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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No:2526/2024
In the matter between:
SEAN BEUKMAN Applicant
and
MARYNA PIETERSE N.O. First Respondent
In her capacity as Co-Executor of
the Deceased Estate of The late
Ronnie Johann Beukman
(Master’s Reference: 4249/2022)
SUSANNA ALETTA LOUBSER N.O. Second Respondent
In her capacity as Co-Executor of
the Deceased Estate of The late
Ronnie Johann Beukman
(Master’s Reference: 4249/2022)
THE MASTER OF THE HIGH COURT, CAPE TOWN Third Respondent
_____________________________________________________________________
JUDGMENT DELIVERED ELECTRONICALLY ON 26 NOVEMBER 2024
______________________________________________________________________
MANGCU-LOCKWOOD, J
A. INTRODUCTION & BACKGROUND
[1] The applicant seeks removal of the first and second respondents (“the
executors”) as execut ors of the estate of the late Ronnie Johan n Beukman (“the
deceased estate”), and an order directing the third respondent (“the Master”) to appoint
a new executor to the deceased estate. In addition, an order is sought for the executors
to the deliver to the new execut or an account of the administration of the deceased
estate which is to include certain specified documentation. In the alternative, an order is
sought for the executors to lodge a liquidation and distribution (“L&D”) account within 15
court days.
[2] The applicant is the eldest son of the deceased and is a co -beneficiary to the will
of the deceased, together with the second respondent . At the time of his death, the
deceased was involved in life-partnership with t he second respondent . Although the
deceased previously executed other wills, the one that is relevant to these proceedings,
and which was later accepted by the Master uncontested is dated 4 September 2021
(“the Will”), in terms of which the first and second respondents were appointed as
executors to the deceased estate. The deceased passed away on 27 January 2022,
and the executors were appointed by the Master on 27 June 2022.
[3] The applicant’s complaint is that, despite repeated requests, the executors have
failed to take prescribed steps in the furtherance of the administration of the deceased
estate, and specifically the lodgement of the liquidation and distribution account. Neither
have they provided the applicant with requested banking and accounting documents
relating to the estate, specifically in relation to a guesthouse which continues to operate
at the property of the deceased as an Air B&B business.
[4] Similarly, the applicant’s pleas to the Master’s office have fallen on deaf ears, as
indicated by that office’s failure to respond to the applicant’s communication dated 4
May 2023 and 1 November 2023 in which the applicant set out the delays experienced
and his frustration with the executors’ handling of the estate, including their failure to file
a liquidation and distribution account , or to request extension of the prescribed date for
submission thereof from the Master , or to respond to his pleas for progress in the
administration of the estate.
[5] In his communication to the Master, the applicant stated his view, which is at the
heart of this application, namely that the second respondent has a conflict of interest
between her duties as an executor and her interests as a beneficiary because she
continues to reside at the property which is owned by the deceased estate and
continues to earn an income from the AirB&B business, at the expense of the applicant,
who is the only other beneficiary in terms of the Will.
B. THE RESPONDENTS’ CASE
[6] The second respondent’s stance, supported by the first respondent, is that the Air
B&B is not an asset of the deceased estate . According to the second respondent, the
deceased never earned any income from it ; nor did he wish to do so. Instead, the
deceased’s intention was for the second respondent to generate an independent
income, and to cease her 30 year -long transcription services work which had become
increasingly burdensome. She also state s that the income received from the
guesthouse was never declared as income in the deceased’s tax returns to the South
African Revenue Services (SARS) while he was alive, but was reflected in hers.
[7] In answer to the applicant’s complaint that the executors have failed to take steps
in furtherance of the administration of the estate, t he respondents have attached to their
answering affidavit a letter of 14 March 2024 addressed to the Master , in which the
executors requested a n extension for the lodging of the first and final liquidation and
distribution account, until 6 September 2024. The reasons, in summary were that the
applicant had removed a motor vehicle belonging to the deceased estate, without
permission and was refusing to return it, which was delayin g the valuation of the estate.
There is a dispute of fact regarding this issue.
[8] Secondly, the executors explain that a summons was issued against a deceased
brother of the applicant ( “Adi”), for an amount of some R4 million, which was owed by
him to the deceased. They explain that that claim is opposed by the executors in Adi’s
deceased estate in litigation that is still pending. The applicant complains that the claim
is “meritless” and is borne that out of ill -will and greed on the part of the second
respondent, and is causing unnecessary delays in the finalization of the deceased
estate. Another reason given for the delay in the finalization of the deceased’s estate by
the executors is this current litigation.
