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[2020] ZALMPPHC 29
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Setati v Master of the High Court and Another (3343/2019) [2020] ZALMPPHC 29 (19 May 2020)
IN THE HIGH
COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
CASE no:3343/2019
19/5/2020
NOKO
HELLEN SETATI
APPLICANT
And
THE
MASTER OF THE HIFH COURT
FIRST RESPONDENT
RAMAHLAPE
MICHAEL DUBE
SECOND RESPONDENT
JUDGMENT
MULLER
J:
INTRODUCTION
[1]
The expression “first come, first serve” has acquired new
meaning when
we are dealing with the appointment of executors in
deceased estates. There are in many instances the erroneous
perception that
the person who is appointed first as executor will be
entitled to the proceeds of the estate.
BACKGROUND
[2]
Kwena Regina Setati passed away 18 October 2017.
[1]
The death certificate indicates that her marital status as “never
married”. The deceased is survived by a minor child
Blessing
Thegofatso Setati born on 1 December 2008.
[3]
The applicant, who is the mother of the deceased, completed the
required death notice
and the declaration of subsisting marriage.
[2]
She indicated that the deceased was never married. She reported the
death to the first respondent
[3]
in Polokwane 25 October 2017 and also applied to be appointed as the
executrix of the deceased estate.
[4]
On 4 December 2017 the deceased was informed by the Master that the
second respondent
was appointed as the executor.
[5]
The attorney of the applicant inspected the file at the offices of
the Master and
discovered from the said file that the second
respondent also applied to be appointed the executor on the basis
that he is the
surviving spouse of the deceased.
[6]
It bears mentioning that neither the applicant nor the second
respondent handed a will which was
executed by the deceased to the
master with their respective applications.
[7]
The applicant applied in terms of section 95 of the Administration of
Estates Act
[4]
to review the
decision of the Master to appoint the second respondent as executor
in the deceased estate of the late Kwena Regina
Setati, and seeks an
order that the Master considers the provisions of section 19 of the
Act 66 of 1965 after having made a determination
in terms of section
5 of the Reform of Customary Law of Succession and Regulation of
Related Matters Act.
[5]
[8]
The second respondent opposed the application. He maintained that he
was married to
the deceased in terms of customary law. Lobola of
R32000.00 which was agreed upon between the families was paid and a
wedding ceremony
was held. In addition, he attached to his papers a
letter from the Moletsi Traditional Council confirming that he and
the deceased
had entered into a customary marriage.
The
Law
[9]
No person may liquidate or distribute the estate of any deceased
person except under
letters of executorship granted or signed under
Act 66 of 1965.
[6]
In compliance
with section 13, the second respondent was appointed by the Master as
the executor dative in the deceased estate
under letters of
executorship issued n 31 October 2017.
[10]
The letters,
ex facie
the document were purportedly issued in
terms of section and 14 of Act 66 of 1965.The relevant part of
section 14 provides:
‘
14(1). The Master
shall, subject to subsection (2) and sections 16 and 22, on the
application of any person who –
(a)
Has been
nominated as executor by any deceased person by a will which has been
registered and accepted in the office of the Master;
and
(b)
Is
not incapacitated from being an executor of the estate of the
deceased and has complied with the provisions of this Act,
grant letters of
executorship to such person.
(2)
…’
[11]
The reference to section 14 in the letters of executorship is
incorrect. On the facts of this
matter, the appointment was not
authorised by section 14, since the deceased died intestate. The
Master may make an appointment
and grant letters of appointment under
section 14, if the deceased has executed a will and the said will has
been accepted and
registered by the Master. The letters of
appointment is misleading to the extent that it purports to indicate
that the deceased
executed a will.
[12]
Section 18 provides that:
‘
(1) The Master
shall, subject to the provisions of subsections (3), (5) and (6) –
(a)
if any
person has died without having by will nominated any person to be his
executor;
(b)….
appoint
and grant letters of executorship to such person or persons whom he
may deem fit and proper to be executor or executors
of the estate of
the deceased or, if he deems it necessary or expedient, by notice
published in the
Gazette
and in such other manner as in his
opinion is best calculated to bring it to the attention of the
persons concerned, call upon the
surviving spouse, (if any), the
heirs of the deceased and all persons having claims against the
estate, to attend before him or,
if more expedient, before any other
Master or any magistrate at a time and place specified in the notice,
for the purpose of recommending
to the Master for appointment as
executor or executors, a person or a specified number of persons.’
