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[2016] ZAGPPHC 1098
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Salzwedel NO v Rossouw and Others (A258/2015) [2016] ZAGPPHC 1098 (14 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
NO
REVISED.
APPEAL
CASE NO
: A258/2015
COURT
A QUO
CASE NO
: 2013/51034
DATE
:
14TH DECEMBER 2016
In
the matter between:
SALZWEDEL
:
GREGORY ANDREW N
O
Applicant
and
ROSSOUW
:
SARINA N
O
First
Respondent
BOTES
- SCHOEMAN
: NERINE N
O
Second
Respondent
THE
MASTER OF THE HIGH
COURT
Third
Respondent
ROSSOUW
:
SARINA
Fourth
Respondent
ROSSOUW
:
SAMUEL N
O
Fifth
Respondent
REDINER
:
FRIEDERICH WILHELM N
O
Sixth
Respondent
In
re:
ESTATE LATE CATHARINA MARGARETHA SALSWEDEL
JUDGMENT
ADAMS
AJ:
[1].
This is an appeal against the judgment and order, excluding the costs
orders, of Prinsloo J in terms of which the appellant's
application
for a declaratory order was dismissed, with the costs of the
application to be paid by the deceased estate of the late
Catharina
Margaretha Salzwedel. The appellant also appeals against the judgment
and the order, again excluding the cost order,
of the court a
quo
in the counter - application in terms of which the appellant was
removed from his office as the executor of the deceased estate of
the
late Catharina Margaretha Salzwedel, with the costs of the counter -
application to be paid by the deceased estate. This appeal
is with
the leave of the court a
quo.
[2].
The case turned mainly on the interpretation of certain clauses in
the will of the late testatrix, Ms Salzwedel
('the deceased).
[3].
The background facts found by the court a
quo
were in the main
common cause.
[4].
The deceased was an active and successful businesswoman, having won
during her lifetime some awards for her enterprising work.
She was
evidently involved in pursuits such as insurance brokerage, advising
on finances and risk management. In the process she
floated a number
of companies of which she was, for the most part, the sole director.
[5].
The deceased used to be married to the fifth respondent, Mr Samuel
Rossouw. From this marriage two daughters were born, the
first
respondent (also the fourth respondent}, evidently also a business
woman in her own right and 28 years old at the time of
the hearing of
the application in the court a
quo,
and a younger daughter,
Rhode Rossouw
('Rhode'),
who was represented in the motion
proceedings by the fifth respondent, as she was a minor at the time
of the commencement of the
proceedings. Shortly after the hearing of
the application and before the court a
quo
handed down its
judgment, Rhode had become a major.
[6].
During February 2002 the deceased founded the
Karlen Rossouw
Familie Trust ('the Trust').
One of the original trustees of the
Trust was the deceased. At the time of the hearing of the
applications in the court a
quo
the trustees were the
appellant, the first respondent (who was also cited in her personal
capacity as the fourth respondent), the
second respondent and the
sixth respondent.
[7].
In terms of the Trust Deed of the Trust the beneficiaries are the
deceased and her two daughters (the fourth respondent and
Rhode). In
terms of clause 6.1 of the Trust Deed the trust shall become
dissolved upon the death of the deceased on condition that
the
trustees, in the exercise of their discretion, may dissolve the trust
either before or after such demise. The trustees decided
not to
dissolve the trust upon the death of the deceased on the 13th
September 2012.
[8].
The deceased and the fifth respondent were divorced during 2001. On
the 20th September 2003 the deceased and the applicant
got married to
each other out of community of property. At the time of their
marriage, the deceased was 42 years old and the appellant
35.
[9].
On the 12th December 2007, the deceased signed her last will and
testament
('the will'),
which forms the subject of this
dispute. In terms of the will, the appellant was appointed as the
executor. The deceased passed
away on the 13th September 2012.
[10].
After the death of the deceased, and while the estate was being
administered and finalised, a number of disputes emerged,
and
were identified between the appellant, on the one side, and the
first, fourth and fifth respondents
('the opposing respondents'),
on the other side.
[11].
