Court name
High Court Main Division
Case number
HC-MD-CIV-MOT-GEN 182 of 2020
Case name
Smith & Another v Julia Esther Feris & Others
Media neutral citation
[2021] NAHCMD 203
Judge
Miller AJ

 

 

 

 

 

 

REPUBLIC OF NAMIBIA

 

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

 

JUDGMENT

 

Case No: HC-MD-CIV-MOT-GEN-2020/00182

 

In the matter between:

 

CHARLES RICHARD SMITH                                                                         1ST APPLICANT

RIAAN MARTIN SMITH                                                                                   2ND APPLICANT

 

and

 

JULIA ESTHER FERIS                                                                              1ST RESPONDENT

RALPH BAZIL STRAUSS                                                                         2ND RESPONDENT

MASTER OF THE HIGH                                                                            3RD RESPONDENT

 

Neutral Citation: Smith & Other vs Julia Esther Feris & Others HC-MD-CIV-MOT-GEN-2020/00182 [2021] NAHCMD 203 (05 May 2021)

 

CORAM:        MILLER AJ182

Heard:           18 March 2021

Delivered:     05 May 2021

 

 

 

ORDER

 

 

(1)       The application is dismissed.

(2)       The applicant are ordered jointly and severally to pay the costs of the first respondent, which will include the costs of one instructing and one instructed counsel where employed.

(3)       The matter is finalised and removed from the roll.

 

 

 

Judgment

 

 

MILLER AJ:

 

[1]        The proceedings before me are a sequal to certain

 

 [2]       The matter is opposed by the first respondent.

 

[3]        In essence this is a dispute about the assets of a last will and testament executed by Tobias Johannes Smith (who is now deceased) and Rachel Smith his spouse, in 2018. This will was accepted by the third respondent. The material terms of the will are the following:

3.1       All prior wills and Codicils were revoked.

3.2       The survivor of the testators will be the sole heir of the Massed                                             estate.

3.3        A testamentary trust was created.  The beneficiaries of that trust were.

                        3.3.1   The first respondent;

3.3.2  Lorisa Ekario Feris;

3.3.3 Cornelia Rosa Beukes; and

3.3.4 David Perus Tiro Smith.

 

[4]        The first respondent raises two points in limine.  They are.

            4.1       The locus standi of the applicants and;

4.2       The non-joinder of Rachel Smith, the surviving spouse and heir.

 

[5]        I will consider these first, before delving into the merits or otherwise of the applicants’ case. I will consider the non-joinder of the non-joinder of Rachel Smith.  There can be no doubt that as the sole heir of the will executed in in 2018, she has a direct and substantial interest in the proceedings. The applicants advance the argument that Rachel Smith suffers from dementia, and for that reason it is impossible to have cited her as a respondent.  The allegations regarding the mental capacity advanced by the applicants, are disputed by the first respondent and confirmed in the papers by Rachel Smith herself, who deposed to a supporting affidavit.  In determining the dispute, I must apply an approach in the Stellenbosch Farmers Winery Ltd v Stellenvale Winery (Pty) Ltd[1] and Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd[2] These cases were adopted as part of Namibian law.  It follows that, on the papers, the version of the first respondent is to be accepted.

 

[6]        On that version there remains no reason why Rachel Smith was not joined to the proceedings.  The failure to do so has the consequences which as in the case of Maletzky v Minister of Justice and Others[3] must follow.  Where the need for joinder is established, the court has no discretion and will not allow the matter to proceed.  The applicants were in any event alerted to the issue of non-joinder but elected to try and advance their case without taking any steps to have Rachel Smith joined.

 

[7]        It is also apparent that neither of the applicants stood to benefit in any way from the will executed in 2018.  None of them are cited heirs or legatees, nor are they cited as beneficiaries of the Trust. They lack the necessary locus standi to institute these proceedings. There is some suggestion by the applicants that the 2018 will may be declared invalid.  The short answer to that is that, in this case there is no prayer to that effect. If that will is to be declared invalid, it is for the applicant’s to institute proceedings to have it declared invalid.  It serves no purpose to make allegations in the affidavit that Rachel Smith did not have the mental capacity to execute a will and leave it at that.

 

[8]        I am of the view that the case advanced by the applicants falters on any one of the points raised by the first respondent.

 

[9]        The result is that the applicants’ claim must be dismissed.

 

 [10]     In the result I make the following order:

 

(1)       The application is dismissed.

(2)       The applicant are ordered jointly and severally to pay the costs of the first respondent, which will include the costs of one instructing and one instructed counsel where employed.

(3)       The matter is finalised and removed from the roll.

 

 

 

_____________

K MILLER

Acting Judge

 

 

APPEARANCES:

 

APPLICANT:                                                             Z Grobler

Grobler & Co.

 

 

1st RESPONDENT:                                                  Z Majiedt

Engling Stritter & Partners

 

2nd RESPONDENT                                                  R Strauss

                                                                                    Dr Weder, Kauta & Hoveka Inc.

 

3rd RESPONDENT                                                  Master of the High Court

                                                                                    Office of the Master of the High Court                                                                                                                                                          John Meinert Street                                                                                     

                                                                            Windhoek

                                                                                   

 

 

[1] Stellenbosch Farmers Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C)

[2] Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) Sa 623 (A)

[3] Maletzky v Minister of Justice and Others 2014 (4) NR 956 (HC)