About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 536
|
|
Olivier v Master of the High Court and Others (61016.2013) [2016] ZAGPPHC 536 (23 April 2016)
IN THE HIGH COURT OF
SOUTH
AFRIC
GAUTENG DIVISION,
PRETORIA
Not
Reportable
Not of interest to other Judges
Revised
CASE NO:
61016/2013
DATE: 6 MAY 2016
In the matter between:
GERHARD
JACOBUS
OLIVIER
Applicant
and
THE MASTER OF THE
HIGH
COURT First
Respondent
MICHEIEL DANIEL
ENGELBRECHT Second
Respondent
HENDRIK JACOB
ENGELBRECHT Third
Respondent
J U D G M E N
T
lsmail J:
Background
[1] This matter
embraces an application launched by the applicant and a counter
application, by the second and third respondents.
[2] The applicant in
the main application seek to have the first respondent and second
respondent removal as executors in the estate
of the late Adriana
Johanna Engelbrecht [the deceased] be declared ultra vires. The
applicant alleges that the first respondent
failed to comply with the
provisions of section 54 (2) of the Administration of Deceased
Estates Act, 66 of 1969 [the Act]. In
the alternative he seeks to
have the actions of the first respondent reviewed, thereby setting
aside the appointment of the second
and third respondents as joint
executors in the deceased estate.
[3] The counter
application relates to the subsequent appointment of the second and
third respondents as joint executors in the
deceased estate.
The
second and third respondents seek that their appointment, pursuant to
the removal of the applicant, be ratified by the court
in terms of
section 18 of the Act.
[4] The deceased
appointed the applicant and the second respondent as executors in
terms of her last will and testament. They were
appointed as joint
executors by the first applicant, on the on the 6 July 2012.
[5] The only heirs
appointed by the testatrix were her three children, namely the second
and third respondent and their sister.
[6] On the 30 April
2013, the first respondent removed both the applicant and second
respondent as executors in the estate of the
deceased. The apparent
reason for doing so was that the first and final liquidation account
was not drafted. He gave the applicant
14 days to remedy the
situation.
[7] Before dealing
with the disputes in this matter I would deviate from the issues and
refer to the manner in which the answering
affidavit was commissioned
in this matter.
Defective
answering affidavit
[8] The second and
third respondents opposed the application. The answering affidavit at
page 107 of the paginated papers is signed
by a Commissioner of
Oaths, however, the name of the Commissioner of Oaths is not printed
nor is his/her designation given.
[9] The Commissioner
of Oaths and Justice of the Peace Act No16 of 1963 and specifically
regulation 4 thereof state the following:-
(1)
Below
the deponent' s signature or mark the Commissioner
of
Oaths shall certify that the deponent has acknowledged that
he
knows and understands the contents of the declaration and
he
shall state the manner, place and date of taking the
declaration.
(2)
The
Commissioner of Oaths
shall-
(a)
Sign
the declaration and print his full name and business address below
his signature; and (b) state his designation and the area
for which
he holds his appointment or
the office held by him if
he holds his appointment ex
officio.
[1O] It is imperative
that the person who does the commissioning and who administers the
oath does the following:
(1)
prints his name in full;
(2)
states his designation
(3)
provides his/her address.This is mandated in terms of the
regulations. One often finds a scroll or a signature and the identity
of the Commissioner of Oaths is not apparent at all, thereby making
it impossible to know who did the commissioning thereof.
[11] This issue was
dealt with by Corbett JA, as he then was, in the matter of S
v
Stevens
1983 (3) SA 649
(A) at 658 D-G. The court held that a
Commissioner of Oaths when attesting a written declaration under
oath,
is
required (i) below the deponents signature to certify that he (the
deponent) has acknowledged that he knows and understands the
contents
of the declaration and to state the manner, place and date of taking
of the declaration (reg 4 (1); (ii) to sign the declaration
and print
his full name and business address below his signature (reg 4 (2)
(a)); and (iii) to state his designation and the area
for which he
holds his appointment or the office held by him if he holds his
appointment
ex officio
(reg 4 (2) (b)).
[12]
In this matter the Commissioner of Oaths failed to print his name in
full and also failed to state his/her designation. There
was
therefore a failure of the provisions of regulation 4 (2) (a) and (b)
of the Act.
