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
(WESTERN CAPE DIVISION, CAPE TOWN)
REPORTABLE
CASE NUMBER: 13157/2024
In the matter between
D[...] B[...] FIRST APPLICANT
and
ECKERT BRAND FIRST RESPONDENT
MASTER OF THE HIGH COURT,
CAPE TOWN SECOND RESPONDENT
JUDGMENT
Date of hearing: 13 September 2024
Date of judgment: 26 September 2024
BHOOPCHAND AJ:
1. When love of connubial bliss abates and separation morphs into anger of an
aged man scorned, living transmutes to hate, and death be no end for lust of reprisal
prolonged. As the candle of existence flickers and ends, he perpetuates the loathing
that knows no close from the depths of the earth below . The death wish is carried
through agency and the promise of handsome rewards.
“I direct my executor to, should the said D [...] T[...] put in a claim of
whatsoever nature against either my South African or my German assets,
resist those claims with all means necessary and to all extents possible . My
executor will be entitled to his reasonable fees for work related to the
opposition of any claims mentioned above.”
2. Thus ends the final paragraph of the last will of M[...] B[...], a man who found
solitude in the arms of the Applicant amidst the arid landscapes of the Klein Karoo, a
destination where he breathed his last breath far from his land of birth on 29 January
2024. The Applicant, D[...] B[...], married M[...] B[...] (“the deceased”) on 6 February
2006 at Oudtshoorn, South Africa. She has two sons from him. She is the third wife
of the deceased. The deceased had children from his other wives. The Applicant
instituted divorce proceedings a gainst the deceased on 24 January 2014 . T he
marriage was declared by court order in 2014 to be one in community of property .
The divorce was not finalised when the deceased died.
3. The First Respondent is the Executor of the joint estate. He was nominated
Executor testamentary and appointed by the Second Respondent on 23 May 2023 .
The Second Respondent plays no part in this application . For ease of reference, the
First Respondent shall be referred to as the Respondent and the Second
Respondent by the office title. The Respondent has been the deceased's attorney
since 2013. He acte d on behalf of the deceased in the divorce proceedings and
further related litigation instituted by and against the Applicant.
4. The Applicant seeks to remove the Respondent as the Executor in terms of
section 54(1) (a) (v) of the Administration of Estates Act, 66 of 1965 ( “the Act”). The
Applicant also relies belatedly on section 54(1)(a) (ii) of the Act. The Applicant seeks,
in addition, an order that the Respondent is precluded from receiving any
remuneration for services rendered whilst he was Executor, that the Second
Respondent appoint a new Executor, and costs on an attorney-client scale.
5. At the time of his marriage in 2006, the deceased owned several properties in
Germany and South Africa. His German portfolio included several units (“the units”)
in a mixed-use apartment and commercial block in Munich (“the German
properties”). The Applicant values those units at approximately R160m . The
deceased’s South African property interests included a one hundred per cent
member’s interest in a close corporation , Droogekraal Meulenrivier Farm CC, that
owned the farm Droogekraal (“the close corporation ”, “Droogekraal”, “the CC”) and
two freestanding properties , Ouplaas and the Oaktree guesthouse . Ouplaas has
been released to persons re nt-free, and Oaktree has been empty and is at risk of
illegal occupation.
6. The Applicant asserts that she was involved in acrimonious divorce litigation
with the deceased . The Applicant provided a list of twenty -four cases involving
litigation between her and the deceased since 2014. The deceased died after a
protracted illness with cancer . She avows that the Respondent assisted the
deceased in compiling and drafting his fin al will. The Respondent denies any
involvement in formulating the will, contending that his only role was translating the
document from German to English. Examining the deceased’s will is a good starting
point in adjudicating this application.
THE LAST WILL OF M[...] B[...]
7. The deceased nominated the Respondent as his Executo r. The will first deals
with the disposal of the deceased’s properties in South Africa . He directed that the
close corporation and the guesthouse be retained . The Executor was instructed to
determine the value of the Applicant’s half-share in these properties and raise funds
to pay her out. He further directed the Respondent to sell his share in Ouplaas and
pay the proceeds to his daughter , Sandra Martinez (“Sandra”) . The member’s
interest in the close corporation was bequeathed as follows: Sandra: 51%, Harald
B[...] (a son from the deceased’s first marriage) : 15%, J [...] W[...] B[...] (the first son
with the Applicant) : 15%, M[...] B[...] (M[...] Jnr, the second son with the Applicant ):
15%, Eckert Brand, the Respondent: 4%.
8. The Respondent was instructed to manage the member's interests of J [...]
and M[...] in the close corporation until they reached the age of 25. The Respondent
was to buy out the Applicant’s 50% share in the guesthouse and transfer the
property to GRG (Pty)Ltd (a company in which Sandra held the shareholding ). He
bequeathed the balance of his South African assets to Sandra. He excluded the
jewellery and the house content at Droogekraal from his will as he had already gifted
it to Sandra. He directed the Responden t to recover the jewellery he gave the
Applicant and bequeathed it to Sandra.
9. in paragraph 6.2, the deceased asserted that the Applicant ha d already
received more than her due share through t he lengthy and disgraceful divorce
proceedings. He believed any inheritance to his minor sons would not be in their best
interests as the Applicant’s greed would subsume them. Therefore, he chose not to
leave his assets to them, entrusting Sandra and the R espondent to safeguard their
financial interests.
10. The deceased then turned his attention to his German assets. He referred to
the six units registered in the Applicant’s name , which he considered part of the joint
estate. He stated that three were transferred to her for safekeeping for his sons, J[...]
and M[...] Jnr, and his daughter Sandra . He directed the Respondent to take all
necessary legal steps to enforce the transfer of the three units to his children if the
Applicant resisted. He further directed the Respondent to sell the three remaining
units and distribute the balance of his German assets equally between Sandra, J[...],
and M[...] Jnr.
11. The deceased finally directed the Respondent to ensure that the Applicant did
not benefit from his will at all and that she was totally disinherited. He states the
reasons for disinheriting he r. The Applicant promised to tend to him in his old age
when she announced her intention to divorce him but shamefully neglected to do so.
She made wrongful , malicious and false accusations of rape and assault against
him, which she was unable to substantiate. She refused , through her greed, to
accept settlement offers made in the divorce proceedings that were way beyond
what she was entitled to and protracted the procee dings to the extent that she stole
10 percent of his life and destroyed his wealth and his children’s inheritance. The will
ends as quoted in paragraph 1 of this judgment.
12. The vile directed at the Applicant in the deceased’s will is unpalatable. The
final clause would make it difficult for any Executor to ensure that the Applicant
received a fair and equitable half-share of the joint estate. The Executor is well taken
care of, and his fees for managing the interest of the minor son s in the German and
South African properties and his fees to resist the Applicant's half share in the joint
estate are ensured. It is difficult to believe that the Respondent , who was the
deceased’s lawyer for at least ten years, did not have a hand in drafting the will. It is
rather convenient that the will makes provision for the legal and further management
fees in the manner it does , as well as the inheritance of the 4% member’s interest in
the close corporation , all of which benefit the Respondent. It is apparent that an
attorney, if not the Respondent, drew up, or at least assisted in drawing up the will.
13. As for the totality of the property owned by the deceased in Germany, the
Applicant has expended considerable effort in challenging the deceased’s right to
alienate property allegedly owned by the joint estate before the divorce proceedings
began. The Applicant alleges that the dec eased, in concert with the Respondent,
transferred the bulk of the units in the Munich building in November 2013 to his son
from his first marriage, Hölger B[...] (“Hölger”). The Applicant declared her intention
to divorce the deceased about one month later.
14. The Applicant alleges that the transfer occurred when the marital relationship
between her and the deceased floundered and the deceased realised that they were
married in community of property. The deceased described the transfer as donations
over which he retained usufructuary rights to the rentals from the units. Further units
were transferred to the deceased’s other children as a part of their inheritance. The
Applicant has not challenged the transfer of those units . The Applicant has been
embroiled in protracted litigation with Hölger and h is wife, Ina. The decision in the
litigation involving Hölger’s wife ended unsuccessfully for the Applicant in February
2017. The App licant still favours her chances of prevailing against Hölger in the
German courts.
15. The Respondent has compiled a draft liquidation and distribution account
since being appointed Executor. The Respondent has approached the German
courts regarding the ongoing litigation between the Applicant and Hölger. He has
also applied unsuccessfully to intervene in the German litigation. The Respondent
has successfully interdicted the Applicant from interfering in the admi nistration of the
estate and the Applicant’s transfer of property from the estate. There has been a
regular exchange of correspondence on behalf of the Applicant and the Respondent ,
much of which is intemperate.
THE APPLICANT’S COMPLAINTS AGAINST THE RESPONDENT
16. The Applicant provided more than twenty reasons to support the removal of
the Respondent as the Executor of the joint estate. The facts supporting each reason
are even more numerous and often repeated. The Respondent’s answers to these
allegations are provided. Almost every fact is disputed , and there is little of common
cause between the parties. Motion proceedings are unsuitable to adjudicate the
scale and substance of these disputes , but the parties have chosen the application
route, and the Court shall endeavour to reach a decision.
The Last Will
17. The Applicant alleges that the Respondent assisted the deceased in drafting
the will. She cites the deceased’s protracted illness , his proficiency in English , the
attention to minute details in the will , and the inclusion of ‘vindictive and toxic ’
instructions as factors pointing to the Respondent's hand in drafting the testament
and implementing its provisions unwaveringly.
18. The Respondent denies preparing, recording, formulating, or having any other
input in the will. He merely translated it from German to English as the document in
the German language would not have sufficed in South Africa. Respondent asserts
elsewhere in his affidavit th at the deceased dictated the content of the will to him.
Respondent advised the deceased on the legalities of certain aspects. The
deceased insisted that they stay. He asserts that the will would have looked different
had he been the author. The Applicant has not sought to set it aside. It is not
unknown that ill feelings creep into wills when they are drafted. On acceptance of his
nomination as Executor, he made it c lear that he could only follow lawful directions
given by the Testator. He will not adhere to unlawful or ethically untenable
instructions.
19. The Applicant alleges that the deceased had been ill for a lengthy period
before his death and could not have drafted the will. Alternatively, he required the
Respondent’s assistance to do so. The Applicant alleges that the deceased had
been unwell and intermittently hospitalised since January 2022 . His state of health
deteriorated, necessitating longer periods of hospitalisation from August 2022. The
deceased’s mental faculties and physical abilities were impaired when the will was
drafted and finalised on 19 April 2022. The deceased could barely s peak when she
tried to communicate with him. Her sons informed her that the deceased was always
sleeping.
20. The Respondent denies knowledge of the deceased’s ill health. The deceased
did not disclose that he had cancer or that he was terminally ill. The Respondent
knew that the deceased suffered from a lung and liver issue and had to be treated in
hospital from time to time but was otherwise in good health un til shortly before his
death. The Respondent believed that the deceased died of old age. During April
2022, the deceased was well and of sound mind. The deceased regularly attended
his office and travelled by car from his farm in Oudtshoorn, driving the 18 0 km to
George and back. His mind was clear. The parties were litigating continuously. The
Respondent contends that had he or the deceased’s adult children felt that the
deceased was not of sound mind, they would not have allowed him to depose to
affidavits or provide instructions. They would have approached the court for the
appointment of a curator. In late February 2022, the deceased appeared in a criminal
matter instituted by the Applicant against him. The deceased made arrangements for
visits of his mi nor children as well as arranging their passports at the German
consulate.
