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[2019] ZANCHC 53
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Engelbrecht N.O v Spangenberg and Others (1105/19) [2019] ZANCHC 53 (4 October 2019)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: 1105/19
Heard
on: 31/05/2019
Delivered on:
04/10/2019
In
the matter between
FRANKEL
ENGELBRECHT N.O.
Applicant
And
IZAK
FREDERICK SPANGENBERG
1
st
Respondent
(ID
Number: [….])
MARIA
CORNELIA VAN DER WESTHUIZEN
2
nd
Respondent
(ID
Number: [….]
CHRISTINA
ALETTA W LA COCK
3
rd
Respondent
(ID
Number: [….]
CJ
WILLEMSE, MULLER & BABINSZKY ATTORNEY 4
th
Respondent
THE
MASTER OF THE HIGH COURT, KIMBERLEY
5
th
Respondent
CHRISTINA
GERTRUIDA SPANGENBERG
6
th
Respondent
(ID
Number: [….])
JUDGMENT
PAKATI
J
[1]
The applicant, Mr Frankel Engelbrecht N.O., approached this Court on
urgent basis seeking an order in the
following terms:
“
1.
Directing that the applicant’s failure to comply with the
provisions of Rule 6(5) of the Uniform Rules of Court with regards
to
form and service and time periods be condoned and that this
application be dealt with as one of urgency in terms of Rule 6(12)
(a) and (b) of the Uniform Rules of Court.
2.
That the First, Second, Third and Fourth Respondents be interdicted
and prohibited from receiving any rental or other income
due in
respect of the buildings situated on the properties known as Plots
243 and 741, Jooste Islands, District Keimos, Northern
Cape Province.
3.
That the First, Second, Third and Fourth Respondents be ordered to
inform all occupants of the buildings situated on the properties
known as Plots 243 and 741, Jooste Island, District Keimos, Northern
Cape Province, that the First, Second, Third and Fourth Respondent
will no longer receive the rental due in respect of the properties,
and/or be responsible for the collection of the rental for
the
properties and supply them with the Estate’s, Standard Ban,
banking details.
4.
That the First, Second, Third and Fourth Respondents be interdicted
and prohibited from interfering with the administration of
the estate
and buildings situated on the properties known as Plots 243 and 741,
Jooste Island, District Keimos, Northern Cape Province,
for as long
as any of them are not duly appointed as executor/agent of an
executor.
5.
That the First, Second and Third Respondents be ordered to pay all
estate money, which they received from the previous executors
and/or
collected while acting as executors, which they have in their
possession and/or under their control, into the bank account
of the
Estate Late Spangenberg HH held at Standard Bank, account number
[….], Kimberley Branch within 7 days of the order
granted
herein.
6.
That the Fourth Respondent be ordered to pay all money due to and
relating to the Estate as well as all rental income the properties
known as Plots 243 and 741, Jooste Island, District Keimos, Northern
Cape Province that was Late Spangenberg HH held at Standard
Bank,
account number [….], Kimberley Branch within 7 days of the
order granted herein.
7. That the First,
Second, Third and Fourth Respondents be ordered to make full
disclosure of all income of the Estate received
by them in their
capacity as executors and/or attorneys of the First to Third
Respondents, together with substantiating documents,
including all
bank statements, within 30 days of the order.
8. That the First,
Second, Third and Fourth Respondents be ordered to make full
disclosure of any income received by them in their
personal capacity
from the estate late Mr HH Spangenberg, together with substantiating
documents within 30 days of the order.
9. That the First,
Second and Third Respondents be ordered to make full disclosure of
any express paid or incurred by them in their
capacity as executors
of the estate of Mr HH Spangenberg, together with substantiating
documents within 30 days of the order.
10. That the First,
Second, Third and Fourth Respondents be ordered to pay the costs of
this application on attorney and own-client
scale, jointly and
severally, the one paying the other to be absolved;
11. That the applicant
be granted such further and/or alternative relief as this Honourable
Court may deem fit.”
[2]
On 31 May 2019 I granted the following order:
“
1. That the
First, Second, Third and Fourth Respondents are interdicted and
prohibited from receiving any rental or other income
due in respect
of the buildings situated on the properties known as Plots 243 and
741, Jooste Island, District Keimos, Northern
Cape Province.
