Gantsho v Gantsho and Others

• Jurisdiction: South Africa
• Judge: Lombard J
• Judgment Date: 13 December 1985
• Citation: 1986 (2) SA 321 (TkS)
• Hearing Date: 31 March 1985
• Court: Transkei Supreme Court

Lombard J:

This is essentially an application for an order authorising the Master of the Supreme Court at Umtata to accept the duplicate original will dated at Idutywa on 31 August 1982 (annexed to the papers as exh "C") as the last will and testament of the late Andrew Sobantu Gantshow who died in the J district of Idutywa on 30 August 1983.

Lombard J

A The application was launched on an ex parte basis and on 30 September 1984 a rule nisi was issued by this Court reading, inter alia, as follows:

"1.

That a rule nisi do hereby issue calling upon all interested persons to appear and to show cause, if any, on Thursday, 11 October 1984 at 10 am or as soon thereafter as counsel may be heard, why an order should not be granted:

(a)

B authorizing the Master of the Supreme Court at Umtata to accept the duplicate original will, filed at the Master's Office, as the last will and testament of the late Andrew Sobantu Gantsho who died in the district of Idutywa on 30 August 1983;

(b)

C ordering that the costs of this application be paid out of the estate of the late Andrew Sobantu Gantsho.

2.

Service of this rule be effected by displaying a copy thereof on the notice board at the magistrate's court, Idutywa for a period of 10 days and by one publication in the English language in the Daily Dispatch newspaper."

D This rule was from time to time extended until the matter was eventually heard on 21 March 1985 after some of the heirs and children of the late Andrew Sobantu Gantsho had filed affidavits indicating their opposition to the application.

At the hearing of this matter on 21 March 1985 Mr Locke E appeared for the applicant as well as for the minor child born of the marriage between herself and her late husband, the said Andrew Sobantu Gantsho. Mr Pickering appeared on behalf of the children of the late Andrew Sobantu Gantsho from a previous marriage. A few procedural problems arose on that day but by F agreement between the parties the matter was fully argued and the following order was made:

"I.

that the duplicate original will, exh 'C', be filed with the Registrar of this Court as soon as possible;

II.

that a complete set of all the papers filed herein be served upon the Master of this Court forthwith;

III.

G that the Master submits a report to this Court with copies to the respective parties within 14 days after receipt of the complete set of papers;

IV.

that leave be granted to the parties to submit further written argument after receipt of the Master's report aforesaid".

H The said order was in due course complied with and the Master submitted a report in terms thereof. I may just mention in passing that, except for pointing out various aspects which relate to the costs of this application, the Master abides by the decision of this Court. He, however, pointed out that he did not refuse to accept exh "C" for non-compliance with the I provisions of Act 7 of 1953 but he refused to accept a copy of the said will and insisted upon the original will being filed.

At the hearing of this matter counsel were ad idem that p 1 of exh "C" is for all practical purposes the entire will of the testator and that the matter must be...