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[2014] ZAGPPHC 7
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Jones N.O v Master, North Gauteng High Court, Pretoria and Others (110/2011) [2014] ZAGPPHC 7 (31 January 2014)
REPUBLIC OF SOUTH AFRICA
IN THE NORTH GAUTENG
HIGH COURT, PRETORIA
CASE
NO: 110/2011
DATE:
31 JANUARY 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In the
matter between:
WARWICK BASIL DAWS JONES
NO
……………………………………….
Applicant
and
THE MASTER, NORTH GAUTENG HIGH COURT,
PRETORIA
………………………………………………………………
.
First
Respondent
ALISTAIR DALZIEL WILLIAMS
NO
………………………………
Second
Respondent
MARGARET
BATLEY
…………………………………………………
.
Third
Respondent
CAROLINE
WEEBER
……………………………………………
......
Fourth
Respondent
JUDGMENT
DEWRANCE AJ
[1]
This
is an application to review and set aside the first respondent’s
(the Master") taxation of he applicant's first
to sixth
curator's accounts. The review is brought in terms of the provisions
of section 95, read with section 1, of the Administration
of Estates
Act, Act 66 of 1965 ("the Administration of Estates Act"),
and sections 6, 7, 8 and 9 of the Promotion of
Administrative Justice
Act, Act 3 of 2000 ("PAJA").
[2]
Section 95 of the Administration of Estates Act
provides that:
"95.
Review of Master's appointment, etc
Every appointment by the Master of an executor, tutor, curator or
interim curator, and
every decision
, ruling,
order,
direction
or taxation by the Master under
this Act shall be subject to appeal to or review by the Court upon
motion at the instance of any
person aggrieved thereby, and the Court
may on any such appeal or review confirm, set aside or vary the
appointment, decision,
ruling, order, direction or taxation, as the
case may be."
(my emphasis)
[3]
The
central question in this review is, firstly, whether the Master was
correct in disallowing certain disbursements made by the
applicant
and, secondly, whether the Master was correct in not allowing all the
time spent, and claimed, by the applicant in his
second to sixth
curator's accounts as an additional fee.
[4]
The
Master disallowed the disbursements because the Master is of the view
that costs expended on the disbursements are duties which
are
normally performed by a curator bonis and, therefore, the applicant
cannot claim for them. The Master is of the further view
that, when
it decides to increase curator's fees, the actual time spent by the
curator is not the only factor which it takes into
consideration. I
will return to this aspect later.
[5]
The
applicant spent approximately 2058 hours over a period of five years
in administering the estate of the patient.
[6]
The
Master increased the curator's fee of the applicant in respect of all
his accounts. The main reason for allowing the increased
fee,
according to the Master,
"...was due to the fact that there was clearly sufficient
evidence present to constitute
special reasons
as contemplated
in section 84(2)(a) of the Administration of Estates Act..
The difficulty for me therefore, was not whether special reasons
existed or not. as discussed in
Collie NO v Master
1972 (3) SA
63
(AD)
: but the basis on which to tax the fee of the
applicant, taking the special circumstances into consideration.
In the unreported case of
Burne NO and Another v The Master
of the High Court. Natal Provincial Division - Case No 2937/97
it
was decided that 'income collected' as referred to in
Regulation
8(3)(a)
of the
Administration of Estates Act 1965
, means total or
gross income from the estate under curatorship.
I have exercised my discretion, as set out in
section 84
of the
Administration of Estates Act; and
allowed 6% fee on all 'income'
reflected by the applicant in the income and expenditure account for
this specific period, and not
only on income as set out in the
invoice of the applicant..." (my emphasis)
[7]
The Master also states:
"that an hourly rate, and time spent are not the only factors
to be considered when deciding the increase of a fee of the Curator
Bonis. Likewise this was emphasised...in the matter of
Nel and
Another NNO v The Master
2005 (1) SA 276
(SCA)
which decision
was followed in the later appellate court ruling of
Klopper v
The Master of the High Court (643/07) 120081 ZASCA 155 (27 November
2008);
albeit that these cases dealt with insolvencies. The
legislation relevant to both companies (Companies Act No 61 of 1973),
as well
as to individual estates (Insolvency Act No 24 of 1936) that
similar wording that used (sic) in the
Administration of Estates Act
with
regard to a taxing of a fee and the simultaneous or pursuant
reduction, increase or disallowance thereof."
[8]
It
therefore appears to me that, in answering the central question
whether special reasons exist for the increase of the fee, the
Master
has already conceded that special reasons exist. The only aspect then
is whether the Master applied its mind to all the
facts that were
placed before the Master when the decision was made not to allow all
the time spent by the applicant in the administration
of the estate
of the patient.
[9]
Section
84
deals with the remuneration of tutors and curators and provides
that:
"
84. Remuneration of tutors and curators
(1)
Every tutor and curator shall, subject to the
provisions of sub-section (2), be entitled to receive out of the
income derived from
the property concerned or out of the property
itself-
(a)
such remuneration as may have been fixed by any will or
written instrument by which he has been nominated; or
(b)
if no such remuneration has been fixed, a remuneration
which shall be assessed according to a prescribed tariff and shall be
taxed
by the Master.
