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[2018] ZAGPJHC 503
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Levinson NO v Master of the High Court (Gauteng Division) and Others (2017/4324) [2018] ZAGPJHC 503 (19 September 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2017/4324
In
the matter between:
SUSAN
LEVINSON
N.O. Applicant
and
THE
MASTER OF THE HIGH COURT
(GAUTENG
DIVISION) 1
st
Respondent
JANE
LEVINSON
N.O. 2
nd
Respondent
JEFFREY
STEWART
SALANT 3
rd
Respondent
JUDGMENT
MOKOSE
AJ
[1]
The applicant approaches this court in order to set aside the
decision of the Master of the High Court (“the Master”)
taken on 19 October 2016 as a result of non-compliance with the
Administration of Estates Act 65 of 1965 (“the Act”)
and
to set aside the second respondent as executrix and the third
respondent as the authorised agent.
[2]
This application has been brought in terms of Section 95 of the Act,
the issue for determination being whether the decision
of the Master
to remove the first respondent as executor in the estate of the
deceased was fair and reasonable in the circumstances.
Background
[3]
The deceased, Ralph Morris Levinson, had four children, the
applicant, the second respondent and their two brothers, Clive and
John. In his will, the deceased nominated the applicant to be
the executrix of his estate. Upon her appointment, the
applicant appointed her attorney, Mr Ellis as her agent to assist
with the administration and winding up of the estate.
[4]
After almost four years since the appointment of the applicant as
executrix in the estate and it had still not been wound up,
the
Master sent a letter, on 11 April 2016, of final demand to Mr Ellis
in his capacity as the executrix’s agent stating
the
following:
[1]
“
I wish to draw your
attention to the account of your administration dated 24 March 2014
lodged with me in your capacity as executrix.
The account has
been examined by me, but I cannot for the reasons set out in Annexure
“A” hereto accept it as an adequate
and correct account
for your administration of the above estate.
Be good enough therefore to take
notice that having failed to comply with my requirements and the
provisions of Act 66 of 1965 as
set out in Annexure “A”
hereto, you in your aforesaid administration of the above estate on
or before
29
th
of July 2016
by complying with the abovementioned
requirements or to furnish me with satisfactory proof or reasons why
they should not or cannot
be complied with.
Failing punctually to comply with
this notice you may be removed from office in terms of section
54(1)(b)(v) of the abovementioned
Act. Your attention is also
directed to section 51(3)(b) (disallowance of remuneration).”
[5]
The applicant responded to the letter of demand and indicated to the
first respondent that she was awaiting the Capital Gains
certificate
from the South Africa Revenue Services (SARS). The applicant
had requested Ms Lebohang Motsepe, a SARS employee
to assist in this
regard. Ms Motsepe then telephoned Mr Mphanama of the first
respondent to apologise and explain that the
executrix was not to
blame for the delay. The applicant avers that Mr Mphanama was
satisfied with the explanation.
[6]
On 4 August 2016 the first respondent despatched a demand in terms of
Section 54(2) of the Act which was received by the applicant
only on
22 August 2016. In this letter of demand, the first respondent
instructed the applicant to approach a competent court
interdicting
the removal of the applicant as executrix of the estate. The
Capital Gains certificate was lodged with the first
respondent on 25
August 2016.
[7]
On 29 August 2016, the applicant delivered a letter to the first
respondent in relation to the notice of 4 August confirming
that as
all the requirements have been complied with, there would be no need
to approach the court to prevent her removal as executrix
in the
estate. The applicant received a letter from the first
respondent in which she was told to disregard the letter of
4 August
2016
[2]
as the liquidation and distribution account had been lodged and
examined.
[8]
On 5 September 2016 the final estate account was hand delivered by
the applicant to the first respondent, on which day notice
was
received from Mr Sephaka, of the first respondent confirming the
removal of the applicant as executrix in terms of Section
54(1)(b)(v). No reasons were given for the removal.
