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2024
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[2024] ZAMPMBHC 85
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Visagie v Bosua N.O and Others (342/2024) [2024] ZAMPMBHC 85 (29 November 2024)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
MPUMALANGA DIVISION (MAIN SEAT)
Case
Number: 342/2024
In the
matter between:
MACHDEL VISAGIE
Applicant
and
HERMAN CORNELIUS
BOSUA N.O.
First Respondent
ELLA LOUISA NEL
Second Respondent
ELSIE PETRONELLA
NEL-SNYMAN
Third Respondent
MASTER OF THE HIGH
COURT, MBOMBELA
Fourth Respondent
This judgment shall be
delivered by distribution to the parties by e-mail and by publication
on SAFLII. The judgment shall be deemed
to be delivered at 11:00 on
29 November 2024.
JUDGMENT
Roelofse AJ:
INTRODUCTION
[1]
The
applicant is one of three heirs in the estate of her late father, D.J
Nel.
[1]
The applicant’s
sisters, the second and third respondents, are the other heirs. The
first respondent is the executor
[2]
testamentary
[3]
(“the
executor”).
[2]
The applicant is dissatisfied
with the way the executor administers the deceased estate. She
complains about inordinate delays in
the finalization of the estate
as well as various acts by the executor including infidelity.
[3]
The applicant seeks the removal of
the executor in terms of the provisions of Section 54(1)(a) of the
Administration of Estates
Act 66 of 1965 (“the Act”), an
order that the executor may not charge a fee for the services he had
rendered up to
now and that the Master appoint another executor for
the deceased estate.
[4]
Despite the first to third
respondents opposing the application, only the first and second
respondents delivered an answering affidavit.
The applicant is the
only heir that seeks the executor’s removal.
REASONS FOR THE
EXECUTOR’S REMOVAL
[5]
It is common cause that the deceased
passed away on 4 November 2020. The executor was appointed on 15
December 2020. The deceased
estate is yet to be finalized, and a
final liquidation and distribution account must still be lodged.
[6]
The applicant alleges that the
executor has failed to adhere to his obligations in terms of the Act
and by doing so has caused substantial
harm to the deceased estate.
[7]
In this regard applicant alleges
that the executor: has failed to secure his appointment as an interim
director of the companies
in the deceased estate which includes,
amongst others, a liquor business, a vehicle dealership and
properties; the executor is
not able to provide the heirs with
information such as bank statements of the business accounts, and
whether the municipal charges
in respect of the properties in the
deceased estate were paid or not; has, for a period of 14 months,
failed to contact the applicant
and third respondent is over the
administration of the deceased estate; has, notwithstanding demand,
failed to explain this failure
to act diligently and efficiently as
is required from him; already paid himself; failed to publish the
liquidation and distribution
account and it has not laid open for
inspection as required in terms of the Act; and, the executor has
improperly accepted a claim
by the second respondent against the
deceased estate; failed to recover rent due in respect of existing
lease agreements, failed
to recover vehicles belonging to an entity
in the deceased held; failed to pay local authority taxes; and failed
to meet its obligations
to the South African Revenue Service.
[8]
As a result, so the applicant
argued, the executor has failed to comply and/or contravened Sections
26, 29 and 35(12) read with
Section 51(4) of the Act.
THE EXECUTOR’S
RESPONSE
[9]
The executor appointed an agent to
assist him with the administration of the deceased estate. The agent
deposed to the answering
affidavit. The executor filed and delivered
an affidavit confirming the content of the agent’s affidavit. I
therefore take
it that what the agent says is also what the executor
says.
[10]
What follows is the essence of the
executor’s defence, as set out by the agent.
[11]
The executor denies the applicant’s
notion that he has acted maliciously or vexatious or alternatively
negligently.
[12]
The executor says that he would,
without reservation, and upon a unanimous request for his removal
made by the heirs, vacate the
office. It was tendered before this
application was launched. In addition, the executor says that he only
opposes the application
because of the application was based on
erroneous facts and defamatory statements all of which are unproven.
[13]
The executor furthermore says that,
although the winding up of the deceased estate has taken some time,
no evidence has been presented
to show that the executor has acted in
such a manner that would warrant his removal from office or tht the
deceased estate had
indeed suffered damages.
[14]
The executor admits that there
has been a delay in the finalization of the deceased estate. The
agent wants to finalize the deceased
estate for him to be paid. The
executor denies the applicant’s insinuation that he delayed the
finalization of the deceased
estate and that the deceased estate has
suffered any harm. The applicant’s allegations that the
executor caused the deceased
estate harm is unsubstantiated and
amounts to mere speculation. In addition, the unfounded allegations
cause harm to the executor’s
good name and character.