(2)
The Master may -
(a)
if there are in any particular case
special reasons
for doing so, reduce or
increase
any such remuneration; or
(b)
if the tutor or curator has failed to discharge his duties or
has discharged them in an unsatisfactory manner, disallow any such
remuneration, either wholly or in part." (my emphasis)
[10]
Section
103(e)
of the
Administration of Estates Act empowers
the Minister of
Justice ("the Minister") to make regulations prescribing a
tariff of remuneration payable to any person
performing any act
relating to the liquidation or distribution of an estate on behalf of
the executor of the estate in question
and prohibiting the charging
or recovery of remuneration at a higher tariff than the tariff so
prescribed. The Minister has issued
such regulations under Government
Notice R473 in Government Gazette 3425 of 24 March 1972. The
regulations have been amended from
time to time.
Regulation 8
deals
with the tariff of remuneration of executors, interim curators,
tutors and curators.
Regulation 8(3)
provides that:
"(3) The remuneration of tutors and curators referred to in
section 84(1
)(b) of the Act shall be assessed according to the
following tariff:
(a)
on
income collected during the existence of the tutorship or
curatorship: 6 per cent;
(b)
on
the value of capital assets on distribution, delivery or payment
thereof on termination of the tutorship or curatorship: 2 percent"
[11]
Section
85 makes certain sections of the
Administration of Estates Act,
mainly
dealing with deceased estates, applicable to tutors and
curators.
Section 85
provides that:
"85.
Application of certain sections to
tutors and curators
Sections 24
,
26
,
28
and
36
, sub-section (2) of
section 42
,
sections 46
and
48
, sub-section (2) of
section 49
and
sections 52
,
53
,
54
and
56
shall mutatis mutandis apply with reference to tutors
and curators: Provided that any reference in any of the said sections
to
a will shall, for the purposes of its application under this
section, include a reference to any written instrument by which the
tutor or curator concerned has been nominated.”
[12]
For
the purposes of this review,
section 52
is of importance. It provides
that:
"52.
No substitution or surrogation
It shall not be competent for any executor to substitute or
surrogate any other person to act in his place"
[13]
In
Bramwell and Lazar, NNO v Laub
1978 (1) WLD 381
at 384 A, it was held
that
section 52
of the
Administration of Estates Act prohibits
abdication but not delegation of duties (see also Smit v Van de
WerkerNO en Andere 1984 (1) 164 (TPA) at p 167 H).
[14]
At
this point, it is appropriate to set out the duties and functions of
a curator. They are: taking custody of property, books and
documents;
opening and dealing with bank accounts; filing inventories; lodging
of curator's accounts with the Master; payment of
surplus monies into
the Guardian's Fund; alienation of immovable property; obtaining of
the Master's certificate before transfer
of immovable property;
purchase of the property by the curator or a person connected with
him/her; compounding of debts (Meyerowitz
on Administration of
Estates and Estate Duty (2007 Edition), para 22.8, p 22-9).
[15]
Section 76(1
)(b) provides that:
"
76.
Authority conferred by letters of tutorship
and curatorship
(1) The Master
may-
(a)
…
(b)
by any tetters of curatorship granted by him, authorise
the
curator to do any one or more of the following, namely -
(i)
to perform any particular act in respect of the
property of the person concerned;
(ii)
to take care of the said property;
(iii) to administer the said property; and
(iv)
to carry on, subject to any law which may be
applicable, any business or undertaking of the person concerned."
[16]
Although
this section states that the Master may grant authority in respect of
the above, where a court in appointing a curator
has directed what
powers the curator is to have, the Master must, in issuing letters of
curatorship, authorise the powers directed
by the Court (Ex parte
Ganga
1979 (1) SA 586
(N) at 588 E).
[17]
The
applicant was appointed as the curator bonis of Margaret Irene
Williams (“the patient”) pursuant to an order granted
by
the South Gauteng High Court on 27 May 2005 ("the May 2005
Order"). As will be explained hereunder, that Court also
granted
the applicant certain powers. His appointment supersedes that of the
interim curator bonis, Mr Lionel Karp, who is an attorney
of this
Court. The applicant’s appointment was sought at the instance
of the third and fourth respondents, who are the daughters
of the
patient. Mrs Williams passed away on 19 April 2010. The second
respondent is the executor of Mrs Williams' estate. He abides
by the
outcome of the review. Although Mrs Williams is deceased, I will
refer to her as the patient.
[18]
The
applicant states that the patient "might fairly be described as
having been a wealthy woman, with a large estate".
A fair
valuation of her South African estate amounts to approximately R6
million.
[19]
Until
shortly before her death the patient lived at a luxurious retirement
home, Leisure Gardens, which is situated in Knysna. During
her stay
at Leisure Gardens she had privately paid, semiskilled
caregivers 24 hours per day; one during the day and one during
the
night. In addition, two relief caregivers were on hand and a general
practitioner (or a doctor) visited her regularly. She
also had a
manicurist care for her. A social worker visited her twice a week.
[20]
The
patient's day-to-day financial and other needs were administered by
Leisure Gardens' general manager and accountant, Mrs Berrange,
as
well as her staff. The applicant paid Mrs Berrange for her services.
The Master has disallowed the fees paid to her.
[21]
The
patient's monthly expenditure was initially in the region of R25 000
per month and, towards the end, was approximately R40 000
per month.
[22]
The
daughters of the patient, i.e. the third and fourth respondents, and
one Mrs Rosamund Male ("Male") had an acrimonious
relationship. As is apparent from paragraph 3.13 of the May 2005
order, the third and fourth respondents sought "a
n
accounting, together with all supporting and relevant documentation
from Rosamund Male...in respect of...[her] administration
of the
capital and income of the patient from January 2000 to date of
appointment of the curator bonis"
. When
the May 2005 order was varied, as explained hereunder, Male was the
applicant and the third and fourth respondents were respondents
in
those proceedings.
