raise a real,
genuine and bona fide dispute of fact. In this regard, I am particularly interested
in the “...treatment which [they have] given to the averments under reply.”
23 (The
words in square brackets are mine) The averments under reply are Nonhlanhla’s
allegations pertaining to her relationship with the deceased, his mental faculties
at the time of executing the third nomination and the execution thereof itself.
[29] In my view, Palesa and Pheteho have not adequately engaged with or disputed
Nonhlanhla’s case. I agree with Ms Ternent that Palesa and Pheteho’s
allegations are wholly speculative and unsubstantiated, or as she put it in oral
argument, that they merely rely on “....random facts built into a conspiracy.” If I
were to permit such allegations to achieve a further delay of the matter, either by
way of a referral to oral evidence or otherwise, “...the effective functioning of the
court...”, in the words of Price JP, “...can be hamstrung and circumvented by the
most simple and blatant stratagem.”
24 I thus intend on adopting a “...robust,
common-sense approach...”25 to the matter.
[30] It is noteworthy that Palesa and Pheteho do not genuinely or bona fide dispute
that the deceased was perfectly capable of managing his own affairs. There is no
evidence on the papers before me to the effect that the deceased could not
himself have submitted the third nomination electronically, as was done and
himself have submitted the third nomination electronically, as was done and
which was accepted by the applicant. There is thus the submission made, not in
an affidavit, but in counsel’s heads of argument, that the deceased’s laptop was
not in complete working condition since 2019, so “...the deceased would not have
been able to change the beneficiaries to the policy of his own accord working
23 Ibid.
24 Soffiantini (note 17 above) at 154E-H.
25 Ibid.
14
from his own laptop, and required assistance, likely from Nonhlanhla or from Mr.
Grobler.”26 This, I regret to say, is inappropriate both from the point of view that it
is not supported by evidence under oath, but also because it is speculative.27 The
repeated refrain of our courts on this subject is well known; it comes to us from
Caswell v Powell Duffryn Associated Colliers Ltd,28 where Lord Wright remarked
as follows:
“Inference must be carefully distinguished from conjecture or speculation. There can be
no inference unless there are objective facts from which to infer the other facts which it is
sought to establish. In some cases, the other facts can be inferred with as much practical
certainty as if they had been actually observed. In other cases, the inference does not go
beyond reasonable probability. But if there are no positive proved facts from which the
inference can be made, the method of inference fails and what is left is mere speculation
or conjecture.”
[31] There are no positive proved facts from which an inference can be made that
Nonhlanhla somehow masterminded the execution of the third nomination by
taking control of the deceased’s laptop and email account. This is no more than
pure speculation and suspicion on the part of Palesa and Pheteho, i.e., “...random
facts built into a conspiracy.”
[32] It has thus been held that, i f the court is satisfied as to the inherent credibility of
the applicant’s factual averments, it may proceed on the basis of the correctness
thereof and include this fact among those upon which it determines whether the
applicant is entitled to the final relief sought.
29
[33] Whilst I am mindful of the fact that motion proceedings are not designed to
determine probabilities,30 there are certain facts and factors that further militate
26 Ms Bekker’s heads of argument, para 21 at 03-9.
27 A good rule of thumb is for every recordal of fact or factual submission contained in counsel’s heads of
argument to appropriately cross-reference the source. In the case of motion proceedings, the source
would be an affidavit or annexure. In trial matters, the oral evidence on record or some or other document
proved and admitted into evidence would constitute the relevant source. This way, a reader can readily
interrogate and verify a recordal of fact or factual submission contained in heads of argument.
28 [1939] 3 ALL ER 722 (HL) 733E-F.
29 See for example D E van Loggerenberg Erasmus: Superior Court Practice (Jutastat E-Publication) at
RS23, 2024, D1 Rule 6-34 and the authorities referred to in footnote 225 therein.
30 See for example Zuma (note 18 above) at [26].
15
against finding that the relatively bare denials of Palesa and Pheteho create real,
genuine and bona fide disputes of fact. To name only a few:
(a) Nonhlanhla’s version is corroborated by both Grobler and his assistant.
There is no indication that such persons are being untruthful or that they
have reason to be. On the contrary, and by all accounts, Grobler was a
trusted confidante of, and advisor to, the deceased.
