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[2013] ZAGPPHC 118
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Jewaskewitz v Master of the High Court Polekwane and Others (53514/2012) [2013] ZAGPPHC 118 (16 May 2013)
NOT
REPORTABLE
IN THE HIGH COURT OF THE REPUBLIC OF
SOUTH
AFRICA NORTH GAUTENG, PRETORIA
Case
number: 53514/2012
DATE:16/05/2013
In
the matter between
BEATRIX
SUSANNA MAGRIETHA
JEWASKEWITZ
........................................
Applicant
and
THE
MASTER OF THE HIGH COURT
POLEKWANE
.....................................
First
Respondent
UNITA
VISSER N.O.
….........................................................................................
Second
Respondent
ANNA
MARIA ELIZABETH
ERASMUS
..............................................................
Third
Respondent
DANIEL
BELZASAR
ERASMUS
........................................................................
Fourth
Respondent
ILONKA
FICK
..........................................................................................................
Fifth
Respondent
JUDGMENT
BAM
AJ
1.
The issues in this application turn upon: (i) the claim of
maintenance by the third respondent against the estate of the late
George Daniel Erasmus," the Deceased", to whom she was
married for nine months immediately preceding his death, and,
(ii)
the dealing with this claim by the first respondent, “the
Master".
2.
The deceased died testate on 15 September 2009. The applicant and the
fourth respondent, children of the deceased, were the only
beneficiaries. On 10 May 2010 the second respondent was appointed
executrix of the estate. The fifth respondent was an agent of
the
second respondent who de facto dealt with the affairs of the estate,
including drafting of the liquidation account and all
correspondence
relevant to the matter. On 13 May 2011 the fifth respondent informed
the applicant of the third respondent's claim
for maintenance against
the estate. The applicant then directed certain enquiries to the
fifth respondent. On 2 June 2011 the fifth
respondent informed the
applicant that the liquidation account in the said estate had been
drafted and that 4t included the third
respondent's claim for
maintenance in the amount of R366 096. Fifth respondent also informed
the applicant that the Master did
not have the authority to reject
the claim, and consequently, that the applicant should lodge a court
application to have the claim
reduced. The applicant was also
informed that the estate would not bear the costs of any such
application. On 27 July 2011 the
applicant lodged an objection
against the third respondent's claim with the Master. On 28 October
2011 the Master stated that he
"... cannot give a decision as to
whether the surviving spouse qualifies to get maintenance as provided
for by the Maintenance
of the Surviving Spouse Act, No 27 Of 1998"
The Master further stated that the determination of the amount was
not within
the area of his "expertise" and directed, in
terms of the provisions of
sections 35(9)
and (10) of the
Administration of Estates Act, No 66 of 1965
, that the applicant
should approach this Court for the appropriate relief.
3.
Consequently the applicant applied for the following relief:
1.
That the First Respondent be directed to consider the Applicant's
objection against the Liquidation and Distribution Account
in the
estate of the deceased George August Erasmus, estate number
3526/2010, and to make a decision as to whether the Applicant's
objection is well-founded in terms of the provisions of
Section 35(9)
of the
Administration of Estates Act, Act
66 of 1965;
2.
Alternatively, that the First Respondent be directed to amend the
Liquidation and Distribution Account of the late George August
Erasmus, estate number 3526/2010 and to dismiss and/or delete the
Third Respondent's claim for maintenance against the aforesaid
estate
in the amount of R336 096 00;
3.
Costs against the First Respondent;
4.
Costs against the Second to Fifth Respondents only in so far as they
oppose this application.
4.
The application is opposed by all the respondents. Save for the
Master, answering affidavits were filed by the other respondents.
It
must therefore be assumed that the Master abides this Court's
decision.
5.
On 9 May 2013, when the matter was heard, the applicant withdrew the
application against the fifth respondent. The parties agreed
that no
costs were involved.
6.
Regarding the Master's rights and duties pertaining to the
consideration of, and dealing with, objections against maintenance
claims of the nature in question, the specific wording of the
applicable legislation has to be considered.
