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[2023] ZAECMKHC 86
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Van Der Merwe and Others v Nel N.O and Others - Urgency (2483/2023) [2023] ZAECMKHC 86 (11 August 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Case No: 2483/2023
In
the matter between:
WERNER
VAN DER MERWE
FIRST
APPLICANT
ELEANOR
VAN DER MERWE
SECOND
APPLICANT
DOROTHEA
ANNA VAN DER MERWE
THIRD
APPLICANT
JACO
VAN DER MERWE
FOURTH
APPLICANT
ANDREA
GREYLING
FIFTH
APPLICANT
and
ILZE
DALENE NEL N.O.
FIRST
Respondent
MAGDA
CHRISTINE PELSER
SECOND
RESPONDENT
ANITA
JACOLINE GREEFF
THIRD
RESPONDENT
VIVIAN
STEPHEN VAN DER MERWE
FOURTH
RESPONDENT
THE
MASTER OF the HIGH COURT,
MAKHANDA
FIFTH
RESPONDENT
ANDRIES
KEUN
SIXTH
RESPONDENT
THE
REGISTRAR OF DEEDS,
KIMBERLEY
SEVENTH
RESPONDENT
JUDGMENT ON URGENCY
Rugunanan J
[1]
This matter, the papers of which run to some 650
pages including annexures (mostly unnecessarily duplicated), came
before me for
urgent hearing on 4 August 2023.
The relief claimed and
the procedural context for the determination of the matter
[2]
In Part A of the notice of motion, applicants
claim against the respondents and/or their legal advisors is that
they be ‘interdicted
and restrained’ from taking further
steps to advance the transfer of farms Winterhoek and Leeuwkop (or
Leuwe Kop) pending
compliance with predetermined steps for marketing
the properties and pending finalisation of further relief in Part B
of the notice
of motion.
[3]
The properties were owned by the late Vivian
Stephanie Van Der Merwe whose estate lies under the jurisdiction of
the fifth respondent
(the Master) and its assets vested in the first
respondent as testamentary executrix authorised by letters of
executorship issued
in accordance with the Administration of Deceased
Estates Act 66 of 1965 (the Act).
[4]
Following negotiations between the first and sixth
respondents, offers of R10,7 million and R9,3 million respectively
for purchasing
Winterhoek and Leeuwkop were put forward. The
negotiations culminated in sale agreements concluded with the sixth
respondent during
August 2019, the offers being market related at the
time. During May 2023 an increased offer of R13 million for
Winterhoek resulted
in the conclusion of a revised sale agreement
with the sixth respondent on approval by the estate heirs (second,
third and fourth
respondents).
[5]
Sixth respondent’s combined interest in the
properties amounts to some R23 million.
[6]
Directed at the Master, and posited on section 95
of the Act, is the relief in Part B which seeks to review and set
aside:
6.1 ‘[T]he
fifth respondent’s decision to reject the applicants’
objection to the sale of the Winterhoek
farms, which decision was
conveyed to the applicants’ attorney on the 30
th
of
June 2023… ; and
6.2 [T]he
fifth respondent’s decision to endorse the power of attorney
for the sale of the farm Leeuwkop…’
[7]
In summary, the advancement of the property
transfers is sought to be interdicted in Part A pending the review in
Part B.
In excursus
[8]
Applicant’s contemplations on review are
incoherent.
[9]
In the notice of motion the review contemplated in
Part B is brought in terms of the procedural prescripts in uniform
rule 53. The
deponent to the founding affidavit avers that:
‘
Applicants
have a right to administrative action that is procedurally fair in
accordance with section 33 of the Constitution’.
[10]
Elsewhere it is stated that:
‘
Applicants
have not had the advantage of section 3 or section 5 of the Promotion
of Administrative Justice Act’
(the
PAJA)
[1]
[11]
Applicants’ papers do not offer clarity on
whether the general normative grounds in section 33 are resorted to
or whether
they seek reliance on the PAJA.
[12]
The PAJA is regarded as the primary or default
pathway to review.
[13]
Its legitimacy stems from the mandate in section
33(3) of the Constitution.
[14]
Direct
constitutional review under section 33 itself is available only
infrequently. Considering that the PAJA provides the most
immediate
justification for judicial review and that specific grounds are
concretised in section 6, PAJA must be applied or resorted
to in
legal disputes before the general norm is invoked.
[2]
A further excursus
[15]
Applicants previously instituted urgent
proceedings in this Court against the first respondent on 3 March
2023 under Case No. 663/2023
(the March 2023 application).
