Mbhamali and Others v Shayo and Others (435/2018) [2018] SZHC 103 (31 May 2018);

 

 

 

IN THE HIGH  COURT OF  SWAZILAND

JUDGMENT

HELD AT MBABANE                                                          CASE NO. 435/18

In the matter between:

LINAH THEMBI MBHAMALI                                  APPLICANT

And

FRANCISCA SHAYO                                                 1^st RESPONDENT

MASTER OF THE HIGH COURT                                      2^ndt RESPONDENT

REGISTRAR OF BIRTHS MARRIAGES

 AND DEATHS                                                            3^rd RESPONDENT

REGISTRAR OF DEEDS                                           4^th RESPONDENT

ATTORNEY GENERAL                                            5^th   RESPONDENT

MINISTER OF HOME AFFAIRS                              6^th  RESPONDENT

Neutral Citation:          Linah T. Mbhamali N.O vs Francesca Shayo and five others (435/18) [2018] SZHC 103 [2018] ( 31^st May 2018)

CORAM:                      J.S MAGAGULA  J

DATE HEARD:           18^th April 2018   

DATE DELIVERED:  31^st  May 2018

 

 

[1]     This is an application in which the Applicant seeks the following substantive orders:

“ 3. Interdicting and restraining the 2^nd Respondent forthwith from releasing any monies to the 1^st Respondent without the knowledge and consent of the executor pending finalization of this matter. Further interdicting the 1^st Respondent from disposing any assets of the estate herein.

4. Ordering and directing the 6^TH Respondent to forthwith release information in its [her] possession regarding 1^st Respondent’s citizenship status.

5. Directing that the prayers 3 and 4 operate with interim effect pending finalization of the matter.

6. Costs in the event the application is opposed”.

[2]     The application was launched under a certificate of urgency hence the request for an interim order. When the matter first appeared  before me it was opposed and an answering affidavit was filed from the bar. The applicant’s attorney then requested an opportunity to file a replying affidavit and the matter was  postponed  for this purpose. The application for interim relief was therefore not pursued. I am accordingly required to grant a final order on the prayers sought by the applicant.

[3]     The Application is supported by a founding affidavit in which the applicant alleges that she is the executrix dative in the estate of the late Khabonina Josephina Dlamini ( nee Khoza) having been duly nominated in a meeting of the next kin and appointed by the 2^nd Respondent as such.

[4]     The grievance of the applicant which has caused her to launch the present application is that the 2^nd Respondent disburses money out of the deceased estate without her involvement as executrix. Applicant further alleges that the 1^st Respondent is helping herself to assets of the estate,  particularly a motor vehicle, before distribution of the estate. She therefore seeks an order interdicting such conduct.

[5]     Although the 1^st Respondent denies in her answering affidavit that monies have been paid to her without Applicant’s consent, there is at least some evidence that she has claimed an amount of E5900.00 without the knowledge and consent of the Applicant. In fact she claimed this money fraudulently using  the name of the applicant and forging her signature in the process. The 1^st Respondent does not deny writing the letter  as if it was written by the applicant and forging applicant’s signature. The letter is annexed as “ KD 6” to the founding affidavit.

[6]     In any event an amount totaling E10,000.00  was paid from the  estate and there is no evidence that applicant knew or ever requested for such payments to be made by the 2^ND Respondent. As executrix Applicant ought to have been satisfied of the propriety of these payments and she should have been the one requesting that 2^nd Respondent’s approves them.

[7]     Applicant further alleges that she was once called to the Masters’s office to sign a request for payment of the sum of E39 500-00 to cater for the expenses of the 1^st Respondent. Although this is denied by the 1^st Respondent, the applicant alleges that she was forced by the 2^nd Respondent to sign this request and she signed it under duress as the 2^nd  Respondent stated that  she would not leave her office without signing the request. I must say that I am inclined to believe the applicant’s story since she seemingly found the letter requesting the payment already prepared as if written by her. She was only required to sign when in fact she should have been the one who wrote the request. Secondly the 2^nd Respondent has conveniently not filed any papers in this matter despite this damning allegation against her.

[8]     For the foregoing reasons I am satisfied that monies have been paid out of the deceased estate without the knowledge and consent of the Applicant.

[9]     Apart from denying that monies were paid out of the estate without Applicant’s knowledge and consent, the 1^st Respondent has made wide ranging allegations which are totally out of line as regards the orders sought by the Applicant. The 1^st Respondent alleges for instance that Applicant does not want her to get necessary support which the deceased used to afford to 1^st Respondent. She also alleges that Applicant wants her to starve to death and thus wants her to be denied her constitutional right to life. All these allegations are totally out of line because Applicant is not asking this court to issue an order interdicting payments of any monies to 1^st Respondent. All she Applicant is seeking is that she should be involved as  an executor since the family and indeed the 2^nd  Respondent expect her to fully account for  all the assets of the estate. She is expected to explain fully all transactions made in the estate and to demonstrate that any payments from the estate monies were justified.

[10]   In any event there are two members of the family who were tasked to take care of the 1^st Respondent after the demise of the deceased. The 1^st Respondent does not allege  that they have refused or failed to cater for her. It is therefore not clear why estate monies should be used to cater for her.

[11]   Further it is common cause that the 1^st Respondent is not a biological mother of  the deceased, nor is she an adopted child of the deceased. The deceased only took care of the 1^st Respondent by virtue of a guardianship agreement signed in Tanzania. Her right to inherit from the deceased remains highly questionable.  I have not however been called upon determine this question. I shall therefore refrain from making any finding thereon. The Applicant is however justified in tredding with caution with regards to estate monies being paid to the 1^st Respondent and estate assets being used by the 1^st Respondent before liquidation and distribution of the estate.

[12]   Under prayer 4 the Applicant seeks an order directing the 6^th Respondent to release information in her possession regarding 1^st Respondent’s citizenship status.

          I note that by 1^st Respondent’s own admission, neither her father nor her mother are Swazi citizens. Further, she does not allege that she at anytime applied for and was granted the citizenship of this country. It seems quite clear to me that the 1^st Respondent is not a citizen of this country unless of course she is in a position to produce some evidence to the contrary in this regard. I therefore do not see the need to grant the order sought in prayer 4.

[13]   For foregoing reasons I am satisfied that the Applicant has made out a case for the orders sought in prayers 3 and 6. The following order is accordingly made:

 

13.1   The 2^nd Respondent is hereby interdicted and restrained from releasing any monies to the 1^st Respondent without the knowledge and consent of the executrix  dative in the estate of the late Khabonina Josephina Dlamini ( nee Khoza);

13.2   The 1^ST Respondent is interdicted and restrained from disposing of any assets of the said estate.

13.3   Costs of this application are awarded to the Applicant.

 

________________

J.MAGUGULA J

 

For the Applicant :       Mr S. Khoza

For the Respondent:     Mr M. Hlophe