THE
HIGH COURT OF SWAZILAND
THOKOZILE
DLAMINI
Applicant
And
MASTER
OF THE HIGH COURT
1st
Respondent
MANENE
THWALA N.O.
2nd
Respondent
THE
ATTORNEY GENERAL
3rd
Respondent
Civil
Case No. 2617/2002
Coram S.B.
MAPHALALA - J
For
the Applicant MR. C J. LITTLER
For
the 1st Respondent IN ABSENTIA
For
the 2nd Respondent MR. M. THWALA
For
the 3rd Respondent IN ABSENTIA
JUDGMENT
(19/09/2002)
2
The
Application
The
applicant brought this application as one of urgency. The urgency lay
in the subject matter of the dispute which has arisen. The dispute is
between the applicant on the one hand and the second respondent on
the other. It concerns the estate of the late Gilbert Fanukwente
Dlamini. I will refer to him as the testator. The 1st and 3rd
respondents are cited in these proceedings in their nominal
capacities and they did not file any papers either way.
The
applicant is applying for an order in the following terms:
1. That
the above Honourable Court dispense with normal and usual
requirements of the Rules of the above Honourable Court relating to
service of process and notices and that the matter be heard on an
ex-parte basis as a matter of urgency.
2. That
a Rule Nisi do hereby issue calling upon the respondents to show
cause on a date and time to be fixed by the Honourable Court why the
following orders should not be made final;
3. That
the letters of administration granted in favour of the 2nd respondent
in the estate of the Late Gilbert Fanukwente Dlamini, Masters
Reference No. E.M. 364/2000 be withdrawn and/or set aside and/or
declared of no force and effect pending the final determination of an
action being instituted by the applicant declaring the Will of the
Late Gilbert Fanukwente Dlamini to be invalid and of no force and
effect.
4. That
the 2nd respondent surrenders the said letter of administration to
the Master of the High Court;
5. That
the 2nd respondent and anyone acting under his instructions in the
administration of the Estate of the Late Gilbert Fanukwente Dlamini
be directed to place before the court a full account of all steps
taken in the administration of the estate and any assets in the
estate of which he or they have gained control.
6. That
the 2nd respondent or anyone acting under his instructions in the
administration of the estate of the Gilbert Fanukwente Dlamini be
interdicted and restrained from taking any further steps instituted
by the applicant to determine the validity or otherwise of the Will
of the late Gilbert F. Dlamini dated the 8th May 2000.
7. That
the Master of the High Court be and is hereby interdicted and
restrained from allowing and/or permitting any further action to be
taken in respect of the administration of the above estate by the 2nd
respondent.
8. That
the above honourable court appoint Sifiso Sibande of attorneys
Maphanga, Howe, Masuku and Nsibande as curator to look after the
assets and interests of the estate pending
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the
finalization of both this application and the action referred to in
paragraph 2 and 5 above.
9. Directing
the curator to forthwith release sufficient funds to applicant from
her half (1/2) share of the joint estate for purposes of paying her
medical expenses.
10. That
order 2, 3, 4, 5, 6 and 7 above operate with immediate effect as an
interim order pending the finalization of the matter.
11.
That this honourable court give directions as to the mode of service
of the summons upon the numerous persons and institutions named in
the disputed Will whose addresses and legal capacity does not appear
ex facie the Will;
a) that
the respondent pay the costs of this application in the event that it
is opposed;
b) Further/or
alternative relief.
At
the commencement of arguments before me paragraph 8 was amended with
the consent of the 2nd respondent to read:
"That
the above honourable court appoint Sifiso Nsibandze of attorneys
Maphanga, Howe, Masuku , Nsibandze or any other suitable person as
curator to look after the assets and interest of the estate pending
the finalization of both this application and the action referred to
in paragraph 2 and 5 above".
