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[2019] ZAWCHC 8
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M.J v Master of the High Court and Others (15699/2017) [2019] ZAWCHC 8 (18 February 2019)
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THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE DIVISION, CAPE
TOWN)
Case
No: 15699/2017
Before the Hon. Mr
Justice Bozalek and the Hon. Mr Acting Justice Sievers
Hearing:
7 December 2018
Delivered:
18 February 2019
In
the matter between:
M
J Applicant
and
MASTER OF THE
HIGH
COURT 1
st
Respondent
SETLAKALANE
SHIRLEY THOBEJANE
N.O. 2
nd
Respondent
N
K 3
rd
Respondent
CUMA LENNOX
PININI 4
th
Respondent
JUDGMENT
BOZALEK
J
[1]
This
is a review application in which the applicant, Mr M J (‘the
applicant’), launched proceedings against the Master
of the
High Court (‘the Master’), Ms SS Thobejane (‘Ms
Thobejane’), an attorney, in her capacity as the
executor of
the estate of the late L K (‘the deceased’), Mr NM K, the
brother of the deceased (‘Mr K’)
and Mr CL Pinini (‘Mr
Pinini’), an attorney practising in Cape Town who, prior to the
appointment of Ms Thobejane,
had been appointed as executor of the
deceased’s estate.
[2]
The
relief originally sought in Part A of the notice of motion was an
order interdicting Ms Thobejane from acting as executor of
the estate
pending the determination of relief sought in Part B of the notice of
motion. It would appear that this temporary interdict
was not
pursued. In Part B of the notice of motion the applicant sought the
following relief:
1.
The
review and setting aside of the Master’s decision to remove Mr
Pinini as the executor of the estate … in terms
of
section
54(1)(b)(v)
of the
Administration of Estates Act, 66 of 1965
, under
Court order dated 12 October 2016;
2.
Reviewing
and setting aside the Master’s decision on 16 March 2017
appointing Ms Thobejane as the executrix of the estate;
3.
Directing
the Master to permit the applicant to nominate an executor dative to
administer the estate.
[3]
The
application was opposed on behalf of Ms Thobejane and Mr K who filed
opposing affidavits. The Master filed a notice to the effect
that he
abided the decision of the Court but later decided to actively oppose
inter
alia
for the reason that the applicant was seeking a costs order against
his office. The matter came before Court on some half dozen
occasions
and was finally argued before Court on 7 December 2018. On that day
the applicant’s counsel advised that the only
relief being
pursued was the review of the Master’s decision to appoint Ms
Thobejane. In other words the applicant no longer
sought to review
the Master’s decision to remove Mr Pinini as executor of the
estate or an order directing the Master to
permit the applicant to
nominate an executor dative to the estate.
Background
[4]
The
deceased died intestate on 6 March 2016 leaving behind a minor child,
B K, (‘the minor child’). The minor child
is currently in
the care of Mr K, her maternal uncle, and his wife in Gauteng.
[5]
The
minor child was born on […] January 2015 from a relationship
between the applicant and the deceased. They were never
married but
lived together at the deceased’s home in Parklands (‘the
property’). In July 2015 the deceased put
the property on the
market for sale, indicating that she intended to leave Cape Town. At
that stage the deceased was ill with cancer
and her prognosis was
poor. In early December 2015 the deceased left Cape Town with her
minor child to attend her mother’s
funeral in Polokwane.
Shortly after her arrival there the deceased’s condition
deteriorated and her siblings and elderly
father stepped in to take
care of the minor child. The deceased died on 6 March 2015. During
the final weeks of the deceased’s
life and for the immediate
period thereafter her minor child was taken care of by the deceased’s
elderly father and two of
her siblings. During June 2016 the minor
child was taken into the fulltime care of Mr K, the deceased’s
brother, and his
wife at their home in Johannesburg. Mr K regards
himself as the minor child’s de facto guardian with the
associated rights
and responsibilities which he has assumed at his
personal expense. In this he is supported by all members of the
deceased’s
family.
