THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 845/2023
In the matter between:
SHIRAZ SABDIA N O FIRST APPELLANT
(the joint executor of the estate of the
late Mahamed Faruk Sabdia)

RIAZ SABDIA N O SECOND APPELLANT
(the joint executor of the estate of the
late Mahamed Faruk Sabdia)

and

ANIEL KANJEE SOMA FIRST RESPONDENT

THE TAXING MASTER OF THE
GAUTENG DIVISION OF THE
HIGH COURT, PRETORIA SECOND RESPONDENT
Neutral citation: Sabdia N O and Another v Soma and Another (845/2023) [2024]
ZASCA 174 (12 December 2024).
Coram: MBATHA, HUGHES, KEIGHTLEY and UNTERHALTER JJA and
COPPIN AJA
Heard: 05 November 2024
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal

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website and released to SAFLII. The date and time for hand -down of the judgment
is deemed to be 11h00 on 12 December 2024
Summary: Administration of deceased estate – s 51(1) (a) of Administration of
Estates Act 66 of 1965 – freedom of testation – review in terms of rule 48 of the
Uniform Rules of Court – whether executor is entitled to professional fees.

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ORDER


On appeal from: Gauteng Division of the High Court, Pretoria (N V Khumalo J,
sitting as court of first instance):
1 The appeal succeeds with costs, including the costs of two counsel, where so
employed.
2 The order of the high court is set aside and replaced with the following:
‘1 The decision and ruling of the Taxing Master to disallow the entire fee
component of the bill of costs presented by the applicants for taxation under case
number 75876/2013 is set aside.
2 The allocator of the Taxing Master is set aside.
3 The taxation of the bill of costs is referred to the Taxing Master. The Taxing
Master is directed to re-enrol the taxation after notice to the parties and to proceed
to tax the bill of costs on a scale as between attorney and client.
4 The applicant is ordered to pay the fourth and fifth respondents ’ costs in the
high court.’

JUDGMENT


Mbatha JA (Hughes, Keightley and Unterhalter JJA and Coppin AJA
concurring):

[1] This matter concerns t he following cardinal questions of law . First, whether
the executor, who is an attorney and acts in his professional capacity , on behalf of
the deceased estate in a lawsuit , was not entitled to remuneration as an attorney,
notwithstanding the express provisions of the Last Will and Testament (the Will).

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Second, whether the decision to disallow the payment of such fees falls within the
discretion of a Taxing Master.

[2] In 2006, the late Dr Mahamed Faruk Sabdia (Dr Sabdia ) instituted review
proceedings against Mr Aniel Kanjee So ma (Mr Soma) in the Land Claim s Court,
relating to an immovable property in Marabastad , Pretoria. Dr Sabdia died on
5 November 2013, prior to the final adjudication of the review proceedings. His
sons, Messrs Riaz and Shiraz Sabdia were appointed as executors of Dr Sabdia’s
estate (the executors). They were subsequently substituted as litigants in the Land
Claims Court matter.

[3] On 13 December 2013, Mr Soma brought an eviction application against the
estate of Dr Sabdia , the heirs and three tenants. The eviction application was
successfully opposed by the executors, represented by the attorneys Mothle Jooma
Sabdia Incorporated (MJS). The court dismissed the application with costs on a
punitive scale (as between attorney and client).

[4] On 19 September 2019, MJS set down the bill of costs for taxation before the
Taxing Master of the High Court (the Taxing Master). The Taxing Master upheld
the objection by Mr Soma that the estate was not entitled to recover the costs
awarded by the court, save for the out-of-pocket expenses. The Taxing Master ruled
that Mr Shiraz Sabdia, who was also an attorney practicing at MJS, although he acted
in his professional capacity on behalf of the estate in the lawsuit, was not entitled to
remuneration as an attorney, notwithstanding his co-executor approval. The finding
was in line with the decision in Estate Fawcus v Van Boeschoten and Lorentz

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(Fawcus).1 In addition, the Taxing Master found that the executor ’s remuneration
covered all the work done on behalf of the estate, and that neither Mr Shiraz Sabdia
nor MJS was entitled to recover legal costs for work done in their professional
capacity. He found support for this conclusion in the judgments of the Gauteng
Division of the High Court, Pretoria, Nedbank Limited v Gordon N.O and Others
(Nedbank)2 and Die Meester v Meyer en Andere (Meester).3 As a result, the Taxing
Master disallowed the fees in the amount of R465 265.