[16]
The relief sought in effect being a duplication of
Part A herein without claiming review relief against the Master.
[17]
The matter served before Laing J.
[18]
Holding that there was insufficient urgency for
its enrolment on a day not normally reserved for the hearing of
motion court matters
the learned judge, on 22 March 2023, ordered the
matter be removed from the roll with the applicants to pay costs.
[19]
Applicants are incorrect in their contention that
the matter was struck off the roll.
[20]
To date, it is common cause that applicants have
taken no further steps towards finality – the matter has not
been withdrawn
and remains extant.
[21]
Indubitably, a significant portion of the relief
now sought in Part A is already before this Court in the preceding
matter.
Urgency
[22]
Adverting to Part A of the notice of motion, the
urgent relief pleaded is ‘to interdict the progression of the
transfers pending
the review of the decision (sic) of the fifth
respondent prior to finalisation of the liquidation and distribution
account in the
deceased’s estate.
[23]
An element underscoring urgency, applicants argue,
is the potentially significant increase to a probable R32,9 million
representing
the current combined market value of the properties
factoring construction of wind energy pylons and allocation of energy
contracts.
[24]
Applicants assert that the sale of the properties
to the sixth respondent was undervalued and affects their benefit
arising from
a settlement agreement concluded during November 2022
between themselves and the estate heirs. In terms of the settlement
applicants
would receive from the deceased’s nominated heirs
25% of the nett proceeds of the estate less R2,3 million.
[25]
While applicants themselves are not testamentary
heirs, they maintain that they cannot wait until the estate has been
finalised
for the reason that the estate should not be quantified on
the basis of historically outdated offers out of kilter with 2023
values
that visualise the prospect of gain for everyone (except of
course for the sixth respondent).
[26]
Avoiding prolixity, much of the background to the
above is sketched in the founding papers and dealt with in the
judgment by Laing
J.
[27]
At the commencement of the proceedings it was
considered convenient to direct counsel to turn to the question of
urgency as a preliminary
issue and deal with same before anything
else.
[28]
After hearing argument I made the following order:
28.1 The matter is struck
off the roll.
28.2 The first and second
applicants, jointly and severally, the one paying the other to be
absolved, shall pay the costs of the
first and sixth respondents on a
scale as between attorney and client.
[29]
This judgment constitutes the reasons for my
order.
Principles
[30]
Pertinent
to questions of urgency, it is trite that a party is not entitled to
rely on urgency that is self-created when seeking
a deviation from
the rules of court. The rationale is that the more immediate the
reaction by the litigant to remedy the situation
by way of
instituting proceedings the better it is for establishing urgency.
[3]
[31]
The consideration of urgency requires a court to
be placed in a position where it must appreciate that if it does not
grant immediate
relief, something unlawful is likely to happen at a
particular point in time.
[32]
Urgency
is diminished where the litigant takes longer to act from the date of
the event giving rise to the proceedings. In short,
a party seeking
relief must come to court immediately or risk failing on urgency. The
latitude extended to dispense with the rules
of court in
circumstances of urgency is not available to a party who is dilatory
to the point where its very own inactivity is
the cause of the harm
on which it relies to seek relief.
[4]
[33]
Unreservedly, I agree with these principles, and
applying them to the facts of this matter, I have little hesitation
in concluding
that the present application is a prime example of
self-created urgency.
Timeline
[34]
On 4 November 2019 in the course of first
respondent’s administration two things happened: (a) the
Master, acting in accordance
with section 42 of the Act endorsed the
sale of Leeuwkop; and (b) in respect of Winterhoek, he directed her
to lodge further documentary
information.
[35]
Dissatisfied with the course of matters in the
estate, applicants launched action proceedings to challenge the
deceased’s
Will. For the present, the merits of that challenge
are irrelevant save to state that it was alleged that the deceased
was unduly
influenced when she executed her Will in May 2015.
[36]
The proceedings were instituted on or about 18
November 2019 and eventually culminated in the settlement of November
2022.
[37]
In the course of the proceedings first respondent
was requested to disclose for inspection her files relating to the
administration
of the deceased’s estate. She did so on 13 May
2021 in electronic format whereafter the files were dispatched to
applicants’
attorneys for physical examination.
