Makgamatha v Ngwenya (028546-2023) [2024] ZAGPJHC 187 (27 February 2024)
- Citation
- [2024] ZAGPJHC 187
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Fisher
- Case number
- 028546/2023
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Fisher
- Case number
- 028546/2023
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the applicant for intervention, Ms Makgamatha, has a direct and substantial interest in the estate of the deceased, particularly regarding the immovable property subject to the settlement agreement. The statutory framework regulating customary law in intestate succession may allow non-biological children to inherit, which is relevant to the dispute over the respondents' status as heirs. Given these interests, the applicant for intervention should be joined in the main application to ensure all parties with a legitimate claim are before the court. The joinder is necessary for the proper adjudication of the matter and to avoid prejudice to any party.
Court disposition
The application for joinder is granted.
Orders
- Ms Mmanoko Jeanneke Makgamatha is granted leave to intervene in the main application under case number 2023/028546.
- Costs are costs in the cause.
02
Material facts
Parties
Mmanoko Jeanneke Makgamatha
ApplicantNakedi Salmina Ngwenya
Respondent03
Procedural history
Posture
Joinder Application / Application for Joinder in Main Proceedings
04
Questions and positions
Legal issues
- 01
Whether the applicant for intervention has a direct and substantial interest in the estate and should be joined as a party.
- 02
Whether the settlement agreement dated 2 May 2013 or the document dated 5 April 2023 was made an order of court in the divorce proceedings.
- 03
Whether the respondents in the main application are biological heirs of the deceased for the purposes of intestate succession under customary law.
Party arguments
- Applicant
- The applicant for intervention contends that she retains an interest in the immovable property forming part of the deceased's estate, based on the settlement agreement she claims was made an order of court. She argues that this direct and substantial interest entitles her to be joined in the proceedings concerning the distribution of the estate.
- Respondent
- The respondents in the main application are challenged on the basis that they are allegedly not the biological heirs of the deceased. They are expected to rely on statutory provisions regulating customary law in intestate succession, which may allow non-biological children to inherit under certain circumstances.
05
Court’s reasoning
Legal principles
- 01
Amalgamated Engineering Union v Minister of Labour 1949 (3) SA 637 (A)
A person with a direct and substantial interest in the subject matter of litigation must be joined as a party to the proceedings.
- 02
Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009
Under customary law, a descendant for the purposes of intestate succession may include a non-biological child if statutory requirements are met.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the applicant for intervention, Ms Makgamatha, has a direct and substantial interest in the estate of the deceased, particularly regarding the immovable property subject to the settlement agreement. The statutory framework regulating customary law in intestate succession may allow non-biological children to inherit, which is relevant to the dispute over the respondents' status as heirs. Given these interests, the applicant for intervention should be joined in the main application to ensure all parties with a legitimate claim are before the court. The joinder is necessary for the proper adjudication of the matter and to avoid prejudice to any party.
Obiter and limits
- Counsel for the parties had not considered the relevant statute regulating customary law in intestate succession, which may be pivotal in the main application.
- If the applicant for intervention's version is correct, she ought to have been joined from the outset.
Court disposition
The application for joinder is granted.
- Ms Mmanoko Jeanneke Makgamatha is granted leave to intervene in the main application under case number 2023/028546.
- Costs are costs in the cause.
Source and reliance status
South Gauteng High Court, Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 028546/2023
DATE: 13-11-2023
REPORTABLE: NO.
OF INTEREST TO OTHER JUDGES: NO.
REVISED.
27 /02/202
In the matter between
MMANOKO JEANNEKE MAKGAMATHA Applicant
and
NAKEDI
SALMINA NGWENYA Respondent
JUDGMENT
FISHER, J: This is an application for joinder. The joinder application is in respect of the main application which is an application to remove two persons as the executors of the estate of a deceased person.
The allegations made in the main application relate to the biological parentage of the respondents in the main application. A central to the dispute in the matter is whether an agreement of settlement dated 2 May 2013 was made an order of court on the divorce of the applicant for intervention and the deceased, whose estate is the subject of the main application or whether another document dated 5 April 2023 was the settlement agreement that was made the order of court.
In terms of the settlement agreement contended for by the applicant for intervention, she retains an interest in the immovable property which is the subject matter of the estate. As such she has a direct and substantial interest in the estate and the manner in which the estate is to be distributed amongst the heirs of the deceased.
It bears mention that the applicants in the main application seek the removal of the respondents in the main application on the basis that they contend that they (the respondents) are not the biological heirs of the deceased. The applicant for intervention is their mother.
Counsel for the parties have been referred by me to statute dealing with the regulation of the customary law applicable in intestate succession. It appears that neither counsel had reference to this statute in their advice to their clients.
The import of the statute is that a descendant for the purposes of intestate succession can be a non-biological child if certain circumstances are met. The respondents in the main application who are sought to be removed as executors will no doubt rely on this provision in due course.
Given the fact that the applicant for intervention has the necessary interest, there is no reason why she should not be joined in the matter. Indeed, if her version is found to be correct in due course, she should have been joined from the outset.
In these circumstances, I make the following order:
The applicant in the application to intervene, Ms Mmanoko Jeannete Makgamatha, is granted leave to intervene in the main application under case number 2023/028546.
The costs are costs to be in the cause.
FISHER J
JUDGE OF THE HIGH
COURT
DATE: 27/02/2024
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