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IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Not reportable
Case no: 46/2025
In the matter between:
HERMANUS NICOLAAS BOTHA N O FIRST APPLICANT
FLORIS JOHANNES BEUKES SECOND APPLICANT
and
JURIE HENDRIK WYNAND BEUKES FIRST RESPONDENT
HELENA PIETERSE SECOND
RESPONDENT
ISABELLA MARGARETHA BEUKES THIRD RESPONDENT
Neutral citation: Botha N O and Another v Beukes and Others (46/2025) [2026]
ZAFSHC 278 (17 April 2026)
Coram: NTSHULANA AJ
Heard: 31 July 2025
Delivered: 17 April 2026
Summary: Non-joinder – direct and substantial interest – Master of the High
Court – deceased estate – validity of unsigned will – Administration of Estates Act 66
of 1965 – s 2(3) of the Wills Act 7 of 1953.
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ORDER
1 The point in limine as raised by the first and second respondents on the issue
of the non-joinder of the Master of the High Court succeeds , and the applicants are
directed to join the Master of the High Court as an interested party to these
proceedings.
2 Costs are reserved on this issue in limine.
3 The matter is to be re-enrolled on the opposed roll for argument on the further
issues for determination contained in the notice of motion.
JUDGMENT
Ntshulana AJ
[1] This is an application in which the first applicant, in his capacity as the duly
appointed executor in the estate late of Floris Johannes Beukes Senior (the
deceased), applies for:
(a) An interdict, prohibiting the first and second respondent s from conducting
farming activities on a farm which belongs to the deceased estate, and
(b) Declaratory relief pertaining to the rights which the deceased has bequeathed
to the first and second respondent.
[2] This application is opposed and the first and second respondent s have
applied by way of a counter-application for an order declaring that an unsigned will
and testament of the deceased, be declared to be the deceased's last will and
testament as contemplated in s 2(3) of the Wills Act 7 of 1953 (Wills Act) .
Accordingly, there are two wills before this Court. In their counter application the first
and second respondents are also seeking the following reliefs:
(a) That the time prescribed by rule 6(5) (d)(ii) be extended to allow the first and
second respondents to serve and file their answering affidavits and to condone their
non-compliance with rules.
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(b) That the unsigned will and testament of the deceased, which he has caused
to be drafted by the first applicant and which is in the possession of the first
applicant, be declared to be his last will and testament under estate number
001817/2024 as contemplated in s 2(3) of the Wills Act, as amended.
(c) That Hermanus Nicolaas Botha be ordered to surrender all the relevant
documentation pertaining to the estate of the deceased, including the unsigned will
and testament referred to in paragraph 2 above, to the Master of the High Court,
Bloemfontein, Free State (the Master) , pending the appointment of an executor in
accordance with the unsigned will.
(d) The Master be directed to accept the unsigned will and testament referred to
in paragraph 2 above, as the last will and testament of the deceased for the
purposes of the A dministration of Estates Act 66 of 1965, as amended
(Administration of Estates Act).
(e) The Master be directed to remove the first applicant as the executor of the
estate of the deceased and to appoint the person nominated in the unsigned will and
testament referred to in paragraph 2 above (if any) alternatively, an independent
person be appointed as executor.
(f) The first applicant be ordered to fully account to the Master f or what he has
done in his capacity as executor in the administration of the estate of the deceased
from the date of his appointment to date of this order.
(g) That the applicants be directed to jointly and severally to pay the costs of this
application.
[3] It is convenient for the purpose of this judgment to refer to the relief sought by
the applicants as the main application and to the relief sought by the first and second
respondents as the counter application.
The parties
[4] The first applicant is Hermanus Nicolaas Botha N O, a practicing attorney,
and duly appointed Executor in the estate late Floris Johannes Beukes Senior and in
respect of whom Letters of Executorship has been issued by the Master under estate
respect of whom Letters of Executorship has been issued by the Master under estate
number 001817/2024. The second applicant is Floris Johannes Beukes Junior , who
is the sole heir of the deceased.