[13]
The respondents were given an opportunity the remedy the defect and
the affidavits were accordingly rectified to comply with
the
provisions of the Act.
Delay
in this matter
[14] This matter was
argued before me on the 23 April 2015 and I prepared a written
judgment. I informed the parties that I would
deliver the judgment on
5 May 2015. On the 5 May 2015 as undertaken and as I was about to
deliver the judgment, counsel for the
applicant insisted that the
judgment should not be handed down as the applicant intended to file
a supplementary affidavit in the
matter.
[15] This necessitated
that the matter had to be postponed, in order to afford the applicant
an opportunity to file further affidavits
and for the respondents to
reply thereto. Consequently the judgment was not handed down.
Thereafter the partiers sought a date
for the matter to be argued on
this aspect and they sent correspondence to my registrar, however, I
was on long leave and only
returned during the 4th term of 2015.
The roll for that term
was already finalized. I requested that they write to the Judge
President to allocate a date for the matter
to be further ventilated.
[16] From my side I
attempted to set the matter down, on days when I was not presiding in
court , however the dates were not suitable
to the litigants.
Ultimately I gave the parties notice that the matter would be argued
during the last week of the first term in
2016, as no matters were
set down.
[17] It should be
understood that the judgment was completed within two weeks of the
hearing, however due to the circumstances referred
to above the
matter was delayed.
Dispute regarding
removal of applicant as executor- main application.
[18] The applicant
launched the application for his re-instatement as executor on the
grounds that his removal was void and/or sought
a review thereof.
[19] The first
respondent did not oppose the application.
[20] The Master
addressed a letter to Greyling Orchard Attorneys, dated 3 April 2013,
which letter stated:
Dear Sir
I
Madam
ESTATE LATE AJG
ENGELBRECHT
Letter of executorship
issued on 2012-07-06 has reference.Unless the liquidation and
distribution account or a properly motivated
application for
extension to lodge the Liquidation and Distribution account in
compliance with regulation 6 of the administration
of Estates act, is
lodged
within
14 days,
I intend to report the matter to the *
LAWSOCIETY
/
INSTITUTE OF CHARTERED
ACCOUNTANTS
I
ASSOCIATION OF TRUST COMPANIES / REFER THE MATTER
TO
THE STATE ATTORNEY FOR PROSECUTION
OR
institute
proceedings to
remove you as executor.
I refer you to the
provisions of section 54 of the Administration of estates act 66/69
and PAJA act3/2000.
Yours faithfully
MASTER OF THE NORTHERN
GAUTENG HIGH COURT
[21] The applicant was
removed as an executor of the estate by the first respondent on the
30 April 2013.
[22] The application
is premised on the provisions of sections 54(1) (b) and sec 54 (2) of
the Act. Section 54(2) stipulates:
"
Before removing an executor from his office under subparagraph
(i),
(ii) (iii) ,
(iv)
of paragraph
(b) of subsection (1), the master shall forward to him by registered
post a
notice setting
forth
the
reasons
for such
removal,
and
informing
him
that
he may apply
to the
court
within
thirty
days from
that
date of such
notice
for an order
restraining the Master from removing him from his
office"
[23]
The letter addressed to Greyling Orchards Attorneys, who were
the correspondent attorneys of the applicant' s firm, in Pretoria,
is not a
letter
which was sent by registered post. Secondly it was not sent to the
executor as envisaged by the provisions of section 54(2),
giving him
notice that he would be removed as executor and that he would have
thirty days to bring an application to court restraining
his removal
as executor.
[24]
This letter was apparently given to the applicant by the 3
rd
respondent at a meeting which was held on the 10 April 2014. Clearly
it was not addressed to the applicant by registered post.
This begs
the question how did the third respondent get the letter which he
handed to the applicant.
[25] The Master's
removal of the applicant and second respondent as executors of the
estate, was not done in terms of the latter
of the law as prescribed
by section 54 (2). Miss Meyer acting for the applicant submitted that
the 30 day period as prescribed
in the section had not lapsed and
despite that, the Master removed the applicant. The first
respondent's actions were thereby
ultra vires
the Act. In
addition thereto she submitted that the first respondent's actions
were, amongst other things:
(i)
not authorized by the empowering provisions;
(ii)
the procedure was procedurally unfair;
(iii)
the action was taken arbitrarily or capriciously;
(iv)
the action was unconstitutional and unlawful
(v)
the action contravened the law and is not authorized by the
empowering provisions
The second and third
respondents submitted in their opposing papers that there was
substantial compliance with the provisions of
section 54 (2) of the
Act.
