THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case No: 1296/2021

In the matter between:
NYAMUKAMADI MUKUMELA DENGA (MABIRIMISA)
(born MUDAU)
FIRST APPELLANT
MATIDZA KUTAMA
SECOND APPELLANT
MABIRIMISA RUDZANI POLINAH
THIRD APPELLANT
MABIRIMISA NDITSHENI OZIOUS
FOURTH APPELLANT
MABIRIMISA MASINDI CONSTANCE
FIFTH APPELLANT
MABIRIMISA MAWIHANGWISI ELSINA
SIXTH APPELLANT
MABIRIMISA MUVHULAWA
SEVENTH APPELLANT

and

MABIRIMISA TSHILILO ANORLD N N O
FIRST RESPONDENT
ESTATE OF THE LATE DENGA (MABIRIMISA)

MUDZIELWANA JOSIA
SECOND RESPONDENT
MABIRIMISA BUS SERVICES (Pty) Ltd
THIRD RESPONDENT
MABIRIMISA NDIVHUDZANNYI SILAS
FOURTH RESPONDENT
DENGA DENGA
FIFTH RESPONDENT
MATSHEKETSHEKE MUNYADZIWA GLORIA
SIXTH RESPONDENT
RAPHALALANI TSHILILO SALPHINA
SEVENTH RESPONDENT
RAMUSWANA ANNA
EIGHTH RESPONDENT

MABIRIMISA FRANS
NINTH RESPONDENT
ESTATE OFFICER, DZANANI MAGISTRATE’S
COURT
TENTH RESPONDENT
MAGISTRATE DZANANI
ELEVENTH RESPONDENT
MINISTER OF JUSTICE & CONSTITUTIONAL
DEVELOPMENT N O
TWELFTH RESPONDENT
MASTER OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION,
THOHOYANDOU N O
THIRTEENTH RESPONDENT
REGISTRAR OF COMPANIES
FOURTEENTH RESPONDENT

Neutral Citation:
Nyamukamadi Mukumela Denga (Mabirimisa) & Others v
Mabirimisa Tshililo Arnold N N O & Others (1296/2021) [2022]
ZASCA 148 (31 October 2022)
Coram:
VAN DER MERWE; MOLEMELA, HUGHES JJA and DAFFUE
and CHETTY AJJA
Heard:
15 August 2022
Delivered:

31 October 2022
Summary: Deceased estate – whether the administration of deceased had been
finalised – administration of the estate finalised in terms of the Black Administration
Act 38 of 1927 read with regulations framed in terms of s 23(10) – appeal dismissed.

___________________________________________________________________

ORDER
___________________________________________________________________
On appeal from: The Limpopo Division of the High Court, Thohoyandou (Makgoba
JP sitting as court of first instance):
The appeal is dismissed and there is no order as to costs.

___________________________________________________________________

JUDGMENT
___________________________________________________________________
Molemela JA (Van der Merwe and Hughes JJA and Daffue and Chetty AJJA
concurring):
[1] This appeal arises from proceedings instituted by the appellants in the Limpopo
Division of the High Court, Thohoyandou (the high court) in October 2019, seeking an
order declaring that the estate of the late Mudzielwana Josiah Denga Mabirimisa (the
deceased) be administered in terms of the Administration of Estates Act 66 of 1965
(the Administration of Estates Act), and that the appellants be declared the heirs in the
deceased estate.1 The basis of the opposition of the application was that the relief
sought was impermissible as the estate of the deceased had already been

