REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 16488/2024
In the matter between:
In the Ex Parte Application
NOLUSINDISO NCAMISO N.O Applicant
Heard: 07 October 2024
Delivered: Electronically on 10 October 2024
JUDGMENT
___________________________________________________________________
LEKHULENI J
1. Introduction
[1] This is an ex parte application in which the applicant, who is the duly
appointed executrix of the deceased estate of Mziw etemba Solani, is seeking an
order in terms of section 26(3) read with section 102 of the Administration of Estate s
Act 66 of 1965 (‘the Administration of Estates Act’) for the issuance of a warrant for
search and seizure of all assets registered in the name of the deceased as of the
date of his death. In addition, the applicant seeks an order that the sheriff of the court
be authorised to enter, search an d seize several motor vehicles wherever they may
be found and that these vehicles be delivered to the applicant’s custody, as the
executrix of the late Mziw etemba Solani’s deceased estate . The applicant asserts
that as an appointed executrix , she has a fiduciary duty to take possession and
control of all documents of the late estate except for those in possession of any
person who claims to be entitled to retain it under any contract, right of retention or
attachment.
Background Facts
[2] The applicant’s father, Mziwetemba Solani (‘the deceased’), operated a taxi
business during his lifetime and was affiliated with the Cape Amalgamated Taxi
Association. On 29 November 2023, the deceased was shot by unidentified
assailants in Gugulethu. His assailants are still at large. Subsequent thereto, the
deceased’s estate was reported to the office of the Mas ter of the High Court. The
Master of the High Court issued Letter s of Executorship No.1758/2024 in favour of
the applicant on 27 May 2024.
[3] On 10 February 2024, the deceased's wife, Ms Voyolwethu Solani, was also
gunned down in the Nyanga location by unknown assailants. The murder s of Mr and
Mrs Solani are still under police investigation. Pursuant to the murder of Ms Solani,
the Master of the High Court issued Letters of Authority No. 3432/2024 in favour of
Avela Koboko in terms of section 18(3) of the Administration of Estates Act.
[4] As of the date of death, the deceased, Mr Solani, had about 18 taxis.
According to the applicant, the taxi business, on average, generated an approximate
income of R40,000 per week collected by the deceased and his wife during their
lifetime. The applicant asserts that u nknown individuals are currently collecting this
amount to the prejudice of the deceased estate. The applicant further a verred that
the taxi business continues to operate, whereas the late estate defaulted on monthly
instalments for some of the taxis in the amount of R250,776.25.
[5] The applicant expressed a reasonable suspicion that the deceased's vehicles
remain in the possession or control of unknown individuals related to the deceased
who are conducting business for their selfish gain. According to the applicant, the
motor vehicles serve as a security for money lent and advanced by Toyota South
Africa Motors in favour of the deceased. The applicant also asserted that those in
possession of the vehicles have no right to do so and have act ed unlawfully by
taking possession or withholding or concealing the deceased's assets from the
control and possession of the appointed executrix to the detriment of the deceased
estate.
[6] The applicant brought this application on an ex parte basis and c ontended
that should the possessors be alerted of this application prior to the hearing; there is
a reasonable apprehension that they would hide away the vehicles and defeat the
object of the seizure and search application. The applicant implored the court to
issue an order for the authorisation of the warrant in terms of section 26(3) of the
Administration of Estates Act directing the Sheriff of this court to search and seize
vehicles and place them in her possession from wherever and or whomever they
may be found.
Principal Submissions by the Applicant’s Counsel
[7] At the hearing of this matter, the applicant's Counsel prayed the court to grant
the relief sought in the notice of motion. The court questioned the applicant's
Counsel as to whether this matter should not have been lodged at the magistrate's
court, as section 26 specifically envisages that applications of this nature must be
instituted in the Magistrate ’s Court. In response, Counsel argued that this court
should invoke its inh erent jurisdiction and grant the relevant order. Furthermore,
Counsel submitted that it would be inconvenient to institute proceedings in the
magistrate's court as the vehicles of the deceased may be in different districts.
Applicable Legal principles
[8] The applicant’s application is predicated on section 26 of the Administration of
Estates Act. The relevant parts of section 26 provide:
“(2) If the executor has reason to believe that any such property, book or
document is concealed or otherwise unlawfully withheld from him, he may
apply to the magistrate having jurisdiction for a search warrant mentioned in
subsection (3).
(3) If it appea rs to a magistrate to whom such application is made, from a
statement made upon oath, that there are reasonable grounds for suspecting
that any property, just all the book or document in any deceased estate is
concealed upon any person or at any place or upon or in any vehicle or vessel
or receptacle of any nature, or is otherwise unlawfully withheld from the
executor concerned, within the area of the magistrate’s jurisdiction, he may
issue a warrant to search for and take possession of that property, book or
document.