[5] Aggrieved by the decision of the Taxing Master , the executor s instituted
review proceedings, challenging the decision of the Taxing Master . The Taxing
Master filed a report in terms of rule 48 of the Uniform Rules of Court (the rules),
in which he sought the dismissal of the review with costs. Mr Soma sought the same
relief.

[6] The review application served before the high court (per N V Khumalo J). On
9 December 2022, the high court dismissed the application with costs. Dissatisfied
with the outcome of the application, the executors sought leave to appeal the whole
judgment and order of the high court. On 15 May 2023, the high court dismissed the
application, with costs. Undaunted, the executors petitioned this Court for leave to
appeal. The appeal served before us with the leave of this Court.

[7] It is against this common -cause background that I have to consider the
following interconnected issues. First, whether the high court was correct in finding
in favour of the Taxing Master. The high court did so on the basis that in terms of s

1 Estate Fawcus v Van Boeschoten and Lorentz 1934 TPD 94.
2 Nedbank Limited v Gordon N.O and Others [2019] ZAGPPHC 460 para 18.
3 Die Meester v Meyer en Andere 1975 (2) SA 1 (T) at 13A-B.

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51(1)(b) of the Administration of Estates Act 66 of 1965 (the Estates Act) the
executors were only entitled to their executor’s remuneration and thus were not
entitled to the punitive costs awarded in their favour. The second issue is whether
the high court was correct in finding that this was so irrespective of the provisions
of the Will.

[8] The high court in arriving at its decision placed significant reliance on
Fawcus. The principles established in Fawcus were followed in Meester and in
Nedbank. In Fawcus, the court ruled that an executor who is also an attorney and
performs legal services in a professional capacity for the estate is not eligible to
receive compensation for those services , notwithstanding his co -executor’s
approval.

[9] In Meester, that court determined the interpretation of the term ‘remuneration’
as set out in s 51(1) of the Estates Act. It followed the dictum in Harris v Fisher N.O.
(Harris),4 where the court held that ‘ [e]xecutors or administrators will not be
permitted, under any circumstances, to derive a personal benefit from the manner in
which they transact the business or manage the assets of the estate’.5 These decisions
affirmed the principle that it is generally considered a conflict of interest for an
executor, who is also an attorney , to act in his professional capacity for the estate
and claim professional fees in addition to the fees due to him as an executor . In
accordance with the fiduciary nature of the executor’s responsibilities, if he were to
act in his professional capacity, he would only be entitled to re-imbursement for out-
of-pocket expenses incurred. His professional work as an attorney is remunerated by
way of the fees to which he is entitled as an executor.

4 Harris v Fisher N.O. 1960 (4) SA 855 (A).
5 Ibid at 862E.

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[10] Before this Court, the executors submitted that their case was distinguishable
from the judgments relied upon by the high court. The distinction lay in the fact that
Dr Sabdia had made provision in his Will for the payment of the executors’
professional fees . The executors maintained that, consequently, there was no
possible conflict of interest in this case. They submitted that t his aligns with the
exception established in Edmeades, De Kock & Orffer v Die Meester (Edmeades),6
where the court quoted with approval the following from Christophers v White 50
E.R. 683 (footnotes omitted) ‘. . .[a] trustee is not allowed to act as his own solicitor
and then charge his cestui que trust with the amount of his professional fees. The
rule admits of exception when the testator or creator of the trust expressly authorises
the trustee to retain his professional costs, sh ewing thereby, that he would rather
run the risk of abuse, by uniting the two characters, and pay the solicitor his costs,
than lose his services as trustee’.7 (Emphasis added.)

[11] The executors asserted that the entitlement to remuneration is supported not
only by the terms of the Will but also by the provisions of s 51(1)(a) of the Estates
Act, which permits the testator to determine the executor’s remuneration.
Furthermore, they posited that the context and purpose of clause 4 of the Will (the
remuneration clause) should be the determining factors in its interpretation. Further,
that this purpose and context is to be found in clause 5.3 of the Will, which should
be read with the remuneration clause.

