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2024
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[2024] ZAECMHC 85
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Sihlali v Registrar of Deeds and Others (2517/2023) [2024] ZAECMHC 85 (24 October 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE DIVISION:
MTHATHA
CASE NO: 2517/2023
In the matter between:
SINDISWA BONGIWE
MANDISA SIHLALI
APPLICANT
And
REGISTRAR OF DEEDS AND
OTHERS
RESPONDENTS
JUDGMENT
MHAMBI AJ
INTRODUCTION
1.
The applicant in part A of this application, sought in the main an
order that,
the 7
th
Respondent, the Master of the High
Court, Mthatha, appoint her, alternatively, such other person
as he deems fit to hold
office as an executor of the estate late
Sipho Benjamin Sihlali, “
the deceased
”.
2.
Further reliefs, not necessary for this court to deal with, are
contained in
parts B and C of the application.
3.
The practice note and the heads of arguments filed by the Applicant
asked this
court to deal only with part A of the application, and
have issues in parts B and C postponed
sine die
.
4.
Central to this application is the question of whether the master is
correct
to refuse to appoint the executor in respect of the deceased
estate. The master did not oppose the application, save to file the
notice to oppose and later file a report in which he opposed the
grant of costs order against him.
5.
Consequently, this court has to deal with the relief sought in part A
of the
applicant’s application on uncontested opposed basis.
BACKGROUND FACTS
It is necessary to
indicate that: -
6.
The Applicant submitted that it sought to be appointed as the
Executrix of the
deceased estate, to enable her with the
locus
standi
, legal standing, to challenge and seek for orders prayed
in parts B and C of the application.
7.
It appears
ex facie
the papers that the applicant once sought
for orders prayed in parts B and C of this application, but that
attempt was dismissed
when the matter served before Toni AJ, on the
basis that it is trite that an executor is the only person endowed
with legal standing
to represent the estate of the deceased and
institute proceedings on its behalf.
8.
Toni AJ reasoning on this aspect was correct. That reasoning
finds authority
in
Ohlsson’s
Cape Breweries V Hermsberg
[1]
,
the Court held that:-
“
In
the case of the deceased estate, it is trite that an executor is the
only person endowed with the legal standing to represent
the estate
of the deceased person and institute action on it’s
behalf”.
9.
In
Boysens
and Others V Boysens and Others
[2]
,
the Court stated that:-
“
the
deceased estate is not a persona iuris and does not have a separate
legal existence of its own.
10.
In
Clarkson
No V Gelb and Others
[3]
,
the Court affirmed that, unless dealing with deceased estates:-
“
The
executor is vested with its administration, and he alone has the
power to deal with totality of rights and obligations”.
11.
The reasoning and authorities cited above are the basis of the orders
sought in part A when
this matter was heard on 18 October 2024.
12.
It is worthy for this court to deal with appointment of the executor.
APPOINTMENT OF THE
EXECUTOR
13.
The Master has the authority in terms of Section 14 of the
Administration of Estates Act
[4]
,
herein after referred to as “
the
Act
”
,
to appoint nominated persons as executor by any deceased person in a
will which has been accepted by the master and issue letter
of
executorship to such persons.
14.
Section 18(1) of the Act deals with master’s authority to
appoint executor in instances
where the deceased person failed to
nominate any person in his will to be executor.
15.
Section 18(3) deals with instances where the value of an estate does
not exceed the amount
determined by the Minister from time to time in
the Government Gazette, the current amount determined by the Minister
is R250 000.00.
The Master in terms of Section 18(3), may
disperse with issue of letter of executor and issue letters of
authority if the value
of the estate at issue before him/her is less
than R250 000.00.
16.
The words in Section 18 of the Act means nothing more than their
grammatical meaning as
contained in the Act itself.
17.
In
Cool
Ideas 1186 CC V Hubbard and Another
[5]
,
it was held that:-
“
A
fundamental tenet of statutory interpretation is that words in a
statute must be given their ordinary grammatical meaning, unless
to
do so would result in an absurdity”.
18.
The Constitutional Court followed same principle of interpretation in
Independent
Institute for education (Pty) Ltd V KwaZulu Natal Law Society
[6]
.
19.
It is clear that Section 18 of the Act requires the Master to
disperse with the appointment
of an executor and issue letter of
authority when the value of the estate is below the threshold. The
Master was correct in the
instant case to issue the Applicant with
the letter of authority as the value of the property at that time was
below the threshold.
20.
This court needs to stress it in clear and succinct terms that the
power to appoint the
executor rests upon the Master, the court cannot
usurp the powers of the Master to appoint an executor. The power to
grant or refuse
letter of executorship rests upon the Master as
functionary.
21.
In
Goldfields
Trading Company (Pty) Ltd V Schutter
[7]
,
the Court expressed that:-
“
The
appointment of provisional transtee is purely statutory and I cannot
see how the Court has any inherent power where such power
is vested
in the Master by Statute”
22.
In
Lips
Chitz V Wattrus No
[8]
,
Myburgh
J stated:-
“
As
to any such provisional appointment [of trustees, liquidators, and
judicial managers] the Master clearly has unfetted and sole
administrative discretion and it is within his enacted powers to give
directions to his staff about such appointments”.
23.
In
Exparte
:
The Master of the High Court South
,
(North Gauteng), Bertelsmann J
[9]
issued orders declaring that the Master of the High Court of South
Africa is the only person authorized to appoint, trustees,
Liquidators Judicial Managers and Provisional Judicial Managers.