The
application is based on the founding affidavit of the applicant
herself supported by that of one Ncane Mary Simelane who was also
married to the testator in terms of Swazi law and custom, that of one
Elliot Ngozo who is traditional healer who treated the testator
before his death; and the supporting affidavit of one Lungile Dlamini
who was employed at the Mbabane Government Hospital as Staff Nurse
and was one of the witnesses in the disputed Will. Her supporting
affidavit is confirmed by that of one Thembi Dlamini who was also a
nurse at the Mbabane Government Hospital and also witnessed the
signing of a document which had been prepared by attorneys from
Manzini on behalf of the testator. These affidavits are accompanied
by pertinent annexures, viz "TED1" being marriage
certificate of the marriage between the applicant and testator;
"TED2" being letters of administration appointing the
second respondent as executor testamentary; "TED3" being
the last will and testament of the testator, "TED4" being a
letter from the Deputy Master of the High Court to the executor (2nd
respondent) dated the 10th July 2002, making a number of observations
about the performance of the 2nd respondent in the liquidation
process of the estate;
4
and
annexure "TED5" being a letter from a doctor confirming
that the applicant suffers from hypertension, diabetes, mellitus and
osteo-arthritis. She is on medication for these chronic conditions,
which cost about E900-00 a month.
The
2nd respondent joined issue with the applicant by filing a Notice of
Intention to Oppose and thereafter his answering affidavit. He also
annexed a Notice of Withdrawal of the counter application by
applicant's attorney in Case No. 1254/2001 which features in his
answer to the applicant's claim.
The
applicant then filed her replying affidavit together with annexure
"TED6" being a letter from the Deputy Master of the High
Court to one Miss Duduzile Dlamini dated the 27th August 2002
authorizing attorney Q.M. Mabuza to deduct a sum of E24, 954-84 from
their trust account payable in cheque form to Duduzile Dlamini so as
to enable her to prepare for the cleansing ceremony of the testator
scheduled to take place on the 13th September 2002.
The
applicant further moved a motion to strike out a certain paragraph of
the 2nd respondent's answering affidavit. The motion seeks to strike
out the entire paragraph 2 of the 2nd respondent's answering
affidavit on the following grounds:
1. That
the allegations contained therein are completely irrelevant in as
much as they have
absolutely
nothing to do with the issue which has to be tried by the court
namely:
a) whether
or not the potential invalidity of the contested Will justifies the
granting of the interim orders prayed for; and
b) whether
if the facts deposed to by the applicant and her witnesses justify a
finding that the Will is potentially invalid and are sufficient to
render the matter fit for a full-blown trial.
2. The
matters raised in this paragraph are irrelevant for the further
reason that the counter-application in which applicant questioned the
validity of the Will in the case number quoted has been withdrawn and
is no longer before the court.
3. Lastly
the contents of the paragraph objected to are irrelevant, prejudicial
and embarrassing in as much as they relate to the cancellation of a
Deed of Transfer and any evidence led in relation to it would be
inadmissible as irrelevant to the issue for decision in the present
case before the court namely whether or not the Will is valid.
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When
the matter came before me on the 10th instant it was agreed that the
motion to strike out would be argued first and then the main
application on the merits. I heard arguments on both in that order
and reserved my judgment.
The
History of the matter.
The
brief history of the matter is that the applicant is the testator's
wife married by civil rites in community of property. The testator
had other two wives who he married in terms of Swazi law and custom.
The second respondent was appointed executor testamentary in the
testator's deceased estate. The testator made his last Will and
testament on the 8th May 2000 where he set up a trust and appointed
the 2nd respondent as the executor of the Will. Incidentally the 2nd
respondent facilitated as legal advisor in the drawing of the Will
and the signing thereafter. It is common cause that the testator
signed this Will at the Mbabane Government Hospital where he was a
patient with a chronic and debilitating illness which ultimately
claimed his life in South Africa shortly thereafter.
The
testator for most of his life was a civil servant who was retired and
pensioned during or about 1990 whilst employed as a Deputy Secretary
in the Ministry of Works Power and Telecommunications. Shortly after
his retirement during or about November 1991, he fell seriously ill.
The nature of his illness was mental affliction. It is alleged by the
applicant that during his mental illness the testator became
extremely aggressive and violet and he withdrew from his bank
virtually all his life savings including the money he had received as
his pension and terminal benefits. What remains as the major asset of
the estate and the sole source income (rental) of deceased is Lot No.
1591 Extension 12 Mbabane which is let out for rent at about E3,
000-00 per month. This major asset was not mentioned in the Will but
other assets which applicant described as absurd as they do not
exist.
The
applicant challenges the validity of this Will on two grounds.
Firstly, that the testator was so inflicted with mental illness that
he was completely irrational and was not in his right mind. Secondly,
applicant claims that the last Will and testament of the deceased,
was not executed in terms of the Wills Act No. 12 of 1955,
specifically Section 2 (ii) and (iii).
