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[2021] ZAGPPHC 466
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Prinsloo and Others v Botha and Others (10044/2020) [2021] ZAGPPHC 466 (14 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 10044/2020
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
REVISED
14/07/2021
In
the matter between:
DANIEL
JACOBUS PRINSLOO N.O
FIRST
APPLICANT
(in
his capacity as Trustee of the Anko Trust)
LOUIS
JOHANNES ROSSEL N.O
SECOND
APPLICANT
(in
his capacity as Trustee of the Anko Trust)
VZF
SERVICES (PTY) LDT REPRESENTED BY
THIRD
APPLICANT
HENDRIK
MARTHINUS VAN ZYL N.O
(in
its capacity as Trustee of the Anko Trust)
VZF
AUDITORS
INCORPORATED
FOURTH
APPLICANT
and
MAGISTRATE
BIANCA BOTHA
FIRST
RESPONDENT
WILLEM
FRANCIOS BOUWER N.O
SECOND
RESPONDENT
(in
his capacity as
curator bonis
of Mrs Anna Prinsloo)
WILLEM
FRANCIOS BOUWER
THIRD
RESPONDENT
JUDGMENT
This
matter has been heard in terms of the Directives of the Judge
President of this Division dated 25 March 2020, 24 April 2020
and 11
May 2020. The judgement and order are accordingly published and
distributed electronically. The date and time of hand-down
is deemed
to be 10h00 on 14 July 2021.
LENYAI
AJ
[1] This
is a review application brought against the decision taken by the
first respondent and the warrant issued
by the first respondent on
the 22
nd
of January 2020.
[2] The
relief sought in the application is as follows:
(a) That
the decision of the first respondent to issue a search warrant be
reviewed and set aside.
(b) That
the search warrant issued by the first respondent in terms of
section
26
of the
Administration of Estates Act 66 of 1965
, be rescinded and
set aside.
(c) That
the second and third respondents be ordered to return to the fourth
applicant all documents attached and/or
removed from the third and
fourth applicants during the execution of the said search warrant.
(d) That
the second and third respondents compile a list of photographs that
were taken by both the Sheriff of
the High Court as well as the
representatives of the second and third respondents at the fourth
respondent’s premises during
the execution of the said search
and that such list be confirmed under oath.
(e) That
the second and third respondents be ordered to delete or destroy all
photographs taken by both the Sheriff
of the High Court as well as
the representatives of the second and third respondents on the 22
nd
of January 2020 at the fourth applicant’s premises during the
execution of the said search warrant and that the second and
third
respondents be ordered to confirm under oath that such photographs
have been deleted and/or destroyed.
(f) A
declaratory order that the second and third respondents erroneously
sought the warrant of execution to be
issued by the first respondent
and the first respondent erroneously allowed/granted the issuing of
same, in the absence of the
applicants.
(g) A
declaratory order that the conduct of the second and third
respondents in erroneously seeking the warrant
of execution to be
issued by the first respondent and the conduct of the first
respondent in erroneously allowing/granting the
issuing of same, is
unconstitutional and constitutes an infringement of the applicants’
constitutional rights, in particular
its rights to privacy, property,
just administrative action and access to courts as respectively
contained in section 14, 25, 33
and 34 of the Constitution of South
Africa, 1996.
[3] The
first respondent served a notice to abide by the decision of the
Court whereas the second and third respondents
opposed the
application.
[4] The
applicants also brought an application for condonation for the late
filing of the supplementary founding
affidavit and replying
affidavit. After reading the papers and having heard the parties I am
satisfied that the applicants have
shown good cause and I am granting
the condonation.
[5] The
first to third applicants are the trustees of Anko Trust. Mr Hendrik
Marthinus van Zyl is an auditor by
profession, representative of
third applicant in its capacity as trustee of Anko Trust and director
of fourth applicant who dealt
with the auditing requirements of Anko
Trust since the fourth applicant’s appointment. The fourth
applicant is an entity
appointed as the auditor of the Anko Trust on
or about 21 August 2018.
[6] The
first respondent is the Magistrate who considered, heard and
adjudicated on the
ex parte
application
,
whose decision
of the 22
nd
January 2020 forms the subject of this review
application together with the search warrant issued by her on the
same date
.