[23]
The
Master is of the opinion that the estate of the patient was not a
complex estate but, because of the litigious nature thereof,
the
estate demanded attention. This was caused, according to the Master,
by the "ongoing feud between the daughters"
of the patient.
[24]
The
Master issued a letter of curatorship appointing the applicant as the
curator bonis
on
6 July 2005. The Master appointed Jones
"[w]ith
the powers as set out in paragraphs 3.1 to 3.18 of the Court Order
dated 21 May 2005 with Case no. 2005/5855, subject
to the approval of
the Master of the High Court."
[25]
The
powers in paragraphs 3.1 to 3.18 of the May 2005 Order are set out
hereunder:
"3.1 to receive, take care of, control and administer all
property constituting the estate of the Patient;
3.2
to carry on or discontinue subject to any law which may
be applicable, any trade, business or undertaking of the Patient;
3.3
to acquire, whether by purchase or otherwise, any
property, whether movable or immovable, for the benefit of the
Patient;
3.4
to let, exchange, petition, alienate and for any lawful
purpose to manage or pledge any property belonging to the Patient in
which
she may have an interest;
3.5
to perform any contract relating to the property of the
Patient entered into by the Patient before she was declared incapable
of
managing his (sic) own affairs, including revocation of all and
any general powers of attorney given to any person by the Patient,
including Rosamund Male;
3.6
to exercise any power or give any consent required for
the exercise of any power, where such power is vested in the Patient
for
her own benefit, or the power is in the nature of a beneficial
interest in the Patient;
3.7
to raise money by way of mortgage or pledge of any of
the Patient's property for payment of her debts or expenditure
incurred for
the Patient's maintenance, or otherwise for her benefit,
or for the payment of, or provision for, the expenses, of her future
maintenance
or for the improvement or maintenance of any of the
Patient's property;
3.8
to apply any money for or towards the maintenance or
the benefit of the Patient, including all and any medical treatment
and related
medical expenses such as ophthalmology, physiotherapy,
hearing and walking aids;
3.9
to expend money on the improvement of any property of
the Patient by way of building or otherwise;
3.10
to invest and re-invest monies of the Patient which may
be available for investment and which are not immediately required
for the
purposes referred to in
section 82(c)
of the
Administration
of Estates Act;
3.11
to
take any proceedings which may be necessary in the
interests of the Patient or for the due and proper administration of
her property;
3.12
to institute action on the Patient's behalf for
recovery of any debts or monies, which he considers are owing to her;
3.13
to seek an accounting, together with all supporting and
relevant documentation from Rosamund Male, daughter of the Patient,
in respect
of the said Male's administration of the capital and
income of the Patient from January 2000 to date of appointment of the
Curator
Bonis;
3.14
to receive full policy information from Liberty Life
Limited in respect of all and any policies held in the name of the
Patient
and/or in the name of Mr Robert Dalziel Williams;
3.15
to have full access to and be furnished with copies of
all bank statements held by the Patient in her name at any financial
institution
in South Africa together with copies of all Internet
banking transactions, written mandates by the Patient or anyone
holding a
general power of attorney in respect of the Patient's
affairs, which mandates relate to the transfer of monies or
withdrawal of
monies from any of the said accounts, and copies of the
entire and complete banker/client files, including all and any
correspondence;
3.16
to [c]all for and obtain a copy of the general power of
attorney granted by the Patient to the said Male and to call for and
have
sight of the original document;
3.17
to call for and obtain a copy of the following document
in respect of the Patient's late husband:
3.17.1
his death certificate;
3.17.2
the cremation certificate;
3.17.3
the report of the post-mortem carried out on the
Patient's late husband; and to call for and have sight of the
original documents;
3.17.4
to call for and obtain copies of all and any medical
and hospital records for the Patient and for the Patient’s late
husband,
Robert Dalziel Williams and to hand same to the
Curatrix-ad-Personam"
[26]
Prayer
4 of the May 2005 Order provided that the powers conferred upon the
applicant in prayers 3.1 to 3.12 shall be exercised subject
to the
approval of the Master.
[27]
If
regard is had to the powers conferred upon the applicant by the May
2005 order, the powers appear to be quite routine except
for maybe
paragraphs 3.2, 3.13, 3.17 and 3.18 (only insofar as they relate to
Robert Dalziel Williams, the patient's late husband).
[28]
Almost
two years later, after further litigation between the daughters, the
May 2005 Order was varied by the South Gauteng High
Court on 28 March
2007 (‘the March 2007 order). The powers of the applicant were
extended in the following terms:
"3.19 to appoint accountants or forensic investigators or any
other experts required to assist him to trace the alleged assets
in
the patient's estate, including all the patient's overseas assets (as
alleged by either party or as uncovered during any investigation)
as
well as to assist him to trace the whereabouts of the proceeds of any
assets (as alleged by either party or as uncovered by
any
investigation) that may have been disposed of from time to time that
the patient and the late Robert Dalziel Williams took
up residence in
England to date;
3.20
to appoint an attorney or any other suitably
qualified person or persons overseas to assist him in tracing any
will overseas of
the late Robert Dalziel Williams, and to assist him
in transferring such assets if any to the patient in accordance with
any such
will or, if such will exists, to assist him in transferring
such assets to the patient as she may have inherited in accordance
with the laws of the intestate succession, or alternatively in terms
of his South African will;
3.21
to take all steps necessary locally and in any
foreign jurisdiction in which the patient's assets (as alleged by
either party or
as uncovered during any investigation) may be
situated to have this order of court recognised (if necessary) in
such foreign jurisdiction
so as to enable him to manage and
administer all assets effectively;
3A.1 The curator bonis is granted the power to be exercised as this
discretion, to trade and to launch investigations in connection
with
all alleged assets of the patient wherever situate (sic), including
but not limited to, the assets referred to in this application,
as
well as all assets that the patient may have inherited from her late
husband, Robert Dalziel Williams, whether by way of intestate
succession or in terms of all his wills, including any overseas
wills, and to receive, take control of, administer and deal with
all
such assets in terms of the powers set out in paragraphs 3.1 to 3.21
above.
