Court name
High Court Main Division
Case number
APPEAL 34 of 2014
Title

Tjingaete v Lakay N.O and Others (APPEAL 34 of 2014) [2014] NAHCMD 178 (11 June 2014);

Media neutral citation
[2014] NAHCMD 178
Coram
Smuts J










REPUBLIC
OF NAMIBIA






 


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


 


JUDGMENT


Case
no: A 34/2014






REPORTABLE






DATE:
11 JUNE 2014






In
the matter between:


 



EFRAIM
TJINGAETE........................................................................................APPLICANT


 


And


 


NIEL
MARIUS LAKAY N.O.


IN
RE ESTATE LATE ERICH
TJINGAETE.......................................1ST
RESPONDENT






MASTER
OF THE HIGH COURT OF NAMIBIA.............................2ND
RESPONDENT






SELLA
HENGARI................................................................................3RD
RESPONDENT






MARVIN
NGUTJIWA
HENGARI......................................................4TH
RESPONDENT


 


Neutral
citation:        Tjingaete v Lakay
NO (A 34/2014) [2014] NAHCMD 178 (11 June 2014)



 



Coram:                     
Smuts, J



Heard:                       
21 May 2014



Delivered:                
11 June 2014



 



 


Flynote:        
Return date of a rule
nisi
granted ex
parte
. Applicant claimed to be
intestate heir as an adopted child under Herero customary law. Locus
standi of applicant challenged by denying that he was an intestate
heir. The need to prove customary law restated. The court found that
the applicant failed to do so and that the claim under customary law
was not established. But it was successfully argued that the
applicant had standing under common law. The applicant however failed
to establish a
prima facie
right to the relief sought in the form of a review. The court also
found that there had been a material non-disclosure in the founding
papers prior to the granting of the rule nisi. The rule would also
have been discharged for that reason.



 


ORDER


 


 


The
rule is discharged with costs



 


 


JUDGMENT


SMUTS,
J


[1]               
On this return date of a rule nisi,
interesting questions concerning the assertion of a claim of adoption
under Herero customary law and whether this would entitle the
applicant to be an intestate heir in the estate of the late Erich
Tjingaete (“the deceased”) are raised together with the
requisite of establishing a prima facie right for an interim
interdict and the need to make a full disclosure to court in
ex
parte
applications.


 


Background
facts


 


[2]               
These issues arise for determination
in the following way.  The applicant approached this court
ex
parte
and as a matter of urgency for an
interim interdict pending the finalisation of a review application to
be instituted against the Master of the High Court concerning the
administration of the estate of the deceased.  In essence, the
applicant sought the preservation of estate assets in this
application pending the outcome of that intended review application. 
The applicant claims to be an intestate heir of the deceased, who
died intestate, by asserting that he would qualify to inherit under
customary and common law by virtue of his assertion that he was
adopted under Herero customary law. 


 


[3]               
The
applicant approached this court to prevent the delivery of cattle
which belonged to the deceased pursuant to a sale which the estate
representative appointed by the Master under s 18(3) of the Estates
Act[1] (the Act) had entered
into with the purchaser of the cattle, the fourth respondent. 
The estate representative is cited as the first respondent in this
application and is the only respondent who opposes the interdict on
this return date. 


 


[4]               
The applicant contends that the sale
of the cattle was considerably below their market value and
approached this court urgently on an
ex
parte
basis to prevent the delivery of
the cattle to the fourth respondent.  The applicant was then
granted a rule nisi in the following terms: 


1.
A
rule nisi hereby
issues calling upon the respondents and any interested parties to
show cause (if any) on/before
WEDNESDAY the
02NDday
of
APRIL 2014 at
15h30 or as soon
thereafter as counsel for the applicant may be heard, why the
following order should not be made final:



1.1  
Interdicting and restraining the first respondent from in any manner
whatsoever, entering upon the administration of the estate of the
late Erich Tjingaete and/or acting upon any authority purporting to
be granted by letters of appointment No. 173/2012 and dated 18
September 2013;



1.2   
Interdicting and restraining the first
respondent from in any manner encumbering, disposing of or in any
other manner whatsoever administer and/or deal with any asset(s) in
the estate of the late Erich Tjingaete including in particular, but
not limited to those assets listed in the Section 9 inventory dated
18 September 2013, to wit-



1.2.1     
Erf 4856 Katutura;



1.2.2 
All Cattle;



1.2.3     
1 x 1970 model Opel model; or from
delivering or causing the delivery of assets of the deceased estate,
in terms of any purported sale or disposition to any purported
purchaser or other person and/or entity;



