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[2024] ZAFSHC 355
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M.C.M (obo P, R and N.M) v Pedzisai N.O and Others (1251/2023) [2024] ZAFSHC 355 (30 October 2024)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(FREE STATE DIVISION,
BLOEMFONTEIN)
CASE NO:1251/2023
In the matter between:
M[…] C[…]
M[…]
APPLICANT
(OBO P[…], R[…]
AND N[…] M[…])
and
JANE PEDZISAI N.O
FIRST RESPONDENT
JANE
PEDZISAI
SECOND RESPONDENT
MASTER OF THE HIGH
COURT
THIRD RESPONDENT
Neutral Citation:
Coram:
Mahlatsi AJ
Heard:
17 October 2024
Delivered:
30 October 2024
Summary:
Administration of estates – removal of executrix in terms
of
s 54(1)
(a)
(v) of the
Administration of Estates Act 66 of
1965
as amended – lack of confidence and trust in executrix –
duties of Master – removal of executrix unwarranted.
___________________________________________________________________
ORDER
___________________________________________________________________
1.
The application is dismissed.
2.
Each party to pay his or her own costs.
___________________________________________________________________
JUDGMENT
___________________________________________________________
_______
[1]
This is an application brought in terms of
s 54(1)
(a)
(v) of
the
Administration of Estates Act 66 of 1965
, as amended, whereby the
applicant firstly, seeks the removal of the first respondent as the
executrix of the late C[…]
L[…] M[…] (deceased)
and secondly, that the second respondent be ordered to return her
letter of appointment to the
Master of the High Court, Bloemfontein
(Master) within a specified period. Thereafter, the Master appoint Ms
Madeline Peyper as
well as any such person as necessary as the
executors in the estate as soon as practically possible.
[2]
The applicant brought this application in her own capacity and also
as the legal guardian of the
minor children namely, P[…] A[…]
M[…] (P[...]), R[...] C[...] M[...] (R[...]) and N[...] J[...]
M[...] (N[...]).
The applicant is a Lesotho citizen and resident in
Lesotho. She was customarily married to L[...] M[...] (L[...]) in the
Kingdom
Lesotho. He is survived by his wife (the applicant) and their
two children, R[...] and N[...]. L[...] M[...] is the predeceased
son
of Dr C[...] L[...] M[...] who passed away on the 11 August 2020.
[3]
Dr C[...] L[...] M[...] (Dr M[...]) was married to Mr J[...] H[...]
M[...] and both stayed with
their child (as per birth certificate
P[...] from Home Affairs of South Africa) in Woodland Hills,
Bloemfontein. Unfortunately,
Dr M[...] and Mr M[...] were divorced
before her death. Following the passing of Dr M[...], the first
respondent was appointed
as the executrix to the estate after being
nominated as such by Dr M[...]’s brother or relative, L[...]
M[...], as the guardian
to P[...].
[3]
The first respondent made a liquidation and distribution account in
which she recognised P[...]
as Dr M[...]’s daughter and that
P[...] is entitled to 50% of her estate. The first respondent then
concluded that the remaining
50% of the inheritance would be divided
equally among L[...]’s two minor children, N[...] and R[...].
[4]
The applicant raised a complaint about the first respondent’s
appointment as the executrix
and stated further in her papers that
P[...] is her daughter with L[...], her late husband, and P[...] is
the granddaughter to
Dr M[...], like N[...] and R[...]. The three
children P[...], N[...] and R[...] must accordingly each get one
third of the inheritance.
[5]
Furthermore, the applicant contends that the first respondent was not
duly appointed as the executrix
of the estate because L[...] M[...]
was not authorised by the family to nominate the first respondent and
her signature that appears
on the documents was forged. In addition,
the allegation is levelled that the executrix is not managing the
estate affairs well
in that it is administered wrongly, and as
result, she ought to be removed on that basis. The applicant alleges
that she raised
the issue of the maladministration of the deceased
estate with the third respondent who failed to remove the first
respondent.
