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[2014] ZAGPPHC 54
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Lebudi v Lebudi and Others (26743/09) [2014] ZAGPPHC 54 (4 February 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
NORTH GAUTENG
DIVISION, PRETORIA
Case
No: 26743/09
DATE:
04 FEBRUARY 2014
BOITUMELO MARIA
LEBUDI
............................................................
Applicant
And
MAMASHABA MARY
LEBUDI
..............................................
First
Respondent
JEFFREY NGAKWANA
LEFOWA
.......................................
Second
Respondent
GOITSEMANG MARTHA
MAKAGARA MOGALA
...........
Third
Respondent
NEDBANK
LTD
......................................................................
Fourth
Respondent
SHAI ANDREW
MATLOU
.......................................................
Fifth
Respondent
STANDARD BANK OF
SOUTH AFRICA
…...........................
Sixth
Respondent
THE MASTER OF THE
HIGH COURT
..............................
Seventh
Respondent
THE REGISTRAR OF
DEEDS
...............................................
Eighth
Respondent
JUDGMENT
DE KLERK AJ
[1]
The Applicant
seeks the following relief:
1. That she be
declared the only lawful executrix in the estate of the late N E
Lebudi.
2. That the transfer
of the immovable property known as house number 7….., B….,
M…., registered under deed
of transfer no T 2….. be
declared valid.
3. That the transfer
of the same immovable property registered under deed of transfer no.
T2……. be declared invalid.
4. Costs in the
event of opposition.
[2] The gist of the
Applicant’s case is that she as the mother of the deceased is
the only lawfully appointed executrix. This
she based on the
provisions of Section 7 of the Administration ofEstates Act 66 of
1965.
[3] The Applicant
argued that because there was no surviving spouse the nearest
relative had to be appointed as executrix. Consequently,
her argument
runs that she, as the mother of the deceased was so appointed by the
Master, and that the appointment of the First
Respondent (not being
the surviving spouse) was unlawful.
[4] In her capacity
as executrix she was entitled to sell the immovable property known as
house number 7….., B…..
U…., M…..
(forming part of the deceased estate). The First Respondent, on the
other hand could not have transferred
more rights than she had.
[5] Council for the
First Respondent argued that the First Respondent’s appointment
by the Master was lawful.
[6] He further
argued that the Applicant was appointed in terms of the provisions of
Section 18 (3) of the Administration of the
Estates Act 66 of 1965.
Section 18 (3) of the Act provides that the Master (if the value of
the estate does not exceed R125 000)
may dispense with the
appointment of an executor and give directions as to the manner in
which any such estate shall be liquidated
and distributed.
[7] In the light of
the aforesaid, the argument runs that the Applicant has never been
appointed as executrix and could therefore
not be declared to be the
only lawful executrix of the deceased estate.
[8] In terms of the
letter of authority the Applicant has been authorised to take control
of the assets of the estate, pay the debts,
and to transfer the
residue of the estate to the heirs entitled thereto by law.
[9] It was further
argued that the Applicant was not authorised to sell the said
immovable property and no averment was made by
her that she had to
sell same to pay the debts of the estate.
[10] It was finally
argued on behalf of the First Respondent that in the event of a
person dying intestate, the criteria for the
appointment of an
executor as set out in Section 18 (1) are that the Master shall
appoint such person or persons whom he may deem
fit and proper to be
the executor of the estate of the deceased.
[11] The common
cause facts are:
1. The deceased
passed away on the 29th of September 2005;
2. He died
intestate;
3. His estate
comprised of an immovable property known as house no. 7….,
B….. U…, M…….;
4. Letters of
authority in terms of the provisions of Section 18 (3) of the
Administration of Estates Act were issued by the Master
to the
Applicant and the First Respondent;
5. The Applicant
sold the said immovable property on or about 9 November 2007 for a
purchase consideration of R240 000;
6. The First
Respondent sold the same property on or about the 4th of October 2007
for an amount of R230 000.
[12] The gist of the
dispute is whom of the Applicant or the First Respondent, is the
lawfully appointed executrix.
[13] The answer to
this question will also determine the validity of the sale and
transfer of the immovable property.
[14] The Applicant
based her argument that she is the only lawfully appointed executrix
squarly on the provisions of Section 7 of
the Administration of
Estates Act.
[15] Section 7 is in
my view not applicable as it deals with death notices.
[16] Section 7 reads
as follows:
“
Death
Notices:
Whenever any person
dies within the Republic leaving any property or any document being
or purporting to be a will therein- a) the
surviving spouse of such a
person or more than one surviving spouse jointly or if there is no
surviving spouse, his or her nearest
relative shall within 14 days
thereafter give a notice of death to the master.”
[17] Consequently
same does not support the Applicant’s contentions in this
regard. Section 18(1) of the Act provides for
the appointment of an
executor in the event where the deceased died without having, by
will, nominated any person to be his executor.
[18] Section 18 (1)
reads as follows: “The Master shall, subject to the provisions
of subsection (3), (5) and (6) (a) if any
person has died without
having by will nominated any person to be his executor, appoint and
grant letters of executorship to such
person or persons whom he may
deem fit and proper to be executor or executors of the estate of the
deceased.”
[19] Section 18 (3)
of the Act provides that if the value of any estate does not exceed
the amount determined by the Minister by
notice in the gazette, the
Master may dispense with the appointment of an executor and give
directions as to the manner in which
any such estate shall be
liquidated and distributed.
Conclusion:
[20] The deceased
died intestate. The Master, in terms of the provisions of
Section 18
(3) of the
Administration of Estates Act 66 of 1965
issued letters of
authority to the Applicant and the First Respondent. The Applicant
based her case as to why she should be declared
the only lawful
executrix in the estate of her late son squarly on the provisions of
Section 7 of the Act. In the light of the
evidence and the
applicable law the court finds that the Applicant has not discharged
the onus of proof resting on her.
Accordingly the
order is as follows:
The Applicant’s
application is dismissed with costs.
Signed at on
this day of 2014.
Judge De Klerk AJ
The Honourable
Judge of the High Court of Pretoria