[26] Counsel for the
applicant relied upon the matter of
OJM Ferris
and Another
v First Rand Bank Limited and Another
52/13 ZACC 46 at para 21
where it was held:
"
While our law recognizes that substantial compliance with
statutory requirements
may be sufficient
in
certain circumstances;
Mr and
Mrs Ferris
have not given
compelling
reasons why
substantial -compliance standard would be useful or appropriate in
determining
compliance
with a debt
restructuring
order.
On the contrary,
there is no
indication
in the
wording of the Act
or debt restructuring
order
that anything less
than
actual compliance
is
required."
See also:
Thearl
and Another v Minnaar NO; Senekal v Windsor
2010 (3) SA 327
SCA
at par 14
[27] I do not agree
with respondents' submission that there was substantial compliance
and that the provision enjoined by s 54 (2)
had been complied with.
[28] The second and
third respondents were thereafter appointed as executors in their
late mother' s estate during June 2013. The
second respondent was
once again appointed, having previously been removed as an executor
together with the applicant.
[29] It is clear from
the papers that the relationship between the
applicant and the
second respondent deteriorated as the papers mention in the following
respects:
1. That the second
respondent withdrew an amount of R235 000. 00 which was approved of
by the heirs; the second respondent deposed
in his affidavit that the
applicant remarked to him "
You are now stealing your own
money"
The second
respondent approached Bester who was appointed as a valuator ; and
that he disputed the valuation of the properties
as reflected in
Bester's report.
3.The view of the
second respondent that the applicant was merely interested in his
own interest at the cost of the estate, by
having to pay higher
estate duties and executors fees in having the properties valued
higher than the accepted rate;
4. The dissatisfaction
on the part of the second respondent that the applicant failed to
give him a copy of the appointment certificate
and the subsequent
request by the applicant that he signs a power of attorney in favour
of the applicant to continue with the finalization
of the estate;
5. The applicant
collected rental income amounting to R418 700. 00 on behalf of the
estate. This amount was deposited into the applicant's
firms trust
account and he refused and failed to transfer it into a separate
estate account.
On the second
respondent's own version it appears that the relationship was
amicable, at least up to the stage that the applicant
questioned the
withdrawal of the money referred to above. It would appear that the
straw which broke the camel's back was the issue
of the valuation
which was done by Mr Bester. The second respondent labored under the
belief that the valuation of the property
was excessive and he
together with the third respondent confronted Mr Bester, in the
absence of the applicant.
This incident together
with the alleged accusation of the withdrawal of the monies, which
was shared amongst the heirs, soured the
relationship between second
respondent and the other heirs against the applicant.
[30] Mr Heyn's, acting
for the second and third respondents, submitted that there were three
possible alternatives from which the
court could make a finding. They
are:-
(i)
That even if the court found the Master's decision to remove
the applicant was
ultra vires,
however the court should ratify
the appointment of the second and third respondents as the matter is
moot due to the second and
third respondents having complied with the
first and final liquidation and distribution account and that the
properties are transferred;
(ii)
Even if the Masters action were ultra vires, notwithstanding
the ultra vires nature of the Master's action, the court would
appoint
the second and third respondents as executors as the
relationship between the heirs and the applicant had deteriorated to
the extent
whereby no trust and confidence exist between them;
(iii)
That the Master did not act in contravention of the Act and
that the removal of the applicant and second respondent was lawful
and
for that reason the application should fail.
[31] Dealing with the
proposal in (i) above, the papers do not indicate what Mr Heyn's
submitted from the bar, namely that the properties
were transferred.
Miss Meyer submitted that, if the Master's action were
ultra vires
the Act, then any subsequent actions taken by whomsoever, cannot
be regarded as being in compliance of the law, because their
authority
and/or mandate would be questionable. That action can be
ratified, for example, if the Court were to restore the status
ante
quo
by re-appointing the applicant and the second respondent, as
was the case prior to their removal.
[32] Mr Heyn'
submitted what practical effect would the order to set aside the
Master's ruling have, since it would be of academic
importance only.
