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[2017] ZAGPPHC 49
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Tung'ande and Others v Tung'ande and Others (67369/15) [2017] ZAGPPHC 49 (14 February 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
14/02/2017
CASE NO: 67369/15
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
TUNG'ANDE
HR
1
st
Applicant
TUNG'ANDE
E
2
nd
Applicant
TUMG'ANDE
J
3
rd
Applicant
TUNG'ANDE
E
4
th
Applicant
and
TUNG'ANDE
B
N
1
st
Respondent
JORDAAN
J
N.O.
2
nd
Respondent
THE
MASTER OF THE HIGH COURT
3
rd
Respondent
Coram:
HUGHES J
JUDGMENT
HUGHES
J
[1]
This opposed application is for the removal of the executrix, the
first respondent,
and the appointed agent, the second respondent, as
executrix and agent of the deceased estate of the late DUNCAN HARRY
TUNG'ANDE
(the deceased).
[2]
The executrix is the surviving spouse of the deceased and the
stepmother of the applicant's
in this application.. The applicants
are the children of the deceased. The second respondent is the duly
appointed agent by the
executrix in the administration of the
deceased estate. A bonded property situated at 1[...] C[...] Avenue,
Eastleigh, Edenvale,
Gauteng (the property) is the only immovable
asset of the deceased estate.
[3]
The relief sought by the applicants is set out below:
a.
That the first respondent be removed as executrix of the deceased
estate of the
late DUNCAN HARRY TUNG'ANDE appointed in terms of the
letter of executorship No 16197/2013 issued by the Master of the High
Court
on 22 October 2013;
b.
That the first respondent return her letter of appointment as
executrix of the
aforementioned estate to the third respondent
forthwith;
c.
That the second respondent's appointment as agent in respect of the
aforementioned
estate is terminated;
d.
That the first respondent forfeit any entitlement to executors fees;
e.
That the third respondent be directed to appoint the first applicant
as the executor
of the deceased estate, alternatively that the third
respondent be directed to appoint a fit and proper person other than
the first
respondent as executor of the deceased estate in terms of
section 18(1)(a)
of the
Administration of Estates Act, 66 of 1965
.
[4]
In this application the pertinent facts are as follows:
4.1.
The deceased died on 21 September 2013 and the first respondent was
appointed executrix by way
of a letter of executorship on 22 October
2013;
4.2
The executrix appointed the second respondent as her agent to
administer the deceased estate;
4.3
The first respondent and the deceased were married out of community
of property subject
to the accrual system;
4.4
In the deceased estate is an immovable asset being a bonded property
situated at 1[...]
C[...] Avenue, Eastleigh, Edenvale, Gauteng (the
property);
4.5
The respondent's, first and second, state that the estate has a
substantial shortfall and
the property is to be sold to make up this
shortfall;
4.6
The applicants were given first option to purchase but failed to do
so. The respondent then
received an offer from the daughter of the
first respondent which offer the respondents are considering.
[5]
The applicants argue that the first respondent has in fact
accepted the offer from her daughter and as such there is thus a
conflict
of interest. They further argue that the first respondent,
after numerous request has failed to furnish them with list of
creditors
and the proof of the creditor's claims. She also failed to
disclose how much her estate was at the time of the death of the
deceased
to enable them to determine whether the estate has a claim
against the first respondent's estate.
[6]
The respondent's argue that the applicants do not have a
vested right or interest in the property and they have failed to make
out
a case for the relief that they seek on the papers.
[7]
This application is premised on section 54 (1)(a)(v) of the
Administration of Estates Act 66 of 1965 (the Act) which reads as
follows:
"54
Removal from office of executor
(1)
An executor may at any time be removed from office
(a)
by court-
(v)
if for other reason the Court is satisfied that it is undesirable
that
he should act as executor of the estate concerned; and..."
[8]
On a reading of the aforesaid provision it is evident that the
desirability of the executor to continue acting as such is key in
determining whether to remove the executor or not.
[9]
In my reading of the case at hand I am of the view that the
only aspect that points to the executrix's desirability to still hold
the position of executor is the fact that the applicant's contend
that a conflict of interest arose when the executrix and the
agent
accepted an offer to purchase the property of the deceased estate.