The main dispute, which forms the subject of this case, involves the
question whether the will should be interpreted in such
a way that
all shares owned by the deceased at the date of her death, including
58 very valuable shares held in Gulfstream Energy
(Pty) Ltd, is to be
included in the legacy of the appellant personally or in the legacy
of the trust beneficiaries, that is the
two daughters of the
deceased.
[12].
In an effort to resolve the aforegoing dispute, the appellant, in his
capacity as executor of the deceased estate, launched
the application
in the court a
quo
for a declaratory order to the effect that
the mentioned shares and loan accounts are to be included in his
personal legacy. This
application was opposed by the opposing
respondents, who also brought a counter - application seeking orders
for the removal of
the appellant from his office as the executor of
the estate in terms of
section 54(1)(a)(v)
of the
Administration of
Estates Act no 66 of 1965
and for the appellant to be directed to
return the Letters of Executorship issued to him by the Master of the
High Court.
[13].
In his amended Notice of Motion the appellant had asked for an order
in the following terms:
'1. That it is
declared that the correct interpretation of paragraph 5. 1 of the
last will and testament of the late Catharina Margaretha
Salzwedel
executed on 12 December 2007 at Centurion is that all shares owned by
the testatrix on the date of her death on 13 September
2012,
including specifically (but not limited to) the 58 shares held in
Gulfstream Energy (Pfy) Ltd, with registration number:
20061031199107, is to be included in the legacy of her husband,
Gregory Andrew Salzwedel;
2. That it is declared
that the correct interpretation of paragraph 5. 1 of the last will
and testament of the late Catharina Margaretha
Salzwedel executed on
12 December 2007 at Centurion is that all loan account(s) listed in
favour of the testatrix on the date of
her death on 13 September
2012, including specifically in (but not limited to) Gulfstream
Energy (Pty) Ltd, with registration number:
20061031199107, is to be
included in the legacy of her husband, Gregory Andrew Salzwedel.'
[14].
The order that the appellant seeks in this appeal, which is at
variance with the order (as per the amended Notice of Motion)
sought
at the hearing of the application in the court a
quo,
is:
'1. That it is
declared that the correct interpretation of paragraph 5. 1 of the
last will and testament of the Late Catharina Margaretha
Salzwedel
executed at Centurion on 12 December 2007 is that all shares owned by
the testatrix on the date of her death on
13 September 2012,
including specifically (but not limited to) the 58 shares held in
Gulfstream Energy (Pfy) Ltd with registration
number 20061031199107,
is to be included in the legacy to her husband, the applicant;
2. That it is declared
that the correct interpretation of paragraph
5.
1 of the last
will and testament of the Late Catharina Margaretha Salzwedel
executed on 12 December 2007 at Centurion is that all
credit loan
accounts listed in favour of the testatrix on the date of her death,
namely 13 September 2012 in Intra Financial Advisors
Holdings (Pty)
Ltd, Intra Financial Advisors (Pty) Ltd, Horus Management
CC,
Intra Sure Insurance Brokers (Pty) Ltd and Alexander
Hutchinson (Pty) Ltd is to be included in the legacy to her husband,
the applicant;
3.
That any credit
loan account that might be listed in favour of the testatrix on
the date of her death, namely 13 September
2012, in Gulfstream Energy
(Pty) Ltd with registration number 20061031199107 is to be included
in the residue of the estate of
the Late Catharina Margaretha
Salzwedel';
4. That the counter
application be dismissed;
5. The costs order
sought by the Appellant is that the costs of the appeal, including
the costs of the application for leave to
appeal, be paid by the
estate of the Late Catharina Margaretha Salzwedel, if the appeal is
unopposed.
[15].
The clauses of the will which the appellant sought to have
interpreted in his favour in his personal capacity are clauses
5 and
6 of the will, which reads as follows:-
'5.
LEGACIES:
I bequeath my estate
as follows:
5.1 To my husband,
GREGORY ANDREW SALZWEDEL, all my shares, and any credit loan account
in INTRA FINANCIAL ADVISERS HOLDINGS (PTY)
LTD, INTRA FINANCIAL
ADVISERS
(PTY) LTD, HORUS MANAGEMENT
CC,
INTRASURE
INSURANCE BROKERS (PTY) LTD and ALEXANDER HUTCHINSON (PTY) LTD.
