IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA

Case No: 60621/17

(l J	REPORTAl\LE: YES / NO
(21	OFINTER!'ST10 OTHER JUD
YES/NO
(3)	REVISED.
.11 ! }l..1-  .......
DATE

In the matter between:

DAVID MOROBI SELWANE	Applicant

and

BESSIE MOKGADI MOGALE

MASTER OF THE SOUTH GAUTENG HIGH COURT

,		., Respondent 2"" Respondent

JUDGMENT

MNGQIBISA-THUSI J

l

[ l)	The applicant, Mr David Morobl Selwane, seeks an order in terms of which:

the first responden,tMrs Bessie Mokgadl Mogale, Isordered tosurrender to the applicant all assets, (inclusive of motor vehicles, documentation relating to the motor vehicles and any income generated through the vehicles) and identity document of the late Matsobane Piel Masemola ("the deceased"):
In the event of the firstrespondent failing to surrender the assets as set out 1n thenotice ofmotion. the South Afncan Police be directed to assist the sheriff, Halfway House. I executing the order sought; and
Costs on an attorney and client scale.

[2]		In his founding affidavit, the applicant alleges that on 13 June 2017 the Master of Uus court appointed him as the executor of the deceased estate. Attached
to the founding affidavit is the death certificate of the deceased. However, the appllcant has not attached the said letters ofexecutorship he is relying on for
hrs claim. In hrs replying affidavit the applicant claims to be the son of the deceased.

131 The applicant further alleges that on 29 July 2017 hecaused to bedelivered to the first respondent a letter of demand for the surrender of the assets of the
deceased estate to him.

2

(41 ll 1s the applicant's contention that as the duly appointed executor of the deceased estate. the refusal by the first respondent to release the deceased estate into his control prevents him from performing his duties as an executor as envisaged in  s 26 of the Administration of Estates Act'.

[SI	On behalfof lhe first respondent it was submitted that the first respondent was

married lo the deceased by customary marriage. Attached to the first respondent's answering affidavit, as proof of the marriage, 1s a copy purporting tobemamagc. certificate. The saidcopy reflects that the marriage was entered intoon 13 August 1987 ll ls the first respondent's contention that theapplicant obtained the letters of executorsh1p through fraudulent means as he was not known to her and 1t was questionable where he obtained the deceased's documents in  order to  apply for appointment  as  executor  of  the deceased
estate. Further, the first respondent contends that the applicant's appoin1ment as executor of the deceased estate is suspicious tf one lakes into account the provisions of s 19 of the Act which g,ves the surviving spouse of a deceased person preference withregard to theappointment of an executor.
[61 With regard to the assets sought by the applicant it 1s the first respondent's contention that not all motor vehicles in her possession were owned by the deceased and therefore cannot be sought to besurrendered to the applicant.

(7J	The following disputes are apparent in this matter.

Act 66 of 1965

3

7 1Whether the first respondent was married to the deceased;

7.2Whetherthe applicant 1s   the deceased son;

7.31n the event that the first respondent wasmamed to thedeceased, 1he basis on which the apphcant was appointed an executor of thedeceased estate.
181	Motion  proceedings  are decided  on  the  papers  filed by  the  parties. In case where   there  is  a   factual  dispute   that  can  only  be  resolved  through  oral
ev1dence,2 action proceedings are appropriate unless the factual dispute is not real and genuine.3 In Stellenbosch Farmers' Winery Lid v Ste!lenvafe Winery (Pty) Ltd.4 thecourt held that where there is a dispute of facts, final relief should only be granted in notice or motion proceedings if the facts as stated by the respondent  together with the admitted facts 1n the applicant's affidavit  justify
such an order.5

(91 Th is ru le appl ies irrespective or where the onus lies. Where a factual dispute exists or anses dunng the hearing of an applicationand theapplicant does not seek the matter to be referred either to oral evidence on a specific Issue which 1s in dispute or to tnal, the court has a discretion either lo dismiss theapplication or direct that oral evidence beheard or that the matter goes to trial.

Plascon -E vans Paints Ud v Van Riebeck Paints{Pty) Ltd(1984J 2 An SA 366 (A).
> S<lffli1ntm, vMoum'(19S6J4 Ab SA 171 (E)
1957 (4) SA 23-4 ((C} See also JOII-Alr(Ply} Ud v Rudman1980 (2) SA 420 (T) at 428-429; Sar,t,no
Pub1ls/lers CC v Wayfr1e Marketing CC 2010 (2) SA 53 (GSJ) at 56F-57B.

SAf235 E-0.

4

1101 Taking into account that in tis answering affidavit. the first respondent had already alleged she was married to the deceased by customary law  and1hat
she was no!aware of the applicant being thesonof thedeceased, theapplicant should have foreseen the existence of a dispute of facts which cannot  be
resolved on the papers. It was up to the appltcant at the beginning of the heanng to seek areferral lo oralevidence onthe issuesmentioned in paragraph
7 above. Bearing in mind the undes1rab1llty of a court to mero motu refer an

existing factual dispute to oral evidence, in view of the    fact that the applicant

did not seek a hearing of oral evidence in the alternative to his prayers, I am of

the view that the appropriate order must be lo dismiss the application. I am sabsfied that the applicant has not shownsufficient cause why therelief sought
should begranted.

fllJ		With regard to costs, the applicant had, In the event he succeeds a cost order on an attorney and client scale. I am of the view that smce the firstrespondent
iSthesuccessful party, that sheisentitled to costs on thesamescale assought by the applicant

(12]	In the result the following order is granted:

The application Is dismissed with costs on an attorney and client scale'.
I

N P MNGQIBISA-THUSI

s

Judge of the High Court

For App l ica nt Khorombl Mabull Attorneys and for Respondent Slbanda Bukhos l Attorneys

6