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[2018] ZAKZDHC 14
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Sundarparsadand Another v Ramnarain and Another (7679/2016) [2018] ZAKZDHC 14 (8 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU–NATAL
LOCAL DIVISION, DURBAN
CASE
NO. 7679/2016
In
the matter between:
RAASMANIE
SUNDARPARSAD
FIRST
APPLICANT
ISHWARLALL
(DAN)
RAMNARAIN
SECOND
APPLICANT
and
SEWNATH
RAMNARAIN
FIRST
RESPONDENT
(Executor
nominate)
MASTER
OF THE HIGH
COURT
SECOND
RESPONDENT
ORDERS
(a) The application is dismissed.
(b) Each party is to pay its own
costs.
JUDGMENT
HENRIQUES
J
Introduction
[1]
This application serves before me as an opposed motion for inter
alia
,
an
order for the removal of the first respondent as the executor
appointed by the Master of the High Court in terms of a will dated
8
January 2008, and for the first applicant to be appointed as
executrix. The application falls within the provisions of
s 54
of the
Administration of Estates Act 66 of 1965
, as amended (the
Act).
[2] The applicants and the first
respondent are the children of the deceased, the late Chandermani
Beharie (the deceased).
The second respondent is the Master of
the High Court, Durban who is cited as an interested party, having
appointed and issued
letters of executorship to the first
respondent. Neither a report nor a notice to abide has been
filed by the second respondent.
Factual
Matrix
[3]
The deceased died testate on 28 November 2009 with her last will and
testament being registered and accepted by the second respondent
on 3
December 2009. The applicants and first respondent are testate
heirs in terms of the deceased’s last will and
testament.
The first respondent was nominated by the deceased to be the executor
and administrator of the estate in terms
of such will.
[4] There is no dispute between the
applicants and the first respondent that the deceased’s last
will and testament is a valid
and binding will.
Applicants’
contentions
[5]
The applicants inter alia seek the removal of the first respondent as
the duly appointed executor under letters of executorship
issued by
the second respondent on 3 December 2009, for the following reasons:
(a) The first
respondent has been in control of the property, the income derived
therefrom and the estate banking accounts from
inception;
(b) The first respondent has failed to
furnish the applicants with any documents and bank statements
pertaining to the administration
of the estate, incorporating the
financial affairs of the estate;
(c) The first
respondent allegedly rejected an offer for the sale of the immovable
property, which comprises the major asset in
the estate;
(d) The first
respondent has been conducting business from the property for his own
accord, and failed to account to the heirs for
all monies collected
and the concomitant liabilities that have been incurred;
(e) The first
respondent has breached his fiduciary duty to the heirs and has not
acted transparently and bona fide
;
The applicants in view of such
contentions argue that it axiomatically follows that the first
respondent should be impugned and
removed as the appointed executor
of the deceased’s estate.
The
first respondent’s contentions
[6]
The first respondent needless to state, joins issue with the
applicants’ contentions:
(a) The first
respondent maintains that if it was not for his sole efforts in
resisting the litigation against the estate, the applicants’
inheritances would have been diminished or extinguished;
(b) The first
respondent maintains that he has complied with the requirements of
the second respondent and has discharged his obligations
in
accordance with the provisions of the Act;
(c) The first respondent accordingly
contends that he is not a mere agent of the heirs nor does he
represent the creditors of the
estate.
Relevant
Legislation
[7] The applicants’ case is
premised on the provisions of
s 54
of the Act, specifically,
s
54(1)(
a
)(v) which reads as follows:
‘
(1)
An executor may at any time be removed from his office
(a)
by the Court –
(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.’
[8]
It is instructive to note at this juncture that whilst the applicants
made reference to an application to the second respondent
for the
removal of the first respondent as the executor, presumably in terms
of
s 54(1)(
b
)(v)
of the Act, prior to instituting the current application, they have
not seen fit to furnish the court with such application
nor the
second respondent’s reasons for the refusal of such
application.
