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[2011] ZAGPJHC 127
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Schofield and Others v Bontekoning and Another (A5005/2011) [2011] ZAGPJHC 127 (23 September 2011)
NOT
REPORTABLE
IN
THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE
NO: A5005/2011
DATE:23/09/2011
In the matter
between
ZELDA
BERNADETTE SCHOFIELD
...............................
FIRST APPELLANT
KEENIN
FRANK SCHOFIELD
.....................................
SECOND
APPELLANT
KYLE
JOHN SCHOFIELD
................................................
THIRD
APPELLANT
and
SHAWN
THOMAS
BONTEKONING
.............................
FIRST
RESPONDENT
VALERIE
JEAN BONTEKONING
….......................
SECOND
RESPONDENT
Rescission
of rule nisi and its confirmation – refused in court below -
appeal to full court – defence on merits of
application in
which orders were granted re-considered – executor of deceased
estate failing to comply with
s 47
of the
Administration of Estates
Act 66 of 1965
when immovable properties sold - non- joinder to
application of interested parties - application not served on those
parties -
appeal upheld.
J
U D G M E N T
VAN
OOSTEN J:
[1]
This is an appeal against the dismissal by the court a quo (Masipa J)
of an application to rescind a court order, made against
the first
appellant. The appeal is before us with leave of the Supreme Court of
Appeal.
[2]
In order to understand the proper context of the application for
rescission it is necessary to set out in some detail the background
to the matter. The first appellant is the mother of the second and
third appellants. The first appellant’s husband and father
of
the second and third appellants (the deceased) died on 15 August
2003. In terms of his will the deceased bequeathed his estate
to the
second and third appellants subject to the first appellant’s
usufruct for life. The estate consisted
inter
alia
of two agricultural
holdings (the properties). On 30 March 2006 the Master of the High
Court appointed one Howard Woolf as executor
in the deceased’s
estate as provided for in the will. On 12 September 2007, Woolf
acting in his capacity as executor sold
the properties to the
respondents for R1,6m. The authorization of Woolf to sell the
properties as well as the first appellant’s
awareness and
knowledge of the transaction, were hotly disputed in the papers, to
which I will revert in due course. On 16 October
2008 the first
appellant obtained an order from this Court removing Woolf as
executor and appointing her as executor of the deceased
estate. On 31
March 2009 the respondents obtained an order from this Court by way
of a rule
nisi
against the first appellant, in essence compelling her to effect
transfer of the properties into the names of the respondents.
The
rule
nisi
was confirmed on 7 April 2009 (the April 2009 order). On 19 May 2009
the Master of the High Court issued letters of executorship
appointing the first appellant as executor of the deceased estate.
[3]
During June 2009 the appellants launched an application for the
rescission of the April 2009 order which is the subject matter
of
this appeal. In argument before Masipa J two substantial grounds for
the rescission were relied on, firstly, on the merits,
that Woolf,
the previous executor, was not authorised by the appellants to sell
the properties to the respondents and secondly,
on the procedure that
was followed, that the respondents had failed to join the second and
third appellants to the application
in which the April 2009 order was
made and, furthermore, that the application had not been served on
any of the appellants. The
learned Judge a quo decided both issues
against the appellants and dismissed the application for rescission
with costs. I turn
now to deal with each of these grounds.
[4]
It was accepted at the hearing of the application before Masipa J
that the provisions of s 47 of the Administration of Estates
Act 66
of 1965 (the Act) applied to the sale of the properties to the
respondents. Applied to the sale of the properties in this
matter,
compliance with the section required the executor to sell the
properties “in the manner and subject to the conditions
which
the heirs who have an interest therein approve in writing” and,
moreover, as the second and third appellants were minors
at the time
and heirs to the properties, to obtain the approval of the Master as
to the “manner and conditions” of
the sale. It is
interesting to note in passing that the deceased’s will
specifically deals with this aspect. It (clause 7.14)
empowers the
executor to sell any of the assets in the estate “in such
manner and upon such conditions as they shall deem
to in the best
interest of my Estate, and such mode of realization may include sale
by tender, by private treaty, out of hand sales,
and sales on terms
of installments and accordingly the provisions of Section 47 of Act
66 of 1965 shall not apply to the liquidation
or administration of
my Estate whether the Trustees be acting as executors or
Administrators or Trustees of the Trust hereby created”.
The
exclusion by the testator of peremptory statutory provisions, it is
trite, must be regarded as
pro
non scripto
.
[5]
It is common cause that neither the consent of the appellants nor the
approval of the Master had been obtained in respect of
the sale of
the properties to the respondents. The non-fulfillment hereof, Masipa
J held, was of no moment and had “become
purely academic as it
was overtaken by the rule
nisi
”.
I respectfully disagree with the reasoning adopted by the learned
Judge. The rule
nisi
,
in my view, cannot in any way be interpreted as an order to secure
compliance with the requirements of s 47. Nor could the
non-compliance
be cured by a court order. That in any event was not
the case the respondents had made out in order to obtain the rule
nisi.
