Molefe and Others v The Executor: Estate Late Edgar Molefe and Others (4884/2021) [2022] ZAFSHC 195 (25 August 2022)

Molefe and Others v The Executor: Estate Late Edgar Molefe and Others (4884/2021) [2022] ZAFSHC 195 (25 August 2022)

The court found that the respondents' points in limine regarding prescription and the applicability of the Intestate Succession Act were misplaced. The Prescription Act does not apply to rights governed by Black law, and the Black Administration Act's male primogeniture rule is unconstitutional and cannot exclude female heirs. There are material disputes of fact regarding the existence of a buy-out agreement, the identity of the heirs, and the applicability of the Black Administration Act, which cannot be resolved on the papers. Therefore, the matter must be referred for oral evidence to properly ventilate these disputes.

Citation
[2022] ZAFSHC 195
Parties
Applicant: Judith Molefe; Applicant: Gloria Molefe; Applicant: Mmanni Notsi; Applicant: Lehlohono Moliko; Respondent: The Executor: Estate Late Edgar Molefe; Respondent: Thandiwe Molefe; Respondent: Registrar of Deeds: Bloemfontein
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
25 August 2022
Case Number
4884/2021
Procedural Posture
Civil Application / Referral for Oral Evidence After Opposed Motion
Outcome
Points in limine dismissed; matter referred for oral evidence; costs to be costs in the trial.
Judges
Chesiwe
Legal Topics
Intestate Succession, Male Primogeniture, Prescription Act, Black Administration Act, Dispute of Fact, Motion Proceedings
Land and Property Family and Children Civil Procedure Intestate Succession Male Primogeniture Prescription Act Black Administration Act Dispute of Fact +1 more

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Parties

Judith Molefe

Applicant

Gloria Molefe

Applicant

Mmanni Notsi

Applicant

Lehlohono Moliko

Applicant

The Executor: Estate Late Edgar Molefe

Respondent

Thandiwe Molefe

Respondent

Registrar of Deeds: Bloemfontein

Respondent

Procedural Posture

Civil Application / Referral for Oral Evidence After Opposed Motion

Legal Issues

  1. 1 Whether the applicants' claim to inherit the property has prescribed under the Prescription Act.
  2. 2 Whether the Intestate Succession Act applies to the applicants' claim.
  3. 3 Whether the principle of male primogeniture excludes female heirs from inheritance.

Ratio Decidendi

The court found that the respondents' points in limine regarding prescription and the applicability of the Intestate Succession Act were misplaced. The Prescription Act does not apply to rights governed by Black law, and the Black Administration Act's male primogeniture rule is unconstitutional and cannot exclude female heirs. There are material disputes of fact regarding the existence of a buy-out agreement, the identity of the heirs, and the applicability of the Black Administration Act, which cannot be resolved on the papers. Therefore, the matter must be referred for oral evidence to properly ventilate these disputes.

Court Disposition

Points in limine dismissed; matter referred for oral evidence; costs to be costs in the trial.

Orders

  • The points in limine of the First and Second Respondent are dismissed with no order as to costs.
  • The matter is referred for oral evidence to deal with disputes of facts.