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[5] The first respondent is Jurie Hendrik Wynand Beukes , a retiree residing on
the farm Aus, District Frankfort 9830, Free State (Aus), the de facto holder of the
right to occupy a dwelling ex testament o on the farm Aus. The second respondent is
Helena Pieterse, who is the life partner of f irst respondent. The third respondent is
Isabella Beukes, who is married to the first respondent out of community of property.
No relief is sought against the third respondent who was cited as an interested party
from an abundance of caution point of view.
Factual matrix
[6] The deceased passed away on 23 January 2024, having left a will in the care
and custody of the first applicant, his attorney at the time of death. In the will the
testator has bequeathed his fixed property in trust to his two sons Andries Gouws
Beukes, who is now deceased , and the second applicant as beneficiaries. The
estate was duly reported to the Master including the lodge ment of the duly signed
will and testament of the testator and as result the first applicant was appointed
executor to administer the estate.
[7] At paragraph H of the deceased's signed will and testament, the deceased
recorded that:
‘My trustees sal verplig wees om die reg deur my verleen aan Jurie Hendrik Wynand Beukes
Identitiets Nommer: 58[ …] [the first respondent] en Isabel Margaretha Beukes [the t hird
respondent] Identieteits Nommer: 56[…] om 'n huis te bou op my plaas soos uitgewys en dit
te bewoon tot hul afsterwe gestand te doen. Die plaas waarop die huis opger ug word nie
voor hulle afsterwe verkoop word nie.’
The deceased thus sought to confirm in his will and testament that the first and third
respondents had previously acquired a personal servitude which he recorded in his
last will and testament.
[8] The first respondent resides in a portion of the farm and conducts small scale
farming operations consisting of livestock of about 9 cows. The first respondent and
farming operations consisting of livestock of about 9 cows. The first respondent and
his spouse obtained permission from the testator to build a house on the farm Aus
which they occupied. The first and second respondent also raised the issue on non-
joinder of the Master in their papers. I then issued an order that the issue of non-
joinder be first decided before the issue of orders 1 and 2 of the main application is
adjudicated.
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[9] The third respondent does not oppose the main application and actually
deposed to an affidavit in which she confirms that she shall abide by the decision of
the court. The first and second respondent are opposing the main application and
even raise points in limine.
The applicant case
[10] The first applicant argues that he is an attorney and duly appointed as
executor of the deceased e state and therefore has full rights to take control of the
property of the e state. He argues further t hat the personal servitude which had
ostensibly been granted by the deceased to the f irst and third respondents, amounts
to a right of habitation, a right of occupation only and not to conduct small -scale
farming operations on the farm. He submitted f urther that, such personal servitude
shall, if registered, constitute s a limited real right and t hat s 6A of the S ubdivision of
Agricultural Land Act 70 of 1970 determines inter alia that a servitude over
agricultural land may not be registered without ministerial consent unless such
servitude is one of the exceptions listed in the section.
[11] The first applicant argues that as the duly appointed executor, he is vested
with the dominium of the farm and is obliged ex-lege to take into his custody or under
his control all property in the deceased e state. On that basis, t he first applicant
applies for an order that the first and s econd respondents be interdicted and
restrained from performing any farming activities on the farm and to remove their
livestock from the farm and for declaratory relief regarding the first, second and third
applicant’s rights in relation to the farm. The first applicant submits t hat, the farm,
which had always been utili sed as a commercial unit and which was leased out by
the deceased during his lifetime, cannot be released to third parties, whilst the f irst
respondent conducts his small-scale farming operations on the farm.
The respondent's opposition
The respondent's opposition
[12] The third respondent does not oppose the relief sought by the applicants in
the main application and elected to abide by the decision of the court. The first and
second respondents opposes the main application and raises the following points:
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(a) The first and second respondents aver that the application falls desperately
short of meeting the requirements for an interdict, as prayed for and the unassailable
facts that have risen on the papers, which could and should have been foreseen,
render the application incapable of hearing by way of motion proceedings.
