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[2010] ZAGPPHC 570
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Le Roux v Middleton and Others (46388/09) [2010] ZAGPPHC 570 (25 February 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
DATE:
25 FEBRUARY 2010
CASE
NO: 46388/09
In
the matter between:
PAUL
CALDER LE
ROUX
…………………………………...........................….………..
APPLICANT
And
DEBORAH
MARIE MIDDLETON
…………………….................................……..
1
ST
RESPONDENT
MARIA
MAGDALENA NELL
……….………………............................…………
2
ND
RESPONDENT
THE
MASTER OF THE HIGH
COURT
…………….................................….…….
3
RD
RESPONDENT
JUDGMENT
MSIMEKI,
J
INTRODUCTION
[1]
The Applicant in this application seeks an order in the following
terms:
“
1.
That this application is of a semi-urgent nature and that the Rules
are dispensed with insofar as the Applicant did not comply
with it;
2.
That the executor in the estate of
the late Christopher John Millar be removed from office;
3.
That the Master of the High Court is
requested to appoint another executor in the estate of the late
Christopher John Millar;
4.
That the First Respondent is ordered
to pay the costs of this application;
5.
Further and/or alternative relief.”
BACKGROUND
FACTS
[2]
The application is brought in terms of section 54 of the
Administration of Estates Act, No. 66 of 1965 (“The Act”).
The deceased in the matter is the late C. J. Millar born in South
Africa on 15 August 1961. he is also alleged to have been born
in the
United Kingdom on 8 September 1959. He passed away on 25 November
2007. The dual identity with different birth dates has
not been
disclosed to the Master of the High Court. He executed two wills
under the name of Paul Cantrell and Christopher John
Millar. The
first Respondent, the deceased’s sister who is the executrix in
the estate of the late C. J. Millar ref. no.
1320/08 only lodged one
will with the Master. This was not clarified with the Master and a
declaratory order was not sought by
the first Respondent to clarify
the issue either. The first Respondent is an heir and an executrix in
the estate. The Applicant
contends that the deceased, to conduct
business transactions using the name Paul Cantrell, registered
himself as the sole member
of BLC Holdings and Consultancy CC on 11
September 2002. It is contended that the deceased, while he lived,
was at some stage insolvent.
It is further contended that the
Applicant met the deceased in January 2007 through a company called P
T Shamrock. The two entered
into several oral business ventures based
on trust. As contended, the Applicant would provide finances and
share in the profits
equally with the deceased. The deceased,
according to the Applicant, died a few months later before any
profits were made out of
the ventures. Tradevest 401 CC and Always
Trading CC were registered as trading entities for some of the
ventures. According to
the Applicant, the deceased later gave
instructions that he be registered as the sole member of the two
Close Corporations. On
27 March 2007, without the knowledge of the
Applicant, the deceased registered two more Close Corporation. One of
the ventures
was to buy a property known as Holding 111 Jatinga,
White River Estates, Eastern Section Agricultural Holdings for R1.9
million
in the name of Tradevest 401 CC. It is said that the
Applicant, through loans from two of his overseas companies paid
monies over
into an attorney’s trust account for the benefit of
Tradevest 401 CC. The founding affidavit shows the various payments
allegedly
made by the Applicant as agreed. The Applicant contends
that the deceased used some of the money invested by him for the
projects
to purchase luxury items unrelated to the business ventures
such as motor vehicles and unessential items without the knowledge
and consent of the Applicant. The Applicant, from about March 2007
made various payments to the deceased or his nominated banking
accounts which are dealt with in the founding affidavit and the
Applicant’s heads of argument. The first Respondent, the
Applicant alleges, refused to allow him to peruse the bank statements
of the Close Corporations. The Applicant then lodged his
claims with
Mr Meyer of Phillip Meyer Attorneys, the first Respondent’s
agent. The Applicant, it is said, during May 2009,
served notices on
the executrix, the agents and the Close Corporations which the
Applicant paid money to. The Applicant states
that, despite
sufficient proof and compelling evidence, the executrix through her
agents dismissed the Applicant’s claims
while payment of the
money remains undenied.
THE
DISPUTES
[3]
The Applicant contends that the executrix has failed the estate and
its creditors in that she has not executed her duties in
their best
interest. The first Respondent, according to the Applicant, should be
removed from office. The first Respondent avers
that she has done
nothing wrong to warrant her removal and that any acts or omissions
on her part had been occasioned by the conduct
of her erstwhile agent
and that she cannot take the blame for that. The application,
according to her, consequently, should be
dismissed with costs
alternatively that the matter be referred for oral evidence. The
Applicant, according to the first Respondent,
must prove his claims
which, to date, are not justified.
