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[2018] ZAGPJHC 658
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Mbatha and Others v Maluka and Others (32979/2015) [2018] ZAGPJHC 658 (13 December 2018)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 32979/2015
In
the matter between:
LINDI
HEZEKEIEL MBATHA FIRST
APPLICANT
SIPHO
MBATHA SECOND
APPLICANT
SIPHIWE
MBATHA THIRD
APPLICANT
JULIA
MALELE FOURTH
APPLICANT
MASHAKENI
MALUKA FIFTH
APPLICANT
NEO
MALUKA SIXTH
APPLICANT
TLOTLO
MALUKA SEVENTH
APPLICANT
NELLY
XABA EIGHTH
APPLICANT
INNOCENTIA
MALUKA NINTH
APPLICANT
BONGIWE
MAKIHIN TENTH
APPLICANT
AND
MAGARET
MALUKA FIRST
RESPONDENT
BELOVED
MALUKA SECOND
RESPONDENT
IRENE
MALUKA THIRD
RESPONDENT
ALFRED
MALUKA FOURTH
RESPONDENT
MUSA
MALUKA FIFTH
RESPONDENT
SHEILA
MALUKA SIXTH
RESPONDENT
NTWANANO
MALUKA SEVENTH
RESPONDENT
HLULANE
MALUKA EIGHTH
RESPONDENT
MASTER
OF THE HIGH COURT NINTH
RESPONDENT
JUDGMENT
TWALA
J
[1]
This is an opposed application wherein the applicants sought the
removal of the first respondent as Executrix of the estate
of her
late husband, the late Rabi Sikhonyane Maluka who died on the 17
th
January 2012 and further sought other ancillary relief.
[2]
It appears from the record that only the first and fourth to seventh
respondents are opposing the application. There is a confirmatory
affidavit of Lorraine Maluka which is filed with the first
respondent’s answering affidavit, but she is not cited as one
of the respondents. The second, third, eighth and ninth respondents
did not file opposing papers. I propose to refer only to the
first
respondent in this judgment for the issues are about her and not the
rest of the respondents.
[3]
It is common cause that the first respondent is the surviving spouse
of the deceased and was issued with Letters of Executorship
on the
8
th
of May 2012.
It is further not in dispute that the first respondent has not yet
been released by the Master of the High Court from
her duties as the
executrix of the estate since the estate has not been finalised as
yet.
[4]
The issue to be determined by this Court is whether in the execution
of her duties as executrix of the estate, she has acted
properly and
as any other reasonable executrix or executor would have acted. Put
differently, whether the executrix has acted improperly
and in such a
manner that she should be removed or discharged from her duties as
executrix.
[5]
It is contended by counsel for the applicants that the first
respondent has interest in the estate as a beneficiary and an heir
–
hence she is conflicted and should be removed as executrix of the
estate of her husband. She has, as the argument goes,
not disclosed
certain moveable and immovable assets belonging to the estate to the
detriment of the estate and other beneficiaries.
She undervalued
certain movable and immovable properties and offered to pay cash to
the other heirs in lieu of her taking over
these properties. She has
not disclosed the income due to the estate from renting out certain
portions of the property belonging
to the estate.
[6]
Counsel for the applicants contended further that the first
respondent was reluctant to recognise other heirs and beneficiaries
of the estate who are the wives and children of the deceased. She
failed, so it contended, to collect debts that are due to the
estate.
[7]
It is contended by counsel for the first respondent that the
executrix is assisted by attorneys in the execution of her duties.
She has acted and still acts, so the argument goes, in the best
interest of the estate. She has collected the debts of the estate
that she knew of and has no knowledge of the loan the applicants are
talking about. No proof of such loan has been produced by
the
applicants.
[8]
Counsel for the first respondent contended further that the motor
vehicles mourned about by the applicants do not belong to
the estate
but to a close corporation to which the deceased was a member. The
close corporation is said to be insolvent by its
auditors. The
immovable property is on tribal land and belongs to a trust and not
to the estate. The executrix engaged the services
of the valuator to
attend to the valuation of the immovable properties as directed by
the Master. She has prepared and submitted
the liquidation and
distribution account in terms of the Administration of Estate Act and
no objection has yet been received either
from the Master or any of
the applicants and beneficiaries.
[9]
It is trite that once a deceased estate is reported to the Master and
an executor or executrix is appointed, the estate will
be
administered and liquidated in terms of the Administration of Estate
Act, 66 of 1965. The executrix, in the instance of this
case, is then
obliged to administer the estate under the supervision and direction
of the Master.