[9] As previously alluded to, a report
from the second respondent was not furnished to this court, and
neither is the present application
a review of the second
respondent’s refusal to remove the first respondent as the
executor of the estate, pursuant to the
applicants’ direct
application to the second respondent.
Legal
Principles
[10]
In the matter of
S
& another v Master of Kwazulu-Natal High Court, Pietermaritzburg
& others
(3426/14) [2015] ZAKPHC 45 (8 September 2015), Moodley J analysed the
relevant authorities apropos, the removal of an executor
from his
office by the court.
[11]
I align myself with the reasoning and analysis of the authorities as
set out by the learned Moodley J. It is clear that
an elevated
standard including but not limited to dishonesty, gross inefficiency
or untrustworthiness on the part of an appointed
executor is required
to remove an executor from his office. Mere hostility between
the executor and other interested parties
is not sufficient grounds
for removal. The test is whether the executor’s
continuance in office will prejudicially
affect the future welfare of
the estate placed in his care (see D Meyerowitz
The
Law and Practice of Administration of Estates and Estate
Duty.
[12]
In
Volkwyn
N.O. vs Clarke and Damant
1946
WLD 456
at 456, Murray J commented that it is a serious matter to
interfere with the management of the estate of a deceased person by
removing
from the control thereof persons whom, in reliance upon
their ability and character, the deceased had deliberately selected
to
carry out his/her wishes. It was further stated that even if
the executor acted incorrectly in his duties and had not observed
the
strict requirements of the law, something more is required before
his/her removal is warranted. It is clear that in the
application of the legal principles, a court must be satisfied that
an act or conduct on the part of the executor demonstrates
or proves
that it is undesirable for him to continue so acting as the executor.
[13]
In analysing and considering the applicants’ contentions and
weighing same against the respondent’s contentions,
it is
neither apparent nor clear that the executor’s acts or conduct
are of such nature as to warrant his removal. The applicants’
contentions considered either singularly or conjunctively do not in
my view amount to establishing that the alleged transgressions
of the
first respondent render it undesirable that he should continue to act
as the executor. The applicants have several
alternate remedies
in terms of the Act, including but not limited to the provisions of
ss 35
and
36
of the Act.
[14] In the premises, I am not
satisfied that the conduct of the first respondent as alleged by the
applicants warrants the removal
of the first respondent as the
executor of deceased’s estate.
Costs
[15]
It is trite that the issue of costs falls within the discretion of
the court. The animosity between the applicants and
first
respondent is patently clear which the first respondent has candidly
admitted to, notwithstanding the obfuscatory denial
of the
applicants, the enmity between the parties is obvious from the
papers.
[16]
The first respondent’s conduct in his dealings with the
applicants is however not exempt from criticism. The first respondent
undertook on more than one occasion to furnish the applicants with
documentation and information as is evident in the correspondence
exchanged between the parties’ attorneys. The first respondent
failed to honour such undertakings, which to a large extent
precipitated this application. Had the first respondent denied the
applicants’ request for information and documentation,
the
applicants may have reasonably considered an alternate course of
action. It is for inter alia the above reasons that
I deem it
appropriate to detract from the general rule that costs should follow
the result.
[17] In the premises, it is both just
and equitable that the parties should be ordered to pay their own
costs.
Order
[17]
The following orders are granted:
(a) The application is dismissed.
(b) Each party is to pay its own
costs.
_________________________
HENRIQUES
J
Date
of application: 25 October 2017
Date
of judgment: 8 May 2018
Counsel
for the applicants: WN Shapiro
Instructed
by: Sanjay Lorick & Partners
89
Juniper Road, Essenwood
Durban
Ref
: SL/S0486/15/RY
Counsel
for the first respondent : M Collins SC
Instructed
by : Naidoo & Company Inc
8
Sinembe Park,
La
Lucia Ridge Office Estate
Ref
: R Naidoo/B272L
Second
respondent : The Master of the High Court, Durban