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[2020] ZAWCHC 6
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Mlunguza and Another v Master of the High Court and Another (21755/2018) [2020] ZAWCHC 6 (11 February 2020)
THE
HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION)
JUDGMENT
Case
No: 21755/2018
In
the matter between
SIYAKUDUMISA
MLUNGUZA
FIRST
APPLICANT
ANDILE
BOOI
SECOND
APPLICANT
and
MASTER
OF THE HIGH COURT
FIRST
RESPONDENT
NADIA
MOUTON
SECOND
RESPONDENT
Coram:
Rogers J
Heard
:
4 February 2020
Delivered:
11 February 2020
JUDGMENT
Rogers
J
[1]
The first applicant, Mr
Siyakudumisa
Mlunguza, who was and claims
still to be an admitted attorney, seeks the reviewing and setting
aside of a decision, taken on 21
August 2018 by an Assistant Master
in the office of the first respondent, the Master of the Western Cape
High Court, to remove
him as an executor in the estate of the late Mr
Viriato
Carlos Sauane and
to appoint the second respondent, Ms Nadia Mouton, in his stead. He
asks that he be reinstated as executor, alternatively
that the second
applicant, Mr Andile Booi, be appointed as executor.
[2]
Mr Mlunguza was admitted
as an attorney in 2007 and was enrolled in February 2009 to practise
as an attorney in this division. He
says that the late Mr Sauane
instructed him in 2014 to pursue a claim against the Road Accident
Fund (‘RAF’).
[3]
In October 2016, and while
the said case against the RAF was ongoing, the Cape Law Society
(‘CLS’) launched an application
to have Mr Mlunguza
struck from the roll. In late May 2018 this court made an order
interdicting him from operating on his trust
account and ordering him
to surrender his certificate of enrolment to the registrar. (Although
the order was, I think, granted
on 25 May 2018, it is date-stamped 31
May 2018. In subsequent documentation the order is said to have been
made on the latter date,
and I shall follow suit.) The interdict was
discharged on 15 August 2018, seemingly because there was no
appearance for the CLS.
At that time the application for Mr
Mlunguza’s striking-off was pending.
[4]
In the meanwhile, Mr
Sauane’s case against the RAF was progressing. Mr Mlunguza says
that the RAF made an offer in September
2017 which he rejected on Mr
Sauane’s instructions. Mr Mlunguza then briefed a member of the
Cape Bar, Mr John Abel, to assist
with an application to obtain an
interim payment and to achieve a better settlement.
[5]
Also in September 2017, Mr
Mlunguza drafted a will for Mr Sauane which he says was in accordance
with his client’s instructions.
Mr Sauane purportedly signed
the will on 14 September 2017. Mr Mlunguza was one of the witnesses.
In clause 1.4 Mr Sauane nominated
Mr Mlunguza, and in his absence Mr
Booi, as his executor. Mr Sauane’s son and parents were
respectively to receive 80% and
20% of the estate, but clause 1.4.3
recorded that the executor would be entitled to receive 25% of the
gross proceeds of the assets
in the estate as remuneration. It
appears that the sole asset in the estate is likely to be Mr Sauane’s
claim against the
RAF. The will did not state that the executor’s
remuneration of 25% would be in lieu of any fees Mr Mlunguza could
charge
in the litigation against the RAF.
[6]
Mr Sauane, who was a
Mozambican national, died in that country in January 2018. The
quantum trial of his claim against the RAF was
scheduled to start on
18 June 2018. Mr Abel was still on brief. On 12 June 2018 Mr Mlunguza
told Mr Abel that the client had died
in January. Mr Mlunguza says
that he himself had only learnt this a few days earlier. According to
Mr Abel, Mr Mlunguza did not
want him to convey this information to
the RAF’s counsel, but he (Mr Abel) regarded it as his duty to
do so, which he did
the next day. Presumably the trial was then
postponed.
[7]
On 24 July 2018 Mr
Mlunguza applied for letters of executorship as Mr Sauane’s
testamentary executor. He did not disclose
the existence of the
interdict or the pending striking-off application or the fact that he
had witnessed the will. The will was
accepted by the Master’s
office, and on 27 July 2018 letters of executorship were issued to Mr
Mlunguza.
[8]
Although there is some
dispute between Mr Mlunguza and Mr Abel on this score, it seems that
a meeting with the deceased’s
father was scheduled for 2 August
2018 in order to plot the way ahead. On that very day, and before the
father’s arrival
at Mr Abel’s chambers, Mr Mlunguza
withdrew the latter’s brief and declined to attend the meeting.
Mr Mlunguza has
taken umbrage at the fact that Mr Abel nevertheless
met with the father, who had specially travelled from Mozambique for
the purpose.
Mr Abel was aware that the RAF had made an interim
payment, yet according to the father the deceased and his family had
not received
a cent.
[9]
Mr Abel referred the
father to A Batchelor & Associates (‘ABA’), a firm of
attorneys specialising in RAF litigation.
On 6 August 2018 Mr Abel
lodged a complaint against Mr Mlunguza with the CLS. In the
meanwhile, ABA recommended to the deceased’s
father that he
approach the second respondent, Ms Mouton, who is a practising
attorney, for assistance in the estate. Ms Mouton
in turn approached
the Master’s office, drawing to its attention the interdict of
31 May 2018 and furnishing to it a copy
of Mr Abel’s complaint.
