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[2016] ZAECMHC 29
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Peer N.O. and Others v Enlie and Others (3454/14) [2016] ZAECMHC 29 (31 May 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
Case
no: 3454/14
In
the matter between:
IDRIS
ABDULHACK PEER
N.O
First
Applicant
Identity
Number:
[6....]
ABDUL
HUQ PEER
N.O
Second
Applicant
Identity
Number: [3....]
BILAL
ABDUL HUK PEER
N.O
Third
Applicant
Identity
Number [6....]
PILASE
SIPHO WILSON
SINUKELA
Fourth
Applicant
Identity
Number [8....]
VEZI
SINUKELA
Fifth
Applicant
Identity
Number: [8....]
NTSIKELELO
SINUKELA
Sixth
Applicant
Identity
Number: [6....]
ROYAL
ALBATROSS PROPERTIES 27 (PTY) LTD
Seventh
Applicant
Registration
Number 2004/022787/07
and
NOBANTU
SINUKELA
ENLIE
First
Respondent
Identity
Number: [4....]
THE
MASTER OF THE HIGH COURT,
Second
Respondent
MTHATHA
THE
REGISTRAR OF DEEDS, MTHATHA
Third
Respondent
ESSA
SAJID
Fourth
Respondent
Identity
Number: [7....]
M
A HAWKERS
CC
Fifth
Respondent
Registration
Number: 2008/186007
JUDGMENT
MBENENGE
J:
[1]
This application encapsulates two parts. The first part (Part
A), brought by way of urgency, is a quest for an interdict
pendente
lite
,
which, at the time the proceedings were commenced on 04 December
2014, resulted in the applicants seeking and obtaining a
rule
nisi
which called upon the respondents to show cause, if any, on Thursday
29 January 2015, why the following order should not be granted:
“
2.1
That
pending the final determination of the trial action instituted
against the first respondent under
Case
Number 390/2013,
and
the finalisation of the application in
Part
2
of this application, the first respondent be interdicted from
sub-dividing, alienating in any way or encumbering the immovable
property described as Portion of
Erf
[1....], Main Street Flagstaff
(“the
property”)
.
3
Paragraph 2.1 above shall serve as an interim interdict/mandamus
pending
the finalisation of the second application hereinafter
referred to and the trial action instituted against the first
respondent
under Case Number
390/2013.
4.
Costs of this application be costs in the second application.”
[2]
In the second application (otherwise referred to as Part B) the
applicants seek an order:
“
1.
Declaring that the last will and testament of the late Mr Erasmus
Tozama Sinukela (the deceased),
attached and marked “
NOM1
”
to the founding affidavit, is the final valid last will and testament
of the deceased.
2.
Declaring that the first respondent’s letters of authority
issued by the
Master of the High Court, Umtata on 10 February 2009
and attached marked “
NOM
2
”
to the founding affidavit, as well as the letters of executorship
issued by the Master of the High Court, Umtata on 19 August
2014 and
attached and marked “
NOM
3
”
to the founding affidavit, are invalid and that the first respondent
accordingly has no legal right to control the estate
of the deceased
(“the estate”).
3.
Directing the second respondent to appoint the fourth applicant as
the executor
of the estate as provided for in
section 18(1)
of the
Administration of Estates Act, 66 of 1965
, and to issue him with the
necessary letters of executorship.
4.
Confirming that the fourth applicant has the sole power to administer
and manage
the property for the benefit of the trustees of the
Sinukela Farming Trust.
5.
Declaring that the first respondent is unfit to hold the position of
the executrix
to the estate.
6.
Ordering the first respondent to account to the second respondent as
well as
sixth applicants in respect of:
(i)
any
bank account/s opened in the name of the estate;
(ii)
any
amounts paid into such bank accounts;
(iii)
any
claims lodged against the estate
(iv)
any
accounts submitted by her to the Master of the High Court as
prescribed by
section 35
of the Administration of estates Act;
(v)
any
funds and/or income received by her relating to any of the estate
property; and
(vi)
any
other issues relating to the estate or any property forming part of
the estate.
7.
Ordering the first respondent to pay to the fourth applicant, after
the fourth
applicant’s appointed as the executor to the estate,
all amounts received by the first respondent on behalf of the estate
and particularly in respect of rentals received from the property.
8.