(2)
If the Master has published a notice under subsection (1) he shall,
on receipt of the recommendation in question or when it
appears that
the persons concerned have failed to make any recommendation, subject
to the provisions of subsection (3) and sections
19, 22 and 23,
unless it appears to him to be necessary or expedient to postpone the
appointment and grant letters of executorship
to such person or
persons as he deems fit and proper to be executor or executors of the
estate of the deceased.
(3)
If the value of any estate does not exceed the amount determined by
the Minister by notice in the
Gazette
the
Minister may dispense with the appointment of an executor and give
directions as to the manner in which any such estate shall
be
liquidated and distributed.’
[7]
[13]
It is noteworthy that the Master has stated in his report that:
‘
6.
On 31 October 2017 I appointed the second respondent in this matter
to be executor of his deceased wife estate since that I was
satisfied
that the marriage relationship existed between him and the deceased.
I took this decision relying on the provisions of
section 5(1) the
Reform of Customary Law of Succession and Regulation of Related
Matters Act 11 of 2009, “which provides
that if any dispute or
uncertainty arise with… the Master of the High Court having
jurisdiction under the Administration
of Estates Act, 1965 (Act 66 of
1965),
may
,
subject to subsection (2), make such a determination as just and
equitable in order to resolve the dispute or remove the uncertainty.
7. The Act specifically
indicate that the Master may conduct an enquiry if he is not certain
the marriage relationship existed between
the parties, now in this
case the Master was satisfied that the marriage relationship existed,
lobola was paid in full and there
is evidence by the photos that a
white wedding was celebrated between the deceased and the Second
Respondent.”
[14] It is
contended by the applicant that the appointment of the second
respondent by the Master was influenced by
an error of law who ought
to have applied section 19 when both the applicant and second
respondent applied for appointment, after
having considered a
determination in terms of section 5 of Act 11 of 2009. It is
furthermore argued that the Master appointed the
second respondent
after consideration of irrelevant considerations and failed to take
relevant considerations into account.
[8]
[15] The
provisions of section 18(1) and 18(2) of Act 66 of 1965 are
peremptory.
[9]
The Master is
obliged to follow them to appoint an executor dative in the deceased
estate. When a person died without a will, the
Master has the
discretion, in terms of section 18(1)(a), to follow one of two
routes, in his discretion, to appoint a person which
the Master may
deem fit and proper to be an executor.
[16] The
Master may, in the first instance, appoint and grant letters of
executorship to a person or persons whom the
Master considered to be
a fit and proper person. Or, in the second instance, if he/she deems
it necessary or expedient, by notice
in the Gazette or such other
manner which the Master considered necessary or expedient, call upon
the surviving spouse (if any),
the heirs of the deceased and all
other persons with claims against the estate to appear before him or
another Master or even a
magistrate for purposes of recommending a
person or persons for appointment as executor.
[17] The
Master, after he/she has published the notice, on receipt of the
recommendation and subject to section 19,
22 and 23 (subsections 22
and 23 are not relevant to the present issues) make an appointment,
unless it is necessary to postpone
the appointment or publish a fresh
notice.
[10]
If two, or more
persons are nominated, the Master must then turn to section 19 of the
Act 66 of 1965 for assistance.
[18]
Section 19 states the following:
’
19.
If more than one person is nominated for recommendation to the
Master, the Master shall, in making any appointment, give preference
to –
(a)
the
surviving spouse or his nominee; or
(b)
if no
surviving spouse is so nominated or the surviving spouse has not
nominated any person, an heir or his nominee; or
(c)
if no heir
is so nominated or no heir has nominated any person, a creditor or
his nominee; or
(d)
the tutor
or curator of any heir or creditor so nominated who is a minor or a
person under curatorship, in the place of such heir
or creditor:
Provided that the Master
may –
(i)
join any of
the said persons as executors with any other of them; or
(ii)
if there is
any good reason therefore, pass by any or all of the said persons.’
[19]
The Master did not invoke any of the procedures set out in section
18(1)(a) or 18(2) to call
for recommendations. It is common cause
that applications by the applicant and the second respondent were not
prepared and submitted
by them as a result of a notice published in
the Gazette by the Master or as a result of any other notice issued
by the Master
in terms of section 18(1)(a) or section 18(2).