[10]
On 21 August 2018 an
Assistant Master, Ms Lamberty, wrote to Mr Mlunguza as follows:
‘
1. I refer to
the Order of Court dated 31 May 2018 (case no: 19868/2016).
2. You are hereby
removed from office as executor in terms of Section 54(1)(
b
)(iv)
of the Administration of Estates Act of 1965 (as amended).
3. In terms of
Section 54(5) you must forthwith return your Letters of Executorship
to me.
4. In terms of
section 51(1)(
b
) the Master assess [
sic
] and tax the
remuneration to which any executor/executrix may be entitled to. Your
remuneration will be taxed on receipt of a fully
motivated account
for duties discharged in your capacity as executor/executrix and
after appointment of a new executor/executrix.’
[11]
Ms Lamberty was unaware,
when she wrote this letter, that the interdict had been discharged a
few days earlier. The letter does
not provide reasons for the
removal, though it may be inferred, from her reference to the order
of 31 May 2018, that it was the
existence of that order which moved
her to remove Mr Mlunguza.
[12]
In her opposing affidavit
on behalf of the first respondent, Ms Lamberty states that the
ongoing proceedings between the CLS and
Mr Mlunguza, and the serious
allegations of misconduct and misappropriation against him, were of
concern to the Master’s
office, particularly since the primary
beneficiary in the estate is a minor child. She considered that the
interests of the heirs
in the estate would be compromised if Mr
Mlunguza continued to act as executor. She had also noted that Mr
Mlunguza was nominated
in the will in his capacity as a practising
attorney. She also gave consideration to the fact that the proceeds
of the claim against
the RAF would have to be paid into a trust
account, whereas the order of 31 May 2018 prohibited Mr Mlunguza from
operating such
an account.
[13]
The deceased’s
father signed a form nominating Ms Mouton as an executor dative, and
letters of executorship were issued to
her on 23 October 2018.
[14]
Mr Mlunguza has stated
that he learnt of Ms Lamberty’s letter on 30 October 2018 when
he inspected the estate file at the
Master’s office. In a
letter of 2 November 2018 he challenged his removal and Ms Mouton’s
appointment. He told Ms Lamberty
that he was not interdicted from
practising as an attorney. Ms Lamberty in reply said that the Master
was
functus officio
.
[15]
After further fruitless
correspondence, Mr Mlunguza on 26 November 2018 launched the present
application, initially as one of urgency.
In support of urgency, Mr
Mlunguza made the remarkable allegation that he had invested a lot of
money in the deceased’s claim
against the RAF ‘and now I
want my investment to pay’. Various service providers in
relation to the claim had issued
summons against him. It was
Christmas time, and he needed to buy clothes for his family. He also
needed money to buy books and
pay school fees for his children.
[16]
His founding affidavit did
not disclose that the striking-off application had been argued on 12
October 2018 and that judgment was
awaited. Such judgment (per Allie
and Sher JJ) was handed down on 29 November 2018. Mr Mlunguza was
struck from the roll and ordered
to pay costs on the attorney and
client scale. The judgment contained a damning indictment of his
conduct in nine RAF matters in
which he had been guilty of gross
overreaching and, in one instance, of theft. He failed to take any
responsibility for his actions.
He had demonstrated a serious lack of
responsibility, ethics, integrity and maturity. Paras 24 and 25 of
the judgment included
the following passages:
‘
He failed to
admit that he had behaved unethically and unscrupulously even in the
face of overwhelming evidence. On every occasion
he was confronted he
sought to legitimise his rapacious plundering of the awards which
were made in favour of his clients, many
of whom were poor and
vulnerable people who trusted him and who needed the monies he had
received on their behalf in order to sustain
themselves. He prepared
contrived bills of costs which were aimed at making up the balance
between what he received and what he
paid his clients. He had
absolutely no qualms abusing his clients and in doing so one can only
conclude that he was motivated solely
by greed and his own interests
and not by the honourable duty of rendering a professional service to
them. By effectively plundering
Road Accident Fund monies he was the
archetypical self-serving lawyer who has so often been blamed for the
demise of the current
RAF system…
[W]e are satisfied
that his misconduct is egregious and is not attributable to a moral
lapse but is in fact indicative of a serious
character flaw, and he
is incorrigible. In our view the public needs to be protected against
a practitioner like him. He has effectively
misappropriated monies
from the poorest and most vulnerable members of society, without
shame.’
[17]
Mr Mlunguza applied for
leave to appeal this judgment, which this court dismissed on 31
January 2019. During March 2019 he tried
to lodge an application for
leave to appeal with the registrar of the Supreme Court of Appeal
(‘SCA’), which the registrar
refused to receive.
According to the Legal Practice Council, which has succeeded the CLS,
proper applications for condonation and
leave to appeal were
eventually lodged with the SCA on 24 October 2019. The outcome of
those applications is unknown. Although
Mr Mlunguza told me that
condonation was granted, no proof of that fact was furnished. I think
he made the statement on the grounds
that the registrar had agreed to
accept his applications.