3A.2 The curator bonis is granted the further power, to be exercised
at his discretion, to take all necessary steps to recover
any assets
(whether overseas or in South Africa) of the patient that may have
been misappropriated or unlawfully removed, or the
value thereof, to
institute all legal proceedings required in connection therewith and
to invoke the assistance of any necessary
experts in this regard.
3B The curator bonis shall, as and when he deems it appropriate,
furnish the first and second applicants and the respondent with
a
written report as to the progress of his investigations in respect of
matters referred to in paragraph 3A.
3C The curator bonis shall furnish the first and second applicants
and the respondent with a copy of:
3C.1 all
interim and final reports of any forensic investigators, accountants
or other persons produced from time to time arising
from the contents
of paragraphs 3.13, 3.19 and 3.20 above, including any
correspondence such persons may produce from time
to time, including
all correspondence and reports from the late Oliver Haigh
pertaining to the respondent;
3C.2 his annual report to the Master."
[29]
The
extended powers do not, in my view, constitute the normal powers of a
curator bonis. The parties are ad idem on this point.
[30]
With
regard to the estate of the patient as a whole, the Master is of the
view that, according to the applicant, as at 27 May 2005,
the assets
of the patient consisted of two immovable properties to the value of
R2.3 million and a Liberty Life policy to the value
of R4 million.
The total value of the estate was therefore R6.3 million.
[31]
The
applicant, on the other hand, contends that it was a difficult and
complex estate. The applicant conducted an investigation
in search of
the patient's and her late husband's assets which were located
overseas. He even appointed solicitors in London and
Jersey to assist
him to trace the assets.
[32]
In
trying to trace the whereabouts of diamonds, held by the patient in
Zurich, Switzerland, in a safety deposit box held in the
names of the
patient and her late husband, Mr Williams, at UBS Bank, he was
required to travel to Zurich. The diamonds had been
estimated in
value to be R500 000. He discovered from the bank's register of
persons that the fourth respondent had accessed the
safety deposit
box years before. She was the last person to have done so prior to
him accessing the safety deposit box which he
found was empty. He
wrote to her and informed her that the safety deposit box was found
to be empty and that she was the last person
prior to him to have had
access to the safety deposit box.
[33]
The
applicant alleges that the fourth respondent admitted removing from
the safety deposit box a sealed envelope and claimed to
have handed
it to her father without knowing its contents. However, according to
the applicant, Mr Williams had written a letter,
approximately a year
subsequent to the fourth respondents' visit, to the UBS Bank to a
diamond dealer in London referring to the
diamonds as being in the
safety deposit box at UBS Bank. The applicant alleges that the most
reasonable inference in all circumstances
is that the fourth
respondent removed the diamonds from the safety deposit box and did
not hand them to Mr Williams, who was under
the mistaken belief that
they were still in the safety deposit box at the time when he wrote
to the diamond dealer. In this regard,
I will refrain from expressing
an opinion or making a finding.
[34]
The
applicant alleges that he was also required to travel to Jersey to
investigate the disappearance of approximately R300 000 from
an
account held at the NatWest Bank jointly by Mr Williams, the deceased
and Dr Weeber, the husband of the fourth respondent. Dr
Weeber had a
power of attorney over this account, in respect of both the patient
and Mr Williams at all relevant times.
[35]
He
also visited Harrogate in Yorkshire, England, to interview the Lloyds
bank manager (to obtain bank statements for accounts held
by Mr
Williams and the patient, as well as to ascertain the existence of
any safety deposit box held by the said bank), solicitors
and others
concerning the sale of the residences of Mr Williams and the patient
at Harrogate. He then returned to London, to consult
the estate’s
solicitor to report on his findings and to obtain advice.
[36]
He
also decided to pay an unannounced visit to Dr Weeber and Mrs Weeber
in their Swiss chalet. He hoped that without the interruption
of
their Pretoria-based attorney he might confront them with what he had
learned of the diamonds, the missing family jewellery,
silver,
valuable stamp collection and antique furniture as well as the
missing funds from NatWest Bank account and the proceeds
of the sale
of the properties in Harrogate. Upon his arrival, the Weeber's were
not home.
[37]
His
domestic investigations involved:
37.1.
obtaining
an accountant's report for the period 2000 until the date of his
appointment in 2005 on the administration of the affairs
by Mrs Male
of both Mr Williams and the patient, which administration was in
terms of a power of attorney granted to her. This
enquiry, according
to him, lasted approximately eight months and exonerated Mrs Male
from any alleged misappropriation;
37.2.
