Ramballi and Others v The Master of the High Court KwaZulu-Natal and Others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Masipa J
• Judgment Date: 03 February 2022
• Docket Number: 10484/2019
• Hearing Date: 12 November 2021
• Court: KwaZulu-Natal Local Division, Durban
• Citation: 2022 JDR 0325 (KZD)

Masipa J:

Introduction:

[1]

This matter came before court on 12 November 2021 as an opposed application. The applicants were represented by Mr V Gajoo SC and the second respondent by Ms J A Julyan SC.

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Masipa J

[2]

The relief sought in the applicants' notice of motion was set out as follows:

'That: -

(a)

The court order granted by Honourable Judge Lopes on 23 August 2019 under case number 9190/2017 be and is hereby set aside;

(b)

The warrant of execution against the movable property of the applicants issued under case number 9190/2017 be and is hereby stayed pending the final outcome of this application;

(c)

The first respondent is directed to forthwith remove the second respondent as the executor of the estate of the said Lakraj Ramballi (Estate No.[….]);

(d)

The first respondent is directed to do all things necessary to appoint the first applicant and/or any other person as it deems fit as the Executor of the estate of the said Lakraj Ramballi, (Estate No. [….]);

(e)

The second respondent is directed to pay the costs of this application;

(f)

The applicants be and are hereby given leave to supplement these papers insofar as it may be necessary; and

(g)

Further and/or alternative relief.'

[3]

The issue which was before Lopes J, whose order the applicants seek to set aside, related to the validity of the deceased's Will which was found to be invalid. While the issue of the deceased's marriage to the second respondent was raised before Lopes J, it was not relevant for the determination of the validity of the Will. This was expressed by Lopes J who found that it was an issue to be determined on another day.

[4]

Following the filing of all affidavits, heads of argument were prepared by both counsel. In their heads of argument, the applicant's focus was on the primary issue to be determined as being the setting aside of the order or the judgment by Lopes J. The court would only need to make a finding on the issue regarding the existence of the marriage once the primary issue had been decided. Ms Julyan contend that there were disputes of fact arising from the issue in respect of the existence or otherwise of the marriage. On the basis of this, Ms Julyan prepared extensive heads dealing with the basis upon which a rescission application can be brought, whether it was

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Masipa J

necessary to have the matter referred to oral evidence, whether the applicants should have pursued an appeal instead of a rescission application considering the provisions of Uniform rule 31, Uniform rule 42 and the provisions of common law. Ms Julyan submitted that there was no basis upon which the applicants' application should succeed.

[5]

During argument, Mr Gajoo conceded that there was no merit in respect of prayers (a) and (b) and accordingly that there was no need to determine this. He however argued that the prayers (c) and (d) could still be pursued and could be heard and determined. He submitted that the purported marriage between the deceased and the second respondent was challenged. He argued that it was this marriage which formed a basis for the appointment of the second respondent as the executor.

[6]

After hearing submissions by counsel, I granted an order set out below with reasons to follow:

'Order

1.

The application is dismissed with costs;

2.

The applicants are to pay costs of the application on an attorney and client scale.'

What follows are my reasons.

Points in limine:

[7]

The second respondent raised several points in limine, the first one being that an order of the high court once granted stands unless and until it has been set aside on appeal. It was argued that while there may be circumstances where under Uniform rule 42 an order may be set aside, the applicants have not sought to rely on the circumstances contemplated in Uniform rule 42.

[8]

The second respondent contends that the current application is disguised as an appeal and contends that there is no basis on which to appeal the decision by Lopes J. Accordingly, she prayed for the application to be dismissed with costs on the scale between attorney and client.

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Masipa J

[9]

In reply to the point in limine, the applicants contend that they were entitled to request that the court order be set aside if they were able to make out a case supported by evidence.

[10]

They contend that since the granting of the order, they had an opportunity to acquire the necessary expert evidence sufficient to justify the setting aside of Lopes J's order. The applicants contend that they did not have do this by way of an appeal, variation or review but that the current relief sought was competent. This evidence allegedly disproves the existence of the Hindu marriage between the deceased and the second respondent. They accordingly asked for the first point in limine to be struck off.

[11]

Interestingly, the applicants accept that Lopes J correctly pointed out that the issue of the validity of marriage could be dealt with in due course. In any event, as stated earlier on in this judgment, the issue relating to the setting aside of the order was abandoned by Mr Gajoo during argument. Accordingly, it became unnecessary to determine this point in limine.

[12]

The second point in limine is that the applicants do not dispute that the estate should be administered in terms of intestate succession and that this concession is fatal to their application. There is accordingly no basis for the relief sought by the applicants.

[13]

In respect of the second point in limine, the applicants contend that they were unable to challenge the second respondent's expert finding regarding the validity of the Will without their own expert evidence and as a result they had no choice but to accept that the deceased's Will was null and void and had to be set aside. They accepted that the estate had to devolve in terms of the rules of intestate succession.

[14]

The applicants contend that they subsequently obtained the services of their own expert and established from the report upon investigation of the specimen signatures that the applicants provided that the Will was valid and therefore binding.

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Masipa J

[15]

According to the applicants, this meant that the document provided by the second respondent's experts raised many questions on the issue of authenticity. Once this issue is properly ventilated before the court a plausible and logical outcome will be established. They accordingly denied that there was any basis for the second point in limine and asked for it to be struck off. However, the applicants aver that they accept that the estate may devolve intestate. They contradict themselves in this regard.

[16]

In relation to this point, I agree with the second respondent that the decision by Lopes J was based on the evidence available and the concession made by the applicants at the time. The matter was opposed and parties had the opportunity to furnish relevant and necessary evidence before the order was made. The subsequent enquiry by the applicants is not cause for the setting aside of the order. In any event, this does not satisfy the requirements for the rescission of judgment dealt with below. The applicants contradict themselves as to the true position in respect of the validity issue. This point in limine succeeds but is not determinative of the matter.

[17]

The third point in limine is that the applicants have no evidence to support the claim to set aside the order of Lopes J assuming this court's jurisdiction but contended that the court did not have jurisdiction as it is functus officio. The second respondent contends that the applicants express nothing more but an intention to instruct a handwriting expert to examine the signature on the testamentary documents but this exercise has already been undertaken by the court and it was found that the signature was not that of the deceased. This was after Lopes J considered the evidence of the forensic document examiner Michael John Irving.

[18]

In respect of the third point in limine, the applicants contend that their expert evidence that was not before Lopes J raises concerns which calls for the court order to be set aside and that the third point in limine falls to be struck off.

[19]

The applicants contend that neither they nor Lopes J are experts on the authenticity of the signature on the Will and that they had to rely on the expert

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Masipa J

evidence of Mr Irving which was obtained by the second respondent. A subsequent report by the applicants' experts raised material defects on Mr Irving's report.

[20]

While this point was well taken, Mr Gajoo's withdrawal of the challenge of the relief to set aside Lopes J's order makes the determination of this point superfluous.

Setting aside or rescission of a court order:

[21]

While the main relief sought was the setting...