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[2023] ZAECQBHC 49
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Harker and Another v MGM Family Trust (Number: TM50521/1) and Others (2994/2022) [2023] ZAECQBHC 49 (5 September 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION – GQEBERHA)
CASE
NO.: 2994/2022
Matter
heard on: 3 August 2023
Judgment
delivered on: 5 September 2023
REPORTABLE: NO
OF
INTEREST TO OTHER JUDGES:YES
REVISED
In
the matter between: -
JOSEPH
ROSS HARKER
Applicant
In
his capacity as Executor in the Estate of the Late
Gladys
Ruth O’ Connor Estate Number 570[…]
and
Executor
in the Estate of the Late Connell Stuart
O’
Connor Estate Number 968[…]
(Appointed
as Executor by Letters of Authority
of
the Master dd 02/12/2021)
and
MGM
FAMILY TRUST (NUMBER: TM50521/1)
Respondent
Represented
by Mr Phillip Christopher du Preez
and/or
PHILLIP
CHRISTOPHER DU PREEZ
and
ALTERNATIVE
MR
CHRISTOPHER GRANT DU PREEZ
DEFENDANTS
JUDGMENT
ELLIS AJ:
[1]
The executor in a deceased estate occupies a fiduciary position and
must therefore not engage
in a transaction by which he will
personally acquire an interest adverse to his duty.
[1]
[2]
On 4 July 2023 I issued an order that Mr Joseph Ross Harker is to
deliver an affidavit setting
out why an order should not issue that
he be liable for the payment of the costs of the application, which
was the subject of my
earlier judgment handed down, on the scale as
between attorney and client,
de bonis propriis
. This
judgment deals with the argument on costs of 3 August 2023, where Mr
Harker appeared personally.
[3]
Mr Harker is the duly appointed executor in the deceased estate of
late Gladys Ruth O’ Connor
and Cornell Steward O’ Connor
(the applicant) and he is also acting as the attorney of record on
behalf of the applicant.
[4]
It is unnecessary to traverse the facts of the application which gave
rise to the order dismissing
the application with attorney and client
costs, suffice to state that the applicant pursued inappropriate and
untenable relief
in circumstances where the Uniform Rules clearly
provide for the correct procedure.
[5]
The affidavit filed by Mr Harker was of no assistance to determine
whether he acted in appreciation
of his fiduciary duty and with due
regard to the interest of the estate or whether he was incorrectly
advised in pursuing the application.
Instead, the affidavit
sought to rehash the merits of the application with one exculpatory
explanation proffered: that
due to a typographical error
the application was heard as one in terms of Rule 30 instead of Rule
28 read with Rule 30. I
find this explanation to be
irreconcilable with the founding affidavit in the Rule 30 application
but in any event it matters not
as I had already decided the merits
of the application. Mr Harker’s affidavit ought to have
focused on the reasons
why he should not pay the costs
de bonis
propriis
. This was his obligation as executor, but moreso
as an officer of this Court, which he has a duty to assist in
arriving at
a just decision.
[6]
Making an order for costs
de bonis propriis
is somewhat
unusual but such orders are not of recent origin in our law.
The general rule was already formulated in
In re Potgieter’s
Estate
1908 TS 982
, to the effect that a personal order for
costs against a litigant occupying a fiduciary position is justified
where his conduct
in connection with the litigation in question has
been
mala fide
, negligent or unreasonable.
[7]
I considered the following cases helpful.
SA
Liquor Traders Association v Gauteng Liquor Board
[2]
where a cost order
de
bonis propriis
followed as a result of the negligence of the attorney who filed
correspondence with the Constitutional Court without first reading
it.
[8]
In
Cooper
N.O. v First National Bank of SA Limited
[3]
the court held that a trustee cannot be ordered to pay
bonis
propriis
costs unless he is guilty of improper conduct. The trustee’s
conduct was found to be unacceptable, and although improper
conduct
is always unacceptable, unacceptable conduct is not necessarily
improper. His conduct was found to be ill-considered,
as the
application lacked detail without full disclosure being made but it
was found not to be improper. There was no conscious
attempt to
mislead the court and it was found that
de
bonis propriis
costs
were thus not justified.
[9]
As against a member of a municipal council, the matter of
Swartbooi
and Others v Brink and Others
[4]
the Constitutional Court held that in terms of the common law rules
and generally speaking, an order for costs
de
bonis propriis
against a person acting in a representative capacity is rendered
appropriate if their actions are motivated by malice or amounted
to
improper conduct.
[10]
In
Darries
v Sheriff Magistrate’s Court Wynberg and Another
[5]
there was a flagrant disregard for the court rules which the court
found cannot be countenanced, and gross neglect of his duties
by the
attorney, which warranted an order for costs
de
bonis propriis
against
him.
