IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NO: 7395/2010
In the matter between:
Applicant
NOSICELO NOLUNDI FUNISELO (BORN BHAYI)

and

JUDGMENT DELIVERED ON 10 AUGUST 2011

MANTAME, AJ

[2] Applicant was herein represented by Mr Godla and Respondent was represented by Ms Bartman.

that have been previously filed herein by the Applicant.
3.1. The first application was made under case no 13542/09 in terms of Rule 43 of the Uniform Rules of court relating to maintenance for the applicant and her minor child.
3.2. The second application was made under case no 20108/09, in the form of an urgent application in which Applicant claimed a distribution of the deceased estate in terms of intestate succession, and in the alternative, a monthly maintenance contribution for herself and her minor child.
3.3. The third application was made under case no 6801/09 and that never found its way to court, as it was subsequently withdrawn.

the second application was dismissed and the court granted a punitive costs order against the Applicant's attorneys.

issues involved are more or less the same.

be making an application for my recusal. Nevertheless, at the start of the proceedings, there was no formal application in terms of the rules of this court, and as such I will not deal with the same.

Close, Parklands, Table View. Applicant was thereafter ejected by Second Respondent from this address immediately after the death of her husband. Applicant has not mentioned what was the address of their permanent residence with the deceased. Applicant is now currently unemployed and resides with her maiden family at No: 62 Zone 20, Langa, Western Cape.

deceased, Second Respondent was very quick to report the deceased's estate with the First Respondent during December 2008 and was then appointed as the executor of the estate to control, liquidate and distribute the assets of the estate. Applicant and her minor child were intentionally omitted as surviving spouse and heir respectively to the deceased estate. Pursuant thereto, Second Respondent refused to disclose the business dealings of her late husband's taxi business.

[17] Thirdly, she submitted that there was dispute of fact which could not be resolved on papers. She submitted that there are fundamentally two disputes of fact, namely:
17.1. whether the Applicant was in fact married to the deceased; and
17.2. whether the deceased was the biological father of the Applicant's child.

[18] Second Respondent has consistently denied that the deceased, ie his father was married to Applicant and that the deceased is her daughter's biological father. As the oldest son in his father's kraal, he was never advised by him that he was married to Applicant.

[19]       Further submissions raised by the Second Respondent are that:

[20] In creating further doubt to this marriage, Second Respondent states that his mother died in 2004, which was after the alleged marriage. At the time of her death, the deceased was still married to Second Respondent's mother; it is therefore likely that he would have known of his father's marriage if in fact it existed.

[21] Further, the application for an abridged marriage certificate was made 7 years after the alleged marriage and in fact posthumously. No reason was advanced by Applicant why it was not timeously done. It is not specific in the marriage certificate as to when the marriage was actually registered, but it seems that it was registered on the day the abridged certificate was applied for in order to support the first application brought by Applicant.

[23] On the issue of maintenance Second Respondent does recognise the fact that a minor child of a deceased person has a common law claim for maintenance against the estate of the deceased and the surviving spouse has a claim in terms of the Maintenance of Surviving Spouse Act 27 of 1990 against the estate of the deceased spouse for the provision of her reasonable maintenance needs until her death or remarriage. Applicant is well aware that both her status and that of the minor child was disputed and as such should have approached the court for a declaratory order. Once the declaratory order has been granted, Applicant would then be entitled to submit a claim for maintenance to the executor for herself and on behalf of her minor child.

[24] Counsel for Second Respondent argued that the claim for Second Respondent as executor should fail on the basis that Applicant has not made out a proper case in her papers. As such she has not complied with section 54(1)(a)(v) of the Administration of Estates Act 66 of 1966 which reads:
"if for any reason the court is satisfied that it is undesirable that he should as as executor of the estate concerned"

and

54(1) (b) (v) of the Administration of Estates Act 66 of 1966 which reads:
"if he fails to perform satisfactorily any duty imposed upon him by or under this Act or to comply with any lawful request of the Masted
[25] The only allegation Applicant made in her founding papers is that the executor has an "attitude that he has no intent whatsoever to deal with the estate in a manner that accords with the best interests of all the heirs" and "has excluded Applicant and the minor child as heirs and beneficiaries." Such a comment cannot be said to be reasonable enough to convince this court when exercising its discretion whether or not to grant the prayer for the removal of Second Respondent as executor.

[26] Though the First Respondent was served with the papers in these proceedings, there is no report by him relating to this matter.

[27] On the issue of debatement of account Ms Bartman submitted that Applicant is not entitled to a debatement of an account relating to the deceased's taxi business or payments made by the medical aid to the estate account, due to the following:

27.1       Applicant has no right, nor alleged the basis of a right to receive an account. The duty to render an account is dependant upon the following:
27.1.1. a fiduciary relationship between the parties;
27.1.2. a contractual obligation;
27.1.3. a statutory duty.

[28] As a result, the relief sought by Applicant is ill conceived and procedurally incorrect and the application should be dismissed with costs.

"1. I am an adult female unemployed widow of the late Mr Dinizulu Funiselo and the applicant herein residing at No 62 Zone 20, Langa, Western Cape.
2. The facts deposed to herein are within my personal knowledge and to the best of my belief, save where the context indicates otherwise both true and correct where I make statements of a hearsay nature, I verily believe in their truth by virtue of their source and where I make submission of a legal nature it is based on the advice of my legal representative."

[34] Even though such marriage has been put in dispute, Applicant has not taken this court into confidence and laid a foundation as to how this customary marriage was consummated in order to erase any dispute that might have been created. I agree with the Second Respondent that customary marriage is a process. There are rituals and ceremonies that have to be performed. None whatsoever have been cited by the Applicant; instead she decided to register her disputed marriage posthumously.

[39] On the merits, Applicants are requesting an order removing Second Respondent from the office of the executor. I am inclined to agree with Second Respondent's submission that Applicant has not made a proper case before this court for it to be satisfied that it is undesirable that Second Respondent should act as executor. Consequently I cannot find any fault with the executor holding this office up until this stage and cannot abuse the court's power and remove him unnecessarily so.

[41] I will therefore not deal with further arguments by Mr Godla as he failed to furnish the authorities he promised this court.

[42] Given the negligent manner and sloppiness with which this litigation has been conducted by Applicant's attorneys, I will therefore not hesitate to award another punitive costs order in favour of the Second Respondent.

[43]       Consequently, I make the following order:
1. Applicant's application is dismissed;

4. If there was indeed a ruling / order by First Respondent that Applicant and her minor child be included in the Final Liquidation and distribution account, such ruling or order is set aside.