[38]
Indications are that the further documentation
requested by the Master on 4 November 2019 in respect of Winterhoek
had yet not been
forthcoming and on 16 May 2023 a letter by the
Master to applicants stated
inter alia
:
‘
I
confirm that no endorsement in terms of section 42(2) of the
Administration of Estates Act authorising transfer of Winterhoek
Farm
has been granted by my office due to certain outstanding
requirements. My office will not grant such pending finalisation
of
Case No 663/2023.’
[39]
During June 2023 the first respondent and the
estate heirs made representations to the Master for the sale of
Winterhoek.
[40]
Applicants were afforded opportunity and objected.
[41]
The Master communicated his decision to all
concerned. His letter of 30 June 2023 states:
‘
[A]fter
having considered all the reasons, representations, relevant
documents and information submitted to me, your clients objection
to
the sale of Winterhoek Farm has been rejected due to the following
reasons:
1.
The Will directs that all fixed properties be
sold.
2.
The heirs mentioned in clause 4 of the Will have
all consented.
3.
It is recognised that the settlement agreement…
awards your clients 25% of the proceeds of the deceased estate.
4.
However such does not vary the Will or make your
clients heirs which will give them the right to consent or object.
Should any party feel
aggrieved by my decision, I wish to refer you to the provisions of
section 95 of the Administration of Estates
Act … You must
take any steps you deem necessary in terms of this section.’
[42]
On 7 July 2023 applicants requested the Master to:
‘
[K]indly
confirm that you are honouring your undertaking that consent to
transfer will not be given pending finalisation of Case
No 663/2023’.
[43]
In response the Master, on 12 July 2023, informed
applicants that:
‘
[I]t
will be unreasonable for my office to wait for the enrolment of the
matter which we don’t know when will that take place.
As stated
in my letter of the 30
th
of June 2023 your client has the
right to bring a fresh application and take my decision on review’.
[44]
On account of the undertaking given by the Master,
applicants’ counsel urged in his certificate that no urgency
existed in
launching the review until 12 July 2023 when the Master
withdrew his undertaking.
[45]
Emerging from the sketched events is a distinctive
timeline for each of the properties.
Leeuwkop
[46]
Applicants
do not deny that the first respondent’s files were made
available as aforementioned. Maintaining that the files
were gone
through with a view of finding matters and communications relevant to
prove undue influence, applicants explain that:
‘
[T]he
relevance of the endorsed deed of sale in respect of Leeuwkop, nor
the yet to be endorsed deed of sale in respect of Winterhoek,
were
not appreciated at the time’.
[47]
In argument sixth respondent correctly contended
that the explanation ‘does not wash’.
[48]
So too does applicants’ contention that
urgency was triggered on 12 July 2023 by the Master’s
withdrawal of his undertaking.
[49]
The conclusion that the PAJA is applicable throws
the spotlight on section 7(1).
[50]
The
section provides that any proceedings for judicial review under PAJA
must be instituted ‘without unreasonable delay’
and not
later than 180 days after the date upon which a party became aware of
the administrative action or might reasonably have
been expected to
have become aware of such action.
[5]
[51]
As
regards the 180 day period, of importance is that the proverbial
clock does not start ticking once a party seeking the review
engenders an appreciation of the administrative action or becomes
aware of the fact that it is tainted by irregularity. To the
contrary, the clock starts to run with reference to the date on which
the affected person became aware of the action and/or the
reasons for
it or the date on which he might reasonably have been expected to
have become aware of the action and reasons.
[6]
[52]
Section
9 of PAJA renders it competent to condone non-compliance with section
7 by providing that a court may extend the 180 day
[7]
period where the interests of justice so require.
[53]
Prior
to the lapse of the 180 days it would in essence be for a respondent
to raise and convince a court that the delay was unreasonable.
Any
delay subsequent to the 180 day period, will be regarded as
unreasonable per se and an applicant would have to seek an extension
of the period (essentially similar to condonation) in accordance with
section 9 of PAJA which will only be granted should a court
be of the
view that it is in the interests of justice.
[8]
[54]
The obvious characteristic of applicants’
conduct (or perhaps their legal representatives – as it may
seem), is inertia.
Nothing in the papers before me indicates that
section 9 was resorted to or that section 5 had been invoked.
[55]
The point of course must also be made that nothing
turns on the Master’s withdrawal of his undertaking.
[56]
The proverbial horse had long bolted by then.
[57]
Irrefutably, the prescribed time frame for
instituting review proceedings or requesting reasons had already come
to pass when the
notice of motion had been issued in the present
matter.
Winterhoek
[58]
Relevant, is the Master’s decision of 30
June 2023.