[7] The
second respondent is Mr Bouwer in his
nomino officio
capacity
as the
curator bonis
of Ms Anna Prinsloo and the third
respondent is Mr Bouwer, a practising attorney in his personal
capacity.
[8] On
the 22
nd
of January 2020 the Sherriff executed a search
warrant issued in terms of
Section 26
of the
Administration of
Estates Act 66 of 1965
. The Sheriff provided the fourth applicant
with his instructions namely, a search warrant issued in terms of
Section 26
of the
Administration of Estates Act, notice of motion
in
terms of
Section 26
, an affidavit by the applicant and a notice of
attachment and execution. The search warrant was executed in
conjunction with Mr
Abdullah Hendriks from the offices of the Sheriff
Pretoria South East and in the presence of Ms Tanya Kruger, Ms
Renette Basson,
Ms Rene Verster and Mr Willem Bouwer, all of whom are
from the office of WF Bouwer Attorneys.
[9] During
the execution of the warrant photographs were taken and the draft
pro-forma 2018 annual financial statement
was seized. All this was
done in the presence of fourth applicant’s other clients.
[10] The
applicants aver that on the 23
rd
of January 2020, a day
after the search and seizure warrant was executed they wrote a letter
through their attorneys to the second
respondent demanding the return
of all documents taken, a list of all photographs taken and
confirmation under oath to have deleted
all photograph images as well
as the name of the Magistrate who issued the warrant. It was further
demanded that the second respondent
should comply by close of
business on the same day, failure of which the fourth applicant would
approach the High Court for an
order to rescind the warrant issued
and for the immediate return of the documents attached and removed.
In such application a punitive
costs order will be sought against the
second respondent and a costs
de bonis propriis
against the
third respondent.
[11] The
applicants aver that the second respondent failed to make a full and
frank disclosure of all material
facts to the Magistrate and further
brought the application on an
ex parte
basis in circumstances
where there was a clear prohibition of such actions.
[12] The
second respondent did not disclose to the Magistrate that there was a
trail of material and extensive
correspondence between the parties
during 19 September 2019 to 23 October 2019 wherein the second
respondent demanded information
from the fourth applicant. The fourth
applicant responded by advising the second respondent that Anko Trust
was the owner of all
the information and documents it had in its
possession and they have not been authorised to provide or disclose
such information
and documentation to any third parties. The second
respondent was referred to the correct person and/or entity who can
lawfully
deal with his request.
[13] The
second respondent in an e-mail dated 21 October 2019 advised the
fourth applicant that he was proceeding
with an application to obtain
an order in terms of
section 26
read with
section 85
of the
Administration of Estates Act and
would request that the police be
appointed to assist the Sheriff in executing the proposed order.
[14] The
attorneys of the fourth applicant addressed a letter to the second
respondent wherein it was clearly stated
that any application ought
to be served on the fourth applicant by way of service on Geyser
Attorneys and that such application
would be opposed and it should
not be brought
ex parte.
It was also stated that the
legislation in terms whereof the second respondent wished to bring
the application did not provide for
an
ex parte
application
and further that there was no risk of the fourth respondent
dissipating any documents. It was further stated that the
conduct of
the fourth applicant is that of an ethical auditor who was protecting
the interests of his clients in accordance with
his duty as an
auditor.
[15] At
all material times the fourth applicant and Mr Van Zyl complied with
the SAICA Code of Professional Conduct
that governs the ethics of the
auditors’ profession, in particular Rule 140 which deals with
the ethical codes concerning
confidentiality between auditor and
client. In terms of the aforesaid rule, the fourth applicant and Mr
Van Zyl were not legally
permitted or authorised, to adhere to the
second respondent’s demands, as to do so would have meant they
are in breach of
the SAICA Code of conduct.
[16] There
is no legal basis upon which the second respondent is entitled to any
documents belonging to the Anko
Trust, including the financial
statements of the Trust. As such the respondent was not entitled to
an order in terms of
Section 26
of the
Administration of Estates Act.
[17
]
Section
26
of the
Administration of Estates Act cannot
be used as a tool to
seek discovery as a sort of Anton Pillar application, especially in
circumstances where the second respondent
is not in law entitled to
the documents sought.