(b) The first and second respondents contend that the application is highly
prejudicial as the applicants seek to impair and restrict the r espondents’ rights as
heirs and/or beneficiaries, which restriction would ultimately cripple the r espondents’
ability to earn a livelihood.
(c) The first and second r espondents aver that the signed will dated
27 November 2015 is not the deceased’s final will and testament and point toward
the drafting of a second, unsigned will that was marked for signature by the
deceased prior to his death. The unsigned will should be regarded and accepted by
the Master and the e state should be finali sed in accordance with the provisions of
the unsigned will. The unsigned will properly deals with the inheritances of the first
respondent, second applicant as well as the daughter of the deceased. This is the
essence of the first and second respondents counter claim.
(d) The existence of the second unsigned will is common cause and the will was
ready for signature. The evidence on the papers before this C ourt suggests that the
deceased had every intention of signing it.
(e) The first and second respondents deny that their rights amount to merely
limited tenure. In their counter application, respondents have applied for an order
declaring the unsigned will of the deceased be declared the last will and testament
as contemplated in s 2(3) of the Wills Act and also seek an order for the removal of
first applicant as the executor of the deceased’s Estate.
(f) The deceased caused the second unsigned w ill to be drafted by the f irst
applicant during or about April 2023, which he attempted to sign and, on that basis,
applicant during or about April 2023, which he attempted to sign and, on that basis,
that the unsigned will and testament should be accepted as the deceased’s true last
will and testament.
(g) During or about May 2023, the deceased and the first and second
respondents entered into a partnership. The partnership was established to conduct
cattle farming operations and the death of the deceased did not dissolve such
partnership; they have a right to continue with their farming on the portion of the
forum.
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[13] Other than the counter application, the f irst and second respondents raise
several point s in limine resisting the interdict application and followed by their
ad seriatim response thereafter. The points in limine raised by the f irst and second
respondents are as follows:
(a) The first applicant’s failure to join the Master is fatal because the Master has a
direct and substantial interest in the matter.
(b) The first a pplicant has not brought a substantive application on notice of
motion and supported by affidavit in terms of the rules.
(c) The first and second respondents contend that there are factual disputes and
counterclaims, regarding the alleged factual basis and the specific relief sought by
the applicants. The f irst and second respondents contend further that the case as
pleaded in the applicant’s founding affidavit, it is clear that a factual dispute should or
could have been foreseen, and first applicant’s claim should have been prosecuted
by means of action procedure, instead of application proceedings.
[14] As there were two wills before the court and the f irst and second respondents
were raising certain points in limine , I directed the parties to f irst argue the point in
limine on the non-joinder of the Master, as such would have serious ramifications to
the future conduct of the proceedings. On the 31 July 2025 the parties then argued
only the point in limine of non-joinder and I made the following order:
‘1. The legal point of non-joinder raised by the First and Second Respondent is
separated from the remainder of the disputes between the parties and dealt with in limine.
2. The parties shall file heads of argument on the point of non-joinder as well as costs
on or before 12 August 2025.
3. Judgment in the point in limine regarding the non-joinder of the Master of the High
Court is reserved.’
Point in limine on non-joinder
[15] The first and second respondent argued that the relief sought by the
[15] The first and second respondent argued that the relief sought by the
applicants is highly prejudic ial to them, as the applicants seek to impair and restrict
their rights as heirs and/or beneficiaries drastically , therefore the Master has a direct
and substantial interest in these proceedings because the M aster is responsible for
administration of deceased estates. Further, the Master has many powers when it
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comes to administering deceased estates, including appointing and protecting the
interests of heirs or beneficiaries in deceased estates. They were aware that they
needed to join the Master but failed to do so in the main application.
