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[2020] ZAWCHC 34
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Mlunguza and Another v Master of the High Court and Another (21755/2018) [2020] ZAWCHC 34 (12 May 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
:
8 May 2020
Delivered:
12 May 2020
This
judgment was handed down electronically at approximately 10h00 on
Tuesday, 12 May 2020, by circulation to the parties’
legal representatives by email. On the same morning it was released
to SAFLII.
JUDGMENT
Rogers
J
[1]
This is an application for leave to appeal against my judgment of 11
February 2020. The delay in hearing this application is
attributable
to the Covid-19 lockdown. I shall use the same abbreviations as in
the main judgment.
[2]
Although the application is brought in the names of Mr Mlunguza and
Mr Booi, reasonable doubt persists as to whether this application
is
brought with Mr Booi’s knowledge and authority. In addition to
paras 59-63 of the main judgment, there are the following
further
circumstances relevant to this question. Although the application for
leave to appeal purports to have been filed by a
firm of attorneys,
Venfolo Attorneys, the application is signed by Mr Mlunguza. I asked
Mr Mlunguza whether he was an attorney
at this firm. He said he was
not. He claimed, however, that a Mr
Linjini
at that firm was aware of the application. Mr Mlunguza should not
have signed the petition as if he were an attorney at Venfolo
Attorneys.
[3]
Counsel for Ms Mouton (the second respondent) informed me that on his
advice his attorneys (ABA) tried to make sure that the
papers in this
case came to Mr Booi’s attention. They tried to serve the
papers at the address of Venfolo Attorneys recorded
in the
application for leave to appeal. Nobody was found at this address,
and there was no signage to indicate that a firm by that
name had its
offices there. They also tried to serve on Venfolo Attorneys by
email, but the email bounced back.
[4]
Ms Mouton’s counsel then advised ABA to obtain such particulars
as they could for Mr Booi, allegedly an attorney, from
the LPC. They
got a physical address and telephone number. The telephone went
unanswered despite various attempts. An attempt to
serve at the
physical address failed; nobody was present, and a neighbour stated
that he had no knowledge of a Mr Booi, and that
the occupants of the
house were two women.
[5]
On 7 May 2020 ABA emailed Mr Mlunguza and asked him to furnish them
with Mr Booi’s updated contact details in the form
of an
address, telephone number and email. Mr Mlunguza’s reply was
that documents for Mr Booi should be served on him as
he was Mr
Booi’s attorney.
[6]
At the hearing on 8 May 2020, after these matters had been canvassed,
I asked Mr Mlunguza what contact information he had for
Mr Booi. He
said that Mr Booi was an attorney but that he did not know his
physical address. He gave a mobile telephone number
which was, he
said, his means of communicating with Mr Booi. I adjourned
proceedings for a few minutes to enable Mr Mlunguza to
phone Mr Booi
to get his contact details. When we resumed, Mr Mlunguza told me that
Mr Booi’s phone was on voicemail.
[7]
In the circumstances, I treat the present application as one by Mr
Mlunguza. If Mr Booi in his own right wishes to pursue an
application
for leave to appeal, proper evidence will need to be furnished that
he has authorised such a step.
[8]
The application for leave to appeal is a 31-page document in which
the criticisms of my judgment are grouped under ten ‘grounds’.
I will endeavour to deal with the main points Mr Mlunguza has made in
this document.
[9]
Mr Mlunguza submits that I erred in not setting aside Ms Lamberty’s
decision to remove him as an executor. He appears
to consider that
setting aside should have followed as a matter of course from the
declaration of invalidity, and that my failure
to make such an order
was ‘illogical and illegal and unconstitutional’. I
explained the course I took in paras 48-55
of my judgment. The
applicant’s contention that a setting aside must always follow
upon a declaration of invalidity is plainly
wrong; it is contrary to
s 172(1)(
b
) of the Constitution, s 8 of PAJA and
decisions of the Constitutional Court, one of which I cited in para
49. The applicant
has not engaged with these matters.
[10]
Mr Mlunguza complains that his application was a simple one based on
the terms of ss 54(1)(
b
)(iv) and 54(2) of the Act, and
that I should not have treated the case as a ‘constitutional
matter’ engaging s 172.
That submission is untenable. His
complaint on the merits was that a public official, Ms Lamberty,
acted outside the powers conferred
on her by statute. That is a
constitutional matter. What he was seeking was a review. As I
explained in para 48, s 8(1) of
PAJA mirrors s 172(1)(
b
)
of the Constitution in empowering the review court to grant any order
that is ‘just and equitable’.
[11]
Mr Mlunguza contends that the grounds on which I found it not to be
just and equitable to set aside his removal were flawed.