2. That the First,
Second, Third and Fourth Respondents are ordered to inform all the
occupants of the buildings situated on the
properties known as Plots
243 and 741, Jooste Island, District Keimos, Northern Cape Province
that the First, Second, Third and
Fourth Respondents will no longer
receive the rental due in respect of the properties, and/or be
responsible for the collection
of the rental for the properties and
supply them with the Estate’s Standard Bank building details.
3. That the First,
Second, Third and Fourth Respondents are interdicted and prohibited
from interfering with the administration
of the estate and buildings
situated on the properties known as Plots 243 and 741, Jooste Island,
District Keimos, Northern Cape
Province, for as long as any of them
are not duly appointed as executor/agent of the executor.
4. That the First,
Second, Third and Fourth Respondents are ordered to pay all estate
money, which they received from the previous
executors and/or
collected while acting as executors, which they have in their
possession and/or under their control, into the
bank account of the
Estate Late Spangenberg HH held at Standard Bank, account number
[….], Kimberley branch within 7 days
of the order granted
herein.
5. That the Fourth
Respondent is ordered to pay all the money due to and relating to the
Estate as well as all rental income of
the properties known as Plots
243 and 741, Jooste Island, District Keimos, Northern Cape Province
that was held in its trust account,
into the bank account number
[….], Kimberley branch within 7 days of the order granted
herein.
6. That the First,
Second, Third and Fourth Respondents are ordered to make full
disclosure of all income of the Estate received
by them in their
capacity as executors and/or attorneys of the First to Third
Respondents, together with substantiating documents,
including all
bank statements, within 30 days of the order.
7. That the First,
Second and Third Respondents are ordered to make full disclosure of
any income received by them in their personal
capacity from the
estate of the late Mr HH Spangenberg, together with substantiating
documents within 30 days of the order.
8. That the First,
Second and Third Respondents are ordered to make full disclosure of
any expenses paid or incurred by them in
their capacity as executors
of the estate of the late Mr HH Spangenberg, together with
substantiating documents within 30 days
of the order.
9. That the applicant
is ordered not to pay any funds to the sixth Respondent pending the
finalisation of the Application under
Case Number 394/19.
10. That the costs of
this application are reserved.”
[3]
On 10 August 2019 the first respondent, Mr Izak Frederick
Spangenberg, filed a request for written reasons.
Contained
hereunder are the written reasons for the order dated 03 may 2019.
[4]
The applicant and deponent to the founding affidavit is an attorney
practising as a director of Engelsman
Magabane Inc and is
nomino
officio
in his capacity as duly appointed executor in the estate
of the late Hendrik Hermias Spangenberg with Master’s reference
as 453/2010. Mr Izak Spangenberg (Mr Spangenberg), Ms Maria
Cornelia Van der Westhuizen, Ms Christina Aletta W La Cock, is
first
to third respondents respectively. They are the biological
children and heirs of the late HH Spangenberg and were previously
appointed as co-executors in the estate until removed by the fifth
respondent, the Master of the High Court (the Master), on 05
November
2018. The fourth respondent is CJ Willemse Müller &
Babinszky Attorneys and attorneys of record of the
first, second and
third respondents in an application under case number 394/19 in which
application the first to third respondents
sought the review of the
Master’s decision to remove them as executors. The sixth
respondent is Christina Gertruida
Spangenberg (Ms Spangenberg), also
the heir in the deceased estate and co-executor until she was also
removed from the position
by the Master. She is the second wife
of the deceased and the step-mother of the first, second and third
respondents. She
is also a holder of a habitatio over the
property known as Erf 741 and 243 District Keimos, Northern Cape. No
relief is sought
against her.
[5]
Mr Engelbrecht was appointed by the Master on 29 November 2018 as the
executor in the estate to administer
and finalise it in terms of
legislation and the Master’s directions. The first
respondent opposes the application.
BACKGOUND FACTS
[6]
The deceased died on 15 January 2010 and his last will and testament
is dated 02 July 1991. The Master
accepted it. Ms Spangenberg
brought an application under case number 792/2010 to have another
will dated 26 November 2009 declared
valid and to have the Master
accept it. That application was withdrawn by Ms Spangenberg
when the first to third respondents
opposed it.
[7]
FNB Trust was initially appointed as the executor of the estate but
resigned during September 2014. The
first, second, third and
sixth respondents were appointed by the Master as co-executors on 09
November 2015. They were again
appointed on 02 November 2017
after they applied under case number 1474/2017. The Master
removed them on 05 November 2018
in terms of section 54(1) (b) (v) of
the Estates Act 66 of 1965
[1]
.
