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[2016] ZAWCHC 16
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Lemmer N.O v Master of the High Court, Cape Town and Others (15789/2015) [2016] ZAWCHC 16 (2 March 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 15789/2015
DATE:
2 MARCH 2016
In
the matter between:
RIANA
LEMMER
N.O
.................................................................................................
Applicant
And
THE
MASTER OF THE HIGH COURT, CAPE
TOWN
...................................
First
Respondent
HEINDRE
KEITH
RADEMAN
...................................................................
Second
Respondent
RED
CROSS CHILDRENS
HOSPITAL
........................................................
Third
Respondent
SOCIETY
FOR THE PREVENTION OF
CRUELTY
TO
ANIMALS
............................................................................
Fourth
Respondent
SCHOOL
FOR THE BLIND,
WORCESTER
..................................................
Fifth
Respondent
RAPE
CRISIS,
HELDERBERG
....................................................................
Sixth
Respondent
ESTATE
LATE BERND
BORNGRÄBER
................................................
Seventh
Respondent
HENRICO
JOHAN
GROBBELAAR
...........................................................
Eighth
Respondent
JOHANNA
PETRONELLA
INGRAM
............................................................
Ninth
Respondent
JOHANNES
GEORGE
INGRAM
.................................................................
Tenth
Respondent
HEINDRUN
CHALIS
...............................................................................
Eleventh
Respondent
LYNDSAY
ROSIN
MITCHELL
...................................................................
Twelfth
Respondent
MEALS
ON WHEELS, SOMERSET
WEST
.........................................
Thirteenth
Respondent
Court
:
Justice J Cloete
Heard
:
2 February 2016
Delivered
:
2 March 2016
JUDGMENT
CLOETE
J
:
Introduction
[1]
This
is an application to extend the applicant’s powers as interim
curator of the estate of the late Laureen Borngräber
(the
deceased) which is opposed only by the second respondent (Rademan).
He is the executor nominated in the joint will of the
deceased and
her late husband, as well as a potential beneficiary of the
deceased’s estate.
[2]
It
is coupled with a counter-application by Rademan for an order
directing the Master to accept or reject the will (the further
relief
sought to ‘
rescind’
the Master’s failure to make a decision in this regard was
abandoned during argument).
Background
[3]
The
applicant, a practicing attorney, was previously appointed as curator
bonis of the deceased’s estate on 25 March
2008. On
27 October 2009 she was appointed curator ad personam to the
deceased and this appointment was confirmed on 20 November
2010.
The deceased passed away on 5 August 2015 whereupon the
applicant’s appointments automatically terminated.
[4]
During
the period of her erstwhile appointment as curator bonis the
applicant instituted two actions. The first was to have the
will
declared invalid on the basis that the deceased’s signature was
forged, alternatively that when the deceased signed
the will she
lacked the mental capacity to do so. The second is to recover a sum
of about R3 million from Rademan which it
is alleged he
misappropriated from the deceased’s estate. The pleadings in
these actions have closed but given that the applicant’s
powers
as curator bonis terminated upon the death of the deceased she has
been precluded from prosecuting them any further.
[5]
On
14 August 2015 the Master appointed the applicant as interim
curator after having indicated that in light of the pending
litigation in relation to the will he was not prepared to accept or
reject it and would await the outcome of the court’s
decision.
Such appointment was made in terms of s 12 of the Administration
of Estates Act 66 of 1965 (‘
the
Act’
)
which provides:
‘
12(1)
The Master may appoint an interim curator to take any estate into his
custody until letters of executorship have been granted
or signed and
sealed, or a person has been directed to liquidate and distribute the
estate.
…
(3)
An interim curator may, if specially authorised thereto by the Master
–
(a)
collect any debt and sell or dispose of any movable property in the
estate, wherever situate within the Republic;
(b)
subject to any law which may be applicable, carry on any business or
undertaking of the deceased; and
(c)
release such money and such property out of the estate as in
his opinion are sufficient to provide for the subsistence
of the
deceased’s family or household.’
[6]
The
letters of interim curatorship were issued in terms of s 12(1)
and merely record the applicant’s appointment and
that she is
‘
authorised
as such to take into custody’
the estate of the deceased. The applicant has not approached the
Master for any of the further powers contained in s 12(3).
