IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION – MAHIKENG

Case No.: UM 28/22
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Magistrates: YES/  NO
Circulate to Regional Magistrates:YES / NO

In the matter between:
MAAKAMEDI PABALLO N. O 					Applicant

and

RETSHEPILENG CATHRINE MAGINI				Respondent

This judgment was handed down by electronic transmission and circulation to the parties' representatives via email. The date of the handing down of this Judgement is deemed to be 29 December 2022.
 
ORDER

In the result the following order is made:

1 .	The matter is not urgent.

2.	The applicant's non- compliance with the requirements of an affidavit is condoned.

3.	The respondent's failure to comply with the timeframes set out in the notice of motion is condoned.

4.	The applicant's failure to cite the Master of the High Court is condoned. The applicant is ordered to serve a copy of this judgement on the Master within five days of this judgement.

5.	The application is dismissed with costs on attorney and client scale.

JUDGEMENT

MFENYANA AJ
Factual matrix
[1]	On 2 November 2022 the applicant, brought an urgent application seeking, inter alia, an order declaring that the respondent is in contempt of court for failing to comply with the order of this court granted on 17 February 2022. The application was brought ostensibly in the applicant's representative capacity as the executrix of the joint deceased estate of the late Mr Reuben and Mr Joan Nkoe. On 17 February 2022 this court, per Leeuw JP (as she then was) granted the following order:

“ It is ordered
1.	That the matter be and is hereby postponed to the 28th of February 2022 for the joinder and service of this order on the Master of the High Court.

2.	That the property in the custody of the respondent should remain in the custody of the applicant and be returned to the house deceased pending the joinder and report of the Master in respect of the resolution of the Executor of the Joint

Deceased estate of Mr and Mrs Nkoe;
3.	That the Respondent is ordered not to utilise the motor vehicle in her possession and should park same at the deceased's house;

4.	That the applicant is ordered to return the property removed (as it appears in Annexure AA6 of the Answering Affidavit) to the house of the deceased;

5.	That the Applicant is also granted permission to reside at the deceased's common house with the minor child,

6.	That costs are reserved.”

[2]	The said order followed an application issued by the applicant on 11 February 2022 seeking the return of all movable property removed by the respondent from the house of the deceased. It is common cause that following the demise of Mr Reuben Nkoe, the respondent removed certain immovable property belonging to the deceased estate. According to the applicant, the respondent informed her that this was done for safekeeping. It is not necessary for purposes of the present application to go into the contentions raised on behalf of both the applicant and the respondent in those proceedings, which application was opposed by the respondent.

[3]	At the hearing of the matter, the court ordered the joinder of the Master. Simultaneously, the applicant was granted interim relief, the effect of which was that the respondent would return the property to the house of the deceased pending the joinder and report of the Master pertaining to the issue of the executor of the joint deceased estate late Mr and Mrs Nkoe. The applicant was granted permission to reside at the deceased 'common house with the minor child'. It is common cause that the minor child referred to is the offspring of the late Mr and Mrs Nkoe, and the half-sibling of the applicant. For the sake of completion, it is worth mentioning that the respondent is a sister to the late Mr Nkoe.

[4]	In keeping with the terms of the court order, on 17 March 2022 the Master filed a report (the first report). In that report the Master confirmed that letters of executorship were issued on 20 December 2021 appointing the applicant as executrix. According to the report, the appointment was based on the information provided by the applicant that she was the major child of the deceased (the late Mr Reuben Nkoe) and that the deceased had died intestate. The report went further to state that on 8 February 2022 an original last will and testament of the deceased was lodged and accepted by the Master on 17 February 2022. In terms of the will, the deceased nominated his predeceased spouse (applicant's mother), alternatively the respondent as his executrix. Consequently, respondent was then issued with letters of executorship and the earlier letters of executorship issued to the applicant were withdrawn by the Master.

[5]	The matter was further postponed to 2 March 2022 and subsequently to 23 March 2022. On the latter date the Master was directed to convene a meeting with the parties and appoint an executor as the Master deemed necessary and inform the court within 30 days order. In terms of the court order of 23 March 2022 the order granted on 17 February 2022 remained in force.

[6]	On 22 July 2022 the Master filed a further report (the second report) setting out the history of the matter and confirming the appointment of the applicant in respect of the estate of her late mother, Mrs Nkoe (Estate number: 9570/2021), and the respondent in the estate of Mr Nkoe (Estate number: 9567/2021, as executrices, correspondingly. The report mapped out the relationship between the parties and the deceased (Mr and Mrs Nkoe).

[7]	The following facts are common cause:

(i) 	 that at the time of her death on 6 March 2020, Mrs Joan Nkoe was survived by her spouse (the now late Mr Reuben Nkoe) and two children, being the applicant and the minor child [L_N].