5.2 To the Trustees of
the KAR/EN ROSSOUW FAM/LIE TRUST (No IT 1800102),
a
cash
amount equal to the amount due to me by the said trust
as
at
date of my death, to be administered for the benefit of
the
trust beneficiaries in terms of such Trust Deed.
6. HEIRS:
6.1 The residue of my
estate to the Trustees of the KAR/EN ROSSOUW FAMILIE TRUST (No. It
1800102), to be administered for the benefit
of the trust
beneficiaries in terms of such Trust Deed.
[16].
During 1998 the deceased started the business Intra Financial
Advisors (Pty) Ltd (mentioned in clause 5.1 of the Will) as
a
marketing and management company. During 2003 she moved to Pretoria
to expand the Intra Financial Advisors business and also
established
a holding company, Intra Financial Advisors Holdings (Pty) Ltd (also
mentioned in clause 5.1 of the will) and another
property holding
company, Horus Management Services (also mentioned in the will). She
also established another short - term insurance
brokerage, Intra -
Sure Insurance Brokers (Pty) Ltd (also mentioned in the will) and
during 2006 the deceased purchased another
brokerage, Alexander
Hutchinson Brokers (Pty) Ltd. All of the aforementioned businesses
are specifically mentioned by name in the
will of the deceased.
[17].
Gulfstream Energy (Pty) Ltd
('Gulfstream Energy)
and the
shares and the loan account of the deceased in that company are not
mentioned in the will. The deceased had started the
business of
Gulfstream Energy, which had a company name change from Intra Credit
Risk Management (Pty) Ltd on the 2
nd
October 2009.
[18].
Unlike the other businesses of the deceased, Gulfstream Energy was
not mentioned in the will, although it came into existence
about a
year before the will was signed in December 2007 and three years
after the deceased married the appellant, therefore approximately
four years after the date of marriage. Gulfstream Energy conducted
very little or no business from its registration during 2006
until
the latter part of 2009. In the financial statements of the said
business the deceased is listed as the sole director. In
terms of the
Shareholders' Agreement entered into during November 2009 between the
deceased and Ms Jegels, the remaining shareholders
'shall be
obliged to purchase the shares'
upon the demise of one of the
shareholders. Ms Jegels was the only other shareholder. The shares
are to be valued and then sold
to the remaining shareholders. The
shares had since been valued at some R5.2 million and Ms Jegels had
offered to purchase them
[19].
The court a
quo
came to the conclusion that the appellant
failed to make out a case which supports his proposed interpretation
of the will. The
court a
quo
was of the view that the failure
by the testatrix to mention Gulfstream Energy with the other
businesses in the will (or to introduce
a reference to the said
business by way of a later amendment to the will), inevitably points
to the inclusion of the Gulfstream
shares as part of the residue of
the estate of the deceased, which has to be administered for the
benefit of the trust beneficiaries
as specified in clause 5.2 of the
will.
[20].
The appellant's appeal is based on three main grounds. I deal
therewith in turn.
[21].
The appellant argues that the court a
quo
failed to correctly
approach the interpretation of the deceased's will in that it failed
to consider the language, the wording
and the
punctuation as used in the will.
Consequently, so it was submitted on behalf of the
appellant, the
court a
quo
erred in not finding that the wording of the will,
in particular the wording of clause 5.1, is clear and unequivocal,
and that no
further interpretative measures needed to have been
considered.
[22].
It was furthermore argued before us that when considering in detail
the contents of clause 5.1 of the will, as the court a
quo
ought
to have done, specifically considering the use of punctuation, the
significance of the comma between the words
'all my shares'
and
'and any credit loan account',
should be recognised. The court
a
quo
erred in not giving any consideration or assigning any
importance to the explicit placing of the comma by the testatrix, so
it was
submitted. The court a
quo
ought to have found that the
normal or neutral use of the comma after the words
'all my shares'
in paragraph 5.1 separates the classes of assets, namely on the
one hand
'shares'
and on the other hand
'loan accounts'
in
specified entities that include a close corporation.