The provisions of s 47 of the Act are peremptory, and cast a duty on
the executor to fulfill the requirements of obtaining the
consent of
the heirs and in addition, where the second and third appellants were
still minors at the time, the approval of the
Master. The reliance by
the respondents on the first appellant’s knowledge and
awareness of the transaction is misplaced:
such knowledge did not and
could not constitute compliance with the provisions of s 47. It
follows that the appellants have shown
a sustainable defence on the
merits of the application in which the April 2009 order was made (the
application).
[6]
Next, I turn to the procedural issues. The second and third
appellants were not joined to the application. They, as heirs of
the
estate, had a vital interest in the matter. The court a quo reasoned
that the first appellant was aware of the transaction
and that it was
therefore, “highly improbable that the first applicant would
not have told her two children about the sale”.
The probability
of the second and third respondents having been informed by their
mother of the application, in my view, cannot
be regarded as a
substitute for service of the application on them. The second and
third appellants were necessary parties to the
application, they had
a direct and substantial interest in the outcome thereof and their
joinder to the proceedings, therefore,
was necessary. The appeal, as
rightly conceded by counsel for the respondents, accordingly should
succeed on this ground alone.
[7]
Finally, it is necessary to deal briefly with the service of the
application. It is common cause that neither the application
nor the
rule
nisi
was
served on any of the appellants. Provision was made in terms of the
rule
nisi
for service thereof on the first appellant “c/o Manfred
Jacobs”, who is an attorney practicing in Boksburg and who
had
in a previous matter appeared for the first appellant. The service on
Manfred Jacobs, it is apparent, was ordered
ex
abudanti cautela
and therefore
was not intended to provide for substituted service. Be that as it
may, the first appellant stated in the rescission
application that
Manfred Jacobs had not been appointed to act on her behalf in the
application, but that he, after service on him
of the rule
nisi
had brought it to her notice. I accordingly do not think that the
absence of service in the technical sense avails the first appellant.
Of more fundamental importance however, remain the non-joinder of and
absence of service on the second and third appellants which
constitute procedural defects which should have led the court below
to grant rescission.
[8]
One last observation: the
locus
standi
of the first appellant
was much debated. At the time of launching the application the first
appellant had already been appointed
as executor in terms of an order
of this Court but the letters of executorship were only thereafter
issued by the Master. This
led to the argument that the first
appellant, at that time, was not empowered to act as executor and
further, that the relief sought
and granted against her in her
capacity as executor, was improper. We were referred to the recent
unreported judgment of Bertelsmann
J in
Ex
Parte The Master of the High Court of South Africa (North Gauteng)
(NGHC case no 28042/11 27 June
2011) where the learned Judge held that “no judge of the High
Court of South Africa has authority
or jurisdiction to effect any
appointment” of trustees/liquidators and the like, in
insolvency proceedings, as authority
for the proposition
pari
passu
that the court had no
authority or jurisdiction to appoint the first appellant as executor,
on 16 October 2008. I do not think
this is the opportune time to
pronounce my views either on the correctness of the judgment of
Bertelsmann J or the extension of
its application to executors in
deceased estates. Suffice to say that the judgment of Bertelsmann J,
even on the interpretation
contended for by the appellants, does not
render the appointment of the first appellant as executor nugatory.
It is however true
that the first appellant, at the time that the
application was launched, had not been issued with the letters of
executorship and
that the order granted against her in that capacity,
may well be improper. But I do not think it is necessary to explore
this aspect
any further as the appeal, for the reasons I have already
dealt with, must in any event be upheld.
[9]
In the result the following order is made:
The
appeal is upheld with costs.
The
order of the court a quo is set aside and substituted with the
following order:
The
rule
nisi
issued
on 31 March 2009 and the confirmation thereof on 7 April 2009 in
case no 09/13756 is rescinded.
The
applicants are granted fifteen days from 23 September 2011 to file
answering affidavits in the application under case no
09/13756.
The
costs of the application for rescission of the said orders are
ordered to be costs in the application under case no 09/13756.
_________________________
FHD VAN
OOSTEN
JUDGE OF
THE HIGH COURT
I agree.
____________________________
NF KGOMO
JUDGE OF
THE HIGH COURT
I agree.
_________________________________
V NOTSHE
ACTING
JUDGE OF THE HIGH COURT
COUNSEL
FOR THE APPELLANT
….....
ADV
AP BRUWER
APPELLANT’S
ATTORNEYS
...................
MANFRED
JACOBS ATTORNEYS
COUNSEL
FOR RESPONDENT
..............
ADV
C ASCAR
RESPONDENT’S
ATTORNEYS
...............
KOBUS
BOSHOFF ATTORNEYS
DATE OF
HEARING
...................................
22
SEPTEMBER 2011
DATE OF
JUDGMENT
…..........................
23
SEPTEMBER 2011