Legoale and Others v Legoale and Others (14206/03) [2005] ZAGPHC 49 (29 April 2005)

Will – in conflict with registered ownership of one of the children of the deceased - registeredownership shown by expert testimony not to have been based onaforgery of the deceased'ssignature.Van Rooyen AJ[1] This is a dispute between members of the same family about the ownership of a house inAtteridgeville, Tshwane, (formally knownas Erf 2495). The dispute has its roots in ApartheidSouth Africa, where ownership ofland was strictly regulated toexclude ownership by Black people, inter alia, in so-called locations, also known as townships.Atteridgeville was such atownship.[2] Mrs Roseline Elizabeth Legoale was born in March 1912. She was granted a site permit to Erf2495 in July 1964. She signed the permit above the words "Signature or left thumb print of personto whom certificate is granted". She had developed the property by way of the profits made from the making of clothes. On the 8thOctober 1985 she made a will in which she bequeathed herentire estate to her daughter Esther Legoale, a medical doctor. She was also appointed asexecutrix. It was common cause that Esther Legoale ( "Dr Mammule") is the First Respondent.[3] Since Mrs Roseline Legoale was concerned that as a pensioner and widow she might lose herIN THE HIGH COURT OF SOUTH AFRICA(TRANSVAAL PROVINCIAL DIVISION)DATE: 29/04/2005REPORTABLEIn the matter between:BOTILENG LEGOALE & EIGHT OTHERS

APPLICANTSandMAMMULE ESTHER LEGOALE

FIRST RESPONDENTPRETORIA REGISTRAR OF DEEDS

SECOND RESPONDENTCO-OCCUPIERS OF ERF 2495 ATTERIDGEVILLE

THIRD 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 permit, a family meeting was held and it was decided that the property be transferred to DrMammule. On 1 September 1987 one of the daughters of Mrs Roseline Legoale, Mrs MonicaLetsholo, confirmed by way of affidavit that her mother wished to transfer the site permit to DrMammule. This handwritten statement bears the stamp of the Town Council of Atteridgeville andis dated 1 September 1987. It was signed by the said daughter and attested to by two witnesses.Mrs Letsholo now states in an affidavit that she was manipulated by Dr Mammule to sign thedocument and promised that the transfer would not take effect before their mother

signed thedocument as well. A further handwritten document states that Mrs Roseline Legoale transfers thesite permit to Dr Mammule. Mrs Roseline Legoale signed and it was also sworne to by her.[4] When the new democratic dispensation was in the air after Nelson Mandela had beenreleased from prison in February 1990, ownership for Black individuals became a reality. Interms of the Upgrading of Land Tenure Rights Act 1991, Act no 112 of 1991, the City Council ofAtteridgeville transferred the ownership of Erf 2495, measuring 300 square meters, to Dr Mammule on the 23rdDecember 1992. This transfer was effected by the Registrar of Deeds.[5] On the17thof August 2000, Mrs Roseline Legoale again made a will at the age of 87 years.She bequeathed her estate equally to the nine applicants in this matter as well as Dr Mammule . She signed the will, but it was only attested to by one witness. The following names werementioned: Elizabeth Peto, Monica Letsholo, Magdeline Malomane, Rebecca Mabele, JohnLegoale, Dorcas Maninja, Esther Legoale, Dorcas Maninja, Grace Legoale, BotilengLegoale(grandson) and Naomi Lekwane. Five of Dr Mammule's six sisters and her only brotherare amongst the applicants in this matter.[5] On the 22ndMay 2002 Mrs Roseline Legoale passed away. She was aged ninety. DrMammule was appointed as her executrix by the Master of the High Court.[6] When the 17thAugust 2000 will

