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[2016] ZAGPPHC 771
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Kekana and Another v Master of the High Court and Others (78433/2014) [2016] ZAGPPHC 771 (26 August 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 78433/2014
DATE:
26/8/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
PATRICK
LESIBA
KEKANA
.
.........................................................................................
First
Applicant
FLORENCE
HUNGWANE
.....................................................................................
Second Applicant
and
MASTER
OF THE HIGH
COURT
...........................................................................
First Respondent
ZUKISWA
SKEPU-LYIMO
..................................................................................
Second Respondent
TEBOGA
KEKANA
..................................................................................................
Third
Respondent
HAPPY
KEKANA
..........................................................................................................
Fourth Respondent
PHILLIP
KEKANA.
...........................................................................................................
Fifth Respondent
DAVID
KEKANA
......................................................................................................
Sixth
Respondent
VICTORIA
MOLUFEFE
MFUNDISI..
..................................................................
Seventh
Respondent
MARIE
VICTOR ATTORNEYS &
CONVEYANCERS
..............................................
Eight
Respondent
REGISTRAR
OF DEEDS
…...................................................................................
Ninth
Respondent
STANDARD
BANK
….............................................................................................
Tenth
Respondent
CLEAR
CREEK TRADING (PTY)
LTD
..............................................................
Eleventh
Respondent
JUDGMENT
VAN
DER WESTHUIZEN, A J
1.
This is an application for review, in terms of the provisions
of section 6(1) of the Promotion of Administrative Justice Act
(PAJA),
3 of 2000, of decisions by the first and/or second
respondents taken on 24 July 2012 and 12 August 2012 respectively.
2.
The aforesaid decisions relate to:
(a)
the "revoking" of the letter of authority, number 7528/07,
appointing the second applicant as executrix in the estate
late
Malumo Mary Kekana;
(b)
the "appointment" of the third respondent as executrix in
the estate late Malumo Mary Kekana under letter of authority
number
6307/10; and
(c)
declaring the appointment of the third respondent as the duly
appointed executrix in the estate late Malumo Mary Kekana.
3.
The
applicants seek additional relief in the event that the review
succeeds. I shall deal therewith later in this judgment.
4.
The first respondent is the Master of the High Court,
Pretoria. The second respondent is the Assistant Master who issued
the aforesaid
two letters of authority to the second applicant and
the third respondent respectively. I shall refer to the first and
second respondents
collectively as the Master.
5.
The third, fourth and fifth respondents are grandchildren of
the late Malumo Mary Kekana. The sixth respondent and the first
applicant
are sons of the late Malumo Mary Kekana. The seventh
respondent is the purchaser of immovable property that was registered
in the
name of the late Malumo Mary Kekana. The eighth respondent is
the attorney who attended to the transfer of the said immovable
property
of the late Malumo Mary Kekana into the names of third,
fourth, fifth and seventh respondents. The ninth respondent is the
Registrar
of Deeds.
6.
The tenth respondent, Standard Bank, opposes this application.
The seventh respondent filed a notice of intention to oppose, but
did
not file any opposing affidavit and was not represented at the
hearing of the application.
7.
None of the other respondents opposes this application.
8.
The relevant facts are:
(a)
The late Malumo Mary Kekana passed away on 9 July 2005;
(b)
Her estate, being intestate, was reported to the first
respondent during April 2007 by the second applicant;
(c)
The Master on 25 April 2007 issued a letter of authority
appointing the second applicant as executrix in the intestate estate
of
Malumo Mary Kekana;
(d)
On 5 May 2010, the estate of the late Malumo Mary Kekana was
reported for the second time to the Master by the third respondent;
(e)
The Master on the same day issued a letter of authority, under
number 6307/10, in terms whereof the third respondent was appointed
as executrix in the estate of the late Malumo Mary Kekana;
(f)
The third respondent was also appointed as executrix in the
estate of Mosela Emma Kekana, her mother, the daughter-in- law of the
late Malumo Mary Kekana;
(g)
The appointment of the third respondent as executrix in the
estate late Malumo Mary Kekana only came to the knowledge of the
applicants
when the occupier of the immovable property in the
estate late Malumo Mary Kekana attempted to purchase electricity for
the
property. She then discovered that the said property had been
transferred into the name of the seventh respondent;
(h)
In February 2011, the applicants' attorneys addressed a letter
in this regard to the Master, objecting to the appointment of the
third respondent in the estate late Malumo Mary Kekana;
(i)
The Master, in response to the aforementioned letter, directed
the issue to the Magistrates' Court, Pretoria, for an investigation
into who the heirs to the estate late Malumo Mary Kekana were;
(j)
The Chief Magistrate, Pretoria, declined in writing to undertake the
requested investigation on the ground that he was no longer
vested
with the power to supervise and administer deceased estates;
(k)
During June 2011, the first respondent filed a report in then pending
matters before the North Gauteng High Court (as it was
then known).