[9]
Pursuant to a notice published on 30 September 2016 for the election
of an executrix, a meeting was held on 19 October 2016
wherein the
second respondent was appointed the executrix in the deceased estate.
The
applicant’s case
[10]
The executrix’s case is that she is not to blame for the delay
and that she had in fact informed Mr Mphanama of the delays.
The applicant avers that the genesis of the dispute finds itself in
the sale of Portion 57 (a portion of portion 42) of the Farm
New
Thorndale 394 (“the Farm”) which property was an asset in
the estate of the deceased. The applicant avers
that various
attempts were made to sell the Farm and eventually was transferred
into the new owner’s name on 8 September
2015. The
applicant gives evidence of the five attempts to sell the Farm.
[11]
Furthermore, the applicant avers that the second and third
respondents had been litigating against her in an attempt to remove
her as executrix, citing her mental health,
inter alia,
as a
reason therefor. The applicant is of the view that the first
and second respondents’ submissions that “nothing
has
happened” is disingenuous and a clear attempt to mislead the
court.
[12]
The applicant avers further that it is peremptory for a Capital Gains
certificate from SARS to be issued and submitted to the
office of the
first respondent. Such certificate was submitted on 25 August
2016, which delay had been occasioned directly
by the office of
SARS. The office of the first respondent was aware of the
delays in obtaining such certificated.
[13]
The applicant contends further that the disputes which had arisen
between her and her siblings in the administration of the
deceased
estate were referred to mediation by agreement, which mediation did
not dispense with all the disputes.
[14]
The applicant contends that the letter from the first respondent of
the 4
th
August was only received on 22 August. The
final outstanding document, being the Capital Gains certificate was
delivered
on 26 August. The letter from the office of the first
respondent of 29 August requested her as executrix to ignore the
letter
of the 4
th
August. She averred that it did
not make sense when on 5 September, after full compliance with
Section 35 a letter was received
from Mr Sephaka, in the office of
the first respondent advising her of her removal as executrix in the
estate. The account
lay for inspection from 16 September 2016
and a certificate was issued by Mr Madi of the office of the Master
on 13 October of
the liquidation and distribution account having lain
for inspection, free from objections.
[15]
At this point, the estate is ready to be distributed. The third
respondent had forwarded a list of queries which, on
2 November 2016,
was advised had been complied with by the applicant as well as all
obligations in terms of Section 35 of the Act.
The
first respondent’s case
[16]
The first respondent’s case is that consequent to the lodgement
of the deceased’s will and registration and acceptance
of it as
the last will and testament of the deceased, the applicant was
appointed and issued with letters of executorship.
Mr Ellis was
appointed by the applicant as her agent to assist her in the winding
up of the estate.
[17]
The first liquidation account was lodged on 16 October 2013 and the
first query sheet issued on 16 November 2013. The
applicant had
two months to deal with the preliminary queries raised therein.
The applicant and her agent failed to deal
with the said queries for
a period of approximately four years during which time the
liquidation and distribution account was drawn
and submitted four
times without the queries being attended to.
[18]
Several complaints were received by the first respondent against the
applicant in the manner in which the estate was being
administered.
At a meeting of 30 November 2015 which was convened for the purpose
of discussing the issue, it was agreed
that the applicant and her
agent be afforded the opportunity of dealing with the queries and the
lodgement of a new liquidation
and distribution account by 17
December 2015. A liquidation and distribution account was not
lodged as agreed but was lodged
only on 24 May 2016 in which it was
found that that the queries had still not been attended to.
[19]
A letter sent to Mr Ellis, the applicant’s agent to comply with
the query sheet on 25 April 2016 remained unanswered.
A final
demand on 11 July 2016 was sent to the applicant’s agent
stating that a failure to comply with the request could
result in the
removal of the applicant as executrix of the estate. A notice
of intention of removal of the applicant and
her agent was served on
the applicant’s agent on 4 August 2016 in terms of Section
54(1)(b)(v) of the Act. The notice
clearly advised the
applicant to approach the court for an order interdicting the first
respondent from effecting her removal as
executrix within 30 days,
failing which her removal would be effected.