(b) Notwithstanding that Palesa and Pheteho proffered criminal charges
against Nonhlanhla (for theft and fraud), there is no indication that the SAPS
have further investigated the matter or that the NPA have decided to
formally charge Nonhlanhla with a criminal offence in relation to the
execution of the third nomination, and this despite the passage of three
years.
(c) Despite their continuous threats to bring the matter to a head by instituting
litigation or by reporting the matter to some or other regulator, Palesa and
Pheteho have failed to do either.
(d) The applicant’s “audit trail” confirms that the documents were emailed to the
deceased’s email address and processed therefrom, resulting in the
applicant accepting the third nomination as being valid.
(e) Despite asserting that the 2019 will was forged and that a handwriting expert
will verify such forgery (to the extent of foreshadowing a report as far back
as July 2021), no report has been produced, nor have Palesa and Pheteho
identified an expert.
(f) Whilst reference is made to the fact that Palesa and Pheteho employed the
services of a computer technician to obtain access to the deceased’s laptop
after his passing, and for purposes of extracting relevant information and
documentation, they have not furnished any such information or
documentation despite obtaining access to the laptop since August 2022.
(g) The deceased was able to and apparently did continue to sign documents,
even in manuscript, such as in respect of the lease at the retirement village.
16
(h) According to Nonhlanhla, she only learned of her nomination as a
beneficiary under the policy in March 2021, when she and Palesa and
Pheteho attended a meeting at Grobler’s offices.
[34] As far as a referral to oral evidence in terms of rule 6(5)(g) is concerned, such an
order is not simply there for the taking. By way of example, if a respondent makes
averments which, if proved, would constitute a defence to the applicant’s claim,
but is unable to produce an affidavit containing allegations which prima facie
establish that defence (I pause to mention that Palesa and Pheteho do not allege
this to be the case, namely that they cannot prima facie establish the fraud by
way of affidavit), the respondent is entitled to invoke subrule 6(5)(g),
31 albeit
that:32
“It would be essential in the situation postulated for the deponent to the respondent's
answering affidavit to set out the import of the evidence which the respondent proposes to
elicit (by way of cross -examination of the applicants' deponents or other persons he
proposes to subpoena) and explain why the evidence is not available. Most importantly,
and this requirement deserves particular emphasis, the deponent would have to satisfy the
court that there are reasonable grounds for believing that the defence would be established.
Such cases will be rare, and a court should be astute to prevent an abuse of its process by
an unscrupulous litigant intent only on delay or a litigant intent on a fishing expedition to
ascertain whether there might be a defence without there being any c redible reason to
believe that there is one.”
[35] Palesa and Pheteho have not satisfied this Court “...that there are reasonable
grounds for believing that [their allegations of fraud will] be established.” (The
words in square brackets are mine)
[36] In all, and having regard to the fact that all of the evidence by all of the claimants
is before me, I am of the view that Nonhlanha’s claim stands to be accepted and
is before me, I am of the view that Nonhlanha’s claim stands to be accepted and
that the claims of Palesa and Pheteho fall to be rejected. The order I intend to
make appears at the end of this judgment.
31 See for example Minister of Land Affairs and Agriculture and Others v D & F Wevell Trust and Others
2008 (2) SA 184 (SCA) at 204E..
32 Id at 205A-B.
17
[37] Insofar as costs are concerned, Nonhlanhla seeks that Palesa and Pheteho pay
costs on an attorney and client scale. Her case in this regard is that there is no
evidence of fraud or unlawfulness on the part of Nonhlanhla whatsoever. Palesa
and Pheteho’s allegations, unsubstantiated as they are, have the effect of
defaming and maligning Nonhlanhla. She further contends that Palesa and
Pheteho’s opposition to the main application, and their participation in the
interpleader proceedings, is vexatious and obstructive. I agree with these
submissions.
[38] On 12 September 2022, and upon receipt of Palesa and Pheteho’s answering
affidavit, Nonhlanhla’s attorneys addressed correspondence to their counterparts
inviting Palesa and Pheteho to withdraw their opposition (the letter is dated 22
August 2022), which they elected not to do.
[39] In Abrahams v RK Komputer SDNBHD and Others,
33 the Court remarked as
follows:
“The first applicant has repeatedly alleged in her affidavits dishonesty on the part of the
third respondent. Thus she alleges that his approach entailed ‘not a bona fide mistake, but
rather a deliberate attempt to obfuscate and avoid the issue at hand'; she describes his
reasoning as entailing 'disingenuously linking' matters, 'contrived and disingenuous . . . he
certainly could not have had an honest belief in his said fi ndings'; and, in reply, she
reiterates that he 'is not being entirely frank with this court'; she strives to infer (through,
as indicated above, the most gossamer speculation) that the third respondent and first
respondent's counsel may have discussed the merits of the matter'; and she alleges that
he 'deliberately ignored' a particular matter. As I have indicated, her counsel (in her
presence) continued to press these conclusions in oral argument on her behalf to the very
end.