COMMON
CAUSE FACTS
[4]
The common cause facts are that:
4.1
the first Respondent is the deceased’s sister;
4.2 she was
appointed as executrix in the deceased estate of Christopher John
Millar with the Master’s reference number :
1320/08;
4.3 the death notice
shows that the deceased was born in South Africa on 15 August 1961;
4.4 he was also
allegedly born in the United Kingdom as one Paul Cantrell
(“Cantrell”) on 8 September 1959;
4.5 The dual
identity with different dates was not disclosed to the Master of the
High Court;
4.6 the deceased
executed two wills under the names of Paul Cantrell and Christopher
John Millar;
4.7 only one will
was filed with the Master;
4.8 the deceased was
engaged to the second Respondent ;
4.9
the first Respondent’s agents dismissed or refused the
Applicant’s claims against the deceased and the Close
Corporations
[5]
The first Respondent annexed a Notice of Motion in the form of
annexure “M” seeking an order to strike out evidentiary
matter which she regarded as evidence tendered in an irregular
manner. This, in the main, had been because the Applicant had not
deposed to the founding affidavit and, as it was submitted, had
failed to explain such failure. The evidence, therefore, had been
said to be hearsay or based thereon. The Applicant’s failure to
depose to the founding affidavit, it was submitted on behalf
of the
Applicant, had resulted from the fact that the Applicant, is a very
busy business man who travels all over the world. It
was further
contended that the Applicant, in any event, had authorised Mr William
Petrus Meintjies (“Meintjies”) by
way of a power of
attorney dated 29 February 2008, to run his affairs in South Africa.
Meintjies is an attorney of this court.
Mr
Van der Merwe, on behalf of the first Respondent, submitted that in
the absence of an affidavit from the Applicant which is in
a form of
a founding affidavit or a confirmatory affidavit, the founding
affidavit and the replying affidavit amount to hearsay
evidence.
[6]
Annexure “BM1” to the Applicant’s replying
affidavit is a confirmatory affidavit of Paul Calder Le Roux, the
Applicant. On 14 August 2008 the Applicant, deposed to an affidavit
in terms of section 32 (1) (a) of Act 66 of 1965. Annexure
“A”
to the founding affidavit is the Power of Attorney in which the
Applicant nominates, constitutes and appoints Meintjies
to be his
lawful Attorney and agent in his name, place and stead to represent
him using his discretion - “managing my affairs
and conducting
my business in the Republic of South Africa and in every territory or
country anywhere in the world”. The
powers in the Power of
Attorney include the power in clause 9 which provides:
“
9.
Litigation on my behalf
On my behalf to
institute, conduct and conclude, defend or abandon, legal proceedings
that are in his discretion reasonably necessary
to preserve my
interests in any court or before any body or persons in the Republic
of South Africa and elsewhere in the world,
and to suffer judgment or
order of court to be given against me in any of (sic) legal
proceedings by default.”
Clause
11 provides:
“
11.
Interest in estates
To attend
meetings of persons interest in any estate, testate and intestate
with which I may be concerned as next of kin, heir,
legatee, creditor
or otherwise, to vote for the appointment of an executor or executors
dative to do whatever may be required to
prove my claims, and to act
for me in all maters pertaining to such estate.”
The
Power of Attorney was signed at Johannesburg on 29 February 2008.
[7]
Mr Van der Merwe submitted that if the confirmatory affidavit “BM1”
confirms the founding affidavit, then the replying
affidavit is not
confirmed and should therefore, be ignored.
In
Leith, N. O. and Heath, N. O. v Fraser
1952 (2) SA 33
(O) at 36 B
the court
said:
“
A
Notice of Motion could in a proper case be supported by an affidavit
by one not a party to it, if he were in a position to provide
the
necessary material to support the claim.”
Any
person who can lawfully be a witness can execute an affidavit. (See
Chaimowitz v Chaimowitz (1)
1960 (4) SA
818
(C).
) The case clearly shows that a
court in motion proceedings may permit hearsay evidence where in fact
the source from which such
information is obtained is given. Evidence
of this nature is allowed merely because the matter is urgent and the
evidence may not
be obtainable at first hand in the ordinary way and
a party may in the meantime suffer irremediable harm if he or she may
not use
the available evidence. The source of the information is
given so that the evidence can be tested.
[8]
It is important to note that:
8.1
the Applicant has
locus standi;
8.2
the court has jurisdiction;
8.3 the affidavit
makes
prima facie
case for the relief claimed;
8.4
the affidavit discloses allegations upon which Applicant relies.
