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[2024] ZALMPPHC 39
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Nadat v Bibi-Sulaman and Another (1718/2022) [2024] ZALMPPHC 39 (23 April 2024)
REPUBLIC
OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 1718/2022
In
the matter between:
KNOORJAHAN
MUSSA
NADAT Applicant
And
FATIMA
8181-SULAMAN
N.O. First
Respondent
MASTER
OF THE HIGH
COURT Second
Respondent
JUDGEMENT
LEDWABAAJ
Introduction
[1] On
the basis that it is allegedly undesirable as envisaged in section
54(1)(a)(v) of the Administration
of Estate Act 66 of 1985 (the Act),
the applicant prays for the removal of the first respondent as
executrix of the estate of her
late husband, Ismail Ahmed Ismail
Nadat Nadat (the deceased). She also prays for the court to consider
whether the first respondent
is entitled to any remuneration. The
ancillary relieves include that the second respondent grants
appointment letter to an alternative
representative of the deceased's
estate,
that
the
first
respondent
hands
over
any
and
all
the
documents relating to
the deceased's estate, and further to order the first respondent to
pay the costs in her personal capacity.
The founding affidavit states
the basis of the removal as the alleged maladministration of the
deceased's estate and the alleged
material misrepresentations made to
the second respondent.
[2] The
applicant is the deceased's mother and the first respondent's mother
in law.
[3] The
first respondent opposes the application. She also applies to strike
out certain paragraphs in the
founding and replying affidavits.
[4] The
deceased was married to the first respondent according to the Muslim
rites on the 26th July 2008.
The deceased died on the 19th August
2021. On the first respondent's version, the deceased died intestate.
On the applicant's version
the deceased died on the strong grounds
which indicate that the deceased left behind a will drawn up in
accordance with Sharia
law.
[5] The
first respondent reported the deceased's estate on the 25
th
August 2021
[1]
•
She
was appointed as executrix two days later on the 27
th
August
2021. In terms of section 29 of the Act, the estate was published on
the 8
th
October 2021 with the creditors given thirty days to lodge claims.
The thirty days period lapsed on the 7
th
November 2021. The amended inventory was submitted on the 29
th
October 2021. On the basis that the decease allegedly received cash
payments of R202 200.00 and R157 800.00 (totalling of R360
000.00) on
behalf of the applicant as the seller for safe keeping from the
property sale agreement, the applicant submitted her
claim as the
creditor to the second respondent on the 18th February 2022. The
first respondent disputes the applicant's claim that
annexure FA 4
reflects that her claim was emailed to the first respondent's
attorneys on the 16th February 2022 and takes the position
that the
applicant has failed to prove locus standi. Among the reasons for
disputing the applicant's claim, the first respondent
avers that as
the deed of sale expressly provides that the payment of the purchase
price was to be made into the transferring attorneys'
trust account,
the first respondent disputes the applicant's claim that any payment
was made to the deceased. She further points
out that because the
deceased started self-isolating due to Covid 19 from the end of June
2021 before he tested positive on the
15th July 2021 when he was
sedated at the hospital until his death, he could not have received
the money in respect of the deed
of sale which was signed the day
before on the 14th July 2021. She avers that the Nadat family had
safe and other cash deposit
services to keep the money. She further
says the subject property is still registered in the applicant's
name, to which the applicant
replies that the transfer process has
been held over by agreement with the purchaser.
[6] The
first respondent submitted the final liquidation and distribution
account on the 15
th
February 2022, before the applicant
submitted her claim. She avers that as the deceased's surviving
spouse and their children's
legal guardian, she is entitled to be
appointed as the executrix. As the executrix, she stands in the
fiduciary relationship with
the creditors, the estate beneficiaries
and the court.
[7] The
applicant sates that she has strong grounds to believe that the
deceased left behind a will drawn
up in accordance with Sharia law.
According to the applicant, that will gives her and her husband a
share in the deceased's estate.
The existence of the will is denied
by the first respondent. She submits that even if it could be
accepted that the deceased left
behind a will drawn up in terms of
the Sharia Law, that law is contrary to the provisions of the South
African law and would not
be accepted by the second respondent for
the purpose of the administration and the distribution of the
deceased's estate.