From the bar counsel for the respondents advised that
the offer to
purchase made by the daughter had not been accepted and the property
had not been sold as yet. This differs from the
papers put up which
indicate that the first and second respondent were incline to accept
the offer made as far back as 3rd August
2015. In the answering
affidavit the executrix states "...
The offer complained of
by the Applicants represents an offer in the amount of R900 000.00.
The offer is indeed consider(ed) as
reasonable having regard to the
valuation done on the property ..."
[10]
Section 49 of the Act states:
"49
Purchases by executor of property in estate, or mortgaged or pledged
to the deceased
(1)
If any executor or his spouse,
parent, child, partner,
employer, employee or agent purchases any property in the estate
which he has been appointed to liquidate
and distribute, the purchase
shall, subject to the terms of the will (if any) of the deceased,
and, in the case of an executor
who is the surviving spouse of the
deceased, to the provisions of section
thirty-eight,
be void,
unless it has been consented to or is confirmed by the Master or by
the Court.
(2)
An executor may, in his capacity as such, and subject to the
consent of or confirmation by the Master, buy in any property
mortgaged
or pledged to the deceased."
[11]
In this instance there is no evidence that the consent of the
Master or the heirs was obtained as regards the sale to the daughter
of the executrix. The respondent though place emphasis that the
requited consent or confirmation will be obtained. Firstly, it
is
clear from the papers that the consent of the heirs, who incidentally
are the applicants, will not be forthcoming. As regards
the Masters
confirmation, nothing in the papers indicates that the respondents
have attempted to
seek same. Thus
without the confirmation the sale is void and as such technically has
not or could not have been accepted as alleged
by the applicants.
[12]
It would seem that the application on this premise is thus
premature.
[13]
In respect of the disclosure of the value of the executrix's
estate and disclosure of the creditors of the deceased estate, that
information is obtainable from the agent, being the second
respondent, who is tasked with finalising the deceased estate. The
applicants have stated that they had requested this information from
the agent and the executrix however same was not forth coming.
On the
other hand the respondents state that they have provided this
information to the applicants and they put up proof thereof.
I note
that, what is put is up is schedule of the creditor and the amounts
due to each creditor. The applicants then sought proof
or vouchers
depicting the said amounts due to each creditor. In essences the
respondents have complied substantially with the request
of the
applicants and their conduct could not be said to be obstructive or
maladministration of the deceased estate, warranting
the removal of
the executrix.
[14]
With regards to the value of the estate of the executrix the
first respondent states that the applicants are not entitled to this
information. The other side of this argument, by the applicants, is
that the applicants require this information to establish if
the
executrix needs to pay into the deceased estate as result of the
accrual. This would make the first respondent a debtor of
the
deceased estate.
[15]
In my view, this request is yet another that is premature as
the applicants have not indicated whether they sought to obtain same
from the Masters offices as these document's and that of the
creditors would have been placed before the Master. In fact the
respondent
point the applicants in the direction of the Master if
they are not satisfied with what they have been provided with and
have not
taken this up. This is found in the respondent's letter of
19 August 2015. In this same correspondence the applicants are also
advised that the offer for the property could not be regarded as
accepted until an endorsement was obtain by the Master.
[16]
For the reasons set out above, I am in agreement with the
respondent's contention that the applicants have on the papers before
me not made out a case for
the removal
of the executrix and the ancillary relief sought. I finds that there
is no conflict that exist as yet, that there is
no obstructive
behaviour on the part of the executrix and that there has been no
maladministration or non-administration of the
deceased estate.
[17]
Turning to the issue of costs in the circumstances of this
case I am of the view that the applicants are trying as best as they
can to prevent the finalisation of this deceased estate, having not
exhausted avenues available to them before coming to court.
It is
only correct that they pay the costs, however I am of the view that
it be on a normal scale and not a punitive scale.
[18]
Consequently the following order is made:
[18.1]
The applicant's application for removal of the executrix and the
ancillary relief sought is dismissed with costs.
Such costs to be on
a party and party scale.
W.
Hughes
Judge
of the High Court Gauteng, Pretoria
Appearances:
For
the Applicant: I M Lindeque
Instructed
by: Mamba Attorneys
For
the Respondent: J J Greeff
Instructed
by: Kemp De Beer & Goosen
Date
heard: 31 January 2017
Date
delivered: 14 February 2017