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The
applicant asserts that the purpose of this application is:
a) To
have the appointment of the 2nd respondent as executor suspended and
that Letters of Administration surrendered to the Master and declared
of no legal force and effect pending the final determination of an
action being instituted by the applicant for an order declaring the
Will dated 8th May 2000, to be invalid and revoking the Letters of
Administration.
b) To
obtain an interim order in terms of which a curator is appointed to
take control of the estate assets for purposes of safe guarding them
for purposes of advancing applicant funds to pay her medical expenses
and general maintenance and support.
The
applicant is now wheelchair bound and she desperately requires
financial assistance.
The
Applicant's Submissions.
Mr.
Littler filed Heads of Arguments in this matter and his submissions
followed the format outlined therein. In support of the motion to
strike out paragraph 2 of the 2nd respondent's answering affidavit he
contended that the matters raised in this paragraph are irrelevant in
that the counter application in which applicant questioned the
validity of the Will in Case No. 2617/2002 has been withdrawn and is
no longer before the court.
On
the application itself it is contended on behalf of the applicant
that the facts set out in support the applicants case clearly
establish: a) a clear right in favour of the applicant to the interim
relief sought; b) an injury actually committed by the 2nd respondent
by his refusal to pay her any maintenance and her medical expenses
resulting in her being permanently being confined to a wheel-chair
and an injury or loss reasonably apprehended viz the unlawful release
of estate money to people who are not entitled to it for unlawful
purposes and resulting in irretrievable loss. 2nd respondent has
failed to account despite two years having lapsed since the issue of
Letters of Administration. Applicant has established a well grounded
apprehension of
7
irreparable
loss in the event the interdict is not granted; and c) the applicant
has no other remedies in as much as earlier approaches to the Master
of the High Court have produced no solution to her problem. To
buttress this point Mr. Littler referred the court to the celebrated
case of Setlogelo vs Setlongelo 1914 A.D. 221. The second respondent
does not dispute any of the above allegations in his answering
affidavit.
On
the question of urgency it is contended on behalf of the applicant
that it is evidenced from the papers viz i) applicant's urgent need
for medication and maintenance, she is now confined to a wheelchair
and her condition is deterioting by the day; ii) the unlawful release
of money to unauthorised people, and iii) the actual release of the
money on the day the application was served upon the respondents.
On
the validity of the Will it was contended that the deceased's mental
capacity is clearly outlined vis a vis his incapacity to comprehend
what he was actually doing at the time of the preparation and
execution of the Will. Further, the complete non-compliance with
Section 3 of the Wills Act No. 12 of 1955 should be re-visited,
particularly as it a peremptory provision. In this regard the court
was referred to the case of Dludlu vs Dludlu 1982 - 1986 (1) S.L.R.
at 228. Reference was also made to the case of James, Gerald Anthony
Nelsen vs Master of the High Court and others by Sapire CJ delivered
on the 14th June 2001, and the Court of Appeal case of Gabriel Keyser
vs Gerald James Appeal Case No. 32/2001 (unreported).
The
2nd Respondent's Submissions.
Mr.
Thwala also filed Heads of Arguments. On the issue of the motion to
strike out paragraph 2 of his answering affidavit he contended that
the said paragraph was inserted there purely to lay out the history
of the matter and no prejudice whatsoever is visited on the applicant
by its existence.
On
the main application Mr. Thwala attacked the procedure which has been
adopted by the applicant in casu. The gravamen of his argument is
that it is generally accepted that proceedings to set aside a Will
must be brought by way of action. To support this proposition he
cited the cases of Steenkamp vs Steenkamp 1915 C.P.D. 176 at 177 and
the case of Van Der Byl and Huupt vs Scholtz (1897) 14 S.C 483.
8
It
was argued that this is more so in a case such as the present one
where there is a
clear
dispute of fact.
The
onus of proof lies with applicant who attacks a Will which is
complete and regular on its face, and by choosing to proceed by way
of motion she is assuming to herself the risk of all facts being put
to issue thereby lending herself in an unenviable position of not
being able to discharge the onus laid on her by law. (see Kunz vs
Swart 1924 A,D. 618 and also Tregea and another vs Godart and another
1939 A.D, 16). The presumption is that in case of doubt it ought to
be held in favour of a Will, if ex facie it appears to have been duly
executed, so that the one who alleges that it has not been properly
executed or made according to law must prove that per Kotze JA in
Kunz vs Swart (supra) at page 673.
