De Moor and Another v Gunnel NO and Others (2023/101371) [2025] ZAGPJHC 619 (12 June 2025)

De Moor and Another v Gunnel NO and Others (2023/101371) [2025] ZAGPJHC 619 (12 June 2025)

The court found that the founding affidavit was properly commissioned by a solicitor in Scotland and that initialling each page is not a statutory requirement under South African law. The application to join parties in their personal capacities was refused, as those parties have no direct or substantial interest in the litigation; they are neither beneficiaries nor trustees of a registered trust. The only proper citation is of the second respondent in her representative capacity as executrix. The failure to join the sole beneficiary of the estate constitutes a serious irregularity, but no application was before the court to declare the proceedings irregular under Rule 30A. The applicants’...

Citation
[2025] ZAGPJHC 619
Parties
Applicant: Brendan De Moor; Applicant: Graeme Pavel De Moor; Respondent: John Gunnel N.O.; Respondent: Sally Ann Vendel N.O.; Respondent: Megan Jane Vendel N.O.; Respondent: John Gunnel; Respondent: Sally Ann Vendel; Respondent: Jane Megan Vendel; Respondent: The Master of the South Gauteng High
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
12 June 2025
Case Number
2023/101371
Procedural Posture
Joinder Application / Application for Amendment and Joinder in Main Action
Outcome
Application for amendment of pleadings is granted only to the extent that the second respondent is cited in her representative capacity as executrix; all other amendments are refused. Costs awarded against the applicants.
Judges
Senyatsi
Legal Topics
Joinder of Parties, Misjoinder, Will Contestation, Executor Citation, Beneficiary Rights
Civil Procedure Family and Children Joinder of Parties Misjoinder Will Contestation Executor Citation Beneficiary Rights

Case Brief

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Parties

Brendan De Moor

Applicant

Graeme Pavel De Moor

Applicant

John Gunnel N.O.

Respondent

Sally Ann Vendel N.O.

Respondent

Megan Jane Vendel N.O.

Respondent

John Gunnel

Respondent

Sally Ann Vendel

Respondent

Jane Megan Vendel

Respondent

The Master of the South Gauteng High

Respondent

Procedural Posture

Joinder Application / Application for Amendment and Joinder in Main Action

Legal Issues

  1. 1 Whether the commissioning of the founding affidavit was proper.
  2. 2 Whether there is a misjoinder of parties rendering the proceedings irregular.
  3. 3 Whether the second respondent should be joined as a defendant in the main action in her representative capacity.

Ratio Decidendi

The court found that the founding affidavit was properly commissioned by a solicitor in Scotland and that initialling each page is not a statutory requirement under South African law. The application to join parties in their personal capacities was refused, as those parties have no direct or substantial interest in the litigation; they are neither beneficiaries nor trustees of a registered trust. The only proper citation is of the second respondent in her representative capacity as executrix. The failure to join the sole beneficiary of the estate constitutes a serious irregularity, but no application was before the court to declare the proceedings irregular under Rule 30A. The applicants’...

Court Disposition

Application for amendment of pleadings is granted only to the extent that the second respondent is cited in her representative capacity as executrix; all other amendments are refused. Costs awarded against the applicants.

Orders

  • The citation of the second respondent in her capacity as executrix is granted.
  • The citation of all parties in their personal capacities is refused.