21. The Applicant refers to the deceased’s proficiency in English. The deceased
could barely read, write, or communicate in this language. The deceased
communicated with the Respon dent in German. The Applicant deduces that the
Respondent prepared the document as it was in English . The deceased could not
have provided the minute and precise details incorporated in the will. The Applicant
contends that t he Respondent had a free hand to include what he preferred in the
testament.
22. The Respondent answered that the deceased’s grasp of English was
satisfactory and his communications understandable. He performed his farming
activities with English and Afrikaans -speaking people without difficulty. The
Respondent included an email dated 27 February 2022, which was copied on him by
the deceased. The deceased, the author, wrote in English to M[...] Jnr’s school. The
opening paragraph states the deceased took rather ill unexpectedly on 20 February
2022, his birthday. The deceased states that he obtained an appointment for a breast
operation on 1 March 2022. The doctors discovered more complications after doing
investigations. In her replying affidavit, the Applicant alleges (without foundation) that
Sandra must have written the letter to the minor’s school.
The litigation over the German properties
23. The Applicant alleges that the deceased, upon being advised that their
marriage was one in community of property and when she was on the brink of
initiating divorce proceedings , alienated most of the units in the Munich building to
Hölger. The transfer to Hölger was surreptitiously expedited whilst the deceased
secured usufructuary rights to use the properties and receive rental inco me from
them. The deceased did not seek her consent to alienate the units, which consent
she would have denied. In concert with Hölger, the deceased's actions aimed to
defraud her and denude her claims against the joint estate.
24. The Respondent admits that the Applicant intended to institute divorce
proceedings against the deceased at the end of 2013. The Respondent admits
further that he represented the deceased in the divorce matter. Th e deceased’s
instructions were that the parties had reconciled . The marriage relationship lasted
until December 2013, when the Applicant voluntarily left the common home . The
Applicant instituted divorce proceedings in January 2014.
25. The Respondent denies the remainder of the Applicant’s allegations regarding
the disposal of the units. He alleges , in turn, that since the deceased ceased to
practise as an Architect and property investor and began a world tour on his sailboat,
he stumbled from one liquidity crisis to another. The Respondent sold his properties
to pay his debts but simultaneously lost out on rental income. The deceased and the
Applicant lived above their means until the German banks declined to release
properties they held as security for the deceased’s debts. The Applicant did not
challenge the latter assertions.
26. The units were transferred to Hölger to restructure the deceased’s debts.
Hölger would pay off the dec eased’s debts and allow the deceased usufructuary
rights until his passing. The bond at one of the German banks amounted to
€1801 567.72. The Respondent alleges Hölger registered a new bon d over the
properties transferred to him on 7 June 2016. The deceased did not accept that his
marriage to the Applicant was in community of property . The Applicant had also
learnt belatedly in about 2014 that her marriage was in community of property when
the transfers had already occurred.
27. The title deeds of properties purchased in South Africa reflect that the parties
were married under German laws (out of community of property) . The deceased
accumulated his wealth by dealing with property. He did not get the Applicant’s
consent for their s ale. The deceased transferred six of the units to the Applicant in
October 2012. The Respondent reasoned that the deceased would not have
transferred the units to the Applicant, nor would the Applicant have accepted them
had they known they were married in community of property.
28. The deceased thus denied needing the Applicant ’s consent to alienate
properties. The transfer to Hölger benefitted the joint estate by reducing its debt. The
Respondent provided an Accountant’s letter dat ed 9 April 2019 to support the
allegation that the transfer to Hölger occurred as part of the debt restructuring. The
Accountant refers to Hölger’s sale of three residential units and a parking bay, the
proceeds of which were applied to finance the restructuring. 1 It is also unclear
whether the deceased or Hölger borrowed funds from two persons between April
2014 and March 2016 , totalling €622 628.98. From 2013 to 2015, Hölger advanced
€450 969.50 Euros to the deceased. The discounted value of the units as of
November 2013, when the transfer occurred, was approximately €5 731 000. Hölger
paid €358,000 for maintenance and improvements of the units in 2014 . The
Accountant factored in maintenance costs and improvements to reduce the net value
of the units transferred to €5 373 000.
29. Although the Respondent purports considerable knowledge regarding the
2013 transfer, he has not answered the allegation that the transfer of the units
occurred within four days when the normal time would be six weeks. The Applicant,
in reply, brushes off the Accountant’s report as hearsay yet includes numerous
annexures that fall within the same category. She also includes new material and
annexures in her replying affidavit.
30. The Applicant instituted proceedings in Munich to correct the land registers
against Hölger and Ina, who were reflected as titleholders and holders of preferential
rights over the transferred units. The Applicant alleges that she obtained an interim
injunction, a caveat, against the land register to ensure that Hölger could not alienate
the units. The Respondent denies knowledge of th is part of th e litigation between
Hölger and the Applicant, alleging that he played no role in it. He alleges that his role
was restricted to advising the deceased on matters raised in such proceedings,
which had a bearing on the divorce action. The Respondent then states he has been
advised that the Applicant's proceedings against Ina B[...] were unsuccessful.
Letter to the German judge
31. The Applicant deals with the Respondent ’s intervention in the German
litigation to support her contention that the Respondent continues in his role as
Executor as an agent of the deceased. The Applicant refers to the twenty-four cases
involving her and the deceased. The Applicant alleges that although the Respondent
1 It is unclear whether the sale involved the units transferred to Hölger in November 2013.
was not formally on record as the legal representative of the deceased in Munich, he
attempted to interfere in that litigation. She alleges that the litigation is still pending in
the Munich Courts. The Respondent has acted as the representative of and in the
interest of Hölger. The Respondent attempted to halt the litigation in Germany . If it
proceeded and concluded in her favour, it would expose both the deceased and
Hölger as fraud perpetrators against the joint estate.
32. The Applicant provides a copy of an unsolicited letter written by the
Respondent on 13 July 2023 to the Judge of the German Court deliberating the
matter between the Applicant and Hölger. The Respondent informed the Judge that
he had been appointed Executor of the joint estate. He states, "We have been made
aware that D [...] is pursuing a claim against Mr Hölger B[...] made in her personal
capacity for the transfer of certain properties that previously belonged to the joint
estate.”
33. The Respondent believed that the Applicant did not have legal standing to
pursue the mat ter in a German Court as her divorce proceedings were instituted in
South Africa. All issues relating to the divorce had to be pursued in South Africa. He
stated in the letter that since the deceased’s death, the Applicant had no legal
standing in either Germany or South Africa to pursue any claim relating to assets that
belong to the joint estate. Only the Executor may pursue such claims. If the Applicant
loses the litigation in Germany, an adverse costs order against her could form part of
a claim against the joint estate. He concluded by saying that he had to assess the
merits of the Applicant ’s claim. If the Court pursued the matter , he would have to
appoint lawyers in Germany to apply to postpone it, pending his decision on whether
to continue with the matter in the Applicant’s place. He states that the decision could
only be made once he assessed the estate's liquidity and the prospects of success.
34. The German Court rejected the submissions made by the Respondent. The
Applicant was found to have standing to raise the litigation in Germany. Hölger was
allegedly dissatisfied with the finding and appealed against it. The judgment was due
at the end of 2023.
35. Respondent subsequently applied without notice to her to join the litigation
against Hölger. The Applicant alleges that the Respondent wished to substitute the
Applicant in the proceedings. Once substituted , he intended to withdraw the
proceedings against Hölger. The Applicant asserts that the Respondent made the
application in the interest of and for the benefit of Hölger. The German Court
subsequently found on 30 November 2023 that the Respondent could not participate
in the proce edings in her place as Plaintiff and withdraw the action. The Applicant’s
legal representatives had argued that the powers of the Executor may not extend
further than the powers of the testator. If the deceased could not circumvent her
consent and withdraw the action, the Executor could not succeed.
36. The Respondent answered the allegations concerning his intervention in
Germany after he was appointed E xecutor. He denies that he was the agent of the
deceased. It is a common and good practice for the deceased to retain his services
in his divorce action and ancillary matters. He advised the deceased on several other
matters that had no bearing on the divorce.
37. The Respondent asserts that the Applicant's refusal to be reasonable
protracted the German matters. The Applicant refused to consider the explanation
relating to the transaction with Hölger. The German court found against her in her
litigation against Ina . The finding was confirmed on appeal. The Respondent
attached a copy of the judgment to the answering affidavit. The Respondent was
unaware of any litigation pending in Munich that involved the deceased. He could not
have swayed the courts in any way , nor did he seek to influence the German courts
against the Applicant in her litigation against Hölger but sought to intervene in his
capacity as Executor.
38. He addressed the letter to the Judge as Executor. He did not dee m it
inappropriate to address the Court in Germany. The continuance of litigation has a
substantial impact on the joint estate on the issue of costs. He must safeguard the
estate's assets for the heirs. As far as he could establish, the Applicant seeks an
order that the properties transferred to Hölger are to be re -transferred to the
deceased and thus to the deceased estate. It means that the joint estate is directly
involved in the litigation . The Court found that Hölger had not been aware of any
attempt to defraud the joint estate , and any further liti gation against Hölger would
suffer the same fate. The Executor is the only person with locus standii to sue and be
sued on behalf of the joint estate.
39. The Respondent denies that the letter was written at the request of Hölger but
rather out of concern for the estate’s assets and out of his obligation to take over the
estate in its entirety. After reading the papers, he had formed the view that the
continued litigation against Hölger is without merit , and the likelihood of success is
negligible. A credit application by the deceased in July 2013 for €40,000, of which
Hölger stood surety, came to his attention. Hölger’s claim against the estate is
substantial. It is worthwhile considering the withdrawal of the matter on condition that
Hölger pays his costs and withdraws his claim against the estate. It could not be
done without a substantial quid pro quo on the Applicant’s part.
40. The Respondent confirms that he asked to be joined as a party to the
proceedings in Germany as he was intent on withdrawing the case against Hölger for
the reasons he provided in the preceding paragraph, i.e., withdraw the case, and
Hölger will withdraw his claim against the estate. The Respondent reminds the
Applicant that she is not the only one with an interest in the outcome of the litigation .
He cannot act as the Applicant would have him do. He is duty-bound to also look
after the interests of the other heirs.
41. The Respondent denies that he cannot be impartial in assessing the claims
against the estate. He states that upon proper consideration of the judgment in
German courts2 Hölger was found not to have acted fraudulently . He acquired the
subject's properties in good faith. The Court found that Hölger did not know that the
Applicant and the deceased were married in community of property. He has no
reason to believe another German Court will come to a different finding.
42. In reply, the Applicant alleged that her case against Ina B[...] had limited
effect3 and d id not disturb the ongoing proceedings against Hölger.4 Applicant
2 The judgment was delivered on 5 July 2019
3 It related to the Hölger’s gift of one of the units to his wife in 2014
expressed surprise that the Respondent was unaware of any litigation that the
deceased had pending in Munich, and that he could not have swayed the Courts.5
43. Respondent sought an interdict to prevent her from interfering in the estate.
She had begun the transfer of three of the six units registered in her name to the
designated beneficiaries when the Respondent initiated the proceedings. The
Respondent sought to use her transfer of the units to his advantage in his answer yet
tried to bl ock her when she attempted to do so. The Respondent needs her
cooperation, but he has not sought it as yet. She alleges that properties belonging to
the joint estate in Plettenberg Bay were sold without the Applicant’s knowledge.
