Mcunu and Others v Master of the High Court Gauteng Division, Johannesburg and Others (2023/053319) [2024] ZAGPJHC 1200 (14 November 2024)

Mcunu and Others v Master of the High Court Gauteng Division, Johannesburg and Others (2023/053319) [2024] ZAGPJHC 1200 (14 November 2024)

The court found that the testator's intention, as expressed in his will and supported by the surrounding circumstances, was to include the First Applicant as one of his children and thus as a beneficiary. The testator raised the First Applicant as his daughter, provided for her education, participated in significant life events, and prepared her for succession in his business. The court held that a restrictive, purely biological interpretation of 'my children' would be inconsistent with the testator's conduct and South Africa's constitutional values of dignity and family protection. The court adopted a generous interpretive approach, concluding that the First Applicant is entitled to...

Citation
[2024] ZAGPJHC 1200
Parties
Applicant: Thandeka Thabisile Truelove Mcunu; Applicant: Ayanda Mcunu; Applicant: Sifiso Njabulo Mcunu; Respondent: Master of the High Court, Gauteng Division, Johannesburg; Respondent: Rynhart Kruger N.O.; Respondent: Leticia Mmabatho Mcunu; Respondent: Lungile Mcunu; Respondent: Shantel Tsholofelo Mcunu; Respondent: Thulasizwe Dambuza; Respondent: Khansile Mbau; Respondent: Imballenhle Palesa Mcunu; Respondent: Menzilek Hlolohelo Mcunu
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
14 November 2024
Case Number
2023/053319
Procedural Posture
Civil Application / Final Judgment
Outcome
Application granted; declaratory relief issued in favour of the applicants.
Judges
Windell
Legal Topics
Interpretation of Wills, Freedom of Testation, Succession, Declaratory Relief, Rights of Children
Family and Children Civil Procedure Interpretation of Wills Freedom of Testation Succession Declaratory Relief Rights of Children

Case Brief

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Parties

Thandeka Thabisile Truelove Mcunu

Applicant

Ayanda Mcunu

Applicant

Sifiso Njabulo Mcunu

Applicant

Master of the High Court, Gauteng Division, Johannesburg

Respondent

Rynhart Kruger N.O.

Respondent

Leticia Mmabatho Mcunu

Respondent

Lungile Mcunu

Respondent

Shantel Tsholofelo Mcunu

Respondent

Thulasizwe Dambuza

Respondent

Khansile Mbau

Respondent

Imballenhle Palesa Mcunu

Respondent

Menzilek Hlolohelo Mcunu

Respondent

Procedural Posture

Civil Application / Final Judgment

Legal Issues

  1. 1 Whether the phrase 'my children' in the testator's will includes the First Applicant, who is not biologically related to the testator.
  2. 2 Whether extrinsic evidence may be considered in interpreting the testator's intention regarding beneficiaries.
  3. 3 Whether excluding the First Applicant from inheritance violates constitutional protections of dignity and family.

Ratio Decidendi

The court found that the testator's intention, as expressed in his will and supported by the surrounding circumstances, was to include the First Applicant as one of his children and thus as a beneficiary. The testator raised the First Applicant as his daughter, provided for her education, participated in significant life events, and prepared her for succession in his business. The court held that a restrictive, purely biological interpretation of 'my children' would be inconsistent with the testator's conduct and South Africa's constitutional values of dignity and family protection. The court adopted a generous interpretive approach, concluding that the First Applicant is entitled to...

Court Disposition

Application granted; declaratory relief issued in favour of the applicants.

Orders

  • It is declared that the words 'my children' in clause 4 of the written will of Menzi Mcunu include the First Applicant, Thandeka Thabisile Truelove Mcunu.
  • Costs are awarded against the fourth to the seventh respondents on a party and party scale, jointly and severally, the one paying the other to be absolved.