[11]
In the matter of
Napier
v Tsaperas
[6]
where the attorney accepted full responsibility for the failure to
apply for condonation and a failure to file a record, he was
found
guilty of “
nalatige
en gebrekkige optrede
”
and the court therefore found justification for an award of costs
de
bonis propriis
.
[12]
The matter of
Machumela
v Santam Insurance Co Limited
[7]
where the attorney should have sought consent before launching an
application for condonation and the costs of the application
were
found to be unnecessarily incurred and without heeding established
principles. Costs
de
bonis propriis
was
granted against the attorney.
[13]
Lastly, the matter of
Immelman
v Laubscher and Another
[8]
wherein there were defects in the application and many mistakes.
The court was unable to establish which attorney exactly
was to blame
but stated that if they were able to do so, it would have been
appropriate circumstances to grant such an order.
[14]
With regard being had to the cases cited above, it is apparent that
orders for costs
de bonis propriis
are not made lightly and
only after the judicial exercise of a discretion. The matters
referred to above have the following
in common: improper
conduct; a lack of
bona fides
or unreasonable behaviour by a
litigant.
[15] An
executor must act reasonable, meaning his conduct in connection with
the litigation must be reasonable
and with due regard to the
resources in the estate. An attorney must act diligently, with
due regard to the court rules and
established principles, and never
in a manner which can be considered to be improper.
[16] In
this current matter not only is Mr Harker as the executor the
litigant in a fiduciary position, but he
is also giving instructions
in that capacity to himself as the attorney of record. The
affidavit filed by Mr Harker does
not clarify which hat he wore when
embarking on this application, which application I have already found
to be convoluted and without
reasonable prospects of success.
The costs of the application were therefore unnecessarily incurred
and without heeding established
principles.
[17] A
further aspect bears mentioning. The answering affidavit filed by the
respondent in terms of my order of
4 July 2023 raised an issue that
no record can be found of a Fidelity Fund Certificate currently
issued to Mr Harker entitling
him to practice. Further
enquiries by the legal practitioners established that a court order
dated 26 July 2016 by the then
Law Society of the Cape of Good Hope
as applicant was obtained against Mr Joseph Ross Harker as first
respondent, being an interdict
preventing Mr Harker from practising
pending the obtaining a Fidelity Fund Certificate. Mr Jooste,
at the hearing of the
matter, requested me to direct that whatever
order flows from this current judgment must be brought to the
attention of the disciplinary
committee of the Legal Practice Council
as well as for the Master of the High Court to investigate whether
the appointment and
conduct of Mr Harker should be the subject
of ethical scrutiny in the circumstances. At the hearing of the
matter Mr
Harker acknowledged that he is currently in trouble with
the Legal Practice Council and accepted that he must bear the
consequences
flowing therefrom.
[18]
Without an explanation by Mr Harker as to how he considered the
interest of the estate before embarking on
unmeritorious litigation,
obviously not in the best interest of the estate the administration
of which was entrusted to him and
considering his own concession that
he is in trouble with the Legal Practice Council, I am of the view
that his conduct amounts
to improper conduct.
[19] In
the circumstances, there are no compelling reasons advanced as to why
Mr Harker should not be liable for
the costs
de bonis propriis
.
I am further of the view that his improper conduct ought to be
brought to the attention of the Legal Practice Council as well
the
Master of the High Court.
In the result the
following order will issue:
1.
The cost order made in terms of my
judgment of 4 July 2023 shall be paid by Mr Joseph Ross Harker in his
personal capacity.
2.
The Registrar is directed to bring
this judgment to the attention of the Legal Practice Council as well
as the Master of the High
Court by furnishing them with a copy
thereof. The Registrar shall confirm his compliance with this
order by advising the
parties in writing of such compliance and
placing written confirmation of his compliance in the court file.
L ELLIS
ACTING JUDGE OF THE
HIGH COURT
Appearances:
For
the Applicant:
Mr
Joseph Ross Harker in person
Counsel
for the Respondent:
Adv.
Jooste
Instructed
by: Pagdens Attorneys
18
Castle Hill
Central
Port
Elizabeth
(Ref.:
M Kemp/me)
[1]
Horns Executor v The Master
1919 CPD 48
; and Die Meester v Meyer
1975 (2) SA pg 1 (T).
[2]
2009 (1) SA 565
CC at 582 E – G.
[3]
2001 (3) SA 705
SCA at 717 D – F.
[4]
2006 (1) SA 203
CC at 207.
[5]
1998 (3) SA 34
SCA at 44.
[6]
1995 (2) SA 665
AD.
[7]
1977 (1) SA 660
(A) at 664 B – C.
[8]
1974 (3) SA 816
AD.