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[2016] ZAKZPHC 86
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Khan N.O. v Master of the High Court and Others (2205/2016P) [2016] ZAKZPHC 86 (6 October 2016)
IN
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: 2205/2016P
In
the matter between:
AZGAR
ALLY KHAN N.O.
APPLICANT
and
THE
MASTER OF THE HIGH COURT
FIRST
RESPONDENT
SABIR
AYOOB
SECOND
RESPONDENT
ZELEKA
HASSEN
THIRD
RESPONDENT
JUDGMENT
Date
Delivered: 06 October 2016
MBATHA
J:
[1]
The applicant sought an order restraining and interdicting the first
respondent (The Master of the High Court) from removing
him as
executor in the estate late Ayoob Meeran. The application is opposed
bythe first and second respondents and the Master of
the High Court
has furnished his reports regarding the application.
[2]
At the hearing of the matter, the applicant handed in a draft order,
he now seeks the order. He know seeks in the following
terms:
(a)
that, the second respondent’s appointment as executor in the
estate late Ayoob Meeran
(Estate No. 25246/2014 PMB) be declared to
be irregular and is set aside;
(b)
that the applicant be and is hereby reinstated as the executor in the
estate late Ayoob
Meeran (Estate No. 25246/2014 PMB); and
(c)
that the second respondent and any other respondent opposing the
relief sought be
directed to pay the costs of this application on an
attorney and client scale.
[3]
I must state at this stage that the amended order refers or seeks
relief in terms of Rule 53 of the Uniform Rules of Court.
He seeks an
order which is not supported by his founding affidavit. Lastly, he
tries to make out a case for his amended order in
the replying
affidavit, which is contrary to the rules of this court
[4]
I have considered the points in
limine
raised by the respondents in this application jointly as they are
closely related. The respondents stated that the applicant lacks
authority to bring the application for an interdict as his
application was brought after his removal as an executor of the joint
estate. Therefore he lacks the authority to act in terms of section
54 (2) of the Administration of Estates Act
[1]
.
The
relief sought by the applicant is academic for the same reasons
stated above. It is my view that the issue that
relates
to the time frames and the interpretation of the provisions of the
Act regarding his removal are to be considered in another
application.
[5]
I also make an order that he should pay costs of the second and third
respondents in his personal capacity. When he set the
matter down for
hearing he was already aware of his removal, as this is confirmed in
a letter dated 29 March 2016 which he addressed
to the creditors
advising them of his removal. However, he still persisted with the
application instead of withdrawing it and proceeding
with an
application for review of the Master’s decision. He has filed a
replying affidavit which I consider to be irrelevant
as he had
already been removed as an executor of the deceased estate, a
replying affidavit which is of no assistance to the relief
sought in
the founding papers.
[6]
I find his amended draft order to be mischievous, to say the least,
when he seeks an order which is not founded in his application
papers. It is misleading to the court. I therefore make an order that
he pay the costs in his personal capacity, as his conduct
is not for
the benefit of the estate, instead it is to the prejudice of the
estate.
[7]
Accordingly, I make the following order:
The
application is dismissed with costs, costs to be paid by the
applicant in his personal capacity.
____________________
MBATHA
J
Date
of hearing
: 15
September 2016
Date
delivered
: October
2016
Appearances
:
For
the Applicant
:
Adv M
Maharaj
Instructed
by
: YUGAN
NAIDU ATTORNEYS
C/O
AZGAR ALLY KHAN ATTORNEYS
Hilltop
Office Park
Suite
2, Block D
73
Villiers Drive
Claredon
Pietermaritzburg
For
the Respondents
:
Adv S
Jasat
Instructed
by
: SERGIE
BRIMIAH & ASSOCIATES
510
JABU NDLOVU (LOOP) STREET
Pietermaritzburg
[1]
Act 66 of 1965