[6]
In
early 2016, apparently unbeknownst to the deceased’s family,
the applicant nominated his attorney, Mr Pinini, in Cape Town,
as
executor of the estate and letters of executorship were duly issued
to Mr Pinini on 14 April 2016. It would appear that the
applicant
nominated Mr Pinini as executor without consulting the deceased’s
family notwithstanding the fact that the minor
child had been out of
his custody and control for some months and indeed within the custody
and control of the deceased’s
family in Polokwane and
Johannesburg from early December 2015, a period of some five months.
[7]
Mr
K duly launched an application in this court for the removal of Mr
Pinini as executor in the estate in terms of
section 54(1)(a)(v)
of
Act 66 of 1965 (‘the Act’). That section provides
inter
alia
that an executor may be removed from his office by the Court ‘
if
for any other reason the Court is satisfied that it is undesirable
that he should act as executor of the estate concerned’
.
In that matter Mr Pinini was the first respondent, the applicant was
the second respondent and the Master the third respondent.
The
application was opposed by Mr Pinini. Judgment was handed down by
Mantame J on 22 September 2016 and culminated with the following
order:
‘
60.1
It is undesirable that the first respondent (Pinini) should act as
executor of the Estate of the late L K;
60.2
First respondent is hereby removed from the office of the executor of
the estate … forthwith;
60.3
First respondent is ordered to return his letters of executorship to
the Master within three days of this order;
60.4
First respondent is ordered to file a report of the work done with
the Master of the High Court, Cape Town and a copy to applicant,
from
the date of the issue of the letter of acceptance of trust as
executor i.e. from 11 April 2016 to date within three days of
this
order;
60.5
First and second respondent are ordered to pay the costs occasioned
by this application.’
[8]
In
para 58 of her judgment Mantame J found as follows:
‘
[58]
In fact, first respondent’s actions as an attorney of second
respondent were in conflict with those of the estate. The
fact that
first respondent is unable to separate his role as an executor of the
deceased estate and his role as an attorney of
second respondent
points to one direction that he is not fit to continue his role as
executor of the deceased estate. Besides the
process leading to his
appointment as an executor is very much controversial. It is clouded
by dishonesty, untrustworthy conduct
and misrepresentation of facts …
[59]
… In the present case, the misconduct committed is very
serious and has gross dishonesty and conflict of interest situations.
In light thereof, it would be undesirable for first respondent to
continue in the office as executor and would detrimentally effect
the
total worth of the estate, judging from the treatment of second
respondent by the first respondent who is living in the deceased’s
property rent free’.
[9]
The
Master subsequently sent a Notice of Removal to Mr Pinini on 17
October 2016 informing him of his removal as executor of the
estate
in terms of section 54(1)(b)(v) of Act 66 of 1965 and pursuant to the
order of Mantame J. That section provides that an
executor may be
removed by the
Master
‘
if
he fails to perform satisfactorily any duty imposed upon him by or
under this Act or to comply with any lawful request of the
Master …’
.
[10]
Mr
Pinini sought leave to appeal against the judgment and order. That
application was heard on 12 October 2016 and dismissed with
costs. Mr
Pinini then petitioned the Supreme Court of Appeal on 4 November 2016
for leave to appeal but this was dismissed on 21
January 2017. In the
meantime Mr K launched a further application, this one in terms of
section 18
of the
Superior Courts Act, 10 of 2013
, seeking to execute
the order of Mantame J pending the outcome of the petition or any
subsequent appeal. That application was heard
by McCurdie AJ who, on
5 December 2016, ordered that sub-paras 2, 3 and 4 of Mantame J’s
order would operate pending the
outcome of the petition and any
appeal process.
[11]
On
13 February 2017 Mr Pinini petitioned the Constitutional Court for
leave to appeal against the judgment and order of Mantame
J. That
petition was dismissed on 20 March 2017. The applicant himself
applied for leave to appeal against the judgment and order
of Mantame
J on 29 May 2017 but, likewise, that was also dismissed. On 16 March
2017 the Master issued letters of executorship
to Ms Thobejane after
she had been nominated for that position by the deceased’s
family.
[12]
The
next step in this spiral of litigation was taken on 28 August 2017
when the applicant instituted these proceedings and in which
Mr
Pinini has filed a notice to abide. It is not without significance
that although the applicant has never sought Mr Pinini’s
reinstatement as executor in terms of the relief sought in his notice
of motion, in para 20.3 of his founding affidavit he prays
for an
order ‘
directing
the (Master) to reinstate forthwith the appointment of (Pinini) as
executor’
.
