About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2020
>>
[2020] ZALMPPHC 50
|
|
Setati v Master of the High Court and Another (3343/2019) [2020] ZALMPPHC 50 (19 May 2020)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
CASE no:3343/2019
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
B[….]
T[….] S[….] 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 on 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)
al
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....
It
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.
GC
MULLER
JUDGE
OF THE HIGH COURT
LIMPOPO
DIVISION: POLOKWANE
APPEARANCES
1.
For the Applicant
: Avd A Diamond
2.
For the 2
nd
Respondent
: Avd 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