[15]
The executor admits that he is
yet to be appointed as interim director of the companies in the
deceased estate. The executor denies
that the deceased ran a retail
liquor business.
[16]
The executor alleges that the
applicant continuously embarks upon a witch-hunt with regards to the
deceased estate rather than to
contribute constructively so that the
administration of the deceased estate be finalized.
[17]
With regards to the rent due to the
deceased estate, the executor alleges that attorneys have been
appointed to collect the arrears.
[18]
The executor’s agent alleges
that, although not required to do so, but because of the relationship
the agent had with the
deceased, he used his own funds to pay for
repairs at immovable property in the deceased estate. The executor’s
agent attaches
to the answering affidavit proof that the deceased
estate’s municipal accounts were paid by the second respondent
although
she had no obligation to do so.
[19]
Furthermore, the executor alleges
that all assets that the executor was aware of were secured and
properly dealt with.
[20]
The executor criticizes the
applicant’s consistent libelous and malicious claims against
the executor and the agent under
circumstances where they are paying
funds from their own accounts to establish that the estate expenses
are paid which would ultimately
also benefit the applicant. I
interpose to state that this allegation is not denied by the
applicant instead the applicant alleges
that it must be because of
the executor and agent’s guilty conscience that they pay the
expenses. I already say that there
is no reason for the applicant’s
conclusion.
[21]
With regards to the failure to
submit a liquidation and distribution account in terms of the
provisions of the Act, the executor
alleges that the draft account
could not be finalized to be submitted because there had been queries
on the draft account. Credence
exists for the statement as the
applicant challenges the draft liquidation and distribution account
in her evidence.
[22]
The executor makes the point that
just because the applicant is unsatisfied with information that was
given to her by the executor,
it does not mean that the executor’s
conduct is insufficient. The executor alleges that information had
been given to the
applicant when same became available.
[23]
The executor says that the applicant
has failed to show what harm has been caused to the deceased estate
by the unavailability of
financial statements for the entities in the
estate.
[24]
The executor concedes that there had
been delays in the finalization of the deceased estate but that the
applicant has failed to
show that the executor is the cause of the
delays.
[25]
With regards to the applicant’s
allegation that the executor has paid himself in contravention of
section 35(12) of the act,
the agent says as follows:
“
The
Applicant is misguided in the understanding of the payments made. The
payments made are not payments that emanate from work
that has been
done prior to the passing of the deceased. The payments made are
payments necessary for the finalization of the estate
and to which
the beneficiary of the payments has been entitled. I find it
disingenuous that the Applicant wishes for financial
statements to be
drawn as well as L&D statements to be drawn but refuses the
payment of same to be authorized.”
[26]
In respect of the second
respondent’s claim, the executor alleges that he has made it
clear to the applicant that the second
respondent’s claim is
not recognized and that the second respondent reserves the right to
institute a claim against the deceased
estate.
DISCUSSION
[27]
Section 54 of the Act provides for
the removal of an executor from office by the court. The Section
reads in relevant part:
“
Removal
from office of executor.—(1) An executor may at any time
be removed from his office—
(a)
by the Court—
(i)
. . . . . .
.
. . . . .
(v)
if for any other reason the Court is satisfied that it is undesirable
that he should act
as executor of the estate concerned; and…..”
[28]
The applicant relies upon the
provisions of Section 54(1)(a)(v) for executor’s removal from
office.
[29]
Section
54(1)(a)(i) affords the Court has a discretion to remove an executor
from office, “…
..the
predominating consideration remains the interests of the estate and
the beneficiaries.”
[4]
Much
is required for the removal of an executor. A failure to exercise his
of her duties or to strictly observe the law is not enough.
In
Sackville
West v Nourse and Another
[5]
it
was said: “ …
it
is not indeed every mistake or neglect of duty or inaccuracy of
conduct of trustees, which will induce Courts of Equity to adopt
such
a course. But the acts or omissions must be such as endanger the
trust property or to show a want of honesty or a want of
proper
capacity to execute the duties, or a want of reasonable fidelity…”.
Reasonable fidelity depends on the circumstances of each case, in
particular, whether the executor is dishonest, grossly inefficient
or
untrustworthy. The court must be able to reasonably foresee that the
executor’s conduct, as demonstrated by proven past
conduct, is
expected to expose an deceased estate to risk or actual loss. See:
Oberholster
N.O. and Others v Richter
[2013] All SA 205
GNP
.