[13]
It
is appropriate to identify the grounds of review relied upon by the
applicant in relation to the only relief now sought, namely,
the
review and setting aside of the Master’s decision to appoint Ms
Thobejane as executor of the estate. The applicant alleges,
firstly,
that the decision is reviewable in that it:
‘
3.1.1
is not authorised by the empowering provisions or it was taken in
contravention of the law;
3.1.2
the procedure set by the Act for the (Master) in taking the impugned
decision is procedurally unfair;
3.1.3
the Master’s (decisions) … were taken arbitrarily or
capriciously; and
3.1.4
the actions of (the Master) is unreasonable, irrational and
unlawful.’
[14]
Another
ground of review relied upon is based on section 95 of the Act which
provides that every appointment of an executor or decision
taken by
the Master is subject to review by any person aggrieved thereby. This
ground can be disposed of immediately. The right
to review any
appointment by the Master in terms of section 95 of the Act is
merely a statutory recordal of such right and
provides no independent
grounds of review apart from those contained either in the Promotion
of Administrative Justice Act, 3 of
2000 (‘PAJA’) or, to
the extent that it is applicable, the common law. This ground of
review is therefore subsumed
by the review grounds in terms of PAJA.
As was said by the Court in
Da
Silva and Another v Da Silva NO and Others:
‘
That
the decision taken by the third respondent [the Master] is reviewable
is beyond question.
Section 95
of the
Administration of Estates Act
is
the answer to this question. Any decisions taken by third
respondent in terms of the Act is reviewable under the Promotion of
Administrative
Justice Act, 3 of 2000 (‘PAJA’).’
[1]
[15]
A
further ground of review is based on the common law principle of
legality, said to include the circumstances where the decision-maker
did not act in accordance with the empowering statute. This ground
must also receive short shrift. It is not clear on what basis
the
applicant relies on this principle as a ground of review. He states
that he is advised that the grounds of review under that
principle
are not the same under those under PAJA but also that the principle
covers the ground of legality and rationality. In
the matter of
State
Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd
[2]
the Supreme Court of Appeal recently held as follows:
‘
In
my view, the proper place for the principle of legality in our law is
for it to act as a safety net or a measure of last resort
…
(w)hen PAJA does apply, litigants and the courts are not entitled to
bypass its provisions and rely directly on the principle
of
legality.’
[16]
In
Minister
of Defence and Military Veterans v Motau NO and Others
[3]
the Constitutional Court stated that the correct order of inquiry is
to consider, first, whether PAJA applies and only if it does
not,
what is demanded by constitutional principles such as the rule of
law. In the circumstances I see no room here for applying
the
‘
principle
of legality’
,
given that there is no dispute that the Master’s decision to
appoint Ms Thobejane was administrative action and reviewable
in
terms of PAJA on any applicable ground.
[17]
In
his supplementary affidavit the applicant sought to supplement his
grounds of review as follows:
1.
the
manner in which the nomination of Ms Thobejane as executor was
conducted was not in accordance with the required procedure in
terms
of Chief Master’s Directive 3 of 2006 where it is stated that
‘
nominations
should be only be obtained from major heirs and/or legal guardians of
minor heirs…’
;
2.
he
alleges further that the Master was at all material times aware of
the fact that Ms Thobejane acted as attorney of record for
Mr K in
litigation against the applicant.
3.
in
para 12 of his supplementary affidavit the applicant alleges that the
Master’s failure to inform him, presumably prior
to the
nomination and appointment of Ms Thobejane, of his intention to do so
and/or his failure to furnish reasons for his (the
applicant’s)
exclusion are:
‘
3.1.
Procedurally unfair;
3.2.
Biased or suspected to be reasonably biased
3.3.
Irregular;
3.4
Influenced by an error of law; and
3.5
Arbitrary or capriciously.’
(sic)
4.
Finally,
although not mentioned in the founding affidavit as a ground but
which formed a central argument advanced by the applicant,
was the
point that at the time the Master appointed Ms Thobejane as executor,
an appeal against the judgment of McCurdie AJ putting
the order of
Mantame J into effect was pending and thus the Master could not at
the time lawfully appoint Ms Thobejane as executor.