(ii)	 that Mrs Joan Nkoe died intestate.

(iii)	 that her death was registered on 7 October 2021 under Estate number: 9570/2021

(iv)	 that the applicant is the stepchild of Mr Nkoe in that she is the biological child of the late Mrs Joan Nkoe.

(v)	that Mr Reuben Nkoe passed away on 13 September 2021.

(vi)	 that Mr Nkoe's death was registered on 7 October 2021 under Estate number: 9567/2021.

(vii)	 that the minor child [L_N] is the only surviving heir of Mr Reuben Nkoe.
(viii) that on 8 February 2022 the Will of Mr Reuben Nkoe was lodged with the Master consequent to which the applicant was replaced by the respondent as executrix in accordance with the said Will.

[8]	The Master concluded that Mr Nkoe, being the last dying spouse was an heir in the estate of his wife which has to be taken into account in order to ascertain the assets in his estate.

[9]	On 2 November 2022 the applicant launched the present application on extremely abridged timeframes.

[10]	The respondent has opposed the application and has filed an answering affidavit.

[11]	 In the answering affidavit the respondent contends that the applicant has failed to explain the circumstances which render the matter urgent and why she could not be afforded substantial redress in due course. Consequently, the respondent avers that the matter is not urgent and is an abuse of the court process. The respondent raised three points of law.

[12]	 In respect of the founding affidavit, she challenges the fact that the said document does not identify the deponent and therefore falls short of an affidavit as required. She proceeds to attack the correctness of the notice of motion in that the application was served on the respondent a day after the date appointed in the notice for service of the notice of intention to oppose. In essence the respondent avers that the applicant put the cart before the horse which she argues, nullifies the contents of the notice of motion and leaves it defective. The respondent thus seeks condonation for not adhering to the timeframes set in the notice of motion as it was impossible to do so. The respondent concludes that the applicant's failure to join the Master to the present application further renders the application defective and that the application stands to be dismissed on these grounds.

[13]	In respect of the merits, the respondent denies that she in contempt of the court order as alleged by the applicant. She argues that the application is without any legal justification as the pension fund does not fall within the deceased estate. In this regard, the respondent avers that she was in any event compensated by the SANDF for funeral expenses she had incurred, shortly after the funeral of the deceased in September 2021 and that the SANDF had requested further documentation from her in order to finalise the deceased's pension affairs as she was said to be his next of kin and beneficiary.

[14]	The respondent further states that on 25 February 2022 and subsequent to the court order relied on by the applicant, she, (of her own accord), provided a copy of the court order to one, Mr Tema, a Human Resources representative of the SANDF where the deceased was previously employed. She denies that she made any claim to the SANDF or that the SANDF paid any amount to her in respect of the deceased's pension, which allegation she contends is an attack on her integrity.

[15]	In reply, the applicant brings to question the respondent's failure to respond a letter sent by the applicant's attorneys seeking information in respect of the very allegations that form the basis of the present application. The remainder of the content of the replying affidavit is inconsequential as it deals with ancillary issues and the applicant's ignorance of the filing of the Master's report. Nothing much turns on these issues in relation to the main relief sought by the applicant.

Analysis and evaluation
Is the matter urgent?
[16]	The law governing urgency is trite. It is set out in Rule 6(12) of the Uniform Rules of Court. In particular, Rule 6 (12) (b) enjoins the applicant in an 'urgent' application to set out explicitly in the founding affidavit the circumstances which render the matter urgent as well as the reasons why the applicant claims that they could not be afforded substantial redress in due course.

[17]	Practice Directive 5 of this Division echoes rule 6(12) and states that when an application is alleged to be extremely urgent, the applicant's counsel shall approach the Registrar to arrange a hearing as soon as possible in accordance with the provisions of Rule 6(12).

[18]	 In East Rock Trading the court held that:

“… the procedure set out in Rule 6(12) is not there for the taking. An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the Applicant must state the reasons why he claims that he cannot be afforded substantial redress at a hearing in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of absence of substantial redress in an application in due course. The rules allow the court to come to the assistance of a litigant because if the latter were to wait for the normal course laid down by the rules it will not obtain substantial redress. “

 The applicant must satisfy the court that the matter is of sufficient urgency that if the matter is not heard, the applicant will not be afforded substantial redress in due course. In so saying, that the applicant would suffer prejudice if the matter were not heard on abbreviated timeframes.