[12] The remuneration clause reads as follows:

6 Edmeades, De Kock & Orffer v Die Meester 1975 (3) SA 109 (O).
7 Ibid at 114H-115.

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‘I hereby direct that my Executors shall be entitled to charge and shall be paid all usual professional
fees and other fees and charges from business transacted, time spent and acts done by them or their
associates in connection with the administration of my estate.’
And clause 5.3 reads as follows:
‘I direct my Executor s to do everything necessary to retain possession of the property for the
benefit of my wife or other beneficiaries (in the event of my wife predeceasing me or in the event
of our simultaneous death), until such time as the dispute in relation to the title of the property is
resolved at the Land Claims Court.

In this regard, it is my wish that my Executors and/or my wife and/or my other beneficiaries as the
case may be, assume my position as the Applicant in the matter before the Land Claims Court or
in any other proceedings relating to the property, upon my death.’
The inescapable conclusion to be drawn from these provisions of the Will is that the
executors were permitted to charge professional fees for services rendered. This was
sanctioned by Dr Sabdia in his Will, even though they were also acting in their
fiduciary capacity as executors.

[13] The principles of interpretation were settled in Natal Joint Municipal Pension
Fund v Endumeni Municipality (Endumeni).8 Endumeni reiterated that the process
of interpretation is a unitary and objective exercise that pays due regard to the text,
context and purpose of the document or instrument being interpreted.9 Equally trite,
is the general principle of statutory interpretation that the words used in the
document should be understood in their normal grammatical sense, unless this would
lead to absurdity. In Capitec Bank Holdings Limited and Another v Coral Lagoon
Investments 194 (Pty) Ltd and Others ,10 this Court cautioned ‘that the triad of text,

8 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262 (SCA); 2012
(4) SA 593 (SCA).
9 Ibid paras 18 and 19.

(4) SA 593 (SCA).
9 Ibid paras 18 and 19.
10 Capitec Bank Holdings Limited and Another v Coral Lagoon Investments 194 (Pty) Ltd and Others [2021] ZASCA
99; [2021] 3 All SA 647 (SCA); 2022 (1) SA 100 (SCA).

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context and purpose should not be used in a mechanical fashion’.11 In that regard, I
will consider the text in the Will ‘in the light of all relevant and admissible context,
including the circumstances in which the document came into being’.12

[14] Upon applying the aforementioned principles, I find that the language utilised
in the remuneration clause is characterised by its clarity and directness. The direction
provided is lucid and unequivocal, as it states that the ‘[e]xecutors shall be entitled
to charge and shall be paid all usual professional fees and other fees and charges
from business transacted’. The clause explicitly grants the executors the authority to
charge for professional fees. In addition, it specifies that they have the right to charge
for time spent and actions taken by them or their associates in connection with the
administration of the estate.

[15] It is clear that the remuneration clause pertains to fees levied based on the
duration of the professional services rendered. In other words, it is time based.
Conversely, the statutory rate for executors is a fixed percentage rate, regardless of
the time spent or the nature and amount of work performed by them . It is not time
based, but performance based. This demonstrates that Dr Sabdia intended his
executors to be recompensed for any professional, and hence legal, services actually
rendered by them.

[16] This conclusion is underscored by the term ‘associates’ in the remuneration
clause. Executors do not usually have ‘associates’, although they can exercise their
powers through an agent in the administration of the estate . However, Dr Sabdia

11 Ibid para 25.
12 Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk [2013] ZASCA 176; [2014] 1 All
SA 517 (SCA); 2014 (2) SA 494 (SCA) para 12.

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knew that one of his sons was an attorney, whose associates had already provided
litigation services to him in the Land Claims Court matter.

[17] Clause 5.3 expressly directs the executor s to do everything necessary, until
such time as the dispute in relation to the title of the property is resolved in the Land
Claims Court. It explicitly directs that the executors or wife or beneficiaries should
assume Dr S abdia’s position as an applicant in the pending Land Claims Court
matter. The purpose of clause 5.3 was clearly to mandate the executors diligently to
pursue legal proceedings in the Land Claims Court until a final resolution was
reached. This is an important indicator that Dr Sabdia’s intention was th at the
executors would be entitled to recoup their professional fees for the work performed
in this regard by the associates in the legal firm.