[18]
I
propose to deal now with this last point. Ms Thobejane was issued
letters of executorship by the Master on 16 March 2017. By this
stage
Mr Pinini’s application for leave to appeal against her
judgment had been dismissed by Mantame J and his petition to
the
Supreme Court of Appeal had likewise been dismissed. Mr Pinini also
petitioned the Constitutional Court for leave to appeal
which
application was dismissed by the Court a few days after Ms Thobejane
was appointed. Importantly, however, by 16 March 2017
Mr K had
already successfully applied for the execution of the material terms
of Mantame J’s order in terms section 18 of
the Superior Court
Act. That application was granted by McCurdie AJ on 5 December 2016.
However, it too was the subject of an appeal
by Mr Pinini, who filed
same on 15 December 2016. The applicant’s case in this regard
is that the noting of that appeal suspended
the judgment of Mantame J
pending the Constitutional Court’s decision.
[19]
That
would be an appeal in terms of
section 18
of The
Superior Courts Act,
10 of 2013
which provides that, subject to certain qualifications,
the operation and execution of a decision which is the subject of an
application
for leave to appeal or of an appeal is suspended pending
the decision of the application or appeal. One such qualification is
where
the Court ‘
under
exceptional circumstances orders otherwise’
.
If a Court so orders ‘
otherwise’
it must immediately record its reasons for doing so and the aggrieved
party has an automatic right of appeal to the next highest
Court
which must deal with it as a matter of extreme urgency. Pending the
outcome of that automatic and urgent appeal the order
by the Court
putting into operation the order sought to be appealed against is
suspended pending the outcome of such appeal.
[20]
However,
the provisions of
section 18
make it quite clear that any appeal to
the next higher Court in terms of an aggrieved party’s
automatic right of appeal is
one which has to be pursued as a matter
of extreme urgency. In this regard the applicant’s papers are
virtually silent as
to what steps Mr Pinini took to pursue the urgent
appeal against McCurdie AJ’s judgment beyond merely noting it
on 12 December
2016. It is common cause, moreover, that no such
appeal hearing was heard and thus, by the time the Master appointed
Ms Thobejane
on 16 March, more than three months had passed since the
urgent appeal had been noted.
[21]
Section
18
of the
Superior Courts Act does
not deal with the time limits or
procedures to be followed in pursuing an urgent automatic right of
appeal. Recourse must be had
to Rule 49 of the Uniform Rules of Court
where subrule 18 provides as follows: ‘
notwithstanding
the provisions of this rule the Judge President may, in consultation
with the parties concerned, direct that a contemplated
appeal be
dealt with as an urgent matter and order that it be disposed of and
the appeal be prosecuted at such time and in such
manner as to him
seems meet’
.
Generally speaking the fourth term in this Division concludes in
mid-December with the first term commencing in late January or
at the
latest, early February. In the absence of any evidence from the
applicant concerning what steps were taken by or on behalf
of Mr
Pinini to pursue his urgent appeal against the order made by McCurdie
AJ in terms of
section 18
of the
Superior Courts Act by
mid-March
2017, the only reasonable inference to be drawn is that no such steps
were taken. The result, in my view, was that by
the time Ms Thobejane
was appointed by the Master, the urgent appeal had lapsed.
[22]
For
this reason alone the argument that the Master acted unlawfully in
appointing Ms Thobejane as executor, since the removal of
Mr Pinini
as executor pursuant to the order of Mantame J had been suspended,
has no merit.
[23]
As
far as the balance of the grounds of review are concerned they
clearly overlap or are repetitive and can be distilled as follows:
Ms
Thobejane’s appointment was:
1.
unlawful
in that it failed to comply with the provisions of the Act or a
directive issued by the Chief Master;
2.
procedurally
unfair for want of the Master’s failure to inform the applicant
beforehand of his intention to appoint Ms Thobejane,
(presumably to
allow him to object or to nominate an executor of his choice) and a
failure to furnish reasons for his appointment
of Ms Thobejane;
3.
arbitrary,
irrational, unreasonable or capricious, principally in that Ms
Thobejane was unsuited to be appointed as executor.