‘
enquiries
concerning the alleged appropriation of Mrs Male of the contents of
Mrs Williams' safety deposit box, held at Nedbank
in East London, in
the name of a company of her late father. However, in the interests
of curtailing the possible legal costs of
a defended matter, the
Master forbade him from using estate funds to apply to the high court
for a search and seizure warrant,
as provided for in the
Administration of Estates Act. His
investigations were frustrated at
that point;
37.3.
enquiries
at Liberty Life on the consolidation of numerous of the policies in
the name of Mr Williams into one policy. This resulted
in the cession
of this consolidated policy from Mrs Male to the estate of the
patient;
37.4.
enquiries
at the East London branch of Sasfin, concerning its transfer of large
amounts of money from the joint account of Mr Williams
and the
patient to their Lloyds Bank joint account, held at Harrogate,
Yorkshire and from there to their conveyancing attorneys
at
Harrogate; and
37.5.
searching
for jewellery at the patient's former common home at 7 Palm Place,
Beacon Bay, East London. At the instigation
of
the fourth respondent, charges of theft were laid against Mrs Male at
the Palm Bay police station, but the state declined to
prosecute and
issued a
nolle prosequi
.
[38]
The applicant further alleges that his extensive
investigations and investigatory work produced the following result:
38.1.
the
transfer from UBS Bank in Zurich of approximately R310 000 into the
patient's account held at Nedbank in East London;
38.2.
despite
attempts to settle the issue early on by him, a summons was prepared
for an action against the third and fourth respondents
to be
instituted by the solicitors employed in London for the patient. The
claim was approximately R6 million, inclusive of costs,
and concerns
their appropriation of the proceeds of the second and final home of
their parents at Harrogate, Yorkshire;
38.3.
his
request to Interpol for assistance in enquiries against DrWeeber and
the fourth respondent arising out of his investigations
concerning
withdrawals from the patient's NatWest Bank at Jersey, which are
unaccounted for and amount to approximately R3 million;
and
38.4.
the
fourth respondent's visit to the safety deposit box held at UBS Bank
in Zurich and the removal of the "sealed envelope",
containing approximately R500 000 worth of diamonds from the safety
deposit box;
38.5.
again,
despite attempts by him to settle the matter, the service of summons
against Mrs Male, for approximately R750 000 relating
to an Old
Mutual policy of the patient, which was for the benefit of her
estate, and which funds had been improperly transferred
into Mrs
Male's name. This is a defended matter and summons was served to stop
prescription; and
the cession by Mrs Male of a consolidated Liberty Life
policy, formerly consisting of the policies of Mr Williams to the
estate
and worth approximately R2.5 million.
[39]
The
applicant alleges that he was unable to trace the antique furniture,
silver and valuable stamp collection taken to the United
States by Mr
Williams and the patient or to obtain convincing explanations of
their whereabouts from either the third or fourth
respondents. To
take this further would require incurring considerable legal costs.
[40]
The
applicant is of the opinion that he successfully executed his duties
and powers through the exercise of great care, skill and
endeavour.
[41]
The
applicant has lodged seven curators' accounts (which the applicant
refers to as invoices). The curators accounts are for the
periods 27
May 2005 to January 2006 (the first account); 1 February 2006 to 27
July 2006 (the second account); 1 August 2006 to
January 2006 (the
third account); 1 February 2007 to 31 July 2007 (the fourth account);
1 March 2008 to 28 February 2009 (the fifth
account) and 1 March 2009
to April 2010 (the sixth and final account).
[42]
The
Applicant brought this review in his official capacity as curator
bonis. The third and fourth respondents take issue with this
and
contend that, as a result of him launching this review in that
capacity, he has no locus standi.
[43]
In
addition, so they contend, the application is clearly one in respect
of his personal or own benefit and to the detriment of the
estate of
the third and fourth respondents' mother over which he was the
curator. He has, accordingly, conflated his personal interests
with
that of the estate of the third and fourth respondents' mother.
[44]
Accordingly,
the review, so they contend, ought to have been brought in his own
name and costs only against such parties as unsuccessfully
oppose the
application.
[45]
They
contend that one of the injudicious consequences of having brought
the application as he has is that, in the event that the
third and
fourth respondents are successful, they cannot obtain a costs order
against him. Even if a costs order is awarded in
favour of the third
and fourth respondents, they cannot recover it from the applicant as
cited. Ultimately, even if they did recover
it, it would be from the
deceased estate of their mother.
[46]
The
third and fourth respondents contend that, for this reason alone, the
application should be dismissed.
[47]
The
Master, on the other hand, in paragraph 14 of the Master's report
dated 30 June 2011, also takes issue with the applicant launching
this review in his official capacity. However, the Master does not
contend that the applicant has no locus standi to launch his
review
but that this aspect should be taken into consideration when costs
are being considered. The Master says the following:
"I
would like to
direct the attention of the Honourable Court to the fact that this
application has been brought by the Applicant in
his official
capacity (nomino officio), although there is no advantage to the
estate herein; nor is he acting on behalf of or in
the interests of
the estate in this regard. An application of this nature is solely
for the benefit of the appointee in his personal
capacity. The
Honourable Court is humbly requested to consider this when the aspect
of costs is being considered."
[48]
The
applicant, on the other hand, contends that he has been correctly
cited, since he continues to hold the office of curator bonis,
until
such time as he has been discharged by the Master on application made
to him. No application has been made to the Master
and the Master has
made no publication, as required in terms of
section 75
, of the fact
that the applicant has been discharged as curator bonis.
[49]
I
find myself in disagreement with the point in limine raised by the
third and fourth respondents that the applicant has no locus
standi.