[20]
The first respondent avers that the applicant failed to do so despite
being aware of the said notice and her agent attempting
to comply
with the query sheet. The executrix and her agent were
effectively removed on 5 September 2016.
The
second and third respondents’ case
[21]
The second and third respondents’ case is that after almost
four years had passed since her appointment as executrix
and the
estate had not been wound up, the first respondent had notified the
applicant of his decision to remove her from office
as an executrix
in the estate of the deceased in terms of Section 54(1)(b)(v) of the
Act. In the letter of removal, the Master
advised the applicant
that she may apply to the court within 30 days for an order
restraining the Master from doing so. The
applicant failed to
apply for such an order with the result that the Master advised the
applicant that she had been removed as
an executrix and must
forthwith return the letters of executorship which had been issued in
her name.
[22]
On 16 January 2017 the second respondent launched an application in
the Magistrate’s Court sitting at Johannesburg in
terms of
Section 26 of the Act for a search warrant, authorising the sheriff
to search, seize and take into his custody all documents
relating to
the estate in possession of the applicant and her agent, Mr Ellis.
The matter has been postponed
sine die
pending the outcome of
this matter.
[23]
The second and third respondents are of the view that the six month
period within which the applicant should have wound up
the estate and
the period prescribed in terms of Section 35 of the Act had expired
on 20 May 2013 Whilst Mr Ellis did ask
for an extension to file
the liquidation and distribution account, this request was made on 30
May 2013 after the six month period
had expired. No formal
extension was granted by the Master nor was an indefinite extension
was granted by the Master entitling
the applicant and her agent to
finalise the estate after the 20 May 2013.
[24]
The first and second respondents are of the view that the applicant’s
contention that the decision to remove her as an
executrix was
unlawful in light of Mr Mphamana’s letter of 29 August 2016 is
without merit for the following reasons,
inter alia
:
(i) the applicant’s reliance on
the letter of 29 August instructing her to ignore the letter of the
4
th
August is stillborn as the Master’s decision to
remove her as executrix had in fact been made albeit that it could
not be
implemented for a period of 30 days and an interdict not
having been granted. As such, the Master was
functus officio
after he had made his decision and cannot reconsider, amend or
disregard his decision;
(ii) the applicant’s option to
were to either accept the Master’s decision or apply to court
within 30 days to restrain
the Master. The applicant elected
the former by not applying to court to restrain the Master within the
30 days or at all;
(iii) the applicant failed to make out
a case that the Master’s decision on 4 August 2016 to remove
her was unlawful in that
she does not challenge the content and
substance of the final demand dated 11 July2016, nor does she
challenge the removal letter
dated 4 august 2016. She relies on
a procedural irregularity pertaining to the fact that she had been
advised by Mr Mphamana
to ‘disregard’ the removal letter.
Issues
[25]
The issue to be determined by this court is whether the Master’s
decision to remove the applicant as executrix in the
estate of the
deceased and to appoint the second respondent in her stead was
unlawful and falls to be set aside. If the court
finds that the
decision by the Master was indeed unlawful, then a further issue to
be determined is whether the applicant ought
to be removed from her
office as executrix by this court in terms of Section 54(1)(a)(v) of
the Act.
The
law
[26]
Section 95 of the Act provides as follows:
“
Every appointment by the
Master of an executor, curator or interim curator, and every
decision, ruling, order, direction or taxation
by the Master under
this Act shall be subject to appeal to or review by the Court upon
motion at the instance of any person aggrieved
thereby, and the Court
may on any such appeal or review confirm, set aside or vary the
appointment, decision, ruling, order, direction
or taxation, as the
case may be.”
