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[2016] ZAGPPHC 1140
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Marape v Magabe and Others (20008/2015) [2016] ZAGPPHC 1140 (14 September 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
14/9/2016
CASE
NO: 20008/2015
In
the matter between:
PHINDY
M.
MARAPE
First
Applicant
And
MAABORE
MAGDELINE
MAGABE
First
Respondent
THE
MASTER OF THE HIGH COURT: POLOKWANE
Second
Respondent
JUDGMENT
Carrim
AJ
[1]
This is an application for the removal of the first respondent as the
executrix of the estate of the late Joel Ditaelo Marape
('the
deceased') and for the reinstatement of the applicant as executrix of
the deceased's estate. The applicant brings this application
in terms
of section 54(2) of the Administration of Estates Act 66 of 1965.
("the Act”), and seeks an order as if she
was seeking an
interdict contemplated in that section.
[2]
The first respondent opposes the application. The second respondent
has filed a brief report in these proceedings but abides
the decision
of the Court. The applicant did not file a replying affidavit.
[3]
The matter was set down on the opposed roll by the first respondent
and a notice of set down was served on the applicant. The
applicant
did not bother to index and paginate the court file nor were there
any heads of argument filed by her legal representatives.
By the time
the matter was set down there was no certainty that there would be an
appearance on behalf of the applicant. However
on the day of the
hearing Mr Dzimba put in an appearance on behalf of the applicant,
submitted Heads and put up an argument that
was quite frankly
unhelpful to this court.
[4]
I accepted the late submission of the applicant's Heads of Argument
because in my view it was preferable to afford the applicant
an
opportunity to be heard given that the nub of her complaint to this
court was she had not been granted that opportunity at the
time of
her removal as executrix and to expedite the resolution of this
matter in the interests of the legitimate heirs of the
deceased
estate. However the conduct of the applicant in these proceedings is
matter of serious concern, particularly in light
of the very relief
she seeks. I return to this matter later.
Background
Facts
[5]
The first respondent and the deceased were married to each other in
terms of customary law in 1988. The marriage was not dissolved
by
divorce and existed at the time of the deceased's death on 17 August
2010.
[6]
Five children were born from the marriage between the first
respondent and the deceased namely Rudolf Marape, Tunase Obryn
Marape, Morake Morgan Marape, Lekowa Marape and Maashika Marape.
[7]
The deceased died intestate.
[8]
Unbeknownst to the first respondent and her children the deceased
entered into a civil union with the applicant on 7 April 2005.
The
applicant claims that this marriage was in community of property but
has not attached a marriage certificate to the founding
affidavit.
However the first respondent does not dispute that the applicant and
the deceased may have had an intimate relationship.
[9]
Upon the death of the deceased, the applicant reported the estate to
the second respondent. The second respondent (hereinafter
referred to
as the Master) confirms that the applicant was appointed as executrix
on the strength of a marriage certificate produced
by her. She was
appointed as executrix on 16 September 2010.
[10]
A letter canceling her appointment as executrix of the deceased
estate was sent to the applicant on 17 September 2013 (record
p 55)
In that letter, the Master advises that he has decided to remove her
as executrix in terms of section 54 (1) (v) because
she had "failed
to furnish him with the outstanding requirements as set out in the
registered demand of 30 July 2013".
The registered demand of 30
July 2013 was not attached to their papers by either the applicant or
the Master.
[11]
At the time of the appointment of the applicant as executrix of the
deceased's estate, the Master was not aware that the deceased
was
customarily married to the first respondent.
[12]
The fact of the customary marriage and the existence of the first
respondent and the deceased's five children was subsequently
brought
to the attention of the Master whereupon he made enquiries and was
satisfied of the existence of a valid customary marriage
between the
deceased and the first respondent. The Master then appointed the
first respondent as executrix on 21 October 2013,
more than a month
after he had removed the applicant.
[13]
On 12 November 2013 the attorneys of the first respondent wrote to
the attorneys of the applicant requesting that a roundtable
discussion be held in order to discuss the assets of the deceased
which were still in the possession of the applicant.
[14]
In this letter the attorneys confirm that they were writing on behalf
of the first respondent as executrix of the deceased
estate.
[15]
On 15 November 2013, the attorneys of the applicant wrote back and
advised that a liquidation and distribution (L&D) account
was
lodged with the second respondent and that same was lying for
inspection at the Naphuno Magistrate's Court. They indicated
that
they will revert regarding the possibility of a roundtable discussion
once they had taken instructions from the applicant.