44. Respondent decided sometime in September 2023 not to pursue the litigation
against Hölger in Germany.
The Respondent's bias towards Hölger
45. The Applicant refers to the litigation instituted on behalf of the deceased on 8
December 2022, six weeks before the deceased's passing. The deceased applied
for a declaratory order to the effect that the transfer of units to Hölger occurred in the
normal course of business as envisaged in section 15(6) of the Matrimonial Property
Act 88 of 1984 and that the transfer is ratified due to the Applicant’s refusal to
consent to it.
46. The Applicant states that the supporting affidavit in the application for
declaratory orders was deposed to on 7 December 2022, when the deceased was
incapable of forming opinions or understanding the proceedings . The Respondent
was the deceased’s attorney. The Applicant alleges (without proof) that the initiative
behind the application could have only emanated from the Respondent to protect
Hölger's interests. The Respondent would have known that the deceased was
terminally ill and his passing imminent. The relief sought, if granted, would have had
a lasting and permanent benefit for Hölger. The Applicant accuses the Respondent
4 After reading the German judgment, the Court does not share the Applicant’s optimism regarding her
case against Hölger.
5 The judgment delivered in Germany was between the Applicant and Ina B[…].
of conjuring up ways to scupper her claims in the interest of Hölger. The Respondent
launched this application when he was already aware that he had been nominated
as the Executor of the estate and that he intended to accept the nomination when
required. His inclination to favour Hölger was a preconceived and deliberate
decision.
47. Respondent's response to a letter written on behalf of the Applicant on 9
March 2023 6 allegedly threatened the Applicant if she continued her legal
proceedings against Hölger. The Respondent asserted that he would join any
proceedings that she would start against one K önigseder7 in Germany, and would
interdict her locally from interfering in the administration of the estate and lay criminal
charges against her.
48. The Respondent admits t hat the application founded on the Matrimonial
Property Act was brought at the instance of the deceased. The deceased was able to
understand the content of the application and gave full and proper instructions. The
deceased signed the founding affidavit before an independent Commissioner of
Oaths.8 The deceased wished to settle the contentious issues relating to the divorce.
The resolution of the outstanding matters was slow , largely due to the Applicant’s
repeated requests for postponements. He admits to advising the deceased as an
attorney is obliged to do.
49. The Respondent denied that the initiative for the application was his. Given
the longstanding dispute between the parties, he saw no reason why t he deceased
should not have pursued the application . He denies conjuring up ways to favour the
interests of Hölger. The deceased’s imminent death was not foreseeable , and the
suggestion that he acted in that knowledge w as ludicrous . The Applicant did not
make defamatory allegations when the application was initiated. The Respondent
had addressed why he believed the litigation against Hölger should be withdrawn.
He admits to threatening the Applicant to cease litigating against Königseder as the
6 Many of the Respondent’s letters bore an incorrect date. However, the body of the letter referred to
the date of the correspondence the letter addressed.
7 Königseder collected the rentals from the German units
8 The Applicant failed to include the page with the stamp of the Commissioner of Oaths
Applicant sought to have the rental income paid to her. He made the threat and had
to follow up on it with success in this Court.
50. In her reply, Applicant alleges that the interdictory proceedings were decided
on the Respondent’s version. She had no time to answer the Respondent's
allegations comprehensively.
The rental income from the German units
51. The Applicant’s attorney inquired about the rental in come from the German
units and the South African property , as none had been paid into the estate account
or towards her and the boy's maintenance. The Respondent appointed Hölger to
collect the rentals from the German units and to keep them in a separate account
pending the receipt of his letters of executorship. The Respondent indicated he
would ask Hölger to transfer the funds to him once his appointment as Executor was
confirmed.
52. In response to a letter dated 24 August 2023 , the Respondent confirms that
he directed the managing agent of the immovable property in Germany to pay the
rental into a special account pending his appointment. The funds had been collected
and were transferred to the estate account. The printout provided by the Respondent
reflected that the first deposit in the account was made on 21 August 2023, three
months after his appointment , due to the necessary legal processes and
administrative procedures . The first two deposits were made from an account
carrying Hölger’s name. The Respondent could not present any accounting
explaining the inward and outward movement of funds from the special account of
Hölger.
53. In an email dated 22 February 2023 ( three weeks after the deceased's
demise), the Respondent assured the Applicant’s attorney that he had already
arranged for the rent to be paid into a safe account. The Applicant alleges (without
proof) that the amounts paid over by Hölger reflected marginal portions of the rental
income generated by the properties. The Respondent has not receiv ed any
accounting for the rentals paid over by Hölger.
54. On 12 January 2024, the Applicant’s attorneys received a letter from the
Respondent informing them that he is not in a position to pay the month’s instalment
as there are insufficient funds in the estate account. The rental income had been
withheld for the mandated maintenance of the units. The Applicant contends that
how the Respondent administered the estate’s finances reflects his reluctance to
discharge his duties properly, transparently, objectively, and neutrally. It also reflects
on the Respondent’s leanings towards Hölger.
55. The Respondent alleged that the Applicant had made no claims against the
estate in which he could disfavour her. He repeated that he had explained why he
believed the matters against Hölger and his wife should be withdrawn. The
Respondent documentary proof which accounted for the rentals. He contended that
his impartiality as Executor speaks for itself and that the alleged fraud was not
substantiated with concrete evidence.
56. Hölger collected the rentals before the deceased passed on and paid them
into the deceased’s account. It was natural to ask Hölger to continue collecting the
rentals and account for them once he could accept the funds. He had no reason to
believe that Hölger acted fraudulently. He confirms that the managing agent was
directed to pay over the funds into a special account managed by Hölger. The letters
of executorship were issued on 23 May 2023 but only delivered to his office towards
the end of July. He opened the estate account o n 3 August 2023 . Hölger instructed
his bankers to release the accumulated rentals . The Reserve Bank confirmed that
the funds had arrived on the 9 August 2023. The funds were paid into the estate
account on 21 August 2023. The Respondent told the Applicant that the full amount
was accounted for. The Applicant accepted this without seeking proof thereof.
57. Respondent claims that he always explained why the special account held by
Hölger was used. The reconciliation of rentals shows that Hölger paid €660.23 more
than was due to the estate. Respondent repeats that Hölger was not complicit in any
fraud against the Applicant. The rental income withheld was used to pay for the
mandated maintenance of the public open spaces of the building. The Body
Corporate authorised the maintenance in December 2023. The document setting out
the mandated payments was sent to the Applicant’s at torney. The Applicant would
have been aware of it. He arranged with the managing agent to use the rental s to
pay for the maintenance until it was fully paid and then to resume payment to the
estate account. This was a practical arrangement to save money on fluctuations in
the exchange rate and time on forex transfers and was in the estate's best interest.
58. The Respondent asserts that he has requested the co operation of the
Applicant more than once, but she has not responded to date. He has been
stonewalled and, therefore, unable to make progress with the finalisation of the
estate, which has been a source of frustration and hindrance in its administration.
59. In reply, the Applicant states that her litigation against Hölger is premised
upon fraudulent conduct on his part. The Respondent denied that Hölger acted
fraudulently, leading to significant t ension and disagreement in the legal
proceedings. The Applicant denies that she never required accounting for the rentals
from the Respondent . He responded that since the rental properties fell within the
deceased estate, she was not entitled to demand any particulars of their income. It
was also alleged that her seeking such information constitutes interference in estate
administration. The Respondent obtained an order to prevent her from directly or
indirectly interfering with the administration of the estate. The Applicant refers to the
Respondent's reaction to her intention to institute proceedings against Königseder .
She alleges that she had to institute legal proceedings in Germany to get information
concerning the accounting of such funds. Applicant disbelieves the report accounting
for the rentals paid (without countervailing evidence) and raises the issue of the
rentals collected before February 2023.
60. The Applicant challenges the contention of the Respondent that the rentals
were withheld to pay for maintenance and improvements. She alleges (without proof)
that there is an ongoing specific fund to cater to extraordinary costs and expenses
sought for mandated maintenance that could be used for other purposes. The
document sent to her allegedly explaining the maintenance indicated that her
amount of €130 000 (R2 548 000) was required to contribute to the purported
maintenance expenditure. The Applicant brushes off the claimed amount as absurd
and unjustifiable. The Applicant contends that the payment of body corporate
expenses is not a financial market where upfront excessive charges could be
demanded from property owners to hedge the body corporate against fluctuations in
the exchange rate.
The cost of Hölger’s litigation in Germany is paid from the joint estate’s
resources.
61. The Applicant alleges that the joint estate pays Hölger's legal expenses. The
Applicant relies upon an alleged WhatsApp message the deceased sent to her
objecting to her ongoing litigation against Hölger and the legal costs he had to pay
Hölger’s attorneys to defend the same. The Respondent denies the allegation. He
expresses surprise that the deceased paid for Hölger’s attorneys in Germany to
defend a matter against himself. The Res pondent did not manage the deceased’s
financial affairs. The Respondent asserts that nothing was deducted from the rentals
to cover legal or other expenses.
The Respondent’ s intention to admit the claim of Hölger and effectively
condone the transfer of the German units
62. The Applicant referred to Hölger's claim of €1 141 882 (approximately R23
million) against the estate. She asserts that t he Respondent considered it a valid
claim as the deceased signed off on it on 27 June 2022. The Respondent could not
say how the claim arose but was willing to trade off the settlement of the claim if the
Applicant withdrew her litigation against Hölger. Applicant alleg es that this is an
attempt by the Respondent to eliminate her litigation against Hölger and to exonerate
him from any liability to her or the joint estate. Hölger’s liability far exceeds his claim.
The Applicant alleges (without proof) that the Respondent would vicariously do his
client Hölger a substantial financial favour by doing so . The Applicant submits that
the Respondent’s conduct is egregiously unconscionable and unacceptable. It
demonstrates an inability of substantial proportions to discharge the duties of an
Executor in a transparently neutral and unbiased manner.
63. Respondent admits that Hölger filed a €1 141 882 claim against the estate. 9
The Respondent refers to the letter in which he informed the Applic ant of it. In the
letter, he expanded further on the 2019 judgment between the Applicant and Ina
B[...], who decided against the Applicant. He referred to the unsuccessful appeal ,
suggesting that it was unlikely that another German Court would come to a different
conclusion (on certain material facts common with Applicant’s case against Hölger).
The Respondent denies any agenda to eliminate the Applicant’s litigation in
Germany.
64. The Respondent asserts that there is nothing egregiously unconsc ionable or
unacceptable in resolving a dispute that has been ongoing since 2014, and the
chances are negligible. He is not prepared to tie up the estate by waiting for the
Applicant's vexatious ongoing litigation to end. He reiterates that he has no special
relationship with Hölger and is not acting as his agent in any way or form. He is
concerned about the cost of litigation in Germany and its impact on the joint estate.
The South African properties
65. The South African portfolio of properties included the farm at Droogekraal in
Oudtshoorn. Drogekraal was registered as an asset of the close corporation in which
the deceased held a one hundred per cent member’s interest. The deceased lived
and farmed at D roogekraal till his death. The deceased bequeathed four percent of
the member’s interest in the close corporation to the Respondent. The Applicant
alleges that the joint estate holds a R35 million loan account against the closed
corporation. The Applicant accused the Respondent of selling Droogekraal's assets
and refusing to disclose the sales proceeds.
