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[2012] ZAKZPHC 4
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Jasat v Jazzbhai and Others (9788/10) [2012] ZAKZPHC 4 (6 February 2012)
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO:
9788/10
I E JASAT
…...........................................................................................
APPLICANT
and
MRS A JAZZBHAI
…...................................................................
1
ST
RESPONDENT
MRS F KAJEE
…........................................................................
2
ND
RESPONDENT
MASTER OF THE HIGH
COURT,
PIETERMARITZBURG
…............................................................
3
RD
RESPONDENT
________________________________________________________________
J U D G M
E N T
________________________________________________________________
BALTON, J
[1] This is an application in which the applicant seeks an order
that:
(i) The decision of the third respondent dated 11 October 2010, to
remove the applicant as executor be set aside.
(ii) (a) Restraining the third respondent from granting letters of
executorships to testamentary nominations, first and second
respondents.
(b) If any certificates of executorship have been issued to the first
and second respondents, it must be ruled null and void.
(iii) The third respondent receives further submissions from the
applicant in terms of section 22 of the Administration of Estates
Act
66 of 1965 (“the Act”).
[2] It is common cause or not in dispute that:
(i) The applicant and the first and second respondents are siblings.
(ii) Their mother, Mrs Rasool Bebee Jasat (“the deceased”)
died on 14 July 1994.
(iii) The applicant was appointed executor dative by the third
respondent on 19 August 2008.
(iv) The deceased owned immovable property situated at 21 Dartnell
Road, Pietermaritzburg.
(v) The applicant’s sister, Fazila Patel, has been residing on
the property since the deceased’s death, at a monthly
rental of
R700,00.
[3] The applicant alleges that:
(i) The deceased instructed attorney Hoosen Jasat to draw up a Will.
(ii) Hoosen Jasat, who was in partnership with his brother, attorney
Farouk Jasat, suffered brain damage in 1996 and is non-corpus
mentis.
(iii) On 4 July 2007, the applicant lodged a complaint with the third
respondent against the first respondent’s failure to
lodge
accounts.
(iv) The third respondent advised the applicant in 2008 that he had
no record of the deceased’s estate.
(v) On 21 July 2010, Farouk Jasat lodged the deceased’s Will
dated 12 May 1994, with the third respondent.
(vi) The third respondent accepted the Will on 10 September 2010.
(vii) The first and second respondents are the nominated testamentary
executors and the third respondent appointed them as such.
(viii) In 1994 the first respondent purported to be the appointed
executrix to the third respondent’s office. She declined
to
give the applicant a copy of the Will.
(ix) The applicant filed a written objection in terms of section 22
of the Act.
[4] The third respondent filed a notice explaining that the first and
second respondents were appointed executors in terms of the
Will and
that he will abide by the decision of the Court.
[5] The applicant alleges that the first respondent was in possession
of the Will prior to July 2010, because a copy of the Will
was faxed
to the Municipality on 19 May 2010 at 12h02. Attorney Jasat alleges
that he found the Will in July 2010.
[6] Despite much argument and the applicant’s contention that
the matter could be resolved on the papers, this Court is of
the view
that the issue of when the Will was faxed to the Municipality in
relation to the allegation that the Will was found by
Attorney Farouk
Jassat in July 2010, is a dispute of fact which cannot be resolved on
the papers. Furthermore, correspondence between
the Municipality and
the tenant/first respondent relating to the immovable property is
also relevant.
[7] This evidence will be necessary to determine the final outcome of
the relief sought.
[8] The following order is made:
(i) This application is adjourned to a date to be arranged with the
Registrar for the hearing of oral evidence on the following
issues:
(a) When was the Will faxed to the Municipality;
(b) Who corresponded
with the Municipality on behalf of the estate.
(ii) The evidence shall be that of any witnesses whom the parties or
either of them may elect to call, subject, however, to what
is
provided in paragraph (iii) hereof.
(iii) Save for any persons who may have deposed to an affidavit in
this matter neither party shall be entitled to call any witness
unless:
(a) such party has served on the other party at least 14 days before
the date of the hearing, a statement wherein the evidence
to be given
in chief by such person is set out; or
(b) the court at the hearing permits such person to be called despite
the fact that no such statement has been so served in respect
of his
evidence.
(iv) Either party may subpoena any person to give evidence at the
hearing whether such person has consented to furnish a statement
or
not;
(v) The fact that a party has served a statement in terms of
paragraph 3 hereof or has subpoenaed a witness shall not oblige such
party to call the witness concerned.
(vi) Either party may call upon the other to make discovery of all
documents in his possession or control, but such request shall
be
made not later than one month prior to the date of the hearing. Such
discovery shall be made in accordance with Rule 35.
(vii) The provisions of Rule 36 and 37 will apply.
COUNSEL FOR APPLICANT: MR JASAT IN PERSON
COUNSEL FOR THE 1
ST
AND 2
ND
RESPONDENTS: ADV W J PIETERSEN
(Instructed by:
Von Klemperers
234 Hoosen Haffejee
Street
PIETERMARITZBURG)
DATE OF HEARING : 29
NOVEMBER 2011
JUDGMENT HANDED DOWN
ON: 6 FEBRUARY 2012