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2026
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[2026] ZAGPJHC 259
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Dhludhlu and Another v Lekukametse (Leave to Appeal) (020919/2022) [2026] ZAGPJHC 259 (12 March 2026)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
JOHANNESBURG)
Case
Number: 020919/2022
(1)
REPORTABLE:
NO
(2)
OF INTREST TO OTHER JUDGES:
NO
(3)
REVISED:
NO
ELLIE
MASESI DHLUDHLU
FIRST APPLICANT
ZAF
KHAN ATTORNEYS
SECOND APPLICANT
AND
BRITTANIA
LEKUKAMETSE
RESPONDENT
JUDGMENT
(LEAVE TO APPEAL)
Introduction
1.
This is an application
for leave to appeal in terms of
Section 17
of the
Superior Courts Act
10 of 2013
.
2.
On the 31st of January
2025, I handed down judgment in favour of the Respondent, Mrs
Brittania Lehukametse Radebe and ordered that
Ms Ellie Masesi
Dhludhlu be removed as executrix testamentary in the estate of the
late Titus Mandlakayise Radebe. I further
made an order that
the attorneys firm of Zaf Khan repay the amount of R450 000 to the
estate of the late Titus Mandlakayise Radebe
and further that the
first and third respondents pay costs of the application on scale C.
3.
At the time that the
application for leave to appeal was served and filed in February
2025, I had already taken retirement as a
permanent judge. This
application was only brought to my attention during my stint as
acting judge in the first term of 2026,
hence the delay.
Background facts
4.
The background facts
leading up to the application have been set out chronologically in my
judgment from paragraphs 2 to 48.
I do not find it necessary to
traverse same.
5.
It is common cause that
Mr Brittania Lehukametse Radebe and the deceased were married in
community of property, which marriage was
still in existence at the
time of the death of her husband, the late Titus Mandlakayise
Radebe.
6.
It is also common cause
and not in dispute that at the time of the death of the deceased, he
had been living with the first applicant
for a number of years as
husband and wife, out of which relationship a child was born.
7.
The deceased, unbeknown
to his lawful wife, executed a will in which he not only appointed
Ellie Dhludhlu as executrix, but also
bequeathed his estate to her
and their son.
The application for
removal of Ellie Dhludhlu as executrix testamentary
8.
The basis for removal
of the testamentary executrix is that she has, on numerous occasions,
despite being requested, failed to comply
with queries from the
Office of the Master. This is evident from the numerous letters
that I have made reference to in my
judgment. The final nail is
when the Master in his report dated the 3rd of October 2024, made
reference to non-compliance
by the executrix.
9.
That report was
referred to her legal representatives in a directive that this Court
issued, calling upon the applicant to comment
thereon. Still, no
response was received. Counsel for the executrix, in addressing
this Court, informed the Court that
he was not aware of that
directive and yet proceeded to blame this Court for entering into
evidence contents of that report without
allowing the applicant an
opportunity to adduce evidence to the contrary. I reject this
unfounded conclusion with the contempt
it deserves.
The findings
against the third respondent
10.
The deceased informed
his lawful wife that he had paid an amount of R450 000.00 to Zaf
Khan Attorneys as per their settlement.
That amount was paid to
the attorneys on the 11th of February 2016. It is therefore
strange that the following day, being
the 12th of February 2016, he
goes to Johannesburg to sign an acknowledgment debt for the same
amount.
The grounds of
appeal
11.
The applicant's grounds
of appeal are extensive and may be summarised into the following
categories, which are as follows:
11.1.
Firstly, that the Court
erred in allowing a report filed by the Master on the 3rd of October
2024, to be entered into evidence without
having given the
respondents an opportunity to adduce evidence to the contrary.
11.2.
Secondly, that the
Court erred in finding that the executrix failed to comply with the
queries raised by the Master.
11.3.
Lastly, that the Court
erred in finding that the third respondent, Mr Zaf Khan had to pay
the amount of R450 000 to the estate.
The legal framework
12.
Section 17(1)(a) of the
Superior Court Act 10 of 2013 provides that leave to appeal may only
be granted where the judge or judges
concerned are of the opinion on
that:
i.
the appeal would have a
reasonable prospect of success;
ii.
there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration.”
13.
Bertelsmann J in the
matter of
Mont
Chevaux Trust (IT 2012/28) v Tina Goosen and 18 Others
(LCC14R/2014)
dated 3 November 2014, held as follows:
“
It
is clear that the threshold for granting leave to appeal against a
judgment of the High Court has been raised in the new Act.
The
former test, whether leave to appeal should be granted, was a
reasonable prospect that another Court might come to a different
conclusion. The use of the word ‘would’ in the new
statute indicates a measure of certainty that another Court
will
differ from the Court whose judgment is sought to be appealed
against.”
14.
The decision referred
to above has been cited in many judgments with approval, more
specifically by the SCA in
Notshokovou
v S
(157/17)
[2016]
ZASCA 112
(7 September 2016) and
MEC
for Health, Eastern Cape v Mkhita and Another
(1221/15)
[2016] ZASCA 176
(25 November 2016).
15.
It is therefore
incumbent on the applicant to satisfy this Court that there are
reasonable prospects that the appeal would succeed
or that there are
compelling reasons why the appeal should be heard.
Evaluation
16.
I have earlier in this
judgment already dealt with the strong and uncontested evidence
against the applicant, namely that she failed
to respond to the
numerous queries raised by the Master and thus made herself guilty of
failing to meet the requirements of the
Act in executing her duties
as an executor.
17.
Secondly, I have
included in my main judgment, and in this one also that the payment
of R450 000.00 to Zaf Khan was made prior
to the execution of
the so-called acknowledgement of debt, which supports evidence of
Mrs. Radebe that the deceased had called
her and told her that he
made payment of R450 000.00 to settle her half share in the
estate.
18.
The applicants have, in
my view, failed to demonstrate that there are prospects of the appeal
succeeding before another Court.
The threshold stated in
Section 17(1)(a)(i)
of the
Superior Courts Act has
not been met.
In the result, I make the following order.
ORDER
1.
The application for
leave to appeal is dismissed.
2.
There is no order to
costs as the application was not opposed.
MAKUME
J
JUDGE
OF THE HIGH COURT
JOHANNESBURG
Appearance
For
the Plaintiff: Adv Coleman
For
Defendant: M L Mateme Inc