66. The other South African properties of relevance include Ouplaas and the Oak
Tree guesthouse. The Applicant states that Ouplaas had been let out rent-free to a
couple, and there is no rental income from the guesthouse, which runs the risk of
illegal invasion. A loan account of R5.8 million was also made available to Sandra,
9 This emerges from the content of a letter written by the Respondent to the Applicant’s attorney. The
letter is incorrectly dated 17 February 2023, but is a reply to a letter dated 13 September 2023
and the Respondent is allegedly reluctant to act on the loan. He is also accused of
unduly favouring Sandra in the administration of the joint estate.
67. The Applicant moved this Court in 2016 to interdict the deceased from dealing
with the assets of the joint estate , including Droogekraal, without her e xpress and
written consent. After the order was obtained in January 2017, Applicant alleges that
the Respondent disregarded the order by assisting the deceased in selling a
substantial number of assets , mostly trucks and farm equipment. The Applicant
alleges that the proceeds of the sale were paid into an account at the Respondent’s
attorney firm and then went to the deceased. The Respondent assisted in translating
the contract for the sale of a Unimog vehicle. The Respondent assisted the
deceased in alienating assets over R250 000.
68. In the application for final interdictory relief granted by this Court on 27
February 2017, reference is made to the Buffelsbosch Rivier farm, Droogekraal, a
residential property situated at 4 […] V[…] d[…] R[…] Street, Oudtshoorn, and
property in K […] Street, George The order interdicted the deceased from dealing
with the assets of the joint estate in any manner without the express and written
consent of the Applicant. The order applied with equal force to the properties listed
above and included five Toorenvliet paintings. (Toorenvliet was a Dutch golden age
painter who survived into early 1917. His paintings are sought and displayed in major
art galleries internationally). The order was to remain in place pending the finalisation
of the divorce proceedings.
69. The Respondent accuses the Applicant of misreading the order. The
Respondent, in answer, alleges that the order granted by this Court in February 2017
did not prevent the deceased from trading and farming , as this was part of his
livelihood. Assets not in use or beyond repair were sold and replaced with better
ones. Assets higher in value were purchased than those sold. The Unimog was sold
as it was deteriorating. The Respondent admits to translating documentation relating
to the specifications of the vehicle. No funds from those sales during the deceased’s
lifetime could be paid into the deceased estate account. The proceeds would be paid
into the account of the close corporation. Respondent denies that he assisted the
deceased in acting contrary to a court order. The Respondent denies that the
interdict constrained the deceased from dealing with the assets of the joint estate
without the express or written consent of the Applicant. He disagrees that the order
was to operate until the final division of the estate.
70. In reply, the Applicant refers to the liquidation and distribution account and
notes no reference to any transactions she recorded in her founding affidavit. There
is also no indication of how the Respondent deals with the sales of such assets.
Applicant correctly states that the court order prohibited any sales or transactions
involving the assets of the close corporation without her express or written consent.
71. The Applicant refers to the loan account claim of approximately R35 million
against the close corporation. The Respondent confirmed the amount. The
Respondent failed to indicate how he intended to deal with the loan account despite
her attorneys insisting that he do so. Her attorneys repeatedly reminded the
Respondent that the four percent member’s interest in the close corporation
bequeathed to him by the deceased represented a major conflict of interest. In
September 2023, the Respondent indicated he did not know the final figures relating
to the close corporation. The Respondent denied that the four percent bequest had
any bearing on his decision -making process or that there was a conflict of interest .
The Applicant alleged that the Respondent feigned surprise at the bequest made to
him.
72. The Applicant suggests the Respondent is aware that attaching a lower value
to the loan account would yield a higher value to the four percent held by the
Respondent. The Applicant is concerned about the Respondent’s inaction in
enforcing the claim. The glaring conflict of interest is evident. In March 2024, the
Respondent stated that he had not considered the loan as he did not know whether it
would be necessary to liquidate the close corporation. The Applicant contends that
independent of the questi on of whether the Respondent failed to deal with the loan
account, the mere fact that he is a beneficiary in the estate should, in the
circumstances, disqualify him from being the Executor of the estate.
73. In his answer, the Respondent denies the allegations relating to the loan
account and his alleged conflict of interest. He asserts it is a ‘blatant lie’; he did not
indicate how he intended to deal with the loan account. He clarified his position in
correspondence dated 2 October 2023 directed at the Applicant. (The Respondent’s
position concerning the loan account is briefly stated . He reiterated that the intent is
to recover the loan account as far as it is legally recoverable). The Respondent
alleges that he did not intend to place the close corporation into liquidation as he
wanted to discuss a distribution plan without selling everything. The plan would
enable the Applicant to get fifty percent of the estate's value and the heirs the
balance. The financial stat ements indicated that the loan account amounts to R35
million, substantially more than that estimated by the Applicant.
74. The Respondent alleged that he could not be forced to take steps for the
recovery of the loan until he had a distribution plan for all of the estate's assets.
Droogekraal owns fixed assets alone. He is not reluctant to enforce the claim. He
needs the Applicant’s cooperation to formulate the distribution plan , which has,
despite numerous requests, been completely lacking . Respondent repeats that the
draft liquidation and distribution account was a guideline for discussions he had with
Applicant’s Counsel. He has no issue in liquidating Droogekraal if required. The
deceased wished that Droogekraal would not be sold and that Sandra would
continue farming there. He has tried to establish whether he could compensate the
Applicant for her share through other available assets and funds.
75. The Respondent denies any conflict of interest. He states that he is unaware
of any legal hindrance to his being a beneficiary of the estate. He contends that t he
benefit he stands to receive is probably worth nothing.
76. The Applicant alleges that the Respondent paid rental income from the
Ouplaas farm, a property owned by Droogekraal, into his account. The Respondent
did the same with the rental income from the Oak Tree guesthouse. No rental
payments from the Oak Tree guesthouse are reflected in the estate account. The
Respondent answered these allegations by stating that he has received no rental
income from either property. The deceased entered into an agreement with a couple
to live rent-free in the residence of Ouplaas on the condition that the residence be
renovated. He is satisfied that the renovations are taking place as envisaged and will
negotiate a market-related rental with the tenants once the two years have run their
course. The Oak Tree guesthouse was rented , but the tenant failed to pay his rent
even before the deceased passed away. The tenant was substantially in arrears and
has been evicted from the property. The property is in a total state of neglect. He
requested the Applicant to agree to its sale . The heir to the property , Sandra , has
agreed to its sale. The Applicant did not respond. In reply, the Applicant states that
the arrangement made with the coupe living rent -free at Ouplaas was not made with
her consent. No particulars regarding the renovations or the progress thereof hav e
been provided to her. The close corporation pays for the electricity and water usage
at Ouplaas, an unnecessary expense which the Respondent ignores.
77. The Applicant refers to a further loan account of R5.8 million to benefit Sandra
in the GRG company and the Respondent’s alleged reluctance to address the loan.
He is also accused of unduly favouring Sandra in the administration of the joint
estate. As the bulk of the allegations a gainst Sandra were canvassed for the first
time in the replying affidavit and the heads of argument filed on behalf of the
Applicant, the Court declined to consider them to adjudicate this application.
The maintenance of the applicant and her sons
78. Applicant was informed on 12 January 2024 that the Respondent could not
pay her maintenance due to insufficient funds in the estate . The situation had arisen
from the diversion of the rental income to pay for the mandated maintenance of the
German units. The Respondent ha d failed to pay her long overdue maintenance
claim against the joint estate of R1 415 148.19
79. The Respondent assert ed that a portion of the monthly rental fro m the
German properties would be utilised to pay for the arrear maintenance. The estate
was not in a financial position to immediately pay the Applicant’s arrear maintenance
claim as there was insufficient money. He could not liquidate assets to obtain cash
flow as the Applicant refused to cooperate with him. He had to attend to a competing
claim for maintenance from the deceased’s second wife, Maria B[...], whose
payments were also in arrears.
80. He denies that he refused t o make payment of the Applicant’s arrear
maintenance. An agreement was reached in court on how the maintenance would be
paid. The agreement was honoured to the point where the estate ran out of money
because the rent was used to pay for the maintenance of the public spaces in the
building in Germany
Respondent has not fulfilled his duties as executor.
81. The Applicant repeatedly reminded the Respondent that he administers a joint
estate and must protect her half-share of the estate. She accuses the Respondent of
administering the estate in an unprofessional, unobjective, partial and secretive
manner. The Applicant accuses the Respondent of benefitting Hölger, a third party to
the estate, to the detriment of the other parties having an interest in the funds and
assets of the estate. The Respondent favours Sandra by ensuring that he conceals
her acquisition of properties acquired with the funds of the joint estate.
82. The Respondent asserts in reply that he acted professionally and in
compliance with the Act. Respondent denied all grounds raised by the Applicant for
his removal as the Executor and provided several reasons for his continuation . The
Applicant has taken time to complete her side of the inventory and had to be
requested to supply it several times, and on receipt thereof, it was incomplete. The
Applicant had tried to convince the rental agent to pay the rental income of the
German properties to her ba sed on her alleging that the properties are registered in
her name, although knowing that they belong to the joint estate as does the income
derived from them. The Applicant ha d caused the rental agent to resign, making the
rent collection infinitely more difficult.
83. The Applicant has initiated litigation regarding payment of arrear maintenance
to her, causing the estate to expend legal costs, which could have been easily saved
had she communicated with him. Applicant litigates against a third party in her name
in Germany to try and recover immovable assets for the estate that were transferred
to the third party by the deceased without care about the cost implications this may
have for the estate and without consulting with him, knowing that he did not support
her action. The applicant has not filed her alleged claim against the estate despite
being requested to do so and the time for filing claims having lapsed long ago. The
applicant was requested to agree to the sale of a property of the estate in
Oudtshoorn, which stands empty and is at risk of being illegally invaded. The
Applicant has not responded to or acknowledged the request and has failed to
engage with him regarding the sale.
84. Although the estate's value is substantial, i t does not exceed the amount of
R130 million . A valuator assessed the value of the German properties to be
approximately R67m and the South African properties to be approximately R19m.
The Applicant was offered approximately R40m during the divorce proceed ings to
settle her claim. The Respondent believes that the value of the assets transferred to
Hölger should be excluded, leaving the approximate worth of the estate at R46m.
The loan account claim substantially exceeds the value of the CC’s assets. It need s
to be considered whether the biggest part of the loan account has not prescribed,
and is therefore not recoverable from the estate.
85. The Respondent declares that he does not intend to institute further
applications in Germany. He was denied participation in the litigation between the
Applicant and Hölger and did not intend to exercise that option again. He agrees that
the legal costs in Germany are excessive. He believes that any other Executor will
encounter the same problems he did and find it difficult to manage the estate. He
has the advantage of being fluent in the German language. It is not only the
Applicant but also the joint estate that has limited funds to meet the costs.