The estate had been
completed and all that remains is the distribution of the monies held
by the applicant in trust. The farms had
been already been
transferred. In this regard he relied upon the judgment of
Mahomed
v Mahomed and Others
1976 (3) SA (T) at 156 A-B where Marais J
stated:
"
. . . the matter before us is clearly of academic interest only and
therefore not capable of a proper declaratory order in
terms of the
section.
These considerations
appear to us to be of sufficient weight to refuse to come to her
aid."
[33] Mr Heyn's
submitted that the applicant should have demanded an undertaking from
the respondents not to proceed with the administration
of the estate
pending the finalization of this application, alternatively the
application should have been launched on two stages
namely Part A and
Part B. In Part A an order restraining them, the second and third
Respondents, from doing anything pending the
finalization of the
administration of the estate and pending the determination of Part B
, which would have been the order to declare
the master's removal of
the applicant to be
ultra vires
and seeking the Court's
imperamatur on the way forward.
[34] Concerning the
second proposition raised by respondents counsel in terms of the
proposal referred to in (ii) above, namely
that the Court should
appoint the second and third respondents as executors, despite the
non- compliance with section 54 (2), because
of the breakdown in
relationship between the heirs and the applicant.
The submission is
premised on the reasoning that due to the breakdown in the
relationship between the parties, the court should
ratify the actions
of the second and third respondents as the estate had been completed.
The purpose of
administrative actions is to ensure that the law is adhered to. Where
a functionary acts beyond its powers, to remedy
such impugned
actions.
[35] It was submitted
that the Master did not act in contravention of the provisions of
section 54 (2), as the letter referred to
in para [17] supra, served
as a section 54 (2) notice and for that reason the application should
fail. The argument advanced on
behalf of the second and third
respondent was that there was substantial compliance with the
section. This aspect was dealt with
in paragraph [22]-[23]
supra.
[36] The counter
application seeks the dismissal of the application and request that
the Court orders that the appointment of the
second and third
respondents as joint executors in the estate of late AJG Engelbrecht
1n terms of section 18 (1) (d) and /or (
e) and /or (f) of the Act.
[37] Section 18 of the
Act is headed
Proceedings on failure of
nomination
of executors or on death, incapacity or refusal to act etc.
" 18 (1) The
Master shall, subject to the provisions of sub-section (3), (4) (5)
and (6) -
(a).......
(d) if the executors
in any estate are at any time less than the number required by the
will of the testator to form a quorum; or
( e) if any person who is
the sole executor or all the persons who are executors of any estate,
cease for any reason to be executors
thereof; or
(f)
if, in the case of two or more persons are the executors of an
estate, one or some of them cease to be executors thereof, and
in the
interest of the estate, one or more executors should be joined with
the remaining executor or executors,by notice published
in the
Gazette and in such other manner as in his opinion is best calculated
to bring it to the attention of the persons concerned,
call upon the
surviving spouse (if any), the heirs of the deceased and all persons
having claims against his estate, to attend
before him or, if more
expedient, before any other Master or any magistrate at a time and
place specified in the notice, for the
purpose of recommending to the
Master for appointment of executor or executors, a person or a
specified number of persons.
[38] The difficulty
one is confronted with in this application is that the Master had not
opposed the application, and therefore
one is not aware of his
reasons for removing the applicant as an executor, apart from the
alleged failure to comply with the first
and final liquidation
account. The only suggestion one has for the removal of the applicant
is that of the second respondent, those
are his views, and not those
of the Master. The second respondent seems to suggest that the
applicant failed to satisfactorily
perform his duties. That might or
might not be the case. It is the Master
who removed the
applicant and therefore one would expect that notice is given in
terms of s 54 (2) stating the reasons and giving
the executor the
requisite period to bring an application, if he/she does not agree,
to Court.
[39] The second and
third respondents therefore seek that the court should remove the
applicant as co-executor in terms of section
54(1)(a)(v) of the Act
where circumstances warrant such removal. The submit that the
applicant and the heirs do not see eye to
eye, due to the breakup of
a meaningful trust relationship between them. The second respondent
avers that there was an easy and
genial relationship between himself
and the applicant until January 2013, where after things
deteriorated.