[18]
But to return to the
review application, which both respondents opposed, Mr Mlunguza
notified the parties on 19 December 2018 that
he was setting it down
for hearing on 28 December. On 24 December the first respondent
furnished the rule 53 record. On 27 December
Mr Mlunguza emailed the
first respondent’s counsel to say that he had removed the
matter from the roll and would set it down
for an early date in
January. Both respondents had briefed counsel to be in court on 28
December.
[19]
On 30 January 2019 Mr
Mlunguza delivered an amended notice of motion and supplementary
founding affidavit. The amended notice of
motion asked for a series
of contradictory costs orders: that both respondents be ordered to
pay the costs on an attorney and client
scale; that the second
respondent be ordered to pay costs in her personal capacity, not from
the deceased estate; and that the
respondents’ attorneys be
ordered to pay costs
de
bonis propriis
on an
attorney and client scale.
[20]
The application was not
pursued as an urgent one. Answering and replying papers were filed,
and in September 2019 a notice of set
down for 4 February 2020
issued. In terms of this court’s practice directives, the
applicants’ heads of argument should
have been delivered by 21
January 2020. They were in fact delivered on 27 January together with
a wholly inadequate index. The
respondents’ attorneys requested
an audience with the Judge-President to ascertain whether in the
circumstances a judge would
be allocated. This meeting, of which Mr
Mlunguza was notified but which he did not attend, took place on the
morning of 29 January.
The Judge-President said that he would
allocate a judge, and allowed the respondents’ legal
representatives to uplift the
file in order to prepare a proper
index. The first respondent’s heads were delivered on 31
January. The second respondent’s
heads are dated 31 January,
but Mr Mlunguza said he only received them on 3 February.
Postponement
[21]
At the outset of the
hearing Mr Mlunguza, who appeared for himself and purportedly for Mr
Booi, asked for a postponement. Although
there was no written
application supported by affidavit, I allowed him to explain why he
needed a postponement. In summary his
reasons were the following:
(a) It was the applicants’
responsibility to prepare the index, which was done. ABA (the second
respondent’s attorneys)
were not satisfied with the index, but
only supplied its version of the index together with the second
respondent’s heads
by email on 3 February. He visited ABA’s
offices to request a hardcopy, which was refused. He needed time to
organise his
papers in accordance with the new index and to study the
heads, including the list of authorities.
(b) He was in contact with the
child’s mother, who wanted to attend the hearing and give an
affidavit regarding Ms Mouton’s
appointment.
(c) He wanted to appoint counsel
but did not have financial means. There were several advocates
willing to act for him without charge,
but they were not available to
appear on 4 February.
[22]
The respondents’
counsel addressed me in opposition to the request of the
postponement, and there was a brief reply. At the
conclusion of the
submissions, I refused the postponement. My reasons were the
following. I had read the heads of argument, from
which it appeared
to me that the case was likely to turn on legal issues rather than a
detailed assessment of the facts. I indicated
that if it appeared, as
argument progressed, that I or counsel were being seriously
inconvenienced by any confusion over pagination,
I might reconsider
my refusal of the postponement. In the event there was no such
confusion.
[23]
As to the position of the
mother of the deceased’s child, the application was issued more
than 18 months ago. Mr Mlunguza
had sufficient time to put before me
any relevant evidence which the mother might have.
[24]
As to his desire to brief
counsel, there is no indication as to when he first approached
counsel to find out whether they would
act for him
pro
amico
. If he had done
this in good time (shortly after receiving the notice of set down in
September 2019), he would not have been placed
in the position he
found himself.
[25]
As to his need to study
the second respondent’s heads of argument, he had only himself
to blame for the fact that he received
such heads late. If he had
filed his own heads on time, and produced a proper index, the problem
would not have arisen.
[26]
Finally, and as the
respondents’ counsel pointed out, an order for wasted costs
against Mr Mlunguza would be futile, since
on his own version he is
impecunious. If a postponement were granted, the public (in the case
of the first respondent) and the
estate (in the case of the second
respondent) would be financially prejudiced by wasted costs.
Validity
of Mr Mlunguza’s removal as executor
The
substantive aspect
[27]
There is a substantive and
a procedural aspect to the validity of Ms Lamberty’s decision
to remove Mr Mlunguza as executor.
As to the substantive aspect,
s 54(1)(
b
)(iv)
of the Administration of Estates Act 66 of 1965 (‘the Act’)
empowers the Master to remove an executor ‘if
at the time of
his appointment he was incapacitated, or if he becomes incapacitated
to act as executor of the estate of the deceased’.
[28]
The Master’s counsel
submitted that in terms of s 18(1) the Master must, in the event
of the absence of or failure in
the appointment of testamentary
executors, appoint (ie as an executor dative) a person whom he or she
deems to be ‘fit and
proper’. If a person is not ‘fit
and proper’ to hold the office of executor, such person is
‘incapacitated’
within the meaning of s 54(1)(
b
)(iv).
Mr Mlunguza was not a ‘fit and proper’ person, and
therefore Ms Lamberty was entitled to remove him.
[29]
This argument must be
rejected for two reasons. First, although in a general sense one
would only want a fit and proper person to
hold the office of
executor, the requirement in s 18(1) that an executor dative be
‘fit and proper’ does not,
I consider, go to capacity for
purposes of s 54(1)(
b
)(iv).