86. In reply, the Applicant contends that w hen she attempted to provide input in
the administration of the joint estate by querying aspects of the administration, her
attempts were branded as unlawful and an interference with the duties of the
Respondent as Executor. The Respondent interdicted and restrained her from
providing such input. Applicant alleges that the Respondent blatantly disclosed the
amount offered to her in settlement negotiations, i.e., the R40 million. She asserts an
ethical and common law obligation prohibiting such disclosure. The Applicant waived
her privilege and attached DB18, a copy of the draft settlement agreement of which
the relevant parts were proposals insisted upon by the Respondent as representative
of Hölger, Ina, and Sandra.
87. She was unaware that her claims had not been filed against the estate. She
has dealt with the consent to sell certain assets. She is prohibited from interfering
when she wants to cooperate with the Respondent. She accuses the Respon dent of
being ignorant of the provisions of the Close Corporation Act as it applies to the
transfer of a deceased member’s interest. She accuses the Respondent of
contradicting himself. She refers to the interdict application where he accused her of
transferring assets from the estate . The Applicant had commenced the process of
transferring three of the units to the designated heirs. She refers to the claim of
Hölger being signed off by the deceased before his demise. She is concerned that
the Respondent intends to pay off the son prematurely. She is concerned that the
Respondent will pay Hölger and give him approval to transfer the units in his name
88. The Responden t states that she is litigating against a ‘third party’ , finding it
difficult to even mention the third party, Hölger, by name. She repeats her allegation
that the son is the Respondent's client. The Respondent represented the son and his
wife in settlemen t negotiations in 2019 (the Respondent did not disclose this,
alleging that he had no link with the son). The Respondent has attempted to conceal
where his real and true allegiances lie.
DRAFT LIQUIDATION AND DISTRIBUTION ACCOUNT
89. The deceased applied for a temporary residence permit in 2003. He was
required to confirm the value of his net worth. In a letter dated 12 August 2003, his
net worth was approximately €5.7 million (The Rand Euro exchange rate for 12
August 2003 was 8.3126) , translating at that time to a rand value of approximately
R47 381 820. The calculation was based on the value of thirty-one residential units,
five commercial units, one basement, eleven parking bays, and a bicycle parking
space in a building complex in Munich, Germany. The deceased’s annual income in
2003 amounted to approximately R800 000 from the properties and R66 500 from a
private pension.
90. The Applicant acquired a valuation of the German pro perties during the
litigation. It was dated 7 December 2017 and obtained in response to the court -
ordered valuation. The building , which holds the units, includes 8 garages, a fitness
centre, workshops and offices, practice shops, other offices, stores with showrooms,
and 13 flats with cellars. The Court valuation was for approximately R30 779 596.
The valuation obtained by the Applicant amounted to R55 348 568. The usufruct
value of the units enjoyed by the deceased through rentals amounted to R3 137 491
(The Rand/Euro exchange rate on 7 December was 16,0897).
91. The undated draft liquidation and distribution account compiled by the
Respondent was attached to the answering affidavit. The value of the units in the
Munich building was reflected as R4 500 000. The Applicant’s three units would
amount to a total value of R13 500 000. Two erven, one in George and another in
Oudtshoorn, were valued at R1 100 000 and R1 200 000. The deceased’s
membership in the close corporation owning Droogekraal was valued at
R15 000 000. Rental income was reflected as R1 516 679.22 for the German
properties and none for the South African properties. A loan account of R6 000 000
was shown against the close corporation. The value of the total assets amounted to
R52 547 785.20.
92. The liabilities included the Executor’s remuneration of 3.5% of the value of the
assets, amounting to R1 839 172.48. The son Harald claimed R122 164.93, Maria
B[...], approximately R8 000 000 largely for past and future maintenance, Hölger
B[...], R23 328 649.26, Claassen Law, R1 050 000. The Executor’s law firm claimed
R301 252.96. A law firm, Taylor Wessing , claimed R478 816 against the estate for
litigation in Germany. The special levy for the units is shown as R212 610. The total
liabilities amount ed to R36 243 442.42, leaving R16 304 342.78 for distribution.
Respondent emphasised that the account was in draft form.
93. Section 35 of the Act requires an Exe cutor to submit an account of the
liquidation and distribution of the estate within six months after letters of executorship
have been granted to him or such further period as the Master may in any case
allow. The draft account was prepared for a meeting b etween the Respondent and
the Applicant ’s legal representatives. The Respondent did not prepare a timeous
account as prescribed by the Act . There is no indication that any liquidation and
distribution account has been submitted to the Master or that the Respondent has
sought an extension to submit the account. Failure to submit an account timeously
carries a penalty against the Executor costs de bonis propriis.
94. The Executor of a joint estate must deal with the indivisible estate, including
the surviving spouse’s legal entitlement to it . The surviving spouse in the position of
the Applicant has a right to claim a fifty percent share of the estate once the Executor
has finalised the estate.
THE APPLICABLE LAW
95. Each spouse's assets before entering into a marriage in community of
property, as well as those accumulated during the marriage, form part of an
indivisible joint estate. Upon the death of a spouse married in community of property,
the whole joint estate falls under the administration of the deceased’s Executor.
96. Chapter 3 of the Matrimonial Property Act 88 of 1984 (“the Matrimonial
Property Act”) governs property matters in marriages in community of property.
Section 15(2) of the Matrimonial Property Act prohibits, among others, the alienation
of any real right in an immovable property ,10and artworks and jewellery held as
investments11,which form part of the joint estate without the other spouse's written
consent. Without the other spouse's consent, a spouse shall not alienate, among
others, furniture or other effects forming part of the common household.12
The duties of an Executor
97. An executor is legally vested with the administration of the estate. This means
that the deceased estate's assets, liabilities, rights, obligations, and powers vest in
the Executor, and he alone can deal with them. The job of an Executor cannot
equate to that of an agent , as he has no principal to give him instructions .13 An
Executor is not free to deal with the assets of an estate in any manner he pleases.
10 s15(2)(a) of the Matrimonial Property Act
11 s15(2)(d) of the Matrimonial Property Act
12 s15(3)9a) of the Matrimonial Property Act
13 Van Den Bergh v Coetzee 2001(4) SA 93(T)
His position is fiduciary; therefore, he must act legally and in good faith .14 A party
instituting litigation against an estate has to join the Executor as a party to the
litigation.15 No person except the Executor can institute proceedings on behalf of the
estate.16 When a legal process is issued during the deceased’s lifetime, the executor
must be substituted on the record when appointed.17 The Executor who takes control
of a joint estate is the only person with legal standing to sue o n behalf of the estate
or be sued.18
98. The duties of an Executor relevant to this application shall be briefly
considered. The Executor must take the deceased estate into his custody or under
his control immediately after the grant of letters of executorship. The Executor must
provide for the subsistence of the deceased ’s family or household. 19The Executor
must determine the solvency of the estate.20 If an Executor considers a claim lodged
against the estate to be of doubtful validity , it should be tested under the procedure
provided in the Act. 21 The Executor manages an insolvent deceased estate under
section 34 of the Act. The Executor must open a bank account in the name of the
estate.22 The lodgement of a liquidation and distribution account with the Master
must occur within six months of the date on which letters of executorship have been
issued to the Executor.23
99. The Executor of a joint estate must discharge all its liabilities and half of the
net balance of the joint estate vests in the surviving spouse. 24 Does an Executor
have a duty or obligation to the surviving spouse who is neither heir nor beneficiary
of the deceased’s will, as is the case with the Applicant in this application? The
answer has to be in the affirmative. The spouse surviving a marriage in community of
property is entitled to half the net balance of the joint estate. Stated differently, the
surviving spouse is an automatic heir to half of the joint estate once it s debts have
14 Ries v Ries’s estate1912 CPD 390
15 Booysen v Booysen 2012 (2) SA 38 (GSJ)
16 Jacobs &Another v Baumann NO and Others [2019] JOL 45880 (SCA)
17 Rule 15(3) of the Uniform Rules of Court, Rule 52(4) of the Magistrates Court Rules
18 Hare v Est Hare 1961 (40 SA 42(W)
19 s26(1)(a) of the Act
20 s34(1) of the Act
21 s32 of the Act
22 s38 of the Act
23 s35 of the Act
24 Hare v Hare supra
been liquidated, even if she is not an heir or beneficiary of the deceased’s spouse's
will. The Executor has a fiduciary duty towards her.
100. An Executor does not have the right and is not under a duty to realise more of
the estate's assets than is necessary to pay debts , administration expenses, death
duties, and cash legacies .25 An Executor must decide whether the estate has any
claim against a third party and the advisability of instituting an action to recover the
claim.26 An Executor can cede the estate’ s rights to any assets or claims capable of
cession to the beneficiaries or third parties. There is no duty upon an Executor to sue
for foreign assets.27
101. An executor receives his mandate from his appointment by th e Master, not
under the will, and the liquidation proceeds under this authority until it is replaced. 28
Suppose an heir or other interested person maintains that an executor should take
steps to recover assets in an estate. In that case , if such action is not instituted, the
proper remedy is to move the court to remove the executor for breach of duty or to
take such action himself and cite the executor as a nominal defendant. It is
submitted that the latter course is not open to a beneficiary because only the
executor can vindicate the estate's assets . To satisfy the court that an executor ’s
failure to institute actio n constitutes a breach of duty, the application for removal
must satisfy the court that the probabilities favour the success of such action.
102. If the interested parties fully indemnify an Executor against an unsuccessful
outcome, it could be regarded as unreasonable conduct on the Executor's part not to
pursue the action without good reasons beyond the mere fact that the probabilities of
success are doubtful. 29 It should be accept ed as a general rule of our law that the
proper person to act in legal proceedings on behalf of a deceased estate is the
Executor and that normally, a beneficiary in the estate does not have locus standi to
do so.30
25 Ex Parte Misselbrook, N.O.: In Re Estate Misselbrook 1961 (4) SA 382 (D) at 384 A-B
26 Jones v Pretorius NO [2020] JOL 48640 (SCA)
27 Segal v Segal 1979 (1) SA 503 ( C)
28 Mngadi v Ntuli 1981 (3) SA 478 (D)
29 Meyerowitz, page 156, footnote 193
30 Gross &others v Pentz 1996 (4)SA 617 (A), Breetzke and Others NNO v Alexander & Others [2020]
4 AllSA 319 (SCA)
103. An Executor can liquidate assets in an estate by awarding an asset in specie
(in its actual form or in kind), a partial disposal of the asset, a total disposal of an
asset or as sets, takeover by a spouse, and redistribution between heirs. Unless the
will directs him to do so, it is not the executor’s duty to convert all the estate assets
into cash, but only those sufficient to pay the liabilities. 31 If an asset is specially
bequeathed, the executor must first exhaust the assets which fall into the general
residue before realising the assets specially bequeathed.32
104. Section 35 of the Close Corporations Act 69 of 1984 provides that subject to
any other arrangement, an executor of the estate of a deceased member of a close
corporation must (a) cause that member ’s interest in the CC to be transferred to a
person qualifying for membership who is entitled to it as legatee or heir (or under a
redistribution agreement) if the remaining member or members (if any) consent to
the transfer. If such consent is not given within 28 days of the Executor's request, he
may sell the deceased member’s interest. The deceased’s member’s interest in the
closed corporation falls within the joint estate, and the Applicant is entitled to the half-
share of its realisation. That much is a t least acknowledged in the will of the
deceased in casu.