What is required from an executor is to act with the necessary skill
and care, independently and in the interest of the deceased
estate
and its heirs while having due regard to the rights of the
deceased estate’s creditors.
[30]
Punishment for whatever conduct is
not the reason for removing an executor. Punishment is irrelevant for
purposes of considering
an executor’s removal. The rights of
the heirs and benefit of the deceased estate and the heirs are of
paramount relevance.
The court must imagine and consider what would
be best for the deceased estate and the heirs. What must be
considered is whether
the removal of the executor would benefit the
deceased estate and its heirs more than keeping the executor in
office. For this
the court must consider the all the facts and
circumstances of the matter and not only the executor’s alleged
conduct or
the heirs’ wishes. When it is proven, or it is
apparent that an executor is dishonest, grossly inefficient or
untrustworthy
or lacks fidelity the result must be that it would not
benefit the deceased estate to keep the executor in office.
Failure to comply with
the provisions of section 26 of the Act
[31]
Section 26 of the Act, in relevant
part, reads:
“
Executor
charged with custody and control of property in estate.—(1)
Immediately after letters of executorship have
been granted to him an
executor shall take into his custody or under his control all the
property, books and documents in the estate
and not in the possession
of any person who claims to be entitled to retain it under any
contract, right of retention or attachment.
(1A) The executor may
before the account has lain open for inspection in terms of section
35 (4), with the consent of the Master
release such amount of money
and such property out of the estate as in the executor’s
opinion are sufficient to provide for
the subsistence of the
deceased’s family or household.
(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).”
[32]
The applicant is of the view that
the executor, by not securing his appointment as director of the
companies in the deceased estate,
has failed to take into his custody
or under his control all the property of the estate. Likewise, the
applicant accuses the executor
also of a transgression of this
section because he has allegedly not taken under his custody or
control certain vehicles belonging
to the estate and did not pay
taxes. The executor gives an explanation about two vehicles but gives
no particulars of other vehicles.
[33]
The executor admits that he has yet
to be appointed a director of the companies in the deceased estate.
While this must surely have
led to a delay in finalizing the estate,
the applicant has shown no real damage suffered by this failure to
the estate. In any
event, the allegation that the municipal levies
were not paid was fully dispelled by the executor.
[34]
The deceased’s will refers to
vehicles that were on consignment. This is what the will records:
“
1.
Die maatskappy [Danel Motors (Edms Bpk)] besit voorraad voertuie, wat
op consignment stock
verkoop word, en ‘n bankrekening, en
mikien ‘n paar los bates.
2.
Die consignment stock moet so vining moontlik verkoop word vir
kontant.”
The
other assets in Danel Motors had to be sold. The proceeds of the sale
had to be used to pay the tax liability and settle the
deceased’s
loan account. Any residue had to be divided in equal shares between
the three heirs.
[6]
[35]
Usually, a motor dealer does not own
vehicles on consignment. In a consignment arrangement the consignor
owns the thing until is
sold. It is therefore uncertain whether the
vehicles that are referred to are indeed assets in the deceased
estate which the executor
was obliged to take control of.
[36]
I find that the executor has not
strictly complied with the provisions of Section 26 of the Act in
respect of his appointment as
interim director for the companies in
the deceased estate, such failure does not warrant the executor’s
removal from office.
Contravention of
Section 35 of the Act
[37]
Section 35 of the Act, in relevant
part, reads:
“
Liquidation
and distribution accounts.—(1) An executor shall, as soon
as may be after the last day of the period specified
in the notice
referred to in section 29 (1), but within—
(a)
six months after letters of executorship have been granted to him; or
(b)
such further period as the Master may in any case allow,submit to the
Master an account
in the prescribed form of the liquidation and
distribution of the estate….”
……
12) When an account
has lain open for inspection as provided in this section and—
(a)
…….
(c)
…….
the executor shall
forthwith pay the creditors and distribute the estate among the heirs
in accordance with the account, lodge with
the Master the receipts
and acquittances of such creditors and heirs and produce to the
Master the deeds of registration relating
to such distribution, or
lodge with the Master a certificate by the registration officer or a
conveyancer specifying the registrations
which have been effected by
the executor: Provided that an affidavit by the executor in which he
or she declares that a creditor
was paid or that an heir received his
or her share in accordance with the account, may be accepted by the
Master in lieu of any
such receipt or acquittance.”
