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[2021] ZAGPJHC 725
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Govender NO v Mvongve (21/27360) [2021] ZAGPJHC 725 (7 July 2021)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO: 21/27360
In
the matter between:
GOVENDER
N.O.
PRESHNEE
Applicant
and
MVONGVE,
DANIEL
(ID
No.
[…])
Respondent
JUDGMENT
STRYDOM J:
[1]
This
is an urgent application in which the applicant seeks the following
relief:
1.1
That
this matter be treated as one of urgency in terms of rule 6(12) of
the Uniform Rules of Court;
1.2
That
pending the finalisation of Part B hereof, the respondent be
interdicted and restrained from –
1.2.1
preventing
the applicant or any personnel employed and/or contracted by the
applicant, including members of G3 Investigations, access
to the
property described as Portion […] of the Farm Nooitgedacht
[…], Registration Division JQ, Gauteng Province
(“the
property”);
1.2.2
removing
any goods belonging to the estate of the Late Kathleen Agnes Lawrence
(“the estate”) from the property;
1.2.3
approaching
within 50 metres of the main house of the property;
1.2.4
handling
or approaching, in any way, any of the assets in the estate in any
manner that is detrimental to the estate; and
1.2.5
slaughtering
or selling any livestock at the property.
[2]
In
Part B of the application the applicant seeks similar but final
relief.
[3]
The
respondent opposed the application and also filed a counterclaim. In
this counterclaim the respondent sought the following relief:
3.1
That
the applicant be removed as executor of the deceased estate;
3.2
That
the Master of the High Court, Johannesburg, be ordered to attend to
the appointment of Mr Hendrik Cornelius Viljoen as executor
of the
deceased estate as nominated in the last will and testament of the
deceased dated 13 April 2012, already accepted by the
Master of the
High Court, Johannesburg;
3.3
The
costs of this application be costs in the main application with any
party opposing it to pay the costs on a punitive scale as
between
attorney and client.
[4]
The
respondent disputed the urgency of the matter and asked that the
applicant’s application should be struck off the roll
for lack
of urgency with a costs order.
[5]
The
respondent further took two points
in
limine
pertaining to the
locus
standi
of the applicant to bring her
application and alleged a non-joinder of necessary parties.
Similarly, the applicant opposed the respondent’s
counterclaim
on the basis of a non-joinder of necessary parties.
[6]
In
my view, the Master was a necessary party for the relief the
respondent is seeking as he has a direct and substantial interest
in
this matter which may be affected prejudicially by a judgment made by
this court in his absence. The Master has an interest
in the removal
of an executor and even more so if he is ordered to appoint an
executor in terms of a court order. The respondent’s
failure to
join the Master or Mr Viljoen, who is the person the respondent wants
the Master to appoint as executor, is a material
non-joinder.
Moreover, the
Administration of Estates Act 66 of 1965
do not provide
the court with the power to prescribe to the master which person
should be appointed as executor. See:
Bankorp
Trust Bpk v Pienaar en ‘n ander
1993 (4) SA 98
(A) at 108 H.
This is fatal for the respondent’s
counterclaim which should be dismissed with costs.
[7]
In
this matter there will be reference made to three wills purportedly
made by the deceased. Reference will be made to the 2011
will, the
2012 will and the 2020 will.
[8]
When
the deceased died on 20 June 2020, the respondent was living on the
property. The applicant is seeking an order that the respondent
should move from the main house to another dwelling (“the
bottom house”) on the property.
[9]
To
consider the urgency of this matter as well as the points
in
limine
and the merits, the factual
background circumstances should be stated. I intend doing it
chronologically.
[10]
On
6 September 2011, the deceased was placed under the curatorship of
Robert Kitching (“Kitching”).
[11]
On
14 November 2011, the 2011 will was signed by the deceased.
[12]
On
13 April 2012, the 2012 will was signed by the deceased.
[13]
During
or about 2017, the respondent alleges that he moved from the bottom
house to the main house. According to the applicant the
respondent
moved thereto only after deceased passed away.
[14]
On
29 April 2020, the 2020 will was signed in terms of which the entire
estate of the deceased was bequeathed by the deceased to
the
respondent.
[15]
On
or about 20 June 2020, the deceased passed away.
[16]
On
or about 15 September 2020, the respondent was appointed as executor
of the estate of the deceased.
[17]
On
or about 16 September 2020, the respondent signed a power of attorney
in terms of which the respondent was appointed as the applicant’s
agent in the administration of the estate.
[18]
On
or about 11 November 2020, the applicant became aware of the
existence of the 2020 Will. Absa Bank informed her about this.