[27]
Section 54 of the Act provides as follows:
“
Removal from office of
executor
– (1) An executor may at any time be
removed from his office –
(a)
By the Court –
(i)………..
(ii)………
(iii)……..
(iv)…….
(v) if for any other reason the
Court is satisfied that it is undesirable that he should act as
executor of the estate concerned;
and
(b) by the Master –
(i)……..
(ii)………
(iii)…………
(iv)………
(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; or
(v)……
(2) before removing an executor
from his office under sub-paragraph (i), (ii), (iii), (iv) or (v) of
paragraph (b) of sub-section
(1), the Master shall forward to him by
registered post a notice setting for 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.
(3) …………..
(4) …………..
(5) Any person who ceases to be an
executor shall forthwith return his letters of executorship to the
Master.”
[28]
Section 55 of the Act provides as follows:
“
Continuance of pending
legal proceedings by remaining or new executor –
(1)
No civil legal proceedings instituted by or against any executor
shall lapse merely because he has ceased to be an executor.
(2) the Court in which any such
proceedings are pending may, upon receiving notice that such executor
has ceased to be an executor,
allow the name of the remaining or new
executor to be substituted for the former, and the proceedings shall
thereupon be continued
as if they had originally been instituted by
or against such remaining or new executor.”
[29]
Section 35 deals with the liquidation and distribution account and
Clause 35(1), in particular, provides as follows:
“
(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 I any case allow,
submit to the Master an account in
the prescribed form of the liquidation and distribution account of
the estate.”
[30]
Section 36 deals with the failure by the executor to lodge an account
or to perform his duties and reads as follows:
“
(1) If any executor fails to
lodge any account with the Master as and when required by this Act,
or to lodge any voucher 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 the
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 may, after giving the
executor not less than one months’
notice, apply to the Court
for an order directing the executor to lodge such account or voucher
in support thereof or of any entry
therein or to perform such duty or
to comply with such demand.
(2) The costs adjudged to the
Master or to such person shall, unless otherwise ordered by the
Court, be payable by the executor,
de bonis propriis.”
[31]
The applicant has made application to this court firstly for a review
of her removal as executrix in the deceased’s estate.
It
is common cause that on 30 May 2013, six months after the applicant
had been appointed, her agent, Mr Ellis wrote to the Master
requesting an extension within which to lodge the liquidation and
distribution account on the applicant’s behalf. It
is
noted that the liquidation and distribution account was to have been
lodged on or by 20 May 2013. The extension was however
granted
by the Master and the first and final distribution account was lodged
on 16 October 2013, almost a year after the applicant
had been
appointed as executrix.
[32]
It is also common cause that a query sheet had been dispatched to the
applicant on 5 February 2016 with the following queries
[3]
:
(i) capital gains tax;
(ii) a request to confirm the limited
interest in the estate of the pre-deceased spouse;
(iii) confirmation of the full
purchase price of the immovable property;
(iv) request for a taxed bill of
costs;
(v) request for the correct
registration numbers of the Kia truck in the liquidation account;
(vi) request for copies of the Section
35(4) and (5) advertisements and an amendment to be made to the
heading of the account itself.
[33]
The applicant avers in her founding affidavit that she duly responded
on 5 February 2016 and dealt with all such queries.
This is
denied by the first respondent who brings to the court’s
attention that the applicant’s agent responded as
follows:
“
The notes raised by your
office are being finalised and as soon as the capital gains tax
amount has been received from the deceased’s
auditor. The
account will be relodged with you by tomorrow.”