The Master’s opinion as to whether a person is fit and proper
is a relative moral judgment which is too subjective
to serve as a
basis for incapacity. It will be seen from s 18(1) that one of
the circumstances in which a testamentary executorship
may fail is
where the testamentary executor is ‘incapacitated’. If
the lawmaker considered that the ‘fit and
proper’
requirement went to capacity, it would have sufficed to say that the
Master should appoint a person who is not ‘incapacitated’.
The contrast in wording suggests that the concepts are not
coextensive.
[30]
In any event, we are not
here dealing with an executor dative but with an executor
testamentary. Section 14(1) sets out the limited
circumstances in
which the Master may refuse to issue letters of executorship to an
executor testamentary. The only requirement
is that such person not
be ‘incapacitated from being an executor of the estate of the
deceased’ and that he or she
should have complied with the
provisions of the Act. This should be read with s 13(2), which
states that no letters of executorship
shall be granted to any person
‘who is by any law prohibited from liquidating or distributing
the estate of any deceased
person’. Legislative prohibitions
are to be found in the regulations (as amended) originally
promulgated in terms of the
Attorneys, Notaries and Conveyancers
Admission Act 23 of 1934.
[1]
[31]
In terms of s 22(2)(
b
)
the Master may refuse to issue letters of executorship to an executor
testamentary if such person, if he or she were appointed,
could be
removed from office on various of the grounds specified in s 54(1).
Section 54(1)(
a
)(v),
which empowers a court to remove an executor if satisfied that it is
undesirable for such person to act as such, is not one
of the
specified grounds. In other words, the Master is not empowered to
withhold letters of executorship to an executor testamentary
whose
appointment the Master regards as undesirable.
[32]
In
Thomas
& another v Clover NO & others
2002 (3) SA 85
(N) Southwood AJ held that the effect of these
statutory provisions was that the Master could not withhold letters
of executorship
from somebody who was alleged not to be a fit and
proper person to hold office (and see also the decision in
Hoofar
Investments (Pty) Ltd v Loonat & another
1991
(2) SA 222
(N)). In other words, the fact that a nominated executor
testamentary is thought not to be a fit and proper person to hold
office
is not in itself a circumstance which renders such person
incapacitated within the meaning of s 14(1).
[33]
If the lawmaker had
intended to give the Master the power to make a value judgment as to
whether an executor testamentary
is a ‘fit and proper’
person, this would surely have been expressly stated. This view of
the matter is fortified by
the division of removal powers between the
court and the Master in s 54(1). The grounds on which a court
may remove an executor
are set out in para (
a
)
of the subsection. The grounds listed in sub-paras (ii), (iii) and
(iv) are concerned with misconduct of various kinds, while
sub-para
(v) empowers the court to remove an executor ‘if for any other
reason the Court is satisfied that it is undesirable
that he should
act as executor of the estate concerned’. This would obviously
include a complaint that the executor is not
a fit and proper person.
[34]
By contrast, and leaving
aside administrative non-compliance (in respect of which matters the
Master has oversight), the only ground
of misconduct for which the
Master may remove an executor under para (
b
)
is where the executor has been convicted of certain offences
(sub-para (iii)). And in such cases, it is a determination of
wrongdoing
by a court which triggers the Master’s power; the
Master himself or herself does not have the power to investigate and
determine
whether the executor has committed one of the specified
offences.
[35]
The second reason why the
first respondent’s reliance on s 54(1)(
b
)(iv)
must fail is this. Even if the Master has the power under that
provision to remove an executor because such person is not
in the
Master’s opinion ‘fit and proper’, it would not
suffice that there were complaints which, if true, would
render the
executor not fit and proper. The Master would need to determine
whether the allegations of misconduct are true. Ms Lamberty
did not
investigate the facts before removing Mr Mlunguza. She regarded the
mere existence of serious complaints as sufficient.
[36]
Ms Lamberty says that she
took into account, when removing Mr Mlunguza, that he was nominated
in the will as ‘
Siyakudumisa
Mlunguza of Mlunguza &
Associates’. Even if this were interpreted to mean that the
testator only intended Mr Mlunguza
to be qualified to act as executor
for as long as he was an attorney, the fact is that Mr Mlunguza had
not been struck off as an
attorney at the time the Master removed
him. But in any event, I do not think that the will can be
interpreted as laying down the
suggested qualification. The reference
to the firm is merely a way of identifying the nominated person.
[37]
Ms Lamberty says, further,
that she took into account that an award from the RAF would have to
be paid into an attorney’s
trust account, which Mr Mlunguza was
interdicted from operating. In the event, albeit unknown to Ms
Lamberty, the interdict had
been discharged by the time she removed
him. In any event, a judicial interdict against Mr Mlunguza from
operating his trust account
as an attorney would not have
incapacitated him from functioning as an executor. He could have
appointed a firm of attorneys to
finalise the litigation and to
receive the award. The said attorneys could then have transferred the
net amount to an estate account
opened by Mr Mlunguza in terms of
s 28 of the Act.
[38]
In my view, the proper
course for Ms Lamberty to have followed, if she thought it unsafe to
leave Mr Mlunguza in office, was to
bring an application to court for
Mr Mlunguza’s removal in terms of s 54(1)(
a
)(v).
[39]
This disposes of the bases
on which Ms Lamberty took her decision. Substantively, her decision
was based on an erroneous view as
to what incapacity was.