Courts
are enjoined to exercise extreme caution when asked to set aside a
Will which has been duly registered with and accepted by the Master
of the High Court and has been acted upon by those concerned. Clear
evidence of invalidity must be presented to court otherwise the law
states that courts must uphold the validity of the instrument
embodying the last wishes of a deceased person (see Brink and another
vs Brink and another 1927 C.P.D. 214), In casu, so the argument goes
this court will not be able to decide the present case on the papers
as filed of record. Clearly viva voce evidence must be led to test
the veracity of each witness. In order to achieve that the court has
a discretion either to order that such evidence be led or it may
dismiss the application and leave applicant to proceed by way of
action if so advised.
All
in all Mr. Thwala, contended that this application is inappropriate
and ought to be dismissed with costs.
These
are the issues before the court. There are essentially three issues
for determination in this case. Firstly, the motion to strike out
paragraph 2 of the 2n respondent's answering affidavit. Secondly,
whether the procedure adopted in the present case is appropriate, and
if so, thirdly, whether the applicant has satisfied the requirements
for an interim interdict as per the dicta in Setlogelo vs Setlogelo
(supra).
9
I
shall proceed to consider these questions ad seriatim.
1.
The motion to strike out
The
paragraph which is sought to be struck out by the applicant reads in
extenso as follows:
2.1 The
issues being canvassed by applicant are no fresh matter. This
honourable court has previously been seized with this matter under
Case No. 1254/2001 wherein, I sought:
i) The
cancellation of Deed of Transfer No. 231/2000;
ii) Costs
of suit.
2.2 The
said Deed is in respect of Portion 101 of Farm 50 and it passes title
thereof from the applicant to one Nhlanhla Mdluli. The borne of
contention being that applicant acted mala fide in causing Portion
101 to be transferred from the estate (which at the time of transfer,
i.e. 24th May 2000, was the legal owner of the property).
2.3 This
property formed part of the assets of the estate in terms of
deceased's will.
2.4 Applicant
vigorously opposed this application and denied that deceased had
anything to do with Portion 101, this is despite the fact the
elsewhere in her papers she asserts that her and deceased were
married in community of property. As to what became of deceased's
half share in the said Portion when she allegedly disposed of it a
mere 5 days after his death, is not clear.
2.5 This
application was to have heard simultaneously with the counter
application that was filed by applicant under the same case number,
in which counter application applicant claimed that the Last Will and
Testament of deceased was invalid on the basis that the testator
lacked the necessary mental capacity at the time when he purportedly
executed the Will. That counter application now stands withdrawn as
per the Notice of Withdrawal a copy of which is annexed.
2.6 This
latest twist has greatly prejudiced 2nd respondent because applicant,
though still relying on the same witnesses as before, has changed the
basis of the relief sought. It would appear that in attacking the
validity of the Will it is not clear to applicant whether it is
invalid on the basis of a lack of mental capacity of the testator or
by virtue of the non-compliance with the required formalities of the
Will's Act.
2.7 While
applicant is trying to hazard a guess as to the correct basis of
impeaching the Will, the process of winding-up the estate has been
harm strung.
The
operative rule being Rule 23 of the High Court Rules reads as
follows:
"Exceptions
and Applications to Strike out.
10
23
(1) Where any pleading is vague and embarrassing or lacks averments
which are necessary to sustain an action of defence, as the case may
be, the opposing party may, within a period allowed for filing any
subsequent pleading, deliver an exception thereto and may set it down
for hearing in terms of Rule 6 (14):
Provided
that where a party intends to take an exception that a pleading is
vague and embarrassing he shall within the period allowed under this
sub-rule by notice afford his opponent an opportunity of removing the
cause of complaint within fourteen days provided further that the
party excepting shall within seven days from the date on which a
reply to such notice is received or from the date on which such reply
is due deliver his exception."
I
have considered the points raised for and against the motion. My
view, after examining the offending paragraph is that it ought to be
struck out. This paragraph is irrelevant for the reason that the
counter-application in which the applicant questioned the validity of
the Will in Case No. 2617/2002 has been withdrawn and is no longer
before court. Further, the contents of the paragraph relate to the
cancellation of a deed of transfer and any evidence led in relation
to it would be inadmissible as irrelevant to the issue for decision
in the present case before the court namely whether or not the Will
is valid. As much as it is sometimes useful to trace the history of
the matter but caution should be exercised to reflect relevant
matters lest the issues get clouded by irrelevant facts.