[34]
Objections were also received from the second and third respondents
during March 2016 to the estate account. Such objections
were
forwarded by the office of the Master to the applicant who only
addressed the issue of the capital gains tax and not the other
items. On 24 March again the Master dispatched another query
sheet requesting the applicant to furnish the following items:
[4]
(i) request specific account in
respect of claims 28, 29, 30, 33, 34, 35, 40, 41, 43, 47 and 48;
(ii) Capital Gains Tax certificate to
be furnished;
(iii) valuation of member’s
interest in the Tono Investments CC to be furnished;
(iv) original executor certificate
duly signed and dated;
(v) note that vouchers 35, 36, 37, 38,
39, 42, 44, 45, 46, 47, 48, 51 and 77 are inconsistent with the
figures as reflected in the
liquidation account and to amend same;
[35]
In response to this query sheet, the applicant only furnished the
Master with the valuation from the auditor for Tono Investments
CC,
being only one item from the query sheet being addressed. A
final demand was made by the Master on 26 July in which he
demands
that the correct account for the administration of the estate must be
lodged on or before 29 July. Furthermore, the
Master brings to
the attention of the applicant that failure to punctually comply with
the notice could result in her removal in
terms of Section 54(1)(v)
of the Act.
[36]
The applicant contends that she was surprised by the letter for her
removal as executrix as no reasons were given. Furthermore,
the
notices in terms of Section 35(4) and (5) were due to be published.
She had also been told to disregard the letter of
4 August by the
office of the Master.
[5]
[37]
Section 54(1)(v) of the Act provides that an executor may at any time
be removed from his office by the Master if he fails
to perform
satisfactorily any duty imposed upon him or under this Act or to
comply with any lawful request of the Master.
Wallis J in the
case of
Van Niekerk v Van
Niekerk and Another
[6]
held:
“
However, where it is
apparent from the executor’s conduct that it is their purpose
and intent to use their office to resist
all claims, or all claims
from a particular source, irrespective of the merits and without any
fair-minded consideration thereof,
that may, in my view, constitute
good cause for their removal in terms of Section 54(1)(v). That
view may be strengthened
where the motive was to secure personal
financial benefit in their capacity as heir.”
[38]
The court held in the matter of
Oberholster
N.O. v Richter
[7]
as follows:
“…
.mere disagreement
between an heir and the executor of a deceased estate, or a
break-down in relationship between on of the heirs
and the executor,
is insufficient for the discharge of the executor in terms of Section
54(1)(v) of the Act. In order to
achieve that result, it must
be shown that the executor conducted himself in such a manner that it
actually imperilled his proper
administration of the estate.
Bad relations between an executor and an heir cannot lead to the
removal of the executor unless
it is probable that the administration
of the estate would be prevented as a result….”
[39]
It is evident from the papers before this court that the applicant
and her agent have been dilatory in the finalisation of
the estate.
The winding-up of the estate has taken an unacceptably long period.
Whilst Mr Ellis sought an extension
from the Master to file the
liquidation and distribution account on 30 May 2013, such request was
submitted after the six-month
period had expired. The submission of
the liquidation and distribution account then proceeded at a
leisurely rate until 26 July
2016 when the Master sent a letter of
demand that an adequate and correct account be lodged by 29 July
2016.
[40]
After no response had been received by the Master in response to the
letter, the Master sent a letter to the applicant on 4
August 2016
advising her of his intention to remove her from office unless she
applies to the High Court within 30 days for an
order restraining him
from so doing. The applicant failed to make such application on
the premise that she had received a
letter from the office of the
Master on 29 August 2016 urging her to disregard the letter of 4
August. The applicant furthermore
contends that at this stage,
she had furnished the outstanding Capital Gains certificate and had
lodged a redrawn liquidation and
distribution account which had been
examined by the office of the Master.
[41]
The applicant and her agent’s conduct must be seen against the
context of Section 35 of the Act which provides that an
executor
“shall” submit to the Master an account in the prescribed
form of the liquidation and distribution of the
estate within six
months after letter of executorship have been granted or such other
period as the Master may in any case allow.
[42]
Whilst there is evidence of a bad relationship between the executrix
and the heirs and other interested parties being the second
respondent in particular, it is not sufficient for the applicant’s
discharge in terms of Section 54(1)(v) of the Act.
