Mmamphsika and Another v Mmamphiska and Another (1932/2017) [2018] ZAGPPHC 628 (16 August 2018)

Mmamphsika and Another v Mmamphiska and Another (1932/2017) [2018] ZAGPPHC 628 (16 August 2018)

The court found that the application for rescission under Rule 42 must fail as the order was not erroneously granted. Rule 31(2)(b) was held inapplicable to motion proceedings. Under the common law, the applicants provided a reasonable explanation for their default, supported by evidence of attorney misconduct and a Law Society complaint. The applicants also set out a bona fide defence, namely that the deceased lacked mental capacity to execute the will, which, if established, would entitle them to relief. The court found no prejudice to the respondents if rescission was granted, as another will existed, and the applicants would be prejudiced if rescission was refused. The respondents'...

Citation
[2018] ZAGPPHC 628
Parties
Applicant: Annah Mmamphsika; Applicant: Sarah Sibanyoni; Respondent: Gwaribeng Sabina Mmamphsika; Respondent: Christoph Georg Leistner
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
16 August 2018
Case Number
1932/2017
Procedural Posture
Rescission Application / Judgment on Application for Rescission of Order
Outcome
Application for rescission granted; previous order rescinded and set aside.
Judges
Van der Schyff
Legal Topics
Rescission of Judgment, Validity of Will, Mental Capacity of Testator, Default Judgment, Mediation in Family Disputes
Civil Procedure Family and Children Rescission of Judgment Validity of Will Mental Capacity of Testator Default Judgment Mediation in Family Disputes

Case Brief

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Parties

Annah Mmamphsika

Applicant

Sarah Sibanyoni

Applicant

Gwaribeng Sabina Mmamphsika

Respondent

Christoph Georg Leistner

Respondent

Procedural Posture

Rescission Application / Judgment on Application for Rescission of Order

Legal Issues

  1. 1 Whether the order granted on 3 April 2017 declaring the deceased's will valid should be rescinded.
  2. 2 Whether the applicants provided a reasonable explanation for their default.
  3. 3 Whether the applicants have a bona fide defence with prospects of success.

Ratio Decidendi

The court found that the application for rescission under Rule 42 must fail as the order was not erroneously granted. Rule 31(2)(b) was held inapplicable to motion proceedings. Under the common law, the applicants provided a reasonable explanation for their default, supported by evidence of attorney misconduct and a Law Society complaint. The applicants also set out a bona fide defence, namely that the deceased lacked mental capacity to execute the will, which, if established, would entitle them to relief. The court found no prejudice to the respondents if rescission was granted, as another will existed, and the applicants would be prejudiced if rescission was refused. The respondents'...

Court Disposition

Application for rescission granted; previous order rescinded and set aside.

Orders

  • The application to strike out the applicant's replying affidavit is dismissed.
  • The respondent's application for condonation and leave to file a further affidavit is dismissed.