For
the afore-going reason I hold that paragraph 2 of the 2nd
respondent's answering affidavit ought to be struck out.
2. Whether
proper procedure have been adopted.
I
have considered all points in this matter and it appears to me that
the present application is an interdict pendente lite and thus a
discretionary remedy. The exercise of this discretion ordinarily
turns on a balance of convenience. In casu the court is not called
upon to determine the merits or demerits of the Will but to secure
the status quo ante until the merits are heard on trial. I agree in
toto with the submissions made by Mr. Littler that this case is at
all fours with the case by Sapire CJ in James Gerald Anthony Nelsen
vs Master of the High Court and others (supra) where applicant in
11
that
case brought an application as one of urgency. The applicant prayed
for an interim relief the effect was that the court to suspend the
administration of the estate pending the determination as to which
two testamentary writing was a valid last Will and Testament of the
testatrix therein. The application was replete with disputes of fact,
however, the learned Chief Justice allowed the leading of viva voce
evidence from witnesses. The learned Chief Justice proceeded with the
matter and declared one of the Wills invalid. The matter was taken up
on appeal where it appeared as Gabriel Gery Cornells Keyser vs Gerald
Anthony Nelsen James and other Appeal Case No. 32/2001 where the
Appeal Court embraced the findings a quo and dismissed the appeal
with costs.
Mr.
Thwala tried to distinguish the above case with the present case but
I am not persuaded by his submissions. In that case the question was
an invalidity or other wise of two Wills which application proceeded
by way of motion proceedings up to the appeal court.
For
the above cited reason I come to the conclusion that this court has a
discretion to grant an interdict pendente lite on the facts of the
present case.
3. Whether
the requirements for an interim order have been fulfilled in casu
The
following statement of the requirements by Corbett J (as he then was)
in the case of L.F. Boshoff Investments (Pty) Ltd vs Cape Town
Municipality 1969 (2) S.A. 256 © at 267 A - F is representative of
what has become the almost standard formulation of the requirement:
"Briefly
these requisites are that the applicant for such temporary relief
must show:
a) that
the right which is the subject matter of the main action and which he
seeks to protect by means of interim relief is clear or, if not
clear, is prima facie established, though open to some doubt;
b) that,
if the right is only prima facie established, there is a
well-grounded apprehension of irreparable harm to the applicant if
the interim relief is not granted and he ultimately succeeds in
establishing his right;
c) that
the balance of convenience favours the granting of interim relief;
and
12
d) that
the applicant has no other satisfactory remedy".
In
casu my view is that the applicant has satisfied all the requirement
outlined in the above-cited dictum. Firstly, the applicant has a
clear right to the interim relief sought. She was married to the
testator in terms of civil rights in community of property and has
every right to know how the administration of her deceased husband is
being handled.
Secondly,
there is an injury actually committed by the 2nd respondent by his
refusal to pay her any maintenance and her medical expenses resulting
in her being permanently being confined to a wheelchair. 2nd
respondent has failed to account despite two years having lapsed
since the issue of Letters of Administration. The 2nd respondent has
overlooked letters by the Master of the High Court urging progress in
terms of the provisions of the Administration of Estate Act.
Thirdly,
the balance of convenience favours the granting of interim relief in
this matter. The applicant is the surviving spouse married in
community of property and as such she is entitled to at least (1/2)
half of the estate. The estate has not been wound up by the executor
despite a period of over two years having elapsed from the date of
the issue of Letters of Administration. Furthermore, as I have stated
immediately above that by letter dated 10th July 2001, the Master of
the High Court gave the executor up until the 16th August 2002,
within which to file the liquidation and distribution account. The
executor has failed to do so. He has also failed, despite being
ordered by the Master of the High Court to pay her E900-00 in respect
of medication.
Lastly,
it appears to me that the applicant has no other remedies in as much
as her approach to the Master of the High Court has produced no
solution to her problem.
For
the above reasons I come to the conclusion that the applicant has
prove all the requirements for an interim interdict following what
was decided in the case of Setlogelo vs Setlogelo (supra)
13
The
Court Order.
The
following order is thus recorded:
a) The
motion to strike out is upheld;
b) An
interim order is granted in terms of prayer 3, 4, 5, 6, 7, 8, 9 and
10 of the notice of motion and the applicant to issue summons in
terms of prayer 3 within 14 days from date of this judgement,
c) Costs
to be costs in the main action.
S.B.MAPHALALA
JUDGE
