- The High Court in Kimberley dismissed a plea after concluding that the defendants did not properly file a counterclaim under Rule 24, preventing the executor from responding to their request.
- Judge CC Williams stated that the plea did not clearly detail the material facts supporting the defendants’ claims and described it as seriously flawed and unable to be fixed by amendment.
- Although the court dismissed arguments about issues with signatures, it decided that the procedural failure alone warranted dismissal with costs on Scale A.
A family dispute over which will should be recognised has taken a significant procedural turn in the High Court in Kimberley.
Judge CC Williams dismissed the plea filed by two defendants in an estate battle involving the late Constance Louise King.
The case centers on Nicolette Marsha Daniels, who was named executor under a massed Will signed in 2009 by the late Mr and Mrs King. After Mrs King died and Mr King passed away on 31 October 2022, the Master of the High Court in Kimberley issued letters of executorship to Daniels on 17 January 2023.
Months later, a different Will dated 29 June 2022 emerged. Owen Palm, who was named as executor in this document, and Michelle Vilentia Botha, identified as an heir, presented it to the Master. On 17 July 2023, the Master revoked Daniels’ letters of executorship.
Daniels challenged the 2022 Will, asking the court to declare it invalid, confirm that the 2009 massed Will was the true last Will, and restore her as executor.
What went wrong with the plea
Palm and Botha responded by filing a plea in January 2024. They denied that the 2009 Will was properly massed and requested the court to dismiss Daniels’ claim. They also sought orders declaring the 2022 Will valid and the 2009 Will not massed.
Daniels then filed a Rule 30A application, arguing that the plea was not regular. Her main complaint was thst if the defendants wanted the court to grant them their own request, they had to file a proper counterclaim.
Judge Williams agreed. Referring to Rule 24(1), the court stated that a defendant who counterclaims must present a claim in reconvention that sets out the material facts and is clearly labeled.
“The Rule is clear that a defendant who wishes to counterclaim has to set out his claim in reconvention either in a separate document or in the same document as the plea but under the heading ‘claim in reconvention,’” the judge said.
That had not occurred. Instead, the defendants simply requested relief in their plea without clearly stating the factual basis for it.
The court found that this failure had significant consequences. “This situation has made it impossible for the plaintiff to deliver a plea to the claim in reconvention,” Judge Williams stated.
When the defendants' counsel was asked how the court could grant the requested relief without a clear factual basis in a counterclaim, the judgment records that he “could not provide any meaningful or satisfactory answer.”
On that basis alone, the judge concluded that the application to strike out the plea had to be granted.
The signature issue
Daniels also argued that the plea was invalid because it was not signed by an attorney with the right of appearance in the High Court.
The court dismissed that claim. Kenneth Juries, who signed the plea, had received a certificate granting him the right of appearance in March 2023, well before he signed the document.
At the time of signing, Judge Williams found that he “was thus entitled and authorised to sign such a pleading.” The rules did not require the document to be signed twice.
However, the judge added that it is good practice for an attorney’s right of appearance to be clearly shown in pleadings to avoid unnecessary disputes.
Final order
Despite dismissing the signature argument, the court found the plea fundamentally deficient.
“The plea is fatally flawed and cannot be cured by way of an amendment,” Judge Williams stated. "The first and second defendants’ plea is struck out with costs on Scale A.”
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