[16] The respondents submit further t hat it was imperative that the M aster be
joined in these proceedings in order to ensure that this matter is ventilated properly
before this H onourable Court, especially in view of the issue related to the validity
and acceptability of the will and testament of the deceased. The first and second
respondents requested the court to dismiss the main application on this ground
alone or alternatively stay the proceedings until the Master has been joined as a
party to these proceedings. They argue further that the joinder of the Master is
necessary because the Master's rights, duties or functions as defined by legislation
would be affected by the Court's decision in this matter.
[17] The respondents take the view that since these proceedings concern the
interpretation and validity of two wills and a request to declare a subsequent will the
final will of the deceased, the applicants should have foreseen these issues before
bringing the application. This is especially so in view of the letter dated 22 February
2024, in which the respondents' attorneys clearly outline that the respondents
dispute the extent of the rights afforded to them in terms of the signed will . They
further pointed out issues with the administration of the estate, specifically that the
estate includes immovable property, which should vest in the control of the Master
until such time as an executor is appointed in accordance with the provisions of
s 11(1)(a) and (b) of the Administration of Estates Act, and indicated that the second
applicant's conduct at the time was in contravention thereof.
[18] The first and second respondents argue strongly that the above scenario
[18] The first and second respondents argue strongly that the above scenario
should have raised alarm bells that a clear dispute in terms of the administration of
the estate exists and any subsequent legal proceedings would require the joinder of
the Master. The respondents also oppose the assertion by the applicants that the
joinder of the Master is only necessitated by the relief sought in the counterclaim ,
and submit that it holds no water as these issues were raised well before the
applicants decided to approach this Honourable Court.
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[19] The respondents further take the view t hat should the Court declare the
unsigned will the f inal will and testament of the deceased, the Master would be
required to give effect to the administration of the estate in terms of the newly
validated will, a fact which the applicants cannot escape. This ultimately falls within
the purview of s 2(3) of the Wills Act which states that should the court be satisfied
that a document executed by the deceased was intended to be his or her will, the
court shall order the Master to accept that document. That this scenario alone
renders the Master's joinder essential as the Master would then be called upon to
administer the estate in terms of the newly validated will.
[20] The applicant's counsel conceded that the relief in the counter claim
necessitated joinder of the Master , however, suggested that it falls on the
respondents to effect such joinder. T his is incompatible with facts before this C ourt,
especially in light of paragraph 7.3 of the founding affidavit, read with the
respondents' letter dated 22 February 2024. T he applicants were unwilling to agree
to a joinder of the Master which would have expedited the process and been more
cost effective, must be considered. In light of this argument, the respondents request
this Honourable Court to uphold the point in limine of non- joinder and dismiss the
application with costs alternatively to stay the proceedings in order for the applicants
to join the Master by in terms of rule 15 and for the applicants to bear the costs
occasioned by the postponement to effect the joinder.
[21] The applicants argued strongly that there was no need to join the Master in
the application because the Master has no direct and substantial interests in the
matter and referred the Court to several previous decisions in support of its
contention.
Findings
[22] As a point of law, it is to be noted that a person has a direct and substantial
Findings
[22] As a point of law, it is to be noted that a person has a direct and substantial
interest in an order that is sought in proceedings if the order would directly affect
such a person’s rights or interests. Such interests will be prejudicially affected by the
ultimate judgment affecting that person’s rights or interests, having been given
without affording that person an opportunity to be heard. One of the most
fundamental principles of our legal system, as a general rule, is that no court may
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make an order against anyone without giving that person the opportunity to be
heard.
[23] There are two tests in determining whether a third party has a direct and
substantial interest in the outcome of litigation:
(a) The first is to consider whether the third party would have locus standi to
claim relief concerning the same subject matter;
(b) The second is to examine whether a situation could arise in which, because
the third party had not been joined, any order the court might make would not be
res judicata against him, entitling him to approach the courts again concerning the
same subject matter and possibly obtain an order irreconcilable with the order made
in the first instance.