[24]
Before
dealing with these grounds it is necessary to briefly set out the
Master’s case in response to these allegations. He
first points
out that Mr Pinini was removed as executor by order of Court in terms
of section 54(1)(a)(v) of the Act and that all
attempts to appeal
that judgment were exhausted. He, as Master, was bound by the
findings and order of the Court. The Master also
avers that the
applicant is not the
de
facto
guardian of the minor child since the latter has not resided with him
from December 2015. In addition, the Master’s case
proceeds,
Mantame J concluded that the best interests of the minor child were
not real considerations for either the applicant
or Mr Pinini in,
respectively, nominating the latter as an executor or acting as an
executor in the deceased’s estate. The
Master considered
himself bound by the judgment of Mantame J, as the upper guardian of
all minor children, insofar as she also
found that in those
circumstances the applicant lacked
locus
standi
to act on behalf of the minor child. The Master further relied on
Mantame J’s finding that the ‘
collusion’
between the applicant and Mr Pinini was so glaring that it led the
Court to conclude that, apart from any other factors, Mr Pinini
had
not performed his fiduciary duties properly.
[25]
Insofar
as the Master’s notice of removal addressed to Mr Pinini refers
to him being removed in terms of section 54(1)(b)(v)
of the Act i.e.
not section 54(1)(a)(v) upon which the Mantame J judgment relied, he
explains this reflected his stance on the
findings made by the Court.
It bears mentioning that the Master’s notice of removal also
refers to the executor’s removal
‘
in
terms of the Court order dated 12 October 2016’
,
this being the order of Mantame J wherein she refused Mr Pinini leave
to appeal against her previous order and judgment.
[26]
In
my view it was incorrect for the Master to refer to section
54(1)(b)(v) of the Act inasmuch as the Court had already ordered
the
executor’s removal in terms of section 54(1)(a)(v). In these
circumstances all that could have been expected of the Master
was to
convey the Court’s decision to Mr Pinini for the sake of good
order.
[27]
The
Master also placed reliance on the following findings which appear
from the judgment of Mantame J at para 54:
‘
It
seems, when the Master of the High Court Cape Town appointed first
respondent (Pinini) as an executor of this estate, the true
state of
affairs was not presented to the Master. First, and / or second
respondent (the applicant) who reported the death
of the deceased,
completed the death notice, next of kin affidavit, completed an
inventory, nominated the executor, conveniently
did not advise the
Master that this minor child second respondent (the applicant) is
professing to be representing is not even
living with him; second, he
has no interest in her well-being and as a result does not have
contact with this child; third, does
not contribute to the care and
maintenance of this child and fourth the death of the deceased did
not even take place in the jurisdiction
of this Master.’
[28]
The
Master stated further that Ms Thobejane was appointed as executor
after she was nominated by the deceased’s father and
her six
siblings. He pointed out further that the applicant was neither the
deceased’s spouse nor her blood relative; moreover,
it would
appear that he did not have
de
facto
guardianship of the minor child, who was the sole beneficiary of the
deceased estate. In the premises the Master considered himself
entitled to appoint the second respondent (Ms Thobejane) as the
executor of the estate after his office received the requisite
surety
and an adequate bond of security. The Master denied that the
applicant was entitled to nominate his preferred candidate
for
executorship to compete with Ms Thobejane. He pointed out that the
applicant had nominated Mr Pinini, who was appointed as
the executor
on information that was found by the Court to have been false and
which misled the Master, subsequent to which he
was removed by order
of Court.
[29]
Finally,
the Master noted that Mr K is the brother of the deceased and that
the minor child resides permanently with him and his
family in
Midrand and that the Court had clearly found that he was in fact the
guardian of the minor child. This viewpoint appears
to have been
endorsed by McCurdie AJ who stated as follows:
‘
The
second respondent (the present applicant) is not a beneficiary in the
estate of the ‘deceased’, nor is he, as matters
stand,
the recognised guardian of the minor child who is the beneficiary of
such estate. In fact, the second respondent does not
appear to have
any legal interest in this matter’.
