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[2019] ZAGPPHC 90
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Mere v Mere and Others (22159/2017) [2019] ZAGPPHC 90 (26 March 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
No
Case No. 22159/2017
26/3/2019
In
the matter between:
BOBBY
SAXTON
MERE
APPLICANT
And
ELIZABETH
MERE
FIRST RESPONDENT
MICHAEL
MERE
SECOND RESPONDENT
MASTER
OF THE HIGH COURT
–
PRETORIA
THIRD RESPONDENT
REASONS
FOR JUDGMENT
MILLAR, AJ
1.
This
application was heard on 28 January 2019. After hearing the parties,
I made an Order. On the same day that the Order was made,
the
Applicant applied for reasons. Inexplicably the court file became
misplaced and it was only when a duplicate file was opened
on 22
March 2019 that I was placed in a position to prepare this reasons.
2.
This
is an application in which the Applicant sought orders in the
following terms:
2.1
An
order directing the 3
rd
Respondent to re-open the estate of the late ltumeleng John Mere,
under the Master Estate reference number 959/2000.
2.2
An
order declaring any liquidation and distribution account and the
certificate thereof in respect of the estate late ltumeleng
John
Mere, with identity number 280816 5185 087, null and void and be set
aside.
2.3
An
order removing the 1
st
Respondent from office as an executor of the estate late ltumeleng
John Mere and be ordered to return her Letters of Executorship
to the
3
rd
Respondent with immediate effect.
2.4
An
order directing that the 3rd Respondent appointment and grant Letters
of Executorship to any person whom it deems fit and proper
to be the
executor of the estate of the deceased.
2.5
An
order directing that the 1
st
and 2
nd
Respondents pay the costs of this application.
3.
When
the matter was called, I raised a number of issues that arose on the
Applicant’s papers. These were the following:
3.1
The
failure to join all the heirs in the estate of the deceased as well
as persons who were alleged to be the current owners of
some of the
disputed immovable property.
3.2
Whether
it was possible to adjudicate the matter and in particular the
allegations in regard to the under of the properties in the
estate in
2002 when the evidence upon which such alleged under valuations was
premised were valuations as at 2010.
4.
I
indicated after having heard counsel that that having regard to these
issues, the application could not be properly adjudicated
and that it
was appropriate to postpone it so that the outstanding matters could
be addressed. Counsel for the Respondents did
not seriously oppose
this but argued that the Applicant should pay the wasted costs.
5.
The
present matter has as its genesis the marriage of the Applicant's
late father, the deceased, to the 1
st
Respondent in 1965. This was a civil marriage in community of
property - the parties being of different racial classification in
accordance with the apartheid laws applied at that time. The deceased
had divorced his first wife in 1961 and had obtained custody
of the
Applicant and his two sisters born of that marriage. From the
marriage of the deceased and the 1
st
Respondent, seven further children were born. They are the half
siblings biologically speaking of the Applicant. By the time the
deceased passed away on 26 March 2000, he was survived by the 1s t
Respondent, his wife of thirty -five years, and a total of 10
children.
6.
When
the deceased's estate was reported, and the 1
st
Respondent appointed as the representative in his estate on 5 April
2000, the total value of the assets in the estate was recorded
as
being R120 000.00.
7.
This
was the initial valuation of the assets in the estate. The letters of
authority were subsequently replaced by Letters of Executorship
and
the valuations of the property in the estate was subsequently amended
and increased to R270 000.00 in the liquidation and distribution
account which was submitted on 12 March 2002. The gross assets being
R270 000.00, in excess of the threshold of R125 000.00 applicable
at
the time is what necessitated the withdrawal of the letters of
authority. The liabilities in the estate totaled R55 363.14 and
this
left an amount for distribution of R214 636.86.
8.
The
liquidation and distribution account correctly reflects the 1s t
Respondent as being entitled to a half share of the amount
for
distribution i.e. R107 318.43 by virtue of the marriage in community
of property and furthermore and by virtue of the fact
that the
deceased died intestate, that the 1
st
Respondent was entitled to R125 000.00 or a child's share whichever
was the lessor. The Applicant and his 9 siblings are all recorded
in
the liquidation and distribution account as being the children of the
deceased who survived him.
9.
The
unhappiness of the Applicant stems from his belief that the 1
st
Respondent deliberately undervalued properties so as to ensure that
he was effectively disinherited. He did not wait to raise his
concerns but started litigating the issue at an early stage. As early
as March 2002 the Applicant had already consulted an attorney
to
raise his concerns regarding the valuation of the property in the
estate. It suffices to say that the Applicant has attempted
on a
number of occasions to have the estate re-opened. The Applicant has
been unsuccessful during the first 9 years of his endeavor.
10.