The applicant is quite clearly an aggrieved person as contemplated by
section 95
of the
Administration of Estates Act and
accordingly has
locus standi to launch this review.
[50]
The term
"nominee" indicates a person who is specifically nominated
or appointed in respect of a certain function (Burman
v Teiman
1975
(1) SA 756
(W) at 757 C).
[51]
It
appears to me that the correct approach is that although the
applicant launched this application in his capacity as curator bonis
this should be taken into consideration when determining costs.
[52]
In
Nel and Another NNO v The Master (Absa Bank Ltd and Others
Intervening)
2005 (1) SA 276
(SCA) at p 298 D - G), that Court stated
the following:
"[43] As I have indicated above, the appellants purported to
bring their review application in their capacity as the duly
appointed
joint liquidators of Intramed, contending that they were
duly authorised in such capacity to institute the review proceedings.
As correctly pointed out by the Master in his answering affidavit,
the appellants failed to annex any evidence which supported this
contention. The review proceedings were in fact proceedings which
should obviously have been brought by the appellants in their
personal capacity and not their capacity as joint liquidators - the
proceedings relate to their entitlement to remuneration and
not to a
matter falling within the ambit of their role as liquidators of the
Intramed estate.
As
contended by counsel for the Master and the intervening
respondents, the appellants were simply seeking to secure a higher
fee for
their services than that fixed by the Master. In doing
so
.
they were acting in their personal capacities and not
in any sense in the interest of the creditors of the Intramed estate.
Indeed,
the appellants were - and still are - acting against the
interests of the creditors, solely for their own benefit. This being
so.
there is
no reason whatsoever why the costs of the review application or the
appeal should be borne by the company in liquidation
." (my
emphasis)
[53]
The
next issue with which the third and fourth respondents take issue is
that the applicant unduly delayed bringing this review.
[54]
The
third and fourth respondents contend that the first account was, to
the knowledge of the applicant, taxed on 27 July 2007. However,
he
waited some three and a half years before launching an application to
review the taxation, namely, until January 2011. During
the period
after the account was submitted there were several items of
correspondence between the applicant and the first respondent.
[55]
The
explanation that
"[t]he drafting of
his voluminous and complicated application has been exceedingly time
consuming..."
cannot
ever
explain a delay of three and a half
years in respect of the review of taxation of the first account.
[56]
The
third and fourth respondents contend that the applicant's explanation
gets no better when he explains that he had to conduct
extensive
searches for documents and some of his files were in the hands of
costs consultants and his accountant. This information
the third and
fourth respondents contend is bald and sparse and falls short of what
is required of the applicant for condonation.
Accordingly, his
application for condonation in respect of the review regarding the
taxation of his first account must fail hopelessly.
[57]
The
third and fourth respondents advance the same reason why the review
in relation to the second account should also be refused.
[58]
In
relation to the third and fourth accounts, the third and fourth
respondents contend that at the very latest the applicant was
aware
of the taxation of the third and fourth accounts on 20 April 2010
when he was furnished with the report regarding the application
for
the removal.
[59]
In
that report, the first respondent's decisions regarding the third and
fourth accounts are clearly communicated.
[60]
Despite
such knowledge, some nine months elapsed before he launched his
application, which is three months past the deadline of
the 180-day
period in which he ought to have launched this application.
[61]
The
third and fourth respondents contend that the applicant gives a
generalised explanation that is unconvincing, bald, vague and
sketchy. They also contend that the applicant's attitude to this
entire matter has been lackadaisical. His explanation is not only
unconvincing but lacks the detail one would expect of an applicant
who is seeking a potential indulgence from this Court. Accordingly,
the review of the third and fourth accounts should also fail.
[62]
I
agree with the third and fourth respondents that the reasons for the
late delay for the launching of this application are sketchy.
However, I do not intend closing the door on the applicant. As will
become apparent hereunder, there is some merit in the review
by the
applicant.
[63]
Accordingly,
condonation for the late bringing of this review is granted.
[64]
In
the first account the applicant sought a "supplementary fee"
for accounting services rendered by one O D Haigh ("Haigh")
in the amount of R10 746.06 and R Harris ("Harris") in the
amount of R2 500.00. The applicant also sought a supplementary
fee in
the amount of R3 920.00 for the services of Mrs S Berrange for "the
day to day payments of the patient's needs at Knysna
and production
of
monthly
payment schedules and administration of the patient's private day and
night staff and liaising with the curator bonis and
curator ad
personam Johannesburg".
[65]
The
applicant also sought a "supplementary fee" of R260 016.66
for 520.03 hours (at R500 per hour) spent on the administration
of
the patient's estate.
[66]
The
first account was lodged with the Master on 13 December 2006. On 27
July 2007, an estate controller in the curatorship section
of the
Master, S Maloa, approved the account. The letter provides the
following:
"RE: CURATORSHIP: MARGERET IRENE WILLIAMS
1.
Your letter dated 15 June 2007 refers.
2.
Queries 1.1-9 on my query sheet dated
28 May 2007
has been deleted.
3.
The First Curators (sic) account is in order.
Yours
faithfully'’
[67]
However,
in a letter dated 9 November 2005, more than a year before the first
account was lodged with the Master, it appears that
the Master
informed the applicant that the duties performed by Mrs Berrange form
part of the applicant's duties and therefore the
applicant is welcome
to pay her fees from his fees. This appears to be a response to a
letter from the applicant to the Master
dated 6 September 2005.
[68]
It
is apparent that the decision by the Master not to allow the fees of
Mrs Berrange was made as early as 9 November 2005, before
the first
account was lodged.