[40]
It turns out that Mr
Mlunguza was undoubtedly incapacitated for another reason. In terms
of
s 4A(3)
of the
Wills Act 7 of 1953
, the nomination in a will
of a person as an executor is, save in one instance not here
applicable, regarded as a benefit to be
received by the nominated
person.
Section 4A(1)
provides that a person who witnesses a will is
disqualified from receiving any benefit under that will. This indeed
goes to Mr
Mlunguza’s capacity to receive the benefit of a
testamentary nomination as executor.
[41]
Mr Mlunguza seemed
surprised, during argument, to hear that this was so. As an attorney
who drafted and oversaw the execution of
Mr Sauane’s will, he
should have been aware of the provisions of the
Wills Act. And
with
such knowledge, he should not have applied to the Master to be
appointed as an executor testamentary. It is clear that the
Master
issued letters of executorship to him in ignorance of the fact that
he witnessed the will.
[42]
A person who is
incapacitated by
s 4A
from claiming appointment as a
testamentary executor is not necessarily incapacitated from being
appointed as an executor dative
(
Meyerowitz
on Administration of Estates and Estate Duty
2007 ed para 8.13). I need not consider whether Mr Mlunguza would be
qualified to be appointed as an executor dative (cf
Meyerowitz
para 8.4) because that
is not the basis on which he applied to be, or was, appointed. I
simply observe that his capacity to be appointed
as an executor
dative would probably turn on his status as an attorney (see the
regulations cited in fn 1).
The
procedural issue
[43]
Section 54(2) of the
Act provides, in peremptory language, that before removing in
executor in terms of,
inter
alia
, s 54(1)(
b
)(iv),
the Master
‘
shall forward
to him by registered post a notice setting forth the reasons for such
removal, and informing him that he may apply
to the Court within
thirty days from the date of such notice for an order restraining the
Master from removing him from his office.’
[44]
Ms Lamberty did not give
Mr Mlunguza such a notice. The first respondent’s counsel
submitted that, in terms of s 3(4)
of the Promotion of
Administrative Justice Act 3 of 2000 (‘PAJA’), it was
reasonable and justifiable for Ms Lamberty
to depart from the
provisions of s 54(2), given the need for urgent action.
[45]
I do not agree that s 3(4)
of PAJA is applicable to
s 54(2)
of the
Administration of
Estates Act. Section
3(4) of PAJA applies to the requirements of
procedural fairness laid down in
s 3
of that Act. Section 54(2)
is a self-contained jurisdictional prerequisite for the removal of an
executor by the Master. Furthermore,
although the 30-day waiting
period specified in that section could be used by an executor to
persuade the Master not to remove
him or her, the primary – and
only express – purpose of the section is to give the executor
an opportunity to apply
to court to restrain the Master before the
actual removal decision is taken. The section is not, in terms, one
which obliges the
Master to give the executor hearing.
[46]
In any event, I do not
agree that a departure from the notice requirement was reasonable and
justifiable. As I have said, Ms Lamberty’s
remedy, if urgent
action was needed, was to bring an urgent application to the court to
have Mr Mlunguza removed in terms of s 54(1)(
a
)(v).
In such proceedings, Mr Mlunguza would have had an opportunity to be
heard before an order was made removing him as an executor.
Conclusion
on validity of Mr Mlunguza’s removal
[47]
Although substantively Mr
Mlunguza was incapacitated from serving as an executor testamentary
by virtue of his having witnessed
the will, this was not the basis on
which Ms Lamberty removed him. Her actual reason or reasons were
vitiated by errors of law,
and the removal was for that reason
invalid. Her decision was in any event invalid for failure to follow
the mandatory procedure
specified in s 54(2).
Remedy
flowing from invalidity of Mr Mlunguza’s removal
[48]
Before I consider the
attack on Ms Mouton’s appointment, it is convenient to consider
whether, in consequence of the invalidity
of Ms Lamberty’s
decision to remove Mr Mlunguza, the latter should in effect be
reinstated as the executor. Section 172(1)(
a
)
of the Constitution provides that when deciding a constitutional
matter within its power, a court must declare any conduct that
is
inconsistent with the Constitution invalid to the extent of its
inconsistency. Section 172(1)(
b
)
provides that the court may then make ‘any order that is just
and equitable’, including certain types of orders specified.
This remedial jurisdiction is echoed in s 8(1) of PAJA, which
empowers a review court to grant ‘any order that is just
and
equitable’, including certain specified orders.
[49]
Since Ms Lamberty, a
public official, acted beyond her powers, her conduct is inconsistent
with the Constitution and must be declared
invalid. It does not
follow that her decision to remove Mr Mlunguza must actually be set
aside, with the result that he continues
to occupy the position of
executor. A court may declare an official’s conduct invalid but
nevertheless allow it to stand
de
facto
. It all depends
on what order would be ‘just and equitable’. (See
Bengwenyama
Minerals (Pty) Ltd & others v Genorah Resources (Pty) Ltd &
others
2011 (4)
SA 113
(CC) paras 81-85.)
[50]
It would not be just and
equitable to set aside Mr Mlunguza’s removal and so allow him
to resume his position as executor.
First, it is beyond question that
he is incapacitated from serving as a testamentary executor to the
estate of the late Mr Sauane.
