About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2020
>>
[2020] ZAGPJHC 254
|
|
Levinson NO v Master of the High Court and Others (A5032/2019) [2020] ZAGPJHC 254 (16 October 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
CASE NUMBER: A5032/2019
SCA
CASE NUMBER: 333/2019
COURT
A QUO CASE NUMBER: 04324/2017
In
the matter between:
LEVINSON
SUSAN
N.O.
Appellant
And
THE
MASTER OF THE HIGH COURT
(Gauteng
Local Division,
Johannesburg)
First
Respondent
LEVINSON
JANE
N.O.
Second
Respondent
SALANT
JEFFREY
STEWART
Third
Respondent
JUDGMENT
Delivered:
This judgment was handed down electronically by circulation to
the parties’ legal representatives by e-mail. The date and time
for hand-down is deemed to be 15h00 on the 16th of October 2020.
Dippenaar
J
:
[1]
This is an appeal against the judgment and
order of Mokose AJ (as she then was) (“the court a quo”)
granted on 17 September
2018 in terms of which she dismissed the
appellant’s application for her reinstatement as executor of
the estate of Mr Ralph
Morris Levinson (“the deceased”)
together with an order that the appellant pay the costs in her
personal capacity.
This appeal is with leave granted by the Supreme
Court of Appeal on 1 July 2019.
[2]
In
the court a quo, the appellant sought to review the decision of the
first respondent (“the Master”) to remove her
as executor
of the deceased’s estate under s95 of the Administration of
Estates Act
[1]
(“the
Act”). She further sought to set aside the appointment of the
second respondent as executor and that of the third
respondent as her
agent and an order reinstating her as executor to distribute the
deceased’s estate in terms of a liquidation
and distribution
account dated 23 August 2016. In turn, the second and third
respondents launched a conditional counter application
to remove the
appellant as executor in the event that her application was
successful. Given the order granted, no order was made
on the
conditional counter application.
[3]
The appellant sought an order upholding the
appeal, granting the application in her favour and dismissing the
respondent’s
counter application with costs. The second and
third respondents sought the dismissal of the appeal, and in the
alternative the
granting of their counter application for the removal
of the appellant as executrix of the deceased’s estate. In
light of
the findings and order of the court a quo, it did not make
any determination of the conditional counter application.
[4]
At the initial hearing before the court a
quo, the Master opposed the application and made submissions at the
hearing. Its answering
papers were deposed to by Mr Sephaka, a deputy
Master, who authored the correspondence in terms of which the
appellant was removed
as executor. In the present proceedings, no
heads of argument were delivered by the Master. The Master’s
case is discernable
from the papers and the judgment of the court a
quo. On the morning of the hearing, counsel for the Master appeared
and sought
a postponement from the bar, without any substantive
postponement application being launched. The appellant abided the
court’s
decision whilst the second and third respondents
opposed any postponement, claiming prejudice as a result. The Court
dismissed
the application for a postponement, whereupon the appeal
proceeded. Counsel for the Master made no submissions on the merits
of
the matter and abided the Court’s decision.
[5]
The
facts are mostly uncontentious and are set out in some detail in the
judgment of the court a quo
[2]
.
The deceased nominated the appellant as executrix in his will. He
died on 17 April 2012 and on 20 November 2012, the Master issued
the
appellant with letters of executorship. The appellant appointed her
attorney, Mr Ellis, as her representative in order to assist
her with
the administration of the deceased’s estate and furnished him
with a power of attorney in wide terms authorising
him to take all
steps in relation to the administration on her behalf. It was not
disputed that at all times, Mr Ellis acted as
appellant’s
representative and that the correspondence between the Master and the
appellant was addressed to Mr Ellis. Mr
Ellis was also the main
deponent to the appellant’s affidavits.
[6]
The first liquidation and distribution
account was lodged on 16 October 2013, pursuant to which the Master
raised certain queries.
Almost four years after the appointment of
the appellant, the deceased’s estate had still not been wound
up. The second and
third respondent further raised various complaints
with the Master regarding the way in which the appellant and Mr Ellis
were administering
the estate, which was escalated to the Chief
Master. Various amended liquidation and distribution accounts were
filed, to which
the second and third respondents objected. For
purposes of this appeal it is not necessary to traverse the
substantial amount of
correspondence which passed between the parties
in any detail. It is necessary only to refer to certain of the
correspondence.