1 The order sought, in relevant parts, was couched as follows:
‘4.1. That it be and is hereby declared that the 1st, 2nd, 3rd 4th, 5th, 6th, and 7th Applicants are the heirs in
the deceased estate of the late, Denga (Mabirimisa) Mudzielwana Josiah, registered at Dzanani
Magistrate under estate file no.44/98, forthwith;
4.2. That it be and is hereby declared that the estate of the late, Denga (Mabirimisa) Mudzielwana
Josiah, registered at Dzanani Magistrate under estate file no.44/98 was not administered and wound-
up under Black Administration Act, forthwith;
4.3. That it be and is hereby declared that the estate of the late, Denga (Mabirimisa) Mudzielwane
Josiah, registered at Dzanani Magistrate under estate file no.44/98 falls to be wound-up and
administered by the Master(13th Respondent) under the provisions of the Administration of Estates Act,
forthwith;
4.4. An order directing the Master (13th Respondent) to summon and conduct an enquiry with the
beneficiaries (family) of the late, Denga (Mabirimisa) Mudzielwane Josiah for the purpose of appointing
an executor for the administration and finalization of the deceased estate, forthwith;
4.5. An order directing the 1st Respondent to handover/deliver all the deceased estate properties,
including the shares in Mabirimisa Bus Services (Pty) Ltd to the executor to be appointed in the estate
late, Denga (Mabirimisa) Mudzielwane Josiah, for the purpose of administering and winding-up the
deceased estate.’

administered and finalised in terms of the Black Administration Act 38 of 1927 (the
Black Administration Act). The application was heard on 30 March 2021. In a judgment
delivered on 12 May 2021, the high court held that it was impermissible to grant the
relief sought as the administration of the estate in question had already been finalised
in terms of the provisions of the Black Administration Act, which had since been
repealed.2 This appeal is with the leave of the high court.

[2] It is common cause that the deceased died intestate on 19 April 1998. The
deceased had, during his lifetime, concluded three customary marriages, thus
constituting three houses, in terms of custom. The deceased first wife was Denga
Denga (the fifth respondent). Two children were born from that marriage, namely the
first and sixth respondents, respectively. The first appellant was the deceased second
wife. Seven children were born out of the second marriage. They were cited as the
second to the seventh appellant, as well as the fourth respondent. Three children were
born from the deceased third marriage, and they were cited as the seventh, eighth and
ninth respondents, respectively. The third wife, Alilali Denga predeceased the
deceased. The deceased was a businessman and owned a 50 per cent shareholding
in Mabirimisa Bus Service (Pty) Ltd (the bus company), which was operated in the
Vhembe District of Limpopo Province. The bus company was cited as the third
respondent in this matter.

[3] On 29 April 1998, a firm of attorneys acting on behalf of the first respondent
reported the estate to the estates department at the Magistrate’s Court of Dzanani
(Magistrate). The estate was registered under estate number 44/98 (the deceased
estate). The estate officer was cited as the tenth respondent, while the Magistrate was
cited as the eleventh respondent. On 30 April 1998, the Magistrate appointed the first
respondent as the representative of the deceased estate in terms of s 23(10) of the
Black Administration Act. The first respondent was the first-born son of the deceased.
His appointment as the representative of the estate appears to have been based on
the application of the principle of male primogeniture.3

2 The Black Administration Act 38 of 1927 was repealed on 30 September 2007.
3  The general rule of primogeniture provided that only a male who was related to the deceased qualified
as an intestate heir. In terms of that rule, women did not participate in the intestate succession of

[4] Following his appointment as the representative of the estate, the first
respondent compiled an inventory of the estate and submitted it to the Magistrate. The
items listed in the inventory were as follows:
‘5.6.1. Cattle (5) valued at R5 000-00
5.6.2. Goats (10), valued at R3 000-00
5.6.3. Orchard, valued at R20 000-00
5.6.4. 1983 model, Mercedes Bens Motor Car, valued at R10 000-00
5.6.5. 1982 model, Massy Ferguson tractor, valued at R5 000-00
5.6.6. 2 x Transport Certificates, valued at R10 000-00
5.6.7. Household furniture, valued at R3 000-00
5.6.8 Standard Bank Current Account with R9 000-00
5.6.9. 50% share interest in Mabirimisa Bus Service (Pty) Ltd, valued at R10-00.’

[5] The first appellant averred that she did not benefit anything from the estate and
was struggling financially, as she was a pensioner. She contended that instead of
finalising the administration of the estate, the first respondent collected all the assets
of the estate for the benefit of himself and members of the first house, with no regard
for the appellants as the members of the second house. She alleged that up to the day
on which she deposed to the founding affidavit; she did not know what had become of
the deceased estate.

