Court withdraws a previous order after application proves the court was misled

October 1st, 2023
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Rasakanya v Mbuyane and Another (MM) (unreported case no 2702/2021, 8-8-2023) (Mashile J)

The High Court in Rasakanya looked at an application that was aimed at rescinding the order of Roelofse AJ dated 21 December 2021. The application was brought in terms of r 42(1) alternatively, r 31(2)(b) of the Uniform Rules of Court and/or the common law. The High Court said that the applicant sought an order for deregistration of the purported marriage between the first respondent and the deceased and cancellation of the marriage certificate by the Department of Home Affairs pending the outcome of the referral of the matter for oral evidence. The High Court pointed out that during the hearing of this matter, it was advised that the applicant was no longer persisting with its relief that the customary marriage existing between the first respondent and the deceased be declared legally invalid.

On 7 December 2021, the court per Mashile J refused to grant an order declaring the first respondent to have been legally married to the deceased by customary law. The court directed the first respondent to present affidavits of emissaries from both families who were present at the time when lobola negotiations took place. On 21 December 2021 and ostensibly following compliance with the order of the High Court dated 7 December 2021, Roelofse AJ granted an order declaring the customary marriage to be legal and directed the Department of Home Affairs to register it.

The court said that the factual background was succinctly captured in the heads of arguments of the applicant and to avoid reinventing the wheel and since it is not contested in large part, the court proceeded to borrow extensively therefrom. The court pointed out that on 5 May 2020 when the deceased died, he was survived by six of his sisters, among which is the applicant. In terms of clause 3 of his will executed on 2 February 2017, he nominated his sisters and children as beneficiaries of his late estate. The court added that subsequent to the burial of the deceased, in 2020 the applicant visited the Office of the Master of the High Court in Mahikeng (the Master) to inquire whether one of her family members had, in line with a resolution adopted by family, opened a late estate file.

The court said that the applicant was staggered when informed that the first respondent had, after identifying herself as the wife of the deceased, opened a late estate file. The applicant was further advised that the Master refused to issue letters of executorship to the first respondent in the absence of a marriage certificate at the office of Jague Venter Attorneys for reading of the deceased’s last will and testament. The court said that in February 2021, the applicant was informed by her siblings during a conference call that the first respondent sought a court order declaring her to be the lawful wife of the deceased, which order was subsequently granted.

The court added that notwithstanding the first respondent’s knowledge that when she launched her application on 22 September 2020, she was mindful of the existence of the last will and testament of the deceased because she was at the reading of the will in July 2020.

The first respondent was aware of the identity of the deceased’s six sisters, as well as their respective places of residence before the order was granted on 21 December 2020. The court said that the applicant alleged that the first respondent’s full knowledge of the existence of the last will and testament of the deceased aside, she failed to alert the court in her founding affidavit of the existence of beneficiaries of the estate of the deceased.

The court added that in fact, at para 7.9 of her founding affidavit to which she deposed on 11 September 2020, she expressly and unambiguously advised the court to the contrary – the deceased died without leaving a valid will and testament known to her. The court said that as such, the first respondent, concluded, that it was for that reason that until then no executor or executrix had been appointed to administer his estate. The court pointed out that the applicant contended that the court order of 21 December 2020 was erroneously granted insofar as the court would not have granted it had it been appraised of all the facts surrounding the matter. Such information, argued the applicant, pertains to the first respondent stating under oath that the deceased died intestate when in fact the first respondent knew that the opposite was true. Mashile J said that the court would have insisted in the joinder of the beneficiaries because they had a substantial and direct interest in who would be appointed as executor and executrix. That the failure to join the beneficiaries would have been rendered the application fatal.

The court said that to the extent that the first respondent deliberately misled the court by informing it that the deceased died without leaving a valid will and therefore intestate, the order of the 21 December 2021 was fraudulently obtained. Mashile J added that the first respondent intentionally furnished the court with incorrect information and the information benefited her as she obtained an order declaring the customary marriage between the deceased and her valid. Mashile J pointed out that the court acted thereon to the detriment of the applicant and her siblings who were beneficiaries under the will.