[59]
His decision communicated to applicants’
attorneys makes it clear:
‘…
your
clients’ objection to the sale of Winterhoek Farm has been
rejected…’
[60]
That is the decision identified in the notice of
motion for review and setting aside.
[61]
This notwithstanding, in heads of argument the
claim is that:
‘
The
applicants wish to review the Master’s decision taken on the
30
th
of June 2023 in respect of the sale
of Winterhoek to the sixth respondent.’
[62]
That is effectively what was argued and it
founders simply on the basis that there is a disconnect with the
relief in the notice
of motion and applicants’ founding
affidavit where it is asserted:
‘
[T]he
relief sought in this application relates to the review of the fifth
respondent’s decision to consent to the sale of
Winterhoek …’
[63]
What remains essential of the Master’s
conduct and/or reason for his endorsement of the sale of Winterhoek
by the first respondent
is that:
‘
The
Will directs that all fixed properties be sold.’
[9]
[64]
Without
question, the endorsement for the sale of fixed property serves as
confirmation by the Master, under whose supervision an
estate is
administered, that powers conferred upon an executor have been
properly exercised.
[10]
[65]
Winterhoek was endorsed on 30 June 2023 –
this in accordance with the deceased’s wishes.
[66]
The notice of motion issued on 21 July 2023.
[67]
On 4 July 2023 applicants, through their
attorneys, demanded an undertaking from first respondent to refrain
from proceeding with
the transfer of the properties for seven days
while papers were being finalised for a fresh application.
[68]
The demand elicited the following riposte on 7
July 2023:
‘
Your
clients’ urgent application challenging the sales of the two
farms was struck from the roll on 22 March 2023. The application
was
not withdrawn by your clients and not re-enrolled.
You have indicated on 3
April 2023 that you intend to bring a new application.’
[69]
A period of three months and almost three weeks
passed between 3 April 2023 and 21 July 2023. Where the relief in
Part A of the
notice of motion is a duplication of the March 2023
application it is inexplicable that applicants procrastinated. The
sheer volume
of papers and accumulation of correspondence evidences
nothing constructive to bring finality to the latter proceedings
within
this period.
[70]
Applicants allowed the March 2023 application to
lie in abeyance despite the convenience and accessibility of case
management. It
provides a competent alternative process to alleviate
congestion on the court rolls and for addressing problems which may
cause
delays in the finalisation of cases.
[71]
The
case management system makes provision for opposed motions.
[11]
[72]
If the applicants were merely being tardy or
perhaps employing a tactic for delaying the first respondent’s
finalisation of
the estate this would have been readily exposed
through judicial intervention for which the process allows.
[73]
When the endorsement of Winterhoek occurred on 30
June 2023 the timeline in the above period indicates that applicants
were left
with three weeks until 21 July 2023 to finalise papers for
the present application.
[74]
The application was served on the first and sixth
respondents and the Master on 21 July 2023 – and as for the
remaining respondents,
service was effected on 24 July 2023.
[75]
The timetable in the notice of motion afforded the
respondents until 28 July 2023 – a mere five court days
within which
to answer the comprehensive allegations in the founding
affidavit with further allowance of two days for applicants’
replying
papers to be filed no later than 1 August 2023.
[76]
A completed set of indexed and paginated papers
was filed with the registrar on 2 August 2023 in anticipation of the
matter being
heard at 09h30 on 4 August 2023.
[77]
The timetable imposed on the respondents was
unreasonable and oppressive.
[78]
It had scant regard for the administration of
justice relevant to the interests of other litigants and the
convenience of the Court
in so far as other matters upon which the
Court was expected to deal with as a matter of urgency.
[79]
Courts
are a public resource under severe pressure.
[12]
[80]
The aforegoing puts into perspective the events
shaping the timeline that applicants appropriated for themselves and
which they
have not succeeded in justifying.
Conclusion
[81]
The circumstances applicants find themselves in
are self-created and does not qualify as falling in the class of
recognised urgency
that justifies a litigant obtaining a preference
on the court roll at the expense of others.
[82]
In
appropriate circumstances the papers may be such, and the
circumstances such, as to justify the dismissal of a matter as set
out in
Vena
v Vena and others
[13]
but on technical grounds being lack of urgency.
[83]
In this matter applicants’ papers and the
circumstances, however, are not such as to justify a dismissal order.
[84]
The usual striking off order was considered
appropriate.
[85]
On the question of costs – this is a matter
of judicial discretion. I have taken cognisance of the circumstances
set out hereinabove.