[43]
There is no evidence of an extension having been granted by the
office of the Master. Even if the extension had been
granted,
it was not granted for an indefinite period. Furthermore, the
applicant failed to adequately respond to the Master when
queries
were referred to her for attention. This failure to attend to
query sheets continued for a period of almost four
years. This
was reason enough for her removal as an executrix. In the
circumstances, I am of the considered view that
the applicant failed
to timeously fulfil her duties in terms of the Act and as such, the
Master had the right to remove her as
executor of the estate.
[44]
The conduct of the office of the first respondent is also not without
reproach. Whilst a letter dated 4 August 2016 was
sent to the
applicant that she should approach a competent court to interdict her
removal as executrix, a letter dated 29 August
2016 was subsequently
received by the applicant urging her to ignore the letter of 4
th
August. A further letter was received dated 5 September 2016
from Mr Sephaka advising her of her removal as executrix in
the
estate. Despite these conflicting messages, the account lay for
inspection from 16 September 2016 and a certificate was
then issued
by Mr Madi of the Master’s office on 13 October confirming that
the liquidation and distribution account had
lain for inspection free
of objections.
[45]
A reasonable person in the circumstances would definitely had been
confused as to whether they still have the powers bestowed
on them by
the letters of executorship or not. It appears that at this
time several people dealt with the matter and they
did not consult
with one another as to what should be done in the circumstances.
Furthermore, I am of the view that once
the letter to remove the
executrix had been dispatched, the first respondent was
functus
officio
and unable to reverse the decision to remove her.
[46]
The applicant also seeks to set aside the appointment of the second
respondent as executor of the estate and their respondent
as her
authorised agent.
[47]
On 5 September 2016 the Master sent a letter to the applicant and her
agent recording that the applicant had been removed as
executrix in
the estate of the deceased and to return the letters of
executorship. Following on this and on 30 September
2016, the
Master issued a notice that a meeting would be held for the purpose
of appointing a new executor. A meeting was
duly held whereupon
the second respondent was elected as executrix in the deceased
estate. It is noted that the applicant
did attend such meeting
and left without recording any objection.
[8]
[48]
No evidence has been put before the court that the second
respondent’s appointment as executor and the third respondent’s
appointment as agent were irregular. The applicant was notified
of the meeting. She attended such meeting and lodged
no
objection thereto. The perfect opportunity for the applicant to
lodge an objection to the appointment of the executrix
for the reason
that the estate had been essentially finalised and that the only
matter still to be dealt with was the distribution
itself had
presented itself. However, this was not to be, and the second
respondent was granted the letters of executorship.
[49]
I find no irregularity therein and am of the considered view that the
appointment of the second respondent was regular in all
respects.
[50]
Although it appears as if the only outstanding issue in the matter is
the distribution of the assets in the estate, I am of
the view that
it would not be in the interest of the estate and the beneficiaries
of the estate for the applicant to finalise the
estate. In the
premises the following order is granted:
The
application is dismissed with costs, which costs are to be paid by
the applicant in her personal capacity.
______________________
MOKOSE
AJ
Acting
Judge of the High Court of South Africa Gauteng Local Division,
Johannesburg
For
the Applicant:
Adv
MD Kohn
instructed
by
AM
Ellis Attorneys
For
the First Respondent:
Adv
T Malope
instructed
by
The
State Attorney, Johannesburg
For
the Second and Third Respondents
Adv
MTA Costa
Instructed
by
Salant
Attorneys
Date
of Hearing: 12 June 2018
Date
of Judgement: 19 September 2018
[1]
Paginated page 162
[2]
Paginated bundle p74
[3]
Paginated page 51
[4]
[4]
Paginated page 54
[5]
[5]
Paginated page 18 para 9.33.3 to 9.33.5
[6]
[6]
2011 (2) SA 145
(KZP) at p150 F - G
[7]
[2013] 3 All SA 205
(GNP) at p210 C – E
[8]
Paginated page 240 para 18