[40] The second and
third respondent's aver that if the court were to find that the
Master 's action were
ultra vires,
then in such an event the
court should exercise its discretion in terms of section 54 (1) (a)
(v) of the Act and order the first
respondent to appoint second and
third respondents joint executors of the deceased estate in terms of
section 18 (1) (d) and/or
(e) and or (f) of the Act.
[41] It is trite, that
there is freedom of attestation in our law. In terms of the last will
and testament of the deceased, she
appointed the applicant and the
second respondent as the executors of her will. This wish or desire
should as far as is reasonably
possible be considered.
In
Port Elizabeth
Assurance Agency
&
Trust
Co.
Ltd v Estate
Richardson
1965 (2) SA 936
(C ) Van Winsen J at 940 ..
stated:
" I have no doubt
that in the exercise of its powers to appoint or remove an
administrator the Court will pay
close attention
to
the
wishes of the
testator as expressed
in or
implied
from the terms
of
the will.
The Court cannot,
however,
necessarily
be bound
by
these wishes even to
the detriment of the beneficiaries to whose interest it must
equally
clearly have regard."
[42]
From my perusal and understanding of the papers it does not appear
that the applicant was obstructive or not managing the estate,
if
anything he questioned certain behavior such as the withdrawal of the
R235 000.00 by the heirs. He appointed a valuator whose
valuation did
not meet the
approval of the second
respondent. This difference in the valuation was not dealt with by
the executors, instead the second and
third respondents on the
applicant's version confronted the valuator.[43] The insinuation that
the applicant sought a higher valuation
as his Executors fees would
be higher cannot willy nilly be accepted. When one scrutinizes the
allegation, Mr Bester is a sworn
valuator and there is no suggestion
that there was any complicity between him and the applicant to
inflate the valuation, in order
for the applicant to receive higher
fees.
[44] The first
respondent has to adhere to the provisions of the Act particularly
where the Act is prescriptive. The provisions
of the Act in terms s
54 (2) was not adhered to. The applicant who felt aggrieved thereby,
sought refuge to approach the court
in order to safeguard his rights
and to ensure that the law was complied with. Notwithstanding the
proceedings which were pending
the respondents continued to winding
up the deceased estate.
[45] The writer
0.
Meyerrowitz in The Law and Practice of
Administration
of
Estates
,
Fifth
edition
at page 100 under the heading
maladministration stated:
"
The court will remove an executor on the ground of maladministration
in or absence of administration if proved to its satisfaction.
Thus
executors have been removed for failure to lodge accounts after a
long period had elapsed, for failing to sign an account
without just
cause to pass transfer, for serious dereliction of duty. Mere
negligence in administration will ordinarily not be
a ground for
removal in the absence of proof that the estate or beneficiaries
would be prejudiced if the executor remained in office.-
see:
Sackvi!le West v Nourse
1925 AD 516
In the matter of
Administrators, Estate
Richards
v
Nicol
and Another
[1998] ZASCA 82
;
1999 (1) SA 551
at 557 C-
Scott JA referring to
Sackvi/le v Nourse and Another,
supra,
stated :
"
this Court had occasion to consider the standard of care required of
a trustee in relation to trust property. It was held
that the
standard was higher than that which an ordinary person might
generally observe in the management of his or her own affairs.
Such a
person, it was pointed out, was free to do what he liked with his
property .. . . A person in a fiduciary position such
as a trustee,
on the other hand, was obliged to adopt the standard of the prudent
and careful person , that is to say te standard
of the standard of
the
bonus et diligens paterfamilias
of Roman law, ..."
[46] It appears that
there was a complaint to the Master, whereby the first respondent
removed the applicant and the second respondent
as executors. Having
removed the second respondent together with the applicant, the Master
thereafter re-appointed the second respondent
together with the third
respondent as an executor. Having removed the second respondent as an
executor one ponders why he was re-appointed
as an executor. The
removal of the applicant as an executor was done in violation of the
provisions of section 54 (2) of the Act,
more particularly in breach
of the time period stipulated in terms of the section and the manner
of giving notice thereto.