 


1.3  
Interdicting and restraining the first and third
respondents or anybody under them or their authority from entering
upon or coming within 100 (ONE HUNDRED) metres from Unit I of the
farm Kambingana, No. 204 Gobabis in the Omaheke region of Namibia;



1.5   
Joining the said Mr. Hengari, whose full
and further particulars are unknown to the applicant as fourth
respondent in this application;



1.5 
 Ordering and directing the first
respondent to pay the costs of this application.


2. 
Orders 2.1, 2.2 and 2.3 above shall operate
as an interim interdict with immediate effect, pending the
finalization of a review application against the second respondent’s
decision to appoint the first respondent as administrator of the
estate late Erich Tjingaete in terms of section 18(3) of the
Administration of Estates Act, Act 66 of 1965, such review
application to be served within 15 days from date of this order.


3. 
Leave is granted to the applicant to serve
a faxed copy of this order and application upon Mr. Hengari at Unit I
of the Farm Kambingana No. 204, Gobabis in the Omaheke region in
Namibia.’


 


[5]               
This is the extended return date of
the rule.


 


[6]               
The further background to the
granting of the application was that the applicant stated that he was
alerted to the sale very shortly before bringing the application. He
had established that the cattle were about to be delivered to the
fourth respondent, the purchaser. The applicant asserted that he was
adopted by the deceased and was his sole intestate heir. He explained
that he is a nephew of the deceased (his father being the older
brother of the deceased).  The deceased had died intestate on 22
January 2012.  The deceased left no natural children and the
applicant stated that the deceased had only one sibling, being a
brother at the time of his death. 


 


[7]               
The applicant pointed out that the
third respondent had submitted the death notice of the deceased to
the Master under the Act and had claimed to be his surviving spouse,
having made a next – of – kin affidavit as is required by
the Act.  The third respondent had attached a marriage
certificate.  The third respondent had also provided an undated
inventory including cattle and immovable property in Katutura. 
The aggregate value was accordingly to this inventory less than N$100
000. The Master, cited as second respondent, proceeded to appoint the
third respondent under s 18(3) of the Act as estate representative on
the basis that the value of the estate did not exceed N$100,000 with
the need to appoint an executor thus being dispensed with.


 


[8]               
The Deputy Master states in a report
provided to court that two different marriage certificates were
provided which indicated that the third respondent was also married
to a certain Simon Huambi and that she had entered into the marriage
with the deceased while still married to Mr Huambi.  The Master
then sought and obtained the resignation of the third respondent as
estate representative and then invited the first respondent in terms
of s18(3) of the Act to take up the appointment as estate
representative which he duly did.  That appointment was made by
the Master on the basis that the value of the estate was less than
N$100 000. 


 


[9]               
In the founding affidavit, the
applicant points out that the value of the immovable property
together with the cattle would far exceed that value.  The
Deputy Master in the report states that in view of the evidence on
values set out in the application, the letter of authority under
s18(3) in favour of the first respondent would need to be cancelled
and amended to provide for his appointment as an executor. 


 


[10]           
The Deputy Master pointed out that
the applicant had however not lodged any next-of-kin affidavit
indicating his relationship with the deceased. Nor had he provided
any inventory in terms of s 9 of the Act reflecting the true values
of the estate assets as asserted in this application.  The
Deputy Master further pointed out that the first respondent had
lodged the next-of-kin affidavit reflecting that the deceased was
survived by two siblings, namely a brother and a sister (and not only
a brother as asserted by the applicant).  The applicant does not
dispute that in reply. The Deputy Master further correctly accepts
that the value of the estate exceeds N$100, 000 in view of the
material contained in the founding affidavit, (re-inforced by what is
stated in reply) and says ‘I will cancel the letter of
authority in favour of the first respondent and amend the appointment
letter to letters of executorship, taking into account s23 of the
Estates Act. . .’ That statement is not dealt with in reply and
the applicant persisted in seeking the confirmation of the rule.


 


[11]           
The applicant points out that the
third respondent was, subsequent to the next-of- kin affidavit,
charged and convicted of bigamy, by virtue of her marriage to the
deceased (as she was already married at the time).  The
applicant points out that the fourth respondent (the purchaser of the
cattle in the impugned sale) has the same surname of the third
respondent and suspects that the third respondent colluded with the
first respondent in securing that sale at values way below the market
value of the cattle. 


 


[12]           
It was for this reason that the
applicant had approached the court urgently and
ex
parte
to prevent that sale from being
perfected, pending the review of the appointment of the first
respondent under s 18(3) of the Act. 