The
Applicant's current attorney of record was appointed
pro
bono
at the beginning of 2011. In
paragraph 21 of the Founding Affidavit, the Applicant states
"I respectfully submit
that I was advised, which advice I accepted, the critical point of
the contestation between the 1
st
Respondent, her son and us as the heirs in the late ltumeleng John
Mere, was incorrect evaluation of the 4 immovable properties
of the
deceased estate, which the 1
st
Respondent had been under evaluating them in order to secure the
whole estate assets for her own and the 2
nd
Respondent. In the circumstances, my current attorneys of record,
then sought the assistance of qualified evaluators called Dlava
Auctioners
CC,
a
close corporation that deals with evaluation and in providing
qualified report (sic) of the correct market value of the immovable
properties, to do evaluation of the immovable properties of the
estate.
"
11.
The
current application was issued on 28 March 2017, almost 17 years to
the day after the death of the deceased. Paragraph 21 of
the Founding
Affidavit, leaving aside the issue of the failure to join any of the
other 8 persons (the 8 siblings who are not cited
besides the
Applicant and 2
nd
Respondent) who would have a material interest in the reopening of
the estate, sets out the crux of the Applicant's case. The Applicant
asserts that the 4 immovable properties were under-valued in 2002.
12.
The
valuations obtained are singularly unhelpful. The valuations are all
dated 25 February 2016 and each reflects the value of the
particular
property as at the date of the valuation. In other words it took the
Applicant and his attorneys some 5 years to obtain
valuations of the
properties and when those valuations were obtained, they reflected
the values as at 25 February 2016, 16 years
after the original
valuations. Furthermore, the valuations all reflect the state of the
properties as at 2016 and contain no reference
to their state in 2002
when they were valued by the 1
st
Respondent and whether there were any improvements over the 16-year
period between the death of the deceased and the valuations.
The
valuations as they stand are unfortunately of no assistance
whatsoever in deciding the dispute.
13.
While
the Applicant has been represented
pro
bono
by his attorneys of record, the
1
st
and 2
nd
Respondents have not. They have been put to the expense of having to
defend themselves against the relentless pursuit by the Applicant
of
the re-opening of the estate of the deceased. They have not had the
privilege of
pro bono
legal
assistance.
14.
By
the time the application was heard, the Applicant himself recognized
that there had been a non-joinder - at least in respect
of the
current owners of some of the properties and took the view in
paragraph 36 of his replying affidavit dated 31 August 2017
that
"my
attorney of record and advocate Mashita after properly considering
the merits as contained in the replying affidavit, decided
that the
best option would be to in fact join the current owners of the
respective properties" .
15.
Notwithstanding
a recognition on the part of the Applicant and his attorney of record
that there was a material non-joinder of parties
as at 31 August
2017, they nevertheless proceeded to set the application down for
hearing on 28 October 2018.
16.
In
circumstances where the Applicant knew that the matter could not and
would not be ripe for hearing, he and his attorney nevertheless
proceeded to set the matter down and put the 1
st
and 2
nd
Respondents to the expense of having to brief their attorney and
counsel to settle heads of argument and appear to argue the
application.
17.
It
is for this reason that in my view, the Applicant was to bear the
wasted costs. Having regard to the length of time that the
Applicant
has pursued this application, the fact that the application is
subject to the short comings that it is and that the Respondents
were
needlessly brought to Court and caused to incur the expenses for
doing so, I formed the view that the Applicant ought not
to be
permitted to re-enroll this particular application until such time as
the wasted costs have been paid. In this regard I was
mindful of not
only the right of the Applicant to have his case heard but also the
right of the 1
st
and 2
nd
Respondents not to be put to unnecessary and avoidable expense.
18.
I
put it no higher than to state my concern for the manner in which the
Applicant’s attorney prepared this application and
then knowing
that it was not ripe for hearing, proceeded to set it down. Acting
for a client
pro bona
as
Applicant's attorneys do for him in this matter does not absolve them
of the obligation to provide a professional service to
the Applicant
and to ensure that their conduct in providing that service does not
amount to an abuse of any other party or for
that matter the Court.
19.
In
the circumstances, I made the following order:
19.1
The application is postponed sine die.
19.2
The Applicant is to pay the wasted
costs.
19.3
The
matter cannot be re-enrolled before proof is provided to the
Registrar that the costs referred to in paragraph 2 have been paid.
A MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
HEARD
ON:
28 JANUARY
2019
ORDER
MADE ON:
28 JANUARY
2019
REASONS:
26 MARCH
2019
COUNSEL
FOR THE APPLICANT:
ADV T MASHITOA
INSTRUCTED
BY:
CREMER & STRYDOM
INC.
REFERENCE:
MR L CREMER
COUNSEL
FOR THE FIRST & SECOND
RESONDENTS
:
ADV J DE SWARDT
INSTRUCTED
BY:
AMOS KHUMALO INC.
REFERENCE:
MR A KHUMALO
NO
APPEARANCE FOR THE THIRD RESPONDENT