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[2016] ZAGPJHC 126
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Moloto and Others v Velashiya and Others (2015/17117) [2016] ZAGPJHC 126 (24 May 2016)
REPUBLIC
OF
SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2015/17117
DATE:
24 MAY 2016
In the
matter between:
MOLOTO
THANDO
MICHELLE
......................................................................
FIRST
APLLICANT
MOLOTO
ELLIOT
SELEKA
.........................................................................
SECOND
APPLICANT
SIBANDA
PALESA
MORESI
.............................................................................
THIRD
APPLICANT
THANDI
MASEKO
..........................................................................................
FOURTH
APPLICANT
MOKOKA
MASEKAU
JACOBS
........................................................................
FIFTH
APPLICANT
And
VELASHIYA
VANESSA
...................................................................................
FIRST
RESPONDENT
FIRST
NATIONL BANK
LT
........................................................................
SECOND
RESPONDENT
MASTER
OF THE HIGH
COURT
................................................................
THIRD
RESPONDENT
J U D G M E N T
TWALA
AJ
[1] The applicants came before me on
urgent basis seeking the following orders:
I.
That
the application be dealt with as one of urgency in terms of Rule 6
(12) and that the normal time period and service be dispensed
with in
the circumstances.
II.
That
the First Respondent be prevented from administering, dissipating,
hiding or alienating the deceased estate of the late Samuel
Matsobane
Moloto;
III.
That
the First Respondent be ordered to hand over the administration of
the deceased estate to the Master of the above Honourable
Court,
pending the outcome of the application for the rescission of the
default judgment granted on 31 August 2015 (“
the
rescission application”
).
IV.
Alternative
to prayer 3, that the Second Respondent be ordered to freeze the
funds currently available on the estate account being
manged and
operated by the First Respondent with the Second Respondent on behalf
of the deceased estate of the Late Samuel Matsobane
Moloto, pending
the outcome of the rescission application;
V.
Ordering
the First Respondent to pay the costs of this application in her
personal capacity;
VI.
In
the event of their non-opposition of the present application, no cost
order is sought against the Second, Third, Fourth and Fifth
Respondents. Costs are only sought against the Second, Third, Fourth
and Fifth Respondents only in the event of their opposition
of the
present application.
[2]
Only the First Respondent filed opposing paper to this
application. It is noted that prayer VI relates to Second, Third,
Fourth and Fifth respondents whereas there are only three (3)
respondents cited in this case.
[3]
It is common cause between the parties that the applicants are the
biological children and therefore heirs and/or beneficiaries
to the
estate of the deceased, the late Samuel Matsobane Moloto, who died
intestate on the 17 March 2015. Immediately after the
death of the
deceased, the Second Applicant was appointed Executor of the estate
of the deceased. The First Respondent opposed
this appointment of the
Second Applicant as the Executor of the estate of the decease but was
unsuccessful at the time.
[4]
On 31 August 2015, the First Respond was granted an order by the
above Honourable Court condoning the late registration of her
customary marriage to the deceased. This order was granted against
the opposition mounted by the Second Applicant who failed to
appear
at the hearing of the matter – hence the order was granted by
default.
[5]
On 17 November 2015, the Third Respondent withdrew the Letters of
Executorship issued to the Second Applicant and appointed
the First
Respondent as the Executrix in the estate of the deceased. However,
the Second Applicant handed over control of the deceased
estate,
closed the estate banking account and transferred the funds into the
new account under the control of the First Respondent
only on the 27
January 2016.
[6]
It is not in dispute that on 11 December 2015, Zwiegers Attorneys, on
the instructions of the Second Applicant, addressed a
letter to the
First Respondent’s attorneys of record enclosing a copy of the
application for rescission of the judgment of
the 31 August 2015
which condoned the late registration of the customary marriage of the
First Respondent and the deceased. This
letter demanded confirmation
that the First Respond “
will do nothing in her capacity as
the so called executor, pending the outcome of the applications to be
brought by the applicants”.
The letter continued to state
that should they not receive confirmation as requested by end of
business on that day, they hold instructions
to proceed on urgent
basis to interdict the First Respondent from executing her duties as
the executrix in the estate. The application
for the rescission of
judgment was however withdrawn on the 27 January 2016.
[7]
On the 4 February 2016 the First Respondent was served with an
urgent application interdicting and restraining her from disposing
cash and/or assets of the deceased estate. This application was
struck of the roll for lack of urgency on the 12 February 2016.