In that report the Master conceded that the double appointment of
executors in the estate late Malumo Mary Kekana
arose as a result. of
the change in the computer programme used by the Master's Office when
registering a new estate. It appears
that the matters in which the
report was filed, came to naught, neither of the two matters were
finalised;
(I)
Only during July 2012 did the Master respond in writing to the
applicants' initial objection of February 2011. That response
was
merely to the effect that the letter of appointment of the third
respondent was
"in the system"
and hence it was
valid. The letter of appointment of the second applicant was
"not
in the system and therefore have no effect'
(sic);
(m)
Ongoing litigation, including an application for the eviction of the
occupier of the said property, ensued between the seventh
respondent
and the applicants and also between the third respondent and the
eighth respondent. The litigation initiated by the
seventh respondent
was abandoned by her;
(n)
The first applicant launched an application in this Division in which
similar relief as that sought in this application for
review of the
first and second decisions. That application was dismissed on 13
October 2014. The apparent
ratio
of that court's decision
being that the first applicant ought to seek a review of the Master's
decisions;
(o)
On 20 October 2014 this application was launched.
9.
The tenth respondent was cited as a party to these proceedings
in view of a loan agreement entered into by the tenth respondent and
the seventh respondent.
10.
In its opposition to this application, the tenth respondent
has raised a number of objections to the relief being sought. These
are:
(a)
The applicants' delay in bringing this application and the
explanation provided in respect of condonation sought for the delay;
(b)
The
locus standi
of the first applicant in these
proceedings;
(c)
The determination of the first respondent in respect of the
two appointments of executors;
(d)
The setting aside of an agreement entered into by the third
respondent and the seventh respondent.
11.
The issue of the tenth respondent's
locus standi
to
oppose this application was raised with counsel for the tenth
respondent. He submitted that the tenth respondent had indeed the
required
locus stand,
firstly, in view of the applicants
having cited the tenth respondent and secondly, in view of the tenth
respondent's interest in
the property by virtue of the loan agreement
with the seventh respondent and the mortgage bond registered as
security over the
property in favour of the tenth respondent.
12.
Counsel for the tenth respondent submitted, in respect of the
second ground referred to above, that the abstract approach to the
transfer of the property is to be applied, as opposed to the causal
approach. In such an instance, the tenth respondent has the
required
locus standi
to oppose the application.
13.
The tenth respondent's interest in the said property lies in
respect of the loan agreement entered into between it and the seventh
respondent. The tenth respondent has no direct, substantial or legal
interest (apart from a financial interest
vis-a-vis
the
seventh respondent) in this application. It is common cause that the
mortgage bond registered over the said property constitutes
nothing
more than security. The underlying relationship between the tenth
respondent and the seventh respondent is that created
by the loan
agreement, which creates rights and obligations between the parties
thereto.
14.
There is no allegation on the part of the seventh respondent
that she was an "innocent buyer" of the property, or that
she did not have any knowledge of the tainted rights in and to the
said property on the part of the third to fifth respondents.
The
abandonment of the aforesaid litigation on the part of the seventh
respondent is telling.
15.