Section 54(1) of the Act
105. Section 54 of the Act permits a Court or the Master to remove an Executor
under certain conditions. Section 54(1) concerns the removal of an Executor by the
Court. The sub-sections relevant to the determination of this application read as
follows:
An Executor may at any time be removed from his office by the Court-
s 54 (1) (a) (ii) ): If he has at any time been a party to an agreement or
arrangement whereby he has undertaken that he will , in his capacity as
Executor, grant or endeavour to grant to or obtain or endeavour to obtain for
31 Lockhats Estate at 302
32 Van Der Lith’s estate v Conradie 13 CTR 399
any heir, debtor or creditor of the estate any benefit to which he is not entitled;
or
(s 54(a) (v): if for any other reason, the Court is satisfied that it is undesirable
that he should act as the Executor of the estate concerned.
106. The Applicant relies on sections 54(1)(a)(ii) and 54(1)(a)(v) in her bid to
remove the Respondent. Section 54 (1)(a)(ii) is a factual determination dependent
upon the evidence provided by the party seeking the removal of an Executor. Section
54(1)(a)(v) requires a discretionary exercise involving two threshold requirements,
i.e., the court is satisfied with the reasons given , and it is desirable for the Executor
to be removed. The party seeking an Executor’s removal has to provide evidence of
one or more substantial and compelling reasons beyond that mentioned in the other
sub-sections of section 54(1) of the Act that makes an Executor’s continued tenure
untenable. Section 54(1)(iii) and (Iv) find no application in this matter.
107. A court must consider the consequences inherent in a decision of this nature.
The decision involves an assessment of current and future effects that the removal
would have o n the administration of the estate , the attendant costs of paying two
persons to perform the task that was bestowed on one, and the length of delay that
may ensue in the appointment of a replacement , the time taken to acquaint
themselves with the matter, the time taken to collate the information relating to the
estate, and any other factor that would hamper the finalisation of the estate.
108. Does section 54(1) (a)(v) of the Act entitle a surviving spouse married in
community of property in the position of the Applicant , who is neither heir nor
beneficiary of the deceased’s half of the joint estate , to apply for the removal of the
Executor? The Act is silent on who can apply for the removal of an Executor. Here
again, the answer has to be in the affirmative. The predominant consideration is the
interests of the estate and the beneficiaries. 33 There has to be a relationship of trust
between the Executor and the spouse surviving a marriage in community of property
for the equitable liquidation and distribution of the estate. This Court considers the
33 Die Meester v Meyer en Andere 1975 (2) SA 1 (T)
relationship between the Executor and the non-inheriting surviving spouse on the
same footing as b etween the Executor and the heirs a nd beneficiaries.34 In the
circumstances, a surviving sp ouse in the position of the Applicant has standing to
apply for the removal of an Executor.
109. What is the ambit of the provision that allows a court to remove an Executor?
Removing an Executor is a drastic step that a Court will not grant lightly.35 A court will
be even more circumspect in removing an Executor Testamentary from his positio n.
The court shall pay close attention to the wishes of the Testator as expressed or
implied in the terms of the will. The Court, however, cannot be bound by those
wishes if they are to the detriment of the beneficiaries to whose interest it must
equally c learly have regard. 36 Our courts have removed Executors for misconduct
unrelated to the administration of the estate , e.g., the misappropriation of trust
funds37, theft38, and fraudulent insolvency 39. Maladministration or absence of
administration is also a valid ground for removal.40 The failure to lodge accounts after
the lapse of a long period 41, serious dereliction of duty 42, and negligence 43 were
further grounds for the removal of an Executor.
110. Where it is sought to remove an Executor from office, the acts complained of
must be enough to label the Executor as a dishonest, grossly inefficient, or
untrustworthy person whose future conduct can be expected to expose the estate to
actual loss or admin istration in a way not contemplated by the will. Even if an
executor had not acted strictly in accordance with his duties and the strict
requirements of the law, something more was required before removal from office
was warranted.44
34 Gory v Kolver & Others 2007 (4) SA 97 (CC) at para 57
35 Segal v Segal 1979 (1) SA 503 ( C)
36 Port Elizabeth Assurance Agency & Trust Co. Ltd. v Estate Richardson, 1965 (2) SA 936 (K) at
page 940
37 Bronkhurst v Erasmus 1907 ts 486
38 Mathlabane v Spogter 11 SC 252, Meyerowitz at page 120
39 Ex Parte Schultz1909 TH 22, Meyerowitz at page 120
40 ex Parte Suleiman 1950 (2) SA 373 (C )
41 Phoenix Assurance Co v Wepener 1935 OPD 35
42 Meyer v Dalldorf 1918 OPD 87, Meyerowitz at page 121
43 ex Parte Suleiman supra
44 Volkwyn v Clark & Damant 1946 WLD 456 at 464
111. The test for removal of an Executor is whether the continuance of an Executor
in office will prejudicially affect the future welfare of the estate placed in his care. 45
The discretion vested in the courts to remove an Executor is a discretion in the strict
sense and has to be exercised judicially.46 A court exercises a strict or narrow
discretion if it chooses between permissible alternatives. Different judicial officers,
acting reasonably, could legitimately co me to different conclusions on identical
facts.47
112. The Applicant relie d upon R eichman v R eichman48, which deals principally
and in detail with conflicting interests as a reason for removing an Executor. The
Respondent in Reichman had an irreconcilable conflict between his personal
interests and his duty as Executor to act impartially in the estate's best inter ests. The
Court stated that one of the duties of the Executor must be to investigate the validity
of the debts which the Applicant in Reichman alleged the First Respondent owe d to
the estate. An Executor cannot be a judge in his own cause and cannot rely on the
Master to resolve factual dispute s arising in the case . Only a Court can do so if the
parties cannot resolve the dispute.
113. An Executor is entitled to take appropriate action to protect his personal
interests, but he should not use his office as Executor of the estate to pursue such
interests.49 An Executor may be removed from office if his private interests conflict
with those of the estate. An Executor cannot remain impartial if he has to entertain
his claim as a creditor against the estate he has to defend . An Executor should not
derive any personal benefits from how he conducts the business or manages the
estate's assets .50 An Executor who is a beneficiary of an estate is still required to
execute his fiduciary duties towards the other beneficiaries . He can expect h is
actions in liquidating and distributing the estate to be narrowly scrutinised.
45 Kennedy and Another v Miller and Others [2005] JOL 15800 (T), Meyerowitz at page 121
46 Gary v Kolver supra at para 57
47 Naylor & another v Jansen 2007 (1) SA 16 (SCA) at paragraph 28, Ganes v Telecom Namibia 2004
(3) SA 615 (SCA) par 21
48 Reichman v Reichman 2012 (4) SA 432 (GSJ) at paragraph 14 et seq
49 Reichman v Reichman supra
50 Harris v Fisher 1960 (4) SA 855 (A)
114. It is untenable for a n Executor who sacrifices his fiduciary functions , which
requires the exercise of utmost good faith , to pursue a line dictated in favour of his
own interests .51 A party occupying a fiduciary position must not engage in a
transaction by which he will personally acquire an interest adverse to his duty. 52
Where a person stands to another in a position of confide nce involving a duty to
protect the interests of that other, he is not allowed to make a secret profit at the
other’s expense or place himself in a position where his interests conflict with his
duty.53 The latter principle underlies an extensive field of legal relationships, e.g., a
guardian to his w ard, an attorney to his Client, and an agent to his principal. If a
Trustee is a beneficiary and acts in such a way as to benefit himself at the expense
of other beneficiaries , his acts will be narrowly scrutinised. 54 Executors and
administrators will not be permitted to derive a personal benefit from how they
transact the business or manage the estate's assets.55
Adjudicating disputes of fact
115. The Respondent argues correctly that it would have been patently apparent to
the Applicant that there would be several disputes of fact before the launching of the
application. Again, the Respondent submits correctly that numerous disputes of facts
have arisen on the papers, and little appears to be co mmon cause. The Respondent
contends that the matter must be dealt with in terms of the Plascon Evans rule56, and
upon properly interpret ing the facts in the matter, the application should be
dismissed.
116. It is well established under the Plascon -Evans rule that where in motion
proceedings, disputes of fact arise on the affidavits, a final order can be granted only
if the facts averred i n the Applicant’s affidavits, which have been admitted by the
Respondent, together with the facts alleged by the latter, justify such order. It may be
51 Lindenberg v Glass NO and Another 1957(3) SA 30 (SWA) at 33G-34 A-J in the context of costs
sought against an Executor, Reichman at para 14.
52 Harris v Fisher NO 1960 (4)SA 855 (A) at 861 H- 862 E
53 Robinson v Randfontein Est GM Co Ltd 1921 AD 168 at p177, Reichman at para 14
54 Colonial Banking and Trust Co. Ltd v Estate Hughes and Others, 1932 AD 1 at p. 16
55 Horn's Executor v The Master, 1919 CPD 48 at p. 51 and cf. Grobbelaar v Grobbelaar, 1959 (4) SA
719 (AD) at p. 724G) Reichman at para 17 citing Story Equity Jurisprudence for the remarks in sec.
322, p. 212 of the 2nd ed. Sackville West v Nourse and Another, 1925 AD 516 at pp. 533 - 4)
56 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A)
different if the respondent’s version consists of bald or uncreditworthy denials, raises
fictitious disputes of fact, is palpably implausible, far -fetched, or so clearly untenable
that the court is justified in rejecting them merely on the papers.57
117. The Respondent submit ted further that the Applicant had not satisfied the
Wightman58 expansion of the rule. The Supreme Court of Appeal found that the party
raising a dispute of fact in motion proceedings must seriously and unambiguously
address that fact. This will indicate whether the dispute is real, genuine or bona fide.
Suppose the disputing party necessarily possesses the knowledge a nd ability to
show the facts in question as untrue or inaccurate but fails to do so, instead resting
on a bare or ambiguous denial. In that case, there is no bona fide dispute of fact .
Factual averments seldom stand apart from a broader matrix of circumstances , all of
which must be considered when deciding.
118. A court may take a robust view of the matter in certain circumstances .59
Where certain disputes of fact cannot be resolved on the papers and require referral
for oral evidence, or where the disputes necessitate a trial and the orders sought are
pressing, a court can grant the order if there is sufficient clarity regarding the issues
to be resolved. The robust approach is not warranted or sought in adjudicating this
application.
EVALUATION
119. The road traversed by the Applicant and Respondent has been long and hard,
fuelled by accusations and counteraccusations, all spilling out in gargantuan
proportions in this application. There is little that is common cause, and everything
else has been placed in dispute. The Court has the arduous task of extensively
applying the Plascon-Evans Rule to adjudicate disputes. It had to arduously perform
the mechanical task of ticking and crossing the boxes to establish who must prevail
in this marathon disgorgement of acrimony.
57 National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA)
58 Wightman t/a JW Construction v Headfour (Pty) Ltd & Another 2008 (3) SA 371 (SCA) at para 13
59 Mahala v Nkombombini 2006 (5) SA 524 (SE)
120. Scurrilous, baseless, unsubstantiated, oft-defamatory allegations litter the
track that the Court had to traverse. The finger points largely in the Applicant's
direction for the latter transgressions. Nevertheless, the Court has done its work and
must now pronounce on its findings, acutely aware that the orders sought to remove
an Executor, more so, unseat one who enjoys testamentary protection, should not be
lightly done. The evidence has been covered sufficiently to enable the parties to
identify the direction the Court has taken in adjudicating this application. The parties
can also accept that the Application’s allegations , as weighed against the
Respondent’s answers to them and constitute genuine disputes of fact, were decided
in the Respondent’s favour.