[8] It
is common cause that in the absence of the will, the
Intestate
Succession Act 81 of 1987
applies.
This
entitles
only the
first
respondent
and
her
children
to
inherit
from
the deceased's
estate.
[9] The
first respondent abandoned all points
in limine
raised; namely
non-compliance with Justice of the Peace and Commissioners of Oath
Act 16 of 1963, non- joinder of interested party
and failure to
attach confirmatory affidavits.
[10] The
first respondent denies the alleged fraud and maladministration of
the deceased's estate on her
part. She denies that she deliberately
misrepresented to the second respondent the deceased's estate in the
first inventory she
submitted. She avers that the inventory was
completed on the basis of information available to her attorney to
assist the second
respondent to determine whether the deceased's
estate was a section 18(3) of the Act (where the estate is valued
under R250 000.00)
or a letter of executorship estate (where the
estate is valued above R250 000.00).
[11] The
first respondent admits having made an error by confusing the street
and erf numbers in the description
of the property in the first
inventory. Her view is that only one immovable property is registered
in the deceased's personal name.
She denies having deliberately
omitted to mentioned in the first inventory immovable properties
registered in the name of the various
entities in which the deceased
had interest. She avers that the inventory should reflect the value
of the shares/interests in the
entities and that the applicant, the
Nadat family and deceased's former co-owner refuse to disclose the
financial statements. This
makes it impossible for her to determine
the value to be included in the inventory.
Discussion
[12] This
application
is
about
the
removal
of
the
first
respondent
on
the
basis
of
the
alleged
undesirability as contemplated in section 54(1)(a)(v) of the Act. The
applicant alleges that because the first respondent
allegedly
committed fraud and maladministration as the deceased's estate
executrix, she deserves to be removed from her position.
For the
interpretation of this section, the applicant relies on the authority
of Mpasi case
[2]
[13] On
the authority of Gory
[3]
, the
applicant submits that the discretion vested on the court when
dealing with the application based on section 54(1)(a)(v) of
the Act
is a discretion in the strict sense. I understand this to refer to a
discretion in the true sense where there are a wide
range of equally
permissible options available. The court said that the appeal court
will ordinarily only interfere with the exercise
of that discretion
in limited circumstances; for example, if it is shown that the court
of first instance did not act judicially
in exercising its
discretion, or based the exercise of that discretion on a
misdirection on the material facts or on wrong principles
of law.
[14] The
applicant's case is based on the founding affidavit. She is only
allowed to reply to the first respondent's
answering affidavit and
not to make her case on the replying affidavit. This is because the
first respondent is not automatically
given an opportunity to respond
to new allegations raised in the replying affidavit. In the same
breath and as the applicant is
also not automatically given an
opportunity to reply to new allegations in the supplementary
affidavit, the first respondent is
not permitted to raise new issues
in the supplementary affidavit.
[15] The
applicant submits that the courts have accepted that there is a
discretion for flexibility to permit
new material in reply. She
refers to the case of Nkengane.
[4]
[16] Based
on Msunduzi Municipality and Anderson cases
[5]
,
the applicant submits that a striking out application is not intended
for technical objections of no advantage to any of the parties.
Relying on the interpretation of Rule 23(2)(b) by Beinash
[6]
case, she further submits that a party intending to apply for the
striking out must show that it will be prejudiced if the matter
is
not strike out.
[17] Relying
on Swissborough Diamond Mine (Pty) Ltd v Government of the Republic
of South Africa
[7]
the first
respondent submits that in motion proceedings, the affidavits serve
not only to place evidence before court, but also
to identify and
define the issues between the parties for the case to be met. She
submits that the applicant must stand and fall
by her papers.
Based
on R v Myers
[8]
, Ruto Flower
Mills( Pty) v Moriates & Another
[9]
and Ferreira v Landre & Another
[10]
,
the first respondent submits that fraud is proved when it is shown
that a false representation has been made knowingly or without
belief
in its truth , or recklessly, careless whether it be true or false
and was intended to be acted upon. Referring to Home
Talk
[11]
case , the first respondent submits that fraud is a serious false
representation which is not to be lightly made and which is not
easily established.
