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[2015] ZAFSHC 155
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Bekker NO v Mazibuko and Others (1784/2015) [2015] ZAFSHC 155 (18 August 2015)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 1784/2015
In
the matter of:
DAVID
BOTHA BEKKER
N.O.
Applicant
and
MATHOTO
ADELINE MAZIBUKO
1
st
Respondent
(Id
no: …...........................)
MMAMOKETE
MARIA
MOKOENA
2
nd
Respondent
JAN
MOKOENA
3
rd
Respondent
MMAMOKETE
MARIA MOKOENA NO
4
th
Respondent
(in
her capacity as representative in the estate
Of
late BENJAMIN MAZIBUKO)
MOKETE
ISAK
MAZIBUKO
5
th
Respondent
MAMOKOENA
MARTHA MAZIBUKO
6
th
Respondent
MASTER
OF THE HIGH COURT,
BLOEMFONTEIN
7
th
Respondent
REGISTRAR
OF
DEEDS
8
th
Respondent
JUDGEMENT:
MOKOENA,
AJ
HEARD
ON:
13
AUGUST 2015
DELIVERED
ON:
18
AUGUST 2015
[1]
The applicant is the executor of the estate of the late Malefane
Jacob Mazibuko (“the deceased”) having been appointed
by
letters of executorship issued on the 3
September
2009 by the Master of the Free State, High Court.
[2]
The applicant seeks an order:
(a) directing
the 1
st
respondent to sign within seven days from the date
of granting the order any and all documents necessary for the
transfer of the
immovable property more fully described as [.......],
Free State Province held by TG30511/2000 in terms of the First and
Final
Liquidation and Distribution Account in the estate of the late
Malefane Jacob Mazibuko to the first and sixth respondents.
(b) that in
the event that the 1
st
respondent fails to comply with
paragraph (a) above the Registrar of the Free State High Court,
Bloemfontein, be authorised and
directed to sign any and all
documents necessary for the transfer of the property on behalf of the
1
st
respondent.
(c) that the
eight respondent be authorised to, upon receipt of the documents
referred to in paragraphs (a) and (b)
above as well as any and all
documents required in terms of the
Deeds Registries Act, 47 of 1937
,
transfer the property and/or endorse the deed of grant of the
property to give effect to the contents and inheritance in respect
of
the property as set out in the First and Final Liquidation and
Distribution Account, as well as the provision of the Administration
of Deceased Estates Act, 66 of 1965 and the Deeds Registries Act, 47
of 1937.
(d)
that the 1
st
respondent be ordered to pay the costs of the application and in the
event that the application is opposed by any other respondent
that
such respondent be ordered to pay the costs of the opposition jointly
and severally with the 1
st
respondent.
[3]
The 1
st
respondent opposes the application whilst the second, fourth and
fifth respondents support the relief sought. The 1
st
respondent opposes the application on the basis that she has
terminated the applicant’s mandate and that the applicant
refuses
to resign as the executor of the estate.
THE
FACTUAL BACKGROUND
[4]
The deceased passed away on the 7
May
2006 and the immovable property being the subject matter of this
application was and still remains registered in the name of
the
deceased.
[5]
The deceased did not have a will and his estate had to be
administered in terms of the Intestate Succession Act, Act 81 of
1989.
[6]
The deceased was the brother of the first, second and fifth
respondents as well as Benjamin Mazibuko who passed away on the
2
February 2008.
[7]
The estate of the late Benjamin Mazibuko is presently being
administered by the fourth respondent in terms of a letter of
authority
issued on the 20
th
May 2014 by the master of the High Court of the Free State.
[8]
The sixth respondent is married in community of property to the fifth
respondent.
[9]
The third respondent is married in community of property to the
second respondent.
COMMON
CAUSE
The
following facts are common cause:
[10]
The applicant was appointed as executor by letter of executorship
issued on the 3
rd
September 2009 by the Master of the Free State High Court.
[11]
The first, second, third, fourth, fifth and sixth respondents are the
lawful beneficiaries in terms of the First and Final
Liquidation and
Distribution Account in the estate of the late Malefane Jacob
Mazibuko.
[12]
The First and Last Distribution Account in the estate of the late
Malefane Jacob Mazibuko laid for inspection for a period
of 21 days
from 2 September 2011 to 3 October 2011 at the offices of the Master
of the Free State High Court and the Magistrate’s
Court
Phuthaditjhaba where the deceased was resident at the time of his
death.
[13]
The first respondent refuses to sign the necessary documents to give
effect to the Final Liquidation and Distribution Account
and to
transfer the property to the heirs. The other heirs, being the
second to sixth respondents have already signed the
necessary
documents.
THE
ISSUES
[14]
The issues to be determined is whether or not the applicant’s
mandate, as a matter of law, has been terminated by the
first
respondent.
[15]
In the event of it being held that the applicant’s mandate has
not, as a matter of law, been terminated, then the further
issue
arising is whether, as a matter of law, the applicant as the
executor, is obliged to transfer the immovable property to the
first
to sixth respondents.
