N.M v Z.M and Another (2023/017986) [2023] ZAGPJHC 247 (22 March 2023)

N.M v Z.M and Another (2023/017986) [2023] ZAGPJHC 247 (22 March 2023)

The application was dismissed because the applicant failed to provide any factual basis linking ZM to BM's death. The suspicion was founded solely on the death certificate's reference to 'unnatural causes' and 'poisoning', without any corroborating evidence or confirmation from the police. The applicant's assertion that ZM was a suspect was unsupported by primary facts or official confirmation. In the absence of evidence implicating ZM, the 'bloedige hand' principle could not be invoked, and no case was made out for the preservation or freezing of the death benefit. The lack of opposition did not justify granting relief, and no costs order was made.

Citation
[2023] ZAGPJHC 247
Parties
Applicant: NM on behalf of the children: MM, LM and BM; Respondent: ZM; Respondent: The Mineworker’s Provident Fund
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
22 March 2023
Case Number
2023/017986
Procedural Posture
Urgent Application / Application for Interim Relief
Outcome
Application dismissed; no order as to costs.
Judges
S D J Wilson
Legal Topics
Interim Relief, Preservation Order, Guardianship, Death Benefit, Bloedige Hand Principle
Civil Procedure Family and Children Interim Relief Preservation Order Guardianship Death Benefit Bloedige Hand Principle

Case Brief

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Parties

NM on behalf of the children: MM, LM and BM

Applicant

ZM

Respondent

The Mineworker’s Provident Fund

Respondent

Procedural Posture

Urgent Application / Application for Interim Relief

Legal Issues

  1. 1 Whether the applicant established sufficient factual grounds to justify the preservation of the deceased's pension fund death benefit pending a police investigation.
  2. 2 Whether the common law 'bloedige hand' principle applies in the absence of evidence linking the respondent to the deceased's death.
  3. 3 Whether the applicant's papers support an order restraining the respondent from accessing the death benefit.

Ratio Decidendi

The application was dismissed because the applicant failed to provide any factual basis linking ZM to BM's death. The suspicion was founded solely on the death certificate's reference to 'unnatural causes' and 'poisoning', without any corroborating evidence or confirmation from the police. The applicant's assertion that ZM was a suspect was unsupported by primary facts or official confirmation. In the absence of evidence implicating ZM, the 'bloedige hand' principle could not be invoked, and no case was made out for the preservation or freezing of the death benefit. The lack of opposition did not justify granting relief, and no costs order was made.

Court Disposition

Application dismissed; no order as to costs.

Orders

  • The application is dismissed.
  • Each party is to pay their own costs.