and testament of Mrs Rosaline Legoale was read it appearedIto be in conflict with the ownership of Dr Mammule's ownership of the house on Erf 2495. Thehouse was explicitly included in the will and was also, as were her other assets, to go to the said10 Legoale children. With prudence and wisdom she provided that "no one amongst them mustclaim entitlement on my properties. My properties must belong to all of them". She also addedthat "should any of the above mentioned names become unhappy and against my last will, theremaining names should gather and buy her/him out of the property."[7] The notice of motion requests this Court to restrain Dr Mammule from transferring the propertyand to issue a declaratory order that the applicants and Dr Mammule are co-owners of theproperty with the concomitant order to register the property in the names of the applicants and DrMammule Esther Legoale.[8] During argument before me the main issue was whether the signature of Mrs RoselineLegoale had not been forged, inter alia, in the September1987certificate which confirmed that the site permit would be transferred to Dr Mammule. I afforded the applicants the opportunity toobtain the opinion of a handwriting expert. The opinion of Frederick Fourie was handed up to meat the last hearing of this application. He is a qualified forensic handwriting expert. Aftercomparing several of the signatures of

the late Mrs Rosaline Legoale, he came to the conclusionthat "in taking all the corresponding writing characteristics into account and in the absence offundamental differences I could come to no other conclusion as that the signatures signed RandRE Legoale were most probably written by the same person." I could find no reason to doubt theexpert opinion andadv Kruger,for the Applicants, conceded the authenticity of the handwriting.[9] All that is left is the vague suspicion that Mrs Legoale did not fully understand the legal/intricacies of her signing over the site permitto Dr Mammule. Yet, judged by the answeringaffidavit of Dr Mammule, whose affidavit should win the day when there is difference between thefounding affidavit and the answering affidavit unless it is far-fetched or clearly untenable,1 therewas a good and reasonable explanation for the fact that the deceased had transferred the sitepermit to her. Legislation then settled the matter when the site permit holders' rights wereupgraded to ownership, There is no way in which the will of 2000, even if it be accepted as valid,could alter that unless fraud could be proved. As indicated above, the expert confirmed that it wasMrs Rosaline Mogale who had signed the documents. Mrs Letsholo stated in her affidavit thatshe was told by Dr Mammule that the document would not become effective before Mrs RosalineMogale had signed

the document. Expert opinion now confirms that she did in fact do so.IPlascon-Evans Paints LId v Van Riebeeck Paints (Pty) Ltd[1984] ZASCA 51;1984 (3) SA 623(A) at 635A-B.Whether she understood what she was signing away is, in the absence of other cogent evidence,impossible to determine now that she has passed away. Her last will might be regarded as suchevidence, but it is simply not sufficient to gainsay the verified signed document of 1987. Theprima facieevidence of ownership in the Deeds Registry must therefore be confirmed as valid.[10] The application which, in essence amounted to an application that the Court declareDr Mammule to be a co-owner, is dismissed.[11] In so far as costs are concerned, I believe that the present application was a matter ofcommon interest between the applicants and the first respondent and that it served such interestto clarify the legal position. I accordingly make no order as to costs. I might mention that thiscosts order would also seem to accord with the last expression of intent of Mrs Rosaline Legoalein her will : share and share alike.[12] In so far as the application for eviction of the first applicant from Erf 2495 is concerned, theapplication is acceded to. It follows from the above reasons that he must vacate the premiseswhich belong to Dr Mammule. He must vacate the property within a reasonable time: in this caseI hold such time to

be 31 May 2005. He knew about the possibility that the Court might dismissthe application in which he was the first applicant and it would not be reasonable to expect DrMammule to wait longer than 31 May 2005 to take possession of her property. The Sheriff isauthorized and ordered to execute the eviction order so granted at any time following the datementioned in the event of the first applicant not vacating the property on or before the said date.Once again no costs order is made.JCW van RooyenActing Judge of the High Court/For the Respondent: adv GLM Bokaba For the Applicant: adv J Kruger

Will – in conflict with registered ownership of one of the children of the deceased - registered

ownership shown by expert testimony not to have been based on

a

forgery of the deceased's

signature.