[20]	According to the applicant, the urgency is based on the contention that, by attending at the deceased's place of employment and claiming his pensions, the respondent is arrogating funds in the estate of the deceased for her personal use, and in so doing has flagrantly disregarded the court order granted on 17 February 2022 which directed her to return the property of the deceased estate to the deceased's house and place it in the possession of the applicant. The applicant adds that by its very nature, contempt of a court order is urgent. The difficulty with this contention is two-fold. First, pension pay-outs do not form part of the assets of a deceased estate. Second, the court order sought to be enforced makes no mention of any pension pay-out or the pension fund alleged to be appropriated by the respondent.

[21]	Mr Le Grange submitted on behalf of the respondent that the application constitutes an abuse of the court process. He further submitted that there was no need 'for the applicant to run to court in the dark'. I agree with Mr Le Grange. There does not seem to be any reason in my view, why the matter could not be heard in due course. The applicant herself could not proffer any plausible reason, save for the mistaken belief that the respondent was appropriating funds belonging to the deceased estate.

[22]	To the applicant's defence Mr Nase maintained that the matter is urgent for the reasons set out in the founding affidavit. He further submitted that the court order required the respondent to return the movable assets she had removed and by implication she was ordered not to use 'any assets of the deceased estate' , including the pension fund payment. This is incorrect. The court order refers to specific movable property of the deceased estate, known to the parties, which was removed by the respondent from the deceased's home and listed in annexure AA6 referred to in the court order. There is no dispute about these items. This much is clear from the content of the court order which I deal with in the ensuing paragraphs. There can thus be no urgency attributable to this aspect of the relief.

[23]	I now proceed to deal with whether the respondent is in contempt of the court order granted by Leeuw JP.

Is the respondent in contempt of the court order?
[24]	During the hearing of the matter, the applicant made specific reference to paragraph 2 of the court order as directing the respondent not to appropriate the assets of the deceased estate in general. There appears to be no legitimate basis for this contention. Responding to a question from the court whether his understanding was that the court intended to preserve the status quo, Mr Nase categorically agreed. What this proposition does is that it seeks to read into the order, words that are not contained in the order and accord to the applicant, relief that is not provided in the order. The status quo made no mention of a pension fund. For what it's worth, I must state that the terms of the order are unambiguous. They read like this:

"2. … That the property in the custody of the respondent should remain in the custody of the applicant and be returned to the house of the deceased pending the joinder and report of the Master in respect of the resolution of the Executor of the Joint Deceased estate of Mr and Mrs Nkoe;"
[25]	It is not the applicant's contention that at the time of the granting of the order, the respondent was in possession of the pension pay-out. Even if that were the case, I have already set out what the correct legal position is in this regard; that a pension pay-out does not fall within the ambit of assets in the deceased estate. The restoration of the property as specified in the order cannot extend to the inclusion of the pension fund. The net effect of this is that, within the contemplation of the order and the law, nothing prevented the respondent from receiving the pension pay-out if so directed in terms of the rules of the relevant pension fund. Quite curiously, the SANDF has not been cited in these proceedings. To the extent that the applicant seeks a final order in the present application, she has not made out a proper case for it.

[26]	It is so that in seeking to ascribe meaning to the words of the order, the rules and principles of juridical interpretation find application. A court order is akin to a statute. The end goal of legal interpretation is to harmonise the text and the purpose of the provision. Generally, courts are loathe to read into a provision, words that are not there, and would only do so if not doing so would lead to an absurdity not otherwise contemplated in the provision.

[27]	Even if this court's interpretation of paragraph 2 of the order is incorrect, the application falls short of the requirements for contempt of court which are quite stringent. They are set out in the locus classicus for contempt of court in Fakie. As Cameron J expressed, the essence of contempt of court "lies in violating the dignity, repute or authority of the court' The Supreme Court of Appeal (SCA) went further and set the requirements as follows:

"The test for when disobedience of a civil order constitutes contempt has come to be stated as whether the breach was committed "deliberately and mala fide". A deliberate disregard is not enough, since the noncomplier may genuinely, albeit mistakenly, believe him or herself entitled to act in the way claimed to constitute the contempt. In such a case, good faith avoids the infraction. Even a refusal to comply that is objectively unreasonable may be bona fide (though unreasonableness could evidence lack of good faith). "

[28]	It is settled law that it is not merely the disregard of a court order but the deliberate and intentional violation of the court's dignity and authority that renders non- compliance with a court order contemptuous. Such contempt is a criminal offence and 'the onus is that of a criminal standard of proof beyond reasonable doubt even though the crime itself "is said to be a blunt instrument" . The applicant thus bears the onus to prove beyond reasonable doubt that the respondent unlawfully and intentionally disregarded the court order. This, the applicant has failed to do. There is no court order of the sort alleged by the applicant. It follows therefore that no contempt could take place in the prevailing circumstances.