[6] Although the state respondents (ie the tenth to the thirteenth respondents) and
the first, third, fifth and sixth respondents were represented by different legal
representatives, the defence raised by all the respondents was basically the same. It
amounted to this: that the relief sought by the appellants was impermissible in law in
the light of the fact that the administration of the deceased estate had been finalised
in terms of section 23 of the now repealed Black Administration Act; that the finalisation
of the estate was in terms of a settlement agreement which was made an order of

deceased estates. In a monogamous family, the eldest son of the family head was his heir. In the event
that the deceased was not survived by any male descendants, his father would succeed him. In the
event that the deceased father did not survive him, an heir was sought among the father’s male
descendants related to him through the male line. See Bhe and Others v Khayelitsha Magistrate and
Others 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) para 77.

court made by the Magistrate on or about 7 March 2006; and that the order granted
by the Magistrate on 7 March 2006 was never challenged by the appellants and
remains valid and effective until set aside or rescinded. The high court essentially
found for the respondents on this basis.

[7] The appellants contended on appeal that the deceased estate had not been
finalised under the Black Administration Act. They also asserted that given the fact
that the Black Administration Act had been repealed in 2007, the estate ought to be
placed under the control of the Master of the High Court, so that it could be wound up
in terms of the provisions of the Administration of Estates Act. The crisp issue for
determination is whether the estate of the deceased, reported at the Magistrate Court
under file number 44/98 was finalised. Should the answer be in the affirmative, then
cadit quaestio. However, should the answer be in the negative, the ancillary question
is whether the estate should be administered by the Master (the thirteenth respondent)
in terms of the Administration of Estates Act or be finalised by the Magistrate.

[8] This matter turns on the facts. It is self-evident from the correspondence
emanating from the office of the Magistrate that the process of administering the
deceased estate started soon after the first respondent’s appointment as the
representative of the deceased estate. A letter authored by the Magistrate dated 30
April 1998 and addressed to First National Bank, notified the bank that the first
respondent had been appointed as the representative of the estate and directed the
bank to allow the first respondent to sign cheques on behalf of the bus company (third
respondent). It is undisputed that following the deceased passing, the bus company
was de facto in the first respondent’s control.

[9] In her founding affidavit, the first appellant inter alia asserted as follows:
‘I am a pensioner and I am depending on pension for survival . . . I submit that I have not
received any maintenance from the 1st Respondent or from the estate. . . What I heard was
that the widows were to receive maintenance monthly, but that never happened.’

[10] The first respondent put up a comprehensive version in response thereto. He
said that the Magistrate had authorised the transfer of the Mercedes Benz motor

vehicle to him on 24 August 1999. This took place in terms of reg 3(1) of the regulations
that had been promulgated under the Black Administration Act. This regulation
provided that the estate shall be administered under the supervision of the relevant
magistrate, who was empowered to give directions as seen fit. The first respondent
explained that the orchard had by mutual agreement been divided into three equal
portions of 1,6 hectares and that each house was placed in possession of a portion.

[11] In respect of the remainder of the estate assets, particularly the shares in the
bus company, the first respondent said the following. At the time of the death of the
deceased, the business of the bus company was virtually worthless. He invited
members of the second and third houses to become involved in the business, but they
declined. As a result of his own efforts, the first respondent turned the business
around, so that it flourished. During 2006, however, a settlement agreement was
entered into between the first respondent and the appellants. The fourth respondent,
who had appointed attorney SO Ravele, represented the appellants. In terms of the
settlement agreement the total amount of R1,4 million was paid to the Madzielwana
Trust created by the appellants or a bank account in that name operated by them. It
was a necessary implication of the first respondent’s evidence that the settlement
agreement was in full and final settlement of all remaining issues in respect of the
deceased estate. The Magistrate had made the settlement agreement an order of
court at the instance of SO Ravele acting for the appellants.