[9]
Mr Van der Berg submitted that the question of urgency was interwoven
with the merits of the case. Mr Van der Merwe did not
think that
there was a case where the two were entirely separated. They both
argued the merits and the urgency.
[10]
The matter involves the deceased Christopher John Millar (“Millar”).
The deceased, in South Africa, was born in
Pretoria on 15 August
1961. The same person was born in the United Kingdom on 8 September
1959 where he was known as Paul Cantrell
(“Cantrell”).
His British passport number is 704223792, while his South African
Identity number is 6108055062082. He
died on 25 November 2007. The
deceased’s sister D. M. Middleton, was appointed as executrix
in the estate of the late Millar.
The Master’s reference number
1320/08 was allocated. One asks, oneself why the deceased had to do
something like this. What
was the need for it if there was nothing
wrong and sinister. One further asks oneself if the reason for such
conduct was not known
to the sister, the first Respondent. One surely
would have expected the first Respondent to have been better informed
on the aspect.
This appears nowhere from the evidence of the sister.
It is doubtful, in my view, if the deceased could have done this
without
a valid reason. The deceased himself, in paragraph 2 of both
wills which he executed in the names of Millar and Cantrell declares
that the two people are one and the same person and that that
‘relates to a personal issue’ which he does not disclose.
[11]
It is noteworthy that the two wills, with the exception of the names,
the identity number and the passport number, are identical.
The fact
that the deceased was known as Millar and Cantrell can never be
bringing joy to anyone. Why would he, as the same person,
be born
twice. Why was this aspect not taken up with the Master of the High
Court? Why was only one will registered with the Master
and not both
wills? Why did the deceased have to have the two wills drawn in the
manner they were drawn. Why would the executrix
want to administer
the estate of Cantrell without the necessary appointment and the
Master’s reference number?(the necessary
authority). Why would
the executrix want to administer the estates of Millar and Cantrell
which have assets which are in the names
of two different people
without clarity and authority first having been sought and found from
the Master or the court? There are
certain of the assets which are
registered in the names other than the names of Millar and Cantrell.
Shouldn’t the Master
have been properly involved and notified
about this? There are bank accounts which are in the names of the
Close Corporations where
Cantrell appears to be the sole member.
There are also properties which are owned by the Close Corporations
where Cantrell appear
to be the sole member. Was the Master not
supposed to have been informed about this? There are motor vehicles
which have been registered
in the names of Cantrell while other motor
vehicles have been registered in the names of other people. It is
clear in my view,
that the Master should have known about this from
the very word go.
[12]
It may well be so that the papers may not be naming and disclosing
the business ventures alleged to have been entered into
by the
Applicant and the deceased but one thing which is clear is that the
Applicant’s affidavit refers to them. Choene Ephraim
Modisha’s
supporting affidavit marked annexure “H” on page 69 to
the founding affidavit deals with the US Dollars
in the region of
761.000.00 which the Applicant had to declare at OR Tambo
International Airport, Johannesburg on 16 May 2007.
The Applicant
deals with the money in his affidavit in terms of Section 32 (1) (a)
of Act 66 of 1965. This money which he states
he handed to the
deceased personally was to be invested in the development known as
Plot III, Jatinga White River (Gypsies Project).
This money, he
states, was misused on unrelated items such as motor vehicles and
extravagant expenses by the deceased who, according
to him, passed
away during November 2007 prior to their meeting. This, according to
the affidavit, resulted in his attorney getting
instructions, to
lodge the necessary claims in December 2007. The Applicant further
states that he furnished the attorney with
details and particulars of
the transactions which were submitted to the executrix.
[13]
It was submitted on behalf of the Applicant (and confirmed by
the Applicant in the affidavit of 14 August 2008) that
monies were
paid or transferred into the deceased’s nominated accounts on
numerous occasions between February and November
2007. The first
Respondent admits in her answering affidavit that the amounts that
the Applicant refers to in his founding affidavit
in particular in
paragraphs 13.1 and 13.2 appear to have reached the accounts as set
out in the paragraphs.
[14]
Instead of answering or dealing with questions raised in paragraph 11
above, the executrix blames her first agent Mr P. Meyer
(“Meyer”)
of Philip Meyer Attorneys. This is clearly born out by what the first
Respondent says in
inter alia
, paragraphs 68, 69, 71 and 72 of
her answering affidavit.
In
paragraph 69 the first Respondent says:
“
I
have given no instructions to Mr Meyer to disregard the legal
requirements in respect of the administration of the estate and
it is
for the reason of him making mistakes that I appointed new agents.”
In
paragraph 71 she states:
“
I
trusted him in the administration of the Estate on my behalf as he is
a legal expert or gave himself out to be a legal expert
in so far as
estates are concerned.”
