Elmarie Bierman Attorneys and Another v Kutu and Others (6114/2018, HCAA11/2019) [2020] ZALMPPHC 67 (19 August 2020)

Elmarie Bierman Attorneys and Another v Kutu and Others (6114/2018, HCAA11/2019) [2020] ZALMPPHC 67 (19 August 2020)

The court found that the Respondents filed two materially different founding affidavits, with annexures attached to the version filed with the court but not served on the Appellants. This procedural irregularity deprived the Appellants of their right to a fair trial and violated the audi alteram partem principle. The Respondents failed to make out a prima facie case in the original founding affidavit and cured the defect improperly by amending the affidavit without following proper procedure. The conduct of the Respondents and their legal representatives was found to be unethical and prejudicial to the Appellants. The court held that the judgment of the court a quo was based on perjured...

Citation
[2020] ZALMPPHC 67
Parties
Appellant: Elmarie Bierman Attorneys; Appellant: Tshidi Lishen Mokobane; Respondent: Thomas Mafene Kutu; Respondent: Phineas Mafene Kuto; Respondent: Elizabeth Tendani Koto; Respondent: Margarett Shunkimanyelo; Respondent: Mapula Anna Machobane
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
19 August 2020
Case Number
HCAA12/2019
Procedural Posture
Civil Appeal / Appeal Against Judgment and Order Declaring Will and Letters of Executorship Invalid
Outcome
Appeal upheld; order of court a quo set aside; matter referred for hearing de novo; punitive costs order granted; conduct of Respondents' legal representatives referred to Legal Practice Council.
Judges
E.M. Makgoba, M.F. Kganyago, M. Naude
Legal Topics
Validity of Wills, Letters of Executorship, Fraudulent Misrepresentation, Audi Alteram Partem, Costs De Bonis Propriis
Civil Procedure Family and Children Validity of Wills Letters of Executorship Fraudulent Misrepresentation Audi Alteram Partem Costs De Bonis Propriis

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 10 Party arguments 2
Sign in to unlock

Parties

Elmarie Bierman Attorneys

Appellant

Tshidi Lishen Mokobane

Appellant

Thomas Mafene Kutu

Respondent

Phineas Mafene Kuto

Respondent

Elizabeth Tendani Koto

Respondent

Margarett Shunkimanyelo

Respondent

Mapula Anna Machobane

Respondent

Procedural Posture

Civil Appeal / Appeal Against Judgment and Order Declaring Will and Letters of Executorship Invalid

Legal Issues

  1. 1 Whether the last will and testament of the late Meita Johanna Keto dated 5 April 2011 is valid.
  2. 2 Whether the letters of executorship issued to the First Appellant are valid.
  3. 3 Whether the judgment of the court a quo should be set aside due to fraudulent misrepresentation and procedural irregularity.

Ratio Decidendi

The court found that the Respondents filed two materially different founding affidavits, with annexures attached to the version filed with the court but not served on the Appellants. This procedural irregularity deprived the Appellants of their right to a fair trial and violated the audi alteram partem principle. The Respondents failed to make out a prima facie case in the original founding affidavit and cured the defect improperly by amending the affidavit without following proper procedure. The conduct of the Respondents and their legal representatives was found to be unethical and prejudicial to the Appellants. The court held that the judgment of the court a quo was based on perjured...

Court Disposition

Appeal upheld; order of court a quo set aside; matter referred for hearing de novo; punitive costs order granted; conduct of Respondents' legal representatives referred to Legal Practice Council.

Orders

  • The appeal is upheld with costs.
  • The order granted on 20 February 2019 by the court a quo is set aside in its entirety.