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2021
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[2021] ZAGPPHC 374
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Vilakazi v Master of the High Court and Another (13810/19) [2021] ZAGPPHC 374 (9 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
no: 13810/19
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
NOT
REVISED
In
the matter between:
DAVID
VILAKAZI
Applicant
and
THE
MASTER OF THE HIGH COURT
First
Respondent
In
re:
ESTATE
LATE ALMO MORRIS LANGA
(Estate
number: 6650/2018)
and
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
Second
Respondent
JUDGMENT
GOODMAN,
AJ:
1.
The applicant
is the half-brother of the late Almo Morris Langa. Mr Langa died
intestate on 6 April 2018. On 15 June 2018, the applicant
caused his
death to be reported to the office of the first respondent, the
Master, and attempted to procure his appointment as
executor so that
he could wind up the estate.
2.
Despite
repeated attempts at engagement by the applicant, no letter of
executorship was forthcoming. On 27 February 2019, the applicant
instituted proceedings in this Court to compel the Master to issue
him with the relevant letter. The Master did not oppose the
application. Instead, her office initially called for further
documents, which the applicant provided to the extent that he was
able. Later, the Master, through the State Attorney, tendered to
abide the High Court application and to issue a report if the
applicant abandoned his prayer for costs of the application. The
applicant declined to forego his costs.
3.
The matter
came before Mr Justice Mabuse on 7 August 2019 where an order was
made, by agreement, stipulating time periods on which
(
a
)
the Master would identify the further documents she still required to
issue the executorship letter, (
b
)
the applicant would furnish those documents, and (
c
)
the Master would issue the letter of executorship. The costs were
reserved.
4.
The Master
adhered to the initial deadline imposed by the order, by sending a
letter stipulating the documents that were still required
on 12
August 2019. Some of those documents had previously been provided by
the applicant, but others were requested for the first
time. The
applicant submitted the documents approximately 5 weeks later, on 19
September 2019. The Master ultimately issued the
letter of
executorship appointing the applicant as executor on 7 November 2019
– almost 6 weeks after the applicant had submitted
the
requisite documents and 1½ years after the death
of Mr Langa had been reported.
5.
I
am called to determine the question of costs. The applicant seeks an
order granting costs of the application against the first
respondent
on the punitive attorney-client scale.
[1]
His counsel, Ms Erasmus, claims that he is entitled to those costs
because he enjoyed substantial success in the application, and
because of the unreasonable manner in which the Master’s office
handled the matter.
6.
For the
Master, Ms Mboweni submits that not only should costs not be awarded
in the applicant’s favour, but rather it is the
Master who
should recover her costs. That, she submitted, was because the
application to court was premature, as evidenced by the
fact that the
relief sought in the notice of motion could not be granted at the
hearing of 7 August 2019. Further documents had
to be lodged with the
Master’s office before the appointment could be made and the
letter of executorship issued.
7.
I do not agree
that the application was premature. The uncontested evidence of the
applicant’s attorney is that they wrote
more than 10 letters to
the Master’s office between August 2018 and August 2019,
enquiring from the Master what she required
to make the appointment
and issue the letter of executorship. That in addition to calling
more than 25 times. In September 2018,
the Master instructed the
applicant to provide security against his anticipated appointment as
executor, which was procured (at
the applicant’s cost) and
lodged in December 2018. In February 2019, the Master requested proof
that the deceased’s
parents were themselves deceased. That was
furnished in early March. Beyond that, no guidance on what was still
required was forthcoming
from the Master.
8.
Ms Mboweni
conceded as much, but submitted that it was for the applicant to
ascertain, with reference to the prevailing legislation,
what
documents were required to be submitted. However, she was unable to
identify whether or where the legislation stipulated the
documents
that had to be produced. That information was freely available to the
Master, but not shared with the applicant –
even in the face of
the current application. For the applicant’s part, the papers
suggest that he believed the Master had
been provided with all the
information that she needed, and that all that remained was the
formal appointment. It was only
after
the matter came to Court that the Master identified the outstanding
information that she still required. Once it had been submitted,
the
appointment followed. In the absence of the court proceedings, it is
by no means clear when the Master would have provided
the requisite
guidance to the applicant to enable him to secure his appointment as
executor.
9.
In the
circumstances, I am satisfied that the application was appropriately
brought and that, through it, the applicant secured
the outcome that
he sought. I can see no reason why he should be deprived of the costs
of the application.
10.
The question
is then whether punitive costs are warranted, based on the Master’s
conduct in the litigation.
11.
