M.Z.O N.O and Another v S.M and Others (2372/2024; 5234/2024) [2025] ZAFSHC 40 (13 February 2025)
- Citation
- [2025] ZAFSHC 40
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- Hefer AJ
- Case number
- 2372/2024; 5234/2024
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- Hefer AJ
- Case number
- 2372/2024; 5234/2024
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that only those codicils accepted by the Master of the High Court, in compliance with the Wills Act, could be considered valid and enforceable. The rejected codicils, including the one purporting to amend the bequest of the property, had no legal effect. The will clearly bequeathed the property to the granddaughter upon her reaching the age of 21, subject to the usufruct of the deceased's wife and certain leasing preferences. The applicants, as trustees, failed to establish that the conditions for transfer and eviction had been met, and did not demonstrate that the respondents' occupation was unlawful under the terms of the will and trust. Accordingly, both applications were dismissed with costs.
Court disposition
Both applications are dismissed with costs.
Orders
- Application number 2372/2024 is dismissed with costs.
- Application number 5234/2024 is dismissed with costs.
02
Material facts
Parties
M[...] Z[...] O[...] N.O.
ApplicantChristiaan Wagenaar N.O.
ApplicantS[...] M[...]
RespondentAny Unknown Unlawful Occupiers residing at 1[...] B[...] Street, District Ladybrand, Free State Province
RespondentMatsopa Local Municipality
RespondentS[...] K[...] M[...]
ApplicantN[...] N[...] M[...]
ApplicantN[...] M[...] M[...]
RespondentDaniel Johannes Rudolph Schutte N.O.
RespondentMaster of the High Court, Free State
RespondentRegistrar of Deeds, Bloemfontein
Respondent03
Procedural history
Posture
Civil Application / Judgment After Consolidation of Two Applications
04
Questions and positions
Legal issues
- 01
Whether the codicils to the deceased's will are valid and enforceable.
- 02
Whether the bequest of Erf 5[...] Ladybrand to the granddaughter is subject to the conditions in the will and codicils.
- 03
Whether the applicants, as trustees, are entitled to evict the respondents from the property.
- 04
Whether the Master of the High Court correctly accepted or rejected certain codicils.
Party arguments
- Applicant
- The applicants, acting as trustees, argued that the deceased's will and accepted codicils clearly bequeathed the property to the granddaughter, subject to certain conditions, and that the rejected codicils should not affect the transfer. They contended that the respondents' occupation was unlawful and sought eviction and transfer of ownership as per the will.
- Respondent
- The respondents challenged the validity of the codicils and the interpretation of the will, arguing that the conditions for transfer had not been met and that the Master had correctly rejected certain codicils. They further argued that the applicants lacked standing to seek eviction and that the occupation was lawful under the terms of the will and trust.
05
Court’s reasoning
Legal principles
- 01
Wills Act 7 of 1953
A will and its codicils must comply with the formal requirements of the Wills Act 7 of 1953 to be valid and enforceable.
- 02
King and Others NNO v De Jager and Others 2021 (4) SA 1 (CC)
The intention of the testator, as expressed in the will and valid codicils, is paramount in the interpretation of testamentary dispositions.
- 03
Robertson v Robertson’s Executors 1914 AD 503
A usufruct granted in a will confers a real right to the beneficiary, which may affect the timing and conditions of transfer to other beneficiaries.
06
Ratio, limits and disposition
Ratio decidendi
The court found that only those codicils accepted by the Master of the High Court, in compliance with the Wills Act, could be considered valid and enforceable. The rejected codicils, including the one purporting to amend the bequest of the property, had no legal effect. The will clearly bequeathed the property to the granddaughter upon her reaching the age of 21, subject to the usufruct of the deceased's wife and certain leasing preferences. The applicants, as trustees, failed to establish that the conditions for transfer and eviction had been met, and did not demonstrate that the respondents' occupation was unlawful under the terms of the will and trust. Accordingly, both applications were dismissed with costs.
Obiter and limits
- The court noted that the Master of the High Court has a duty to ensure compliance with statutory formalities in the acceptance of codicils.
- The court observed that disputes over testamentary interpretation should be resolved with reference to the testator's expressed intentions, as long as they comply with the law.
- The consolidation of related applications may promote judicial efficiency but does not alter the substantive requirements for relief.
Court disposition
Both applications are dismissed with costs.
- Application number 2372/2024 is dismissed with costs.
- Application number 5234/2024 is dismissed with costs.
Source and reliance status
Free State High Court, Bloemfontein
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.
