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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

 NORTHE WEST HIGH COURT MAHIKENG

               

CASE NO: 2750/2025

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

 

In the matter between:

 

EMMANUEL SHADRACK KOPANO MORALADI	APPLICANT
And
STEPHEN LETHLOGONOLO SAKAL, NO (in his capacity as an Executor of the estate Late Bohutsana Olga Mashau) (Masters Ref:05362/2021)	FIRST RESPONDENT
MASTER OF THE HIGH COURT  MAHIKENG	SECOND RESPONDENT
STANDARD TRUST LIMITED	THIRD RESPONDENT
THE REGISTRAR OF DEEDS	FOURTH RESPONDENT
MEYER VAN DER WALT ATTORNEYS	FIFTH RESPONDENT

 

EX TEMPORE JUDGEMENT

 

TSAUTSE AJ

Introduction

1.            This is an urgent application in which the applicant, the surviving son of the late G.K. Moraladi, seeks interim relief restraining the respondents from transferring or distributing certain immovable properties and estate assets pending the determination of the validity of the deceased’s will.

2.            The matter is vigorously opposed. The First Respondents contend, inter alia, that the claim is belated, that there has been a material non-joinder of beneficiaries, and that the urgent roll should not be burdened with disputes which could have been anticipated earlier.

 

The Legal Position

4.            The Administration of Estates Act 66 of 1965 provides:

4.1.         Section 35(10) permits an executor to distribute an estate after confirmation of the liquidation and distribution account “unless the Court otherwise directs.”

4.2.         Where a dispute exists as to the validity of the will, an executor acts at his peril should he proceed with distribution. If the will is later set aside, he may be held personally liable.

 

Case Law

5.            In  Pillay and Others v Nagan and Others 2001 (1) SA 410 (D), the Court held that where the validity of a will is contested, the executor cannot act as though it were valid until the dispute has been resolved.

6.            In Beukman v Pieterse N.O and Others (2526/2024) [2024] ZAWCHC 391 (26 November 2024, the Court confirmed that executors must act with the utmost fidelity and impartiality. Where a conflict of interest exists, or where there is resistance to proper disclosure of estate income and assets, executors act at their peril. The Court went so far as to remove executors who persisted in conflicted administration and ordered them to bear costs de bonis propriis. This principle strongly applies in the present matter, where distribution is threatened despite a live challenge to the will..

7.            In Kidwell v The Master 1983 (1) SA 509 (E), heard in the Eastern Cape Division, the Court dealt with the strict formalities prescribed by the Wills Act 1953. In particular, it emphasised the requirement that a will must be signed “at the end thereof.” This Court extends this principle to the disputed forged will, holding that fraudulent or irregular signatures render a will invalid.

8.            The principle that fraud vitiates everything is well-established in our law. In Namasthethu Electrical (Pty) Ltd v City of Cape Town and Another (Case No: 201/19, para 29) [2020] ZASCA 74], the Supreme Court of Appeal held that fraud renders a transaction voidable and permits the innocent party to rescind or challenge the transaction. Applied to the present matter, if the signatures on the purported will are indeed forged, the will itself is void, and any distribution based upon it would be unlawful.

 

General Principles

 

9.            The respondents are correct that there are issues of non-joinder and delay. However, these are defects capable of cure. What cannot be cured is the irreversible dissipation of estate assets while this Court is seized with a challenge to the very instrument upon which the executor relies.

10.          The Appellate Division in Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A) held that non-joinder does not automatically defeat proceedings and may be corrected where necessary. Technicalities must yield where the interests of justice and the integrity of the estate demand protection.

11.          The applicant, however, places before the Court a grave and troubling allegation that the will relied upon by the executor and beneficiaries is a forgery. A forensic handwriting analysis has been conducted. While the report annexed to the founding papers is unsigned and thus formally inadmissible at this stage, the contents nevertheless highlight material discrepancies between the disputed signatures and the acknowledged signatures of the deceased. The differences in formation of letters, slope, stroke, and fluency of writing are of such a nature that they cannot simply be ignored.

12.          On the facts before me, the balance of convenience overwhelmingly favours interim relief. The applicant has demonstrated a prima facie right, albeit one requiring further substantiation by a properly commissioned expert report. The harm he faces that is permanent loss of inheritance through premature distribution is irreparable. The respondents, by contrast, will suffer no prejudice beyond a delay, which can be compensated by costs.

Order

13.          In the result, the following order is made:

1.            The First and Fourth Respondents are interdicted and restrained from transferring, alienating, or in any way disposing of the immovable properties known as Erf 9[…] and Erf 4[…], and from distributing the movable property listed in the liquidation and distribution account of the Late Bohutsana Olga Mashau, Master’s Ref. 005362/2021.

2.            This order shall operate as an interim interdict pending the final determination of the main application under case number UM230/2025, wherein the validity of the deceased’s will be contested.

3.            The applicant is granted leave to supplement his papers by filing, within 15 (fifteen) court days, a properly signed and confirmed expert affidavit in compliance with Rule 36(9)(a) and (b).

1.25cm; margin-bottom: 0cm; line-height: 150%"> 4.            The First Respondent shall pay the costs of the urgency application.

5.            The applicant’s attorneys shall bear the wasted costs occasioned by their non-appearance in Court on Tuesday, the 16th September 2025.

6.            The remaining costs are reserved for determination at the conclusion of the main proceedings.

 

 

TSAUTSE AJ

Acting Judge of the High Court

North West Division, Mahikeng

 

 

Order reserved: 19 September 2025

Ex Tempore Judgment Handed Down: 25 September 2025

Counsel for Applicant:  Adv E Ramonyai

Counsel for 1^st Respondent: Adv A Viljoen

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