[18] The
audi alteram partem
rule could only be departed from in
exceptional circumstances which were not present in this matter
.
[19] The
applicants aver that it is common cause that the second and third
respondents failed to set out any factual
and/or legal basis in
regard to why the application was brought
ex parte
without a
notice to the fourth applicant.
[20] The
applicants aver that the application was brought on an urgent basis
and the Magistrate in her reasons
for granting the order stated that
she considered the urgency of the application and accordingly found
that the application was
urgent.
[21] The
applicants further aver that the second and third respondents failed
to set out any factual and/legal
basis in regards to the urgency of
the application.
[22] The
second respondent made the following allegations in the founding
affidavit in summary:
22.1 That
he is the duly appointed curator bonis of Ms Prinsloo;
22.2 That
according to a first and final liquidation and distribution account
in the estate of the late Mr Prinsloo
it appears that the patient has
a significant interest and claim in the form of a loan account
against the Anko Trust as she is
the sole heir to the late Mr
Prinsloo’s estate , and that she is also a beneficiary in the
Anko Trust;
22.3 That
the fourth applicant is the appointed auditors for Anko Trust and
holds all information and records with
regards to the patient’s
claim in the Anko Trust;
22.4 That
the second respondent made enquiries with the fourth applicant to
provide him with all information and
financial statements of the Anko
Trust, refused to provide same and as such is concealing documents
and information from the second
respondent;
22.5 That
the second respondent has a duty to take proper control of the assets
and is accountable to the Master
for the proper protection and care
of the assets of the patient;
22.6 That
section 26
read with
section 85
of the
Administration of Estates Act
applies
and that a search warrant ought to be issued in terms
thereof.
[23] The
applicants aver that the following facts were incorrectly recorded in
the said founding affidavit:
23.1 The
patient is not a beneficiary of the Anko Trust as is clear from the
latest amended Trust Deed dated 2019.
23.2 Mr
Van Zyl, in his personal capacity, or in his capacity as an auditor
of the fourth applicant, VZF Auditors
Incorporated, is not a trustee
of the Anko Trust.
[24] The
applicants aver that the second and third respondents failed to
inform the first respondent of material
facts, failed to make
necessary allegations to sustain a cause of action based on the
provisions of
section 26
read with
section 85
of the
Administration
of Estates Act and
was not factually and legally entitled to an order
in terms of the provisions of
section 26
read with
section 85
of the
Administration of Estates Act.
>
[25] The
applicants aver that despite the above, the first respondent granted
the second respondent’s application
and took a decision to
issue the search warrant in terms of
section 26
read with
section 85
of the
Administration of Estates Act.
[26
] The
second respondent avers that subsequent to his appointment as
curator
bonis of Mrs Prinsloo (
patient
),
he investigated the
financial circumstances of the patient and found that the estate of
the late Mr Prinsloo contained assets where
the patient was the sole
heir of the deceased’s estate.
[27] The
second respondent further avers that his investigation revealed that
an amount of R 3 746 169.00 was payable
to both Mr Prinsloo and the
patient. He further established that Mr Hendrik Marthinus van Zyl is
a director of VZF Auditors Inc,
(fourth applicant), is also a
director of VZF Services (Pty) Ltd (third applicant) and is a trustee
of Anko Trust either in his
personal capacity or as a representative
of VZF Services (Pty) Ltd.
[28] The
investigation further revealed that attempts were made to amend the
trust deed where the patient and the
children were both capital
beneficiaries and the patient an income beneficiary. This resulted in
the second respondent requesting
from Mr Van Zyl recent financial
statements of the Anko Trust, confirmation of who deals with the
finances of the partnership in
which the trust Anko Trust was
involved of a day to day basis, the dividend that is paid to Anko
trust and in particular who monitors
the payments, financial policy
of the trust regarding the partnership, the auditors of the
partnership, to whom payments as income
beneficiaries are being made
and whether Mr Van Zyl had knowledge of the frequency of division of
income of both the partnership
and the trust.
[29] The
second respondent avers that the responses received were not
satisfactory and referred him to Dr JD Prinsloo
as the beneficiary of
the trust and also that there was no loan account for the patient.