 


[13]           
In support of the applicant’s
claim of being the sole intestate successor of the deceased, he
states that he was the deceased’s “closest living
relative and as such his only legitimate intestate heir”. 
In support of this claim, he attaches a document which he says
constituted ‘the last will and testament’ of the
deceased. It was apparently signed by the deceased and was in the
Otjiherero language and dated 3 January 2008. In it the deceased
states that he had no biological children and that after the death of
his older brother, he took that brother’s son, the applicant,
“as my son” and declared that the applicant would then
inherit 90 percent his estate together with the applicant’s
wife.


 


[14]           
 The
will is, however, not a valid will under the Wills Act[2]
by virtue of the fact that it is only signed by the deceased and
without any witnesses and thus not complying with the formalities
required for the execution of a valid will under that Act.  The
invalidity of the will is correctly accepted by the applicant. But it
is attached in order to show the deceased’s ‘state of
mind’ and how he regarded the relationship he contends for in
this application.  He further makes the statement that a
document of the kind attached ‘although not a valid will’
under the Wills Act, would ‘normally be accepted by the
relevant traditional authority as valid and distributions are made in
terms of such documents’. 
That
is essentially the nature and extent of the applicant’s claim
to be the sole intestate heir of the deceased made in the founding
papers. It is expanded upon in reply.


 


[15]           
The first respondent in his
answering affidavit denies a collusive sale agreement of the cattle
with the fourth respondent.  It is however apparent that he had
acted with the assistance of the third respondent in tracing the
siblings of the deceased after pointing out that she was disqualified
from inheriting.  He was also aware of the invalid will and
pointed out to her its invalidity to the deceased’s brother. 
He stated that he was asked by the deceased’s siblings to
proceed with the administration of the estate and filed a next-of-kin
affidavit reflecting them as the next-of-kin.  He stated that
the values given for the assets were pursuant to valuations he had
received and which had been obtained by the third respondent.


 


[16]           
 The first respondent also
pointed out that the deceased and the third respondent jointly were
accorded a leasehold in respect of a farm by the Ministry of Lands
and Resettlement, but the value of his interest in that leasehold was
however not included as an estate asset.  This may be because he
did not regard it as an estate asset or possibly because of
difficulty in making a valuation of the deceased’s interest in
that leasehold at the time of his death.  He also pointed out
that the third respondent had instituted an action against the
applicant for his eviction from that very farm. This had not been
disclosed by the applicant in his founding papers when he approached
this court on an
ex parte
basis. When I raised this on the return date with Mr Schickerling
who, together with Mr S. J. Jacobs, appeared for the applicant, he
argued that this was not relevant or material to the relief sought
and that the application had been prepared with great urgency at the
time.


 


[17]           
 In his founding affidavit, the
applicant provides his address as at Unit 1 of the farm Kambingana,
No. 204, Gobabis (‘the farm’). He refers to himself as
the farm manager of the deceased. But it turns out in the first
respondent’s answering affidavit that the deceased and third
respondent were jointly allocated a 99 year leasehold of the farm in
an agreement to that effect with the Minister of Lands and
Resettlement. The deceased and third respondent further entered into
a loan agreement with Agribank for N$40 600 for the purpose of
acquiring cattle to stock the farm. Even if the applicant were
unaware of the terms of the loan – that is was to them jointly
– he would certainly have been aware of the precise terms of
the leasehold. This was because the third respondent had instituted
an action against the applicant (as second defendant) for his
eviction from the farm in October 2013. Attached to the particulars
of claim was a copy of the leasehold agreement. The action was
admitted by the applicant in reply but the statement was made that it
is ‘plainly irrelevant’ and should be disregarded. This
non-disclosure is referred to below after dealing with the issues of
locus standi
and whether a
prima facie
right has been established.


 


[18]           
The first respondent also explained
that he proceeded with the sale of the cattle because of a loan which
the deceased together with the third respondent had jointly received
from the Agricultural Bank of Namibia (“Agribank”) which
needed to be repaid.


 


Standing
and claims under customary law


 


[19]           
 In his opposition to the
application, the first respondent takes the point that the applicant
lacks
locus standi
In support of this point, the first respondent disputes that the
applicant is a beneficiary in the deceased’s estate and also
points out that he does not even seek declaratory relief that he is
an heir in the estate.  The first respondent further denies that
the applicant is an heir and states that the intestate heirs are the
deceased’s brother and sister in accordance with the law of
intestate succession. 