[18] The
applicant elected to approach this court for the final order by way
of application. Motion proceedings
are all about the resolution of
legal issues based on common facts. Unless the circumstances are
special they cannot be used to
resolve issues because they are not
designed to determine probabilities.
[12]
The
first respondent rightly points out that the applicant's choice of
the motion proceedings denies the parties an opportunity
to test
under oath the other's version.
An
applicant who seeks a final relief using motion proceedings must, in
the event of dispute of fact, accept the version set up
by a
respondent unless the latter's allegations are, in the opinion of the
court, not such as to raise a real, genuine or bona
fide dispute of
fact or are so far-fetched or clearly untenable that the court is
justified in rejecting them merely on the papers.
[13]
[19] The
party which raises dispute the facts is required to do so seriously
and unambiguously. Bare denial
may suffice where there is no other
way open to the disputing party and nothing more can be expected of
such a party, but even
that may not be sufficient if the facts
averred lies within the knowledge of the averring party and no basis
is laid for disputing
the veracity or accuracy of the averment:
Wrightman t/a JW Construction v Headfour(Pty) Ltd & Another
2008(3)SA 371(SCA)- par
12 and
13. The first
respondent's version is not a bare denial which can be regarded as
being far- fetched or clearly untenable that the
court is justified
in rejecting them merely on the papers without oral evidence.
[20] The
basis on which the applicant claims that it is undesirable that the
first respondent should remain
acting as executrix is disputed not on
bare denial. The first respondent's version raises real, genuine
dispute of facts. Those
facts are not so far fetched or clearly
untenable that the court is justified in rejecting them merely on the
paper.
[21] To
prove the alleged fraud and maladministration, the applicant relies
on disputed facts and claims.
The applicant's
locus standi
claim
is based on the disputed allegation that cash money was given to the
deceased for safe keeping.
[22] The
applicant has not produced the alleged will to prove its contents.
She relies on her belief and
the confirmatory affidavits of Jeinab
Bibi Ebrahim Nadat Nadat ( Jeinab) and his wife. The first respondent
states that she is
in a legal dispute with Jeinab on the deceased's
interest in the entity co-owned by the deceased and Jeinab and that
the latter
is not co-operating with her to establish the deceased's
shares in the entity they ran together.
[23] On
the authority of Letterstedt
[14]
Sackville and Meyerowitz
[15]
,
the parties agree that the test is whether the continuance of the
first respondent in office will prejudicially affect the future
welfare of the estate placed under her care. The first respondent
further submits that mere negligence without proof of prejudice
in
the estate administration will ordinarily not be the ground for
removal.
[24] On
the basis that she had not lodged a claim against the deceased's
estate as was the case in the Grobbelaar
case
[16]
,
the first respondent denies alleged conflict of interest.
[25] Given
the above and on the balance of probabilities, the applicant has
failed to prove that the continuance
of the first respondent as the
executrix will prejudicially affect the future welfare of the
deceased's estate placed under her
care. The applicant's application
fails.
[26] On
the basis that the founding and replying affidavits allegedly contain
averments which are malicious,
vexatious and scandalous, the first
respondent applies for the striking out of those averments. A party
which seeks to strike out
that kind of averments is required to give
the required notice as provided in Rule 23(2)(a). In terms of Rule
23(2)(a) where a
party intends to apply to strike out an averment on
the basis that it is scandalous, vexatious or irrelevant, such party
is required
to deliver that notice within ten days of the receipt of
the pleading and give its opponent an opportunity to remove the cause
of complaint within fifteen days of delivery of the notice of
intention to strike out.
Rule
23(2)(b) provides that the court shall not grant the application to
strike out unless it is satisfied that an applicant will
be
prejudiced in the conduct of any claim or defence if the application
is not granted.
[17]
[27] On
the balance of probabilities, the first respondent has failed to
prove that it will be prejudiced
in the conduct of her case if the
striking out application is not grant. Her application also fails.