A copy of the
L&D account was attached dated 4 October 2013.
[16]
The applicant did not accede to the request for a roundtable
discussion.
[17]
On 22 January 2014 the first respondent's attorneys wrote back and
put to the applicant, through her attorneys, that her appointment
as
executrix had been withdrawn by the second respondent, that she had
no authority or power to submit the L&D account dated
4 October
2013 and that in any event the L&D account which was submitted
was wrong as it made no provision for the customary
wife (record p 62
- 64) and children born out of it. There was a demand made for the
return of assets of the deceased estate.
[18]
The applicant did not return the assets as a result of which the
first respondent launched proceedings in the Tzaneen Regional
Court
for delivery of the assets. The Regional Court found in favour of the
first respondent. An attempt was made by the first
respondent to
enforce the court order but to date the assets have not been located.
The applicant has not taken the decision of
the Regional Court on
appeal or review and has retained possession of the assets in
contempt of the court order.
Basis
of the Application
[19]
The applicant now seeks to challenge her removal as executrix by the
Master on the basis that she had not received the letter
of 17
September 2013 and in any event the Master had not sent her a notice
as contemplated in section 54(2).
[20]
It was not clear from the papers whether the applicant was relying on
the former ground as a basis for seeking condonation
from this court
so as to exercise her rights under section 54(2) or that she was
raising some general basis of review. However
the fact that she makes
out a case on the basis of an interdict suggests that she intended to
exercise her rights under section
54(2) to approach this court. The
application was not brought under rule 53 or PAJA. At the hearing of
the matter, counsel for
the applicant confirmed that the application
was brought in terms of section 54(2) and not section 95 of the Act.
[21]
The Master's reasons, contained in the brief report filed in these
proceedings confirm that the applicant was removed as executrix
and
that the first respondent was subsequently appointed as executrix.
Significantly it is stated that at the time that the applicant
was
appointed (not removed) the Master was unaware of the customary
marriage between the deceased and the first respondent and
that this
marriage was in the Master's view valid and came "before"
the civil marriage to the applicant.
Applicable
Law and Application to the Case
[22]
The relevant provisions of Section 54 of the Act provide that:
"
54
Removal from office of executor
(1)
An executor may at any time be removed from his office-
…
(b)
by the Master-
…
(v)
if he fails to perform satisfactorily any duty imposed upon him by or
under this Act or to comply with any lawful request of
the Master.
(2)
Before removing an executor from his office under subparagraph (i),
(ii), (iii), (iv) or (v) 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 the date of such notice for an
order restraining the Master from removing
him from his office.
…
(4)
Any person who ceases to be an executor shall forthwith return his
letters of executorship to the Master."
[23]
The obvious purpose of section 54(2) is to provide the person who is
being removed with the reasons therefore and to alert
them to their
rights to approach a court, within 30 days, if they wish to restrain
the Master from doing so. The inherent principle
embodied by the
provisions of this section is
audi alteram partem
.
[24]
The applicant's complaint is that she had not received the reasons
for her removal and that she was not directed to her right
to
approach a court. She now exercises this right.
[25]
She asks the court to restrain the Master from removing her (and
because of the lapse of time this would mean reinstating her)
as
executrix on the following grounds:
25.1
She is the lawful spouse of the deceased and was married to him in
community of property. The customary marriage of the first
respondent
is not valid. She challenges both the customary marriage and the fact
that the five children were born from it.
25.2
Following on from her civil marriage she alleges that she is entitled
to half the estate. As a surviving spouse she is entitled
to a
child's share. The residue of the estate after all expenses are
estimated as reflected in the L&D drawn by her on 4 October
2013
is valued at R241 526.00. Half of this accrues to her from marriage
and the other half under section 1(a) of the Intestate
Succession Act
as the sole surviving spouse. Hence she is entitled to all the
assets.
25.3
In other words she had a clear right to the assets of the deceased
estate.
25.4
If she was not appointed as executrix she would not have use of the
assets of the deceased estate (which she refers to as "my"
assets in the founding affidavit) and would suffer irreparable harm.
25.5
She has no other remedy available to her.