THE
ARGUMENTS
[16]
Counsel for the applicant disputed the contention that the applicant
delayed the finalisation of the estate and argued that
the first
respondent does not have a defence against the relief sought.
He argued further that although the first respondent
takes issue with
the fact that the applicant did not resign as an executor, (a) the
applicant is duly appointed as executor by
the Master of the High
Court, (b) there are no lawful grounds advanced by the first
respondent for the applicant’s resignation
or substitution as
executor, (c) it is not for the first respondent to terminate the
applicant’s “mandate” as
executor as the applicant
was appointed by the Master of the High Court and can only be removed
and substituted by the said Master.
Counsel for the applicant
submitted that the first respondent does not deny or take issue with
the fact that:
(a) the
applicant was appointed as executor to administer the deceased’s
estate;
(b) the
deceased’s estate has to be administered in terms of the
Intestate Succession Act, Act 81 of 1987;
(c) the
first, second and fifth respondents are to inherit, in equal shares,
the assets of the deceased’s estate;
(d) the First
and Final Liquidation and Distribution Account was drafted and
prepared by the applicant during May 2011;
(e) the
applicant is, in terms of the provisions of section 35(1) of the
Administration of Estates Act, Act 66 of 1965
(“the Act”)
obliged to pay the creditors in the estate and distribute the estate
amongst the heirs in accordance with
the account;
(f)
the applicant is obliged to, in terms of section 39 of the
Administration of Estates Act, cause the property
to which the heirs,
being the first, second, fourth and fifth respondents are entitled
to, be registered in their names.
[17]
Counsel for the first respondent argued that the applicant’s
mandate was terminated due to undue delays in administering
the
estate and that the applicant is not entitled to register the
transfer of the immovable property on behalf of first respondent
to
the sixth respondent.
[18]
Counsel for the first respondent also submitted that the fifth
respondent suffers from mental illness and is not in a position
to
comprehend the nature of these proceedings. This allegation was
not supported by medical evidence and will not be taken
any further
for purposes of this judgment.
ANALYSIS
OF THE ISSUES
[19]
In determining the first issue whether or not the applicant’s
mandate, as a matter of law, has been terminated by the
first
respondent, it is apposite to mention the statutory provision
relevant to the removal of an executor. Section 54 of
the
Administration of Estates Act, Act 66 of 1965 (“the Act”)
read as follows:
“
(1)
An executor may at any time be removed fro his office –
(a)
by the court –
(i)
–
(v)…
(b) by the Master -
(i) – (vi) …
(2) …
(3) …
(4) …
(5)
Any person who ceases to be an executor shall forthwith return his
letters of executorship to the Master.”
[20]
In
casu
,
the applicant has not been removed as an executor in terms of section
54 of the Administration of Estates Act by either the court
or the
Master and thus he remains the executor of the estate.
[21]
Accordingly, the first respondent’s purported cancellation of
the applicant’s mandate as the executor is of no
legal effect
and her assertion that the applicant is not entitled to the relief
sought is rejected.
[22]
Having reached the conclusion that the applicant’s mandate has
not been terminated, it follows that the applicant, as
the executor,
is obliged to transfer the immovable property to the first to sixth
respondents in terms of section 39(1) of the
Administration of
Estates Act, Act 66 of 1965 (“the Act”) which reads as
follows:
“
(1)
An executor shall, subject to the provisions of subsections (2) and
(3), the Deeds Registries Act, 1937 (Act
47 of 1937) cause immovable
property (including, in the case of a massed estate, any such
property forming) part of the share of
the survivor or survivors of
the estate) to which an heir is entitled according to a distribution
account, to be registered in
the name of the heir, subject to any
rights and conditions affecting such property.”
[23]
I accordingly make the following order:
1.
The
first respondent is ordered to sign within seven days from the date
of granting this order any and all documents necessary for
the
transfer of the immovable property more fully described as [.......],
Free State Province held by TG30511/2000 in terms of
the First and
Final Liquidation and Distribution Account in the estate of the late
Malefane Jacob Mazibuko to the first to sixth
respondents.
2.
In
the event that the first respondent fails to comply with paragraph
(1) above, the Registrar of the Free State, High Court, Bloemfontein
is authorised and directed to sign any and all documents necessary
for the transfer of the property on behalf of the first respondent.
3.
The
eight respondent is authorised to, upon receipt of the documents
referred to in paragraphs (1) and (2) above as well as any
and all
documents required in terms of the
Deeds Registries Act, 47 of 1937
to transfer the property and/or endorse the deed of grant of the
property to give effect to the contents and inheritance in respect
of
the property as set out in the First and Final Liquidation and
Distribution Account, as well as the provisions of the Administration
of Deceased Estates Act, 66 of 1965 and the
Deeds Registries Act, 47
of 1937
.
4.
The
first respondent is to pay the costs of this application.
_______________
R.
MOKOENA, AJ
On
behalf of the applicant:
Adv. C. D. Pienaar
Instructed
by:
Phatshoane
Henney Inc.
BLOEMFONTEIN
On
behalf of the respondents: Mnr.
M. J. Ponoane
Instructed
by:
Ponoane
Attorneys
BLOEMFONTEIN
/eb