[69]
Paragraph
3 of the 9 November 2005 letter, importantly, states the following:
"3. Your letter dated 13 October 2005 refers
Kindly provide me with a summary of the expenditure that is
payable every month, to enable me to approve a monthly allowance for
monthly expenses only. Extra expenses will be dealt with separately,
on receipt of applications."
[70]
It
is also not clear whether the applicant provided the Master with a
summary of the monthly expenditure payable every month as
requested
by the Master.
[71]
The
9 November 2005 letter also mentions a "misunderstanding"
relating to the accountant's fee. This also appears to be
a response
to a letter from the applicant to the Master dated 26 September 2005.
Unfortunately, the 26 September 2005 letter does
not form part of the
record before me.
[72]
In
a letter dated 20 April 2010 by the Master to attorneys VFV Mseleku
Attorneys (this is in response to the attorneys' application
to
remove the applicant as curator bonis), the Master said the following
regarding the curator's fees on the first account:
"
FIRST
ACCOUNT
:
This account was
only for a period of six months.
Mr Jones
requested a fee of R303 893-97.
His motivation is his time sheet. He is a senior attorney and
requested that R500 per hour, be approved. He has rendered a vast
amount of services.
The Master
approved the account on 27 July 2007.
The Master has in several letters, even as early as 2005 informed
Mr Jones that if he wishes to utilize (sic) the services of an
accountant, he must provide for it out of his fees. The estate will
not be liable. See letters dated 9/11/2005; 26/9/2007; 17/10/2008
&
28/8/2009. The Master did not approve these expenses.
Decision
:
The Master approved the account on 27 July 2007. Mr Jones are
(sic) entitled to his fee of R303 893-97.
The fees of Mrs
Berrange will not be paid by the estate.
Although Mr Jones and I disagree about his fees, it is not a
sufficient reason to remove Mr Jones as Curator Bonis. There are
other
remedies - he can take my decision on review or lodge an
additional motivation with new facts etc."
[73]
It
is apparent that the Master is reconfirming a decision, firstly, that
if the applicant wishes to utilise the services of an accountant,
he
must pay for it out of his own fees (the decision was communicated to
the applicant in the letter referred to) and, secondly,
that the fees
of Mrs Berrange will not be paid by the estate.
[74]
In
this court, the Master reconfirmed the aforementioned reasons for the
decisions taken in the first to fourth accounts. The Master
also
provides reasons why the accounting and financial fees and Mrs
Berrange's fees will not be allowed. With regard to the fees
of Mrs
Berrange (which were claimed in the first to sixth accounts), the
Master provides the following reasons why he disallowed
this fee:
74.1.
section
52
read with
section 85
of the
Administration of Estates Act states
that it shall not be competent for any executor to substitute or
surrogate any other person to act in his place, in line with the
principle of delegatus delegare non potest. This reason is obviously
wrong in line with the authorities already mentioned which
allow for
delegation but not abrogation of duties;
74.2.
her
services as "accountant' for the applicant, also constitutes a
conflict of interest between her position as general manager
of
Leisure Gardens, for which she received a salary and that of an
"accountant' of the late patient. I do not understand this
reason; and
74.3.
the
"Curator ad Personae, who could fill
these duties,
was
also appointed in this matter. She also
lodged a complaint, dated 13 February 2010, against the applicant;
with regard to the fact
that Mrs Berrange may sign cheques on behalf
of the estate without any controf'\
74.4.
the
Master is then of the opinion that these fees are excessive, not
properly motivated, unnecessary and not in the best interests
of the
curatorship estate.
[75]
If
regard is had to the argument by the Master that a curator ad
personae was appointed who could fulfil these duties, it is apparent
to me that the fees were unnecessary and that the Master was correct
in disallowing the fees of Mrs Berrange. Accordingly, the
review to
set aside the decision by the Master not to allow Mrs Berrange's fee
fails.
[76]
The
fees of Haigh and Harris would appear to me to be warranted in the
event that the services were incurred with the specific aim
of
exercising the extraordinary powers and duties which were conferred
on the applicant. It appears me that initially certain accounting
work was done by the accountants in this regard. However, there is
certain accounting work performed by the accountants which is
not
specifically aimed at exercising the extraordinary powers and duties
conferred upon the applicant. An example hereof is the
drafting of
the curator's accounts.
[77]
In
this regard, the Master states the following:
"In most of these matters, the Curatores Bonis (attorney,
accountant or layman) compiles the administration account themselves,
as it is not such a complex to compile an administration account.
Usually accounting fees are allowed for income tax purposes, and
then only if a specific account is lodged by the accountant giving
a
detailed description of the accounting work done, as well as a
motivation as to why these services were a necessity; and in the
best
interests of the Curatorship estate. The expense is usually not more
than R700 per year"
[78]
I
agree with the Master that the applicant is not entitled to claim the
accounting fees of Haigh and Harris insofar as they relate
to the
drafting of the curator's account. However, work performed by Haigh
and Harris in relation to the exercise of the powers
and duties
conferred by the applicant should, however, be allowed. This includes
work performed by them to assist the applicant
to trace assets of the
patient.
[79]
However,
this Court is not in a position to analyse each minute spent by the
accountant in relation to work performed. The Master
is best suited
to do this. Accordingly, this aspect is referred back to the Master
and the Master is specifically ordered to reconsider
the accounting
fees of Haigh and Harris and allow the fees only insofar as they
relate to the exercise of the extraordinary powers
and duties of the
applicant.