If he were reinstated, the Master would
not only be entitled but under a duty to remove him in terms of
s 54(1)(
b
)(iv).
This would not be a matter of judgment or discretion; the prohibition
upon Mr Mlunguza acting as a testamentary executor
is absolute. His
reinstatement would thus be an exercise in futility.
[51]
Second, damning findings
have been made against him by two judges of this division. Mr
Mlunguza says that the judgment in question
has been suspended by
virtue of the application for leave to appeal lodged with the SCA. I
am by no means satisfied that this is
so. In terms of
s 18(5)
of
the
Superior Courts Act 10 of 2013
, a decision becomes the subject of
an application for leave to appeal (with the resultant suspension of
the challenged judgment)
‘as soon as an application for leave
to appeal . . . is lodged with the registrar
in
terms of the rules
’
(my underlining).
Rule 6(1)
of the SCA’s rules provides that
where leave to appeal is by law required from the SCA, an application
for such leave shall
be lodged with the registrar ‘within the
time limits prescribed by that law’.
Section 17(2)(
b
)
of the
Superior Courts Act applied
here, and specified a period of
one month after this court’s refusal of leave. The SCA may
condone a late application (see
rules 11
and
12
of its rules), but it
may well be that until such condonation is granted the application
for leave to appeal cannot be regarded
as one lodged with the
registrar in terms of the SCA’s rules.
[52]
However, and even if this
court’s striking-off order has been suspended, so that Mr
Mlunguza is still an admitted attorney,
I cannot close my eyes to the
grave findings which have been made against him and which have not
yet been found by another court
to be unjustified. Those findings
make it quite impossible to consider allowing Mr Mlunguza to occupy
the position of an executor
in the deceased’s estate.
[53]
Mr Mlunguza’s
conduct in the present application only makes his position worse. He
has not only shown himself to be ignorant
about the provisions of the
Wills Act, but
has demonstrated a complete lack of insight into the
duties of an executor. He seems to regard that office as the means by
which
he can ensure payment of large sums of money to himself,
whether as an executor or through his control of any award paid by
the
RAF to the estate or both.
[54]
If in due course Mr
Mlunguza is cleared by an appellate court of wrongdoing, and if he
were able to overcome the seemingly insurmountable
obstacle to his
capacity to benefit as a testamentary executor, he could approach the
Master in terms of
s 54(3)
to be appointed (or reappointed) as
executor.
[55]
For these reasons, I
decline to set aside Ms Lamberty’s decision to remove Mr
Mlunguza as the executor.
The
validity of Ms Mouton’s appointment
[56]
Ms Lamberty appointed Ms
Mouton as executor more than two months after removing Mr Mlunguza.
There was not, in effect, a single
decision to remove Mr Mlunguza and
appoint Ms Mouton. The two decisions are obviously linked, in the
sense that if Ms Lamberty
had not removed Mr Mlunguza she would not
have appointed Ms Mouton. However, I do not think that the validity
of her decision to
appoint Ms Mouton depends on the validity of her
decision to remove Mr Mlunguza.
[57]
In terms of
s 18(1)(
e
)
of the
Administration of Estates Act, one
of the circumstances in
which the Master can grant letters of executorship to an executor
dative is if a sole executor ceases for
any reason to be the
executor. That would be the case if, for example, the Master removed
a testamentary executor. A removal decision
stands until set aside.
At the time Ms Lamberty appointed Ms Mouton, the removal of Mr
Mlunguza had not been set aside, and in
terms of my judgment the
removal will not be set aside. It thus seems to me that the
jurisdictional prerequisite for appointing
Ms Mouton, namely the
absence of an executor, was satisfied. (See
Seale
v Van Rooyen NO & others; Provincial Government, North West
Province v Van Rooyen NO & others
2008
(4) SA 43
(SCA) paras 13-14, referring
inter
alia
to para 31 of
Oudekraal Estates (Pty)
Ltd v City of Cape Town & others
2004
(6) SA 222
(SCA);
MEC
for Health, Eastern Cape v Kirland
Investments
(Pty) Ltd
t/a
Eye
&
Lazer
Institute
[2014]
ZACC 6
;
2014
(3) SA 481
(CC), majority judgment paras 100-105 and fn 74.)
[58]
There is no other
legitimate objection to Ms Mouton as an executor. I thus do not find
any basis for declaring her appointment invalid.
However, the debate
about the validity of her appointment is perhaps sterile. Even if her
appointment were invalid, it would not
be just and equitable to set
aside her appointment unless it were just and equitable (which it is
not) to reinstate Mr Mlunguza.
Mr
Booi’s position
[59]
Mr Mlunguza submitted that
if he is not reinstated, Mr Booi, as the alternative testamentary
executor, should be appointed. The
respondents question whether Mr
Booi is properly before court. His ‘affidavit’ in the
papers initially served on 5
December 2018 was unsigned. Only at a
later stage was an affidavit, purporting to have been signed by Mr
Booi on 26 November 2018,
produced.
[60]
On 27 November 2018 the
Master’s office received an undated letter purporting to be
from Mr Booi, stating that he was available
to be appointed as the
executor and asking the Master to remove Ms Mouton and arrange a date
and time that he and the Master could
meet so that he could sign the
necessary documentation. This letter was not, however, signed by Mr
Booi personally. It was signed
‘pp’ by an unknown person.
