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[2018] ZAFSHC 181
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Scheeper v Master of the High Court, Free State and Others (1173/2018) [2018] ZAFSHC 181 (16 November 2018)
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IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1173/2018
In
the matter between:
COENRAAD
OTTO
SCHEEPERS
Applicant
and
THE
MASTER OF THE HIGH COURT,
FREE
STATE
First
Respondent
MARIECHEN
ALICE MAARTENS N.O.
Second
Respondent
HENRIETTE
ALICE MULLER
Third
Respondent
(
born
SCHEEPERS)
SUSANA
HELENA BAM
Fourth
Respondent
(
born
SCHEEPERS)
HEARD
ON:
20
SEPTEMBER 2018
JUDGMENT
BY:
DANISO,
AJ
DELIVERED
ON:
16
NOVEMBER 2018
[1]
This is matter involves a sibling dispute over a jointly inherited
property. The applicant and the respondents, third and fourth
are
siblings and the joint heirs in the estate of their mother, Ms Alice
Lloyd Scheepers.
[2]
The pertinent facts of this matter are the following: Ms Scheepers
passed away on the 04
th
of February 2017. In her will, she had nominated the second
respondent, a cousin of the heirs as the executrix of the estate. The
second respondent was subsequently appointed executrix by the first
respondent, the Master of the High Court (‘the Master’)
on 14 February 2017.
[3]
In the deceased estate there is an immovable property described as
the
remainder of Erf […], Oesterbaai, District Humansdorp,
Province Eastern Cape,
also
known
[…]
G Street, Oesterbaai
(‘the
immovable property) bequeathed to the heirs in equal shares, however,
there was also a cash shortfall of about R187 008.21.
The heirs
were requested to agree on the manner in which the shortfall could be
settled. They failed to do so. The second respondent
then came to the
conclusion that the immovable property had to be sold in order to
offset the shortfall.
[4]
The heirs were given the first option to purchase the property but
only one of the heirs, the fourth respondent made an offer.
On 17
November 2017 the second respondent lodged a liquidation and
distribution account in which she made provision for the sale
of the
immovable property to the fourth respondent in the sum of R600 000.00
and also for payment of R93 259.30 in respect
of her (the fourth
respondent) claim against the estate.
[5]
On 05 December 2017 the applicant and the third respondent’s
attorneys filed an objection to the liquidation and distribution
account, primarily to the sale of the immovable property and the
acceptance of the claim against the estate. It was the applicant’s
contention that the decision of the second respondent in that regard
was detrimental to the heirs of the estate in that she
sold the
immovable property to the fourth respondent at a less amount
(R600 000.00) than it was valued (R900 000.00).
The second
respondent also accepted a claim against the estate despite the fact
that the claim was unverified.
[6]
On 05 February 2018 the Master dismissed the objection on the basis
that it was within the powers of the second respondent as
an
executrix to accept the offer made to purchase the immovable property
and to accept claims against the estate.
[7]
The applicant aggrieved by the Master’s decision, has launched
these proceedings seeking an order on the following terms;-
1.
That
the decision of the Master of the High court of the Free State
Division dismissing the Applicant’s objection dated 5
December
2017 against the First and Final Liquidation and Distribution Account
submitted before the Master of this Honourable Court
on the 17
th
of November 2017, is set aside and replaced with the following:
“
1.1
That the Executrix is ordered to set aside the transfer of the
property known as
the
remainder of Erf […], Oesterbaai, District Humansdorp,
Province Eastern Cape,
also
known
[…]
G Street, Oesterbaai
to
the Fourth Respondent;
1.2
That
the said property be disposed of by way of public auction; and
1.3
That
the Executrix is ordered to dismiss the Fourth Respondent’s
claim against the estate in the amount of
R93 259.30
.
2.
The
cost of this application be paid for by the estate, alternative by
any party/parties opposing the application, jointly and severally.”
3.
Further
and/or alternative relief.
[8]
The application is only opposed by the second and the fourth
respondents. The third respondent supports the relief sought by
the
applicant.
[9]
The applicant’s replying affidavit as contemplated in Rule
6(5)
(e) of the Uniform Rules of Court was delivered out of time. The
affidavit was due on 2 May 2018 but only filed on 14 May 2018.
The
replying affidavit was accordingly 8 days late. It was the
applicant’s submission that the delay was occasioned by
unavailability
of both counsel and the applicant’s attorney.
The applicant’s attorney was hospitalized during the periods 08
to 10
May 2018 while counsel was only available on 11 May 2018. The
affidavit was then only finalized on 14 May 2018. In light of the
fact that the respondents have refused to consent to the late filing
of the replying affidavit, the applicant has no alternative
but to
seek condonation from the court.
[10]
It
is trite that
that
condonation
cannot be had for the mere asking, it is an indulgence which a court
has discretion on whether to grant it or not. The
applicant must show
sufficient cause entitling it to the court’s indulgence by
giving a full explanation for the non-compliance
with the court
rules. In my view the fact that the period of delay in delivering the
replying affidavit is not excessive, the explanation
for the delay
has been fully and sufficiently given and that no prejudice has been
indicated by the respondents, constitutes sufficient
cause warranting
the court applying its discretion in the applicant’s favour.