As I have
noted above, the application was instituted on 27 February 2019. On
30 July 2019, the State Attorney, acting on behalf
of the Master,
wrote a letter to the applicant’s attorneys in the following
pertinent terms:
“
2.
We note that you intend approaching the court on 7 August 2019
without complying with
the dies applicable to motion proceedings.
3.
Be that as it may, my client does not wish to oppose this
application, save for
the issue of costs.
4.
My client further advises
that the delay in issuing the letter of executorship was
due to the
delays by the applicant for failing to address queries raised by the
Minister timeously.
5.
Should your client abandon
the costs order being sought against the respondents, the
first
respondent will abide the decision of the court and file a masters
report.”
12.
On the face of
it, the Master (through the State Attorney) offered to issue a report
and not to oppose this application
if
the applicant agreed to forego any costs order against her office. It
appears that the Master was bartering performance of her
statutory
duties in exchange for a litigation advantage. It was, in my view,
not proper for the Master to seek to leverage her
powers in this way.
Once the Master was satisfied that the application should not be
opposed, then she should immediately have
taken the necessary steps
to procure the applicant’s appointment and authorisation as
executor. She could not withhold those
steps, in the hope of
negotiating a better outcome for her office in these proceedings.
13.
Ms Mboweni
submitted that I should not penalise the Master for the content of
the letter because, according to her, the letter was
plainly sent
without instruction. She drew that inference from the fact that the
proffered report could not have been issued even
if the applicant had
accepted the offer because, as set out above, the Master still
required additional documents to secure the
applicant’s
appointment.
14.
I do not think
that I can draw the inference that Ms Mboweni urges me to make. She
asks me to assume serious misconduct on the part
of the State
Attorney. That is not a conclusion I can lightly reach. Nor is there
anything on the papers to suggest that the State
Attorney was acting
on a frolic of his own. The letter clearly records that the
State Attorney had been in contact with the
Master and had been given
instructions in respect of the matter, and the Master does not claim
otherwise in the answering affidavit.
There is no factual basis for
me to find that the State Attorney was acting without a mandate.
15.
But even if
the Master did not instruct the State Attorney to offer the bargain
that he did, the Master’s handling of the
matter was
delinquent. She was plainly aware of the pending proceedings. A
perusal of her files would have revealed that the applicant
was
incurring the ongoing cost of security, and was thus suffering
prejudice as a result of her delayed performance. And it should
have
been apparent to the Master that she required further documents to
finalise the appointment. In those circumstances, the Master
ought
proactively to have called for the necessary information from the
applicant. It was not reasonable for her to allow
the matter to
proceed to court on 7 August 2019, to agree on an order on the day
(once the applicant had incurred the legal costs
for the hearing),
and then steadfastly to persist in seeking costs against the
applicant as a penalty for exercising his rights.
16.
Added to this,
I note that even in the face of Mabuse J’s order, the Master
delayed in the applicant’s appointment and
in issuing the
letter of executorship. Indeed, it was only the applicant’s
threat of further legal proceedings, made on 31
October 2019, that
appears to have triggered the issue of the relevant letter a week
later.
17.
The Master’s
litigation conduct has, in my view, been unreasonable and caused the
applicant to incur unnecessary costs. It
warrants censure by this
Court.
18.
The Master’s
counsel finally urged me to consider the administrative load of the
Master’s office as an explanation for
the Master’s
delays. No evidence in this regard is provided in the Master’s
affidavit. But, perhaps more importantly,
it cannot excuse the
Master’s failure to adhere to a court order –
particularly one that imposed deadlines to which
she had agreed.
19.
I am satisfied
that an award of punitive costs is justified in this case.
20.
I consequently
make the following order:
(a)
The first
respondent is ordered to pay the costs of the application (including
the costs of counsel) on an attorney-client scale.
(b)
Such costs are
to include the reserved costs of the hearing of 7 August 2019, on an
unopposed scale.
I GOODMAN, AJ
ACTING JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG DIVISION
PRETORIA
Appearances
Counsel for the
Applicant:
Adv N Erasmus
Instructing
Attorneys:
Laubscher Attorneys
Counsel for the First
Respondent: Adv L Mboweni
Instructing
Attorneys
State Attorney, Pretoria
Date of
hearing
8 June 2021
Date
of judgment
9 June 2021
[1]
Although the notice of motion also sought costs
against the second respondent, the Minister of Justice and
Constitutional Development. In argument, counsel conceded that the
Minister had been joined only for such interest as he may
have had,
and that an adverse costs award against him would be inappropriate.