C. THE RELEVANT LAW
[9] Section 25(1) of the Constitution of the Republic of South Africa 108 of 1996 (“the
Constitution”) provides that no one may be deprived of property except in terms of law
of general application, and no law may permit arbitrary deprivation of property. The
Constitutional Court has held that freedom of testation forms part of section 25(1) , in
that it protects a person’s right to dispose of his or her assets, upon death, as he or she
wishes.1 That Court has also held that freedom of testation trigger s the constitutionally
enshrined rights to privacy (section 10) and dignity (section 14) of the Constitution.2
1 Moosa N.O. v Minister of Justice [2018] ZACC 19; 2018 (5) SA 13 (CC) para 18.
2 King N.O. and Others v De Jager and Others [2021] ZACC 4; 2021 (4) SA 1 (CC) at para 144; Minister
of Education v Syfrets Trust Ltd 2006 (4) SA 205 (C); Curators, Emma Smith Educational Fund v
University of KwaZulu Natal 2010 (6) SA 518 (SCA) para 46.
[10] The law is settled that testators have the freedom to dispose of their assets in a
manner they deem fit, an issue that is central to the concept of ownership , except
insofar as the law places restrictions on this freedom.3
[11] Regarding the interpretation of wills, the ‘golden rule’, which was established as
far back as 1914, is to a scertain the wishes of the testator from the language used. And
when these wishes are ascertained, the court is bound to give effect to them, unless
there is a rule or law which prevents that.4
[12] In addition, there has been support for what has been referred to as an ‘armchair
approach’ which was espoused in Aubrey Smith v Hofmeyer NO5, as follows:
‘Generally speaking, in applying and construing a will, the Court's function is to
seek, and to give effect to, the wishes of the testator as expressed in the will.
This does not mean that the Court is wholly confined to the written record. The
words of the will must be applied to the external facts and, in this process of
application, evidence of an extrinsic nature is admissible to identify the subject or
object of a disposition. Evidence is not admissible, however, where its object is to
contradict, add t o or alter the clearly expressed intention of the testator as
reflected in the words of the will. ... in construing a will the object is not to
ascertain what the testator meant to do but his intention as expressed in the will.
On the other hand, in addition to receiving evidence applying the words of the will
to the external facts, the Court is also entitled to be informed of, and to have
regard to, all material facts and circumstances known to the testator when he
made it. As i t has been put, the Court places itself in the testator's
armchair. Nevertheless, the primary enquiry still is to ascertain, against the
3 See Spangenberg and Others v Engelbrecht NO and Another (717/21) [2023] ZASCA 100 (14 June
2023) at para 9; King N.O. and Others v De Jager and Others [2021] ZACC 4; 2021 (4) SA 1 (CC) para
144.
4 Robertson v Robertson 1914 AD 503 and 507.
5 Aubrey Smith v Hofmeyer NO 1973 (1) SA 655 (C) at 657E - 658C.
background of these material facts and circumstances, the intention of the
testator from the language used by him in his will’
[13] It has been held 6 that, in effect, both the golden rule and the armchair approach
are encapsulated in Natal Joint Municipal Pension Fund v Endumeni Municipality 7,
although that case did not deal with the interpretation of a will. That case set out the
interpretative rule as follows:
‘Interpretation is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument, or contract, having
regard to the context provided by reading the particular provision or provisions in
the light of the document as a whole and the circumstances attendant upon its
coming into existence. Whatever the nature of the document, consideration must
be given to the language used in the light of the ordinar y rules of grammar and
syntax; the context in which the provision appears; the apparent purpose to
which it is directed and the material known to those responsible for its production.
… The inevitable point of departure is the language of the provision its elf, read in
context and having regard to the purpose of the provision and the background to
the preparation and production of the document.’
[14] In KPMG Chartered Accountants (SA) v Securefin Ltd 8, the Supreme Court of
Appeal (SCA) held that , to the extent that evidence may be admissible to contextualise
the document to establish its factual matrix or purpose or for purposes of identification, it
must be used as conservatively as possible . That is only when a patent or latent
ambiguity appears from the written document, including a will, for the purposes of
evaluating, interpreting and making a finding on a clause in the document. The case of
Engelbrecht v Senwes Ltd9 is instructive in this regard, where the following was stated:
6 Spangenberg and Others v Engelbrecht NO and Another para 14 and 15.
7 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA)
para 18.
8 KPMG Chartered Accountants (SA) v Securefin Ltd 2009 (4) SA 399 (SCA) para 39.
9 Engelbrecht v Senwes Ltd 2007 (3) SA 29 (SCA) paras 6 -7. Approved in Eke v Parsons 2016 (3) SA
37 (CC) para 30.
‘The intention of the parties is ascertained from the language used read in its
contextual setting and in the light of admissible evidence. There are three
classes of admissible evidence. Evidence of background facts is always
admissible. These facts, matters probably present in the mind of the parties when
they contracted, are part of the context and explain the ‘genesis of the
transaction’ or its ‘factual matrix’. Its aim is to put the Court ‘ in the armchair of the
author(s)’ of the document. Evidence of ‘surrounding circumstances’ is
admissible only if a contextual interpretation fails to clear up an ambiguity or
uncertainty. Evidence of what passed between the parties during the negotiations
that preceded the conclusion of the agreement is admissible only in the case
where evidence of the surrounding circumstances does not provide ‘sufficient
certainty’.