See: Snyders and Others v De Jager (Joinder) 2017 (5) SA 405 (CC) paras 6-10.
[24] In the case of Minister of Public Service and Administration and Another v
Public Servants Association and Others 2018 BLLR 7 (LAC) para 18, it was
confirmed that the best proof of a direct and substantial interest is that the order, if
granted, cannot be given effect to without the party seeking joinder being subject to
the order of court. In my view, the facts of this case involve the Master centrally in
these proceedings. If any order is granted in this matter, i t cannot be given effect to
without the party seeking to be joined being subject to the o rder of the court. In light
hereof, the Master ought to have been joined as a party to the proceedings at the
outset taking into regard the powers and/or duties of the Master in terms of the
Administration of Estate Act.
[25] One of the factual disputes as raised by the second respondent is the issue of
the second unsigned will, the existence of which appears to be common cause. The
first and second respondents in their counter-claim argue that the deceased made or
attempted several times to sign or arranged to sign the second or unsigned will, but
the first applicant frustrated or delayed the process until the deceased passed away.
the first applicant frustrated or delayed the process until the deceased passed away.
This is one of the factual disputes which intimately requires the Master to be part of
these proceedings in order to assist the court in adjudicating this matter. I am unable
to conceive or conclude why the Master of the High Court was not joined, especially
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in a matter such as this , where there is allegedly two wills , before the court. In my
view it is of utmost importance that the Master be joined in these proceedings.
[26] I am satisfied that the law is clear that the domain of administrative powers
vests in the hands of the applicant but the allegation of a second will and its
ramifications properly needs to be ventilated, otherwise the rights of all concerned
could be infringed and the Master is thus central to this. It is trite that a party with
direct and substantial interest in the matter and any potential relief to be granted,
ought to be joined to the proceedings in question.
[27] In City of Johannesburg and Others v South African Local Authorities Pension
Fund and Others [2015] ZASCA 4; [2015] JOL 32956 (SCA) para 9 (City of
Johannesburg), Brand JA held, inter alia, that a court must refrain from deciding a
dispute unless and until all persons who have a direct and substantial interest in both
the subject matter and outcome of the litigation have been joined as parties. Given
that the judgment will inevitably bind the Master, it has a direct and substantial
interest in the matte r. This court cannot consider and/or entertain this matter until
such time all interested parties are joined as p arties. This is especially so when
consideration is given to the fact that non-joinder is a dilatory plea, in order to avoid
prejudice and/or
the situation as occurred in City of Johannesburg, the practical solution would thus
be to join the Master before any other issue is determined by this C ourt. This will
cure all other issues and judgment will be binding to all parties.
[28] The legal importance of joinder should not be mistaken with service of more
papers to that particular party. Joinder has a separate legal consequence in that it
finds that particular party by the outcome or judgment of the particular proceedings.
The Master is central to the administration of the e state and especially
The Master is central to the administration of the e state and especially
implementation of the order and its interpretation. Consequently, I find that the
Master has a direct and substantial interest in the matter and therefore must be
joined as a party to these proceedings.
[29] In the result, the following order is made:
1 The point in limine as raised by the first and second respondents on the issue
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of non- joinder of the Master of the High Court succeeds and the applicants are
directed to join the Master of the High Court as an interested party to these
proceedings.
2 Costs are reserved on this issue in limine.
3 The matter is to be re-enrolled on the opposed roll for argument on the further
issues for determination contained in the notice of motion.
_______________________
X NTSHULANA
ACTING JUDGE OF THE HIGH COURT
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Appearances
For the applicants: R van der Merwe
Instructed by: Charl van der Merwe Attorneys,
Johannesburg
c/o Badenhorst Attorneys,
Bloemfontein.
For the first and second respondents S Viljoen
Instructed by: Pienaar Kemp Attorneys,
Pretoria
c/o Diedericks Verster Attorneys,
Bloemfontein
For the third respondent: No appearance.