[30] As
a result of the unsatisfactory responses, the second respondent
indicated to the fourth applicant that
he would approach the
Magistrate Court in terms of the provisions of
section 26
read with
section 85
of the
Administration of Estates Act. He
proceeded to
apply for search warrant which was granted and executed.
[31] The
application was brought against the background that Dr DJ Prinsloo,
the son of the patient, indicated
to the second respondent that the
loan account was allegedly fictitious and was removed. The second
respondent questioned the explanation
given to him as Dr Prinsloo was
the executor of his late father’s estate and had reflected the
loan account as an asset and
awarded it to the patient as part of her
inheritance.
[32] The
second respondent avers that sufficient circumstances existed in
order for him to rely on
section 26
of the Administration of Estates
Act. These circumstances caused him to have grave concern pertaining
to the changes to the financial
position of the patient, in
particular assets that were awarded to her in terms of a recorded and
official process, that now were
alleged not to be due.
[33] At
the heart of this review application is the interpretation of the
provisions of section 26 read with
section 85
of the
Administration
of Estates Act
\, section 69 of the Insolvency Act, the common law
principle of
audi alteram partem
rule and the common law
principles applicable to the
ex parte and locus
standi of the
second respondent in the initial application to the Magistrate.
[34]
Section
26
and
85
of the
Administration of Estates Act, reads
as follows:
“
26 Executor
charged with custody and control of property in estate
(1)
Immediately after letters of executorship have been granted to
him an executor shall take into his custody or under his control all
the property, books and documents in the estate and not in the
possession of any person who claims to be entitled to retain it
under
any contract, right of retention or attachment.
(1A) The
executor may before the account has lain for inspection in terms of
section 35(4)
with the consent of the Master release such amount of
money and such property out of the estate as the executor’s
opinion
are sufficient for the subsistence of the deceased’s
family or household.
(2)
If the executor has reason to believe that any such property, book or
document is concealed or otherwise unlawfully
withheld from him, he
may apply to the magistrate having jurisdiction for a search warrant
mentioned in subsection (3).
(3)
If it appears to a magistrate to whom such application is made, from
a statement made upon oath, that there
are reasonable grounds for
suspecting that any property, book or document in any deceased estate
is concealed upon any person or
at any place or upon any or in any
vehicle or vessel or receptacle of any nature, or is otherwise
unlawfully withheld from the
executor concerned, within the area of
the magistrate’s jurisdiction, he may issue a warrant to search
for and take possession
of that property, book or document.
(4)
Such a warrant shall be executed in like manner as a warrant to
search for stolen property, and the person
executing the warrant
shall deliver any article seized thereunder to the executor
concerned.”
[35] In
terms of section 85 of the Administration Estates Act, section 26
applies
mutatis mutandis
with reference to curators.
[36] Section
26 read with
section 85
of the
Administration of Estates Act is
akin
to section 69 of the Insolvency Act 24 of 1936 (the “
Insolvency
Act&rdquo
;).
[37]
Section
69
of the
Insolvency Act reads
as follows:
“
69. Trustee
must take charge of property of estate
(1)
A trustee shall, as soon as possible after his appointment,
but not before the deputy-sheriff has made the inventory referred to
in subsection (1) of section
nineteen
,
take into his possession or under his control all movable property,
books and documents belonging to the estate of which he is
trustee
and shall furnish the Master with a valuation of such movable
property by an appraiser appointed
under any law relating to
the administration of the estates of deceased persons or by a person
approved of by the Master for the
purpose.
(2)
If the trustee has reason to
believe that any such property, book or document is concealed or
otherwise unlawfully withheld from
him, he may apply to the
magistrate having jurisdiction for a search warrant mentioned in
subsection (3).
(3)
If it appears to a magistrate to
whom such application is made, from a statement made upon oath, that
there are reasonable grounds
for suspecting that any property, book
or document belonging to an insolvent estate is concealed upon any
person, or at any place
or upon or in any vehicle or vessel or
receptacle of whatever nature, or is otherwise unlawfully withheld
from the trustee concerned,
within the area of the magistrate’s
jurisdiction, he may issue a warrant to search for and take
possession of that property,
book or document.