[8]
In March 2016 another application for rescission of the judgment of
the 31 August was launched and is still pending before
the Court. The
parties are still exchanging the pleadings in this case.
[9]
On the 24 March 2016 the Applicants attorneys of record dispatched a
letter to the First Respondent’s attorneys demanding
that the
First Respondent furnish them with certain information and
transactions that have taken place in the late estate account.
It
further demanded an undertaking from the First Respondent that she
will forthwith desist from acting or purporting to act as
the
administrator and/or executrix of the estate pending resolution of
the dispute between the parties.
[10]
The First Respondent’s response to the letter of the 11
December 2015 was that she will not confirm that “
she
will do nothing in her capacity as the so called new executor,
pending the outcome of {your clients’} applications.
Her
response to the letter of the 24 March 2016 was that she is fatigued
and would prefer to utilise her financial resources on
dealing with
the court application launched recently, (
meaning
the rescission of judgment application launched in March 2016
).
[11]
Counsel for the Applicants contends that it is the attitude of the
First Respondent that galvanised the Applicants into bringing
this
urgent application which was initiated on the 6 April 2016 and was to
be heard on the 19 April 2016. Applicants have a reasonable
apprehension that the assets of the estate might be dissipated by the
First Respondent. When they demanded information and undertakings
from the First Respondent, she failed to give such information and
undertakings. However, on the 10 April 2016 after she was served
with
this urgent application, she furnished the information on the estate
account. The information furnished by the First Respondent
has now
confirmed the suspicions of the Applicants that the assets of the
estate are being dissipated by the First Respondent.
There are
amounts of money that have been withdrawn from the estate bank
account to the tune of about R400 000 without any
reasonable
explanation.
[12]
Counsel for the First Respondent contends that the application is not
urgent. The applicants have on two (2) previous occasions
brought
similar urgent applications. One was withdrawn in January 2016 and
the other was on the 12 February 2016 struck off the
roll for lack of
urgency. Secondly, this application was set down for hearing on the
urgent roll of the 19 April 2016 and was removed
by agreement because
the Applicants wished to file a replying affidavit to the First
Respond’s answering affidavit.
[13]
The previous two urgent applications were for the removal of the
First Respondent as the executrix of the deceased estate.
Couched
differently, the application presently before Court is aimed at
achieving the same result as were intended in the previous
two
applications. There is no dissipation of the assets of the estate
that has occurred or assets that have not been accounted
for. All the
monies withdrawn from the estate account are legitimate and/or
reasonable expenses of the estate. First Respondent
is not obliged to
account to the heirs and/or beneficiaries during the winding up of
the estate. She is accountable to the Master
of the High Court. She
is obliged to prepare and lodge a Liquidation and Distribution
account with the Master and if anyone has
an objection to her
handling of the estate, the objection should be lodged with the
Master.
[14]
During his tenure as the executor of the estate, the Second
Applicant paid himself and his co-applicants a sum in excess of
R8.5m
from the estate without lodging a liquidation and distribution
account to the Master as required by the Administration of
Deceased
Estates Act. He further transferred immovable property valued at
R1.7m from the estate into the name of the Third Applicant.
[15]
The Applicants have never accepted the appointment of the First
Respondent as the executrix in the estate of the deceased.
It took
the Second Respondent more than two (2) months to hand over the
estate to the First Respondent and barely six (6) weeks
thereafter,
the applicants started all this litigation. The Applicants are not
approaching this Court with clean hands. They have
shared the assets
of the estate amongst themselves at the exclusion of other estate
heirs. The First Respondent and her children
were deliberately
excluded from the estate.
[16]
I agree with Counsel for the First Respondent that this matter is
not urgent. The fact that the founding papers were issued
and served
on the First Respondent on the 6 April 2016 when the matter was
enrolled for hearing on the urgent roll of the
19 April 2016 but was
removed from the roll and place on the urgent roll of the 26 April
2016 bears testimony to the fact that
the matter is not urgent. The
matter cannot be for ever urgent on the same facts. The prayers in
the notice of motion are couched
differently from the previous two
(2) notices of motion. The one notice of motion was struck off the
roll for lack of urgency and
the other was removed from the roll.
However, the intended result is the same, to remove the estate from
the control of the First
Respondent or to remove the First Respondent
as the executrix of the estate.
[17]
It is my view therefore that this application is not distinguishable
from the other two except that it is couched differently.