That the first respondent pays the costs of this application on the
attorney
and client scale and in the event of any of the other
respondents opposing the applications, that such respondents pay the
costs
of the application jointly and severally the one paying the
other to be absolved.
9.
That the Court grant whatever further and/or alternative relief it
may deem fit.”
[3]
Both Parts A and B served before this Court on 29 January 2015, on
which date the following order was granted:
“
1.
The second application is postponed
sine
die
and the
rule
nisi
dated
4
December 2014
is extended until the finalisation of the second application and the
trial action instituted against the first respondent under
Case
Number
390/2013
.
2.
First respondent file her answering affidavit on or before 12
February 2015.
3.
First respondent to pay today’s wasted costs.”
[4]
I heard both Parts of the application on 24 March 2016 after all the
papers had been filed. I observed that the
rule
nisi
granted
on 04 December 2014, not having been extended to a specific date, on
29 January 2015, had lapsed
[1]
.
After the parties had supported one another, applying for the
resuscitation of the
rule
nisi
,
I entertained Part A, as well.
[5]
The factual matrix of the case makes it incumbent on me to mention
the parties to this litigious matter. The first three
applicants
[2]
are the trustees for the time being of the Peer Ahmed Cassim Family
Trust (the Cassim Family Trust). The other applicants
[3]
are children born of the first marriage of the late Erasmus Tozama
Sinukela (the Deceased). The last two applicants
[4]
are involved in the leasing of a property of which the deceased was
the beneficial owner namely, Erf [1....], Flagstaff (the Property).
[6]
The first respondent
[5]
is cited as being the second wife of the Deceased. The second
and third respondents
[6]
have been joined in their official capacities as functionaries who
may have an interest in the orders being sought in these
proceedings.
The other two respondents
[7]
are also tenants of the Property.
[7]
It is common cause that during his life time the Deceased acquired
the Property, but the transfer thereof in his name took place
during
or about the year 2007. On 12 January 1996 the Deceased
concluded a lease agreement in terms whereof he let the Property
to
“
IDRIS
PEER
…
in
his capacity as trustee for a company or close corporation formed or
to be formed
.”
[8]
The lease agreement recorded that, as on 12 January 1996, the leased
premises constituted a “
fixed
building structure …suitable for purposes of conducting a
wholesale and/or retail and/or any other business therefrom
”
and that “
the
structure
[was]
… unoccupied, unutilised and empty
”.
It was further recorded that the tenant intended at some and/or any
time during the current of the lease to,
inter
alia
,
sublet the leased premises and/or the structure and/or one or more
portions of the leased premises and/or the structure for “
residential
and/or business and/or whatever other purposes it may from time to
time at its sale and absolute discretion desire.
”
[9]
The lease was to be for “
a
period of 20 (twenty) years commencing on the 1
st
day of December 1995 and terminating on 30
th
day November 2015
.”
The lease also granted the tenant the first right of refusal to the
sale of the Property and the first option to
renew the lease for the
entire or part of the leased premises.
[10]
It is further common cause that during or about August 2007 the
seventh applicant entered into a lease agreement with the fourth
respondent on behalf of the fifth respondent in terms whereof it
rented the Property to the fourth respondent for an amount of
R30
000.00 per month, to increase annually at the rate of 10%.
[11]
The Deceased signed a will on 20 January 2009, and passed away on 31
January 2009. Besides,
inter
alia,
appointing
the first respondent referred to in the will as “
[his]
wife
”,
his grandson Vezi Sinukela, and his son Sipho Sinukela (the fourth
applicant) as his heirs, bequeathing thereto certain
movables, the
Deceased formed a trust referred to as the Sinukela Farming Trust
(the Farming Trust). The first respondent
as well as the fourth
to sixth applicants were nominated as trustees of the Farming Trust.
Another of the Deceased’s
sons, Mpendulo Sinukela, who has
since become deceased, was also nominated as a trustee. The
beneficiaries to the Farming
Trust are the first respondent, the
Deceased’s grandson Vezi Sinukela (the fifth applicant), Sipho
Sinukela (the fourth applicant),
the Deceased’s son Ntsikelelo
Sinukela (the sixth applicant) and all “
[the
Deceased’s] grand children of [the deceased’s] sons from
their wedding
(sic).”