(4)
Such a warrant shall be executed in a like manner as a warrant to
search for stolen property, and the person
executing the warrant
shall deliver any article seized thereunder to the trustee.”
[38] In
the matter of
Hyundai Motor Distributors (Pty) Ltd and Others v
Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC)
it was held
that:
“
One of the core
considerations when classifying the discretion is whether in making
the decision it is possible that there could
be a legitimate
difference of opinion as to the proper outcome of the exercise of
discretion. In this case, it seems clear that
the discretion to issue
the warrant is a matter upon which different judicial officers may
reasonably and legitimately disagree.
An appellate court, therefore,
may not interfere with the discretion simply because it would have
reached a different conclusion
to that reached by the judicial
officer issuing the warrant. It may only set aside the warrant if it
is persuaded that the discretion
has not been exercised judicially,
or flowed from a wrong appreciation of the facts or the law.”
[39] In
the matter of
Cooper NO v First National Bank of SA Ltd
2001
(3) 705 (SCA)
the court held that:
“
The primary
purpose of
section 69(3)
is to enable a trustee to collect and take
control of assets reasonably believed to belong to an insolvent
estate which are being
concealed or unlawfully withheld. It does not
purport to, nor was it intended to, provide a means for finality
determining competing
claims to property which is alleged to belong
to an insolvent estate.
Section 69(3)
was
clearly intended to strengthen the hand of a trustee in carrying out
the obligation to take charge of all the assets belonging
to an
insolvent estate.”
[40] In
the matter of
Bruwil Konstruksie (Edms) Bpk v Whitson NO and
Another
1980 (4) SA 703
(T)
the court held as follows:
“
It seems to me
that the purpose of the section is clearly to enable the liquidator
or trustee to obtain speedy possession of goods
belonging to an
estate which he suspects, or believes on reasonable grounds, to be
assets of the estate. The safeguard to the ordinary
public lies in
the word ‘reasonable’ belief, or ‘reasonable’
grounds for suspecting. I put it to Mr Goldstein
whether the words
‘reasonable grounds’ imply that it should amount to a
prima facie case in a court of law. Unfortunately,
there is no
guidance or precedent on this particular section but, in my view, it
contemplates a lesser burden than a prima facie
case in a court of
law, otherwise there would be hardly any purpose in the section. The
section is obviously designed to enable
a liquidator or trustee to
obtain possession of assets speedily and to place an onus on the
person in possession to prove his ownership
or right to possession,
and to remove the burden from an estate of instituting action first
and of discharging the onus of proving
that the estate is the owner.
If this is so, it seems to me that it would be wrong to equate the
duty resting on a liquidator or
trustee under this section with that
of a litigant in proving a prima facie case. It seems clear that
sometimes less would suffice.
However, he can never be free of a
burden before he applies to the magistrate and makes the statement
that he had reasonable grounds
for suspecting that these are assets
belonging to the estate of the insolvent.
It seems to me that
the words ‘reasonable grounds’ imply an investigation of
some kind. The question is how far does
he have to go in his
investigation? It also seems clear that the reasonable suspicion
which must exist must be an objective and
not a subjective one, as
far as the particular trustee or liquidator is concerned. This seems
to be the error into which the first
respondent has fallen, namely
that he acted in some respect impulsively, and that he jumped to a
conclusion which he should not
have done. Had he investigated the
matter more fully, had he communicated and consulted with Mr Pols and
enquired from him where
Pienaar was, he no doubt have been able to
contact Pienaar and then it seems clear that he would have been
constrained to investigate
the question of the offer of compromise
which had been made during 1977 and 1978, as a result whereof Pienaar
acquired his claims
against the company which enabled him to effect
the set-off and acquire the assets which he subsequently sold to the
applicant.”
[41] In
the
Bruwil
matter the court found that the Magistrate
ought to have called for facts on which the liquidator‘s
opinion and conclusions
were based and ought not to have merely
accepted same without factual proof. The court held that the error of
judgement was not
only that of the Magistrate but of the liquidator
too.