[7]
On 2 December 2015, the third respondent,
the representative of the second respondent addressed a letter to the
Master raising numerous
queries and objections, pursuant to a meeting
held at the Master’s offices on 30 November 2015 to deal with
the second and
third respondents complaints. The evidence established
that many of these queries have still not been adequately addressed
by the
appellant or Mr Ellis.
[8]
On 11 July 2016, the Master addressed a
letter to Mr Ellis in his capacity as the appellant’s agent,
the relevant portion
of which provided as follows:
“
I wish to draw your
attention to the account of your administration dated 24 March 2014
lodged with me in your capacity as executrix.
The account has
been examined by me, but I cannot for the reasons set out in Annexure
“A” hereto accept it as an adequate
and correct account
for your administration of the above estate.
Be good enough therefore to take
notice that having failed to comply with my requirements and the
provisions of Act 66 of 1965 as
set out in Annexure “A”
hereto, you in your aforesaid capacity are hereby required to furnish
me with adequate and
correct account of your administration of the
above estate on or before
29
th
of July
2016
by complying with the abovementioned requirements or to
furnish me with satisfactory proof or reasons why they should not or
cannot
be complied with.
Failing punctually to comply with
this notice you may be removed from office in terms of section
54(1)(b)(v) of the abovementioned
Act. Your attention is also
directed to section 51(3)(b) (disallowance of remuneration).”
[9]
Appellant responded and indicated she that
was still awaiting a capital gains tax certificate from SARS. On her
version, the Master’s
representative Mr
Mphanama, was
satisfied with the explanation proffered. However, on the Master’s
version, the appellant and Mr Ellis failed
to comply with his demand.
[10]
Consequently, on 4 August 2016, the Master,
via Mr Sephaka sent a letter to Mr Ellis via registered post in the
following terms:
“
You have
failed to perform your duties as executor/executrix in a satisfactory
manner as required in my final demand of 7 July 2016
and 11 July 2016
respectively, copies whereof are attached for ease of reference.
Please take notice in terms of Section 54(2)
of the Administration of
Estates Act of 1965 (Act 66 of 1965) as amended, that I intend
removing you from office as executor/executrix
in terms of Section
54(1)(b)(v) of the aforementioned Act unless you apply to Court
within 30 days from date of this notice for
an order restraining me
from removing you as executor/executrix. Should you be removed as
executor/executrix the remuneration to
which you would have been
entitled may be disallowed by me in terms of Section 51(3) of the
aforementioned Act. Your removal will
not affect your liability for
any acts or omissions which may have taken place during the
administration of the estate.
[11]
The letter indicated that it was sent by
registered post. In correspondence addressed to the third respondent,
the Master confirmed
that the said letter was sent via registered
mail although he did not expressly address the issue in his answering
affidavit.
[12]
In the appellant’s founding
affidavit, Mr Ellis averred that he received the 4 August 2016 letter
on 22 August 2016 when he
was in the Master’s office.
Simultaneously, he also averred that the Master “dispatched the
notice on 4 August 2016”.
In broad terms he alleged in his
affidavit that “the executrix was not informed of her removal
via registered post as required”.
[13]
In their answering affidavit, the second
and third respondents pointed out that Mr Ellis did not explain why
he did not receive
the 4 August 2016 letter in the post, considering
that it was sent by registered mail ex facie the letter. In reply, Mr
Ellis did
not dispute that he had received both the 4 August 2016 and
the 5 September 2016 letter and did not respond to the second and
third
respondent’s challenge regarding receipt of the letter
via registered post.
[14]
The appellant and Mr Ellis did not launch
any proceedings to interdict her removal as executrix. Instead, the
appellant and Mr Ellis
sought to comply with the Master’s query
sheet which raised issues dating back to 2013 and finalise the estate
account. The
evidence established that various issues remained
outstanding and still remain outstanding.
[15]
On 23 August 2016 the appellant’s
attorney addressed a letter to the Master attaching a further amended
liquidation and distribution
account with certain vouchers,
requesting the Master’s confirmation that the account could be
published in terms of s35(5)
of the Act.
[16]
On 29 August 2016, an assistant Master, Mr
Mphanama sent a letter to Mr Ellis, the relevant portion of which
provided:
“
We refer
to the above matter and out letter of 4 August 2016. We hereby
request yourselves to disregard the letter as you have since
lodged
the Redrawn liquidation account and same has already been examined.
We hope you find the above in order”.