[30]
Against
this background I return to the remaining grounds of review. The
appointment of executors is dealt with in terms of section
18 of the
Act which provides
inter
alia
as follows:
‘
(1)
The Master shall … -
a)
if
any person has died without having by will nominated any person to be
his executor; or
…
e)
if any person who is the sole executor … cease(s) for any
reason to be executor(s) thereof;
…
appoint
and grant letters of executorship to such person or persons who he
may deem fit and proper to be executor’.
[31]
Section
19 of the Act deals with the situation where there is competition for
the office as executor i.e. if more than one person
is nominated for
recommendation to the Master but that situation did not arise in the
present instance.
[32]
The
Chief Master’s Directive 2 of 2015 deals with the appointment
of executors in deceased estates. The preamble reads,
inter
alia
:
‘
1.1
The primary function of the Master is to regulate the administration
of estates. It is the duty of the Master to ensure that
the legal and
financial interests of those affected in the administration of an
estate are taken care of in a compassionate manner;
1.2
the conduct of a Master must at all times assure the public that the
manner in which estates are administered is –
1.2.1
in compliance with the law; and
1.2.2
that the financial and legal interests of all those who may be
vulnerable will be protected’.
[33]
Para
7.9 deals with nominations and provides
inter
alia
that where the deceased died intestate ‘
the
Master may … consider calling a meeting in terms of section 18
for the purposes of electing an executor’
and further that ‘…
(n)ominations
should only be obtained from major heirs and/or legal guardians of
minor heirs’
.
[34]
Having
regard to the provisions of the Act and the Directive, it is clear
that there was no obstacle, legal or otherwise, to the
Master
appointing Ms Thobejane as executor following the removal of Mr
Pinini. The Master enjoyed a wide power in terms of section
18 of the
Act to grant letters of executorship to any person whom he deemed fit
and proper to be executor. The relevant Directive
required him to
ensure that the ‘
financial
and legal interests’
of
the minor child and sole heir would be protected. Given that Mr
Pinini, the first executor who had been nominated by the applicant
and removed by an order of Court in the circumstances referred to in
paras 6 and 7 above, it would, in my view, have been irrational
for
the Master to have considered a second nomination by the applicant.
By contrast, as the Master has pointed out, he received
a nomination
from Mr K, the
de
facto
guardian of the minor child (and whose family she had been living
with since December 2015), for the appointment of Ms Thobejane,
an
attorney who had acted for the said Mr K.
[35]
The
applicant specifically criticised Ms Thobejane’s appointment on
two grounds; firstly, that Ms Thobejane had acted for
Mr K in the
application which was determined by Mantame J and in other litigation
relating to the deceased estate and, secondly,
inasmuch as at one
point she had used the affidavit of an attorney who had been struck
from the roll.
[36]
I
am aware of no rule of law which disqualifies an attorney from acting
as executor in any estate simply by reason of the fact that
she
presently acts or has previously acted for the person who has
nominated him as executor, either in other matters or in relation
to
the particular estate. Each case must be determined on its merits
taking into account that an executor has a duty to act impartially
in
discharging his or her duty as such. There is nothing in the papers
to suggest that Ms Thobejane would have found herself unable
to so
act.
[37]
As
far as the second objection is concerned it is quite unclear whether,
and in fact unlikely that, the Master knew of the applicant’s
complaints relating to the disbarred attorney. In these papers the
use of the affidavit was explained by Ms Thobejane as an oversight.
This reason not to appoint Ms Thobejane, even if it had been brought
to the knowledge of the Master prior to her appointment, was
not one
which would, without more, have served to disqualify her as an
executor. In any event it remains open to the applicant
to pursue his
complaints against Ms Thobejane in terms of section 54 of the Act.
What he cannot do is attribute knowledge of these
complaints or of
the alleged improper conduct on the part of Ms Thobejane to the
Master prior to the latter making the appointment
and seek a review
of that decision on that ground.
[38]
To
the extent that para 7.9 of the Chief Master’s Directive
provides that nominations should only be obtained from major heirs
and/or legal guardians of minor heirs, I regard this requirement as
satisfied vis-à-vis Mr K. The concept of guardianship
in
relation to a minor child is dealt with by section 18 of the
Children’s Act, 38 of 2005 which provides inter alia that:
‘
1.