[42] In
the
Cooper
matter
supra
,
the
central issue that the court had to adjudicate on was whether the
common law principle of
audi alteram partem
applied to
applications for search warrants brought in terms of
section 69
of
the
Insolvency Act. The
court held that the principle applies to an
application directed to a magistrate for a
section 69
search warrant,
unless the applicant can show the following:
42.1 The
object and purpose of the search and seizure would be defeated by
giving notice;
42.2 It
could be inferred that the legislature intended to exclude the giving
of notice and the concomitant right
to be heard.
[43] It
was further held in the
Coope
r
matter that in
circumstances where prior notice ought to have been given, and was
not, any such warrant obtained stands to be set
aside on that ground
alone.
[44] It
is trite that a party who brings an application on an
ex parte
basis must make full disclosure of all material facts and must
observe the utmost good faith in the application.
[45] In
the matter of
De Jager v Heilbron and Others
1947
(2) SA 415
(W)
at 415 to 420 the court held that :
“
It has been
laid down, however , in numerous decisions of our Courts that the
utmost good faith must be observed by litigants making
ex parte
applications, and that all material facts must be placed before the
Court … If an order has been made upon an ex
parte
application, and it appears that material facts have been kept back
which might have influenced the decision of the Court
whether to make
the order or not, the Court has a discretion to set aside the order
on the ground of the non-disclosure …
It is not necessary that
the suppression of the material fact shall have been wilful or mala
fide.”
[46]
Section
26(1)
of the
Administration of Estates Act is
crystal clear that the
executor
shall take into his custody or under his control all the
property, books and documents in the estate and not in the possession
of
any person who claims to be entitled to retain it under any
contract, right of retention or attachment.
This in my view, means
that the assets must belong to the estate of the deceased or patient
and the executor or curator must have
a reasonable suspicion that
such assets are being withheld or concealed from him. The second
respondent should not have jumped
to the conclusion that the patient
is a beneficiary in the trust, he should have rather made enquiries
with the Master of the High
Court and obtained certified copies of
the Trust Deed and any other relevant documents from the Master’s
file. Had he done
so, he might not have acted so impulsively.
Similarly with regard to the Liquidation and Distribution Account
that he relied on,
it was not yet approved by the Master and could
not be considered an asset in the estate of the patient .
[47] The
Applicants aver in their founding affidavit that the fourth applicant
advised the second and third respondents
that they are in possession
of the documents and information they were requesting. Their only
predicament was that as the auditors
of Anko Trust, they were not at
liberty to provide the second and third respondent the information
without the approval of their
client and directed them to the
relevant person to request the documents from. This in my view does
not mean that documents or
information was being concealed from him.
[48] The
second and third respondents were within their rights to apply to the
magistrate in terms of
section 26
however they should have given the
fourth applicant notice, more so because when they advised the fourth
applicant of their intention
to invoke
section 26
, the fourth
applicant advised them in writing to serve them at their attorneys’
offices with the application. The fourth
applicant advised the second
and third respondents that there is no threat of them dissipating the
documents as they are ethical
auditors. It is my view that because
the assets did not belong to the estate of the patient, the search
warrant stands to be set
aside.
[49] On
careful scrutiny, both
section 26
(2) and (3) of the
Administration
of Estates Act and
section 69
(2) and (3) of the
Insolvency Act
provides
that the executor may apply to a magistrate as opposed to
approaching the magistrate as the second responded avers.
[50] The
second and third respondents rely on section 29(4) of the National
Prosecuting Authority Act which reads
as follows:
“
Subject to
subsection (10), the premises referred to in subsection (1) may only
be entered, and the acts referred to in subsection
(1) may only be
performed, by virtue of a warrant issued in chambers by a magistrate,
regional magistrate or judge of the area
of jurisdiction within which
the premises is situated: Provided that such a warrant may be issued
by a judge in respect of premises
situated in another area of
jurisdiction, if he or she deems it justified.”
[51] It
is my respectful view that it is irrelevant whether the matter was
heard in court or in chambers, what
is of importance is that the
presiding officer must apply their mind properly to the facts placed
before him/or her and be satisfied
that a clear and substantial case
has been made out.
[52] It
is trite that
ex parte
applications in the Magistrate Court
are brought in terms of Rule 55 which provides that the following
requirements are satisfied:
(1) The
giving of notice would defeat the purpose of the application; or
(2) The
degree of urgency is so great that the dispensing of notice is
justified.