[47] It was submitted
on behalf of the second and third respondents that the notice in
terms of section 54 (2) was dated 3 April
2013. That the applicant
was finally removed as an executor on the 7 May 2013. For that reason
there was compliance with the provisions
of the Act. However there is
some controversy regarding the date when the applicant received the
notice. The respondents submitted
that the applicant received it on
the 1O April and therefore there was substantial compliance of the
section.On behalf of the applicant
it was submitted that there should
be strict and not substantial compliance of the section where the
first respondent intended
to remove a person as a testamentary
executor.
In
this regard the applicant relied upon the decisions of
OJM Ferris
and Another v
First Rand Bank Limited and
Another CCT
52/13 ZACC 46 at para 21 and
Theart
and
Another v
Minnaar NO; Senekal
v Windsor
2010
(4)
SA 327
SCA at par 14. In the latter matter which concerned the
PIE Act, where the court stated:
"..
The real and
proper enquiry
should be whether
there
has
been
effective notice of the proceedings on
the occupiers
in the
sense
that
a
court
is
satisfied
that the occupier
has
been fully informed
of the impending
eviction,
the grounds therefore, the date and [place
\of hearing and the
right to appear in court and be represented.
"
[48]
In casu
the
first respondent did not send the notice to the nominated address of
the applicant; nor was the notice to remove the applicant
sent by
registered post and more importantly the date of receipt and how it
got to the applicant is shrouded by uncertainty.
There seems to be a
suggestion that it was brought to the applicant by the second
respondent on the 10 April 2013. The implication
being that it was
hand delivered by the third respondent.
[49] In my view the
first respondent did not comply with the latter of the section, in
that it was not sent by registered post and
the date which the
applicant had to perform in terms of the notice was within 14 days of
3 April, namely by the 17 April, however
on the second respondents
version the applicant only received the letter on the 10
th
April.
Supplementary affidavits
[50] The matter had
been delayed, as previously stated, to afford the applicant an
opportunity to file further affidavits.
[51] It is trite that
such affidavits may only be filed with the leave of the court.- See:
Transvaal Racing Club v Jockey Club of South Africa
1958
(3) SA599 (W);
Cohen
N.
0.
v
Nel and Another
1975(3) SA 963 (W) and
Erasmus, Superior Court Practice
at
B1-47.
[52] In
James Brown
&
Hammer (Pty) Ltd. v Simmons N.O.
(AD)
1963 (4) SA
656
Ogilvie Thompson at 660 D-G stated:
"
It
is
in
the interest of justice that the well- known and well established
general
rules regarding the number of sets and the
proper sequence of affidavits in motion
proceedings
should
ordinarily
be observed.
That is not
to say
that
those general
rules
must always be
rigidly applied:
some
flexibility, controlled by the presiding
Judge exercising his discretion in relation to the facts of the
case
before him, must necessarily
a/so
be permitted
.
.
"
[53] Whether a not a
further set of affidavits is permitted is a question of fairness
(
Milne NO v Fabric House (Pty) Ltd
1957 (3) SA 63
(N) at 65A.)
[54] The applicant
deposed to an affidavit that he ought to be given leave to file the
supplementary affidavit, as he was not aware
of the facts when the
matter was initially argued. Furthermore the affidavit would reveal
that the second and third respondents
were not candid with the court,
in that they committed 'perjury', when they stated that they were
unaware regarding the whereabouts
of the title deeds of the two
farms.
[55] The applicant
stated that he only became aware that the two farms were transferred
when he was told, that the respondents informed
the court thereof,
when the matter was argued. He was not present in court when this was
said. The respondents did not give him
notice as the co-executor that
the properties were to be transferred. More importantly they deposed
to affidavits stating that
the original title deeds were missing and
could not be found, when they were fully aware that the title deeds
were with his firm.
The affidavit which the second and third
respondent deposed to at the deeds office was patently false and they
knew it to be so
and therefore they committed perjury.
[56] The applicant
attached correspondence from the respondents attorney who requested
the applicant's firm to return the title
deeds. The applicant replied
thereto and he refused to do so in lieu of this application which was
pending.
[57] The applicant
sought by means of the supplementary affidavit to relay the
'dishonest' nature of the respondents by deposing
to affidavits that
the title deeds were missing, when they knew that the title deeds
were with his firm. On this aspect the second
respondent denied the
allegation that he gave the applicant the title deeds for safe
keeping. I am bound by the rule laid down
in
Plascon Evan (Pty)
Ltd v Van Riebeech Paints
1984
(4)
SA 632
(AD) at 643E-G. I have to accept the second respondent's
version on this aspect. During argument, Ms Meyer posed the
rhetorical
question who else apart from the second respondent could
have given the title deeds to his firm. A possibility is that Mrs
Engelbrecht
could have done so whilst she was alive. She could have
given it to the applicant for safe keeping as he was her attorney and
she
trusted him enough to appoint him as an executor terms of her
will.
