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2026
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[2026] ZAGPJHC 130
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Gosai v Absa Bank Limited and Another (2024/131187) [2026] ZAGPJHC 130 (17 February 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No: 2024/131187
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
In
the application between:
SUNIL
GOSAI
Applicant
(in
his capacity as the executor in the estate
of
the late CM MUSGROVE)
and
ABSA
BANK
LIMITED
First
Respondent
MASTER
OF THE HIGH COURT
Second
Respondent
NELSPRUIT,
MPUMALANGA
Neutral
Citation
:
Delivered:
By transmission to
the parties via email and uploading onto Case Lines
the Judgment is
deemed to be delivered.
JUDGMENT
SENYATSI
J:
Introduction
[1]
This is an application in which the Applicant seeks a mandatory
interdict compelling the First Respondent (“Absa”)
to
transfer all monies standing to the credit of the deceased, Corinne
Mary Musgrove, into an estate bank account operated by the
Applicant
in his capacity as executor. The application is opposed by Absa,
which has raised serious and detailed allegations of
fraud against
the Applicant and has also brought a counter application for the
appointment of a curator to investigate the
matter.
[2]
Having considered the papers, including the founding affidavit, the
answering affidavit (which incorporates a detailed
forensic
investigation), the replying affidavit, and the heads of argument
filed by both parties, I am of the view that the application
cannot
succeed. For the reasons that follow, the application is dismissed.
Background
[3]
The deceased, Ms Musgrove, died without any known traceable
relatives. In 2015, one Sorraya Carrem fraudulently procured
her
appointment as executrix and stole approximately R513,000.00 from the
estate. Absa subsequently reimbursed the estate.
[4]
The Applicant, Mr Sunil Gosai, was appointed executor by the Master
of the High Court, Nelspruit, on 16 November 2023.
He subsequently
demanded that Absa transfer the balance held in Ms Musgrove’s
accounts (approximately R2.1 million) to an
estate account. Absa
refused, alleging that its investigation revealed that the Applicant
is attempting to perpetrate a fraud on
the estate.
The
Parties’ Contentions
[5]
The Applicant’s case is essentially twofold: (i) he is the duly
appointed executor; and (ii) in terms of the
Administration of
Estates Act 66 of 1965
, Absa is obliged to comply with his lawful
instructions. He contends that Absa has no legal standing to
challenge his appointment
or to withhold estate funds.
[6]
Absa’s opposition is based on what it describes as overwhelming
evidence that the Applicant’s appointment
is fraudulent. Its
answering affidavit, deposed to by its forensic investigator, Ms Lora
Wagner, sets out numerous contradictions
and improbabilities in the
Applicant’s version. These include:
[6.1]
Contradictory statements by the Applicant regarding his relationship
with Ms Musgrove (at times describing her
as his mother’s
sister, at other times as a friend of his aunt).
[6.2]
The fact that Ms Musgrove’s body was discovered in a state of
decomposition in March 2014, and that she
was buried as a pauper by
the state in July 2014 – whereas the Applicant relies on a
death certificate that records her date
of death as 21 April 2015.
[6.3]
The absence of any credible evidence linking the Applicant to Ms
Musgrove’s residence in Kensington, and
property records
showing that he owns property in Lenasia and has no recorded link to
the Kensington property.
[6.4]
The questionable nature of the will presented by the Applicant,
including that it was signed in Lenasia in February
2014 while Ms
Musgrove was allegedly receiving medical treatment in Johannesburg,
and that it appears in suspiciously good condition
despite its
purported age.
[6.5]
The identity document relied upon by the Applicant (and earlier by
Carrem) shows a coat of arms that was only
introduced in 2000,
whereas the document purports to have been issued in 1998.
[7]
Absa argues that, in light of these serious disputes of fact, the
application ought to be dismissed. It further seeks,
by way of
counter application, the appointment of a curator to investigate
the matter and report back to the court.
Evaluation
[8]
The Applicant’s replying affidavit is strikingly inadequate. It
fails meaningfully to engage with the detailed and
serious
allegations set out in Absa’s answering affidavit. Instead, the
Applicant merely denies the allegations, labels them
as hearsay, and
accuses Absa of racial discrimination without providing any evidence
in support. He does not apply for the referral
of the dispute to oral
evidence or trial.
[9]
In motion proceedings, where there are material disputes of fact that
cannot be resolved on the papers, the court generally
applies the
principles set out in
Plascon Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1]
.