It was delivered on the same date as a letter from Mr Mlunguza, and
the style and font strongly
suggest that the two letters were
produced by the same author and typed on the same machine.
[61]
Mr Booi was not present in
court. I am not satisfied that Mr Mlunguza was authorised to speak
for him. I do not know whether Mr
Booi is aware that Mr Mlunguza has
been struck from the roll of attorneys. There is nothing to show the
connection between the
deceased and Mr Booi. I regret to say, based
on this court’s judgment in the striking-off application and on
Mr Mlunguza’s
conduct in the present case, that I cannot take
what Mr Mlunguza says at face value.
[62]
Ms Lamberty has alleged
that despite a search of Mr Booi’s particulars on the CLS’s
database, the Master has not been
able to find a physical address,
only a cellular number. She remarks on the fact that the letter of 27
November 2018 did not purport
to have been signed by Mr Booi
personally, and goes on to say that her office has not had any
communication from him despite its
efforts to engage him regarding
his nomination as executor testamentary.
[63]
Mr Mlunguza in his
replying affidavit defended the signing of the letter ‘pp’,
alleging that it was written on Mr Booi’s
instructions. Mr
Mlunguza claims that Mr Booi has not received any feedback from the
Master’s office. Notably lacking from
Mr Mlunguza’s
replying papers is an affidavit from Mr Booi himself to confirm what
Mr Mlunguza says or to confirm that he
wishes to take up the
appointment.
[64]
I have already alluded to
the provisions of
s 54(3).
If Mr Booi wishes to pursue the
removal of Ms Mouton as executor, he will be at liberty to approach
the Master in terms of that
section. The Master could not have been
expected to act on the suspicious letter of 27 November 2018. If Mr
Booi regards the will
as valid and wants to take up the appointment,
he can make the written application to the Master contemplated in
s 14(1).
Costs
[65]
This leaves the question
of costs. Mr Mlunguza’s challenge to the lawfulness of his
removal and the lawfulness of Ms Mouton’s
appointment raised
constitutional issues. I must be guided by the principles laid down
in
Biowatch Trust v
Registrar Genetic Resources & others
[2009]
ZACC 14
;
2009 (6) SA 232
(CC). In general, a private party who
succeeds in constitutional litigation against the State should be
awarded his costs. If he
fails, he should not be penalised in costs.
This general approach applies not only between the private applicant
and the State
respondent but also as between the private applicant
and any private respondents who have an interest in upholding the
challenged
act.
[66]
The general principle is
not unqualified. In para 24 of
Biowatch
Sachs J said the
following:
‘
If an
application is frivolous or vexatious, or in any other way manifestly
inappropriate, the applicant should not expect that
the worthiness of
its cause will immunise it against an adverse costs order.
Nevertheless, for the reasons given above, courts
should not lightly
turn their backs on the general approach . . .’
[67]
The Constitutional Court
has in several cases upheld costs orders against private applicants,
even costs orders granted on a punitive
scale. Examples include
Limpopo
Legal Solutions and Another v Eskom Holdings Soc Limited
[2017] ZACC
34
;
2017 (12) BCLR 1497
(CC) and
S
S v V V S
[2018]
ZACC 5
;
2018 (6) BCLR 671
(CC). In the former case a unanimous court
said this (paras 33 and 41):
‘Here, the first applicant’s conduct in launching and
pursuing the litigation was vexatious, frivolous, and manifestly
inappropriate. The litigation was initiated without good
cause. It served no serious purpose or value. And it
was
entirely unreasonable. All this fell without grip through the
Biowatch
safety net. The High Court was therefore
justified in awarding a costs order against the applicants.
. . .
Although
Biowatch
changed the costs landscape for constitutional litigants, it gives no
free pass to cost-free, ill-considered, irresponsible constitutional
litigation. An applicant seeking to vindicate constitutional
rights must respect court processes. . .’
[68]
Mr Mlunguza has succeeded
in getting a declaration that his removal was invalid, but for the
rest his application has failed. He
has failed to achieve what he
really wanted and what the respondents really resisted. If the
declaration of invalidity were an
important vindication of Mr
Mlunguza’s constitutional rights, I might have considered
granting a costs order in his favour
against the first respondent.
However, I am only making the declaration because
s 172(1)(
a
)
compels me to do so. Mr Mlunguza is not a person deserving of the
court’s sympathy, and there are no equities in his favour.
If
he had any insight into the duties of an executor and the obvious
weight which a court would attach to the findings made against
him in
the striking-off judgment, he would not have tried to have himself
reinstated as an executor.
[69]
More to the point is
whether I should make a costs order against him, given that he has
failed to obtain any relief of substance.
In deciding this question,
it is not only such failure but also the way he has conducted the
litigation that I take into account.
Given the findings made in the
striking-off judgment, and given that Mr Mlunguza was absolutely
incapacitated from obtaining appointment
as an executor testamentary
in view of his having witnessed the will, his application could serve
no serious purpose, and was entirely
inappropriate and unreasonable.
If he had confined himself to the question of technical invalidity,
and not asserted a right to
consequential relief, the matter may have
had a different complexion. But then again, Mr Mlunguza would almost
certainly not have
instituted proceedings at all if all he could get
was a declaration of invalidity.