[6]
The first respondent’s riposte to these allegations and
accusations is to the effect that
there is no basis for applicant to
bring this application. Rather, the respondent contends that the
assertions are incorrect and
bad in law.
[7]
The function of the Master has been succinctly described by De
Villiers CJ as follows:
‘
The sole interest
which the Master has in the administration of estates is to protect
the interest of the creditors, heirs, legatees
and all other person
having any claim upon the estate.’
[1]
The Master is accordingly
tasked to carefully supervise the entire administration process to
ensue that the estate is administered
in accordance with the
provisions of the Act, other legislation related to the estate and,
where applicable, the common law. In
the exercise of its duties, the
Master is by virtue of the provisions of the Act given very extensive
powers of supervision, ranging
from the appointment and removal of
executors to decisions regarding the alienation of assets.
[8]
Section 54
of the Act deals with the removal of an executor from such
an office, and is set out in the Act as follows:
‘
(11) An executor
may at anytime be removed from his office–
(a)
by the Court–
. . .
(v) if for any
other reason the Court is satisfied that it is undesirable that
should act as an executor of the estate concerned;
. . .’
[9]
In
Gory
v Kolver No and Others
[2]
the court dealt with the application for the removal of the executor
in the deceased estate, where the heirs had lost all the trust,
faith
and confidence in the executor. The Constitutional Court stated the
following:
‘
In terms of
section 54(1)
(a)
(v) of the
Administration of Estates Act 66 of
1965
, an executor may at any time be removed from his office by the
Court if for any reason other than those set out in the rest of
section 54(1)
(a)
, “the Court is satisfied that it is
undesirable that he should act as executor of the estate concerned.”’
[10]
In
Die
Meester v Meyer en Andere
[3]
dealing with the approach to be followed by a court in exercising its
discretion under this section, the Court held as follows:
‘
Whatever the
position may be, under the common law and according to the
authorities under the old Administration of Estate Act 24of
1913 ,
the Court is now empowered in terms of section 54(1)
(a)
(v)
of the present
Administration of Estates Act, 66 of 1965
to
remove as executor from his office if it is undesirable that he
should act as executor of the concerned. The Court has
a discretion
and the predominating consideration remains the interest of the
estate and the beneficiaries.’
[4]
[11]
The Courts have been slow to interfere with the discretion of the
executor unless it is clear that the executor
abused his authority
and acted in serious contravention of the law. The primary duties of
the executor are succinctly set out by
Meyerowitz:
‘
The executor acts
upon his responsibility, but he is not free to deal with assets in
the manner he pleases. His position is a fiduciary
one and therefore
he must act not only in good faith but also legally. He must act in
terms of the law, which prescribes his duties
and the method of his
administration and makes him subject to the supervision of the Master
in regard to a number of matters’
[5]
The learned author
continues:
‘
An executor is not
a mere procurator or agent for the heirs but is legally vested with
the administration of the estate. A deceased
estate is an aggregate
assets and liabilities and the totality of rights, obligations and
powers of dealing therewith, vests in
the executor, so that he alone
can deal with them.’
[12] In
the circumstances of the current matter, the applicant complaint
about the first respondent’s appointment
as the executrix
saying her signature on annexure ‘EX9’ was forged. I do
not agree with her submission, as it is unfounded
and baseless and
was only referred to in the heads of argument.
[13]
The applicant also complained when she noticed that P[...] was
allotted 50% of the inheritance because she
was mentioned and
identified as Dr M[...]’s child. It appears that this became
the main issue between her and the first respondent
with regard to
the estate.
[14]
Upon perusal of the papers it becomes evident that the applicant
acquired information regarding the birth
of P[...] as her child, from
Lesotho. Amongst the documents produced is a Lesotho birth
certificate indicating the birth of P[...],
and is dated 8 June 2022
(FA5), together with a letter from the Ministry of Home Affairs
Lesotho
[AK1]
(Lesotho Home Affairs) dated 21 June 2022 (FA4) which is eighteen
months after Dr M[...]’s passing.