(4) Such a warrant shall be executed in like manner as a warrant to search for
stolen property, and the person executing the warrant shall deliver any article
seized thereunder to the executor concerned.” (my emphasis)
[9] In terms of sectio n 85 of the Administration of Estates Act, section 26 of the
Act applies mutatis mutandis with reference to tutors and curators. Section 26 of the
Administration of Estate s Act mirrors section 69 of the Insolvency Act 24 of 1936,
which gives a trustee of an insolvent estate the responsibility to take charge of the
property of the estate and the power to apply for a search warrant to a magistrate
having jurisdiction if he has reason to believe that any such property or books are
concealed or otherwise withheld from him.1
Discussion
1 See Bruwil Konstruksie (Edms) Bpk v Whitson NO and Another 1980 (4) SA 703 (T).
[10] Section 26(1) of the Administration of Estate s Act enjoins an executor,
immediately after letters of executorship have been granted to him , to take into his
custody or control all movable property, books and documents belonging to the
deceased estate. In terms of section 26(2), if the executor, such as the applicant in
the present matter, has reason to believe that any property, book or docu ment is
concealed or otherwise unlawfully withheld from him, he may apply to the magistrate
having jurisdiction for a search warrant mentioned in section 26(3).
[11] On the other hand, s ection 26 (3) of the Act empowers a magistrate upon
application under oath that there are reasonable grounds for suspecting that any
property, book or document belonging to a deceased estate is concealed or is
otherwise unlawfully withheld from the executor concerned, within the area of the
magistrate's jurisdiction, he may issue a warrant to search for and take possession of
that property, book or document. Section 26(3) is particularly intended to strengthen
the hand of an executor in carrying out his obligations to take charge of all the assets
belonging to the deceased estate.2
[12] The primary purpose of section 26(3) is to enable an executor to collect and
take control of assets reasonably believed to belong to a deceased estate being
concealed or unlawfull y withheld. Section 26 holds significant importance as it
outlines the specific requirement of applying to a magistrate as part of a legal
process or procedure. Before a magistrate may exercise his discretion to issue a
warrant in terms of the section, it must appear to him that there are reasonable
grounds for suspecting that any property, book or document belonging to a
deceased estate is either concealed in any of the ways set out in the section or is
otherwise unlawfully withheld.
[13] In my view, section 26 explicitly delineates the process for obtaining a warrant
to recover assets or documents for a deceased estate. It regulates the procedural
requirements that must be adhered to prior to the issuance of such a warrant. The
section envisages that an application must be to a magistrate ’s court having
jurisdiction. The section does not envisage the High Court to hear such an
2 See Cooper NO v First National Bank of SA Ltd 2001 (3) SA 705 (SCA) , where the court discussed
the purpose of section 69(3) of the Insolvency Act.
application. In my respectful opinion, the applicant instituted this application in the
wrong forum. I accept that this court enjoys inherent jurisdiction. However, the
exercise of the inherent jurisdiction of this court must not encroach upon the
authority of the magistrate's court. Such action would, in my opinion, undermine the
legislative authority of Parliament.
[14] Furthermore, it is crucial to emphasise that section 1 of the Administration of
Estates Act delineates a clear differentiation between a magistrate and the High
Court. According to the Act, "Court" means the High Court having jurisdiction, or any
judge thereof. In other words, where the Act refers to court, reference is directed to
the High Court.
[15] On th e other hand, “magistrate” includes an additional magistrate and an
assistant magistrate and, in relation to any particular act to be performed or power or
right exercisable or duty to be carried out by the magistrate of a district, includes an
additional magistrate or assistant magistrate permanently carrying out at any place
other than the seat of magistracy of that district the functions of the magistrate of that
district in respect of any portion of that district, whenever such act, power, right or
duty has to be performed, exercised or carried out by virtue of any death occurring,
or deceased having resided or carried on business, as the case may be, in such
portion of that district.
[16] Section 26 specifically refers to the ‘magistrate’ and not the ‘court’. It is
evident from the aforementioned that the applicant mistakenly submitted her
application to an incorrect forum. The appl ication ought to have been filed in the
magistrate's court possessing the requisite jurisdiction.
[17] Given all these considerations, the applicant’s application falls to be struck off
the roll.
Order
[18] The applicant’s application is hereby struck off the roll.
18.1 No cost order is made.
___________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
APPERANCES
For the Applicant: Panini Attorneys
50 Long Street
Cape Town