 


[20]           
When the matter was argued, Mr
Diedericks who appeared on behalf of the first respondent, argued
that the applicant lacked standing to bring the application for this
reason.  Whilst this point was raised in the context of a
challenge to the applicant’s standing, it would also go to the
root of the requirement of the
prima
facie
right to the relief asserted by
the applicant.  That is because of the assertion of the
prima
facie
right by the applicant is
inextricably tied up with his claim to be an intestate heir of the
deceased. 


 


[21]           
In the replying affidavit as well as
in the argument advanced on behalf of the applicant, Mr J
Schickerling submitted that the estate is to be administered in
accordance with Herero customary law where it does not conflict with
the Constitution or any other Namibian statute by virtue of Art 66 of
the Constitution read with Art 140.  Mr Schickerling contended
that the Art 66 placed the common law and customary law on equal
footing and that the applicant’s claim to be an intestate heir
under customary law would suffice and mean that the applicant was
thus the sole intestate heir of the deceased.  In a
supplementary written note, Mr Schickerling, further argued that the
applicant would qualify to inherit under customary law and the common
law because he was nephew as son of the deceased’s brother –
and thus by representation even though this is not the basis asserted
for his claim to be an intestate heir.


 


[22]           
Mr
Schickerling submitted that the applicant’s assertions
contained in the applicant’s papers of being adopted under
customary law would mean that the applicant should be treated as a
child in terms of intestate succession because customary and common
law was placed on equal footing by virtue of Art 66.  Mr
Schickerling argued that the applicant had thus established a
prima
facie

right even though open to some doubt, as is required for an interim
interdict.  I must however stress that the
prima
facie

establishing of the right (which may thus be open to some doubt in
interim interdicts) relates to the degree of evidence to establish
the existence of a right under substantive law.[3]
The applicant would need to establish
prima
facie

that he is an intestate heir on the basis claimed but also a
prima
facie

right to the review of the Master’s decision to appoint the
first respondent, as I point out below.


 


[23]           
Mr
Schickerling rightly referred to the Intestate Succession Ordinance,

12 of 1946 as amended[4],
together with common law, as constituting the law of intestate
succession. Mr Schickerling correctly pointed out that the 1946
Ordinance introduced a spouse’s share in intestate succession,
following South African legislation passed in 1934[5]
to similar effect.  Mr Schickerling argued that Art 66, by
placing common law and customary law on equal footing – except
where conflicting with constitutional and statutory provisions –
would mean that an adoption under customary law should entitle
adopted child to inherit as an intestate heir under the common law. 


 


[24]           
He further contended that the first
respondent did not contest the applicant’s version of Herero
customary law of intestate succession.  Whilst the first
respondent did not put up any contrary version as to what Herero
customary law on the issue is, the first respondent did however
squarely dispute the applicant’s claim of being an intestate
heir to the deceased on the basis raised and thus by clear
implication did dispute that the applicant had established the basis
to that asserted right. 


 


[25]           
In the course of oral argument I
enquired from Mr Schickerling as to whether the applicant had
sufficiently established the Herero customary law in question. 
I pointed to him that there had been no evidence, except for the
applicant’s unsupported assertion, of Herero customary law on
the question. In the founding affidavit, the applicant merely asserts
that he is an intestate heir by virtue of being adopted under Herero
customary law.  He does not in any way specify the nature and
effect of the rules and customs relating to adoption and succession
in Herero customary law and how these are observed, except for the
unsupported assertions I have referred to.


 


[26]           
In a supplementary note, Mr
Schickerling argued that this court should apply the customary laws
of succession “as stated by the applicant”.  But the
difficulty for the applicant is that he does not set out the rules
relating to intestate succession in accordance with the Herero
customary law or deal with adoption under Herero customary law in any
coherent way.  He merely makes the claim of adoption under
customary law and the assertion that this would entitle him to
succeed under Herero customary law. 


 


[27]           
The
first difficulty the applicant faces in this application is the proof
of the customary law in question.  As was held by this court, as
previously constituted, of Herero customary law would need to be
established. A way in which this can be done would be to tender
evidence on customary law and the customs in question – both
relating to adoption and to succession.  This was stated by
Bethune J in
Kaputuaza
v Executive Committee, Administration for the Hereroes
[6]
in the following way:


Evidence
was tendered concerning the alleged Herero customary law and
considerable time was spent in canvassing this issue and questioning
the qualifications of the persons who tendered the evidence. Mr Botha
contended that customary law should be provided by qualified experts
in the same manner as foreign law. It seems to me, however, that in
so far as Herero customary law might be applicable, such law is part
of the law of South West Africa of which the Court can take judicial
notice, consequently it need not be provided in the same manner as
foreign law. In the process of taking such judicial cognisance this
Court may inform itself from history books. (See the remarks of Fagan
CJ in
Consolidated Diamond Mines of
South Africa Ltd v Administrator, SWA, and Another

1958 (4) SA 572 (A) at 610A.)