[23].
If the court a
quo
had given to the use of the comma the due
consideration it ought to have given, it would have come to the
conclusion that two separate
and distinct bequests were made by the
testatrix in clause 5.1 of the will. Firstly any and
I
or all
shares and shareholdings the deceased had at the time of her death in
any and
I
or all companies and other corporate entities and
secondly the credit loan accounts listed in her favour in the named
entities.
Both of these bequests, so it was argued, were in favour of
the appellant in his personal capacity.
[24].
In sum, it was argued on behalf of the appellant that the court a
quo
had erred in that it ignored the comma between the words
'all
my shares'
and
'and all loan accounts'.
[25].
It was also submitted on behalf of the appellant that the Court a
quo
had incorrectly applied the
expressio unius est exclusion
alterius
maxim referred to in
Dison N
0
and Others v
Hoffman and others NNO,
1979(4) SA 1004 (AD). The facts in that
matter, so it was submitted, differ totally from the present matter
and also because
in casu
there is no ambiguity in the wording
of the will as was the case in the
Dison
matter. In the
present matter, the two totally different legacies dealt with in
clause 5.1 of the will of the deceased, are clear
as daylight, so it
was submitted.
[26].
When interpreting the provisions of a will, the approach should be to
ascertain the intention of the testator from the language
used in the
will. In that regard see:
Estate Maree v Redelinghuis,
1943 AD
547
at 551. Ordinary words must be understood in their natural and
ordinary meaning, technical words in their technical meaning; general
words following upon specific words of one genus have to be
read
eiusdem generis
with the words proceeding them and
inclusio unius exclusio alterius.
[27].
In
Dison N
0
v Hoffmann N
0,
1979 (4) SA 1004
(AD) the
court commented on its duty to interpret the provisions of a will at
page 1028H as follows.
'In view of the
linguistic imperfections of this will which I have pointed out, it
seems to
me
that it would be dangerous to construe this will
by
a
process of painstakingly endeavouring to assign
a
meaning to eveiy word or of attaching special significance to the
use of the plural or singular number or to
a
particular
expression used in the will. From
a
linguistic point of view
the proper approach to adopt in the present case would be, in my
view, to take
a
broad view of all the provisions in the will,
to eschew
a
meticulously literal approach to eveiy word or
expression used and to determine the general scheme of the will.
After all, the cardinal
rule of construction is to ascertain the
intention of the testator. It is true that, basically, the duty of
the Court is to ascertain,
not what the testator meant to do when he
made his will, but what his intention was as expressed in his will.
See:
Robertson v Robertson's Executor,
1914 AD 503
at 507;
Cuming v Cuming and Others,
1945 AD 201
at 206;
Ex parte
Froy: In re Estate Brodie,
1954 (2) SA 366
(CJ at 370A
- C.
[28].
In construing the contents of a will, and only in the event when
difficulty exists to ascertain the wishes of the testator
from the
plain interpretation of the language used in the document, the court
must place itself in the position of the testatrix.
The court will do
so by applying the
'armchair rule'
and place itself in the
position of the testatrix to consider surrounding circumstances and
extrinsic evidence available. The court
will then determine and
consider facts which are likely to have motivated the testatrix in
her dispositions.
[29].
In my view clause 5.1 of the will is capable of at least two
interpretations. The argument by Mr Louw, Counsel for the appellant,
that the clause 5.1 is clear, unambiguous and does not require the
application of any assistive rules of interpretation, is
unsustainable.
In that regard, I am in agreement with the submissions
made on behalf of the opposing respondents that even in the
presentation
of his own case the appellant applied different
interpretations of the said paragraph. In his Notice of Motion as
well as in his
founding affidavit, the appellant initially requested
a declaratory order to read that the credit loan account in
Gulfstream Energy
(Pty) Ltd to be included in the legacy to her
husband. However the appellant adopted a different stance in the
Notice of Appeal,
in that the relief now requested seems to be that
the credit loan account in Gulfstream Energy (Pty) Ltd is to be
included in the
residue of the estate of the deceased.
[30].