[18] Clause 5.3 further authorised the executor s to take action or defend any
ancillary proceedings pertaining to the property . It specifically authorised the
executors to seek recourse in the courts of law . In this regard, the high court
respectfully overlooked clause 5.3. It failed to ascertain the primary objective of
clause 5.3. This clause effectively illustrates the intention of the testator and the
primary objective of the remuneration clause. In order to fulfil his directions, the
testator directed that the attorneys even though Mr Shiraz Sabdia is an executor,
should be compensated for their professional services.

[19] In the context of the review application in the Land Claims Court, it is
important to note that Dr Sabdia had consistently been represented by MJS. It is
evident from the remuneration clause and clause 5.3 that Dr Sabdia desired the
continued legal representation of MJS in the Land Claims Court litigation, even after
his demise.

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[20] Section 51(1) of the Estates Act regulates the payment of an executor’s
remuneration. Section 51(1) reads as follows:
‘Every executor (including an executor liquidating and distributing an estate under subsection (4)
of section thirty-four) shall, subject to the provisions of subsection (3) and (4), be entitled to receive
out of the assets of the estate-
(a) such remuneration as may have been fixed by the deceased by [W]ill; or
(b) if no such remuneration has been fixed, a remuneration which shall be assessed according
to a prescribed tariff and shall be taxed by the Master.’

[21] Section 51(1)(a) expressly makes provision for the payment of remuneration,
as may have been fixed by the deceased in his Will. It negates the conclusion reached
by the high court that such remuneration is ultra vires the settled principles, contra
bono mores and in conflict with the fiduciary duties of an executor. The high court
unfortunately did not construe s 51(1) correctly. It ought to have recognised that
there are two distinct legislative frameworks in s 5 1(1) that govern the payment of
an executor’s remuneration. Section 51(1) permits a testator to determine
remuneration of an executor, including the remuneration that may be earned by an
executor who renders professional services to the estate.

[22] In Fawcus, in highlighting the inherent nature of the duties of the executor,
the court held that even if the estate was successful in litigation, costs awarded
against the other party cannot be recovered by the legal representative except for
out-of-pocket expenses.13 It is unfortunate that the high court rigidly applied the
principle in Fawcus. It is unnecessary to decide upon the ambit of the principle
enunciated in Fawcus because s 51(1 )(a) of the Estates Act determines the issue
before us. Consequently, Fawcus does not find application in this matter as Dr

13 Estate Fawcus v Van Boeschoten and Lorentz 1934 TPD 94 at 96.

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Sabdia had expressly determined the renumeration of the executors in his Will .14
One of those exceptions is where the Will authorises the payment of such fees in
terms of s 51(1)(a) of the Estates Act.

[23] In conclusion, I find that t he legislative scheme clearly envisages two fee
payment regimes, namely, the one determined by the testator or the one prescribed
by the statute . The remuneration clause and clause 5.3 of the Will sanctioned the
payment of professional fees due to the executors and MJS.

[24] The question whether the decision to disallow the payment of the fees falls
within the discretion of the Taxing Master, raises a very important issue. Though
this issue was extensively dealt with in the judgment of the high court, it was not
fully ventilated before us. And given the conclusion to which I have come as to the
primacy of clause 5.3 of the Will in determining the renumeration of the executors,
it is not necessary to deal with this aspect of the appeal.

[25] In the result, I make the following order:
1 The appeal succeeds with costs, including the costs of two counsel, where so
employed.
2 The order of the high court is set aside and replaced with the following:
‘1 The decision and ruling of the Taxing Master to disallow the entire fee
component of the bill of costs presented by the applicants for taxation under case
number 75876/2013 is set aside.
2 The allocator of the Taxing Master is set aside.

14 Ibid at 98.

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3 The taxation of the bill of costs is referred to the Taxing Master. The Taxing
Master is directed to re-enrol the taxation after notice to the parties and to proceed
to tax the bill of costs on a scale as between attorney and client.
4 The applicant is ordered to pay the fourth and fifth respondents ’ costs in the
high court.’





Y T MBATHA
JUDGE OF APPEAL

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Appearances

For the appellants: A T Lamey and C van Schalkwyk
Instructed by: Mothle Jooma Sabdia Incorporated, Pretoria
Matsepes Inc., Bloemfontein.

For the respondents: C A Da Silva SC
Instructed by: LLM Hurter Attorneys, Pretoria
Symington De Kok Attorneys, Bloemfontein