[28] On
the basis that the first respondent allegedly acted fraudulently or
in a gross negligent manner when
dealing with the deceased's estate,
the applicant prays for
de
bonis propriis
costs
against the first respondent. In response and on the authority of
Nel
[18]
the first respondent
submits that by reason of special considerations arising from either
the circumstances which give rise to
the action or from the conduct
of the losing party, the court in the particular cause considers it
just , by means of such an order,
to ensure more effectually than it
can do by means of a judgment for a party and party costs that the
successful party will not
be out of pocket in respect of the expense
caused to him or her by the litigation. On the same authority she
submits that the awards
of costs on attorney and client scale are
used by the court to mark its
displeasure
of some conduct which should be frowned upon.
[29] The
first respondent submits that there are grounds for the punitive
costs order to be awarded against
the applicant.
[30] Punitive
costs are awarded to mark the court's displeasure against a vexatious
litigant.
[31] Both
parties have not been succeeded in their respective prayers. There is
no basis to order any party
to pay the other's costs
Order
[a] On
the balance of probabilities, the applicant has failed to prove that
it is undesirable that the first
respondent should remain the
executrix in the estate of Ismail Ahmed Ismail Nadat Nadat. The
applicants' application is dismissed
[b] On
the balance of probabilities, the first respondent has failed to
prove that it will be prejudiced
in the conduct of her case if the
striking out application is not grant. The first respondent's
striking out application also fails.
[c] Both
parties have failed to prove their cases on the balance of
probabilities.
[d] Each
party pays its own costs.
LEDWABA
AJ
ACTING
JUDGE OF THE HIGH COURT
LIMPOPO
DIVISION: POLOKWANE
APPEARANCES
For
the applicant: Adv
NA Cassim SC
Adv
Kuvashkir
Instructed
by: ZI
Attorneys Inc
C/0
TAR Attorneys
Suite
13, 125 Marshall Street
Polokwane
For
the first respondent : Adv
F Van Wyk
Instructed
by:
Nazia
Carrim Attorneys
28
lsmini Office Park 14
Polokwane
Heard
on: 5th
February 2024
Judgement
was electronically delivered on: 23
April 2024
[1]
The
reporting documents included the death notice, nomination by
beneficiaries, acceptance as executrix, death certificate, special
power of attorney (regulation 9.10 of the AEA forbids administration
of without attorneys assistance) beneficiaries' identity
documents,
reporting affidavit and inventory.
[2]
Mpasi
NO v Master of the High Court (
2018) NASC( 17
August 2018)
[3]
Gory
v Kolver NO & Others
(2006) ZACC 20
2007(4) SA 97(CC) at 57
[4]
Nkengane
v Schnetler (20I I) I All SA 272(SCA)
[5]
Msunduzi
Municipality v Natal Joint Municipal Pension Fund & Others
2007(1) SA 142(N): Anderson & Another v Port Elizabeth
Municipality 1954(2) SA 299(E)
[6]
Beinash
v Wixley 1997(3) SA 721 (SCA) at 733B-734A.
[7]
1999(2)SA
279(T) at 323 F
[8]
1948(1)
SA 375(A)
[9]
1957(3)
SA I 13(T) at 116A
[10]
1964(4)
SA 589(T) at 592H
[11]
Home
Talk Developments(Pty) Ltd & Others v Ekurhuleni Metropolitan
Municipality (
2017) ZASCA 77
hu
[12]
National
Director of Prosecutions v Zuma 2009(2) SA 277(SCA)
[13]
Tsambo
v Sengadi
(2020) ZASCA 64
paragraph 19
[14]
Letterstedt
v Broers 9 AC 379
[15]
Sackville
West v Nourse
1925 AD 516
at 527; Meyerowitz on Administrative of
Estates And their Taxation , 2010 Edition page 11-2, par 11.4.
[16]
Greobbelaar
v Grobbelaar 1959 (4)SA 719(A)
[17]
Beinash
V Wixley 1997(3) SA 721 (SCA) at 733B-734A.
[18]
Nel
v Waterberg Landbouers Ko-operatiewe Vereening
1946 AD 597