Section
35(9)
of the
Administration of Estates Act, No. 66 of 1965
, reads as
follows:
"If,
after consideration of such objection, the comments of the executor
and such further particulars as the Master may require,
the Master is
of the opinion that such objection is well founded or if apart from
any objection, he is of the opinion that the
account is in any
respect incorrect and should be amendedhe may direct the executor to
amend the account or may give such other
direction in connection
therewith as he may think fit (My emphasis.)
7.
The Master, in considering the objection against the maintenance
claim lodged by the third respondent, therefore had several
options
in terms of the provisions of
section 35(9).
The question arising is
whether the conclusion of the Master, to direct that the matter be
heard by a court of law, was a competent
direction in terms of the
provisions of the section.
8.
The Master is not a judicial officer. To expect the Master to
adjudicate whether a claim for maintenance should, upon consideration
of the facts and the applicable law, be allowed or rejected, where an
objection had been lodged, in my view, would not be fair
or in the
interests of justice. In this regard t am in respectful agreement
with the views expressed in Broodryk v Die Meester
1991 4 SA 825
(C)
and Ferreira v Die Meester2001
3 SA 365(0).
The learned authors of
LAWSA, Volume 31, par 453, seems to also support this approach.
9.
Accordingly, in my view, the Master was indeed entitled, in terms of
the provisions of
Section 35(9)
, alluded to above, to direct that the
issue between the applicant and the third respondent, regarding the
tatter's claim for maintenance
against the estate, be referred to a
court for adjudication.
10.
Regarding the applicant's alternative prayer, the applicant bears the
onus to prove on a preponderance of probabilities that
the third
respondent's claim for maintenance is not justified and
substantiated, and that the Master should accordingly be ordered
to
reject same.
11.
In terms of the provisions of section 2 of The Maintenance of
Surviving Spouses Act, No 27 of 1990, a surviving spouse is in
principle lawfully entitled to a maintenance claim against the estate
of the deceased spouse. It is common cause that the third
respondent
was married to the Deceased and that the marriage subsisted until his
death. Therefore the third respondent is, in principle,
in law
entitled to lodge her claim for maintenance against the estate. The
applicant's allegation that the third respondent undertook,
before
the death of the deceased, that she would have no maintenance claim
against his estate is denied by the third respondent.
That issue was
not pursued by the applicant.
12.
The remaining question is whether the third respondent is in the
circumstances factually entitled to claim maintenance from
the
estate. This Court is clearly called upon to determine this issue
before the Court would be able to decide whether the applicant
should
succeed with her alternative prayer or not. If the answer to this
question is in the negative, the applicant should succeed
with the
alternative prayer. On the other hand, if the Court should find that
the third respondent has in fact made out a case
for maintenance, the
said prayer is doomed for failure.
13.
To enable the Court to determine whether the maintenance claim is
factually valid, which means that the quantification thereof
justifies the finding that the third respondent will be entitled to
the payment of maintenance, the Court is guided by the provisions
of
section 3 of the aforementioned Act, No 27 of 1990. This section
provides as follows;
"In
the determination of the reasonable maintenance needs of the
survivor, the following factors shall be taken into account
in
addition to any other factor which should be taken into account —
(a)
The amount in the estate of the deceased spouse available for
distribution to heirs and legatees;
(b)
The existing and expected means, earning capacity, financial needs
and obligations of the survivor and the subsistence of the
marriage;
and
(c)
The standard of living of the survivor during the subsistence of the
marriage and his age at the death of the deceased spouse."
14.