 


 The
customs observed in the reserve (as opposed to customary law) can be
proved in the same manner as any other custom, i.e.  by ordinary
persons who have knowledge of the nature of the customs and the
period over which they have been observed. It has authoritatively
been held that the party relying on such a custom must prove it
beyond reasonable doubt (
Van Breda and
Others v Jacobs and Others
1921 AD 330
at 333)
.’


 


[28]           
Bethune J proceeded to refer to
standard works on Herero customary law
and
the evidence
placed before him in
reaching a conclusion as to the customary law contended for in that
matter. 


 


[29]           
The applicant in this application
has merely asserted that the testamentary document attached to his
affidavit would “normally be accepted by relevant traditional
authority as a valid distribution made in such a document”. No
other evidence was tendered as to the content of the customary law
and its observance and its effect. The only work relied upon in
argument by the applicant was by Becker and Hinz
Marriage
and Customary Law in Namibia
. The
extracts provided do not support the applicant as to the content of
customary law contended for.


 


[30]           
The assertion of his right to
succeed would thus appear to be based upon the document setting out a
testamentary intention of the deceased as being recognised under
customary law rather than his adoption being accepted for purposes of
intestate succession. Mr Schickerling argued that he would qualify on
to inherit on both scores. It would seem to me that he may have
conflated the two questions. 


 


[31]           
The question is thus whether or not
the applicant has mounted the first hurdle necessary to establish his
standing, namely that he is
prima facie
an intestate heir under customary law by providing sufficient proof
as to the customary law relied upon. The mere assertions of being an
adopted child under Herero customary law and does not establish the
customary law of adoption and its consequences for succession as an
adopted child.


 


[32]           
I understood Mr Schickerling to
contend that the applicant, as an adopted child under Herero
customary law, should enable him to succeed under the common law as
an adopted child. 


 


[33]           
As I have already indicated,
reliance was placed on Art 66(1) of the Constitution.  It
provides: 


 


(1)
Both the customary law and the common law of Namibia in force on the
date of Independence shall remain valid to the extent to which such
customary or common law does not conflict with this Constitution or
any other statutory law.’


 


[34]           
By
virtue of the Administration of Justice Proclamation, 21 of 1919, the
Roman-Dutch common law applied in the Province of the Cape of Good
Hope became the common law of Namibia. Mr Schickerling correctly
points out that the common law on intestate succession was based upon
the old Political Ordinance of 1580 and the Interpretation Ordinance
of 1594, as modified by the Octrooi of 1661, all passed in the
Netherlands and imported to the Cape Colony.[7] 
The system was based upon consanguinity (blood relationships). 
The unfairness of intestate succession under the common law upon a
spouse was ameliorated in South Africa by the Succession Act, 1934[8]
by conferring rights of intestate succession upon a surviving
spouse.  Similar legislation was enacted in Namibia some 12
years later when the Intestate Succession Ordinance, 1946 was
passed.  The Ordinance amended the common law of intestate
succession by providing that the surviving spouse of a deceased is
declared to be an intestate heir of the deceased’s spouse
according to certain rules set out in that ordinance which
essentially provide for a surviving spouse to succeed to the extent
of a child’s share or a certain amount whichever was the
greater.  The amount in question was subsequently increased in
amendments to the Ordinance in 1963[9]
and again in 1982.[10] 


 


[35]           
The 1946 Ordinance contained an
important further provision in s 1(2) to the following effect: 


For
the purposes of this Ordinance any relationship of adoption under the
provisions of the Adoption of Children Ordinance, 1927 (Ordinance No
10 of 1927) shall be equivalent to blood relationship
.’


 


[36]           
According
to CP Joubert,[11] prior to
that amendment of the common law, intestate succession under the
common law was governed exclusively by blood relationships,
consanguinity (
consanguinitas),
between the testator and the intestate heirs.  It was only
through the amendment to the common law through legislation, firstly
in South Africa in 1934 (and subsequently in Namibia in 1946), that
the common law was thus amended – by statute – to provide
for intestate succession of adopted children and spouses.  This
is made clear by CP Joubert in his article with reference to the
provisions of the old Political Ordinance of 1580, the Interpretation
Ordinance of 1594 and the Octrooi of 1661[12]
He also does so with reference to Voet.[13]
The amendment relating to the succession by adopted children was
brought about in Namibia by the 1946 Ordinance read with the Adoption
of Children Ordinance, 1927.