Person may either have full or specific parental responsibilities and
rights in respect of a child
…
3.
Subject to subsections 4 and 5, a parent or other person who acts as
a guardian of a child must –
a)
administer and safeguard the child’s property and property
interest’.
[39]
Section
9 of the Children’s Act provides that ‘
in
all matters concerning the care, protection and wellbeing of child
the standard that the child’s best interest is of paramount
importance, must be applied’
.
Section 32 provides for the care of a child by a person not holding
parental responsibilities and rights and would apply to Mr
K prior to
his appointment by a Court as legal guardian. It provides:
‘
1)
A person who has no parental responsibilities and rights in respect
of a child but who voluntarily cares for the child either
indefinitely, temporarily or partially, must, whilst the child is in
that person’s care –
(a)
safeguard the child’s health, wellbeing and development; and
(b)
protect the child from … exploitation, and any other physical,
emotional or mental harms or hazards.
2)
Subject
to section 129, a person referred to in subsection 1 may exercise any
parental responsibilities and rights reasonably necessary
to comply
with subsection 1, including the right to consent to any medical
examination …’
[40]
As
far as the applicant’s rights as a guardian are concerned it
appears they are determined in part by the provisions of section
21
of the Children’s Act which provides that ‘
the
biological father of a child … acquires full parental
responsibilities and rights in respect of the child –
a)
if at the time of the child’s birth he is living with the
mother in a permanent life partnership;
For
the purposes of this application I am prepared to assume that the
applicant, as he claimed, was so living with the deceased
at the time
of the minor child’s birth. However, I agree with Mantame J
that this status alone does not give the applicant
the exclusive
power to nominate an executor to the estate, let alone the right to
have his nomination accepted by the Master. It
would appear
furthermore that Mr K had instituted proceedings in the South Gauteng
High Court in 2017 for legal guardianship of
the minor child. In the
High Court judgment given by Mantame J, the close relationship
between Mr K, his siblings and the fact
that he and his wife have
voluntarily cared for the minor child since 15 December 2015 were
canvassed. In my view there is every
prospect that such application
will be successful.
[41]
Where,
as in this case, the guardianship of the minor heir is questionable
or contested, section 9 of the Children’s Act prevails
and
prioritises the child’s best interests of being of paramount
importance. In this regard Mantame J stated as follows:
‘
[12]
In my view, section 9 is directive. The child’s best
interest is of paramount importance. In this case, the
deceased
herself entrusted them to her family and they continued protecting
the child’s interest until she met her death…
It was
within Mr K’s right to nominate applicant to take care of the
child’s best interests which he still continued
to do to date.
I therefore cannot find fault in these circumstances for the
applicant to act in the representative capacity
of the minor child…’
[42]
Thus
the applicant cannot be heard to suggest that he had an unassailable
right to represent the minor child when it came to the
nomination of
an executor or to insist that a meeting should have been held prior
to the nomination or appointment of Ms Thobejane.
The Master may
convene a meeting of interested parties for the nomination of an
executor at a meeting in terms of section 18(1)
of the Act but he is
not obliged to do so.
[43]
Ms
Thobejane was nominated by seven blood relatives of the deceased who
included the third respondent, Mr K, as well as the deceased’s
father. Ms Thobejane also provided a bond of security to the Master
which was backed by the attorney’s insurance indemnity
fund.
She also completed an acceptance of trust as an executor. The Master
was therefore in possession of all the relevant documents
and Ms
Thobejane satisfied the requirements for appointment as executor to
the estate. There was, therefore, a rational connection
between all
the facts and information available to the Master and his decision to
appoint Ms Thobejane as executor and there is
no substance to the
contention that it was arbitrary, unreasonable or capricious.
[44]
As
far as the applicant’s complaints of procedural unfairness on
the part of the Master are concerned, the specific aspects
he relies
upon are the Master’s failure to inform him, prior to Ms
Thobejane’s nomination, of his intention to appoint
her and his
failure to furnish reasons for his decision to appoint her. As far as
the latter point is concerned no case is made
out by the applicant
that he called for such reasons in vain. To the extent that he
requires such reasons these have been furnished
at length in the
Master’s opposing affidavit.