[70]
The unreasonableness of
his conduct does not end there. In his founding papers he clearly
revealed his mercenary aims, his desire
to ‘cash in on his
investment’, and displayed scant regard for the proper duties
of an executor. In an application
which he hoped to have adjudicated
urgently, he failed to disclose that six weeks earlier an application
to have him struck from
the roll had been argued and that judgment
was awaited. He was cavalier about enrolling the application for
hearing on 28 December
2019 and then removing it, with resultant cost
and inconvenience to the respondents.
[71]
He made highly defamatory
statements in his supplementary founding papers and in his replying
affidavits (of which there were three).
In the answering papers Mr
Mlunguza was warned that the second respondent would not tolerate the
making of unfounded accusations,
but this did not deter him. The
egregious material includes allegations of serious misconduct against
Ms Lamberty, Mr Abel, Ms
Mouton and the attorneys of ABA. Mr Abel, Ms
Mouton and ABA are accused of desiring to benefit unfairly from the
deceased’s
estate, of ‘wanting to harvest when they did
not plant’, of being driven by material gain, and of being
intent on under-settling
the deceased’s RAF claim in their
haste to lay their hands on the estate’s money. He accuses Ms
Lamberty of colluding
with the others, and of acting in their
interests rather than those of the estate. He voices a suspicion that
the Master is corrupt
and might be accepting bribes. He claims that
Ms Mouton’s appointment was done fraudulently, and that Ms
Lamberty and Ms
Mouton should be criminally charged. The Master’s
opposition to his application is described as malicious and an abuse
of
process. She is accused of conducting her office’s affairs
as her ‘personal fiefdom’.
[2]
[72]
Understandably, the second
respondent sought to have some of this material struck out. I do not
think that much will be achieved
by adjudicating the striking-out
application. It is enough to record that the allegations lack factual
foundation, and that it
was wholly improper for Mr Mlunguza to have
made them.
[73]
In my opinion, it would
give just recognition to the extent of Mr Mlunguza’s defeat, of
the unmeritorious nature of the substance
of his application, and of
the court’s disapproval of his conduct, if I were to order him
to pay 50% of the first respondent’s
costs and all of the
second respondent’s costs, and to do so on a punitive scale, as
sought by the respondents. In regard
to the wasted costs of 28
December 2018, the second respondent did not seek payment of those
costs on a punitive scale, perhaps
because Mr Mlunguza had not yet
embarked upon his campaign of vilification. Pragmatically, therefore,
I shall order those wasted
costs – in the case of both
respondents – to be paid on the ordinary scale.
[74]
Given my approach to Mr
Booi’s position and my doubts as to whether he is properly
before court, I do not think that I should
make a costs order against
him at this stage. I shall, however, reserve to the respondents the
right, on notice to Mr Booi, to
seek an order making him jointly and
severally liable for some or all of the costs ordered against Mr
Mlunguza.
[75]
I make the following
order:
(a) It is declared that the first
respondent’s decision, notified by way of a letter dated 21
August 2018, to remove the first
applicant as executor in the estate
of the late Mr
Viriato
Carlos Sauane (‘the
removal decision’), was inconsistent with the Constitution and
invalid.
(b) The prayers in which the
applicants ask to have the removal decision set aside and to have the
first applicant reinstated as
executor, and in the alternative to
have the second applicant appointed as executor, are refused.
(c) The prayers in which the
applicants ask to have the appointment of the second respondent as
executor declared invalid, and to
have it set aside, are refused.
(d) The first applicant must pay
the wasted costs of the respondents arising from the enrolment of the
application on 28 December
2018 and the subsequent removal of the
matter from the roll on that date.
(e) As to the remaining costs (ie
other than those contemplated in (d)), the first applicant must pay
50% of the first respondent’s
costs, and 100% of the second
respondent’s costs, in both instances the costs to be taxed on
the scale as between attorney
and client.
(f) There is reserved to the
respondents the right, on reasonable notice to the second applicant,
to approach the court for an order
that he be directed to pay some or
all of the above costs jointly and severally with the first
applicant, and they are granted
leave to supplement their papers
insofar as needs to be in that respect.
______________________
O L
Rogers
Judge
of the High Court
Western
Cape Division
APPEARANCES
For
applicants
The
first applicant in person
For
first respondent
M
L Davis
Instructed
by
State
Attorney
4
th
Floor, 22 Long Street
Cape
Town
For
second respondent
N
J Louw
Instructed
by
A
Batchelor & Associates
4
th
Floor, 56 Shortmarket Street
Cape
Town
[1]
No R910,
Government Gazette
2080, 22 May 1968 (as amended).
The regulations are reproduced in
Meyerowitz Administration of
Estates and Estate Duty
2007 ed at A-64-66.
[2]
The scandalous allegations I have summarised are to be found in the
following places: paras 5.15, 11.3 and 11.5 of Mr Mlunguza's
supplementary founding affidavit of 30 January 2019; paras 7, 18,
23-25, 33, 36, 39, 47, 52 and 57 of his first replying affidavit
(record 313 ff); paras 12, 18, 22, 23 and 29 of his second replying
affidavit (record 364 ff); and paras 5, 12, 18, 22.2 and
24 of his
third replying affidavit (record 379 ff).