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2021
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[2021] ZAGPJHC 439
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Duiker v Rakale and Others (14689/2021) [2021] ZAGPJHC 439 (20 September 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
14689/2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED.
NO
DATE
20 September 2021
In
the matter between:
KATLEGO
DUIKER
Applicant
and
MMBATHO
LILLIAN RAKALE
First Respondent
WELCOME
NORMAN JACOBS
Second Respondent
(In
his capacity as Trustee of Mayibuye Trust)
THE
MASTER OF THE HIGH COURT,
JOHANNESBURG
Third Respondent
JUDGMENT
MAHON
AJ
[1]
In this application the applicant seeks an order:
[1.1]
removing
the first respondent as executor of the estate late Itumeleng
Benjamin Duiker and Daphne Duiker (“the deceased estate”);
[1.2]
staying
all activities by the Mayibuye Trust to “
round-up
”
the deceased estate; and
[1.3]
that
the third respondent cease any or all processes of administration
relating to the deceased estate pending the finalisation
of criminal
proceedings relating to the said estate.
[2]
The
applicant’s father passed away on 25 September 2016 and his
mother passed away on 6 May 2017. They died testate with a
valid will
and elected the first respondent, the applicant’s aunt, to be
the executor of their estate.
[3]
The
basis of the present application is captured in a few short
paragraphs in the founding affidavit. It is comprised of the
following:
[3.1]
that,
even after having obtained the letters of executorship in 2018, “…
not much activity with regards to
winding-up the estate has taken place ...
”
;
[3.2]
that
there have been a number of administrators who have been appointed by
the first respondent to assist in the administration
of the estate,
prior to the appointment of the second respondent;
[3.3]
that
certain incidents have fuelled the applicant’s “
suspicions
”
of criminal activities on the part of the first
respondent in the administration of the deceased estate, namely:
[3.3.1]
the
fact that the second respondent delivered a letter to the erstwhile
executor informing him that he was the newly appointed agent
nominated by the newly appointed executor to administer the estate
whilst the appointment of the current executor was only approved
on
24 August 2020 and the power of attorney signed only on 31
August 2020;
[3.3.2]
that
the applicant’s legal representatives approached the office of
the third respondent to uplift the files relating to the
estate and,
on three occasions, found that the files were missing.
[4]
The
applicant’s suspicions led the applicant to open a criminal
case of fraud against the first respondent and to notify the
third
respondent of this state of affairs.
[5]
During
the course of argument, the applicant’s counsel drew my
attention to a further aspect which, he submitted, provided
an
indication of untoward activity on the part of the first respondent.
This consisted in the delivery of a power of attorney,
under the
first respondent’s name but on the second respondent’s
letterhead, in which the estate is referred to as
an “intestate
estate” (which is factually incorrect). The applicant could
not, however, suggest any motive for the
first respondent to
deliberately mislead anyone in this regard and the possibility that
this reference was simply made in error
could not reasonably be
excluded.
[6]
It
is on the basis of these allegations that the applicant seeks the
first respondent’s removal.
[7]
The
first respondent denies any wrongdoing in the conduct of the
administration of the estate.
[8]
The
process by which an executor may be removed from office is governed
by the provisions of
section 54
of the
Administration of Estates Act
66 of 1965
.
Section 54(1)(b)
deals with the grounds for removal of an
executor by the Master and is therefore not of application to these
proceedings.
[9]
Section
54(1)(a)
provides for the removal of an executor by the court. During
the course of argument, the applicant conceded that
sections
54(1)(a)(ii)
to (iii) were not applicable to the present facts. The
applicant sought to rely on the provisions of
section 54(1)(a)(v)
which provides that an executor may at any time be removed from his
office, by the court if the court is satisfied that it is undesirable
that he should act as executor of the estate concerned.
[10]
Thus,
in order for me to grant the application I must be satisfied, on a
balance of probabilities, that it is undesirable that the
first
respondent should continue to act as executor of the estate.
[11]
In
the present application, however, there is a dearth of any factual
foundation for the motivated removal.
[12]
A
mere suspicion of criminal activity cannot, in and of itself, justify
the removal of an executor, particularly where the facts
from which
the inference of criminal activity is to be drawn fall far short of
what could reasonably engender such a suspicion.
Indeed, there are
any number of possible reasons for files to go missing in the
Master’s office or for the second respondent
to have
incorrectly described the estate as intestate. The conclusion which
the applicant seeks to draw from this misstatement
in correspondence,
namely, an intention to deceive in relation to the true nature of the
deceased estate is, in my view, a bridge
too far.
[13]
In
his heads of argument, counsel for the applicant contended that the
first respondent had “
violated
”
the requirements of
sections 29
,
31
,
35
and
36
of
the Act and sought to rely upon these alleged violations as a basis
to seek the first respondent’s removal in terms of
section
54(1)(a)(v).
However, there is simply no basis to conclude that any
of the above sections find any application to the facts of the
present matter,
save, perhaps, for
section 36
which provides as
follows:
“
If any
executor fails to lodge any account with the Master as and when
required by this Act, or to lodge any voucher or vouchers
in support
of such account or any entry therein in accordance with a provision
of or a requirement imposed under this Act or to
perform any other
duty imposed upon him by this Act or to comply with any reasonable
demand of the Master for information or proof
required by him in
connection with the liquidation or distribution of the estate, the
Master or any person having an interest in
the liquidation and
distribution of the estate may, after giving the executor not less
than one month’s notice, apply to
the court for an order
directing the executor to lodge such account or voucher or vouchers
in support thereof or of any entry thereon
or to perform such duty or
to comply with such demand.
”
[14]
This
section, however, is only peripherally relevant insofar as the
applicant complains of a delay in the administration of the
estate.
However, the high watermark of the applicant’s case in this
regard is the bald allegation that after having obtained
letters of
executorship in 2018, “
... not
much activity with regards to winding-up the estate has taken place
”
.
[15]
It
is peculiar, however, that in light of the applicant’s
dissatisfaction with the perceived delay in the finalisation of
the
estate, the applicant has nonetheless not sought to exercise his
rights in terms of
section 36.
Even more strange, is the applicant’s
prayer for an order directing the third respondent to cease any or
all processes of
administration relating to the estate pending the
finalisation of the criminal proceedings relating to the estate. This
relief,
if granted, would further delay the finalisation of the
estate.
[16]
Finally,
I am mindful of the fact that shortly before the hearing of this
matter, the third respondent delivered a report in regard
to the
current status of the estate and made no adverse comments in regard
to the conduct of either the first or the second respondent.
[17]
On
a conspectus of the allegations contained in the founding affidavit,
there is simply insufficient factual matter to sustain the
conclusion
that it is undesirable for the first respondent to continue as
executor in the estate.
[18]
That
being the case, the claim for the additional relief sought by the
applicant must similarly fail.
[19]
I
accordingly make the following order:
[19.1]
The application is dismissed with costs.
D
MAHON
Acting
Judge of the High Court
Johannesburg
APPEARANCES
:
For
the applicant: Adv J Mabaso
Instructed
by:
Frans Mashele Incorporated
For
the respondent: Adv J J Venter
Instructed
by:
Kruger & Co Incorporated Attorneys
Date
of hearing: 8 September 2021
Date
of judgment: 20 September 2021