[20]
The applicant and the second respondent forwarded their applications
for consideration for appointment
to the Master independently from each other and of their own
volition. Neither the applicant nor the respondents can rely on the
provisions of section 19, nor is the Master able to
apply section 19 until such time that a person or persons
are
nominated for recommendation in terms of the procedure prescribed in
section 18(1)(a).
[21]
It is not disputed that the Master applied the provisions of section
5 of Act 11 of 2009 to make
the impugned appointment, instead of
using the procedures prescribed in section 18(1) or 18(2).
[22]
I turn next to determine whether to procedure which the Master
utilised was authorised in terms
of the provisions of section 5 of
Act 11 of 2009.
[23]
Section 5 states:
‘
5(1) If any
dispute or uncertainty arises in connection with-
(a)
the status
of any claim by any person in relation to a person whose estate or
part thereof must, in terms of this Act devolve in
terms of the
Intestate Succession Act;
(b)
the nature
or content of any asset in such estate; or
(c)
the
devolution of family property involved in such estate,
the
Master of the High Court having jurisdiction under the Administration
of Estates Act 1965 (Act no 66 of 1965), may, subject
to subsection
(2), make such a determination as may be just and equitable in order
to resolve the dispute or remove the uncertainty.
(2)
Before making a determination under subsection (1), the Master may
direct that an enquiry into the matter be held by a magistrate
or a
traditional leader in the area in which the Master has jurisdiction.
(3)
After the enquiry referred to in subsection (2), the magistrate or a
traditional leader, as the case may be, must make a recommendation
to
the Master who directed that an enquiry be held.
(4)
The Master, in making a determination, or the magistrate or a
traditional leader, as the case may be, in making a recommendation
referred to in this section, must have due regard to the best
interests of the deceased of the deceased’s family members
and
the equality of spouses in customary and civil marriages.
(5)
The Cabinet member responsible for the administration may make
regulations regarding any aspect of the inquiry referred to in
this
section.’
[24]
The basis of the application, on pain of repetition, is that the
appointment of the executor
in the deceased estate is reviewable due
to an error of law and the consideration of irrelevant
considerations. The applicant asserted
that the appointment is flawed
due to the failure of the Master to take into account that certain
essential elements must be proved
before the Master can be
“satisfied” that a customary marriage exists. The
dispute, so the argument ran, is that a
customary marriage has not
been proved to have been entered into. The Master, therefore, could
not have been satisfied that the
second respondent is the surviving
spouse of the deceased. And for the Master to be satisfied, an
enquiry in terms of section 5
for must be conducted to determine
whether a customary marriage indeed existed between the second
respondent and the deceased.
[25]
It is unnecessary to traverse the essential requirements for a valid
customary marriage because
of the view that I take.
[26]
The preamble of Act 11 of 2009 sets out the purpose of the Act. It
is:
‘
To
modify the customary law of succession so as to provide for the
devolution of certain property in terms of the law of intestate
succession; to clarify certain matters relating to the law of
so
called
succession
and the law of property in relation to persons subject to customary
law; and to amend certain laws in this regard; and
to provide for
matters connected therewith.’
[27]
The Constitutional Court in
Cool
Ideas 1186 CC v Hubbard and Another
[11]
reiterated that it is:
‘
A
fundamental tenet of statutory interpretation that the words in a
statute must be given their ordinary grammatical meaning unless
to do
so will result in an absurdity. There are three important
interrelated riders to this general principle, namely;
(a)
that
statutory provisions should always be interpreted purposively;
(b)
the
relevant statutory provision must be properly be contextualised; and
(c)
all
statutes must be construed consistently with the Constitution, that
is, where reasonable possible, legislative provisions ought
to
interpreted to preserve their constitutional validity. This proviso
to the general principle is closely related to the purposive
approach
referred to in (a).’
[12]
[28]
Act 11 of 2009, deals with succession. The provisions of section 5 is
not a mechanism which a
Master may invoke to determine who is a fit
and proper person for appointment as executor on the one hand, or who
to appoint where
more than one person applied to the Master to be
appointed where a deceased died intestate, on the other. Act 66 of
1965 makes
provision for the administration of deceased estates which
clearly provides for the appointment of executors.