[45]
As
regards his first complaint, as has been set out, the Master does not
appear to have been under any statutory or regulatory obligation
to
inform the applicant that he had received a nomination from the
deceased’s family members for the appointment of Ms Thobejane
as executor following the removal of Mr Pinini from this position. Be
that as it may, section 3 of PAJA stipulates that administrative
action which materially and adversely affects the rights or
legitimate expectations of any person must be procedurally fair. It
is therefore at least arguable that the applicant should have been
given adequate notice by the Master that he had received a nomination
to appoint Ms Thobejane as executor and affording him a reasonable
opportunity to make representations in this regard.
[46]
However,
section 3(2)(a) of PAJA also provides that a fair administrative
procedure depends on the circumstances of each case. In
the present
matter the applicant had already exercised his right to nominate an
executor, Mr Pinini, who was duly appointed. The
Western Cape High
Court subsequently held that Mr Pinini was unfit to hold the office
of executor and removed him from that position.
The applicant was a
party to those proceedings and had every opportunity to present his
case in relation to the challenge to Mr
Pinini’s appointment.
He had failed to do so. Moreover, the Court found that the applicant
and Mr Pinini had colluded and
that numerous irregularities had been
perpetrated in effecting Mr Pinini’s appointment and in the
manner in which the latter
had performed his duties. In these
circumstances I do not consider that it was incumbent on the Master
to have notified the applicant
of the nomination of Ms Thobejane as
executor or his proposed appointment of the latter. The applicant had
been completely discredited
by the judgment of the High Court as a
legal guardian who would act in the best interests of his minor
child. Furthermore, it emerged
in that judgment that the applicant’s
dealings with the minor since the deceased had left Cape Town in
2015, as well as his
contribution to the child’s well-being and
maintenance, had been minimal. In the circumstances this ground of
review cannot
be sustained.
[47]
For
these reasons it follows that the application must be dismissed with
costs. On behalf of Ms Thobejane and Mr K costs on the
attorney and
client scale were sought. The applicant launched this application in
the face of damning findings contained in the
judgment of Mantame J,
none of which were ever overturned on appeal. Furthermore, much of
the relief the applicant initially sought
was eventually abandoned by
him, although only after several postponements at his instance. In
bringing the application it is possible,
though unlikely, that the
applicant may have believed that as the minor child’s legal
guardian he was entitled to be heard
before the Master appointed Ms
Thobejane as executor notwithstanding Mantame J’s findings. He
may also have believed that
Ms Thobejane was not a suitable
appointment and was not solely motivated by self-interests. However,
he has failed to make out
a case in either of these regards. In my
view the application was singularly ill founded and amounted to
vexatious proceedings
notwithstanding the possibility that this may
not have been the applicant’s intent. See in this regard
In
re Alluvial Creek Ltd
1929
CPD 532.
To the extent that there may be a shortfall between the
costs incurred by Ms Thobejane and perhaps Mr K as well in opposing
the
application, they will fall to be met by the deceased’s
estate in which the minor child is the sole heir. I see no reason,
however, why the deceased estate should be depleted by the costs
attendant upon opposing this application.
[48]
The
Master did not seek a special costs order and several of the factors
weighing in favour of such an award to Ms Thobejane and
Mr K, do not
apply to the Master. I will therefore make no such award in his
favour.
[49]
In
the result the following order is made:
1.
The
application is dismissed;
2.
The
applicant is ordered to pay the costs of the first to third
respondents such costs to include those of all the postponements
preceding the final hearing of the application;
3.
In
the case of the second and third respondents only, such costs will be
on the attorney and client scale.
____________________
BOZALEK
J
___________________
SIEVERS
AJ
For
the Appellant: Adv N Kunju
As
Instructed: Gwaza Attorneys
For
the 1st Respondent: Adv ML Davis
As
Instructed: State Attorney
For
2 – 3 Respondents: Adv T Pharoah
As
instructed by: Thobejane Attorneys
[1]
Da
Silva and others v Da Silva NO and Others
(2498/2007
and 4247/2007)
[2007] ZAWCHC 82
para 11.
[2]
2017 (2) SA 63 (SCA).
[3]
2014 (5) SA 69
(CC).