[7]
The
applicant launched this application for orders authorising her to
continue with the pending litigation, to place the deceased’s
assets in safe custody, to pay any attendant disbursements and also
to make decisions regarding the deceased’s substantial
share
and investment portfolio (which at April 2015 amounted to
R74.6 million, the total value of the estate being R80.8 million
excluding the sum claimed from Rademan). She also sought authority to
pay the deceased’s funeral expenses; the salary of
the
deceased’s employee for August 2015 and the deceased’s
medical and similar expenses, to which Rademan agreed and
accordingly
these are no longer in issue.
[8]
The
applicant initially only cited the Master as a respondent. On
10 September 2015 Rademan was by agreement granted leave
to
intervene as a party. On 16 November 2015 a further order was
made directing that the other potential beneficiaries also
be joined.
The terms of that order are not entirely clear. Paragraph [b]
stipulates that the applicant ‘
moet
voeg
[hulle]
as
belanghebbende partye tot die aansoek’
and paragraph [f] that ‘
indien
enige van die respondente wat hierin gevoeg word…’
.
The applicant did not make any formal application thereafter for
their joinder but complied with the service provisions contained
in
that order. Furthermore, the 8
th
,
9
th
,
10
th
and 13
th
respondents filed affidavits supporting Rademan’s opposition on
the basis that they considered the contents of his affidavit
‘
alarming’
,
while at the same time stating that they would abide the court’s
decision. Accordingly there can be no question of prejudice
to any
potential beneficiary and it is not necessary to deal with this
aspect any further.
[9]
Although
Rademan launched a scathing attack on the applicant’s
professional integrity (and which she dealt with fully in reply),
it
is common cause that he has not sought to review the Master’s
decision to appoint her as interim curator (nor, for that
matter, did
he attempt to have her discharged as curator bonis prior to the death
of the deceased). Furthermore, in a report from
the Master dated
13 January 2016 it was stated that:
‘
3.
…Die applikant is egter reeds vir jare bekend aan my, en hou ʼn
verskeidenheid aanstellings beide as eksekutrise en
as
curator
bonis
,
en ek is nie bewus van enige negatiewe aspekte oor haar werk nie, en
sy is beslis in “good standing” by hierdie kantoor.’
Issue
in dispute
[10]
During
argument Rademan’s counsel made it clear that he did not intend
to deal with the myriad disputes of fact but would
focus only on a
point in limine which relates to the issue of the applicant’s
locus standi.
[11]
Rademan’s
contention is that the Act does not make provision for a court to
extend the powers of an interim curator to pursue
litigation in
relation to the validity of the will of the deceased concerned. It is
submitted that the purpose of s 12 is
to preserve the estate
pending the appointment of an executor. The Act provides that an
executor (whether testamentary or dative)
must be appointed by the
Master without delay for the purpose of attending to the
administration and winding up of the estate,
and that only the
executor so appointed will thus have locus standi to pursue
litigation of this nature. To quote from the heads
of argument filed
on Rademan’s behalf:
‘
The
prayers sought in the notice of motion, especially the prayers dealt
with in paragraphs (a)(i) and (vi) are clearly couched
in such wide
terms, that it requires little argument to convince the Honourable
Court, with respect, that these duties would be
exclusively duties
that an appointed Executor should perform.’
[12]
Furthermore,
so it is argued, the applicant as interim curator lacks locus standi
at common law to ask the court to extend her powers
in this manner,
given that she has no interest in the litigation in relation to the
will. It is submitted that the absence of locus
standi cannot be
cured by having it conferred upon her by a court in the exercise of
its inherent jurisdiction, given that such
jurisdiction cannot be
invoked in a manner which conflicts with statutory provisions or the
common law.
[13]
Rademan
thus contends that it is imperative that the Master be ordered to
accept or reject the will. It he accepts it, the individuals
with a
direct interest i.e. those who would qualify as beneficiaries in
terms of the laws of intestate succession, would be the
only
individuals entitled to challenge the will’s validity. If
however he rejects it, only the beneficiaries (one of whom
potentially is Rademan) or the nominated executor (i.e. Rademan)
would have locus standi to challenge that decision.
[14]
In
support of this argument Rademan relies on
Meiring’s
Executor Dative v Meiring’s Executors Testamentary
(1877) 7 Buch 93. There a husband and wife executed a mutual will,
appointing the survivor and their children the heirs of the
first
dying. The wife died and the husband remarried. He and his new wife
jointly executed a will in which he sought to revoke
the first will
insofar as he had the power to revoke it and appointed his new wife
and the children of their marriage as beneficiaries.