Further in this regard, there is no gainsaying evidence on the
part of the third respondent that she had not acted mala
fide
when
registering the estate late Malumo Mary Kekana for the second time,
when applying for letters of authority to be issued to
her in respect
of the estate late Malumo Mary Kekana and when entering into the
agreement with the seventh respondent.
16.
It follows that the tenth respondent does not in its own right
have the required
locus standi
to oppose this application.
17.
That being said, Mr Whittington greatly assisted in debating
the relevant issues and he is thanked for his able argument.
18.
The
relevant facts in respect of the merits and the
issue
of condonation for the time elapsed since the issuing of the second
set of letters of authority are closely intertwined.
It
is apparent that all parties are to blame for this matter not coming
to fruition sooner. Condonation is granted for what follows.
19.
It is common cause that the first/second respondent issued letters of
authority
to
the
second
applicant
in
the
estate
late
Malumo
Mary
Kekana.
It
is also common cause that the first/second
respondent
thereafter issued letters of authority to the third
respondent
in
the same estate.
It
is
common
cause
that
the
issuing
of
the
second set of letters of authority to the third respondent occurred
due to
the
prevailing circumstances at
that
time
relating
to
the
implementation of a new computer system in the offices of the
Master.
20.
The question is whether the Master had the power to issue
the
second letter of authority in respect of the third respondent in view
of
the issuing of the first letter of authority to the second applicant
that has not been withdrawn.
21.
It is trite that once the Master has issued letters of authority, it
is
functus
officio
in
that regard.
[1]
It is only in
special circumstances,
as
provided in the Administration of Estates Act, No. 66 of 1965, (the
Act) that a letter of authority can be withdrawn.
[2]
None of
those
circumstances apply
in
casu.
22.
There is no allegation, nor is there any suggestion, that the
letters of authority issued to the second respondent constituted a
"fraud" or were not issued by the Master. The Master
accepts that it was duly issued.
23.
The
explanation offered in respect of the issuing of the second set of
letters of authority was dealt with in the Master's report
referred
to earlier. It is apparent from that report that the second set of
letters of authority were issued due to an administration
error, i.e.
the implementation of a new computer system for the registration of
estates. However no explanation was provided in
respect of the steps
that were taken to prevent any "duplication" in the
registration of estates during that period.
The
reasoning on the part of the Master that because the first letters of
authority was not in the system does not justify holding
the second
set of letters of authority valid and the first set of no effect. The
Master was obliged to investigate the matter once
the objection was
lodged. The Master failed to do so. The referral of the objection to
the Magistrate's Court was uncalled for
and did not relieve the
Master of his/her obligation to investigate the circumstances.
25.
It is thus clear that, whilst knowing of the problems relating
to the implementation of the new system for registration of estates,
and not implementing appropriate steps to prevent any duplication,
the Master could not properly have applied his/her mind when
appointing the third respondent as executrix in the estate late
Malumo Mary Kekana. Furthermore, the Master was
functus officio
at
the time.
26.There
is a further aspect that requires consideration. That relates to
documentation that was placed before the Master by the
third
respondent allegedly in support of an appointment as executrix in the
estate late Malumo Mary Kekana. At least two of those
documents are
of utmost importance. The first is a declaration that no letters of
authority have been issued in respect of the
estate of late Malumo
Mary Kekana. That document was not signed. The second document
relates to the declaration of subsisting marriages
and/or
cohabitation of relationships. This document is also not signed. It
is not explained by the Master, how, in the absence
of duly completed
declarations, the issuing of letters of authority could have been
done. This is a further aspect that sways against
a finding that the
Master had applied his/her mind properly when issuing the second set
of letters of authority to the third respondent.
There are other
documents that were submitted in support that were also unsigned.
The
validity of the appointment of the second applicant as executrix in
the estate late Malumo Mary Kekana is not contested.
It
follows that the Master's decision to appoint the third respondent
cannot stand. Likewise, the Master's decision that the third
respondent's appointment as executor in the estate. Malumo Mary
Kekana is valid and that the appointment of the second applicant
as
executor in the estate Malumo Mary Kekana is of no effect, cannot
stand.
29.
It follows that the said decisions by the Master stand to be reviewed
and set aside.