[29]
Section 5 may be invoked when there is uncertainty or a dispute which
has arisen in connection
with incidents referred to in subsections
(a), (b) or (c). Those incidents relate to the status of claims in
terms of the Intestate
Succession Act, the nature or content of
assets in the estate and the devolution of family property in a
deceased estate.
[30]
The Master is required by section 5 to undertake an enquiry to
resolve any of those disputes.
Put differently, the purpose of
section 5 has nothing whatsoever to do with the appointment of an
executor of a deceased estate.
[31]
The Master conceded that he utilised section 5 of Act 11 of 2009 to
appoint the second respondent
and to issue the letters of
executorship to him. In that respect the Master has erred. The
failure of the Master to follow the
procedure provided by section 18
of Act 66 of 1965 to make the appointment, resulted in an error of
law.
CONCLUSION
[32] In the
result, the appointment and the letters of executorship issued to the
second respondent by the Master must
be set aside. The Master must
comply with the provisions of section 18(1)(a) which is the
empowering provision.
[33]
I am convinced that the dispute who to nominate for an appointment
will resolve itself when the
family members or interested parties are
called upon to assist the Master in the appointment of the executor.
Wiechers and Vorster
explains:
[13]
‘
At
present the procedure for appointment of an executor dative in terms
of section 18(1) is for the most part the same as for the
appointment
of an executor testamentary. It is no longer necessary for the
interested parties to nominate an executor at a meeting,
unless the
Master considers it necessary or expedient to convene such meeting….
If
the administrator is aware of discord amongst the interested parties,
the Master should be requested to convene a meeting for
the
appointment of an executor. This would prevent an accusation that
some heirs are being treated with partiality.’
[34]
In this Province, most of the disputes in relation to the appointment
of executors and matters
of succession originate from disputes over
the validity of customary marriages. The present case is no
exception. The Master should
have acted in terms of section 18(1), to
resolve which person(s) should be appointed soon after the
applications were filed. The
public is entitled to rely on the Master
to scrupulously observe the provisions in Act 66 of 1965. It is by
acting fairly within
the confines of the law that the confidence of
the public is fostered and maintained.
[35]
The application was opposed by the second respondent. The applicant
is the successful party although
for different reasons, and is
entitled to her costs.
ORDER
1.
The
appointment of the second respondent as executor of the deceased
estate of the late Kwena Regina Setati and the letters of
executorship issued by the Master is reviewed and set aside.
2.
The
applications of both the applicant and the second respondent for
appointment as executors in estate late Kwena Regina Setati
are
referred back to Master to comply with the provisions of
section 18
of the
Administration of Estates Act, Act
66 of 1965.
3.
The
second respondent is ordered to pay the costs of the application.
4.
A
copy of this judgment must be submitted to the Master of the High
Court Limpopo Division Polokwane.
GC MULLER
JUDGE
OF THE HIGH COURT LIMPOPO DIVISION: POLOKWANE
APPEARANCES
1.
For the Applicant
: Avd GJ Diamond
2.
For the 2
nd
Respondent
: Avd TD Ledwaba
3.
Date heard
: 18 May 2020
4.
Date delivered
:19 May 2020
[1]
Hereinafter referred to as “the
deceased”.
[2]
The documents
included the death notice, inventory, affidavit of guardianship,
application to be appointed as executor and a declaration
of
subsisting marriage.
[3]
Hereinafter” the Master”.
[4]
Act 66 of 1965.
(Hereinafter ‘the Act 66 of 1965’).
[5]
Act 11 of 2009.
(Hereinafter ‘the Act 11 of 2009’).
[6]
Section 13(1) of
Act 66 of 1965.
[7]
The Minster
determined the amount at R250 000.00 in terms of Government Notice
R920 dated 24 November2014. The value of the estate
exceeded the
amount determined by the Minister.
[8]
Section 6(e)(iii)
of the Promotion of the Administrative Justice Act 3 of 2000.
[9]
Master of the
Supreme Court v Stern
1987
(1) SA 756
(T) 770D-E
.
[10]
If an objection is
raised against the nomination the Master may refuse to issue letters
of executorship in terms of section 22.
The Master may require
security in terms of section 23. Both section 22 and 23 find no
application in the present circumstances.
[11]
2014 (4) SA 474
(CC)
[12]
Par 28.Also
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA) para 18
.
[13]
Wiechers NJ
et al
Administration of Estates
Lexisnexis
(Loose leaf) (2019) par 2.2.3.