The executor of
the first will instituted proceedings to set aside the second will on
two grounds. The first was that the husband,
having adiated under the
first will, was precluded from revoking that will; the second was
that the husband executed the later
will as a result of undue
influence at a time when he was mentally incompetent. The executors
of the second will excepted on the
ground that no cause of action had
been disclosed. At page 95 it was held:
‘
The
question of more immediate importance is whether the plaintiff has
any locus standi at all for the purposes of this suit. He
claims the
right of instituting this action by virtue of his appointment as
executor dative of the testator’s first wife’s
estate,
which, he alleges, makes him the protector of her will. Now admitting
that the plaintiff is bound by his office to carry
out the provisions
of her will and to collect all the assets of her estate, it by no
means follows that he has adopted the proper
course for the
attainment of his objects. There is no allegation in the declaration
that the defendants have interfered with his
duties or withheld
property which belongs to the estate which he administers; and if
there had been such an allegation, the plaintiff’s
proper
course would have been to institute an action to restrain the
defendants from interfering with him in the exercise of his
duties or
to recover the property wrongfully withheld by the defendants. But it
is sought to impeach the second will on the ground
that it revokes
the first will which the testator’s own acts had rendered
irrevocable…’
and
at page 96:
‘
As
executor dative of the testator’s first wife the plaintiff is
bound to carry out the provisions of her will but only in
so far as
it relates to property disposed of by her and directions given by
her. His appointment as executor dative of her estate
does not confer
on him the right, nor does it impose on him the duty, of carrying out
the provisions of
[the
husband’s]
first
will or of protecting those interested thereunder. The second ground
for impeaching the second will is that at the time the
testator
executed it he was mentally incapable of making a testamentary
dispossession, and that while in this condition he was
induced…
But here also the declaration discloses no reason whatever why the
plaintiff should be allowed to avail himself
of any of these grounds
for the purpose of impeaching the second will. The only persons who
could avail themselves of these grounds
are the heirs ab intestato of
the testator, but they are not before the Court, nor does the
plaintiff profess to institute this
action on their behalf.’
[15]
On
the other hand the applicant argues that the finalisation of the
litigation is paramount to the determination of the will’s
validity; and that the Master can only appoint an executor (whether
testamentary or dative) once such validity or otherwise is
determined. Were the court to refuse to authorise the applicant to
pursue the litigation to finality, the deceased’s estate
will
remain in limbo indefinitely. This, it is submitted, cannot be in the
interests of the estate.
Discussion
[16]
In
order to decide this issue it is necessary to consider whether the
applicant as interim curator has a legally enforceable right
to
approach the court and a sufficient interest in the relief claimed;
at the same time being mindful of the warning given by Corbett
CJ in
Gross
and Others v Pentz
[1996] ZASCA 78
;
1996 (4) SA 617
AD at 632F-G that there is no rule of law that
permits a court to confer locus standi on a party, who otherwise has
none, for the
sake of expediency or to avoid impractical and
undesirable results.
[17]
Rademan’s
contention is that: (a) no such right exists; and (b) therefore
the court cannot confer it. However this contention
appears to me to
be misplaced for the reasons that follow.
[18]
In
Meiring
the
court found that as executor dative of the first wife’s estate
the plaintiff had no locus standi to attack the validity
of the
husband’s second will because his powers and duties extended
only to the estate of the first wife. It is apparent
from that
judgment that the executor dative assumed (wrongly as the court
found) that because he was charged with the administration
of the
first wife’s estate his powers automatically extended to that
of the husband’s after her death by virtue of
the initially
executed mutual will.
[19]
Moreover
the powers and duties of the executor dative would have been
circumscribed by the relevant legislation. However in matters
concerning a deceased estate pending the appointment of an executor
(whether testamentary or dative) our courts have adopted a
different
approach.
[20]
In
Meyerowitz on
Administration
of Estates and Estate Duty
2007 ed at 7-3 it is stated that:
‘
Where
there is likely to be a long delay in the appointment of an executor
or something beyond the authority of the person in possession
of the
deceased’s property has to be done urgently, application may be
made to the Master for the appointment of an interim
curator…’
and
at 7-4:
‘
[referring
to s 12(3)]
these
are the limits of the powers which the Master can confer on a
curator, and if for the better preservation of the estate the
curator
should have additional powers (e.g. to exercise an option or enter
into a lease and the like), application should be made
to court for
supplementary powers. The court, it is considered, has inherent power
to grant authority to do what is in the interest
of or to the
advantage of the estate.’
[21]
In
support of this proposition Meyerowitz refers to various cases which
were decided prior to the commencement of the Act, when
its
predecessor (the Administration of Estates Act 24 of 1913) and in
turn its predecessor, were in operation.