[10]
For the purposes of the present case, I find it necessary to refer to
the following sections of the Administration of Estate
Act, 66 of
1965 (“the Act”):
“
Section
9 Inventories:
(1)
If any person dies within the Republic or
if any person ordinarily resident in the Republic at the time of his
or her death dies
outside the Republic leaving any property therein,
the surviving spouse of such person or more than one surviving spouse
jointly,
or if there is no surviving spouse, his or her nearest
relative or connection residing in the district in which such person
was
ordinarily resident at the time of his or her death, shall,
within fourteen days after the death or within such further period as
the Master may allow-
I.
Make an inventory in the prescribed form,
in the presence of such persons having an interest in the estate as
heirs as may attend,
of all property known by him to have belonged,
at the time of the death-
I.
To the deceased; or
II.
In the case of the death of one of two or
more spouses married in community of property, to the joint estate of
the deceased and
such surviving spouse; or
III.
……………………………
.
[11]
Section 19 Competition for office of executor
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 of 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.
……………………………………
.
[12]
Section 27 Inventories by executors and valuation at instance of
Master:
1)…………………………………..
2)
If an inventory lodged with the Master in
terms of section or subsection (1) of this section, any estimate has
been made of the
value of any property which the Master has reason to
believe is not a reasonably correct estimate thereof, the Master may,
at the
expense of the estate, order that property to be appraised by
an appraiser or any other person approved by the Master
.
[13]
Section 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)
…………………………
Submit to the Master
an account in the prescribed form of the liquidation and distribution
of the estate.
(1A) If at any
time after the account contemplated in subsection (1) was submitted
to the Master, additional assets are found
in the estate and the
account in not amended in terms of this section so as to provide for
the application or distribution of the
proceeds of those assets, the
executor shall in respect of those assets submit to the Master a
supplementary account in the prescribed
form.
(2)……………………………………
(3)…………………………………………
(7) Any person
interested in the estate may at any time before the expiry of the
period allowed for inspection lodge with the Master
in duplicate any
objection, with the reasons therefor, to any such account and the
Master shall deliver or transmit by registered
post t the executor a
copy of any such objection together with copies of any documents
which such person may have submitted to
the Master in support
thereof.
(8)
…………………………………………………………..
(9) If, after
consideration of such objection, the comments of the executor and
such further particulars as the Master may require,
the Master is of
opinion that such objection is well-founded or if, apart from any
objection he is of opinion that the account
is in any respect
incorrect and should be amended, he may direct the executor to amend
the account or may give such other direction
in connection therewith
as he may think fit.
(10)
………………………………………………
[14]
Section 38 Taking over by surviving spouse of estate or portion
thereof:
1)
The Master may, if-
a.
One of two spouses, whether they were
married in or out of community property, has died; and
b.
The deceased has made no provision to the
contrary in any will; and
c.
The major heirs and any claimants against
the estate consent; and
d.
It appears to him that no person
interested would be prejudiced thereby,
Authorize the
executor, subject to security being given mutatis mutandis as
provided in subsection (2) of section forty-three for
the payment of
any minor’s share, and to such conditions as the Master may
determine, to make over any property or all the
property of the
deceased, or the whole or any part of that portion of his property in
respect of which he has made no testamentary
provision to the
contrary, to the surviving spouse at a valuation to be made by an
appraiser or any other person approved by the
Master and to frame his
distribution account on the basis of such valuation.
. 2) …………………………………..
[15]
Section 54 Removal from office of executor:
(1)
An executor may at any time be removed
from his office –
a)
By the Court –
I.
………………
..
II.
If he has at any time been a party to an
agreement or arrangement whereby he has undertaken that he will, in
his capacity as executor,
grant or endeavour to grant to, or obtain
or endeavour to obtain for any heir, debtor or creditor of the
estate, any benefit to
which he is not entitled; or
III.
If he has by means of any
misrepresentation or any reward, whether direct or indirect, induced
or attempted to induce any person
to vote for his recommendation to
the Master as executor or to effect or to assist in effecting such
recommendation; or
IV.
If he has accepted or expressed his
willingness to accept from any person any benefit whatsoever in
consideration of such
person being engaged to perform any work on
behalf of such person being engaged to perform any work on behalf of
the estate; or
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)
…………………………………………
.
[16]
I am unable to agree with counsel for the applicants that it would
serve no purpose to lodge objection after objection with
the Master
with regard to the liquidation and distribution account. Section 35
of the Act empowers the Master to demand that the
executrix lodge the
liquidation and distribution account. If certain assets do not appear
in the liquidation and distribution or
if such assets only became
known after the liquidation and distribution account has been
submitted to the Master, the Master has
the power to demand that a
supplementary liquidation and distribution account be submitted to
him. The applicants complained of
the property which is said to
belonging to a trust as it is situated on tribal land and the motor
vehicles that belonged to the
close corporation. However, the
applicants have failed to produce proof that these properties are
registered in the name of the
deceased and were deliberately left out
from the liquidation and distribution account in order to benefit the
first respondent.