The applicant’s unintended ineptitude
ought not prejudice him
in exercising his rights to bring his matter before court. It
is
also in the interests of the respondents as well that this matter is
finalized.
Condonation
for the late filing of the applicant’s replying affidavit is
granted.
[11]
Before turning to the issue to be considered in this application,
there is a point
in
limine
raised
by the respondents that needs to be addressed. It was the
respondents’ case that the application should have been
premised on section 95 as it relates to the second respondent’s
decision to sell and transfer the immovable property to the
fourth
respondent and the Master’s decision to issue a certificate in
terms of section 42(2). The applicant has chosen the
wrong procedure
by bringing the application in terms of section 35 (10), the
application is thus legally untenable and cause to
be dismissed.
[12]
I disagree.
This
is an application to review and set aside the Master’s decision
to dismiss an objection to the liquidation and distribution.
According to section 35(10) of the Act:-
“
Any person
aggrieved by any such direction of the Master or by a refusal of the
Master to sustain an objection so lodged, may apply
by motion to the
Court within thirty days after the date of such direction or refusal
or within such further period as the Court
may allow, for an order to
set aside the Master's decision and the Court may make such order as
it may think fit.”
[13]
The provisions of section 35(10) must be read with sub-sections 7, 8
and 9 which provide that:-
“
(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 to 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) The executor
shall, within fourteen days after receipt by him of the copy of the
objection, transmit two copies of his comments
thereon to the Master.
(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.”
[14]
Having regard to the above-mentioned factors it is clear that where
the Master’s decision with regard to objections filed
against
the liquidation and distribution account is challenged, the
provisions of section 35(10) come to play. There is accordingly
no
merit to the respondents’ objection in this regard. The point
in
limine
is
dismissed.
[15]
This brings me to the merits of the application.
The
applicant contends that the Master’s decision was unreasonable
and irrational. The Master should have instructed the executrix
to
set aside the sale agreement of the immovable property as well as the
fourth respondent’s claim of R93 259.30.
[16]
It is trite that unless the will provides otherwise, section 47
permits the executrix to sell the property of the estate. What
is
required is that the sale must be subject to the conditions approved
by the heirs in writing, alternatively, by the Master.
In this matter
the sale of the immovable property was approved by the Master after
the fourth respondent made the offer to purchase
the property while
the other heirs refused to participate in the sale negotiations.
[17]
The applicant argues that it was not within the powers of the
executrix to accept an offer which was R300 000.00 less
than the
value of the immovable property. On the facts germane to this matter,
the only offer presented to the second respondent
was from the fourth
respondent, the applicant and the third respondent refused to
participate in the sale negotiations, in fact
the applicant even
stated that he was not willing to purchase a property he was meant to
inherit. The
second
respondent was therefore left with no option but to accept an offer
that was less than the appraised value as it was the
only offer that
was forthcoming and she was also advised by the valuators that it
will take time and it will also be difficult
to get the value in an
open market.
[18]
In respect of the claim against the estate, the applicant averred
that the second respondent accepted a claim
without
proof
.
There is no truth to this submission. On the available evidence an
ample number of receipts and invoices attesting to the expenses
incurred by the fourth respondent in this regard were provided to the
applicant upon request. It is also important to note that
the fourth
respondent carried out the renovations to the property pursuant to
the agreement by all the heirs on the basis that
she will be
reimbursed for her for the costs in that regard.
[19]
In his replying affidavit the applicant traverses additional and
alternative prayers by incorporating a tender to the effect
that the
immovable property be transferred to the heirs in equal shares. This
is despite the fact that the property has already
been purchased and
transferred to the fourth respondent.
[20]
The applicant further requests that the issues relating to the
verification of the value of the property; the circumstances
relating
to the conclusion of the deed of sale, including the decision to sell
to the Fourth Respondent; and establishment of the
claim of the
Fourth Respondent, including whether the renovations were indeed
necessary or useful or merely cosmetic be referred
to oral evidence,
or trial or back to the Master for the reconsideration of the
decision regarding the two objections.
[21]
In motion proceedings the court can
direct
that oral evidence be heard on specified issues
where there
are disputed facts which cannot be resolved on affidavits. In the
present case there were no disputes
which
could not properly be decided on affidavits. It is accordingly not
necessary to redirect the proceedings for oral evidence
or trial.
Similarly, I’m not persuaded that it will serve any purpose to
refer the matter back to the Master. The applicant
has already
shunned the directives of the Master, he refused to participate in
the negotiation processes.
[22]
For the reasons that I have set out above, I find that the Master’s
decision
in dismissing the objections to the liquidation and distribution
account cannot be faulted.
It
follows therefore that the application cannot succeed.
[23]
In the premises, I hereby make the following orders:
1. The application is
dismissed with costs.
_____________
NS
DANISO, AJ
APPEARANCES:
Counsel
on behalf of Applicant: Advocate LA Roux
Instructed
by: Lovius Block Attorneys
BLOEMFONTEIN
Counsel
on behalf of Second Respondent: Advocate CD Pienaar
Instructed
by: Martins Attorneys
BLOEMFONTEIN
Counsel
on behalf of Fourth Respondent: Advocate SJ Reinders
Instructed
by: Rosendorff Reitz Barry
BLOEMFONTEIN