[22]
Sections
26 to 30 of the 1913 Act dealt with the custody of a deceased estate
pending the issuing of what was then referred to as
‘
letters
of administration’
.
S 30 provided that:
‘
30(1)
In all cases where the Master deems it expedient, he may appoint a
curator bonis to take the custody and charge of any estate
until
letters of administration are granted for the due administration
thereof.
(2)
Every such curator bonis may collect such debts and may sell or
dispose of such perishable property belonging to the estate,
wherever
situate within the Union, as the Master may especially authorise.’
[23]
The
cases to which Meyerowitz refers are the following:
In
re Estate Alexander
1912
CPD 1116
, where the petitioner had been appointed executor in the
deceased’s will but such appointment was invalid, the court
authorised
him to conduct the deceased’s business pending the
appointment of an executor dative;
Ex
parte McLennan
1925 OPD 115
, where the court authorised the Master to confer
additional powers on a curator bonis (now interim curator) to
continue acting
in terms of a general power of attorney so as to be
able to conduct the deceased’s business pending the appointment
of an
executor;
Ex
parte Moffett
1930 OPD 156
, where the deceased failed to make a valid appointment
of a testamentary executor and the court appointed a curator bonis
with
authority to sign a contract in circumstances where the two
major heirs had consented and the court was satisfied that the
contract
would be beneficial to the minor heirs;
In
re Estate Shepherd
1934 NPD 311
, where relief similar to
McLennan
was granted, including operating a bank account and making
application for overdraft facilities in respect of the deceased’s
business until the appointment of an executor; and
Ex
parte Adkins
1937 EDL 188
, where a curator bonis was appointed to run the
deceased’s hotel pending the winding-up of the estate. It must
however be
noted that in almost all of these cases the court required
the curator bonis to provide suitable security to the Master.
[24]
Perhaps
the two most helpful cases upon which Meyerowitz relies are
Ex
parte McEwan
1930 WLD 325
and
Ex
parte Craig
[1951] 1 All SA 78
(O).
[25]
In
McEwan
the deceased had executed a general power of attorney in favour of
the applicant, an attorney, to conduct his affairs while he
lived in
Wales. After the death of the deceased there was an urgent need to
appoint an interim curator (or curator bonis in terms
of s 30 of
the 1913 Act). The applicant sought his appointment as curator bonis
pending the issue of letters of administration,
with special power to
purchase a mortgaged property if he thought it advisable in the
interests of the estate, and to prove the
claim of the estate in the
assigned estate of the mortgagor. In his report the Master stated
that although he had power to appoint
a curator bonis in terms of
s 30 of the 1913 Act, that power could not be exercised until
proper proof of death had been provided.
He offered no objection to
the relief sought. The court made the following order:
‘
That
applicant be appointed curator bonis of the estate of the late
Williams, with full powers to represent and protect the interests
of
the estate pending the issue of letters of administration, subject to
giving security to the satisfaction of the Master; with
authority to
prove the claim of the estate against the estate of
[the
mortgagor]
,
and to represent the estate of Williams in connection with
[the
mortgagor’s]
estate,
to receive payments from the estate of
[the
mortgagor]
and,
should applicant think it necessary and expedient, to purchase the
mortgaged property on behalf of the estate of Williams for
such
amount as he might consider expedient; the applicant to consult the
Master as to the time and conditions of a resale of the
mortgaged
property; costs to come out of the estate of Williams.’
[26]
In
Craig
the applicant was appointed curator bonis by the Master in terms of
s 30 of the 1913 Act. The applicant was also appointed
heir
under the deceased’s will, but the validity of the will was
being contested and an action was pending on that issue.
The
applicant sought special powers to be conferred upon him as curator
bonis, inter alia authorising him to carry on the business
of the
deceased and to pay out pro rata to creditors an amount in cash which
had become available as a result of collection of
some of the
outstanding debt due to the estate. The court held at page 79-80
that:
‘
The
powers asked for appear to be necessary in order to conserve the
assets of the estate, but in view of the pending litigation
it seems
to me that certain safeguards should be embodied to avoid, so far as
that can be done, the possibility of prejudice to
the party who has
instituted the litigation referred to and, so far as possible, also
to avoid any increase in the liabilities
of the estate. That the
Court has the power under circumstances such as these to grant the
authority asked for appears from the
decisions of this Court in
Ex
parte McLennan
,
1925 OPD 115
and in
Ex
parte Moffett
1930
OPD 156
, the latter case being a decision by a full-Bench which is
binding upon me. These cases have been referred to and followed in
Ex
parte Adkins
1937
EDL 188
and
In
re Estate Shepherd
1934
NPD 311.