 


[37]           
There was thus no intestate
succession under common law for adopted children in Namibia prior to
the statutory amendment to the common law brought about by the 1946
Ordinance. 


 


[38]           
The
statutory amendment made it clear that adopted children for the
purpose of intestate succession are those adopted pursuant to the
then applicable legislation relating to the adoption of children
being Ordinance 10 of 1927 which was subsequently replaced by the
Children’s Act, 1960.[14] 


 


[39]           
In
terms of the 1927 Ordinance, an adopted child is defined as meaning
‘a child concerning whom an order of adoption has been made as
hereinafter provided.’  A “child” is further
defined as meaning “a boy or girl who is in the opinion of the
court exercising jurisdiction under this ordinance, under the age of
16 years”.  The Ordinance proceeds to provide for adoption
of children by way of adoption orders.  The adoption of children
under that ordinance is thus only effected by means of an order of
adoption pursuant to its provisions.  A similar regime of
adoption, being by means of adoptive orders, was in essence continued
in the replacing legislation, the Childrens Act, 1960. Thus, only
children adopted pursuant to adoption orders could become interstate
heirs under the Ordinance and subsequently under the Children’s
Act. There was no other form of intestate succession for adopted
children, as was made clear by CP Joubert.[15]


 


[40]           
The applicant does not contend that
he was adopted by way of any adoptive order.  On the contrary,
the single allegation concerning his apparent adopted status is made
in the following way: 


 


Upon
my father’s death the deceased, in terms of Herero customary
law adopted me as his son.  I refer to the deceased’s
purported last will and testament annexed hereto in which he clearly
describes me as “my son”
.’


 


[41]           
He
further states that the act of adoption pursuant to Herero custom and
customary law occurred upon his father’s death.  In his
replying affidavit, the applicant states that his father died on 23
April 1993 and that he was then adopted by the deceased.  The
applicant does not attach any adoption order in support of this
claim.  Nor could he. He furthermore does not state his age when
this occurred.  His age is also not stated in the application
except for the reference to him in the invalid will of the deceased
which referred to him together with his identity number. It indicated
a date of birth in 1955, as was confirmed during oral argument. 
It would follow that at the time of the applicant’s father’s
death, and the apparent adoption under Herero customary law the
applicant was one month short of his 38
th
birthday.  He had long since ceased to be a minor and was at
that time not a child for the purpose of the then applicable
legislation relating to the adoption of children. There thus could
not have been any question of being adopted under the applicable
legislation.[16] 


 


[42]           
For the purpose of intestate
succession, the common law as amended by the 1946 Ordinance, it is
only adoption under the applicable legislation which is equivalent to
blood relationships. With the exception of a surviving spouse and
adopted children under the provisions of applicable legislation,
blood relationships under the common law would determine intestate
succession under the common law.


 


[43]           
In order to succeed under the law of
intestate succession on the basis of being adopted, adoption under
applicable legislation would need to be established. That is not the
applicant’s case. He does not assert adoption under the
erstwhile ordinance or the Childrens Act, 1960, but adoption under
Herero customary law. Mr Schickerling’s submission concerning
Art 66 does not take the matter further – even if sound, which
is not necessary to decide for the purpose of this matter. The common
law was after all changed by the 1946 Ordinance to provide that
adoption under the 1927 Ordinance is equivalent to blood
relationships. In the absence of an adoption order, the relationship
would not be equivalent to blood relationships upon which common law
intestate succession is based.


[44]           
It follows that the applicant has
not established a
prima facie
right to inherit under the common law of intestate succession by
virtue of his assertion of being an adopted child of the deceased
under Herero customary law.


 [45]           
The
assertion in the founding affidavit that distributions are made
pursuant to the testamentary documents of the kind attached to his
affidavit ‘by the relevant traditional authority’ also
does not avail the applicant. Once it purports to be a document
providing for testamentary dispositions, which it does, then in order
to have that effect, it would need to meet the requisites for
validity under the Wills Act. It does not do so. The applicant did
not explain in what context and for what purpose the document would
be recognised and given effect to according to Herero customary law.
It was incumbent upon him to do so. But what is clear for present
purposes is that the document would not determine the basis for the
distribution of the deceased’s estate when reported with the
Master under the Estates Act by reason of its invalidity as a will.