[58] The supplementary
affidavit does not assist me in the determination of the issues. All
it seeks to do is to create the impression
that the respondents are
not trustworthy people and for that reason they should not be
appointed. They have not been factually
shown to be perjurers, and
despite that this court is to make a determination of their character
as 'perjurers'. Had they been
prosecuted for perjury and found to be
guilty that might have been a different cattle of fish. The issue of
the title deeds rather
than assist the Court in the determination of
the issues tends to obfuscate the issues.
[59] The first
respondent's action in removing the second respondent as an executor
was
ultra
vires.
The logical question to be
determined is what is to follow. The court can authorize the
appointment of the second and third respondents
as executors in terms
of section 18 in terms of the counter application or alternatively to
restore the status
ante quo.
[60] Had the applicant
premised the application as suggested earlier herein, by seeking an
undertaking from the Engelbrecht brothers
not proceed with the
administration of the estate pending the finalization of this
application. The court could have restored the
status ante quo,
despite the tension between the applicant and the heirs. The court
could have made an order that the liquidation
and distribution
account be completed and the properties to be transferred and the
remaining monies to be paid out.
[61] However, the
estate for all intents and purposes has almost been completed apart
from the distribution of the amount which
is being held in trust at
the applicant's firm. Should the court restore the
status ante qou
in order that the applicant does what has already been done,
thereby unscrambling the omelette.
Even
if the court were to re-appoint the applicant, the account was
advertised and approved and the properties are already transferred.
This process cannot be set aside because the applicant did not seek
an order to prevent the second and third respondent from acting
as
executors as they were appointed to do. Their appointment by the
first respondent it was submitted was proper and they carried
out
their mandate in terms of their appointment. See
Oudekraal estates
(Pty) Ltd
v City of
Cape
Town and Others
2004 (6) SA 222
(SCA) at paras [28]- [29]
at 242G-243F
[62] In my view to set
aside their appointment would be an exercise in futility and would
only delay the finalization of the estate
in circumstances where the
parties are already not seeing eye to eye at additional costs to the
estate.
[63] Notwithstanding
the actions of the first respondent not being in compliance of
section 54 (2) of the Act, I am of the view
to restore the situation
to what it was prior to July 2013 would be academic and moot.
Costs
[64] The applicant has
been successful in the main application, whilst the second and third
respondents have been successful in
the counter application.
[65] I could award the
costs to follow the result, however I am of the view that each party
should pay their own costs in view of
the partial success of each
party.
[66] The only costs
which I feel should be awarded are those costs associated with the
issue of the supplementary affidavits. In
view of the fact that the
court found that the supplementary affidavits were not to be allowed,
I believe that the applicant should
be responsible for the costs
relating to the filing of supplementary affidavit and the costs for
the hearing of 29 March 2016.
[67] Accordingly I am
of the view that the following would be an appropriate order:
(a) That the decision
of the first respondent , dated 30 April 2013 , to remove the
applicant as an Executor in the estate of the
late AJG Engelbrecht,
is hereby declared to be ultra vires and is set aside;
(b) The counter
application succeeds and the second and third respondents are
appointed as executors in terms of section 18 of the
Act.
(c) The applicant is
ordered to pay the cost of the application to lead further affidavit
, the supplementary affidavits are disallowed.
To the extent
that the court is of the view that the first respondent's action was
ultra vires in the main
application, and the counter
application succeeding, the court orders that each party pays its
own costs.
Ismail J
APPEARANCES:
For the
Applicant
:Adv D Meyer instructed by De Kock
and Duffy
c/o Bernard van der
Hoven Attorneys, Hatfield Pretoria
For the Second
and Third respondent:
Adv G F Heyns instructed by
Van
der Merwe Du Toit
Inc, Brooklyn
Pretoria
Date of
Hearing:
23 April 2015 & 29 March 2016
..
Judgment
Delivered_:
6 May
2016