[12]
In his will, the Deceased has further directed that the Property be
the Farming Trust’s property. He nominated
the fourth
applicant to be responsible for the administration and management of
the Property, including collecting rental, which
he directed should
be used “
in
the maintenance, payment of all municipal levies and services
and
the balance
to
be divided amongst all the beneficiaries subject to the direction of
the Trustees
.”
[13]
The will further accorded the trustees the discretionary powers to
sell, mortgage and/or alienate the property “
subject
to veto powers of [the first respondent] on condition that she
remains at our family home
.”
[14]
The Deceased nominated, constituted and appointed Bubele Benedict
Linyana of Attorneys Linyana Somacala Incorporated as executor
and
administrator of his estate, but Mr Linyana declined to accept the
appointment.
[15]
On 10 February 2009 the second respondent, purporting to act in terms
of
section 18(3)
of the
Administration of Estates Act
[8
]
authorised, by letters of authority, the first respondent to take
control of Deceased’s estate, to “
pay
the debts, and to transfer the residue of the estate to the
heir/heirs entitled thereto by law
.”
By letters of executorship issued by the second respondent on or
about 19 August 2014, the first respondent was appointed
executrix
and authorised as such to liquidate and distribute the estate of the
Deceased.
[16]
Beyond this point, there is little, if any, that the parties have
made common cause.
[17]
According to the applicants, in the face of an existing lease
agreement between the seventh applicant and third parties, upon
the
Deceased’s death, the first respondent approached the second
respondent and secured an appointment as the representative
of the
Deceased’s estate knowing full well that the Deceased had
passed a will and testament, but did not convey those facts
to the
second respondent.
[18]
Notwithstanding the fact that the estate is worth far more than the
current threshold of R60 000.00 and the second respondent
should have
appointed an executor to the estate in terms of
section 18(3)
of the
AEA, the first respondent, lament the applicants, received a letter
of authority in 2009. In his will the Deceased
had nominated an
executor who did not accept the appointment. Upon that
happening, the second respondent issued letters of
executorship to
the first respondent without first calling a meeting of the
beneficiaries to the estate to call for a nomination
for an executor
to be appointed.
[19]
The applicants further allege that in the face of an existing lease
agreement between the seventh applicant and third parties,
the first
respondent approached the fourth and fifth respondents and unlawfully
collected rental directly from them. Resulting
from this, the
Family Trust and the eighth applicant instituted action against the
first, fourth and fifth respondents under case
number 390/2013, which
is currently pending.
[20]
As already indicated above, the will points to the first respondent
as having been the Deceased’s wife. Based on
documents
featuring in this application,
[9]
the applicants dispute that the first respondent had been married to
the Deceased. Purely for that reason, they contend,
the first
respondent ought never to have been granted letters of authority.
In so far as it may be found that the Deceased
and the first
respondent had been married to one another, the applicants contend
that such marriage would, on the first respondent’s
own
showing,
[10]
have been out of community of property.
[21]
The applicants further accuse the first respondent of improper and
unbecoming conduct which disqualifies the first respondent
from
holding the office of executrix. She is said to have used the
rental money she collected for her personal benefit; the
beneficiaries never received the rental proceeds; she concealed the
existence of the will about which she learnt during her interaction
with Mr Linyana, the appointed executor who did not accept the
appointment from the fourth to sixth applicants, beneficiaries under
the will; she was bent on sub-dividing the property without involving
other relevant stake-holders.
[22]
According to the applicants the conduct of the first respondent as
detailed above points to her as acting in blatant, wilful
disregard
of the Deceased’s wishes as expressed in his will, having
circumvented at least two valid lease agreements in order
to collect
the higher rental directly for herself. The applicants
harboured the belief that the first respondent was acting
to the
detriment of the will’s beneficiaries and bent on depriving
them of the benefits they were entitled to in the event
of her
succeeding in her quest to sub-divide and sell the Property.
[23]
The fourth applicant, as duly appointed executor, is, according to
the applicants, entitled to be issued with the necessary
letters of
executorship by the second respondent, and should be so appointed.
[24]
Besides contending that there is a conflict of interest between the
Sinukela applicants and the Peer applicants which disqualifies
the
applicants’ attorneys from acting as such, the first respondent
disputes the truthfulness of the applicants’ causes
of action.
She maintains that she and the deceased had been married by civil
rites in community of property and is thus entitled
to an undivided
half share of the estate, at the very least. She states that
she merely reported the death of the Deceased,
hence she was served
with letters of authority. After obtaining the consent of other
beneficiaries (the fourth and fifth
applicants), she was properly
appointed as executrix.