Further,
in the same paragraph, she states:
“
I
have entrusted the administration of the Estate to Mr Meyer and it
seems that he failed to perform his duties through no wilfulness
or
negligence on my part and it was never my intention to administer the
Estate in contravention of any legal requirements.”
In
paragraph 58 the first Respondent admits ‘
that
three vehicles belong to the Close Corporations as set out in
annexure “M14” annexed hereto.’ “I have
already given instruction that the other will be filed, in so far as
it is necessary, which is denied. The execution of my duties
was left
in the hands of my agent, Mr Meyer who did not perform
satisfactorily. I apologise to this Honourable Court if mistakes
were
made, but it was not due to my own doing.”
In
paragraph 77 she states:
“
Any
acts or omissions was (sic) brought about by the conduct of my
erstwhile agent, for which I cannot take the blame.”
In
paragraph 68 she states:
“
I
will see to it that the mistakes made by Mr P. Meyer, be rectified.”
The
first Respondent’s view loses sight of the fact that she, in
terms of section 52 of Act no. 66 of 1965, is personally
responsible
for performing all the functions of an executrix once she has
accepted trust and letters of executorship issued to
her. The agent
that she appoints does not relieve her of her responsibility. She
remains responsible for such agent’s acts.
(See
Bramwell
and Lazar NNO v Laub 1978 (1
) SA 380
(W). The first Respondent ratified the acts of Mr Meyer in her Power
of Attorney. She, therefore, cannot be exonerated
from her
wrongdoings and mistakes which occurred with her approval. Despite
the mistakes that Meyer, according to her, made he
was paid
R88.883.22 during January 2009.
[15]
Mr Van den Berg, in his submissions, correctly stated that the
application is for the removal of the executrix from office
and for
no other purpose. The reasons for such removal, according to him,
are,
inter alia,
that:
15.1
The two wills referred to above mentioned
assets in the names of the deceased, Cantrell, Close Corporation
Tradevest 401 CC, Always
Trading 110 CC, Future Perfect Invest CC and
BLC Holdings and Consultants CC. The inventory lists all these
assets under
the estate of the late C J. Millar with reference number
1320/08;
15.2
The first Respondent does not explain why
both wills were not lodged with the Master or why the court was not
approached for a declaratory
order or an appropriate relief in the
circumstances of the case. She appears to want to lean heavily on
paragraph 2 on page 1 of
the will to explain that away. This, in my
view, is of no assistance to her. She did not even deem it necessary
to register the
will of Cantrell.;
15.3
She fails to inform the Master that the
estate of Millar is part of a dual identity – there is Millar
and Cantrell with different
dates of birth and identity numbers. She
administers the estate of Cantrell without proper direction from the
Master of the High
Court. The death of Cantrell is not disclosed to
his potential creditors in the section 29 estate advertisement. This
does not
curb the potential creditors’ potential prejudice. The
Master is not shown Cantrell’s will to alert him to the nature
of the estate that has to be administered;
15.4
Meyer, once the Applicant’s claim was
lodged, held the view that as soon as the claim was admitted, the
estate would be insolvent.
This, in my view, should have affected and
worried the first Respondent who, against the backdrop of the
insolvency referred to
by Meyer, merely proceeds to settle claims
without ensuring that there is, indeed, security in the event that
the estate is, indeed,
insolvent;
15.5
The Section 32 (1) (a) affidavit in terms
of Act 66 of 1965 was filed with Meyer who requested the Master to
authorise the enquiry
in terms of Section 32 (1) (b). Such authority
was obtained. This enquiry was never held despite, (as submitted on
behalf of the
Applicant) the availability of other witnesses who
could have been called. Meyer, in his letter of 25 November 2007,
notified the
Applicant that he had resigned as agent. The first
letter from the new agents dated 2 December 2008 notified the
Applicant that
his claim had been rejected. The Applicant filed a
late claim for an amount of 55,612 US$ deposited by him into a Hong
Kong bank
account in the name of the deceased. The first Respondent,
according to the Applicant, has, to date not indicated if the claim
has been admitted or rejected;
15.6
The first Respondent distances herself from
her legal responsibility of properly administering the estate without
favour or prejudice
and ultimately shifts the blame to Meyer as
demonstrated above;
15.7
The first Respondent admits payments or
transfers in paragraphs 27, 48 and 53 of her opposing papers. This
according to Mr Van der
Berg, is a clear indication that the first
Respondent has all along been privy to the source of information
although she persistently
denies the source. This, according to him,
is an attempt by her to cloud the real issues resulting in the
clouding of her objectivity
to the point where serious questions are
raised. One of the questions, according to him, is whether the first
Respondent, acting
through the new agents, is a fit and proper person
to remain in office
nomine officio.