Free State High Court, Bloemfontein
Judgment
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Reportable Yes/No
Case No: 2372/2024
In the matter between: M[…] Z[...] O[...] N.O. First Applicant
CHRISTIAAN WAGENAAR N.O. Second Applicant (In their capacities as the trustees for the time-being of the Shisha Trust, T70[…]) and S[...] M[...] First Respondent
ANY
UNKNOWN UNLAWFUL OCCUPIERS RESIDING AT 1[...] B[...] STREET, DISTRICT LADYBRAND,
FREE
STATE PROVINCE Second Respondent
MATSOPA
LOCAL MUNICIPALITY Third Respondent Case No: 5234/2024 In the matter between: S[...] K[...] M[...] First Applicant. N[...] N[...] M[...] Second Applicant and N[...] M[...] M[…] First Respondent M[...] Z[...] O[...] N.O.[…]Second Respondent
CHRISTIAAN WAGENAAR N.O. Third Respondent (In their capacity as trustees for the time-being of the Shisha Trust, T70[…])
DANIEL JOHANNES RUDOLPH SCHUTTE N.O. Fourth Respondent (In his capacity as trustee of the K[...] T[...] M[...] Testamentary Trust, MT1[…])
MASTER OF THE HIGH COURT, FREE STATE Fifth Respondent
REGISTRAR OF DEEDS, BLOEMFONTEIN Sixth Respondent
CORAM: Hefer AJ
Heard: 21 November 2024
Delivered: 13 February 2025
ORDER
1. Application number 2372/2024 is dismissed with costs.
2. Application number 5234/2024 is dismissed with costs.
JUDGMENT
Hefer AJ
[1] In terms of an order of Court, dated 24 October 2024, the two applications under the above case numbers, had been consolidated.
Background:
[2] K[...] T[...] M[...] (the deceased) passed away on 22 May 2000.
[3] On 14 May 1997, a will was passed by the deceased. This will was accepted by the Master of the High Court.
[4] Subsequent to this will, the deceased has passed a further not less than thirteen codicils to his original will. It appears that the Master has accepted nine of these codicils. Four of them had been rejected for not complying with the provisions of the Wills Act 7 of 1953.
[5] The relevance of some of these codicils (both accepted as well as rejected), will be dealt with herein.
[6] In his will the deceased bequeathed Erf 5[…], Ladybrand as follows:
‘8.1 I bequeath to the Memorial Trust –
8.1.1 My residential property situate (sic) at Erf Nr 5[…] Ladybrand, RSA, which property is to be transferred in full ownership to my granddaughter N[...] M[...] M[...] when she turns 21 (TWENTY ONE) years.
8.2 The bequest in clause 8.1 is subject to the following conditions –
8.2.1 The usufruct of my wife M[...] G[...] M[...] as provided for in clause 4.5;
8.2.2 The property contemplated in clause 8.1.1 is to be leased, preferably to any suitable male offspring of the M[...] FAMILY.’
[7] In the will of the deceased he further recorded as follows:
‘I record that I have decided to treat my granddaughter N[...] M[...] M[...] more favourably than my other grandchildren since she, unlike my other grandchildren, had the misfortune of losing her father at a very young age.’
[8] The property referred to is also known as 1[…] B[…] Street, Ladybrand and Ms M[...] referred to is the first respondent in case number 5234/2024 (“the second application”).
[9] In terms of a separate clause of the deceased’s will, the deceased’s late wife M[...] G[...] M[...] was awarded usufruct over inter alia ‘my residential property situate (sic) at Erf Nr 5[...] Ladybrand, RSA’.
[10] In his codicil dated 15 October 1998 the deceased provided as follows:
‘1[...] B[...] Street, Ladybrand FS
I the undersigned do hereby amend that part of my will that specifically refers to the property I own and is situated at Plot Nr 1[...] B[...] Street, Ladybrand.
At 21 years my granddaughter M[...] N[...] M[...] born of late son N[...] L[...] M[...] be assisted by ‘the Trust Committee, its successors, established to conduct the affairs of the Trust Fund to full ownership of the said property and is further charged to initiate to fully appreciate the norms and values such property i.e. to exercise parental control as we all called upon to do …’
[11] This codicil was however rejected by the Master due to not complying with the provisions of the Wills Act.
[1] King and Others NNO v De Jager and Others 2021 (4) SA 1 (CC) at par. [34], p. 18;
Robertson v Robertson’s Executors 1914 AD 503 at 507.
[2] 1992 (1) SA 629 (A)
[3] 1977 (4) SA 440 (W)
[4] p. 443 C – E.
[5] 1932 CPD 202 at 205.
[6] Reyneke v Incorporated General Insurances Ltd 1974 (2) SA 84 (A); South African Mutual Life Assurance Society v Anglo Transvaal Collieries Ltd 1977 (3) SA 642 (A).
[7] Ex Parte Nell 1963 (1) SA 754 (A); Mohammed v Mohammed 1976 (3) SA 151 (T).
[8] 2005 (1) SA 217 (CC)
[9] p. 232 B – D.
[10] p. 232 F – G.
[11] p. 242, par. [48]
[12] p. 232, par. [26].
[13] p. 237, par. [36]
[14] p. 244, par. [53].
[15] 2017 (5) SA 346 (CC)
[16] p. 361 D – E.
[17] Par. [32].
Case-aware research
Ask AI about this case
The judgment and available research above are public. New questions open in a separate private conversation grounded in this case.