On a proper reading of the relevant clauses, and applying the
aforegoing principles, I am of the view that the deceased expressly
referred to the loan accounts and the shares in the specified
companies, and that her intention was not to include the shares and
loan accounts in Gulfstream Energy.
[31].
I agree with the Court a
quo
that there is no apparent or
conceivable reason why the deceased would have divorced the shares
from the credit loan accounts in
the specified entities. Both shares
and loan accounts are assets in such companies. The deceased had
intended to bequeath those
assets to her husband. Furthermore, as
held by the court a quo, there is no conceivable reason why the
deceased would have embarked
upon such a complicated and cryptic
exercise to separate the destiny of the shares from the credit loan
accounts and only specify
the entities relating to the latter. To
find otherwise would, in my view, amount to adopting an artificial
and an unnatural approach.
It would also disregard and violate the
cardinal rule of construction to ascertain the intention of the
testator.
[32].
An aspect which also weighs heavily on my mind is the fact that the
Gulfstream Energy Shareholders' Agreement concluded between
the
deceased and the other shareholder on the 19th November 2009
specifically provided that, upon her death, the co-shareholder
had
the option to purchase such shares. The shareholders' agreement was
signed by the deceased on the 19th November 2009, that
is
approximately 2 (two) years after the deceased executed her last will
and testament and approximately 2 (two) years before the
date of
death of the deceased. In that regard, I am in agreement with the
court a
quo
that the deceased's intention not to bequeath her
Gulfstream shares to her husband can be clearly deduced from the
aforegoing fact.
She expressly agreed in the shareholders' agreement
that, upon her death, her co-shareholder would have the option to
purchase
such shares. If such shares were bequeathed to her husband,
why agree to such an option as and at the time of her death? Also,
there was nothing stopping the deceased from amending her will to
that effect if she intended for husband
to
inherit the shares in Gulfstream Energy.
[33].
In the circumstances, I am of the view that the appeal against the
order of the court a
quo
in the main application should be
dismissed.
[34].
As regards the appellant's appeal against the judgment and the order
of the court
a quo
in relation to the counter - application,
it is premised in the main on the grounds that the court a
quo
erred in its factual finding that there were several instances of
a conflict of interest which warranted the removal of the appellant
from his office as executor of the deceased's estate.
[35].
It is submitted on behalf of the appellant that most, if not all, of
the issues relevant to the counter application became
academic or
never were proper grounds of dispute. Firstly: the erstwhile common
home of the deceased and the appellant should be
transferred to the
Karien Rossouw Familie Trust. This issue, according to the appellant,
is not a point of dispute. The appellant
is the lessee of the
erstwhile joint home and is responsible for the upkeep thereof, and
he is paying a market related rental.
[36].
There is a boat that must devolve to the Karien Rossouw Familie
Trust. Again, so it was submitted on behalf of the appellant,
there
is no dispute in that regard.
[37].
The shares in Gulfstream Energy were taken up by Mr or Mrs Jegels
after the death of the testatrix in terms of the shareholders'
agreement. In the premises the price of R5.2 million transferred by
Mr or Mrs Jegels to the attorney appointed to assist with the
administration of the estate as referred to in the papers, are held
in an interest bearing account. The amount held in trust and
its
eventual destiny is dependent on the outcome of this case. It was
therefore argued on behalf of the appellant that the devolvement
of
this amount of money, the amount transferred by Mr or Mrs Jegels,
will be determined in this appeal. It is therefore not in
itself a
proper ground for the removal of the appellant as the executor
appointed in the will of the testatrix.
[38].
There were two
Discovery
policies that in total paid
approximately R2.1 million as a result of the death of the testatrix.
Appellant submits that it is common
cause between the parties that
the eventual beneficiary thereof will be the husband of the deceased,
the appellant.
[39].
There was also an issue relating to the claim of the appellant
arising from the improvements to a property jointly owned,
during her
lifetime, by the deceased and the appellant.
[40].
The opposing respondents made allegations of a conflict of interest
between the appellant, as executor, and in his personal
capacity. It
was also contended on behalf of the opposing respondents, that there
is a conflict of interest between the appellant
personally and in his
official capacities as executor and Trustee in the Trust. The
appellant submits that no such conflict of
interest was proven, and
that no proper ground existed for the exercise of the court a
quo's
discretion to remove the appellant as executor testamentary.