[53] Turning
to the matter before me, the second and third respondents admit in
their answering affidavit that
their founding affidavit is not beyond
criticism, they submit that the affidavit has to be seen in the
context on which it was
deposed to in order to obtain access to
documents that would support the claim and indicate the liability of
the trust to the deceased
estate and/or the patient. They left out
material facts, namely, correspondences between them and the fourth
applicant, which might
have caused the magistrate to decide otherwise
had this information been placed before her. The authorities are
crystal clear that
the utmost good faith must be observed by
litigants making
ex parte
applications, and “
that all
material facts must be placed before the Court … If an order
has been made upon an ex parte application, and it
appears that
material facts have been kept back which might have influenced the
decision of the Court whether to make the order
or not, the Court has
a discretion to set aside the order on the ground of non-disclosure …
It is not necessary that the
suppression of the material fact shall
have been wilful or mala fide
.”
De Jager v Heilbron
supra.
[54] By
their own admission in their documents, they state that the matter
was not urgent and what is even more
glaring is the fact that no
information was put before the magistrate to suggest that the matter
had to be dealt with urgently.
[55] Section
26 is clear that the assets must belong to the estate the executor is
administering. The second and
third respondents did not place any
information before the magistrate that proved that the assets
belonged to the estate of the
patient as required by section 85. What
was placed before the magistrate was a liquidation and distribution
account that had not
been accepted by the Master, they also alluded
that the patient was a beneficiary in the trust. Had the curator done
a proper investigation
with the Master of the High Court, he would
have established for himself that the patient was not a beneficiary
of the trust and
also that the administration of the estate of the
patient’s husband was not finalised.
[56] The
first respondent in her reasons for granting the order stated that
application was brought before her
on an urgent basis as set out in
the papers and based on the information before her, believed that the
assets belonging to the
estate of the patient were being withheld or
concealed from the
curator
. It is my respectful view that
there was not enough information in the founding affidavit that could
have made the first respondent
to grant such a drastic order without
calling for facts on which the
curator’
s
(second
respondent)
opinion and conclusions were based and ought not to
have merely accepted same without factual proof.
[57] The
applicants aver that the second and third respondents should have
afforded the fourth applicant the right
to be heard by serving them
with the papers when they made the application to the magistrate. By
not serving them, they denied
them their right to the common law
principles of natural justice , the
audi alteram partem principle,
which is the right to a fair hearing. The authorities are clear
on this matter, and in the
Cooper
matter it was
held that where prior notice ought to have been given and was not,
then any warrant granted or obtained stands to
be set aside on that
ground alone. My view is that the second respondent acted in an
unacceptable manner in bringing the application
before the magistrate
in an
ex parte
application.
[58] The
applicants are requesting costs
de bonis propriis
against the
second and third respondents, reason being that their conduct in not
disclosing extensive correspondence “
is most definitely
unacceptable and also improper”.
The applicants further
aver that the correspondence contained detailed reasons by the fourth
applicant explaining why the respondent’s
demands were not
lawful and further why the fourth applicant could not legally and
lawfully adhere to such demands. The correspondence
went further to
indicate that should any litigation be brought in terms of
section 26
of the
Administration of Estates Act, the
applicants should be served
by way of service on their attorneys as they intended to oppose such
application.
[60] The
second and third respondents on the other hand contend that they had
a reasonable suspicion that the assets
belonged to their client
(patient ) and they were trying to protect the assets and interests
of their client.
[61] In
the
Cooper
matter
supra
where the court
dealt with issue of costs
de bonis propriis
against a trustee
in relation to
section 69(3)
of the
Insolvency Act it
was held:
“
There remains
to be considered the appeal against the cost order. The general
principle of the common law is that a trustee, who
acts in a
representative capacity, cannot be ordered to pay costs de bonis
propriis unless he has been guilty of improper conduct.
The Judge a
quo found the appellant’s conduct to be ‘unacceptable’.