[17]
In its papers, the Master contended that
the aforesaid letter withdrawing the removal notice was invalid as
the person who sent
it was not authorised to do so. His view was that
the appellant and her agent, Mr Ellis, were in patent contempt of his
instructions
to attend to queries ranging back to 2013 and up to
August 2016 and that the appellant failed to perform her duties
satisfactorily.
[18]
On 1 September 2016, Mr Ellis addressed a
further letter to the Master attaching the First and Final
Distribution account which
would lie for inspection for a period of
21 days from 16 September 2016.
[19]
5 September 2016, the Master, via Mr
Sephaka addressed a letter (“the removal letter”) to the
appellant and Mr Ellis,
advising:
“
My first
removal notice dated 04 August 2016, a copy whereof is attached
refers. Please take notice that in terms
Section 54(2)
of the
Administration of Estates Act 65 of 1965
as amended, you are hereby
removed from office as executrix in terms of
section 54(1)(b)(v)
of
the aforementioned Act. In terms of section 54(5) you must forthwith
return your letter of Executorship as well as all certified
copies to
the Master. As an Executrix the remuneration to which you would
have been entitled to is partially disallowed by
me in terms of 51(3)
of the aforementioned Act. Your removal will not affect your
liability for any acts or omissions which may
have taken place during
the administration of the estate”
.
[20]
Pursuant to proper notice being given of
the proposed meeting on 30 September 2016, a meeting was held at the
Master’s office
on 19 October 2016, at which the appellant, a
legal advisor from Mr Ellis’ offices and two other individuals
was present.
The second and third respondents were also present at
the meeting. The purpose of the meeting was the appointment of a new
executor
to the estate. The appellant objected to the holding of the
meeting which was overruled by the Master. The appellant did not at
that meeting object to the appointment of the second respondent as
executor. The Master appointed the second respondent as executrix
to
the estate. Letters of executorship was issued in her favour on 26
October 2016.
[21]
Pursuant thereto, during January 2017, the
second respondent launched proceedings in the Johannesburg
magistrate’s court for
a search warrant authorising the sheriff
to search, seize and take into custody the books and records relating
to the deceased’s
estate in possession of the applicant. These
proceedings remain pending. This in turn triggered the application
launched by the
appellant.
[22]
The court a quo correctly articulated the
issues to be determined in the application thus:
“
The issue to be determined
by this court is whether the Master’s decision to remove the
applicant as executrix in the estate
of the deceased and to appoint
the second respondent in her stead was unlawful and falls to be set
aside. If the court finds
that the decision by the Master was
indeed unlawful, then a further issue to be determined is whether the
applicant ought to be
removed from her office as executrix by this
court in terms of Section 54(1)(a)(v) of the Act.”
[23]
In short, the court a quo found that the
applicant that the appellant was dilatory in the finalisation of the
estate and failed
to execute her duties as executor timeously and
that the Master was entitled to remove her in terms of s54(1)(b) (v)
of the Act.
Implicit in this finding is that the Master’s
decision to remove the appellant was not unlawful. As dealt with
below, considering
the facts, this conclusion of the court a quo
cannot be faulted and it did not misdirect itself on this issue.
[24]
Under s54(1)(b)(v), an executor may at any
time be removed by the Master from his office “
if
he fails to perform satisfactorily any duty imposed upon him by or
under this Act or to comply with any lawful request of the
Master…”
.
[25]
The court a quo found that the Master’s
conduct was not without reproach and that the conflicting messages
conveyed the letters
of 4 August 2016, 29 August 2016 and 5 September
2016 would confuse a reasonable person. The court a quo pointed out
that such
correspondence and the certificate issued by the Master on
13 October 2016 (confirming the liquidation and distribution account
had lain for inspection free of objection), was sent by different
people who failed to consult with one another as to what should
be
done in the circumstances.
[26]
The court a quo’s criticism of the
conduct of the Master’s representatives cannot be faulted.
Their conduct and correspondence
was conflicting and inconsistent as
found by the court a quo. But it was only inconsistent in one
material respect – i.e.
the content of letter from Mr Mphanama
contradicts the content of the letter from Mr Sephaka.
[27]
In argument, the appellant contended that
the letter of 29 August 2016 amounted to a cancellation of the letter
of 4 August 2016,
and thus the Master could no longer rely on the 4
August 2016 letter to remove her as executrix.
[28]
This
argument lacks merit. As correctly found by the court a quo, once the
Master issued the letter of 4 August 2016, he was functus
officio and
unable to reverse or reconsider the decision to remove her as
executrix.
[3]
The appellant’s reliance on the 29 August 2016 letter is
therefore misplaced.