[25]
The first respondent has further averred that she had no intention of
disposing of the Property. Even the sub-division,
she claims,
would not be done clandestinely. The sale or sub-division of
the Property would be done either with the consent
of the Sinukela
applicants or pursuant to an appropriate court order. Much as
she did collect rental as alleged, she never
utilised the money she
received for her personal benefit. She utilised the money
towards the maintenance of the Deceased’s
descendants.
However, she is on record as willing to account for the money she
received to the Sinukela Trust.
[26]
According to the first respondent the Sinukela applicants have, at
all relevant times, been aware of the provisions of the
will, having
never mentioned to her that they were shocked or astonished thereby.
[27]
At the hearing of this matter the applicants and the first, fourth
and fifth respondents were
ad
idem
that
the first and second prayers of
Part 2
fall to be granted. The
conflict of interest argument referred to in paragraph [24] above was
not persisted in.
[28]
Prayers 3 and 5 of
Part 2
have been made the subject of a massive
dispute of fact rendering it inapposite for this Court to make a
determination on those
prayers without the aid of oral evidence.
On the authority of
Volkwyn
NO v Clarke and Damant
[11]
the onus of removing a person as executor or administrator is not
light.
[29]
Flowing from the above conclusion is the inescapable conclusion that
until the first respondent shall have been found to be
disqualified
from holding the position of executrix to the estate of the Deceased,
it is untimely and premature to give consideration
to the appointment
of the fourth applicant as the executor of the Deceased’s
estate. The same should go for the seventh
prayer.
[30]
The dispute of fact highlighted above does not affect the duty cast
on the first respondent to account and disclose to the
second
respondent and also to the fourth, fifth and sixth applicants.
The first respondent has undertaken to do so.
There is no
reason why the sixth prayer to the notice of motion should not so
long be granted.
[31]
What remains to be considered is whether the applicants are entitled
to confirmation of the
rule
nisi
(with
interim relief) granted on 04 December 2014.
[32]
There is not much to be said about the applicant’s entitlement
to the confirmation of the
rule
nisi
.
In the first place, the first respondent’s stance to the relief
sought in
Part 1
is that had the applicants solicited an undertaking
from her that pending finalisation of the pending related action she
be interdicted
from sub-dividing, alienating or encumbering the
Property she would have given that undertaking. She contends
that the application
was brought hastily and without any prior
request for any such undertaking, as indeed she would not subdivide,
alienate or encumber
the Property without the consent of the Sinukela
applicants or an appropriate order.
[33]
The real difficulty facing the court in relation to the confirmation
of the rule
nisi
in
Part 1
lies therein that the applicants seeking that part of the
relief
[12]
have been shown to lack the requisite
locus
standi
.
These applicants rely on the memorandum agreement or lease concluded
between the deceased and Idris Peer.
[13]
[34]
The right of first refusal or the right to renew the agreement flows
from a lease agreement that terminated by effluxion of
time on 30
November 2015.
[14]
Beyond that date any rights flowing from the lease agreement in
question were extinguished.
[35]
The
rule
nisi
therefore
falls to be discharged. It is not opportune stage to determine
the issue of costs as definitiveness in relation
thereto cannot be
achieved. Several issues remain outstanding.
[36]
The order I grant is the following:
1.
The
rule
nisi
granted by this Court on 04 December 2014 is hereby discharged.
2.
It
is declared that the last Will and Testament signed by the late
Mr Erasmus Tozama Sinukela (the Deceased) on 20 January
2009 is
the final, valid and last Will and Testament of the Deceased.
3.
The letters of authority issued by the Master of the High Court,
Mthatha (the
Master), recognising Nobantu Sinukela Enlie (the first
respondent) as the executrix of the Deceased’s estate, on 10
February
2009, is of no force and effect.
4.
The first respondent is directed to account and disclose to the
Master as well
as to the fourth, fifth and sixth applicants, within
90 (ninety) days from the service of this order on the first
respondent, any-
a.
bank accounts opened in the name of the estate;
b.
amounts paid into such bank accounts of the estate by any persons;
c.
claims lodged against the estate;
d.
liquidation and distribution account submitted to the Master as
prescribed by
section 35
of the
Administration of Estates Act 66 of
1965
;
e.
funds and/or income received by the first respondent in relation to
any asset
of the estate, including the Property; and
f.
remaining assets forming part of the estate, which she has or is
under
her control or was disposed of since the deceased’s death
including the assets referred to in the Will.