Unless the respondent’s version is so far fetched or
untenable that it can be rejected on the papers, the respondent’s
version must be accepted.
[10]
In the present case, Absa’s version is supported by substantial
documentary and investigative evidence, including
police statements,
property records, and the evidence of independent witnesses. The
Applicant’s version, by contrast, is
replete with
contradictions and is not corroborated by any credible evidence. I
cannot find that Absa’s version is so far fetched
or
untenable that it can be rejected on the papers.
[11]
Moreover, the Applicant’s reliance on the principle
in
Oudekraal
Estates (Pty) Ltd v City of Cape Town
[2]
,
that an administrative act stands until set aside by a court –
is misplaced in these circumstances. As ABSA correctly points
out, a
collateral challenge to the lawfulness of the Applicant’s
demand is permissible, especially where there is prima facie
evidence
of fraud.
[3]
[12]
The Applicant has chosen to proceed by way of motion, despite the
glaring disputes of fact. He did not seek a referral
to oral
evidence. In the circumstances, the application must be determined on
the papers as they stand.
[13]
Having regard to the evidence presented by Absa, I am satisfied that
there are sufficient grounds to doubt the bona fides
of the
Applicant’s appointment. In particular, the contradictions
regarding the date and circumstances of Ms Musgrove’s
death,
the questionable will and identity document, and the lack of any
credible proof of a relationship between the Applicant
and the
deceased, all point to a real possibility of fraud. The basis of this
view is supported by the history of this estate and
the previous
attempts by an alleged fraudster arrested by the police together with
the officials in the Master’s Office in
Mpumalanga High Court.
Importantly, other than the fact that the estate was reported in
Mpumalanga because of the alleged fraud,
there is no basis that the
estate’s file should still continue to be administered in
Mpumalanga when factually, there is
no evidence to suggest that the
deceased had anything to do with that province. The submission on
behalf of the applicant that
the file is kept at that office because
of the what is referred to as the insistence by the Master of the
High Court in Gauteng,
which is the province where the deceased
ordinarily resided raises serious concerns.
[14]
In light of these serious concerns, it would be inappropriate to
grant a mandatory interdict that would effectively hand
over
approximately R2.1 million to the Applicant. The interests of justice
and the protection of the estate require that these
issues be
properly investigated before any distribution is made.
THE
COUNTER APPLICATION
[15]
Absa’s counter application seeks the appointment of a
curator (
pro- amico
) to investigate the issues raised in the
affidavits and report back to the court. This relief is sought in
terms of the court’s
inherent jurisdiction under section 173 of
the Constitution.
[16]
Given the serious and unresolved allegations of fraud, and the fact
that the estate has already been victimised by one
fraudster, I am of
the view that the appointment of a curator is both necessary and
appropriate. The curator will be empowered
to investigate the
validity of the Applicant’s appointment and the will, and to
make recommendations to the court. This will
ensure that the estate
is protected and that the court is able to make an informed decision.
Costs
[17]
Absa seeks a costs
order against the Applicant in his personal capacity. In my view,
this is justified. The Applicant has pursued
this application in the
face of overwhelming evidence casting doubt on his bona fides. His
replying affidavit failed to engage
meaningfully with the allegations
and instead raised unfounded allegations of racism. In these
circumstances, it is appropriate
that he bears the costs personally.
Order
[18]
In the result, I make
the following order:
(a)
The
Applicant’s application is dismissed.
(b)
The Applicant
is ordered to pay the costs of the application, including the costs
of counsel, on the scale as between attorney and
client, such costs
to be paid by him in his personal capacity.
SENYATSI
J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
DATE
APPLICATION HEARD
:
02 February 2026
DATE
JUDGMENT HANDED DOWN
:
17 February 2026
APPEARANCES
Counsel
for the Applicant:
Instructed
by:
Advocate
V Mukwevho
Kganare
Attorneys
Counsel
for the Respondent:
Instructed
by:
Advocate
R Scholtz
Lowndes
Dlamini Attorneys
[1]
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634F-I.
[2]
2004
(6) SA 222
(SCA) at para 27.
[3]
See
Recycling
and Economic Development Initiative of South Africa NPC v Tutestone
(Pty) Ltd
2022
JDR 2088 (WCC) at para 41 and
City
of Tshwane Metropolitan Municipality v Cable City (Pty) Ltd
2010
(3) SA 589
(SCA) at para 13.