The Master then appointed the applicant on 29 November 2018 as
executor of the deceased estate.
[8]
On 21 February 2019 the first to third respondents brought an
application under case number 394/2019 in order
to review the
Master’s decision to remove them as co-executors of the
deceased estate and to also remove the applicant as
the executor and
have them re-appointed as executors. In that application the
fourth respondent represented the first to
third respondents.
The applicant did not oppose that application but alleges that he
deposed to an affidavit on 05 March
2019 in his capacity as the
executor to clarify certain aspects in order to assist the Court in
arriving at a just decision.
According to the applicant the
said affidavit sets out the background facts of this matter as well
as the position regarding the
habitatio that Ms Spangenberg has over
the properties. It also deals with the failure to pay monthly
rental income to Ms
Spangenberg. He contends that the conduct
of the first to third respondents was improper and contrary to the
Act, the Master’s
direction and the will and testament of the
deceased.
[9]
The affidavit deposed to by the applicant was served on the fourth
respondent and the Master on 15 March 2019.
After receipt of
same by the fourth respondent he removed the matter from the roll.
The same date, the applicant addressed
a letter to the fourth
respondent requesting payment of rental for the month of March that
was received in trust, into the bank
account of the estate and
requested him to provide a breakdown of what rental was received.
He also asked him to inform the
tenants that in future they should
pay rental into the estate bank account. He further requested
the first to third respondents
to pay any monies that were in their
possession to the estate bank account and provide a full breakdown of
the origin of the said
monies. The applicant sent an email to
the fourth respondent on 26 March 2019 enquiring as to when the
monies would be received
and threatened with an urgent application if
nothing was received. No monies were received from the
respondents.
[10] The fourth
respondent indicated that they would file their replying affidavit by
05 April 2019 which they did not do.
No payment was made until
April 2009 when rental was due. This, according to the
applicant, is intentional delay of the review
application of the
Master’s decision.
[11] For various
reasons the application could not be heard soon due to the problems
that, according to the applicant, were
not due to his own fault.
On 14 May 2019 the applicant instructed Adv Van Tonder to proceed
with the urgent application to
compel the first to fourth respondent
to pay the monies due to the estate and Ms Spangenberg.
[12] According to
the applicant only a small portion of rental income from the property
was paid to Ms Spangenberg by the
first respondent until 2017.
After that the first respondent stopped making payments. The
applicant contends that the
refusal of the first to fourth respondent
to pay rental income to Ms Spangenberg amounted to unlawful conduct.
He argues
that he was unable to comply with his obligations of
taking control and finalising the estate as an executor. He
says that
he is also unable to pay rental income to Ms Spangenberg
that she is entitled to in terms of the will. He states that Ms
Spangenberg only receives R1400 per month that is paid by one of the
tenants into the estate bank account. He contends that
Ms
Spangenberg “
is in dire need of the rental income over the
property, which she is entitled to receive, as a result of her
habitatio over the
property.”
[13] The
applicant alleges that if the order is not granted urgently the first
to third respondents assisted by the fourth
respondent would continue
to receive the rental income from the property to the detriment of
the estate and Ms Spangenberg.
The fact that the rental money
is not paid into the estate bank account is in contravention of
section 28
[2]
of the Estate
Act. He also relies on section 46 of the Estate Act which
provides:
“
46
Failure
to pay over moneys
Any
executor who fails to pay over any money to the Master or to any
other person or to deposit it in any banking account under
section
twenty-eight
when
required by or under this Act to do so, or who uses or knowingly
permits any co-executor to use any property in the estate
except for
the benefit of the estate, shall pay into the estate an amount equal
to double the amount which he has so failed to
pay over or to deposit
or to double the value of the property so used: Provided that the
Master may, on good cause shown, exempt
any executor, in whole or in
part, from any liability which he may have incurred under this
section
.”
[14] The
applicant contends that he has a clear right to take control of all
the assets and income of the estate in his capacity
as the executor.
According to him the first to third respondents have received a
major portion of the rental income in respect
of the properties for
about seven years since 2017 without having any claim or title to
it. He alleges that the first to
third respondents took
unilateral control of the property in that they entered into lease
agreements in their personal capacities
with new tenants despite not
being co-executors. He alleges further that the estate and Ms
Spangenberg could suffer irreparable
harm if the first to third
respondents would be allowed to continue to act with the assets and
income of the estate as they like
without having any right or
authority to do so. He urges that I grant the order as prayed
for in the notice of motion with
costs as between attorney and own
client jointly and severally the one paying the other to be absolved.