[26]
Under the scheme of the Act where a deceased dies intestate the
Master is under no obligation to appoint the surviving spouse
as
executor of the estate. The Master however is under an obligation
under section 18 to appoint a person he deems fit and proper
to
wind-up the estate of the deceased in the interests of the legitimate
heirs. The Master may make such appointment with or without
notice to
the public at large. The primary obligation of the Master is to the
deceased estate and the legitimate heirs thereof
and pursuant to that
objective to entrust the affairs of the deceased to a fit and proper
person. Once appointed the executor occupies
a fiduciary role and
enjoys wide powers under the Act and is under an obligation to not
allow a conflict of interest between his
private interests and his
role as executor in a fiduciary duty. (Juanita Jamneck, Christa
Rautenbach, et al
The Law of Succession in South Africa
2nd
Edition).
[27]
As such there is no entitlement on the part of a surviving spouse or
a close family relative of the deceased to be appointed
as executor.
The applicant therefore enjoys no right to be appointed as executrix.
[28]
However in practice the Master is likely to appoint a close family
member, on the assumption that they would be best placed
to look
after the interests of all the legitimate heirs of the deceased.
Depending on the circumstances, this person could be the
surviving
spouse, the eldest adult child of the deceased, an uncle or other
close family friend or a church elder. In this case
the Master seems
to have followed this route.
[29]
Under the
Intestate Succession Act 81 of 1987
the legitimate heirs of
the deceased would be the five children born during his marriage to
the first respondent and a share for
the surviving spouse. Hence the
applicant might at best have a claim (and I make no finding in this
regard) against the deceased
estate but that would be a right as a
beneficiary of the estate, and would not translate into a right to be
appointed as executrix.
[30]
I now turn to consider the grounds upon which the applicant seeks to
resist the Master's removal of her as executrix.
[31]
The first ground she relies upon is her civil marriage in community
of property as a basis to suggest that she, as opposed
to the first
respondent, would be better placed to act as executrix. The customary
marriage between the first respondent and the
deceased took place in
1998. The applicant's civil marriage took place in 2005. Under
section 3(2) of the Recognition of Customary
Marriages Act 120 of
1998 ("
CMA
"), a spouse in a customary marriage is
not competent to conclude civil marriage during the subsistence of
the customary marriage.
Such a civil marriage would therefore be
unlawful. See
Nhlapo v Mahlangu and Others
(59900/14) [2015]
ZAGPPHC 142 (20 March 2015) at para 25. See
also Mayelane v
Ngwenyama and another
(Women's Legal Centre Trust and Others
as amici curiae)
2013 (8) BCLR 918
[CC].
[32]
The applicant attacks the customary marriage of the first respondent
by the bald allegation of non-compliance with customary
law
traditions but puts up no supporting evidence to that effect. On the
papers there is a weak attempt to suggest that the marriage
had not
taken place in 1998, prior to the commencement of the CMA but again
no supporting facts or evidence was put up in the papers.
[33]
The first respondent however was able to provide a certificate from
the Bakone ba Mametja Traditional Council authority that
the marriage
had in fact been concluded, as well as affidavits from her mother and
the brother of the deceased confirming that
the marriage had taken
place in 1998, the parties were above the age of 18, lobola had been
paid and five children had been born
from this wedlock. The birth
certificate of each child has been attached showing the father of
them was the deceased. I am satisfied
that on balance of
probabilities that the first respondent has amply demonstrated that
the marriage occurred in 1998 and prior
to the commencement of the
CMA. I am satisfied that on the balance of probabilities the
customary marriage between the deceased
and the first respondent was
validly concluded prior to the commencement of the CMA. I am
satisfied that the five children are
the direct descendants of the
deceased.
[34]
In terms of the section 3(2) of the CMA the marriage between the
applicant and the deceased was therefore unlawful and void.
Her
claims that the half the estate belongs to her and that she has a
right to the assets as alleged cannot be sustained.
[35]
Since she is not entitled to half the estate she cannot claim that
some or other injury or harm would accrue to her as a result.
[36]
But I stress here that in my view the issue of the validity of the
marriage does not determine whether the applicant is a fit
and proper
person to be appointed as executrix of the deceased estate. Even if
she were for argument's sake entitled to half the
deceased estate,
this would not necessarily render her a fit and proper person to
serve in a fiduciary role as executrix. Ultimately
it is the conduct
of the applicant that informs this court whether she is a fit and
proper person to be appointed - and in the
applicant's case not to be
removed - as executrix.
[37]
In
Gory v Kolver NO and Others
(4928/05)
[2006] 2 All SA
640(T)
the court takes into account the following in arriving at the
conclusion that the executor ought to be removed.
37.1.
"
[26] What I find very disturbing, however, is that he failed
to consider the applicant's claim that he is the heir. He was aware
of the claim since 23 May 2005. He was invited to have a discussion
and settle the matter. He bluntly refused to consider the applicant's
claim."