[29]
In her notice of appeal and heads of
argument, the appellant raised four main grounds in which it was
contended the court a quo
misdirected itself. First; it was contended
that the delays which occurred were not the fault of the appellant,
but rather were
caused by the second respondent’s conduct. This
is not correct. The appellant took four years to attend to the
Master’s
queries and even then she did not do so
satisfactorily. The contention also contradicts her version that she
was awaiting the response
from SARS regarding the issue of the
Capital Gains Tax.
[30]
Second; it was contended that all queries
and objections have been addressed and the liquidation and
distribution account has been
finalised. All that is left is the
implementation thereof, i.e. the surplus in the estate needs to be
distributed amongst the heirs.
Considering the facts,
this contention lacks merit for the following reasons: (i) the
objections and queries raised by the
second and third respondents as
well as the Master were not addressed. By way of example the request
for documents and bank statements
sought by the second and third
respondents from as early as 2 December 2015 has not been provided.
Further certain particulars
sought by them were never provided. The
appellant did not dispute this; (ii) there is the issue of estate
monies which deposited
into the appellant’s personal bank
account and into Ellis’ trust account. These have not been
returned to the deceased’s
estate; and (iii) by the time
appellant sought to lodge the account, she and Ellis were aware of
the Master’s decision to
remove her as executor. On 5 September
2016, the Master had further notified the appellant and Ellis that
the decision to remove
her had been implemented and that she was
required to return her letters of executorship Thus, Appellant’s
reliance on a
liquidation and distribution account lodged by Ellis
with the Master during September 2016, which she contended
constitutes finalisation
of the estate (as the account lay open for
inspection for 21 days without objection) does not pass muster.
[31]
The facts illustrated inordinate delays and
failures in the performance of her fiduciary duties on the part of
the appellant and
her agent, Mr Ellis. The bald allegation that all
the Master’s queries and the second and third respondents’
objections
have been dealt with, is belied by the factual evidence
put up by the Master and the second and third respondents. The
appellant’s
administration of the deceased estate has clearly
prejudiced the estate and the beneficiaries under the deceased’s
will.
[32]
Third; it was contended that the removal
letter was irregular as it (i) was addressed to Mr Ellis and not to
the appellant, (ii)
was not sent by registered post as required
bys54(2) and (iii) did not give reasons for the appellant’s
removal.
[33]
Considering Mr Ellis’ involvement as
authorised representative of the appellant throughout her
appointment, the challenge
to the letter being addressed to Mr Ellis
rather than to the appellant, lacks merit. It was clear that all
correspondence between
the appellant and the Master’s office
was sent by Mr Ellis and that he was the person who attended to the
administration
of the estate, rather than the appellant personally.
The fact that the letter was sent to Mr Ellis and not to her is of no
moment.
[34]
Ex facie the removal letter and the facts,
it appears that it was sent by registered post as required by s54(2).
Moreover, Mr Ellis
in his correspondence to the Master dated 16
October 2016, confirmed that the letter was sent by registered post
and that he had
received it on 22 August 2016.
[35]
Upon a proper construction of the removal
letter of 5 September 2016, the appellant’s contention that the
Master did not provide
reasons for the removal, lacks merit. That
letter must not be seen in isolation but in the context of the
correspondence which
preceded it and which accompanied the removal
letter. The Master’s letters confirmed that the correspondence
referred to
was attached. In its letter of 4 August 2016, the Master
indicated that he intended removing the appellant from office because
she “
failed to perform [her]
duties as executor/executrix in a satisfactory manner as required in
the final demand of 7 July 2016 and
11 July 2016 respectively”.
The letter of 11 July 2016 set out in detail the respects in which
the appellant had failed to comply with the Master’s
requirements.
[36]
Fourth;
it was contended that since s54(2)
[4]
provides that the executor
may
apply to court within 30 days for an order restraining the Master
from removing her, it was not peremptory for her to do so. This
challenge lacks merit as the section provides a remedy which the
appellant must enforce if she wished to avoid her removal. The
appellant elected not to launch any such proceedings. Instead she
sought to, belatedly, comply with her obligations and even then
she
did so without attending to the concerns of the second and third
respondents and without ensuring that the estate was refunded
in full
for the monies paid into her and Mr Elliis’ account.
[37]
Finally, while it is important to bear in
mind that the appellant was the chosen executrix in terms of the
Will, it cannot be overlooked
that she has failed in her duties as an
executrix. In the circumstances, her removal was a result of her
failings.