[15] Mr
Spangenberg denies that the matter is urgent and that the applicant
is abusing the process provided for in term of
Rule 6(12) (a) &
(b) of the Uniform Rules of Court. He claims that the applicant
only acts in the best interests of Ms
Spangenberg and on her
instructions. The second will and testament that was purported
to be signed by the deceased on 26
November 2009 was not accepted by
the Master because it did not comply with
section 2(1)
(v) (aa) and
(bb) of the
Wills Act 7 of 1953
.
[3]
Ms Spangenberg launched an ex parte application under case number
792/10 seeking an order accepting the said will as the
valid one.
The first to third respondents were not notified of the said
application. As soon as they had knowledge
of same the
application was opposed because according to Mr Spangenberg, Ms
Spangenberg forged the said will in order to benefit
herself.
Subsequently Ms Spangenberg withdrew the application. Mr
Spangenberg alleges that after submitting the purported
second will
Ms Spangenberg unilaterally and without authority sold the deceased’s
livestock for R350 000-00 and used
the money for herself prior
to the Master making a decision regarding its validity. A fraud
case was registered with the
South African Police Services and she
and her son, being complicit with the fraud is on trial and is
pending in the Magistrates
Court, Upington under MAS 174 /04/2011.
The conduct of Ms Spangenberg made the finalisation of the
estate difficult.
[16] According to
Mr Spangenberg, Ms Spangenberg attempted to enforce a donation which
she alleged the deceased signed prior
to his death. That
attempt also failed.
[17] In terms of
the first will, First National Bank (FNB) was appointed executor of
the deceased estate. It disposed
of a letter dated 15 December
2010 (Annexure “D”). In the said letter FNB had
provided that the accepted will
provided Ms Spangenberg with a
habitatio over erfs 741 and 243 which was to start immediately after
the deceased’s death.
The first to third respondents were
also informed that she was also entitled to rental income from the
two erven which was
indeed paid to her after the deceased’s
death. Le Grange Carr & Wessels Inc forwarded a letter in
response to FNB
and drew FNB’s attention to the fact that the
“
habitatio
” was only a right to occupy, which
reads thus from the will:
“…
My
perseel 243 en 741, olyvenhoudtsdrift, distrik Keimoes, onderhewig
aan die reg van
habitatio
woonreg
ten gunste van my eggenoot…”
[18] Mr
Spangenberg alleges therefore that the habitation only refers and is
limited to the right to occupy the dwelling on
either erven by Ms
Spangenberg free of charge and does not entitle her to any rental
income. After the withdrawal of FNB
as executor the first to
third respondents and the sixth respondent were appointed
co-executors. Due to the complex issues surrounding the
finalisation of the estate the first to third respondents and sixth
respondent accepted a final distribution agreement on 05 March 2015.
The respondents allege that Ms Spangenberg failed to
comply
with the conditions imposed in the said agreement and also failed her
duties as co-executor. Mr Spangenberg alleges
that she was
obstructive and made various dilatory tactics making it very
difficult for them to finalise the estate. Due
to the continued
delay caused by Ms Spangenberg the Master removed all of them as
co-executors, hence the application by the first
to third respondents
to be re-appointed as executors.
[19] On 04
September 2018 the Master sent a letter to the first to third
respondents stating that the final and distribution
account had to be
delivered in 30 days. CJ Willemse, Mϋller & Babinszky, on
behalf of the first to third respondents,
addressed a letter to the
Master requesting for an extension of time, which was granted until
16 October 2018. On 15 October
2018 Mr Babinszky spoke to Mr
Van Rensburg, the assistant Master, informing him that the final
liquidation and distribution account
would not be available the next
day and explained the reason why, which was accepted by him. To
their surprise, Mr Van Rensburg
forwarded a letter to Mr Babinszky on
17 October 2018 and confirmed that they would issue a notice in terms
of section 54(2) of
the Estate Act
[4]
and that an extension of time could not be provided anymore. On
19 October 2018 the matter was referred to Mr Davids, the
Master, who
granted an extension until Monday 22 October 2018. Indeed on 22
October 2018 the final and distribution account
was delivered to the
Master by first to third respondents. On 05 November 2018 the
Master removed the first to third respondents
as co-executors in
terms of section 54(1) (b) (v) of the Estate Act due to
non-compliance with section 35(1) of the Estates Act
[5]
via
a letter. The first to third respondents received the said
letter on 16 November 2018. On 19 November 2018 Mr Babinszky
requested reasons for their removal. The Master replied in a letter
dated 19 November 2018 thus:
“
I
refer you to the attachments and the contents thereof.