[15]
There is an abridged birth certificate from the
Department
of
Lesotho
Home Affairs
in South Africa
dated 17 July 2017 (FA8) which serves as proof that P[...] is Dr
M[...]’s child, and it was also the only proof available
to the
first respondent that P[...] is Dr M[...]’s child.
[16] It
is evident that when the applicant applied for P[...]’s birth
certificate from Lesotho Home Affairs,
the intention was to
strengthen her case against the first respondent. It is in that
period where she applied to the Department
of Home Affairs in South
Africa for the change of parenthood of P[...], and as per the
attorney’s minute dated 1 March 2023
(FA10), there is
no
reply
provided for her request. At this stage, P[...] is legally Dr
M[...]’s child.
[17]
The first respondent received information from the next of kin
information from L[...] M[...], which included
the names of Dr
M[...]’s children who are L[...] and P[...] (FA13).
Furthermore, R[...] and N[...] were listed as beneficiaries
as the
grandchildren of Dr M[...] and are to receive 50% of the inheritance.
[18]
L[...] M[...] did the honourable thing as he acted as P[...]’s
guardian and, in the interest of the
estate, facilitated the
appointment of the first respondent by providing the necessary
information of the estate. The first respondent
accepted the
information and proceeded to the Master for the appointment to be
processed. The first respondent application was
finalised on the on
10 November 2020 (FA1).
[19]
The first respondent made a first liquidation and distribution
account. She issued letters of demand and
issued summonses to collect
the monies owed and properties belonging to the estate by the
debtors, but it was on account of this
that differences between
herself and the applicant arose.
[20]
The third respondent was approached by the applicant with regard to
her perceived issues or problems and
her request about the first
respondent. The third respondent found no fault necessitating his
intervention with regards to how
the first respondent managed the
administration of the estate.
[21]
The applicant has not convinced this Court that the alleged
disagreement with the first respondent as well
as her loss of trust
and confidence in the first respondent serves as sufficient reasons
for the removal of the executrix. On basis
of the above authorities
and the evidence presented on behalf of the first respondent, it is
not desirable nor is it in the best
interest of the estate and the
heirs to remove the first respondent as the executrix of the estate.
[22]
There is no evidence on a balance of probabilities suggesting that
the current executrix must be replaced.
The application is found not
to have merits on all the grounds raised by the applicant.
[23]
In the circumstance the following orders are made:
1.
The application is dismissed.
2.
Each party to pay his or her own costs.
MAHLATSI
AJ
Appearances:
For
the Appellant:
Adv Mohale LW
Instructed
by:
PJ Mahlasela Attorneys
For
the Third to Fifth Respondents:
Adv Moeng LBJ
Instructed
by:
Pedzisai-Pion Attorneys
[1]
Wessels
v The Master of the High Court
9 SC 18
at 26.
[2]
Gory v
Kolver No and Others
[2006] ZACC 20; 2007 (4) SA 97 (CC).
[3]
Die
Meester v Meyer en Andere
[1975] 2 All SA 344 (T).
[4]
Ibid at 358, such being my own translation from the original
Afrikaans: ‘Hoe dit ook al sy onder die gemenereg en ingevolge
die gewysdes onder die ou Boedelwet, 24 van 1913, is die Hof nou
gemagtig kragtens art. 54(1)
(a)
(v)
van die huidige Boedelwet om ‘n eksekuteur te verwyder indien
dit onwenslik is dat hy as eksekuteur van die betrokke
boedel
optree. Die Hof het hier ‘n diskresie en myns insiens bly die
oorheersende oorweging die belange van die boedel
en van die
begunstigdes.’
[5]
Meyerowitz on
Administration
of Estates and their Taxation
2010 ed at 12:20.
[AK1]
I
assume this is the correct name. It appears as such on the Internet.