24.
In my view, the executor falls within that category, it is the Master
and only him, is vested
with power to appoint and or remove the
executor.
25.
Section 18 of the Act does nothing more than conferring upon the
office of the Master the
exercise of public power. The master
then is expected to act within the ambit and perform functions as the
Statute enjoins
him to do so.
26.
In
Fedsure
Life Assurance V Greater Johannesburg Transitional Metropolitan
Council and Others
,
[10]
the Court stated that:-
“
It
seems Central to the conceptus of our Constitutional order that the
Legislature and executive in every sphere of government is
constrained by principle that they may exercise no power and perform
no function beyond that conferred upon them by court”.
27.
The Master is bound to act in that manner too.
28.
In
Affordable Medicines Trust v Minister of Health
, the
Constitutional Court held that: -
“
The
exercise of public power must therefore comply with the Constitution,
which is the Supreme law, and the doctrine of legality,
which is part
of that law”.
29.
The Master even though he exercises statutory powers, he has a
discretion to appoint the
executor as directed by Section 18 of the
Act, he is not immune from scrutiny.
30.
This is so to guide against the abuse of power. In
Gleinster
v President of the Republic of South Africa and Others
[11]
,
the Court stressed that a clear abuse of power cannot be allowed to
go unheeded.
31.
In this case, the Master was advised of the challenge to the sale of
the property, forming
subject matter to part B and C of the
application, that was in fact the cause of the application before
Toni AJ.
32.
He was advised that the value of the property is R550 000.00,
necessitating the required
threshold for the issue of the letter of
executorship.
33.
He was advised that the property is subject to legal challenge, in
order to achieve that
the executor has to be appointed as suggested
by Toni AJ in his judgment. However, he insisted that he will only
appoint the executor
through the court order, he disregarded the
information at his disposal, and the legal challenge in which the
deceased estate sought
to pursue.
34.
In my view, the Master acted unreasonably and prejudiced the
applicant. The Master
only filed notice to oppose without
filing an answering affidavit but rather filed a report. During the
hearing Mr. Mgidlana advised
the Court that his client, first
respondent do not oppose the grant of prayers sought in part A.
35.
This matter has to be approached on the basis of
Plascon-Evans
Paints Ltd V Van Riebeeck Paints (Pty)Ltd 1984 (3) 5623 (A)
. Cf
also
National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA
277
(SCA) [also reported at
[2009] JOL 22975
(SCA) – Ed]
where
Harms DP said the following in paragraph [26]:
“
[26]
Motion proceedings, unless concerned with interim relief, are all
about the resolution of legal issues based on common cause
facts.
Unless the circumstances are special they cannot be used to resolve
factual issues because they are not designed to
determine
probabilities. 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 in
the applicant’s (Mr Zuma’s) affidavits,
which have been
admitted by the respondent (the NDPP), together with the facts
alleged by the latter, justify such order.
It may be 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 justifiable in
rejecting them merely on the
papers.”
CONCLUSION
36.
This court has considered the facts averred in the applicant’s
founding affidavit
which in any way are not controverted by the 7
th
Respondent, this court is satisfied that the applicant has made a
case for the reliefs sought in part A of its notice of motion.
37.
I refuse to direct the Master to appoint the applicant as the
executor, I have cited authorities
supporting why this court cannot
do so.
38.
However, regard had to be to the powers this court has in terms of
Section 173 of the Constitution
and balance that with the interest of
justice as Madlanga J did so in
Mokone
v Tessos Properties cc
[12]
.
In the interest of justice, the following order issues: -
ORDER
1.
The Master, 7
th
Respondent, is directed to exercise its’
powers and discretion, vested in it in terms of
Section 18
of the
Administration of Estates Act 66 of 1965
, to appoints a person it
deems fit and proper to be the executor of the estate late Simon
Benjamin Mazwi Sihlali, within 30 days
from the date of service of
this order.
2.
The 7
th
Respondent is directed to pay the wasted costs as
far as necessary only to part “A” of the applicant’s
application,
on scale A of the amended
Rule 67A.
3.
The hearing of part B and C are postponed
sine die
with no
order as to costs.
M. MHAMBI
JUDGE OF THE HIGH
COURT(ACTING)
Date heard: 18 October
2024
Date Delivered: 24
October 2024
APPARANCES
For the
Applicant:
Mr Pukwana
For the 1
st
Respondent:
Mr Mgidlana
No appearance for the
other Respondents
Mr Pukwana instructed
by:
Pukwana Inc.
C/O Keightley Sigadla
Inc.
60 Cumberland Street
MTHATHA
Mr. Mgidlana instructed
by:
State Attorney
Broadcast House
94 Sisson Street
Fortgale
MTHATHA
[1]
1908TS
134
[2]
(29558/10
2012 2 SA (GSJ) 25 March 2011.
[3]
1981
(1) SA 288 (W)
[4]
66 of
1965,
[5]
2014
(4) SA 4
74 cc at para 25
[6]
2020
(2) SA 325
cc, see para 13 of the judgment.
[7]
1956
3 SA 1
(0) at 2D
[8]
1980
(1) SA 662
(T) at 671 G,
[9]
2011
(S) SA 311 (GNP)
[10]
[1998] ZACC 17
;
1999
(1) SA 374
cc at 400 para 58
[11]
2009
(1) SA 287 (CC)
[12]
2017
ZACC 25