[17]
I am respectfully in disagreement with counsel for the applicants
that since the values of the properties provided on the inventory
differ materially with those provided by the valuators, the first
respondent was deliberately misleading with a dominant intent
to
benefit herself at the expense of the other beneficiaries. The
inventory completed in terms of section 9 is an estimate –
hence the Master has the power to call for appraised valuations
should he deem it fit. Counsel for the applicants has insisted
that
the valuation should be made by sworn valuators and/or appraisers.
However, the executrix who is not a sworn appraiser is
vilified for
an estimate she placed on the properties of the estate as being
deliberate in under valuing the properties for her
gain. The
irresistible conclusion is that the first respondent was not
dishonest in providing the values of the properties when
she
completed the inventory in terms of section 9 of the Act.
[18]
There is nothing untoward with an executrix proposing a
redistribution agreement amongst the heirs or beneficiaries. It is
my
considered view that the executrix in this case was acting within the
prescripts of section 38 of the Act when she proposed
to pay cash to
the other heirs or beneficiaries of the estate and take over the
remaining immovable assets in the estate. It cannot
be said that such
a proposal was loaded with an intention to deprive the other
beneficiaries of what they were entitled to in the
estate.
[19]
I am in agreement with counsel for the first respondent that the
first respondent was entitled to demand proof of locu standi
from the
applicants when they lodged their claims against the estate. It is
the duty of the executor to protect the assets of the
estate. I am of
the view therefore that in the circumstances she acted accordingly
and diligently in demanding proof of paternity
for the children she
did not know of and marriage certificates from those who claimed to
be wives of the deceased. It is on record
that after proof of
paternity was produced, she accepted their claims against the estate.
In my view she acted as a reasonable
executrix would have acted under
the circumstances and that does not qualify her for removal as the
executrix of this estate.
[20]
It is on record that the executrix has submitted the liquidation and
distribution account to the Master. It is my respectful
view
therefore that the applicants should have lodged an objection in
terms of section 35 with the Master and submit proof of the
properties they allege to form part of the estate of the deceased for
consideration by the Master. Similarly, the applicants should
have
lodged an objection with the Master with regard to the loan they
claim the executrix has failed to entertain and collect.
[21]
I find myself in agreement with counsel for the first respondent that
the Master is not a passive observer in the administration
of
deceased estate as portrayed by the applicants. The Act provides its
own remedies where interested parties including the Master
are
aggrieved by the conduct of the executor in the liquidation and
distribution of the assets of the estate. The Act empowers
the Master
to appoint and to remove an executor if he deems it fit.
[22]
Counsel for the applicants referred me to the case of
Reichman
v Reichman and Others
2012 (4) SA 432
(GSJ).
I
fully agree that it is undesirable for an executor to act in such a
capacity if it is established that there is a conflict of
interest
between him, as a beneficiary, and the other beneficiaries or that
there is a dispute between him and other beneficiaries.
However, that
is not the case in the present matter. I have already made a finding
that the applicants have failed to provide proof
that the assets
alleged not to have been disclosed in the liquidation and
distribution account belonged to the deceased and that
there was
nothing wrong with the proposal for a redistribution agreement
amongst the beneficiaries. Further, that the applicants
failed to
produce proof of the alleged loan to one of the beneficiaries by the
deceased. The ineluctable conclusion is that there
is no conflict of
interest on the part of the executrix or a dispute between the
beneficiaries and the executrix which necessitates
her removal. It is
merely a ruse created by the applicants.
[23]
I am alive to the provisions of section 54 of the Act. However, I am
of the view that the intention of the legislature is that
deceased
estates should be administered or liquidated and distributed under
the supervision and direction of the Master. The Act
provides for
internal remedies if interested parties feel aggrieved in any way in
the handling of the estate. In my view, the provisions
of section 54
can only be invoked after having exhausted all the internal remedies
as provided by the Act or if there is gross
maladministration of the
estate. In this case, the applicants have failed to establish any
basis that the first respondent has,
in the execution of her duties
as executrix, acted in such a manner that she deserves to be removed
or released from her duties.
[24]
In the circumstances, I make the following order:
A.
The application is dismissed.
B.
The applicants are to pay the costs of the
respondents, jointly and severally the one paying the other to be
absolved.
_________________
TWALA
M L
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
Date
of hearing: 3
rd
December 2018
Date
of Judgment: 13
th
December 2018
For
the Applicants: Adv. S.L. Ress
Instructed
by: Suleman’s Inc
TEL:
016 422 0333
For
the Respondents: Adv. M Phukubje
Instructed
by: Matela Sibanyoni & Associates
Tel:
011 331 0755