121. The application has a protracted history of a decade of hostility. M[...] B[...]
Snr handed the Respondent a poisoned chalice, a will that require d him to do his
utmost to resist the Applicant's claims. Is he capable of transcending the deceased’s
wrath, which found expression in at least two clauses of a document the Applicant
alleges he had a hand in crafting? A new Executor will be saddled with the same
document and instructions. Would a replacement at least bring an independent mind;
a fresh approach to the administration of this estate? Will they be free of past
baggage to surmount and ignore the objectionable clauses of the will , the validity of
which has been confronted but not contested?
122. Has the Applicant provided any other reason to satisfy the Court that the
Respondent should not act further as the Executor of this deceased estate? Has the
Applicant provided sufficient evidence to support the notio n that the Respondent’s
tenure in office will prejudicially affect the future welfare of the estate placed in his
care? After sifting the wheat from the chaff and weighing up the Applicant's
allegations against the Respondent’s answers, the Court has identified certain
themes that point to the Respondent's suitability to remain as Executor. These
factors must still be explored further to determine whether they are prejudicial to the
welfare of the estate.
123. The Respondent denies any input into the drafting of the deceased’s will. He
stated that he translated the document handed to him from German to English . He
states elsewhere that the deceased dictated the content of the will to him , including
the precise details contained therein . The Respondent made it clear on acceptance
of his nomination as Executor Testamentary , which would have occurred with the
finalisation of the will, that he would only pursue lawful and ethically tenable clauses.
The Respondent denies knowledge of the deceased’s ill health . Yet, he relies upon a
letter dated 27 February 2022 to show that the deceased was reasonably proficient
in English. The content of the letter refers to the deceased being rather ill, his
‘unfortunate bad health situation’ on his birthday and clinical examinations revealing
complications. The letter referred to further tests and surgery that the deceased had
to undergo. The Respondent had to know that the deceased was far more ill than he
acknowledged.
124. The will was finalise d in April 2022, shortly after the deceased announced his
illness in the letter. The will conveniently contains clauses that benefit the
Respondent beyond the four percent legacy of a member’s interest in the close
corporation. The Respondent benefits from a reasonable management fee over a
few years for work related to the close corporat ion for and on behalf of the two sons
until they reach the age of 25. The Respondent is directed to take every legal step
necessary to enforce the transfer of the three German units to Walter, M[...] Jnr, and
Sandra. The reference to a reasonable management fee is repeated in clauses 4
and 7 of the will. The Respondent is direct ed to resist the Applicant’s claims of
whatsoever nature for the deceased’s assets with all means necessary and to all
extents possible. The Res pondent would be entitled to his reasonable fees for work
related to the opposition of any of the Applicant’s claims. The Respondent's attorney
firm has already billed for legal work related to the estate. 60 The Respondent’s
allegation that he was not involved in formulating the terms of the will is implausible.
125. The Respondent denies that the units in the Munich building were
surreptitiously transferred to Hölger in November 2013, just before the Applicant and
the deceased were in the throes of divorce . The Respondent was the attorney who
initiated an application for declaratory orders to the effect that the transfers of the
units occurred during the normal course of business. The evidence suggests that the
transfer occurred as a ‘gift’. It is unclear whether Hölger or the deceased had to
60 See the draft liquidation and distribution account
borrow money from two other persons to reduce the deceased’s debt. Hölger
provided a fraction of the money the deceased required in 2013. It was o nly on 7
June 2016 that Hölger obtained a bond to cancel the deceased’s debt in a nother
German bank. Yet, the Respondent alleges that the transfer occurred in 2013 to
restructure the deceased’s debt. The Accountant merely confirmed that the
deceased’s debt had improved since 2013. The table illustrating the monthly cash
surplus available to the deceased was not included in the bundle of
documents.61Thus, The Court cannot establish whether the improvement occurred
when the transfer was effected.
126. The transfer of the units to Hölger occurred coincidentally when the divorce
action began and when the deceased was informed that his marriage to the
Applicant in South Africa was in community of property . The deceased’ s debt
problems had arisen years earlier. Any attempt to justify the contrary, that is, that the
transfer had nothing to do with the marital strife and the marital property regime, has
to be rejected out of hand. The Court wonders how a party can defend th e
indefensible.
127. The Respondent did not address the allegation that the transfer of the units to
Hölger occurred within four days . The Respondent denies knowledge of the
Applicant’s challenge that resulted in an injunction on the transfer of the remaining
units held by Hölger. Hölger sold off some of the units transferred to him to finance
the restructuring and gifted one to his wife , Ina. The Respondent alleged that he did
not know of the Munich litigation involving the deceased. Whilst it is correct that the
deceased was not a party to the litigation involving the Applicant and Ina, he featured
largely in that litigation and was available to testify if called.
128. The Respondent could cite chapter and verse about the alienation of the
units, the deceased’s debt problems and the restructuring thereof . Still, he denied
knowledge of the injunction the Applicant obtained on the sale of any units
transferred to Hölger . He chose not to address the allegation that the units were
transferred within four days when the process allegedly takes six weeks to complete.
61 Page 14 of the Greenbaum report was omitted. The bundle followed the normal sequence of
numbering at 235 and 236.
The Respondent alleges that his role was restricted to advising the deceased on the
German proceedings as they applied to the ongoing divorce action.
129. The Respondent's persistent efforts to persuade the Applicant to drop the
litigation against Hö lger, even after the German Courts confirmed the Applicant’s
rights to litigate there without the Respondent's consent, are noteworthy. The
Respondent's intention to intervene and withdraw the action against Hölger, despite
being rebuffed by the German Cou rts, and his subsequent threats to join any
litigation initiated against the manager of the rental agency in Germany, as well as to
interdict the Applicant from pursuing the collection of rentals on the units,
demonstrate his unwavering determination to halt the Applicant’s litigation.
130. Other considerations feature in the Respondent’s intervention in the
Applicant’s litigation in Germany. In the Respondent’s letter addressed to the Judge
presiding over the Applicant’s case against Hölger, he says that the matter has to be
kept in abeyance and may not continue until he considers all risks relating to the
litigation, the financial liability of the estate , and whether he intends to replace the
Applicant in the litigation. Apart from the propriety of such demand, The purpose of
substitution in this context is for the Executor to take the place of the deceased in
litigation to which he was a party to enable the litigation to continue without
interruption. The deceased was not a party to the litigati on. The litigation in Germany
involves the Applicant and Holger. The Executor is not obliged to pursue foreign
assets of an estate. Furthermore, the Applicant acts as a creditor who sues for the
return of assets transferred by the deceased with the aid of Hölger, who allegedly
intended to defraud her. In this instance, the Respondent cannot represent or
substitute the Applicant, who seeks the return of assets transferred in fraud. 62 Only a
creditor can bring an action for a transaction in fraud of creditors.
131. The Respondent demanded that the litigation in Germany be held in
abeyance until he had the opportunity to assess its prospects of success. Yet the
Respondent advised his clients, including the deceased and Hölger , to obtain
declaratory orders that transferring properties to Hölger was a normal business
62 Du Toit’s Executors v Du Toit 1911 CPD 713, Meyerowitz at page 148
transaction. The letter to the Judge was dated 13 July 2023, barely six months after
he had instituted the application for declaratory orders . The Respondent's decision
as Executor to abandon the litigation in Germany , formally announced in October
2023, has a hollow ring. What was there to decide? The decision to oppose the
litigation against the Applicant had been taken years before. The Applicant’s
allegation that the Respondent has attended to the administration of the estate with
premeditated and preconceived ideas has merit. The Court rejects the Respondent’s
contention that he holds no agenda to ‘eliminate’ the Applicant’s claim against
Hölger.
132. The Respondent’s intervention in the German litigation has cost the estate
R478 816 in legal fees. The Respondent warns that the costs of litigating in Germany
are prohibitive. If the Applicant ’s litigation against Hölger fails, those costs would
trickle down to the joint estate . The Applicant failed to reply to these allegations.
There has, to date, been no claim against the estate by the Applicant for legal fees
incurred in Germany. The Respondent alleged that her litigation is privately funded. If
she does submit a claim for leg al costs, there is no reason why the Respondent
could not resist that claim in terms of section 32 of the Act.
133. The Respondent sought to trade off Hölger’s substantial claim against the
estate and Hölger’s legal fees if the Applicant withdrew her litigation against Hölger.
It is unclear as to who conceived the idea of the trade-off. The Respondent attributes
it to himself but credits it to Hölger elsewhere. The Respondent accepted Hölger’s
claim because the deceased signed it off in July 2022 despite having reservations
about the items comprising the claim . There is no indication that the Respondent
intended to challenge Hölger’s claim under section 32 of the Act.
134. The Respondent denies favouring Hölger to the detriment of the estate. The
denial does not correlate with his actions as an attorney to the deceased and Hölger
and his subsequent actions as Executor. The Respondent represented Hölger in at
least one legal procedure instituted in South Africa just before the deceased's
passing. Hölger featured in the divorce settlement. When the settlement negotiations
failed, the Respondent advised Hölger to continue litigation against the Applica nt. If
the Applicant prevails in her case against Hölger, the value of the joint estate would
improve considerably. The Respondent’s actions in favouring Hölger, both in the
latter’s retention of the units and his intention to accept Hölger’s claim against the
estate, do affect the welfare of the estate. The court finds that the Respondent’s
denial of any leaning towards Hölger’s preserving interest is implausible. The Cou rt
also finds that the Respondent’s support of Hölger is not only to the detriment of the
estate but also to the interests of the Applicant. He has a fiduciary duty to protect her
half-share of the estate.
135. The Applicant alleged that the Respondent h ad delayed a decision on how he
intended to deal with the loan accounts to the close corporation and the GRG
company. Despite acknowledging that the close corporation owed the joint estate
R35 million in October 2023, the Respondent reflected the loan acco unt in the draft
liquidation and distribution account to be R6 million. There is no reference to the loan
account to GRG of about R5.8 million in the liquidation and distribution account. The
Respondent has already missed the deadline for filing a liquidat ion and distribution
account for the estate within the six weeks specified by the Act. There is no
indication that he has complied with the further requirements of section 35 of the Act.
136. The Respondent repeatedly alleges that the draft liquidation and distribution
account was compiled merely for discussion purposes. It, unfortunately displays a
worrying trend that may have serious ramifications for the Applicant’s entitlement to a
half share of the estate once its liabilities have been settled. The Respondent intends
to retain the close corporation for Sandra's benefit , who is the major beneficiary of
the member’s interest in the close corporation.
137. The allocation of four percent of a member’s interest in the close corporation
undoubtedly poses a conflict of interest for the Respondent. The Applicant has
sketched the various computations the Respondent can exercise to maximise the
benefit from this legacy. The Respondent denies the charges and alleges his interest
in the close corporation is inconsequential and probably worthless given the entity's
solvency. He may have to contribute to liquidating its debt. He has no qualms about
liquidating the close corporation if that is required. However , his actions and the
redistribution plan he conceived, whereby the Applicant has to give up ownership of
some of her units, are intended to retain the close corporation. Although he alleges
that it would benefit Sandra , he undoubtedly benefits if the close corporation is
retained. His conflict of interest becomes manifest even though he denies it
strenuously.