30.
The applicants further seek that the respective transfers of the
estate property that followed on the appointment of the third
respondent as executrix be set aside.
31.
It is not disputed that the third to fifth respondents never
occupied the property of the late Malumo Mary Kekana. In fact there
were attempts to evict the occupier of the said property, albeit
after the transfers had taken place. Those evictions were never
pursued to finality and were abandoned. I find that the actions of
the third respondent in attempting to obtain the requisite authority
to deal with the estate property to be seriously questionable. The
attempt to obtain letters of authority in respect of the estate
late
Malumo Mary Kekana only occurred five years after her death and three
years after the death of Mosela Emma Kekana.
32.
In the absence of an allegation that the sixth respondent had
passed away or of any proof thereof, the statement by the first
applicant
that the sixth respondent is still alive is to be accepted
as correct. It follows that the late Mosela Emma Kekana (who passed
away on 14 March 2007) could not have inherited intestate from the
late Malumo Mary Kekana together with the third to fifth respondents
per stirpes.
33.
In
view of the fact that the sixth
respondent
is
still alive,
and
in
the absence of any statement or proof to the contrary, I am of the
view that the only inference that could be drawn is that the
third to
fifth
respondents knew that they had no right to the estate property and
could
thus
not
validly
dispose
thereof
either
to
the
seventh
respondent
or any other party.
[3]
34.
I have already found that the decision of the Master relating
to the issuing of the second set of letters of authority to the third
respondent is to be set aside, the Master being
functus officio
at
the time, consequently the third respondent had
ab initio
no
authority to deal with the estate property.
35.
For the aforesaid reasons there are defects in the real
agreements.
36.
Consequently, the third respondent had no right in and to the
title to the estate property and could not give transfer thereof to
any third party, including himself.
37.
It follows that the transfers of the said property stand to be set
aside.
I
grant the following order:
(a)
The decisions by the first and second respondents:
(i)
On 24 July 2012 effectively revoking the letter of authority
issued to the second applicant under number 7528/07 on 25 April 2007
in the estate late Malumo Mary Kekana;
(ii)
On 5 May 2010 issuing letters of authority under number
6307/10 to the third respondent in the estate late Malumo Mary
Kekana; and
(iii)
On 12 August 2012 confirming the letter of authority issued
under number 6307/10 to the third respondent in the estate late
Malumo
Mary Kekana;
are
set aside;
(b)
The purported agreement between the third and seventh respondents be
and is hereby declared invalid;
(c)
The Registrar of Deeds is directed to reverse or cancel the transfers
of the property known as ERF [35..], Attridgeville Township,
Registration Division J.R. Province of Gauteng, on 5 April 2011:
(i)
From Estate Late Malumo Mary Kekana to Estate Late Mosela Emma Kekana
under Deed of Transfer number [T019…];
(ii)From
Estate Late Mosela Emma Kekana to Tebogo Kekana, Phillip Kekana and
Happy Kedibone Kekana under Deed of Transfer number
[T01916…];
and
(iii)
From Tebogo Kekana, Phillip Kekana and Happy Kedibone Kekana to
Victoria Molufefe Mfundisi under Deed of Transfer [T01916..].
(d)
No order as to costs.
CJ
VAN DER WESTHUIZEN
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION
On
behalf of Applicants:
….........................................
S
Tshabalala
Instructed
by:
..............................................................
M
L Kekana Incorporated
On
behalf of First to Ninth Respondents:
…................
No
appearance
Instructed
by:
On
behalf of Tenth Respondent:
…...............................
D
Whittington
Instructed
by:
.................................................................
Van
Hulsteyns Attorneys
[1]
Welgemoed NNO v The Master 1976(1) SA 513 (T); See also Transair
(Pty) Ltd v National Transport Commission et a/ 1977(3) SA 784
(A)
[2]
Section 54 of the Act
[3]
See Nedbank Limited v Mende/ow NO 2013(6) SA 130 (SCA) at [12]; see
also Legator Mekena Inc et al v Shea et al 2010(1) SA 35
(SCA) at
44G-J