Court name
High Court Main Division
Case number
APPEAL 226 of 2012
Case name
Maritz v Master of the High Court (Windhoek Namibia)
Media neutral citation
[2013] NAHCMD 6
Judge
Smuts J





IN THE HIGH COURT OF NAMIBIA







NOT REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA MAIN
DIVISION, WINDHOEK








JUDGMENT



Case no: A 226/2012








In the matter between:








JOHANNES FRANCOIS MARITZ
..........................................................APPLICANT








and








MASTER OF THE HIGH COURT (WINDHOEK,
NAMIBIA) ..............RESPONDENT








Neutral citation: Maritz v Master
of the High Court (Windhoek, Namibia (A 226/2012) [2012] NAHCMD 6 (16
January 2013)








Coram: Smuts, J



Heard: 23 November 2012



Delivered: 16 January 2013








Flynote: Application to compel
the Master to accept a will – non joinder of intestate heirs
raised mero motu by court with the applicant – further
affidavits filed – despite the need to identify the intestate
heirs, the application as amplified failed to do so –
application refused by reason of non joinder.













ORDER













The application is refused


















JUDGMENT













SMUTS, J









  1. This is an application to compel the
    Master to accept the will signed by the late Frans Albertus Maritz
    (the deceased) on 21 March 2010 as his last will alternatively to
    accept the first five pages of the will as his will.










  1. The Master had not accepted the will
    on grounds that “the spacing between the body of the will and
    the signature of the testator was not as close as required by law”.










  1. The applicant, a son of the deceased
    nominated as executor and as a beneficiary in the will, then brought
    this application, citing the master as respondent. The master does
    not oppose the application. In view of authority in South Africa1
    on the issue raised by the application, I requested that argument be
    addressed on the issues raised by the application. The applicant’s
    counsel, Mr Van der Berg, presented oral argument, preceded by
    thorough written argument at the hearing and I reserved judgment.










  1. After doing so, I noted that the
    intestate heirs were not identified in the application and had not
    been cited, joined or served. They would plainly have a direct and
    substantial interest in the relief sought. I accordingly caused a
    letter to be sent to the applicant’s legal practitioners on 26
    November 2012 in the following terms:




Following
the reservation of judgment, the Honourable Judge has requested me to
address the following issue:



Insofar
as the Master has not accepted the will, it would appear that those
who would be intestate heirs would have a direct and substantial
interest in the relief sought. They are not referred to in the
application. Nor was there service of it upon them. The applicant is
invited to make submissions on the non joinder of the intestate heirs
or to address the issue by way of a supplementary affidavit
identifying them and securing affidavits from them in support of the
application and waiving formal service of it upon them. In the
absence of the receipt of such submissions or affidavits or
applications for joinder by 12 December 2012, the application will be
dealt with on the papers currently filed of record.”








[5] Following this letter, seven
further affidavits were filed on 12 December 2012. They were deposed
to by another son of the deceased (other than the applicant), a
daughter of the deceased, four grandchildren of the deceased and the
guardian of two further grandchildren of the deceased. All of the
deponents expressed their support for the application and waived
formal service upon them. But despite the terms of the letter
pointing out the need to identify the intestate heirs, in none of the
affidavits is it stated who the intestate heirs are. Nor is it even
stated if the deponents are in fact interstate heirs. As the deceased
was referred to in the will as a widower, his children would then be
intestate heirs. But this status, set out in the will, was some time
before he died. There are three children referred to in the will. But
the will does not state how many children the deceased had or that
the three children referred to were his only children. This despite
the statement in clause 5.1.5 of the will in which he made the
following bequests:



5.1
I bequeath –



5.1.1
my shares in Maritz Boerdery (Proprietary) Limited to my children
Johannes Francois Maritz and Ferans Albertus Maritz (JNR) in such
proportions that the shares in the said company shall henceforth be
held in equal shares of one half each by the aforementioned heirs;



5.1.2
all my motor vehicles to Maritz Boerdery (Proprietary) Limited;



5.1.3
N$800 00 (eight hundred thousand Namibia Dollars) to my daughter,
Magdelena Nel;



5.1.4
all my furniture and the contents of my house to my children
Magdelena Nel and Frans Albertus Maritz (JNR)



5.1.5
the entire residue of my estate to my children Johannes Francois
Maritz, Magdelena Nel, and Frans Albertus Maritz (JNR) in equal in
equal shares, share and share alike.”








[6] The fact that 4 grandchildren and
the guardian of two others deposed to affidavits in the context of
the letter addressed to the applicant’s legal practitioner may
indicate that at least one child may have predeceased the deceased.
Although the deceased is referred to as a widower in the will, it was
signed on 21 March 2010, more than 2 years before the date of death
on 6 June 2012. There is no statement in any of the numerous
affidavits filed as to who the intestate heirs are. I find this all
inexplicable in the context of the letter and the issue of joinder
raised by it. A court cannot engage in conjecture on the issue,
particularly given the fact that the letter expressly states that the
intestate heirs were not referred to in the application and expressly
referred to the need to identify them.








[7] On that fundamental issue as to
who the intestate heirs are, the question of their non joinder
remains. This question can (and should) be raised by a court mero
motu
2when
parties directly affected by litigation are not cited or served. The
applicant was explicitly alerted to this, yet failed to properly
address this fundamental issue. The intestate heirs in my view have a
direct and substantial interest in the relief sought in this
application as I have said. They should have been joined or at least
waived that right and/or supported the application. In the
circumstances, it is not necessary to deal with the interesting legal
question raised by this application. Nor do I need to consider
whether a curator ad litem would need to be appointed in
respect of the minor children as it is not clear to me whether they
are intestate heirs or not.








[8] In the circumstances, the
application is refused. In making this order, I wish to make it clear
that the merits have not been addressed.













________________



DF SMUTS



Judge









1Kidwell
v The Master 1983 (1) SA 509 (E)





2Amalgamated
Engineering Union v Minster of Labour 1949 (3) SA 637 (A)