Van Rooyen AJ

[

1] This is a dispute between me

mbers of the same family about the ownership of a house in

Atteridgeville, Tshwane, (formally known

as Erf 2495). The dispute has i

ts roots in Apartheid

South Africa, where ownership ofland was strictly regulated toexclude ownership by Black people, inter alia, in so-called locations, also known as townships.Atteridgeville was such a

South Africa, where ownership of

land was strictly regulated to

exclude ownership by Black people, inter alia, in so-called locations, also known as townships.

Atteridgeville was such a

township.

[2] Mrs Roseline Elizabeth Legoale was born in March 1912. She was granted a site permit to Erf

2495 in July 1964. She signed the permit above the words "Signature or left thumb print of person

to whom certificate is granted". She had developed the property by way of the profits made from the making of clothes. On the 8thOctober 1985 she made a will in which she bequeathed her

to whom certificate is granted". She had developed the property by way of the profits made from the making of clothes. On the 8

th

October 1985 she made a will in which she bequeathed her

entire estate to her daughter Esther Legoale, a medical doctor. She was also appointed as

executrix. It was commo

n cause that Esther Legoale ( "

Dr Mammule") is the First Respondent.

[3] Since Mrs Roseline Legoale was concerned that as a pensioner and widow she might lose her

IN THE HIGH COURT OF SOUTH AFRICA(TRANSVAAL PROVINCIAL DIVISION)

DATE: 29/04/2005

REPORTABLE

In the matter between:BOTILENG LEGOALE & EIGHT OTHERS

APPLICANTSandMAMMULE ESTHER LEGOALE

FIRST RESPONDENTPRETORIA REGISTRAR OF DEEDS

SECOND RESPONDENT

CO-OCCUPIERS OF ERF 2495 ATTERIDGEVILLE

THIRD RESPONDENT

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

site permit, a family me

eting was held and it was decide

d that the property be transferred to Dr

Mammule. On 1 September 1987 one of the daughters of Mrs Roseline Legoale, Mrs Monica

Letsholo, confirmed by way of affidavit that her mother wished to transfer the site permit to Dr

Mammule. This handwritten statement bears the stamp of the Town Council of Atteridgeville and

is dated 1 September 1987. It was signed by the said daughter and attested to by two witnesses.

Mrs Letsholo now states in an affidavit that she was manipulated by Dr Mammule to sign the

document and promised that the transfer would not take effect before their mother signed the

document as well. A further handwritten document states that Mrs Roseline Legoale transfers the

site permit to Dr Mammule. Mrs Roseline Legoale signed and it was also sworne to by her.

[4] When the new democratic dispensation was in the air after Nelson Mandela had been

released from prison in February 1990, ownership for Black individuals became a reality. In

terms of the Upgrading of Land Tenure Rights Act 1991, Act no 112 of 1991, the City Council of

Atteridgeville transferred the ownership of Erf 2495, measuring 300 square meters, to Dr Mammule on the 23

rd

December 1992. This transfer was effected by the Registrar of Deeds.

[5] On the

17

of August 2000, Mrs Roseline Legoale again made a will at the age of 87 years.

She bequeathed her estate equally to the nine applicants in this matter as well as Dr Mammule . She signed the will, but it was only attested to by one witness. The following names were

mentioned: Elizabeth Peto, Moni

ca Letsholo, Magdeline Malomane, Rebecca Mabele, John

Legoale, Dorcas Maninja, Esther Legoale, D

orcas Maninja, Grace Legoale, B

otileng

Legoale(grandson) and Naomi Lekwane. Five of Dr Mammule's six sisters and her only brother

are amongst the applicants in this matter.

[5] On the 22

nd

May 2002 Mrs Roseline Legoale passed away. She was aged ninety. Dr

Mammule was appointed as her executrix by the Master of the High Court.

[6] When th

e 17

August 2000 will and testament of Mrs Rosaline Legoale was read it appeared

I

to be in conflict with the ownership of Dr Mammule's ownership of the house on Erf 2495. The

house was explicitly included in the will and was also, as were her other assets, to go to the said

10 Legoale children. With prudence and wisdom she provided that "no one amongst them must

claim entitlement on my properties. My properties must belong to all of them". She also added

that "should any of the above mentioned names become unhappy and against my last will, the

remaining names should gather and buy her/him out of the property."