Therefore
this matter falls to be struck of the roll for lack of urgency.
[18]
However, since I have read all the pleadings and have allowed both
counsels to argue the merits of this matter, I am of the
view that I
will be failing in my duty if I were not to finalise it.
[19]
The issue to be determined by this Court is whether the First
Respondent (
the Executrix
)
in the performance of her functions is dissipating or hiding or
alienating and/or will, in the process of administering the estate,
dissipate or hide or alienate the assets of the deceased estate.
[20]
It is the applicants’ contention that the letter of the 10
April 2016 from the First Respondent’s attorneys is
proof that
the Executrix is dissipating the assets of the estate. This letter is
in response to the applicants’ letter of
the 24 March 2016
wherein a demand was made for the Executrix to make certain
undertakings and to furnish certain information.
[21]
In the letter of the 10
th
April 2016, the Executrix listed and made a narration for each amount
of money that was withdrawn from the estate late bank account.
She
further listed the creditors of the estate which were due to be paid.
These payments can be summarised in terms of their narration
as legal
fees, maintenance of the minor children, school fees and insurance
for motor vehicles belonging to the estate totalling
R219 124.72.
[22]
The Master of the High Court (The Master) is a department within the
Department of Justice and Constitutional Development created
by
Legislation. One of its functions is to supervise the administration
of the deceased estates. It is created by the Administration
of
Deceased Estate Act, Act 66 of 1965 (“the Act”). The
Master has the power to appoint and/or to remove the executor
in
terms of the provisions of the Act.
[23]
The purpose of the Act is “
to
consolidate and amend the law relating to the liquidation and
distribution of the estates of deceased persons, the administration
of the property of minors and persons under curatorship, and of
derelict estates; to regulate the rights of beneficiaries under
mutual wills made by any two or more persons”.
[24]
It is trite that once a deceased estate is reported to the Master
and an executor is appointed, the estate will be administered
and
liquidated in terms of the Act. The executor is then obliged to
administer the estate under the supervision and is accountable
to the
Master. It is absurd to suggest that the executor should account to
the heirs and/or beneficiaries of the estate at any
given moment when
they demand her to do so.
[25]
In terms of section 35 of the Act, the executor has a duty to lodge a
liquidation and distribution account with the Master.
Once the
account has been approved by the Master, it lies in the Master’s
office for inspection by anyone including the heirs
and/or
beneficiaries of the estate. Any person who has an objection to the
liquidation and distribution account, has the right
to lodge such
objection with the Master. It is therefore my view, that there was no
reason for the Executrix and she was not obliged
to respond to the
demand of the applicants dated the 24 March 2016. It is only the
Master who has the power in terms of section
35 of the Act to demand
that the executor lodge an account and/or vouchers in relation to an
account.
[26] Section 36 of the Act provides as follows:
“
Failure by executor to
lodge account or to perform duties
(1)
If
any executor fails to lodge any account with the Master as and when
required by this Act, or to lodge any voucher or vouchers
in support
of such account or any entry therein in accordance with a provision
of or a requirement imposed under this Act, or to
perform any other
duty imposed upon him by this Act or to comply with any reasonable
demand of the Master for information or proof
required by him in
connection with the liquidation or distribution of the estate, the
Master or any person having an interest in
the liquidation and
distribution of the estate may, after giving the executor not less
than one month’s notice, apply to
the Court for an order
directing the executor to lodge such account or voucher or vouchers
in support thereof or of any entry therein
or to perform such duty or
to comply with such demand.
(2)
…………………………………………………………
..”
[27]
The Act obliges the executor to lodge a liquidation and distribution
account with the Master and if he fails to do so, the
Master or any
person who has an interest in the liquidation and distribution of the
estate may apply to the Court for an order
directing the executor to
lodge such account or to comply with such demand only after giving
the executor not less than one month’s
notice.
[28] I am
of the view that the step taken by the applicants in this case is not
in line with the provisions of Section 36 and therefore
the Executrix
was not obliged to respond or account to them.
[29]
Section 26 (1A) of the Act provides as follows:
“
The
executor may before the account has lain open for inspection in terms
of section 35(4), with the consent of the Master release
such amount
of money and such property out of the estate as in the executor’s
opinion are sufficient to provide for the subsistence
of the
deceased’s family or household.”