The
said L & D account was due on or before 04 October 2018, after
two registered final demands were sent to you. The final
demand dated
04 September 2018, requested you to apply to court in terms of
section 54(2) of the Estates Act, to prevent the executors
of being
removed. I can’t recall or from the file contents that any
extension was granted.
The
executors were removed in terms of the provisions of section 54(1)
(b) (v) of the Estates Act (
supra
).
Hoping that the above mentioned information will assist you.”
[20] Mr
Spangenberg states that it shows that the Master did not consider the
communication forwarded to his office by Mr
Babinszky. On 22
November 2018 Mr Babinszky sent another letter to obtain clarity on
his statements in his letter and the
Master responded in a letter on
27 November 2018 and indicated that the contents of his letter dated
19 November 2918 were clear
and that if the first to third
respondents were dissatisfied they could approach court for an order
setting aside his decision
of their removal.
[21] Mr
Spangenberg insists that he, second and third respondents have
prospects of success especially considering that the
final
liquidation and distribution account have been lodged. The
first to third respondents approached court for the review
of the
Master’s decision under case number 394/2019. The
applicant is aware of the said application. Mr Babinszky
and Mr
Willemse had various discussions with the applicant and he was
informed that all the amounts received would be paid into
the trust
account of the fourth respondent pending the outcome of the review
application. He also indicated that there is
an application to
be heard under case number 394/2019 for the removal of the applicant
as executor and reinstatement of first to
third respondents. Mr
Spangenberg states that the applicant was given assurance that if the
review application is dismissed
all the monies would be paid over to
him and he would be given proper account of all the monies received.
He states further
that he has, for nine years, maintained the
properties at his own cost.
[22] Mr
Spangenberg contends that the applicant’s founding affidavit
and reasons advanced for urgency of the matter
shows that he enforces
a claim on behalf of Ms Spangenberg. According to him if Ms
Spangenberg wishes to enforce her right
against the estate she should
approach court as it is not the duty of the first to third
respondents to do so.
[23] Mr
Spangenberg denies that the matter is urgent because the applicant
was appointed as executor on 29 November 2018 but
had been
threatening them with approaching court on urgent basis for almost
four months. He argued that if I found that the
matter was
urgent such urgency was self-created. He urged me to dismiss
the application with costs.
[24] Mr
Spangenberg also applied for condonation of the late filing of his
opposing affidavit. He explained that he
received the
application on 17 May 2019, a Friday afternoon. His attorney was out
of town and had attended to another matter in
Pretoria. On 23
May 2019 his attorney was in Cape Town to attend a meeting and
returned on Saturday 25 May 2019. .They were
able to consult and
instruct counsel for the first time on 27 May 2019.
[25] The
applicant seeks an order interdicting the first to fourth respondents
from interfering with the administration of
estate and the
abovementioned erven for as long as they are not appointed executors;
that they pay all estate money received by
them into the estate bank
account.
26]
Section 28(1) of the Estates Act provides that an executor is obliged
to open an account in the name of the
estate and deposit therein the
monies which he has in hand from time to time as he receives it from
the estate. This section
does not say that after he has
received it he should hand it to someone else. The applicant
argues that he is entitled to
hand it over to Ms Spangenberg in
compliance with the
habitatio
she has as provided for in the
will. During argument it became clear that there was difference of
interpretation as far as the
habitatio
was concerned. Mr
Spangenberg contends that Ms Spangenberg is only entitled to
occupation of either of the erven.
[27] In my view,
the issue of the interpretation of
habitatio
was not before me
and if Ms Spangenberg is of the view that her interpretation is
correct she may approach court in order to enforce
her right seeing
that first to third respondents interpret
habitatio
differently.
[28] In terms of
section 28 first to third respondents should not handle the estate
monies as the Act provides. It is only
the duty of the executor to
open an estate account and deposit monies as he receives them in that
account. Even if they were
to be reinstated as executors they
would have a duty to comply with section 28.
[29] The
applicant did not file a replying affidavit thereby responding to the
allegations stated by Mr Spangenberg in his
opposing affidavit.