138. The Applicant alleged that the lower the value attached to the close
corporation, the higher the value of the member’s interest that the Respondent would
obtain for this four percent. The draft liquidation and distribution account is sufficient
evidence for the Court to find that the Respondent cannot be trusted to ensure the
estate is properly valued . If the estate is undervalued , the Applicant is severely
prejudiced in her legal entitlement to an equitable half-share to obtain the half share
she is legally entitled to.
139. The units in Munich were valued by Kaufmann Stephan and included in the
Respondent’s answering papers. They were each valued at approximately
R2 395 305 on 7 December 2017. The value on the day this matter was heard
amounts to R2 991765.63 Yet the Respondent overvalues each by approximately
R1 500 000 in the draft liquidation and distribution account. Hölger’s claim of
approximately R23 million aga inst the estate is reflected there, even though the
Respondent purports to have reservations about some line items in the claim. If the
units in Germany are overvalued, it prejudices the Applicant in a redistribution plan
conceived by the Respondent.
140. The Respondent has effectively declared the estate insolvent . This is
inconceivable, given that the estate could afford to offer the Applicant a R40 million
settlement a few years back and has a substantial property portfolio. The Applicant is
correctly concerned that the Respondent's actions give effect to the repugnant
clauses contained in the deceased’s will. The Court finds that the Respondent has a
conflict of interest, and the plans he has proposed thus far will benefit him whether
he intended that outcome or not . T he Respondent’s actions, therefore , affect the
welfare of the estate as well as the legal interest of the Applicant.
63 The Rand Euro exchange rate was 15.9687 on 7 December 2017 and 19.5491 on 18 September
2024.
141. A deep -seated distrust exists between the Applicant and the Respondent ,
which goes beyond mere disagreement. They seem incapable of cooperating
minimally, let alone adequately , to bring finality to the estate. If the two cannot
cooperate, the Applicant’s distrust of the Respondent will increase. The relationship
is inconducive to the equitable finalisation of the estate and can only result in more
litigation against each other , with the attendant costs diminishing the estate even
further. The Respondent has a low threshold for threateni ng litigation and litigating
on behalf of the estate against the Applicant. He has intervened at the estate’s cost
in Germany and South Africa. His attorney firm benefits from the litigation. This
attitude is inconducive to the interests of the estate, to that of the heirs, as well as to
the Applicant.
142. There are other compelling reasons for the removal of the Respondent as
Executor. The Respondent, as the attorney to the deceased, has been involved in
the acrimonious litigation against the Applicant, which was directed to stifle the
Applicant’s entitlement to a fair half share of the joint estate . The Respondent acted
as an attorney just before the deceased’ s death in litigation that was intended to
deprive her of the German assets of the deceased.
143. The Respondent correctly asked what his actions as an attorney had to do
with his role as Executor . Well, the deceased expected the Respondent to become
immersed in the administration of the joint estate way beyond that which is ethically
and legally permitted of an Executor. The deceased expected the Respondent to
pursue the Applicant with the same vigour he did while alive. The deceased
expected the Respondent to become his agent in death. The Respondent accepted
the nomination in full knowledge of the deceased’s wishes and has expressed his
intention to carry them out. His protestations about obeying the repugnant clauses in
the will are unconvincing.
144. The Respondent’s unsuccessful attempts to intervene and his commitment to
intervene through litigation against the Applicant's interests both here and in
Germany do not bode well for his obligation to be fair and to obtain an equitable
outcome for the estate. The Respondent’s actions suggest an undue inclination
towards promoting the interests of Hölger and Sandra. The Respondent has not
attended to the speedy resolution of the issues rela ting to the South African
properties. He has not attempted to seriously resolve the loan issues with the close
corporation or with GRG. His handling of the Ouplaas and Oaktree properties is less
than ideal. His preference to pay the maintenance of the first wife and the German
body corporate for work to be done to the public spaces in the Munich building, over
his obligation to pay maintenance to the Applicant , cannot be deprecated enough.
His attitude that the Applicant should get a job and support herself whilst he earns off
the estate is ill-considered. The Applicant had to resort to litigation to obtain a
commitment to get maintenance payments. Yet, shortly after that , the Respondent
agrees to halt the source of that payment in favour of paying over R2 million to
maintain the public spaces in the German building.
145. The administration of this estate requires an independent Executo r who will
bring a fresh and unclut tered mind to its resolution. This estate requires an Executor
who is not encumbered by the baggage of the past and will genuinely attend to his
legal and fiduciary duties . A new executor must consider , among others, the
implications of intervening in the German litigation , the resolution of the loan
accounts, and the litigation costs initiated by the Respondent’s attorney firm.
146. The Court has considered the delay that may eventuate in appointing a new
Executor, as well as the administration of the estate. The Court cannot assess the
extent of the work performed by the Respondent . The Respondent contends that his
fluency in the German language is advantageous in the administration of this estate .
There is no reaso n why the Master will not be able to choose an Executor with the
necessary proficiencies to administer this estate. The consequences of replacing the
Respondent far outweigh his continued tenure as Executor. T he Court has no
hesitation in ordering the remo val of the Respondent as Executor of this estate. The
Court does not need to consider the Respondent’s removal under s54(1)(ii) of the
Act.
SHOULD THE RESPONDENT BE DEPRIVED OF HIS REMUNERATION AS
EXECUTOR?
147. Applicant seeks an order that the Respondent shall not be entitled to any
remuneration for services rendered as Executor. She refers to the Respondent ’s
conflicting interests and the other issues she has identified in her papers relating to
his fitness to hold office as the estate's executor.
148. The Respondent's answer to the order sought is that he has earned his fees
for his work. He has done nothing which has detrimentally impacted the Applicant.
The costs that have been expended have largely arisen from the Applicant’s hunger
for further litigation and failure to communicate with him on matters relating to the
estate and her share. Sandra, the second largest shareholder, has requested that he
not resign and carry on with estate administration.
149. In reply, the Applicant alleges that Sandra has played a role in the dissipation
of the estate's assets. It is not surprising that Sandra supports the continued tenure
of the Respondent , which is to her benefit . The Applicant takes issue with the
Respondent's allegation that he sought her cooperation . The Respondent has
continuously impeded her from access to information relating to estate
administration. He interdicted her from interfering in the estate.
150. Executors, or agents appointed to manage the aff airs of a deceased person's
estate, are entitled to receive compensation for their services. This compensation
typically amounts to 3.5% of the estate's total value and 6% of the estate's growth
after death. The above excludes other administration fees lik e section 25 adverts,
valuation fees, bank charges
151. The Master of the High Court plays a supervisory role in the administration of
estates, and the executor must submit a detailed account of the estate (i.e. the
liquidation and distribution account), including the proposed remuneration. The
Master has the ultimate authority to scrutinise and, if necessary, adjust the proposed
executor's fees/remuneration to ensure compliance with the statutory framework. If
heirs or beneficiarie s believe the executor fees to be unreasonable or excessive,
they may contest the fees. In such cases, the Master may intervene and assess the
reasonableness of the remuneration. Executors should be prepared to provide
detailed records justifying the time and effort spent administering the estate. When a
professional executor or a legal practitioner is appointed, the fees may be subject to
additional scrutiny. The courts have emphasised the need for transparency and
reasonableness in such cases, considering factors like the executor’s expertise and
the complexity of the estate. In instances where professional fees are levied, this
would normally be rendered on a time -cost basis. Executors are always obligated to
disclose their remuneration to the heirs or beneficiaries.
152. Section 51 of the Act concerns the remuneration of executors. Section
51(1)(b) permits remuneration according to the prescribed tariff and shall be taxed by
the Master. Section 51(3) permits a Master to increase, decrease, or disallow line
items on any final invoice submitted by an Executor. Section 51(4) determines that
an Executor shall not be allowed any remuneration before the estate has been
distributed unless the Master approves payment in writing.
153. The Responden t is not allowed the three percent of the estate's value as
reflected in the draft liquidation and distribution account. The orders below shall
specify the extent to which the Respondent may claim his fees for administering the
estate thus far.
MISCELLANEOUS MATTERS
154. The Applicant sought the removal of the Respondent but cited him in his
representative capacity. An application for the removal of an Executor is a claim
against the Executor in his personal capacity. 64 The Applicant brought a formal
application for the amendment of the citation. The Respondent did not object to the
application which was granted. The Applicant filed confirmatory affidavits that
contained matters of a substantive nature. The affidavits were filed late. The
Respondents objected to t he lateness of the affidavits and their content and asked
that the court deny its admission. The court ordered that the affidavits are
inadmissible. The Respondent brought an application to strike out material from the
Applicant's replying affidavit because they constituted new material and were
64 Mc Namee and Others v Executors Estate Mc Namee 1913 NPD 428 , Rampersadh v Pillay 1963
(3) SA 320 (D&CLD) at 321A
vexatious. The court dismissed the application to strike out. No order as to costs was
made in any of the three applications.
COSTS
155. The Applicant has belatedly prayed that the Court exclude the professional
attorney fees incurred by the Respondent in pursuing the German litigation. There is
merit in this prayer as the intervention in the German litigation was unjustified. The
appropriate order shall be made.
156. Each party sought punitive costs on an attorney -client scale were they to
prevail. Neither party motivated why a punitive costs order should be granted apart
from what is becoming common practice, i.e., that the Court has to infer, by the
alleged behaviour of each party , that a punitive costs order is justified in any given
case. This is unacceptable. If a party desires a punitive costs order, they should
motivate it. What has happened to the normal order of costs sought on a party and
party scale? It would seem that the punitive costs standard has increasingly become
the norm , and the normal party and party costs scale has become the exception.
This Court is a verse to granting punitive costs orders unless the re are exceptional
circumstances and the order sought is properly motivated. Any costs order granted
against the Respondent must be paid by him.
157. The Court makes the orders that follow.
ORDER
158. The First Respondent is removed from his office as Executor of the estate of
deceased M [...] B[...] in terms of the provisions of section 54(1)(a) (v) of the
Administration of Estates Act 66 of 1965 (“the Act”),
159. The First Respondent shall , in terms of section 54(5) of the Act, immediately
return his letters of executorship to the Master of the High Court (“the Master”),
160. The First Respondent shall be entitled to claim his fees as Executor of the
estate of M[...] B[...] from the date of his appointment to the date of this judgment in
terms of sections 51(1), 51(3) and 51(4) of the Act,
161. The First Respondent or his attorney firm shall not be entitled to claim any
legal costs relating to the intervention in the matters involving the Applicant in
Germany from the date of his appointment as Executor to the date of this judgment,
162. The Master shall, as soon as possible, exercise its powers under the Act to
appoint and grant letters of executorship to such person or persons who it may deem
fit and proper to be the Executor or Executors of the estate of M[...] B[...],
163. The First Respondent shall pay the costs of this application,
164. Counsel’s fees will be recovered and taxed on the “C “ scale.
________________________
Ajay Bhoopchand
Acting Judge of the High Court
Western Cape Division
Cape Town
Judgment was handed down and delivered to the parties by e-mail.
Applicant’s Counsel: T Barnard, instructed by Francois Pienaar Attorneys Inc t/a FDP
Law, Cape Town
Counsel for the Respondent : M A McChesney, instructed by Brand & Van Der Berg
Attorneys, George.