REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 2023-125901
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
_________________
DATE SIGNATURE
In the matter between:
BOITUMELO MMASEKGOPEDI TSHETLO Applicant
and
PAULINAH TSOMELE First Respondent
THE MASTER OF THE HIGH COURT
JOHANNESBURG
Second Respondent
ESTATE LATE BRENDA TSOMELE Third Respondent
JUDGMENT – LEAVE TO APPEAL
28 AUGUST 2025
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Page 2 of 6
Introduction
[1] On 26 March 2025 I handed down judgment in these proceedings , in which I
ordered that –
a. the Letters of Executorship issued to the applicant on 4 August 2023 for
estate number 018614/2023 remain in full force and effect unless and until
set aside by a court of competent jurisdiction;
b. the first respondent is to pay the applicant’s cost s of this application as
between party and party on scale A.
[2] The first respondent now seeks leave to appeal that judgment.
Grounds
[3] The first respondent seeks leave to appeal the judgment on grounds which I
summarise as follows –
a. the judgment fails to deal with the fact that the Master referred the matter
to court with a specific instruction that the Honourable Court must make a
determination regarding the alleged "lifetime partnership";
b. the judgment fails to deal with the fact that t he first respondent requested
the court a quo in her heads of argument to make a determination on the
alleged "lifetime partnership" of the applicant and the late Brenda Tsomele;
c. the finding that the dispute regarding the eligibility of the applicant to be
appointed as executor of the late Brenda Tsomele's e state as alleged
"lifetime partnership" is not germane to the application;
d. the judgment does not deal with the fact that the essence of the first
respondent’s case relates to the unlawfulness of the a pplicant’s
appointment and the first respondent required that that appointment be set
aside.
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Leave to appeal
[4] Section 17(1)(a) of the Superior Courts Act 10 o f 2013 provides inter alia that
leave to appeal may only be given where the judge concerned is of the opinion
that the appeal would have a reasonable prospect of success or there is some
other compelling reason why the appeal should be heard.
Substantive grounds
[5] The substantive grounds upon which the first respondent relies to appeal the
judgment misunderstand the import of the judgment. The only issues which I
was called upon to decide are those set out in the notice of motion. There was
no counter-application for any other relief made out in the answering papers filed
by the first respondent. The second respondent took no part in the proceedings.
In particular there was no application before me by either the first or second
respondents, that the appointment of the applicant as executor be set aside.
[6] The order sought by the applicant in the notice of motion was to review and set
aside the Master’s decision taken on 21 September 2023 to remove the applicant
as executor of the estate. I found that the Master (second respondent) did not
have the power to make such a decision. That finding is not disputed by the first
respondent in her application for leave to appeal. In the absence of any counter-
application, the decision that the Master did not have the power to remove the
applicant as executor of the estate, had the inevitable consequence that the
applicant is and was not removed is executor of the estate and thus remains the
executor of the estate.
[7] The eligibility of the applicant to be appointed as executor of the late Brenda
Tsomele's estate as alleged "lifetime partnership" was not relevant to the issues
I was called upon to decide. I was thus not called upon to decide and did not
make any decision concerning –
a. the alleged "lifetime partnership" of the applicant and the late Brenda
Tsomele;
Page 4 of 6
b. the dispute regarding the eligibility of the applicant to be appointed as
executor of the late Brenda Tsomele's estate;
c. the unlawfulness of the applicant’s appointment.
[8] In addition the first respondent states that the judgment fails to deal with the fact
that the Master referred the matter to court with a specific instruction that the
Honourable Court must make a determination regarding the alleged "lifetime
partnership". Assuming such an instruction in these circumstances would be
binding on the court (which I doubt), because the Master, as second respondent,
took no part in these proceedings , no order was asked for and no decision on
this issue was called for.
Procedural grounds
[9] The first respondent has pointed out that, in my judgment I referred to the second
respondent as the Master of the High Court, Pretoria. This is, regrettably, a
typographical error. The second respondent was and is the Master of the High
Court, Johannesburg. This appears from the case heading and, as the first
respondent has pointed out, it is the second respondent (Master of the High
Court, Johannesburg) who was served with all notices and documents in the
proceedings. Nothing turns on this point.
[10] The first respondent submits that the court failed to deal with the locus standi of
the applicant as it went to the root of the status and/or locus standi of the
applicant not only to apply for letters of executorship but to launch motion
proceedings in the court a quo. As I have stated above I w as not called upon
to decide the locus standi of the applicant to apply for letters of executorship – I
was only called upon to decide whether the letters of executorship had been
lawfully “recalled and cancelled” by the second respo ndent. The applicant, as
the person named in the letters of executorship, certainly had the locus standi to
Page 5 of 6
apply to this court to challenge whether the actions of the second respondent
were valid or not1.
[11] The first respondent submits the applicant's motion lacked clarity as to whether
she was launching review proceedings in terms of Rule 53 of the Uniform Rules
of Court or in terms of the Promotion of Administration of Justice Act (PAJA) and
seeks dismissal of her application. Although this issue was mentioned by the
first respondent in the proceedings a quo, the first respondent nevertheless
proceeded to respond to the application on the basis of the applicant's grounds
set out in her notice of motion and founding affidavit. In any event, the applicant
was entitled to pursue the relief she sought either in terms of Rule 6 or Rule 532.
While t he applicant did not specifically mention PAJA, on the face of it the
applicant complied with the provisions of that A ct and the first respondent does
not allege any non-compliance that has caused her prejudice.
Conclusion
[12] In my opinion therefore, there is no reasonable prospect that another court may
come to a different conclusion from the conclusion reached in the judgment
referred to in paragraph 1 above.
Costs
[13] There is no reason why the costs should not follow the result.
Order
The application for leave to appeal is dismissed with the first respondent to pay
the applicant’s party and party costs, including counsel, on scale A.
1 In argument on leave to appeal the first respondent mentioned for the first time a “Chief Master
Directive 9 of 2023- Deceased Estate Matters”. That directive came into effect on 3 November
2023 and was thus not in effect when the letters of executorship in issue in these proceedings
were issued; nor when second respondent purported to cancel and recall those letters of
executorship.
2 Jockey Club of South Africa v Forbes [1993] 1 All SA 494 (A) ; Helen Suzman Foundation v
Judicial Service Commission (Trustees for the Time Being of the Basic Rights Foundation of
Judicial Service Commission (Trustees for the Time Being of the Basic Rights Foundation of
South Africa as amicus curiae) 2018 (7) BCLR 763 (CC)
Page 6 of 6
__ ____
A MITCHELL
Acting Judge of the High Court
This judgment is handed down electronically by circulation to the parties or their legal
representatives by email, by uploading it to the electronic file of this matter on
Caselines, and by publication of the judgment to the South African Legal Information
Institute. The date for hand-down is deemed to be 28 August 2025.
HEARD ON: 22 August 2025
DECIDED ON: 28 August 2025
For applicants: Adv YK Ndzima
078 832 5340
Attorney
Khulekani Tshabalala and Associates
28 Klein Street
Lakefield
Suite 6, 1st Floor
010 442 4635
khulekani@lawincorp.co.za
For first respondent: Adv Nelisa Gwele
nngwele@yahoo.co.uk
067 240 9286
Attorney
Mr. Thabang Mathibe
Mathibe Thabang Attorneys
36 First Ave
Northmead
Benoni
010 235 0250
mathibets@mtaattorneys.co.za
For second respondent: No appearance
For Third Respondent: No appearance