In addition, the application is supported only
by the first and second applicants with powers of attorney granted in
favour of
their legal representative/s. Powers of attorney from the
remaining applicants have not been filed – they having
indicated
that they do not wish to proceed due to exposure to legal
costs.
[86]
It bears noting moreover, that the first applicant
is the main deponent to the founding affidavit (and so too in the
March 2023
application). No confirmatory affidavits from third,
fourth and fifth applicants are attached (as was also the case in the
March
2023 application).
[87]
The
manner in which applicants have initiated these proceedings is
indubitably reprehensible. I have no more than a sense that first
respondent’s efforts in finalising her administration of the
estate are being frustrated.
[14]
[88]
Based on all the above reasons I made the order
that I did on 4 August 2023.
M S RUGUNANAN
JUDGE OF THE HIGH
COURT
Appearances
For
the Applicants:
S
H Cole
Instructed
by Whitesides Attorneys
(Ref:
A Nunn)
Tel:
046-522 7117
email:
nunn@whitesides.co.za
For
the First Respondent:
G
Brown
Instructed
by Nolte Smit Attorneys
(Ref:
T Kingwell)
Tel:
046-622 7209
email:
tyne@noltesmit.co.za
For
the Sixth Respondent:
D
H De La Harpe SC
Instructed
by McCallum Attorneys
(Ref:
M McCallum)
Tel:
046-622 2372
email:
mike@mccallums.co.za
Date
heard:.
04
August 2023
Reasons:.
11
August 2023 by email at 09h30
[1]
Section
3 deals with 'Procedurally fair administrative action affecting any
person' and section 5 deals with 'Reasons for administrative
action'.
[2]
Hoexter,
Administrative
Law in South Africa
,
2007, 114-115.
[3]
See
University
of the Western Cape Academic Staff Union and Others v University of
the Western Cape
(1999)
20 ILJ 1300 (LC) para 15..
[4]
National
Police Services Union and Others v National Negotiating Forum and
Others
(1999)
20 ILJ 1081 (LC) quoted with approval in
Masete
v Transnet Bargaining Council and Others
[2021]
ZALCJHB 153 para 23.
[5]
Compare
Sibiya
v Director-General: Home Affairs and Others and 55 related cases
2009
(5) SA 145
(KZP) para 16.
[6]
Compare
Cape
Town City v Aurecon SA (Pty) Limited
2017
(4) SA 223
(CC) at 231E-F and 238G-239B.
[7]
Or
the 90 days for requesting reasons under section 5.
[8]
In
Opposition
to Urban Tolling Alliance v South African National Roads Agency Ltd
[2013]
4 All SA 639
(SCA) para 26, the court held: ‘At common law
application of the undue delay rule requires a two-stage enquiry.
First,
whether there was an unreasonable delay and, second if so,
whether the delay should in all the circumstances be condoned …
Up to a point, I think, S 7(1) of PAJA requires the same two-stage
approach. The difference lies, as I see it, in the legislature's
determination of a delay exceeding 180 days as per se unreasonable.
Before the effluxion of 180 days, the first enquiry in applying
s
7(1) is still whether the delay (if any) was unreasonable. But after
the 180 day period the issue of unreasonableness is pre-determined
by the legislature; it is unreasonable per se. It follows that the
court is only empowered to entertain the review application
if the
interest of justice dictates an extension in terms of s 9. Absent
such extension the Court has no authority to entertain
the review
application at all. Whether or not the decision was unlawful no
longer matters. The decision has been “validated”
by the
delay… That of course does not mean that, after the 180 day
period, an enquiry into the reasonableness of the applicant's
conduct becomes entirely irrelevant. Whether or not the delay was
unreasonable and, if so, the extent of that unreasonableness
is
still a factor to be taken into account in determining whether an
extension should be granted or not.’
[9]
Gray
v The Master
1984
(2) SA 271
(T) at 274H-275A.
[10]
Smith
v Smith’s Estate
1927
EDL 1
at 17.
[11]
Bobotyana
and Others v Dyantyi and Others
[2020]
ZAECGHC 89 paras 19-25.
[12]
Savvas
Socratous v Grindstone Investments 134 (Pty) Ltd
[2011]
ZASCA 8
para 16.
[13]
2010
(2) SA 248
(ECP) para 6-8.
[14]
See
for example the general remarks in
Mzontsundu
Trading (Pty) Ltd and Another v Lavelikhwezi Investments (Pty) Ltd
and Another
[2021]
ZAECMHC 44 paras 36-40.