[7] The notice of motion requests this Court to restrain Dr Mammule from transferring the property

and to issue a declaratory order that the applicants and Dr Mammule are co-owners of the

property with the concomitant order to register the property in the names of the applicants and Dr

Mammule Esther Legoale.

[8] During argument before me the main issue was whether the signature of Mrs Roseline

Legoale had not been forged, inter alia, in the September1987certificate which confirmed that the site permit would be transferred to Dr Mammule. I afforded the applicants the opportunity to

Legoale had not been forged, inter alia, in the September

1987

certificate which confirmed that the site permit would be transferred to Dr Mammule. I afforded the applicants the opportunity to

obtain the opinion of a handwriting expert. The opinion of Frederick Fourie was handed up to me

at the last hearing of this application. He is a qualified forensic handwriting expert. After

comparing several of the signatures of the late Mrs Rosaline Legoale, he came to the conclusion

that "in taking all the corresponding writing characteristics into account and in the absence of

fundamental differences I could come to no other conclusion as that the signatures signed R

and

RE Legoale were most probably written by the same person." I could find no reason to doubt the

expert opinion and

adv Kruger,

for the Applicants, conceded the authenticity of the handwriting.

[9] All that is left is the vague suspicion that Mrs Legoale d

id not fully understand th

e legal

/

in

tricacies of her signing over the site permit

to Dr Mammule. Yet, judged by the answering

affidavit of Dr Mammule, whose affidavit should win the day when there is difference between the

founding affidavit and the answering affidavit unless it is far-fetched or clearly untenable,1 there

was a good and reasonable explanation for the fact that the deceased had transferred the site

permit to her. Legislation then settled the matter when the site permit holders' rights were

upgraded to ownership, There is no way in which the will of 2000, even if it be accepted as valid,

could alter that unless fraud could be proved. As indicated above, the expert confirmed that it was

Mrs Rosaline Mogale who had signed the documents. Mrs Letsholo stated in her affidavit that

she was told by Dr Mammule that the document would not become effective before Mrs Rosaline

Mogale had signed the document. Expert opinion now confirms that she did in fact do so.

Plascon-Evans Pain

ts LId v Van Riebeeck Paints (Pt

y) Ltd

[1984] ZASCA 51;1984 (3) SA 623(A) at 635A-B.

[1984] ZASCA 51

1984 (3) SA 623

Whether she understood what she was signing away is, in the absence of other cogent evidence,

impossible to determine now that she has passed away. Her last will might be regarded as such

evidence, but it is simply not sufficient to gainsay the verified signed document of 1987. The

prima facie

evidence of ownership in the Deeds Registry must therefore be confirmed as valid.

[10] The application which, in essence amounted to an application that the Court declare

Dr Mammule to be a co-owner, is dismissed.

[11] In so far as costs are concerned, I believe that the present application was a matter of

common interest between the applicants and the first respondent and that it served such interest

to clarify the legal position. I accordingly make no order as to costs. I might mention that this

costs order would also seem to accord with the last expression of intent of Mrs Rosaline Legoale

in her will : share and share alike.

[12] In so far as the application for eviction of the first applicant from Erf 2495 is concerned, the

application is acceded to. It follows from the above reasons that he must vacate the premises

which belong to Dr Mammule. He must vacate the property within a reasonable time: in this case

I hold such time to be 31 May 2005. He knew about the possibility that the Court might dismiss

the application in which he was the first applicant and it would not be reasonable to expect Dr

Mammule to wait longer than 31 May 2005 to take possession of her property. The Sheriff is

aut

horized and ordered to execut

e the eviction order so granted at any time following the date

mentioned in the event of the first applicant not vacating the property on or before the said date.

Once again no costs order is made.

JCW van RooyenActing Judge of the High Court

For the Respondent: adv GLM Bokaba For the Applicant: adv J Kruger