[46]           
In
his supplementary note Mr Schickerling points out that as a nephew of
the deceased – which was not disputed – the applicant
would in
that
capacity be an intestate heir. This is because he would be an
intestate heir by representation, together with the deceased’s
brother and sister.[17] That
is entirely correct.


 


[47]           
But that is not the basis upon which
the applicant approached this court or the Master. As is pointed out
in the Master’s report, the applicant has not filed a
next-of-kin affidavit setting out his relationship to the deceased
claiming to be an intestate heir on the basis of
that
relationship. He instead approached this court on the basis of being
the ‘sole legitimate heir’ to the deceased under Herero
customary law without being able to sustain that claim. Only after
oral argument was heard and his claims questioned by the court was
this claim for standing advanced in a subsequent supplementary
written note.


[48]           
It thus turns out that the applicant
would have standing to bring this application as an intestate heir of
the deceased (as a nephew by representation, given the death of his
father who was the deceased’s brother).


 


[49]           
Even though this was not the basis
for the applicant’s claim for standing raised in both the
founding and replying affidavits and in oral argument, the facts
which support such a claim are common cause and were set out.
Standing to bring the application is a conclusion of law drawn from
facts which would establish a direct and substantial interest in
relief which is sought. The fact of being a nephew, who would succeed
by representation under the common law, would confer upon the
applicant standing to seek the review relief. The fact that this was
not the basis upon which he approached the court (and in the absence
of an assertion of this claim to the Master by way of a next-of-kin
affidavit) would have an impact upon a costs award. But his would not
arise in this application for reasons which follow.


 


Prima
facie

right
to review relief


[50]           
Even though the applicant would thus
have standing, his difficulties do not end there. He would need to
establish a prima facie right to the review of the Master’s
decision to appoint the first applicant under s18(3).
That
is the right which the applicant is to establish on a
prima
facie
basis – after establishing
his standing in the form of being an intestate heir of the deceased.
The appointment is primarily challenged on the basis of the value of
the estate exceeding N$100 000 and that an appointment under s18(3)
would thus be invalid.


[51]           
The Master acted upon values
provided in a provisional inventory in making the appointment under
s18(3). Once it became clear that the actual values turned out to be
in excess of N$100 000, the Master correctly conceded that the first
respondent’s appointment under s18(3) should be cancelled and
be replaced by letters of executorship. The need to review that
earlier appointment on that basis falls away. The applicant thus does
not have a
prima facie
right to that relief. At best, he could assert a claim for costs to
the date upon which the Master’s report was filed. That would
not however arise because of my view as to the consequence of the
applicant’s failure to disclose material facts. But this would
not in any event arise by reason of the failure on the part of the
applicant to have provided an inventory setting out such values (in
excess of N$100 000) together with a next-of-kin affidavit reflecting
his relationship to the Master prior to bringing this application.


 


Failure
to disclose material facts


[52]           
I have already referred to the
failure on the part of the applicant to disclose the material fact of
the third respondent’s 99 year leasehold right to the farm and
that she had instituted an action against him for his eviction. He
was clearly aware of both these facts, as I have demonstrated.


 


[53]           
It
is well settled that an applicant in
ex
parte

proceedings is required to make a full and proper disclosure to the
court and owes a duty of utmost good faith to the court. This duty
has been usefully summarised in the following way after a thorough
survey of previous authorities[18]:


(1)
in
ex parte
applications all material facts must be disclosed which
might
influence a court in coming to a
decision;


(1) 
the non-disclosure or suppression of facts
need not be wilful or
mala fide
to incur the penalty of rescission; and


(2) 
the
court, apprised of the true facts, has a discretion to set aside the
former order or to preserve it.’[19]


[54]           
Not only does the applicant make
serious allegations of collusion in fraud of the heir(s) against the
third respondent, but he also sought and obtained the relief set out
in paragraph 2.3 of the court order quoted above, interdicting the
third respondent from entering upon or coming within 100 metres from
the farm. It is plainly in this context a most material fact to
disclose to this court that the third respondent enjoys a 99 year
leasehold over the farm and that she had instituted proceedings
against the applicant to evict him from the farm. Indeed had these
facts been disclosed, it is most unlikely that this relief would have
even been granted against the third respondent. Had these facts been
disclosed to the applicant’s lawyers, it is also very unlikely
that relief in those terms would have been sought against the third
respondent. But what is clear is that these circumstances could have
influenced the court to grant or withhold relief. They should have
been disclosed and they were not in breach of this well established
rule in
ex parte
proceedings.