There seems to be merit in the
submission. Mr Van der Berg, accordingly, holds the view that an
objective executor is needed.
15.8
According to Mr Van den Berg the first
Respondent deliberately attempted to mislead the court with the
deliberate omissions regarding
payments made personally by the
Applicant. He attributes this to either the first Respondents
ignorance in not being fully versed
with the facts of the application
or to her disinterestedness in determining the veracity of the
Applicant’s claims. She
says that if payments were made they
were probably made for services rendered. She, according to him,
fails to provide proof and
invoices to bolster her assumption. This,
according to him, demonstrates that she is biased and impartial and
that she has decided
not to accept the claims.
[16]
The first Respondent openly stated in paragraph 73 of her answering
affidavit that:
“
I
state that there is hostility between the Applicant and myself as
Executor ...”
Hartzenberg
J in
Gory v Kolver NO and Others
[2006] ZAGPHC 28
;
2006
(5) SA 145
at 158 A – C paragraph 27
said:
“
The
Applicant has the perception that the first respondent does not want
to administer the estate to achieve his best interests.
As must be
clear, he has reason to think so. If the applicant were the heir from
the outset, he would have nominated an executor.
Section 54
of the
Administration of Estates Act deals
with circumstances under which an
executor may be removed from office. In terms of
s 2
(b) (i) the
Master may remove an executor who has been nominated by will after
the will has been declared void. The first respondent
was not
nominated by will but he was nominated by intestate heirs who were
not heirs. In my view, that is one factor pointing to
his removal.
Because of the way in which he treated the applicant, I am of the
view that it is desirable that he be removed in
terms of
s 54
(1) (a)
(v)”.
In
Grobbelaar v Grobbelaar
1959 (4) SA 719
(A) at 719 G
the court
said:
“
Where
application is made for the removal of an executor from office on the
ground that he has made a claim against the estate which
is disputed
by the heirs it is not necessary to go into the validity of the
claim, as the question who is right and who is wrong
is irrelevant.
The executor finds himself in the impossible position of the one hand
having to fight for his claim as a creditor
of the estate and on the
other hand having as executor to defend the estate against the same
claim. In this position he is obliged
to take sides. He cannot remain
impartial and must be removed from office.”
[17]
The Master of the High Court elected to abide by the decision of the
court.
The
second Respondent, too, decided not to oppose the application. She
also elected to abide by the decision of the court.
[18]
The parties addressed the court on the merits and urgency. Having
regard to the fact that the issues have been sufficiently
ventilated,
I do not think that it will be prudent to separate the issues and
deal with them as though I do not have the full facts.
I, also, am of
the view that regard being had to what I have dealt with above the
need to strike out any portion of the Applicant’s
allegations
in any section of the affidavits should not arise.
[19]
Mr Van der Berg submitted that the first Respondent had registered
estate assets in her personal name. This, the first Respondent
does
not deny. She, instead, says in paragraph 72 of her answering
affidavit: “
I undertake not to
encumber or alienate any asset which forms part of the deceased
estate and which is registered in my personal
name pending the
approval of the liquidation and distribution account”.
This begs the question: why was it done in the first place if it was
done? This, in my view, supports, Mr Van der Berg’s
submission
that the first Respondent finds herself as heir and executrix and
that it has been demonstrated that she finds herself
in an impossible
position where she, indeed, has to fight for her claim while at the
same time defending the estate against the
same claim. The first
Respondent, according to him, is bound to be bias, partial and
subjective. There is merit in the submission.
The facts of the matter
clearly demonstrate this.
[20]
The facts of the case clearly evince that an objective and an
impartial executor is needed. The sooner this happens, the better
for
the estate, its heirs and its creditors. The Applicant, in my view,
has successfully demonstrated why a new executor should
be a must.
The application to strike out, in my view, should fail and the
Applicants application to remove the executrix from office
ought to
succeed with costs.
[21]
In the result the order I make is as follows:
1. The application
to strike out is dismissed with costs.
2. An order in terms
of prayers 2, 3 and 4 of the Notice of Motion dated 29 July 2009 is
granted.
M.W.MSIMEKI
JUDGE OF THE HIGH
COURT
Heard
on: 16 September 2009
For
the Application: Adv. J. G. Van den Berg
Instructed
by: Ngobe Nkosi Attorneys
For
the 1
st
Respondent: Adv. M.P. van der Merwe
Instructed
by: Du Toit Smuts & Mathews Phosa