[80]
In
relation to the increased fees, the Master took the following factors
into consideration: the provisions of
Section 84
, read with
Regulation 8
of the
Administration of Estates Act; relevant
case law;
the complexity of the estate in question; the degree of difficulty
encountered by the Applicant in the administration
thereof; the
amount of work done and the time spent by the Applicant in the
discharge of the duties involved; particular difficulties
which were
experienced by the Applicant, due to the nature of the assets; the
First administration account of the Applicant only
covered a period
of
six
months, and not
a year, as is required in terms of
Section 83
of the
Administration
of Estates Act and
, therefore, the period for the account was taken
into account; the time sheet of the Applicant, as well as, whether he
had performed
his duty satisfactorily. The value of the estate; the
fact that this was the first administration account, as well as the
work
involved at the commencement of an estate under Curatorship.
[81]
The
facts of this case are similar to the case of Johannes Klopper v The
Master of the High Court Case No 2475/2008 (CPD), delivered
on 13
June 2008 by Thring J. The facts of this case are distinguishable
from the case of Klopper NO v the Master
2009 (3) SA 571
(SCA) which
is one of the cases which the Master relied on in only partially
increasing the fee of the applicant (see para [17]).
[82]
In
the unreported case, there were about 13 points which warranted an
increased fee. They were: the administration of estates spanning
a
period of more than five years; the winding up process was
multifaceted, complex and difficult; there was a dispute with the
South African Revenue Service (SARS) about custom duties relating to
company stock; there were cross-border matters in respect
of
Australian suppliers; there were objections by creditors; legal
proceedings were instituted against the liquidator; there were
negotiations in regard to the sale of stock and the company trade
mark in South Africa and Australia as well as negotiations in
respect
of the release of lien over stocks; the company's book debts had been
factored to Nedbank Ltd; VAT claimed by SARS required
extensive
investigations.
[83]
Although
these cases deal with the increased fee of a liquidator, the
principles in relation to the increased fees of trustees (in
terms of
the
Insolvency Act, 1936
) and liquidators (in terms of the Companies
Act) are equally applicable to the increase of fees of executors and
trustees (in terms
of the
Administration of Estates Act).
[84
]
In
the matter at hand, the applicant had, with his extraordinary powers,
to do extensive work to trace and preserve the assets of
the patient,
both locally and overseas.
[85]
Although
a Court is usually slow to interfere where disputes concerned the
quantum of liquidators and, in this case, curator's fees,
it will do
so where the Master was clearly wrong (see Net's case supra at
287P-288G and President of the Republic of South Africa
and Others u
Gauteng Lions Rugby Union and Another
2002 (2) SA 64
(CC) at 73C-F.
[86]
In
the matter at hand, in the first report filed by the Master, the
following is said:
"The time sheet lodged by the applicant, as motivation for
his increased fee...He did not provide clear indication as to the
specifics of what had transpired during the period of this
administration account. Most of the items listed in his time sheet,
namely; considering letters, consulting, correspondence, attending
court, uplifting assets, telephone calls, paying accounts etc
fall
within the scope of the normal duties of a Curator Bonis these
actions do not constitute additional duties performed by the
applicant."
[87]
In my view, the reason is flawed. The Master
should at least have considered whether the hours claimed for by the
applicant had
any relation or bearing to the extraordinary duties or
powers performed by him. Accordingly, it appears to me that the
Master did
not apply her mind.
[88]
It
follows, in my judgment that the decision of the Master must be set
aside on review. However, it does not necessarily follow
that I,
sitting as a court of review, should fix the applicant's remuneration
as claimed for in his invoices. The Court is not
an expert in the
practical minutiae of the administration of curatorship estates and
other tasks which such work involves. The
Master and the applicant
have far more expert knowledge on these matters than I have.
[89]
The
precise determination of remuneration for the applicant which would
be reasonable in all the relevant circumstances is, in this
case,
best left to the Master, in my view. I therefore do not propose to
embark in this matter on a minute examination of each
item in respect
of which the applicant claims to be entitled to be remunerated. It
may be that in other cases situations may arise
where it will be both
possible and desirable for a court on review to perform the function
of the Master and to fix the precise
amount which represents
reasonable remuneration for the curator. In such cases, the court
would have to be in a good position,
as the Master was. However, in
this case, it is impossible to examine 2000 hours and ascertain
whether they were maybe claimed
or not. On the other hand, it may be
that the Master finds that the time spent was excessive.
[90]
For these reasons, the following order is made:
90.1.
condonation
for the late launching of this application is granted;
90.2.
the
decision by the Master not to allow the fees of Mrs Berrange is
upheld;
90.3.
the
decision by the Master to disallow the accounting fees of Haigh and
Harris is upheld only insofar as they relate to costs incurred
in the
drafting of the curator's accounts;
90.4.
the
decision by the Master to partially increase the fees of the
applicant is set aside;
90.5.
the
matter is referred back to the Master for reconsideration, bearing in
mind what has been said in this judgment;
90.6.
the
Master should, if necessary, call for additional evidence in
assessing whether all the hours spent by the applicant relate to
the
performance of his extra duties and powers;
90.7.
the
Master is ordered to reconsider its decision within 60 days from date
of this order;
90.8.
the
third and fourth respondents are ordered to pay 50% of the costs of
the applicant but only the cost of one counsel.
DEWRANCE,
AJ
Acting
Judge of the north & south
GAUTENG
HIGH COURTS, PRETORIA