[38]
In
this regard the dictum in
Olivier
[5]
is apposite:
“
It is trite, that there is
freedom of attestation in our law. In terms of the last will and
testament of the deceased, she appointed
the applicant and the second
respondent as the executors of her will. This wish or
desire
should as far as is reasonably possible be
considered.
In Port Elizabeth Assurance Agency
& Trust Co. Ltd v Estate
Richardson
1965 (2) SA 936
(C) Van Winsen
J
at
940 stated:
"
I have no doubt
that
in the exercise
of
its powers to appoint
or
remove an administrator the
Court will
pay close attention
to the
wishes
of the
testator as expressed
in or
implied
from the terms
of
the
will.
The Court cannot,
however,
necessarily
be bound
by
these wishes even to the detriment of the beneficiaries to
whose interest it must
equally clearly have
regard."
[39]
Considering all the relevant facts it would
not be just and equitable to set aside the Master’s decision to
remove the appellant
as executrix. The court a quo’s finding
that “
it would not be in the best
interests of the estate and the beneficiaries of the estate for the
appellant to finalise the estate”
does not constitute a misdirection.
[40]
Lastly, the appellant contended that the
appointment of the second respondent fell to be set aside and that
the court a quo misdirected
itself in finding that the second
respondent’s appointment was not irregular in any respect. The
appellant made out no proper
case on her papers for such relief and
the court a quo correctly found that there was no irregularity in the
appointment of the
second respondent as executor. There was no
misdirection on the facts or the law on this issue.
[41]
The
Master’s decision to remove the appellant as executor stands
until set aside. At the time the second respondent was appointed
as
executor, the removal of the appellant had not been set aside and, in
terms of this judgment, will not be set aside. The evidence
established that the jurisdictional prerequisite for appointing the
second respondent, being where a sole executor ceases for any
reason
to be an executor as envisaged by s18(1)(e) of the Act.
[6]
[42]
For the reasons stated, it cannot be
concluded that the court a quo misdirected itself in dismissing the
application or in concluding
that the appellant should bear the costs
in her personal capacity. It follows that the appeal must fail.
[43]
The normal principle is that costs follow
the result. There is no reason to deviate from this principle. There
is merit in the second
and third respondent’s contention that
the appellant should be directed to pay the costs in her personal
capacity. Counsel
for the Master confirmed that it would not be
seeking a costs order in light of the inconvenience caused by its
failure to deliver
heads of argument. It further did not seek any
costs order for the appearance at the hearing.
[44]
In the result, the following order is
granted:
[1] The appeal is dismissed.
[2] The appellant, in her personal
capacity, is directed to pay the second and third respondents’
costs.
______________________________
EF
DIPPENAAR
JUDGE
OF THE HIGH COURT
GAUTENG
I agree
_____________________________________
LM
MOLOPA-SETHOSA
JUDGE
OF THE HIGH COURT
GAUTENG
I
agree
______________________________
B
VALLY
JUDGE
OF THE HIGH COURT
GAUTENG
APPEARANCES
DATE
OF HEARING
: 19 August 2020
DATE
OF JUDGMENT
: 16 October 2020
APPELLANT’S
COUNSEL
: Adv.GH Meyer
Adv
MD Köhn
APPELLANT’S
ATTORNEY
: AM Ellis Attorneys
Mr
Ellis
1
st
and 2
nd
RESPONDENT’S
COUNSEL
: Adv. Bokako
1
st
and 2
nd
RESPONDENT’S
ATTORNEY
: State Attorney
Ms
M. Mathe
2
nd
and 3
rd
RESPONDENT’S
COUNSEL
: Adv. MTA Costa
2
nd
and 3
rd
RESPONDENT’S
ATTORNEY
: Salant Attorneys
Mr
Salant
[1]
66 of 1965,
as amended
[2]
(2017/4324)[2018]
ZAGPJHC 503 (19 September 2018)
[3]
Coetzee and
Another v De Kock NNO and Others
1976 (1) SA 351
(O) at 359C-H
[4]
Section
54(2) of the Act provides:
Before
removing an executor from his office under subparagraph (i),
(ii)
(iii),
(iv)
or (v) of paragraph (b) of subsection (1), 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
that
date of such
notice
for an order
restraining the Master from removing him from his
office"
[5]
Supra para
41
[6]
Mlunguza
and
Another v The Master of the High Court and Another
(21755/2018)
[2020] ZAWCHC 6
(11 February 2020)
p
aras
57-58 and the authorities cited therein