[38]
In
Oberholster NO and Others v Richter
(A515/11) [2013]
ZAGPPHC 99;
[2013] 3 All SA 205
(GNP) (12 April 2013) the court at
paras 11 traces the principles governing the application of section
54(1)(a)(v). Citing Margo
J in
Die Meester v Meyer en Andere
1975(2)SA 1(T) the court states that in that case the court lay down
the broad principle that -
"In
exercising so delicate a jurisdiction as that of removing trustees,
their Lordships do not venture to lay down any general
rule beyond
the very broad principle above enunciated that their main guide must
be the welfare of the beneficiaries."
[39]
The Court goes on to trace the development of the guidelines for
application of section 54(1)(a)(v) through
Grobbelaar v Grobbelaar
1959 (4) SA 719
(AA) and a number of cases and concludes at para 15:
"In
both the Grobbelaar and Webster matters referred to, the executor
stood to benefit financially in his personal capacity,
depending on
what actions he took as executor. In such instances his personal
interests are in conflict with the interests of the
estate and his
inability to be impartial may be a prima facie ground for his removal
as executor. Section 54(1) (a) (v) gives the
court a discretion and
the main consideration remains a consideration of the interests of
the estate and the heirs. (Cf Die Meester
v Meyer at p 17E)."
[40]
Thus the main guide for this court in deciding whether the applicant
ought to be reinstated as executrix in the present case
is the
interests of the estate and the welfare of the beneficiaries.
Conduct
of the applicant
[41]
The applicant was first appointed as executrix on 15 September 2010.
It was alleged by the first respondent that at the time
of her
appointment she was aware of the customary marriage between the
deceased and the first respondent as well as the children
born of
this union. Yet she did not bring this to the attention of the
Master. She does nothing about the deceased estate. She
is removed by
the Master on 17 September 2013 on the basis that she had not
furnished him with outstanding requirements, a letter
she claims she
did not receive. Yet it is clear from the 17 September 2013 letter
that the Master had on-going correspondence with
her and was under
the impression that she was represented by an Advocate M. B. Popela.
Even if we are to assume that she was not
aware of the first
respondent at the time of her appointment she certainly was made
aware of her existence and the existence of
the children in November
2013 when the attorneys on behalf of the first respondent wrote to
her. She was invited to a roundtable
discussion by first respondent
but has shown the invitation out of hand. She suddenly on 4 October
2013 files an L& D account
which purports to allocate the entire
deceased estate to her.
[42]
She treats the assets of the estate as her own and considers the
fruits thereof to belong only to her as follows - .
"
1.1
2003 Toyota Hi-Ace minibus, with registration number CDH [...]9 L;
1.2.
2004 Toyota Hi-Ace minibus, with registration number CDH [...]1 L;
1.3.
2006 Toyota Hi-Ace minibus, with registration number BCV [...]6 L;
1.4.
Livestock consisting out of approximately 22 cows and calves;"
"
I
submit an on-going harm is experienced by myself due to the fact that
my source of livelihood has been tempered with as a result
of my
dis-possession of my taxis, and further harm related to on-going
depletion in value of my/our three taxis as they are currently
generating income on a daily basis for the first respondent."
(
record p13)
[43]
She is advised of the children's rights and is asked to return the
assets of the estate but ignores the demand until she is
sued in the
Regional Court Tzaneen. To date she remains in contempt of that court
order. Seemingly she remains in defiance of the
Master's express
request that she return the letters of executorship.
[44]
The applicant has shown scant regard for the legitimate intestate
heirs of the deceased estate, being the five children, let
alone the
first respondent as surviving spouse. She has acted in greed and
self-interest and is willing to act in defiance of the
law to achieve
her ambitions. She has refused an invitation to meet and resolve
matters in a conciliatory manner. She has demonstrated
that her
personal pecuniary interests are in direct conflict with her duties
as executrix. Her conduct is unbecoming and bordering
on mala tides.
In my view she is not a fit and proper person to be appointed as
executrix.
[45]
Accordingly I make the following order -
45.1
The application is dismissed.
45.2
The applicant to pay the costs of the first respondent occasioned by
opposition to this application.
Y.
CARRIM
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Heard
on:
07
September 2016
Delivered
on:
14
September 2016
For
the Applicant:
Advocate
Q. M. Dzimba
Instructed
by:
TT
Magabe Attorneys
For
the First Respondent:
Advocate N. Breytenbach
Instructed
by:
AB
Burger
Attorneys