I am not unaware that some of these cases have been
distinguished in the case of
Ex
parte Lubbers & Others
1937
TPD 113
, but it seems to me that that is not on all fours with the
present case in that no curator bonis was there appointed, the
application
did not aim essentially at the preservation of estate
assets and the applicant asked for authority to continue to exercise
powers
under a power of attorney given to him by the deceased during
his lifetime.’
[27]
It
is thus apparent that, at least subsequent to the 1913 Act, our
courts have on numerous occasions recognised their inherent
jurisdiction to specially authorise an interim curator to exercise
such powers as are considered to be in the interest, or to the
advantage, of the deceased estate concerned where there is likely to
be a long delay before an executor is appointed.
[28]
The
applicant derives her locus standi by virtue of her appointment as
interim curator. Such appointment conferred upon her the
right to
approach the court for the extension of her powers to conclude the
litigation in the interests of the estate.
[29]
The
applicant also has sufficient interest in having the litigation
finalised because it is only then that her appointment as interim
curator may terminate. The Master cannot authorise her to finalise
the litigation because it falls outside his statutorily conferred
powers under s 12(3). The only respondent who opposes is Rademan
who himself is the subject of scrutiny in the pending litigation.
It
is not the applicant who will make a determination on the validity of
the will or whether Rademan is indeed indebted to the
deceased
estate; those are decisions for a court to make and the applicant
will thus not secure any advantage over Rademan if she
is authorised
to proceed with the litigation. Resolution of the disputed issues
will only serve to the benefit of the estate because
thereafter an
executor (either testamentary or dative) may be appointed to have it
wound up without further delay. The safeguard
to ensure the applicant
pursues the litigation to finality in a responsible manner and
without prejudicing the estate can be addressed
by ordering her to
provide suitable security to the satisfaction of the Master and to
work under his supervision to the extent
that he deems it necessary.
[30]
As
to the relief sought by the applicant at prayers [a] [iii] and [vi],
namely that she be authorised to place the deceased’s
assets in
safe custody, to pay any attendant disbursements, and that she be
authorised to make decisions concerning the deceased’s
share
portfolio and investments, if necessary, my findings are as follows.
The applicant has already been authorised by the Master
to take the
deceased’s assets into her custody. It is thus logical to grant
the applicant the authority to pay any related
disbursements, and to
make the necessary decisions concerning the deceased’s share
and investment portfolio, subject however
to her similarly furnishing
suitable security to the satisfaction of the Master and to make
decisions concerning that substantial
portfolio under his
supervision.
[31]
Section
8(4) of the Act provides:
‘
If
it appears to the Master that any such document, being or purporting
to be a will, is for any reason invalid, he may, notwithstanding
registration thereof in terms of subsection (3), refuse to accept it
for the purposes of this Act until the validity thereof has
been
determined by the Court.’
[32]
As
far as the counter-application is concerned the Master has registered
the will but is not prepared to accept or reject it until
the
validity thereof has been determined by the court. The Master’s
refusal to accept or reject the will in the face of the
pending
litigation which pre-dates the death of the deceased cannot be
faulted. Whether he accepted or rejected the will, this
would not
have put an end to that litigation. Moreover it might have served to
increase the cost to the estate because his decision
may well have
been taken on review. It is not the Master’s function to
pre-empt a decision of a court.
Conclusion
[33]
In
the result the following order is made:
1.
The
applicant’s powers as interim curator in the estate of the late
Laureen Borngräber (‘
the
deceased’
)
are extended as follows:
1.1
To
proceed with the pending actions instituted by her in her capacity as
curator bonis prior to the death of the deceased until
their
conclusion;
1.2
To
effect payment of all disbursements reasonably incurred in connection
with the safe custody of the assets of the deceased’s
estate;
1.3
To
make the necessary decisions in respect of the deceased’s share
portfolio and investments, if required.
2.
The
powers conferred on the applicant in terms of paragraph 1 above shall
be exercised subject to the following conditions:
2.1
The applicant shall furnish such additional security as the Master
may require to his satisfaction;
and
2.2
The exercise of such powers shall take place under the Master’s
supervision to the extent that
he deems it necessary.
3.
The counter-application of the second respondent is dismissed.
4.
The costs of the main application shall be borne by the deceased
estate.
J
I CLOETE