[38]
It is common cause that the executor
has not published a liquidation and distribution account within the
time provided for in Section
29. It is still not done and that is
after some 4 years since his appointment. The executor says that this
is due to various difficulties
he has experienced with the deceased
estate. This is a bold allegation, and no specific details are given.
I find that the executor
has failed in his duties. However, the
executor says that the Liquidation and Distribution account is almost
ready to be submitted.
[39]
Section 36 of the Act provides:
“
Failure
by executor to lodge account or to perform duties.—(1) If
any executor fails to lodge any account with the Master
as and when
required by this Act, or to lodge any voucher or vouchers in support
of such account or any entry therein in accordance
with a provision
of or a requirement imposed under this Act or to perform any other
duty imposed upon him by this Act or to comply
with any reasonable
demand of the Master for information or proof required by him in
connection with the liquidation or distribution
of the estate, the
Master or any person having an interest in the liquidation and
distribution of the estate may, after giving
the executor not less
than one month’s notice, apply to the Court for an order
directing the executor to lodge such account
or voucher or vouchers
in support thereof or of any entry therein or to perform such duty or
to comply with such demand.”
[40]
The applicant did not seek relief in
terms of Section 36 of the Act. The executor produced a draft
liquidation and distribution
account. The only issues the applicant
has with the draft account are the inclusion of the second
respondent’s claim and
the payments made to the executor. In my
view, the process of the finalizing of the deceased estate has at
least proceeded to this
point, albeit with undue delay. It would not
benefit the deceased estate to remove the executor at this stage.
Payments to the
executor in contravention of Section 51(4) of the Act
[41]
Section 51(4) provides that an
executor shall not be entitled to receive any remuneration before the
deceased estate has been distributed
unless payment of such
remuneration has been approved in writing by the Master.
[42]
It is common cause that: the
deceased estate is yet to be distributed; the Master has not approved
payment to the executor; the
executor was paid two invoices in the
amounts of R 13 943.75 and R 25 875.00 respectively. The
executor could not pay
himself.
[43]
Regarding
the payment to the executor, the agent says: “
The
payments made are payments necessary for the finalization of the
estate and to which the beneficiary of the payments has been
entitled.
”
[7]
[44]
The two payments are supported by
invoices both issued by Boshua and Cornelissen and not the executor
or the agent. The invoices
were not disclosed, and the executor does
not say exactly what the invoices were for save for the bold
statement above. Although
(even if the payment was for the executor)
this payment contravenes the Act, it does not constitute an offence
because the willful
distribution of any deceased estate otherwise
than in accordance with the provisions of section 35 (12), or of the
relevant will,
and not a payment to an executor, constitutes an
offence under Section 102(1)(f) of the Act.
[45]
Although the applicant has
established that the executor may have contravened Section 35(12) of
the Act, I consider this contravention
does not warrant the removal
of the executor from office.
[46]
I do not consider each proven
contravention in isolation. I consider all the contraventions as a
whole. I weigh this against the
time that has already elapsed, the
stage in the finalization of the deceased estate and the fact that
none of the other heirs seek
the executor’s removal. Having
regard to all the factors, I am of the view that the executor should
not be removed from office.
Costs
[47]
The delay in the finalization
of the estate must have a consequence. Although the applicant failed,
I do not consider it just to
order that the applicant pay the
respondents’ costs. The applicant has not approached the court
with a case without any substance.
[48]
The applicant used emotive words in
expressing her dissatisfaction with the executor. The allegations the
applicant made against
the executor imputes dishonesty on his side.
This was unnecessary and must have a consequence.
I
am of the view that each party pays their own costs will meet out
some measure of justice between the parties.
[49]
In the premises, I made the
following order:
(a)
The application is dismissed.
(b)
Each party shall pay their own costs.
________________________
Roelofse AJ
Acting Judge of the High
Court
DATE OF HEARING:
19 November 2024
DATE OF JUDGMENT:
29 November 2024
APPEARANCES
FOR THE APPLICANT:
Mr. G
Potgieter
Instructed
by J Naude Attorneys Incorporated
FOR THE FIRST AND SECOND
RESPONDENTS: Mr. H Foure
Instructed by Cronje De
Waal Skhosana Incorporated
[1]
Mr.
Nel died on 4 November 2024.
[2]
The
executor was appointed on 15 December 2020.
[3]
By
virtue of clause 2 of the will.
[4]
Gory
v Kolver NO and Others (CCT28/06)
[2006] ZACC 20
; 2007 (4) SA (CC)
at para. 56.
[5]
1925
AD 516
at 527.
[6]
Clauses
3.1 to 3.5 of the will.
[7]
Para.
25 ibid.