The first of
those grounds was that he was absolutely incapacitated from being
appointed as an executor testamentary (para 50 read
with paras 40-42
of my judgment). Mr Mlunguza contends that he was one of three
witnesses, and that the will was thus valid. However,
I did not find
that the will was invalid; I found only that the applicant, as a
witness to the will, was absolutely incapacitated
from benefiting
from his testamentary nomination as an executor. Section 4A(1)
of the Wills Act applies to him.
[12]
I asked Mr Mlunguza what he meant by his statement that the will was
witnessed by three persons, since on its face the will
was witnessed
by only two persons. He replied that three persons in all signed the
will, namely the testator, himself and another
person. Mr Mlunguza
seemed not to understand that the function of the two witnesses was
to witness the signature of the testator,
and that the testator
himself was not a ‘witness’ for purposes of the Wills
Act.
[13]
Mr Mlunguza complains that the court did not observe natural justice
in concluding that he was incapacitated from benefiting
from the
testamentary nomination. That complaint has no merit. In paras
36.4-36.5 of Ms Lamberty’s first answering affidavit
(record
51-52) she stated that she had examined the will and that it now
appeared that it was witnessed and signed by Mr Mlunguza
himself, and
that his nomination as executor might thus be invalid in terms of
s 4A(1) of the Wills Act. In his reply to this
paragraph (para
45, record 336-337), Mr Mlunguza did not deny having witnessed the
will, and did not respond to the question of
the validity of his
appointment in terms of s 4A(1). The invalidity of his
appointment, with reference to s 4A(1), was
repeated in para 27
of the heads of argument filed on behalf of the Master in the main
case.
[14]
Furthermore, it was manifest from the will, which Mr Mlunguza
attached to his founding papers, that he was a witness to it
(this
could be seen by comparing his signature on the will to his signature
on his various affidavits). As recorded in para 41
of my judgment, I
raised the issue with him in court, and he confirmed that he
witnessed the will.
[15]
The second ground for not setting aside Mr Mlunguza’s removal
lay in the damning findings made against him by this court
when he
was struck off the roll of attorneys. Mr Mlunguza contends that the
judgment in question was suspended by his petition
for leave to
appeal. Although, in para 51 of my judgment, I said that I was by no
means satisfied that the judgment had been suspended,
para 52 shows
that my reasoning was not dependent on the question of suspension.
Although the striking-off order may have been
suspended, the court’s
factual findings against Mr Mlunguza were not matters I could
properly disregard. And as I observed
in para 53, Mr Mlunguza’s
conduct in the litigation only exacerbated these concerns.
[16]
Contrary to Mr Mlunguza’s contention, I did not find that he
was nominated as an executor in his capacity as an attorney
or that
he had to be an attorney in order to be an executor testamentary.
What I held was that the scathing findings which led
this court to
conclude that he was not fit to remain on the roll of attorneys were
findings which equally disbarred him from being
an executor. Both
positions are fiduciary in nature, and call for a high level of
probity.
[17]
I do not consider, in the circumstances, that there are any
reasonable prospect of another court finding that Mr Mlunguza’s
removal as an executor should have been set aside (ie that he should
in effect have been reinstated as the executor).
[18]
Mr Mlunguza contends that I erred in failing to set aside Ms Mouton’s
appointment as an executor dative. He has not,
however, engaged with
my reasoning in paras 56-58. If he has no reasonable prospects of
upsetting my refusal to set aside his removal,
he has no reasonable
prospects of upsetting my decision to allow Ms Mouton’s
appointment to stand. I may add that it is not
clear to me what
locus
standi
Mr Mlunguza has to complain about Ms Mouton’s
appointment once it is established that he himself has no right to be
reinstated
as the executor.
[19]
Mr Mlunguza alleges that Ms Mouton could not be appointed as executor
dative because she did not give any security, immediately
adding that
she gave a surety bond of R300 000 from Safire Insurance but
that one does not know the insurer’s financial
soundness. He
also says that security in the amount of R300 000 is
insufficient, because the estate is worth R4,5 million,
this being
his view of the value of the deceased’s claim against the RAF.
[20]
In the founding papers, Mr Mlunguza’s sole basis for having Ms
Mouton removed as executor was that his own removal as
executor was
unlawful (para 23, record 12). In para 27.8 he alleged that Ms Mouton
had given security of R300 000 but that
this was far less than
the value of the claim. Para 27.8 was one of several circumstances
said to justify the urgency of the matter;
it was not put up as a
ground of review. It thus did not receive any particular attention in
the answering papers. In his replying
affidavits Mr Mlunguza drew the
inference that Ms Mouton was intent on under-settling the deceased’s
claim because she had
only furnished security of R300 000.