Rule 6(5) (e) of the Rules of Court
[6]
is not peremptory but I considered that the allegations were quite
serious and demanded a response taking into account that the
applicant wanted first to third respondents to hand over all the
money to him, for him to hand it over to Ms Spangenberg in
contravention
of section 28 instead of depositing it in the estate
bank account. Section 28 is peremptory and has no proviso.
First to
third respondents have also launched review proceedings and
an application for the removal of the applicant as executor which
were
pending at the time. That application was later removed from the
roll. In any event that review application has no effect
as far
as section 28 is concerned. The executor has a duty to fulfil
in terms of section 28, hence I found that the matter
was urgent.
[30] The above
were the reasons why I granted the order in paragraph 2
supra
.
BM
PAKATI
JUDGE-NORTHERN
CAPE DIVISION, KIMBERLEY
On
behalf of the Applicant:
ADV VAN TONDER
Instructed
by:
ENGELSMAN MAGABANE INC.
On
behalf of the 1
st
Respondent: ADV
RAUBENHEIMER
Instructed
by:
VAN DE WALL INC.
[1]
54
Removal from office of executor
(1)
An executor may at any time be removed from his office-
(a)…
(b)
by the Master-
(i)
…
(v)
if he fails to perform satisfactorily any duty imposed upon him by
or under this act
or
to comply with any lawful request of the Master.
[2]
Section 28 provides: “
Banking
accounts
(1)
An executor-
(a)
shall,
unless the Master otherwise directs, as soon as he or she has in
hand moneys in the estate in excess
of R1 000, open a cheque account
in the name of the estate with a bank in the Republic and shall
deposit therein the moneys which
he or she has in hand and such
other moneys as he or she may from time to time receive for the
estate;
(b)
may
open a savings account in the name of the estate with a bank and may
transfer thereto so much of the moneys deposited in the
account
referred to in paragraph
(a)
as
is not immediately required for the payment of any claim against the
estate;
(c)
may
place so much of the moneys deposited in the account referred to in
paragraph
(a)
as
is not immediately required for the payment of any claim against the
estate on interest-bearing deposit with a bank.”
[3]
section 2(1)
(v) (aa)
and (bb) of the
Wills Act, 7 of 1953
:
“
2
Formalities
required in the execution of a will
(1)
Subject
to the provisions of
section 3
bis
-
(a)
no will executed on or after the first day of January, 1954, shall
be valid unless-
(i)
the will is signed at the end thereof by the testator or by some
other person in his presence and by his direction; and
…
(v)
if the will is signed by the testator by the making of a mark or by
some other person in the presence and by the direction of
the
testator, a commissioner of oaths certifies that he has satisfied
himself as to the identity of the testator and that the
will so
signed is the will of the testator, and each page of the will,
excluding the page on which his certificate appears, is
also signed,
anywhere on the page, by the commissioner of oaths who so certifies:
Provided that-
(aa)
the
will is signed in the presence of the commissioner of oaths in terms
of subparagraphs
(i),
(iii) and (iv) and the certificate concerned is made as soon as
possible after the will
has been so signed; and
(bb)
if
the testator dies after the will has been signed in terms of
subparagraphs (i), (iii) and (iv) but before the commissioner
of
oaths has made the certificate concerned, the commissioner of oaths
shall as soon as possible thereafter make or complete
his
certificate, and sign each page of the will, excluding the page on
which his certificate appears.”
[4]
Section 54
(2)
of the Estates Act 66/65 provides: “Before removing an
executor from his office under subparagraph (i), (ii), (iii),
(iv)
or (v) of paragraph
(b)
of
subsection (1), the Master shall forward to him by registered post a
notice setting forth the reasons for such removal,
and informing him
that he may apply to the Court within thirty days from the date of
such notice for an order restraining the
Master from removing him
from his office.”
[5]
This section provides: “
35
Liquidation
and distribution accounts
(1)
An executor shall, as soon as may be after the last day of the
period specified in the notice referred to in section 29 (1),
but
within-
(a)
six
months after letters of executorship have been granted to him; or
(b)
such
further period as the Master may in any case allow, submit to the
Master an account in the prescribed form of the liquidation
and
distribution of the estate.”
[6]
Rule 6(5) (e) of the Uniform Rules of Court provides: “Within
10 days of the service upon the respondent of the affidavit
and
documents referred to in sub-paragraph (ii) of paragraph (d) of
sub-rule (5) the applicant may deliver a replying affidavit.
The
court
may
in its discretion permit the filing of further
affidavits.” My emphasis