[12] This evidence was not only corroborated by the affidavits of the State
respondents but supported by contemporaneous documents. The court order was
produced. It read as follows:
‘Having heard legal representative on behalf of the Applicant, submission by the Respondent
representative and having read the papers the following order is made:-
1. That the respondent to pay an amount of R1.4 million to the applicant [deceased first and
second house] as follows:
1.1. Deposit of R 50 000-00 payable on or before the 7th March 2006;
1.2. Thereafter; monthly instalment of R15 000-00 payable to the applicant attorneys of record
until the applicant furnish the respondent with written confirmation of their account.
2. That the respondent to pay applicant representative cost on attorneys own client scale as
from 21st November 2005 to date of judgment including cost of drafting this Court Order.

3. Parties agree that the aforesaid amount will be interest free unless the defendant breached
the agreement, wherein the applicant may approach court to enforce their claim for amount
due.’

[13] That the Magistrate may in the absence of a lis not have had the power to make
the settlement agreement an order of court is, in my view, of no moment; its mere
existence is strongly supportive of the first respondent’s version.
As I have said,
the first respondent averred that he had fully complied with his obligations under the
settlement agreement. Proof of cheque payments was attached to the answering
affidavit. Also attached was the following letter authored by the Magistrate:

‘RE: ESTATE LATE MUDZIELWANA JOSIA DENGA (ID NO ………
OUR CLIENT MR S MABIRIMISA

1. Your letter dated 1/6/18 has reference.
2. After having drawn the record I concluded that the estate has been finalized due to the fact
that a settlement agreement by the parties was made a Court order in terms of which Mr S
Mabirimisa and those who sided with him were to receive R 1.4 Million payable in instalments.
The first instalment being R 50 000 on monthly basis.
3. The record does not have a final liquidation and distribution account and there is no proof
of payment to all the beneficiaries.
4. If your client is not satisfied with the manner in which the estate was dealt with I will suggest
that you cause the decision of the magistrate who dealt with the matter to be reviewed by the
Master of the High Court.
5. Hoping that you will find this to be in order.’

[14] In her replying affidavit, the first appellant for the first time acknowledged that a
Trust was formed on the appellants’ behalf. She stated that an amount of R15 000
was to be paid monthly from 7 March 2006. She however denied that the appellants
were parties to the Deed of Settlement. Curiously, she went on to mention that the rest
of the averments were ‘neither admitted nor denied’ and put the respondent to the
proof thereof. Having done so, she proceeded to explain that the amount of R15 000
represented maintenance ‘pending the administration and finalisation of the estate’.
She further mentioned that ‘[t]he aforesaid contribution was only made sixteen (16)
times and since then, nothing was ever received from the 1st Respondent, let alone

the administration of the estate which the [appellants] maintain that it was not
maintained and finalised’. The appellants averred that the cheque counterfoils showed
that only an amount of R240 000 was paid and not R1.4 million. They challenged the
first respondent to prove that the amount of R1.4 million had been paid.

[15] It is evident that there is a dispute of fact pertaining to the issue of finalisation
of the winding up of the deceased estate. The appellants contend that the deceased
estate was merely reported to the Magistrate but was never administered by the first
respondent, as the representative of the deceased estate. Had the estate been wound
up, documents like the liquidation and distribution account, all vouchers of payments
made, proof of claims lodged, and proof of estate account opened would have been
furnished, so it was argued. On the other hand, the respondents contended that the
estate had been finalised in terms of a settlement agreement, which was made an
order of court. The estate was therefore wound up in accordance with the provisions
of the Black Administration Act, which did not require the drawing of a liquidation and
distribution account in the estate.

[16] The approach to the resolution of a dispute of facts on the papers was laid down
in the well-known judgment of Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty)
Ltd.4 That approach (the so-called Plascon-Evans principle) was aptly summarised by
this Court as follows in Wightman t/a JW Construction v Headfour & Another:5
‘. . . [T]he courts have said that an applicant who seeks final relief on motion must in the event
of conflict, accept the version set up by his opponent unless the latter’s allegations are, in the
opinion of the court, not such as to raise a real, genuine or bona fide dispute of fact or are so
far-fetched or clearly untenable that the court is justified in rejecting them merely on the
papers  . . ..’