5.
The following issues are referred for the hearing of oral evidence on
a date
to be arranged with the Registrar of this Court:
5.1
whether the deceased and the first respondent were ever married to
each other and, in the
event of it being found that they were
married, which matrimonial property regime governed their marriage;
and
5.2
whether the first respondent committed any unbecoming and improper
conduct in conducting
the affairs of the estate and therefore
disqualified from being executrix of the Deceased’s estate.
6.
The evidence shall be that of any witnesses whom the parties or
either of them
may elect to call, subject, however to what is
provided in paragraphs 5 hereof.
7.
Save for the witnesses whose affidavits are already filed, neither
party shall
be entitled to call any witness unless:
7.1
that party has served on the other party, at least fourteen days
before the date appointed
for hearing (in the case of a witness to be
called by the respondents) and at least ten days before such date (in
the case of a
witness to be called by the applicant), a statement
signed by the witness wherein the evidence to be given in chief by
such person
is set out; or
7.2
the court, at the hearing, permits such person to be called despite
the fact that no such
statement has been served in respect of his or
her evidence.
8.
Either party may subpoena any person to give evidence at the hearing,
whether
such person has consented to furnish a statement or not.
9.
Within twenty days of the issuing of this order, each of the parties
shall in
accordance with
rule 35
of the Rules of this Court make
discovery, on oath, of all documents relating to the issues referred
to in paragraph 5 hereof,
which are or have at any time been in the
possession or under the control of such party.
10.
Costs of this application shall be costs are hereby reserved for
determination by the court
hearing oral evidence.
-------------------------
S
M MBENENGE
JUDGE
OF THE HIGH COURT
Counsel
for the applicants
:
Mr G M
Ameer
Instructed
by
: Omar
Mahomed Attorneys
C/O
Keightley, Sigadla & Nonkonyana Inc.
MTHATHA
Counsel
for the first respondent :
Mr V M Naidoo SC
Instructed
by
: Carlos
Miranda Attorneys
C/O
Smith Tabata Inc.
MTHATHA
Date
heard
: 24
March 2016
Judgment
delivered
: 31 May
2016
[1]
See
Fisher v Fisher
1965 (4) SA 644
(W); see also
Wele v
Economic Freedom Fighters and Others
[2016]
ZAECBHC 3 (23 February 2016).
[2]
Idrist Abdulhack Peer, Abdul Huq Peer and Bilal
Abdul Huk Peer.
[3]
Pilase Sipho Wilson Sinukela, Vezi Sinukela,
Ntsikelelo Sinukela.
[4]
Royal Albatross Properties 27 (Pty) Ltd.
[5]
Nobantu Sinukela Enlie.
[6]
Master of the High Court, Umtata, and Registrar
of Deeds, Umtata.
[7]
Sajid Essa and M A Hawkers CC.
[8]
66 of 1965 (the AEA).
In relevant
part, the section provides:
“
If
the value of any estate does not exceed the amount determined by the
Minister by notice in the Gazette, the Master may dispense
with the
appointment of an executor and give directions as to the manner in
which any such estate shall be liquidated and distributed
.
”
[9]
According to the records held by the Department of Home Affairs the
deceased is described as having “
never married
”.
[10]
In her notice to the second respondent she
stated that she was married “
out
of community of property
”.
[11]
1946 WLD 456
at 464 where it was held:
“
Both
the statute and the case cited indicates that the sufficiency of the
cause for removal is to be tested by a consideration
of the
interests of the estate. It must therefore appear, I think, that the
particular circumstances of the acts complained of
are such as to
stamp the executor or administrator as a dishonest, grossly
inefficient or untrustworthy person, whose future
conduct can be
expected to be such as to expose the estate to risk of actual loss
or of administration in a way not contemplated
by the trust
instrument.”
[12]
The first, second, third and seventh applicants.
[13]
Clause 12.7 of the agreement reads:
“
The
tenant shall have the first right of refusal to the sale of the
premises mentioned under the lease. The tenant shall
also have
the first option to renew this lease for the entire or part of the
premises.”
[14]
Mittermeier v Skema Engineering
(Pty)
Ltd
1984 (1) SA 121
(A).