[21]
Apart from the fact that the absence or inadequacy of security was
not a basis on which Ms Mouton’s removal was sought,
Mr
Mlunguza did not allege in the main case that Safire Insurance was of
doubtful financial soundness. As to the amount of the
security, this
is determined by the Master (s 23). Ms Lamberty would not have
issued letters of executorship to Ms Mouton
if security to the
Master’s satisfaction was not supplied.
[22]
Mr Mlunguza complains that Ms Mouton’s appointment was done
without knowledge of the deceased’s mother or of the
primary
heir (presumably meaning the minor child who is to inherit 80 per
cent of the estate) or the creditor (presumably meaning
himself). As
I pointed out in para 23 of my judgment, the main application was
launched about 18 months before I heard it, yet
there was no evidence
before me from the child’s mother. If the deceased’s
mother or the mother of the child considers
that it was wrong for Ms
Lamberty to have appointed Ms Mouton (ie that she failed properly to
follow the procedure laid down in
s 18), it will be open to them
to launch proceedings in their own name for the review of the
appointment. Mr Mlunguza does
not have
locus standi
to
complain.
[23]
Since Mr Mlunguza has referred to s 19 of the Act, I note that
the said section, which deals with competition for the
office of
executor, applies only where more than one person has been nominated
as an executor dative. There is no evidence that
anyone apart from Ms
Mouton was nominated (her nomination was by the deceased’s
father, who in his capacity as a parent of
the deceased is an heir in
the estate).
[24]
The final criticism, on the merits of my judgment, is that, if I was
not willing to reinstate Mr Mlunguza as the executor,
I should have
honoured the testator’s alternative nomination of Mr Booi as
the executor testamentary. I explained my reasons
in paras 59-64,
indicating what action Mr Booi could take if he truly wished to
pursue his own appointment. Once again, Mr Mlunguza
has not engaged
with my reasoning, instead repeating contentions he made when arguing
the original application.
[25]
The other criticisms of my judgment concern costs. Contrary to Mr
Mlunguza’s complaint, I did not ignore the
Biowatch
principle. In paras 65-67 I expressly identified the general
principle established by that case and the qualifications to which it
is subject, referring to several other Constitutional Court
judgments. Once again, Mr Mlunguza has not directed his criticisms
at
my reasoning, only at the outcome. It does not help for him to
identify judgments in which the Constitutional Court has criticised
lower courts for failing to give effect to
Biowatch
, since
those cases were not concerned with the admitted exceptions to the
Biowatch
principle.
[26]
In the circumstances, I do not think there is any reasonable prospect
that another court will find that I exercised my discretion
on costs
on a wrong principle. I guided myself with reference to the
qualifications to the general principle identified in para
66 and 67
of my judgment, and Mr Mlunguza does not say that those are not
established by Constitutional Court jurisprudence.
[27]
Accordingly, if Mr Mlunguza is to succeed in upsetting my ruling on
costs, he will need to satisfy an appellate court that
my decision
was so unreasonable, arbitrary or capricious as to show that I failed
to apply my mind properly to the just and equitable
costs order. That
is a high hurdle, and I do not think Mr Mlunguza has reasonable
prospects of surmounting it. My reasoning was
based on two essential
considerations, viewed cumulatively: (a) that Mr Mlunguza had failed
to achieve what he really wanted and
what the respondents really
resisted, and that he had had no realistic prospect of obtaining his
reinstatement as executor; (b) that
he conducted the litigation
for mercenary ends and in a reprehensible way, in particular by
repeatedly making highly defamatory
statements against Ms Lamberty,
Mr Abel, Ms Mouton and the attorneys of ABA.
[28]
As to the wasted costs of 28 December 2018, Mr Mlunguza has not taken
issue with the statement of the facts contained in para
18 of my
judgment. That wasted costs were incurred is clear.
[29]
Mr Mlunguza makes the remarkable assertion that I criticised the way
in which he conducted the litigation without providing
particulars.
That assertion is without merit, as will be apparent from paras 69-71
of my judgment. Regrettably Mr Mlunguza has
still not heeded the
warning to refrain from making scandalous allegations; his written
submissions in support of the application
for leave to appeal
continue the barrage of accusations against Mr Abel and ABA (see, in
particular, lines 6-11 on page 5, lines
3-4 on page 6, the last eight
lines of para 2.3, lines 10-15 on page 10 and lines 5-8 on page 11).
In addition, the court itself
is now accused of actual bias, the
accusation being printed in bold (see the concluding lines of paras
4.2 and 4.4). Mr Mlunguza
seems to be incorrigible, and he will again
have to pay the price.
[30]
I make the following order:
(a) The application for
leave to appeal is dismissed.
(b) The first applicant
must pay the respondents’ costs of the application for leave to
appeal, such costs to be taxed on
the scale as between attorney and
client.
(c) 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.
______________________
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