[55]           
In the exercise of my discretion
this failure to disclose these facts would in any event have resulted
in the discharge of the rule with costs.


 


Costs






 [56]           
The first respondent contended in
the answering affidavit that the application was an abuse of process
by reason of the applicant’s lack of standing. He sought a
special order as to costs – on attorney and own client scale –
as a consequence. The point of the non-disclosure of the third
respondent’s joint leasehold and action against the applicant
were not raised as grounds for the discharge of the rule and for a
special costs order. The issue of non-disclosure was raised by the
court after these facts were raised in the first respondent’s
answering affidavit. In his heads of arguments, Mr Diedericks sought
a lesser (but still punitive) scale as between attorney and client.
The thrust of the complaint is a lack of standing. Although the
applicant’s basis for standing turned out to be unsustainable,
it however transpired that he did in fact have standing. The
misplaced basis for standing raised in the founding affidavit in this
matter would not in my view give rise to a special costs order. The
failure to disclose material facts in an ex parte application would
invariably warrant a sanction by a court. That sanction in this
matter would be the discharge of the rule on this basis alone. As
this issue was not raised by the first respondent in this context, I
decline in the exercise of my discretion to grant a special costs
order in his favour on that basis.


 Conclusion


[57]           
In
view of the conclusion I have reached it is not necessary for me to
deal with the other requisites for an interim interdict, including
the absence of an alternative remedy. I refer to this in view of the
persistence on the part of the first respondent to proceed with the
sale of the cattle at values which would appear to be considerably
below their market value. An executor’s position is a fiduciary
one.[20] This means that he
must not only act in good faith but also in accordance with the
law.[21] The realisation of
estate assets is governed by the Act. The Act lays down[22]
that an executor is not to sell estate assets otherwise than by
public auction unless the Master has authorised a sale by public
tender or out of hand. There is no allegation to that effect. It
would not necessarily avail the first respondent to contend, if
challenged on the sale, that the purchase price he had agreed to was
in accordance with values at the time of the death of the deceased
some 2 years before of values were considerably higher at the time of
the sale, as would appear to be the case. As a finding on the issue
of the absence or otherwise of an alternative remedy is not necessary
in this matter, I take this issue no further.


[58]           
It follows from the above that the
rule is to be discharged with costs.











DF
SMUTS






Judge










APPEARANCES


 


APPLICANT:                                          
Adv J Schickerling assisted by J Jacobs


Instructed
by Dr Weder, Kauta & Hoveka Inc



 



FIRST
RESPONDENT:                       
Mr J Diedericks



Instructed by
Diedericks Incorporated








[1]
Act 66 of 1965




[2]
Act 7 of 1953.




[3]
Joubert et al
The
Law of South Africa

Vol. 11, (2
nd
ed) at p420.




[4]
as
amended by the Intestate Succession Amendment Ordinance, 6 of 1963
and the Intestate Succession Amendment Act, 15 of 1982. 




[5]
The Succession Act, 13 of 1934.




[6]
1984(4) SA 295 (SWA) at 301.




[7]
Corbett, Hahlo, Hofmeyr The Law of Succession in South Africa (2
nd
ed) at p565.




[8]
Act 13 of 1934




[9]
Ordinance 6 of 1963.




[10]
Interstate Succession Amendment Act, 15 of 1982.




[11]
Later Joubert, JA in an article in article ‘Adopsie in die
Suid-Afrikaanse Versterfreg’ in (1955) 18 THRHR 140.




[12]
Supra at p140.




[13]
38:17.




[14]
Art 33 of 1960.




[15]
Supra.




[16]
The Children’s Act 1960.




[17]
Corbett et al
The
Law of Succession in South Africa

(1
st
ed) at 585 – 586. (The second edition of this worthy work
deals with the order of succession in South Africa brought about by
the Intestate Succession Act, 81 of 1987.)




[18]
In
Schlesinger
v Schlesinger

1979(4) SA 342 (W) approved of by this court in
Standard
Bank of Namibia v Potgieter and Another

2000 NR 120 (HC) (full bench) at 125 F-H and
Doeseb
and Other v Kheibeb and Others

2004 NR 61(HC) at 87C.




[19]
Supra at p349 A-B.




[20]
Lindenberg
v Giess

NO 1957(3) SA 31 (SWA).




[21]
Meyerowitz
The
Law and Practice of Administration of Estate

(5
th
ed) p123.




[22]
S47 of Act 66 of 1965.