[19]
On
or about 29 January 2021, the applicant terminated her mandate with
the respondent as the respondent’s agent.
[20]
On
or about 5 February 2021, the Master declared the 2020 will invalid
as it was signed by the curator and not by the deceased.
[21]
On
or about 16 February 2021, the applicant was now appointed as
executrix at the stage when the 2011 will was assumed to be the
valid
will of the deceased. Letters of executorship were issued in her
name.
[22]
On
or about 18 February 2021, the applicant appointed the firm G3
Investigations to ensure that the moveable property was not removed
from the property.
[23]
On
3 March 2021, Absa advised the applicant that the safety deposit box
held in the name of the deceased was emptied by the respondent.
[24]
On
5 March 2021, the respondent obtained an
ex
parte
spoliation order in terms of
which the respondent was granted undisturbed occupation and
possession of the property.
[25]
On
or about 28 April 2021, the applicant received a letter in terms of
section 54(1)(b)
of Act 66 of 1965 notifying the applicant that the
Master intends removing her from office as executor since an executor
has been
nominated in terms of the 2012 will and that the Master
intends to appoint the said executor in terms of this will. The
applicant
was further informed that she may apply to court within 30
days from the date of the notice for an order restraining the Master
from removing her from office of executor in this matter.
[26]
On
4 May 2021, a meeting took place at the offices of the Master.
Present at this meeting was the Master, Mr Aphane the Assistant
Master, Mrs Nerina Wessels representing an intestate heir, Mr Henk
Viljoen who has submitted the 2012 will that was registered
and
accepted by the Master and wherein he was nominated as executor, and
Zahir O’Brien representing the applicant, at that
stage the
executrix, on a proxy.
[27]
During
this meeting it became clear that the Master acknowledged that it
should not have accepted the 2020 will as it did not meet
the
requirements of the Act. The will was not signed by the deceased but
was signed by the curator. Therefore, this will was invalid.
As the
Master previously made a decision to accept this will, it had to
approach the High Court to review its own decision before
it could
appoint Mr Viljoen as the nominated executor in terms of the 2012
will. All parties present acknowledged that should the
applicant be
removed as executrix before the appointment of Mr Viljoen, there will
be a period during which there will be no appointed
executor.
[28]
On
or about 6 May 2021, the applicant’s attorneys wrote to the
Master submitting that despite the notice of removal that the
applicant should continue with the administration of the estate
provided that no assets be liquidated or disposed of.
[29]
On
or about 21 May 2021, the applicant’s attorney again wrote to
the Master asking for an extension of time to apply to court
(presumably the extension of the 30 day period to contest her
removal).
[30]
On
or about 31 May 2021, Mr Aphane, the Assistant Master, replied to the
applicant’s attorney’s letters dated 6 and
21 May 2021
and informed the applicant that “
you
are the executor in the estate charged with the custody and control
of the property in the estate in terms of section 26(1)
of the Act 66
of 1965 (as amended).”
Further
the applicant was advised that she should take necessary steps and/or
action to secure the assets of the deceased estate.
[31]
On
4 June 2021, the South African Police Services attended at the
property and removed the locks placed on the entrance gates by
G3
Security and allowed the respondent to place his own locks on the
gate.
[32]
On
10 June 2021, the applicant filed the urgent application informing
the respondent that if he wants to oppose this application
he should
notify the applicant’s attorneys by 09h00 on Friday 11 June
2021 and further to serve his answering affidavit by
09h00 on Monday
14 June 2021. The matter was set down to be heard at 10am on Tuesday
15 June 2021.
[33]
On
17 June 2021, the respondent asked for a postponement of the hearing
of the urgent application.
[34]
On
22 June 2021, the applicant set the matter down in the urgent court
to be heard on 29 June 2021.
Urgency
[35]
The
applicant afforded the respondent limited time to file an answering
affidavit and this led to a re-set down of the application.
The
urgency of the matter according to the applicant is underpinned by
the respondent’s continued damaged caused by the respondent.
She is prevented to perform her duties to establish exactly which
assets belong to the estate and to secure these assets, more
particularly as since 4 June 2021 she and her agents were locked out
of the property.
[36]
In
my view, a situation could not prevail where an appointed executor is
not allowed access to the property of the estate. This
situation
should be corrected as soon as possible and therefor the applicant in
my view has made out a case on urgency but only
pertaining to the
prayers giving the applicant access to the property and preventing
selling and dealing with the property of the
estate.
[37]
No
case of urgency was made out preventing respondent from approaching
within 50 metres of the main house. This will amount to an
eviction
from this house where, according to respondent, he was residing since
2017. Applicant states that he moved there after
the deceased has
died. A factual dispute has arisen but besides this it is not so
urgent that respondent must be ordered to forthwith
vacate the main
house.