[17] The respondents’ version was canvassed earlier in the judgment. In my view,
the respondents’ detailed version cannot be described as far-fetched or untenable. It
was a detailed version supported by correspondence issued by the Magistrate.

4 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] 2 All SA 366 (A); 1984 (3) SA 623
(A) at 634E-635C.
5 Wightman t/a JW Construction v Headfour (Pty) Ltd & Another [2008] ZASCA 6; 2008 (3) SA 371
(SCA); [2008] 2 All SA 512 (SCA) para 12.

Moreover, it was supported by a court order which reflected the settlement agreement.
There was also a letter sent to Le Roux Attorneys, attaching the last cheque payment.
This letter’s reference number is the same as that of the deceased estate.

[18] The appellants laid much emphasis on the fact that on 15 October 2004, the
Black Administration Act was declared unconstitutional in the seminal judgment of Bhe
and Others v Khayelitsha Magistrate and Others (Bhe).6 Section 23 of the Black
Administration Act was declared to be inconsistent with the Constitution and invalid,
and the Regulations for the Administration and Distribution of the Estates of Deceased
Blacks (R200), published in Government Gazette No. 10601 dated 6 February 1987,
as amended, were declared to be invalid. Furthermore, the principle of male
primogeniture, which was central to the customary law of succession, was declared
inconsistent with the Constitution and invalid to the extent that it excluded or hindered
women and extra-marital children from inheriting property. It must be borne in mind
that the orders granted did not summarily halt the administration of deceased estates
which had not yet been finalised on the date of the granting of the orders. The following
passage of that judgment is apposite:
‘It will be necessary, however, that estates that are currently being wound up under section
23 of the Act and its regulations, continue to be so administered to avoid dislocation. The order
will accordingly provide that the provisions of the Act and its regulations shall continue to be
applied to those estates in the process of being wound up. All estates that fall to be wound up
after the date of this judgment shall be dealt with in terms of the provisions of the
Administration of Estates Act.’7
It is clear from this passage that nothing precluded the finalisation of this matter in
terms of the Black Administration Act, as it was reported and registered in the
Magistrate’s Court in 1998.

[19] Importantly, in Bhe, the Constitutional Court said the following regarding the
conclusion of settlement agreements in relation to deceased estates:
‘The order made in this case must not be understood to mean that the relevant provisions of
the Intestate Succession Act are fixed rules that must be applied regardless of any agreement

6 Bhe and Others v Khayelitsha Magistrate and Others 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC).
7 Ibid para 133.

by all interested parties that the estate should devolve in a different way. The spontaneous
development of customary law could continue to be hampered if this were to happen. The
Intestate Succession Act does not preclude an estate devolving in accordance with an
agreement reached among all interested parties but in a way that is consistent with its
provisions. There is, for example, nothing to prevent an agreement being concluded between
both surviving wives to the effect that one of them would inherit all the deceased immovable
property, provided that the children’s interests are not affected by the agreement. Having
regard to the vulnerable position in which some of the surviving family members may find
themselves, care must be taken that such agreements are genuine and not the result of the
exploitation of the weaker members of the family by the strong. In this regard, a special duty
rests on the Master of the High Court, the magistrates and other officials responsible for the
administration of estates to ensure that no one is prejudiced in the discussions leading to the
purported agreements.’8
It suffices to say that on the first respondent’s version, which, as I have said, must be
accepted for the purpose of the determination of the appeal, an agreement as
envisaged in this passage had been entered into.

[20] I agree with the respondents’ submission that, the estate in question was
administered and wound up under the Black Administration Act in 1998 and cannot be
administered anew in terms of the Administration of Estates Act. To the extent that the
appellants hold the view that the first respondent breached his fiduciary duties while
administering the estate, it is open to them to institute the relevant action against the
first respondent, should they be so advised.

[21] For all the reasons mentioned above, I find that the high court’s judgment is
unassailable. It follows that the appeal falls to be dismissed. The high court ordered
that there should be no order of costs. The general rule is that costs must follow the
result. Having considered all the circumstances of this case, I am of the view that it
would not be in the interests of justice to make an adverse order of costs in this appeal.