Improper conduct is always unacceptable;
but unacceptable conduct is
not necessarily improper. While the appellant’s conduct may
have been ill-considered, and his
application lacking in certain
essential detail to the extent that it may be said that he did not
make a full disclosure of all
relevant facts, one cannot, in my view,
go so far as to hold that his conduct was improper. It has not been
shown that there was
a conscious attempt on his part that to mislead
the magistrate or to use
section 69(3)
unfairly to his advantage. In
the circumstances the special costs order against the appellant was
not justified and falls to be
set aside. The appeal succeeds pro
tanto.”
[62] Turning
to the matter before me, I am not convinced that the
curator
acted in an improper manner. In my view the
curator
was under
the mistaken reasonable suspicion that the documents belonged to his
client (patient) and acted impulsively. His reasonable
suspicion was
not objective but rather subjective and the assets did not belong to
his client(patient). In my view his conduct
was impulsive,
ill-considered and unacceptable but not improper nor
mala fide.
[63] I
conclude that first responded erred in granting the search warrant,
as I am persuaded that the court’s
decision flowed from a wrong
appreciation of the facts and law. The facts placed before the court
were scanty and the magistrate
should have asked for further
information to support the
curator’
s opinions and
conclusions in the founding affidavit. Further, the application
before the magistrate did not require her to make
any findings on
urgency and nevertheless in her reasons the first respondent based
her finding on the grounds of urgency contained
in the founding
affidavit in support of the
ex parte
application.
[64] I
further concluded that the second respondent did not establish that
the assets belonged to the estate of
the patient.
Section 26
read
with
section 85
of the
Administration of Estates Act is
a draconian
provision giving the
executor
and /or
curator
extra
ordinary powers and should be interpreted strictly, although these
powers can only be accessed after an application has been
made to a
magistrate and a search warrant has been issued. The
curator
should have made a further investigation with the master’s
office and perhaps on doing so may have found information that may
have caused him to exercise restraint and have instituted action
against the legal owner of the information he was requesting.
On the
ground that the assets did not belong to the estate of the patient,
the
curator
had no
locus standi
to bring the
application.
[65] I
further conclude that the second respondent did not comply with the
requirements for an
ex parte
application and should have
afforded the applicants a right to a fair hearing. The authorities
are clear that the common law principle
of
audi alteram partem
is
sacrosanct to our jurisprudence and cannot be dispensed of without
just and reasonable cause as has been done in the case before
me.
[66] Based
on the reasons above I decide that having reviewed the matter, the
search warrant stands to be set aside.
[67] Having
decided to set aside the search warrant on the basis indicated above,
I consider it unnecessary to
deal with the submissions made by the
applicants regarding the constitutionality thereof.
[68] In
the premises, the following order is made
1. The
decision of the Magistrate to issue a search warrant on the 22
January 2020 is reviewed and set aside.
2. The
second and third respondents are ordered to return to the fourth
applicant all documents attached and/or
removed from the third and
fourth applicants during the execution of the said search warrant.
3. The
second and third respondents are ordered to compile a list of
photographs that were taken by both the Sheriff
of the High Court as
well as the representatives of the second and third respondents at
the fourth respondent’s premises
during the execution of the
said search and that such list be confirmed under oath.
4. The
second and third respondents are ordered to delete or destroy all
photographs taken by both the Sheriff
of the High Court as well as
the representatives of the second and third respondents on the 22
nd
of January 2020 at the fourth applicant’s premises during the
execution of the said search warrant and that the second and
third
respondents are ordered to confirm under oath that such photographs
have been deleted and/or destroyed.
5. The
second and third respondents must pay the costs on an Attorney and
client scale, including the costs of
two counsel.
M.M.D. LENYAI
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
CASE
NO: 10044/2020
HEARD
ON: 28 April 2021
FOR
THE APPLICANTS: ADV. T.
STRYDOM SC
ADV. A. CRAUCAMP NÉE
VAN NIEKERK
INSTRUCTED
BY: Geyser
Attorneys Incorporated,
Lynnwood Pretoria
FOR
THE FIRST RESPONDENT: State
Attorney, Pretoria
FOR
THE SECOND AND THIRD RESPONDENTS: ADV. G.J.
SCHEEPERS SC
INSTRUCTED
BY: JPA
Venter Attorneys
DATE
OF JUDGMENT: 14 July 2021