[38]
The
same apply as far as the livestock is concerned. The applicant has
failed to prove that the estate is the owner of the livestock.
It was
not indicated when the livestock was allegedly slaughtered or sold.
The prayer dealing with the livestock has not been shown
as urgent.
[39]
The
same applies to the general allegations that respondent removed goods
from the property. Limited particularity is provided as
to which
items were removed by respondent and when.
[40]
The
court finds that the locking out of the executor is semi-urgent and
it should be considered whether the applicant has made out
a case for
an interim interdict. For this purpose, the applicant had to show
only a
prima facie
right
which may be open to some doubt.
Locus
standi
of the applicant
[41] On
behalf of the respondent it was argued that the applicant has been
informed of her removal as executor
appointed in terms of an
intestate nomination. Such notice was in fact given to the applicant.
In terms of s 54 (1) (b) and (2)
of the Act the master intended to
remove applicant from office as executor since an executor has now
been nominated in terms of
the 2012 will and the master intends to
appoint the said nominated person. The applicant was informed that
she could apply to court
within 30 days from the 28
th
of
April restraining the master from removing her from office of the
executor.
[42] It
is the applicant’s case that she has not yet been removed from
office as only an intension was expressed
by the master for her
removal. Despite applicant asking for an extension of the 30 day
period it is common cause that she has not
approached court for an
order restraining the master from removing her.
[43] The
legal question for consideration is whether after the lapse of the 30
day period the appointment of the
executor automatically comes to an
end or whether the decision in terms of which the executor is removed
should be provided to
the executor after the 30 day period. Section
54 is silent on this issue. This sub-section 54(2) provides that the
notice shall
inform the executor
“
that
he may apply to the Court within thirty days from the date of such
notice for an
order
restraining
the Master from removing him from his office.”
[44] It
has been found that once the master issued a section 54 notice he was
functus officio
and unable to reverse or reconsider the
decision to remove the executor. (See:
Coetzee and Another v De
Kock and others
1976 (1) SA 351
at 359 C-H and Levinson Susan N.O. v
The Master and Others (unreported) Appeal case number A5032/2019 GLD
at para [28].
[45] These
case did not deal with the issue when the removal become effective.
From what can be gauged from the
correspondence from the master is
that he did not consider the removal as automatic. In his letter to
the applicant dated 30 May
2021, a date after the 30 day period
lapsed that he still considered the applicant to be the executrix. He
might to be correct
in this regard or wrongly came to the conclusion
but for purposes of the interim relief sought by applicant this court
need not
make a final determination in this regard.
[46] This
court finds that on a
prima facie
basis the applicant has
shown that she is still the incumbent executrix and therefore she had
the necessary
locus standi
to institute these proceedings and
prosecute this application in her capacity as executrix. It is common
cause that the master has
not appointed another executor.
Non-joinder
[47] The
relief sought by applicant is directly and solely aimed against the
respondent. There was not necessary
to join any other parties in this
application by the applicant.
[48] On
the evidence before the court a finding can be made that the
applicant was locked out by the actions of
the respondent. An
executor has the right and obligation to take control over the assets
in an estate. For that reason, an order
should be made to interdict
the respondent who has no right to deal with assets of the estate.
The applicant previously had access
to the property and this right of
access should be restored.
[49] The
court makes the following order:
1.
This matter is urgent as envisaged in terms
of Rule 6(12) of the Uniform Rules of Court.
2.
That, pending the finalisation of Part “B”
of the Notice of Motion, alternatively, the removal of the applicant
as executrix
by the master, which ever event comes first, the
respondent be interdicted and restrained from preventing the
applicant or any
of her agents’ access to the property describe
a Portion […] of The Farm Nooitgedacht […],
Registration Division
JQ, Gauteng Province (“the property”).
3.
That the Sheriff of the court is directed
and authorised to give effect to the order contained in paragraph 2
above.
4.
That the sheriff of the Court or his
lawfully appointed deputy be authorised and directed to approach the
South African Police Service
for any assistance he/she may deem
appropriate herein.
5.
That the cost of this application be
reserved for the hearing of Part “B” of the notice of
motion.
6.
That the respondent’s counterclaim be
dismissed with costs.
RÉAN
STRYDOM J
JUDGE OF THE HIGH
COURT
GAUTENG LOCAL DIVISION
JOHANNESBURG HIGH
COURT
Date
of Hearing: 30
June 2021
Date
of Judgment: 07
July 2021
Appearances
:
On
behalf of the Applicant: Adv.
C.J. Van
der Merwe
On
behalf of the Respondents: Adv.
N. J. Kapp