[22] In the result, the following order is made:
The appeal is dismissed and there is no order as to costs.

8 Ibid para 130.

__________________________
M B MOLEMELA
JUDGE OF APPEAL

Appearances

Counsel for appellants:

M. Coetsee (with him S. Neuland)
Instructed by:
Mulovhedzi
&
Nelamvi
Attorneys
Inc,
Thohoyandou

EG Cooper Majiedt Inc, Bloemfontein

Counsel for first, third,
fifth and sixth respondents:
AM Mahafha (with him B Matlhape)
Instructed by:
T N Ramashia Attorneys, Thohoyandou

Molefi Thoabala Attorneys, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

31 OCTOBER 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form part of
the judgments of the Supreme Court of Appeal
Nyamukamadi Mukumela Denga (Mabirimisa) & Others v Mabirimisa Tshililo Arnold N N O &
Others (1296/2021) [2022] ZASCA 148 (31 October 2022)
Today the Supreme Court of Appeal (SCA) handed down judgment dismissing an appeal against a
decision of the Limpopo Division of the High Court, Thohoyandou (the high court).
The issue before the SCA was whether the estate of the deceased, reported at the Magistrate Court
under file number 44/98 was finalised.
This appeal arises from proceedings instituted by the appellants in the high court, seeking an order
declaring that the estate of the late Mudzielwana Josiah Denga Mabirimisa (the deceased) be
administered in terms of the Administration of Estates Act 66 of 1965 (the Administration of Estates
Act), and that the appellants be declared the heirs in the deceased estate.
The deceased died intestate on 19 April 1998. The deceased had, during his lifetime, concluded three
customary marriages, thus constituting three houses, in terms of custom. The deceased’s first wife was
Denga Denga (the fifth respondent). The first appellant was the deceased’s second wife. The third wife,
Alilali Denga predeceased the deceased. The deceased was a businessman and owned a 50 per cent
shareholding in Mabirimisa Bus Service (Pty) Ltd (the bus company), which was operated in the
Vhembe District of Limpopo Province.
On 29 April 1998, a firm of attorneys acting on behalf of the first respondent, reported the estate to the
estates department at the Magistrate’s Court of Dzanani (the magistrate). The estate was registered
under estate number 44/98 (the deceased estate). On 30 April 1998, the magistrate appointed the first
respondent as the representative of the deceased estate in terms of s 23(10) of the Black Administration
Act. The first respondent was the first-born son of the deceased. His appointment as the representative
of the estate appeared to have been based on the application of the principle of male primogeniture.
The first appellant averred that she did not benefit anything from the estate and was struggling
financially, as she was a pensioner. She contended that instead of finalising the administration of the
estate, the first respondent collected all the assets of the estate for the benefit of himself and members
of the first house, with no regard for the appellants as the members of the second house. The
respondents submitted that the relief sought by the appellants was impermissible in law in the light of
the fact that the administration of the deceased estate had already been finalised in terms of section 23
of the now repealed Black Administration Act 38 of 1927 (the Black Administration Act); that the
finalisation of the estate was in terms of a settlement agreement which was made an order of court
made by the Magistrate on or about 7 March 2006; and that the order granted by the Magistrate on 7
March 2006 was never challenged by the appellants and remains valid and effective until set aside or
rescinded.

The SCA found that the respondents’ detailed version could not be described as far-fetched or
untenable. It was a detailed version supported by correspondence issued by the magistrate. Moreover,
it was supported by a court order which reflected the settlement agreement. Applying the principles
enunciated in Bhe and Others v Khayelitsha Magistrate and Others, the SCA held that nothing
precluded the finalisation of this matter in terms of the Black Administration Act, as it was reported and
registered in the Magistrate’s Court in 1998, before that Act was repealed. It therefore found that estate
was administered and wound up under the Black Administration Act in 1998 and could not be
administered anew in terms of the Administration of Estates Act.
~~~~ends~~~~