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[2015] ZAFSHC 234
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Mohamed N.O. v Hassan and Others (4134/2015) [2015] ZAFSHC 234 (3 December 2015)
FREE
STATE
HIGH
COURT, BLOEMFONTEIN
REPUBLIC
OF
SOUTH AFRICA
Case
No. : 4134/2015
In the matter between:-
MUSTAFA
MOHAMED
N.O.
Applicant
and
SHAMEEN
HASSAN
1
st
Respondent
THE
STANDARD BANK OF SOUTH AFRICA
2
nd
Respondent
THE
MASTER OF THE HIGH
COURT
3
rd
Respondent
HEARD
ON:
3
DECEMBER 2015
JUDGMENT
BY:
KRUGER,
J
DELIVERED
ON:
3
DECEMBER 2015
[1]
The applicant seeks an order terminating joint ownership of immovable
property and authority to sell the property by public
auction or
private treaty
[2]
The first respondent was married to the deceased in accordance with
Sharia Law as his second wife. She says that the deceased
lived
with his first wife, Zubeidah Hassan. The deceased and his
first wife entered into a civil marriage subject to an ante-nuptial
contract. The first marriage subsisted until the date of the
deceased’s death.
[3]
The applicant acts herein as the executor in the estate of Yacoob
Hassan who died at Cape Town on 4 November 2013. The
applicant
was appointed as executor by the Master of the High Court Pretoria
(the third respondent) on 3 June 2015. The letter
of
appointment states that the applicant is appointed in his capacity as
nominee of Vezi and De Beer attorneys. In a letter
written by
Vezi and De Beer attorneys attached to the replying affidavit dated 9
February 2015 it is stated that Vezi and De Beer
act for the Standard
Bank of South Africa, being a secured creditor in the estate of the
deceased. The letter appears to
have been written by the
applicant. The executor of a deceased estate is legally vested
with the administration of the estate
(
Meyerowitz
on Administration of Estates and Estate Duty
,
2004 Edition par 12.20). The executor holds a fiduciary duty
which he must exercise with the utmost good faith. See
Lindenberg
v Giess N.O. and Another
1957 (3) SA 30
(SWA) at 33F-H. An executor must not abuse his
position of trust (APJ Bouwer,
Die
Bereddingsproses van Bestorwe Boedels
(1967) 50). It is difficult to see how there is not a conflict
between the applicant’s role as attorney of a major
creditor as
opposed to being executor in the deceased estate.
[4] In
the founding affidavit the applicant says the purpose of the
application is to obtain an order that the joint ownership of
the
property be terminated by an “equitable method”.
[5]
The property was owned in undivided half-shares by the deceased and
the first respondent. They bought the property on
18 May 2007
for R760 000. The property is 940 square metres.
According to the title-deed the property was bonded
for R760 000.
At present R1 322 233.93 is outstanding on the bond.
[6]
The applicant, in his capacity as attorney of the second respondent,
the Standard Bank, the bondholder asked the first respondent
to
either purchase the deceased’s half share or to allow the
applicant to sell the property as a whole, which she declined
to do.
[7]
The applicant says in the founding affidavit that to the best of his
knowledge there are no minor beneficiaries or heirs.
That
belief appeared to be incorrect after the first respondent’s
answering affidavit was filed, wherein she states she is
living in
the property with a minor child. A more important fact
mentioned in the answering affidavit is that deceased was
living with
his first wife, Zubeidah Hassan in Cape Town. She also mentions
a number of business interests the deceased had,
and says she intends
to lodge a claim for maintenance against the estate. She says
the first duty of the executor is to trace
all the assets belonging
to the estate. That is the first duty of the executor.
[8] In
the replying affidavit the applicant admits that Muslim marriages are
recognised for purposes of inheritance and maintenance.
He also
confirms that the deceased was married to his first wife by a civil
marriage with ante-nuptial contract. All that
the applicant did
was to obtain a Consumer Profile Bureau Search in respect of the
deceased. That report revealed no assets,
according to the
applicant. It does not appear that the applicant ever spoke to
the deceased’s first wife or physically
made any effort to
trace assets, save for the internet searches.
[9]
The application is ill-founded. The first task of an executor
is to search for assets and to advertise the estate in terms
of
section 29
of the
Administration of Estates Act 66 of 1965
. He
must prepare an inventory in terms of
section 9
of Act 66 of 1965.
[10]
Another serious problem is that it appears that the deceased died
intestate and had two wives and at least four children.
According to Islam law the wives get one quarter of the property and
the children have the other three quarters. (
Introduction
to Legal Pluralism
(2014) 4
th
Ed. by C. Rautenbach 390). The first wife and the children have
rights and are necessary parties.
[11]
Applicant attaches to the founding affidavit a death notice dated 8
February 2015 wherein he states that the deceased resided
in Pretoria
(HAS8, p 55). In the answering affidavit the first respondent
says the deceased lived with his first wife in
Cape Town and was
killed in a robbery at the place where he lived in Cape Town (AA par
14.5 and 14.6). These allegations
are not disputed by the
applicant in the replying affidavit (p 104 par 18). Thus it
appears that the appointment of the applicant
as executor was based
on wrong information.
[12]
The applicant refers to emails, between first respondent’s
daughter and the applicant’s firm. Apart for the
fact
that those documents constitute hearsay evidence raised in reply,
there is reference to “the property in Cape Town”.
[13]
Mr Berry appeared for first respondent on the request of a judge of
this court, and charged no fees. He requests that
the applicant
be dismissed, and that an order should be made that the applicant can
recover no fees from the estate.
[14]
There is doubt about the appointment of applicant. Further,
applicant does not appear to be acting in the interest of
the estate
heirs. There is non-joinder of heirs. The assets have not
been properly investigated.
ORDER
1. The
application is dismissed.
2. The
applicant may recover no costs from the estate or the bond account
with the second respondent in respect
of the fees incurred for this
application.
3. I
request that the registrar of this court send a copy of this judgment
to the Master of the High Court Pretoria
to consider whether the
applicant is a proper person to be the executor in this estate and
whether the Master should not request
his colleague the Master in
Cape Town to arrange for the appointment of an executor in that
area. That is of course
entirely in the discretion of the
Masters and falls outside my province.
_____________
A.
KRUGER, J
On behalf of First
Respondent: Adv A
Roux
Instructed
by:
Symington & De Kok
BLOEMFONTEIN
On behalf of
Applicant:
Adv AP Berry
Instructed
by:
Blair Attorneys
BLOEMFONTEIN
/wm