[41].
The only real issue, so it was argued on behalf of the appellant,
that ought to have played a role in the court exercising
its
discretion to remove him as executor is the dispute relating to the
interpretation of clause 5.1 of the will. This issue is
the subject
of the present case, and once resolved the process of the
finalisation of the liquidation and distribution account
of the
estate of the deceased can be proceeded with.
[42].
A removal of the appellant as the executor fails to take proper
cognisance of the fact that the deceased at all times intended
him to
indeed be the executor. His removal in these circumstances, so it is
submitted, is not in conformance with the wishes of
the deceased, but
is indeed clearly contrary to her wishes as expressed in the will.
Added to that is the fact that the deceased
clearly held the
appellant in high esteem if regard is had to the fact that the
deceased specifically provided in the will that
the appellant would
not be required to provide security for his administration of her
estate.
[43].
Section 54(1)(a)
of the
Administration of Estates Act 66 of 1965
, as
amended
('the Administration of Estates ActJ ,
provides as
follows:
'Removal from office
of executor
(1)
An
executor may at any time be removed from his office
-
(a)
by the Court -
(i).
(ii). if he has at any
time been
a
party to an agreement or arrangement whereby he
has undertaken that he will, in his capacity as executor, grant or
endeavour to
grant to, or obtain or endeavour to obtain for any heir,
debtor or creditor of the estate, any benefit to which he is not
entitled;
or
(iii). if he has by
means of any misrepresentation or any reward or offer of any reward,
whether direct or indirect, induced or
attempted to induce any person
to vote for his recommendation to the Master as executor or to effect
or to assist in effecting
such recommendation; or
(iv). if he has
accepted or expressed his willingness to accept from any person any
benefit whatsoever in consideration of such
person being engaged to
perform. any work on behalf of the estate; or
(v). if for any other
reason the Courl is satisfied that it is undesirable that he should
act as executor of the estate concerned;
and'.
[44].
A review of the authorities, as was done by the court in
Reichman
v Reichman
&
Others,
2012(4) SA 432 (GSJ), shows that
the court may exercise this power where there is a conflict of
interest between the executor in
his capacity as executor and the
executor in his personal capacity, such as where he is a beneficiary
in the estate and there is
a dispute between the executor and other
beneficiaries concerning their entitlement to benefit from the
estate.
[45].
The sum total of the grounds on which the court a
quo
concluded
and was satisfied that there are reasons that
'it is undesirable
that (the appellant) should act
as
the executor in the estate
concerned'
was a combination of the fact that the appellant had
claims against the estate, which were allegedly disputed by the
opposing respondents
and the fact that the appellant subscribed to an
interpretation of clauses 5.1 and 5.2 of the will which favoured him
in his personal
capacity. There were also other issues, such as the
fact that appellant, in his capacity as a Trustee of the Trust,
seemingly did
not act in the best interest of the Trust from time to
time. As submitted on behalf of the appellant, rightly so in my view,
a
proper reading of the appeal record contradicts this finding.
[46].
In coming to the conclusion reached, the court a quo seems to have
attached undue weight to the
'high level of aggression between the
two camps'.
The court a
quo
also found that there were
areas of deep conflict between the parties as evidenced by lengthy
and acrimonious correspondence between
the legal representatives of
the parties.
[47].
As regards the claim which the appellant has against the estate in
his personal capacity, it is so that the opposing respondents
allege
that those claims are disputed by them. Again, a thorough reading of
the record confirms that these claims are not really
disputed by the
respondents, who were given full and precise details and particulars
of the claims. The opposing respondents at
no stage took issue with
the details furnished by the appellant relative to the claims. I am
therefore of the view that the said
claims were not adequate reason
for the appellant to be removed from his office as executor. In any
event, there are other remedies
available to the respondents should
they be unhappy with a claim by the appellant, such as raising an
objection to the Liquidation
and Distribution Account.
[48].
