Moshabane v Mtshagi and Others (70/2022) [2024] ZAECQBHC 2 (25 January 2024)

Moshabane v Mtshagi and Others (70/2022) [2024] ZAECQBHC 2 (25 January 2024)

The applicant failed to establish locus standi, as she was neither a nominated beneficiary under the impugned will nor entitled to inherit intestate, given the marriage between her father and the testatrix was out of community of property and the relevant legal consequences had crystallised prior to the Sithole judgment. The applicant's allegations of forgery and disqualification of the first respondent were unsupported by evidence and convincingly rebutted by affidavits from the actual witness and the drafting attorney. No genuine dispute of fact existed on the papers, and the applicant's assertions were rejected. The application was dismissed with costs. The applicant's conduct as an...

Citation
[2024] ZAECQBHC 2
Parties
Applicant: Thandiwe Angel Moshabane; Respondent: Pamela Nosipho Mtshagi; Respondent: Remax Estate Agent; Respondent: Xhanti Mtongana; Respondent: Zonke Budaza Inc.; Respondent: Zonke Budaza; Respondent: Simon Jonker; Respondent: Master of the High Court
Court
Eastern Cape High Court, Gqeberha
Jurisdiction
South Africa
Judgment Date
25 January 2024
Case Number
70/2022
Procedural Posture
Civil Application / Final Judgment After Written and Oral Submissions
Outcome
Application dismissed with costs; judgment and order to be forwarded to the Legal Practice Council for investigation into the applicant's fitness to practice as a legal practitioner.
Judges
V P Noncembu, T Malusi
Legal Topics
Wills Act, Locus Standi, Non Joinder, Forgery of Will, Intestate Succession, Costs Order
Family and Children Land and Property Civil Procedure Wills Act Locus Standi Non Joinder Forgery of Will Intestate Succession +1 more

Case Brief

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Parties

Thandiwe Angel Moshabane

Applicant

Pamela Nosipho Mtshagi

Respondent

Remax Estate Agent

Respondent

Xhanti Mtongana

Respondent

Zonke Budaza Inc.

Respondent

Zonke Budaza

Respondent

Simon Jonker

Respondent

Master of the High Court

Respondent

Procedural Posture

Civil Application / Final Judgment After Written and Oral Submissions

Legal Issues

  1. 1 Whether the applicant has locus standi to challenge the will of the late Nomfundo Ivy Khave.
  2. 2 Whether the non-joinder of other beneficiaries is dispositive of the application.
  3. 3 Whether the applicant has made out a case for disqualification of the first respondent as beneficiary and for revocation of the will on grounds of forgery.

Ratio Decidendi

The applicant failed to establish locus standi, as she was neither a nominated beneficiary under the impugned will nor entitled to inherit intestate, given the marriage between her father and the testatrix was out of community of property and the relevant legal consequences had crystallised prior to the Sithole judgment. The applicant's allegations of forgery and disqualification of the first respondent were unsupported by evidence and convincingly rebutted by affidavits from the actual witness and the drafting attorney. No genuine dispute of fact existed on the papers, and the applicant's assertions were rejected. The application was dismissed with costs. The applicant's conduct as an...

Court Disposition

Application dismissed with costs; judgment and order to be forwarded to the Legal Practice Council for investigation into the applicant's fitness to practice as a legal practitioner.

Orders

  • The application is dismissed with costs.
  • This judgment and order shall be forwarded to the Legal Practice Council to conduct an investigation on the fitness of the applicant to practice as a legal practitioner.