[29]	I do not consider it necessary in these circumstances to delve any deeper into the further requirements for contempt of court as that finds no application in these proceedings. Even in the event that there might be another interpretation which closely resembles what the applicant asserts, the respondent has provided a full explanation leading to the inevitable conclusion that not only was the applicant's apprehension unsubstantiated, but that there was also no wilful and mala fide disregard of the order granted on 17 February 2022, alternatively that the applicant is mistaken in her belief. From a legal standpoint, the application has no basis. It follows therefore that on this ground too, the application must fail.

Validity of the founding affidavit
[30] The respondent challenged the founding affidavit on the basis that it does not indicate the identity of the deponent and is therefore not an affidavit. It is trite that the court has a discretion to refuse to admit an affidavit which has not been attested in accordance with the regulations, subject to whether there has been substantial compliance with regulations. The question that has to be answered in exercising that discretion by the court is whether there has been substantial compliance with the regulations governing the attestation of affidavits despite the omission to identify the deponent by name. The position in this regard is that if an affidavit substantially complies with the requirements for an affidavit, the court may condone the non- compliance. It is settled law that an affidavit commissioned by an attorney should be condoned unless there is evidence of transgression of the relevant legislation that cannot be condoned. One may also not overlook the urgency with which the application was brought. While it may be said that the applicant is the author of her own calamity, I am not persuaded that such callousness on the part of the applicant warrants an outright rejection of the affidavit in the manner suggested by the respondent. There is no suggestion that the Commissioner of Oaths, who is an officer of this court, did not comply with the provisions of the Act and the regulations. It is also so that the regulations are directory, rather than peremptory in nature such that non- compliance therewith does not invalidate the affidavit. In the circumstances I am inclined to condone the omission and accept the affidavit filed in respect of the applicant into evidence.

Conclusion
[31] Notwithstanding the convoluted nature of the proceedings, and the submissions made, if one cuts to the bone of the matter, the main contention of the applicant is the single issue of the restoration of the assets of the deceased estate presumably in compliance with the court order. This contention is misplaced. In light of the submissions made on behalf of both parties, fairly balanced, as well as the court's findings, it appears to me that, contrary to the applicant's assertions and apprehension, the SANDF had been apprised of developments in the litigation of this matter. Whether this was necessary, is a matter beyond the scope of the present application. At the conclusion of the proceedings, Mr Nase conceded that in view of the submissions made, the applicant would not be proceeding with the relief sought in prayers, 3, 4 and 5 of the notice of motion. Consequently, the remaining relief pertains to the issue of contempt, urgency, and costs. The concession was in my view, not well made. The issue of contempt cannot stand on its own and is intricately linked to the conduct complained of in prayers 3, 4 and 5. In the absence of any such complaint, the relief sought in respect of the contempt should similarly fall away and so should the issue of urgency. This in my view, disposes of the entire application.

Costs
[32]	Each of the parties seeks costs against the other on the scale between attorney and client. Needless to say, the general rule is that costs follow the result. In the peculiar circumstances of this matter, it would be remiss of me to not reiterate that the application was brought as one of extreme urgency. I have as well already found that there was no urgency in this matter, let alone extreme urgency. Such conduct speaks to prejudice. Prejudice to the opposite party, having been put under extremely stringent timelines, a standard which the applicant herself could not attain. This is so in that, having called on the respondent to express its opposition by 2 November 2022, the application was ultimately only served on 3 November 2022. I must hasten to state that it is not unusual in urgent applications that a party, on occasion, fails to dot its "Is" and cross its "Ts". That is, if the application is indeed urgent. No such urgency existed in this matter as to warrant trampling on the respondent's rights to properly present its case and be heard in due course.

[33]	Having permitted the full ventilation of the matter, it is clear that the respondent's case is unassailable. There is thus no reason why the respondent should be put out of pocket in the circumstances.

Order
[34] In the result, the following order is made:

1.	The matter is not urgent.

2.	The applicant's non- compliance with the requirements of an affidavit is condoned.

3.	The respondent's failure to comply with the timeframes set out in the notice of motion is condoned.

4.	The applicant's failure to cite the Master of the High Court is condoned. The applicant is ordered to serve a copy of this judgement on the Master within five days of this judgement.

5.	The application is dismissed with costs on attorney and client scale.
S MFENYANA
ÀCTING JUDGE OF THE HIGH COURT,
NORTH WEST DIVISION, MAHIKENG

APPEARANCES
DATE OF HEARING		: 08 NOVEMBER 2022

JUDGMENT RESERVED		: 08 NOVEMBER 2022

DATE OF JUDGMENT		: 29 DECEMBER 2022

For the Applicant			: Adv. A Nase

Instructed by			: GS Dlanjwa Attorneys

					CIO Khumalo & Apie Attorneys

For the Respondents		: Adv. AJ Le Grange

Instructed by			: Smit Stanton Incorporated