As for the fact that the appellant, in the motion court proceedings
in the court a
quo,
sought a declaratory order which
ex
facie
favoured him personally and was to the detriment of the
estate, I am of the view that, in the circumstances of the matter,
the appellant
did not act inappropriately. I do not agree with the
submission on behalf of the opposing respondents that the appellant
had no
business applying to court for the declarator. On the
contrary, he, in my view, acted in a manner which would expedite the
finalisation
of the estate. Once this court rules on the correct
interpretation of the clause, that, in my view, would be
the end
of that issue as the appellant would then be bound by
the court's ruling.
[49].
Even more importantly is the fact that the court
a quo
appears
to have under emphasised the fact that the appellant is the executor
testamentary.
[50].
In
Port Elizabeth Assurance Agency
&
Trust
Co
Ltd
v Estate Richardson,
1965 (2) SA 936
(K), Van Winsen J at pg 940
has this to say:
'I have no doubt that
in the exercise of its power 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.
[51].
In cases of positive misconduct a Court should have no difficulty in
interposing to remove an executor who has abused his
trust. However
not every mistake or neglect of duty or inaccuracy of conduct should
induce a court to adopt such a course. However,
the acts or omissions
must be such as to endanger the trust property, or to show a want of
honesty, or a want of proper capacity
to execute the duties, or a
want of reasonable fidelity. In the exercising it discretion to
remove an executor, its main guide
must be the welfare of the heirs
and the estate.
[52].
On pg 528 in the matter of
Sackville West v Nourse and Another.
1925 AD 516
, Solomon ACJ had this to say:
'Blote wrywing of 'n
vyandige verhouding tussen die administrateur en die begunstigde is
nie per se 'n genoegsame rede is vir die
verwydering van die
administrateur uit sy amp nie tensy dit waarskynlik is dat dit die
bereddering van die trust sou verhoed .
Also, as was
said by Murray J in
Vo/kwyn NO
v Clarke
&
Damant,
1946 WCD 456 on pg 474:
'the
essential test is whether such disharmony as exists imperils the
trust estate and its proper administration'.
[53].
Also in the Volkwyn judgment the following comments are made:
'Both the statute and
the case cited (Letterstedt v Broers) indicate 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.
[54].
In the circumstances and applying the above principles to the
present case, I am not satisfied that it is undesirable
that the
appellant should continue acting as executor of the estate concerned.
In my view, it has not been demonstrated by the
opposing respondents
that the appellant has not acted in the interest of the estate and
its assets and to the detriment of the
heirs.
[55].
In the circumstances the counter application should have been
dismissed.
Therefor
the appeal stands to be upheld.
[56].
Before us Mr Louw, on behalf of the appellant, has submitted that an
appropriate cost order relative to the appeal, including
the cost of
the application for leave to appeal, should be paid by the estate
late Catharina Margaretha Salzwedel. Mr Van Ryneveld,
who appeared on
behalf of the opposing respondents, asked that the
appellant's appeal be dismissed with costs.
[57].
The appellant has been unsuccessful with this appeal against the
order in the main application, but he has succeeded with
the appeal
relative to the counter - application.
[58].
Therefore, in the exercise of my discretion I intend ordering the
deceased estate late: Catharina Margaretha Salzwedel to
pay the cost
of the appeal, including the cost of the application for leave to
appeal.
ORDER
In
the result, I would make the following order:.-
1. The appeal against the
order of the court a
quo
in the main application is dismissed.
2. The appeal against the
order of the court a
quo
in the counter - application is
upheld.
3. The order of the court
a
quo
is set aside and is replaced with the following:
The counter -
application is dismissed, and the costs of the counter - application
are to be paid by the deceased estate late Catharina
Margaretha
Salzwedel'.
4. The costs of this
appeal, including the cost of the application for leave to appeal,
shall be paid by the deceased estate late:
Catharina Margaretha
Salzwedel.
____________________
ADAMS
AJ
Acting
Judge of the High Court
Gauteng
Division, Pretoria
I
agree, and it is so ordered
_____________________
TOLMAY
J
Judge
of the High Court
Gauteng
Division, Pretoria
I
agree,
____________________
RANCHOD
Judge
of the High Court
Gauteng
Division, Pretoria