From the papers it appears that there is certain evidence on record
pertaining to the aspects mentioned above. However, in my
view, what
is clearly lacking, is a proper actuarial calculation of the amount
claimed by the third respondent. A proper actuarial
calculation will
enable the Court to determine and quantify, inter alia, the third
respondent's needs, which calculation, in matters
of this nature, is
of cardinal importance. The evidence adduced by the third respondent
in this regard was attacked by the applicant,
but no actuarial
evidence was adduced by the applicant. The attack on the third
respondent's calculation is, in my opinion, understandable,
in view
of the fact that it lacks a proper calculation and computation. All
relevant issues have to be considered. Accordingly
1 found it
impossible to determine whether the amount claimed by the third
respondent is justified and reasonable. To my mind it
is indeed of
importance to have comprehensive actuarial evidence before court
before it can be decided whether, in the circumstances,
the
maintenance claim is reasonable and that it should be allowed or
dismissed by the Master
.
15.
Although some of the aspects referred to in section 3 of Act 27 of
1990, referred to above, were to some extent addressed by
the
applicant in the papers, it was insufficient. Without the benefit of
comprehensive expert evidence in that regard, no court
will be in a
position to find whether the claim of third respondent is justified
and reasonable at all. Strictly speaking, it may
be so that without
proper evidence adduced by the applicant in that regard, the
application should be dismissed. However, in that
event the issue
will remain unresolved and the Master will still be seized with the
same problem experienced previously, namely
that he would not be able
not resolve the problem. Such order will therefore clearly not be in
the interests of justice.
16.
During argument it was debated with counsel, Ms Bezuidenhout, for the
applicant, Ms Barnard, for the second respondent, and
Mr Schoeman,
for the third and fourth respondents, that this matter should be
referred to evidence in the event of the Court finding
that the issue
pertaining to the calculation and computation of the third
respondent's maintenance claim, cannot not be decided
on the papers.
Counsel
agreed. In the circumstances, especially in view of the fact that it
would serve no purpose to burden the Master with the
same problem as
before, I am of the
opinion
that the matter should indeed be referred to evidence to ensure a
just and expeditious decision.
17.
Both Ms Barnard and Mr Schoeman argued that, in the event of the
matter being referred for evidence, the applicant should be
ordered
to pay the wasted costs, in view of the fact that the applicant bore
the onus and that the applicant failed to come to
Court with the
required expert evidence. Ms Bezuidenhout submitted that the trial
court will be in a better position to adjudicate
the costs issue.
18.
In considering the costs issue, it is clear that the applicant is
largely to be blamed for not ensuring that the calculation
of the
third respondent's maintenance claim could be resolved. Accordingly
the applicant should therefore be ordered to pay the
wasted costs of
the third and fourth respondents incurred on 9 May 2013. However, as
far as the second respondent is concerned,
it is not clear why the
second respondent deemed it necessary to oppose the application. No
relief was sought against second respondent.
The real conflict lies
between the applicant and the third respondent. Unfortunately the
issue, why the second respondent joined
in the dispute, was not
debated or argued by counsel. In preparing this judgement, I
considered to request counsel to attend court
to debate the latter
issue but decided against it, in that it probably would have involved
further costs to the parties. The second
respondent is entitled to,
and should be afforded the opportunity to address the court in that
respect. Therefore I am presently
not prepared to make an order that
the applicant should pay the costs of the second respondent as well.
This is an issue that can
be debated before the trial court.
19.
I intend to make the order below. However, counsel representing the
parties, may, if they deem it expedient, approach this Court
to apply
for any appropriate amendment thereof.
20.
The following order is made:
1.
The issue raised pertaining to the Third Respondent's right to, in
principle, claim maintenance from the estate of the late George
August Erasmus, in terms of the
"
provisions of the Maintenance of Surviving Spouses Act, No 27 of
1990, is determined in favour of the Third Respondent;
2.
In terms of Rule 6(5)(g) the matter is referred to evidence in
regards to the issue of computation and quantification of the
Third
Respondent's claim for maintenance.
3.
The parties are entitled to adduce expert evidence, in accordance
with the Rules of Court, regarding the computation and quantification
only.
4.
The Third and Fourth Respondents' costs incurred on 9 May 2013 must
be paid
by
the Applicant.
5.
The costs issue regarding the Second Respondent is reserved.
A
J Bam
ACTING
JUDGE OF THE HIGH COURT
15
May 2013