[30]
It is apparent from the papers filed of record that there has been a
lot of litigation between the parties in relation to the
deceased
estate. It is not unexpected that parties would incur legal costs in
such a case. Payment of the legal fees by the estate
can therefore
not be said to be a dissipation or alienation of the assets of the
estate. Some of the legal fees to be paid are
for the attorneys which
represented the Second Applicant when he was the executor of the
estate. Further, the executor is empowered
in terms section 26 of the
Act to provide for maintenance for the family or household of the
deceased if she is of the opinion
that it was necessary do so. I
conclude, therefore, that the amounts withdrawn from the estate late
bank account by the executrix
from 27 January 2016 to 24 March 2016
are reasonable and legitimate expenses of the deceased estate.
[31]
I agree with Counsel for the First Respondent that the applicants
never accepted the appointment of the First Respondent as
executrix
of the estate and have since embarked on the course to remove her.
The alleged apprehension that she is dissipating or
alienating and/or
will in the course of her administration of the estate dissipate or
alienate the assets of the estate is just
a smoke screen aimed at
removing her as the Executrix of the estate.
[32]
I conclude therefore that the apprehension of the applicants that
the Executrix is dissipating or alienating or hiding and/or
will in
the performance of her functions dissipate, alienate or hide the
assets of the estate is unfounded and unreasonable. It
cannot be said
that because the applicants dispute her customary marriage to the
deceased then she will dissipate, alienate or
hide the assets of the
deceased estate.
[33]
It is not correct to say that there is now only a balance of R5m in
the estate bank account whereas the Executrix received
an amount in
excess of R10m when she took control of the estate in January 2016.
The Executrix has disclosed that she has invested
a sum of R5m in an
interest bearing account and that she is in the process of
recovering, from the Third Applicant, the immovable
property that was
illegally transferred into her name by the Second Applicant.
[34] Section 23(1) of the Act provides as follows:
“
(1) Subject to the
provisions of section twenty – five, every person who has not
been nominated by will be an executor shall,
before letters of
executorship are granted, or signed and sealed, and thereafter as the
Master may require, find security to the
satisfaction of the Master
in an amount determined by the Master for the proper performance of
his functions: provided that if
such person is apparent, spouse or
child of the deceased, he shall not be required to furnish security
unless the Master specially
directs that he shall do so.
(2)…………………………………………………………..
”
[35] It is trite that, for an applicant to succeed with
an interdict, there are three elements that must be proved which must
be
present at the same time, that is:
(a)
a clear right
(b) reasonable apprehension of
irreparable harm
(c)
absence
of a satisfactory alternative remedy
[36]
The Master did not find it necessary to call for security from the
Executrix when she was appointed. Nothing stops the Master
from
calling for security if there are facts before him that suggest that
the Executrix will not perform her functions properly.
In terms of
section 23 of the Act, it is irrelevant whether the executor is a
parent, spouse or child of the deceased.
[37] It is my view therefore, that the applicants have a
clear right in that they are the biological children of the deceased
and
therefore the heirs and/or beneficiaries to the estate of the
deceased. However, the applicants have failed to justify the
existence
of a threat or reasonable apprehension of irreparable harm
and that there is no satisfactory alternative remedy.
[38]
I conclude therefore that there is an alternative remedy as provided
for in section 23 of the Act. The application therefore
falls to be
dismissed.
[39]
It is surprising that the applicants drag the First Respondent to
Court in her capacity as executrix in the estate of the deceased
but
seek a costs order against her in her personal capacity. The
applicants came before this Court on urgent basis when in fact
this
matter was not urgent. The applicants are determined to abuse the
processes of this Court to get to the First Respondent.
This cannot
be allowed and the Court frowns upon such behaviour by litigants. It
is therefore appropriate for this Court to grant
punitive costs
against the applicants in this case.
[40] In the circumstances, I make the following order:
I.
The
application is dismissed;
II.
The
Applicants to pay the costs of this application including the costs
occasioned by the postponement on 19 April 2016, jointly
and
severally the one paying the other to be absolved, on a scale as
between attorney and own client.
TWALA
ACTING JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Counsel for the Applicant:
Adv.
D. MPOFU SC
Instructed by:
MABUZA
ATTORNEYS
TEL: 011483 1508
Counsel for the First Respondent: Mr M. BILL
Instructed by: MOTSOENENG BILL ATTORNEYS
TEL:
011463 9401
Date of Hearing: 26 APRIL 2016
Date of Judgment: 24 MAY 2016