I believe that the court in these circumstances is required to mark its particular disfavour
towards an approach which impugns in this way the personal and professional integrity
towards an approach which impugns in this way the personal and professional integrity
of...”
[40] These remarks are particularly apposite in casu. Accusing Nonhlanhla of having
deliberately and fraudulently committed a crime, with no evidence other than
dubious circumstantial evidence and “gossamer speculation”, is deserving of this
33 2009 (4) SA 201 (C) at 211-212.
18
Court’s censure. Litigants cannot hide behind affidavits when accusing others of
serious criminal impropriety.
[41] In any event, at the absolute worst for Nonhlanhla, and at best for Palesa and
Pheteho, they have put Nonhlanhla to the unnecessary trouble and expense of
having to institute the main application and to participate in the interpleader
proceedings on an opposed basis, which expense she should not have to bear.34
I would have ordered them to pay costs on an attorney and client scale on this
basis in any event.
The Applicant’s Costs
[42] It remains to deal with the issue of the applicant’s costs. It seeks an order that its
costs occasioned by the interpleader proceedings, as may be taxed or agreed,
be deducted from the proceeds of the death benefits under the policy after the
competing claims have been determined.
[43] Mr Mathiba, who appeared before me on behalf of the applicant,35 submitted, with
reference to African Life Assurance Society Ltd v van der Nest and Another ,36
that an applicant who was entitled to adopt the procedure under rule 58 is prima
facie entitled to its costs. It is normal practice in such circumstances to release
the applicant from the proceedings and to allow it to deduct its costs from the
proceeds of the disputed property.37
[44] Whilst there is some merit in the claimants’ criticism of the applicant’s institution
of the interpleader proceedings, for it could quite simply have abided the court’s
decision in the main application and thereby avoided the additional costs (to all
concerned) occasioned by the interpleader proceedings, I am satisfied that the
applicant was entitled to institute the interpleader proceedings (it being faced with
adverse claims), and that as a result it ought to be entitled to its costs occasioned
by the interpleader proceedings on Scale A as contemplated in rule 67(3)(A) read
34 See in this regard In re Alluvial Creek Ltd 1929 CPD 532 at 535.
34 See in this regard In re Alluvial Creek Ltd 1929 CPD 532 at 535.
35 The heads of argument having been drawn on behalf of the applicant by Ms L Liebenberg.
36 1971 (3) SA 672 (C) at 675(E).
37 Ibid.
19
with rule 69. I am also satisfied that the applicant is entitled to deduct such costs,
as may be taxed or agreed, from the proceeds of the policy prior to the distribution
thereof to the claimants.
[45] Whilst Ms Ternent implored me to order that the applicant’s costs be deduced
from Palesa and Pheteho’s portion of the death benefits, I am disinclined to make
such an order on the basis that Palesa and Pheteho are not to blame for the
applicant’s election to institute interpleader proceedings, and notwithstanding that
they are the losing parties herein. I accordingly direct that, whilst the applicant’s
costs, on Scale A, may be deducted from the proceeds of the death benefits, they
are to be deducted from such benefits prior to the distribution thereof in the below-
mentioned proportions to the claimants.
Order
[46] In the circumstances, I make the following order:
(a) The first claimant’s claim is accepted.
(b) The second and third claimants’ claim is rejected.
(c) The second and third claimants are ordered, within 7 (seven) days of the
date of service of this order on them, to complete and submit to the
applicant the death claim forms together with certified copies of their identity
documents and proof of their banking details in order for the applicant to
distribute the proceeds of the Glacier Living Annuity policy, no.: 3419942
(“the policy”), of the late Nothofela Albert Motanyane to the claimants.
(d) The second and third claimants are further ordered to comply with any
request by the applicant, within 7 (seven) days of such request being made,
for additional information and documentation in order to give effect to (c)
above and (e) below.
(e) Upon compliance with (c) and (d) above, and after deducting its costs per
(g) below, the applicant is ordered to distribute the proceeds of the policy
to the claimants in the following proportions:
21
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