The court had to determine whether or not –

  • the court would have granted the order of 2 December 2021, had it been mindful of the existence and provisions of the will of the deceased;
  • the order of 21 December 2021 was fraudulently obtained;
  • the surviving siblings of the deceased have any substantial interest in the deceased’s late estate; and
  • the fact that the applicant is not persisting in an order declaring the customary marriage between the first respondent and the deceased illegal renders the relief sought, rescission of judgment, in vain.

In the analysis the court said that three issues arise and those are –

  • firstly, whether or not the judgment was granted in the absence of the people who had direct and substantial interest in that matter;
  • secondly, in their absence; and
  • thirdly, they affected the outcome.

Mashile J added that it is unquestionable that the applicant and her sisters are people who have substantial and direct interest in the matter because they stand to benefit financially under the will of the deceased and as such, they were supposed to have been joined. Mashile J pointed out that assuming that the customary marriage was legally incontestable, advising the court that the deceased had a will and such will mention other heirs or heiress, she would stand to inherit part of the deceased’s late estate instead of all of it.

Mashile J said that regarding the absence of the siblings in court at the time when the order was granted, it is clear that the first respondent deliberately omitted to mention the siblings of the deceased so that the court could labour under the impression that she was the only person who stood to inherit under the will. Mashile J added that it is remarkable that at the time the matter came before the court, the respondent already knew that the siblings were heiresses under the will and yet she told the court that she was not aware of a valid will and testament left by the deceased. The court said this is dishonest because she was at the reading of the will in July 2020. The court pointed out that while she refers to her lack of knowledge of the existence of a ‘valid will’, it is important to point out that she never raised any concerns about invalidity of the will at any juncture.

The court said that it was satisfied that all the requirements of the r 42(1)(a) have been met. That the order was granted in error and in the absence of the applicant and her siblings. Mashile J pointed out that the court would not have granted the order had it been appraised of all the facts that pertained at the time. Mashile J added that the application is in good faith because all that the applicant and her siblings are doing is to vindicate their right to benefit under the will of the deceased. Mashile J said that the applicant would no doubt have a bona fide defense, which on the face of it, would have some prospect of success. Mashile J pointed out that the intention of the first respondent was unmistakable. Her objective was to mislead and induce the court to provide her with the relief that she was seeking.

Mashile J added that fraud featured prominently in the matter. Mashile J said that the legal position insofar as a transaction tainted by fraud is concerned is that it ‘unravels everything’. The court noted that in this regard, it may be useful to refer to English law and how it has since become infused into the South African legal system. The court said that beginning with the case of Lazarus Estates Ltd v Beasley [1956] 1 All ER 341, where Denning LJ had to answer the question whether or not a declaration could be challenged on the ground that it was false and fraudulent.

Mashile J further referred to another English case, United City Merchants (Investments) Ltd and Others v Royal Bank of Canada and Others [1982] 2 All ER 720 in which Lord Diplock stated that: ‘“fraud unravels all”. The courts will not allow their process to be used by a dishonest person to carry out a fraud.’ Mashile said that the fraud perpetrated by the first respondent cannot be countenanced to benefit her. That her failure to disclose information that could have led to the joinder of the applicant and her siblings is adequate for the application to succeed.

The court added that it was satisfied that the applicant made a case for the rescission of the judgment and order of 21 December 2021. The court in view of the rescission of the 21 December 2021 order, held there was no need for the court to specifically refer the matter for oral evidence but this does not stop the first respondent from approaching the court to declare the customary marriage legally valid. The court made the following order:

  • The judgment and order of the court dated 21 December 2021 was set aside and rescinded.
  • The first respondent was directed to pay the costs of the applicant.

Kgomotso Ramotsho Cert Journ (Boston) Cert Photography (Vega) is the news reporter at De Rebus.

This article was first published in De Rebus in 2023 (Oct) DR 36.

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