[15] With this legal background in mind, I now turn to deal with the parties’
contentions.
D. DISCUSSION
[16] At the heart of the dispute between the parties is the interpretation of the
provisions of the Will, which read as follows:
“2. EXECUTORS AND TRUSTEES
2.1 I nominate my life partner, SUSANNA ALETTA LOUBSER
ID NR 6 [...] and MARYNA PETERSE ID NR 5 [...] to be the
Executors of my Estate and Trustees of the Trust herein
created.
…
2.3 It is my wish that my Executors and Trustees herein, shall
direct my beneficiaries in terms of this Will, to occupy 1 [...]
P[...] Place, Melkbosstrand, subject to the following:
2.3.1 It is my wish that the guesthouse established by
myself and my life partner, SUSANNA ALETTA
LOUBSER, at 1 [...] P[...] Place, Melkbosstrand, shall
continue to be run in the same way as it has been
since its inception in 2017 and that the proceeds (and
liabilities) of this business be divided equally between
my two beneficiaries in terms of this Will.
2.3.2 To achieve this, I direct that my life partner, as
remuneration for her running every aspect of t his
business, be allowed to stay rent -free on the
premises.
2.3.3 Should my son, SEAN LAWRENCE BEUKMAN, wish
to occupy the apartment, cottage, or any room
presently forming part of the main house or
guesthouse, he shall forfeit from his share of the
monthly income derived from the property, the
potential income value of the unit he wishes to
occupy.
4. DISTRIBUTION OF ESTATE
I give and bequeath as follows:
4.1 To my life partner, SUSANNA ALETTA LOUBSER (ID NR
6[...]):
4.1.1 A 5 0% share of my property situated at 1 [...] P[...]
Place, Melkbosstrand (Erf 2[...] Melkbosch Strand);
4.1.2 My BMW, 2016 model, C[...], or replacement thereof;
4.1.3 Speed Queen washing machine, drier, dishwasher,
microwave, television.
4.1.4 The said SUSANNA ALETTA LOUBSER shall retain,
as her exclusive property, all items being used in the
1[...] P[...] Place Guesthouse, (“the guesthouse” )
comprising of two sea -facing bedrooms, two bedroom
apartment and two bedroom cottage).
In the event of SUSANNA ALETTA LOUBSER not surviving me for a
period of 30 days, ten her share shall devolve upon my son, SEAN
LAWRENCE BEUKMAN (ID NR 6 [...]) or my grandson, JOHN
LAWRENCE BEUKM AN (ID NR 0 [...]). This share shall be limited to
bequeaths she would have received in terms of Sub Paragraph 4.1.1,
4.1.2 and 4.1.3 supra , but will exclude items stipulated in Sub Paragraph
4.1.1 supra.
4.2 To my son, SEAN LAWRENCE BEUKMAN (ID NR 6[...])
4.2.1 A 50% share of my property situated at 1 [...] P[...]
Place, Melkbosstrand (Erf 2[...] Melkbosch Strand);
4.2.2 My Ford Ranger bakkie, registration number C [...], or
replacement thereof;
4.2.3 Any furniture and movable items belonging to me and
not mentioned in Sub Paragraphs 4.1.3 and 4.1.4
supra.
In the event of SEAN LAWRENCE BEUKMAN not surviving me for a
period of 30 days, then his share shall devolve upon my grandson JOHN
LAWRENCE BEUKMAN (ID NR 0[...])
5. REST AND RESIDUE
I give and b equeath the rest and residue of my Estate, nothing
excepted whatsoever, in equal shares to my life partner, SUSANNA
ALETTA LOUBSER and to my son, SEAN LAWRENCE
BEUKMAN. In the event of SUSANNA ALETTA LOUBSER not
surviving me for a period of 30 days, then h er share shall devolve
upon my son, SEAN LAWRENCE BEUKMAN . In the event of
SEAN LAWRENCE BEUKMAN not surviving me for a period of 30
days, then his share shall devolve upon my grandson, JOHN
LAWRENCE BEUKMAN.”
[17] Although the applicant approached the Court on the basis, amongst others, that
the second respondent typed the Will and that she should be disqualified from receiving
any benefit therefrom based on section 4 A(1) of the Wills Act No. 7 of 1953, this ground
was abandoned at the commencement of proceedings. Furthermore, it is not necessary
to decide whether or not the deceased was unduly influenced in drafting the Will,
although the issue takes considerable space in the applicant’s papers, because the Will
was accepted by the Master and its validity has never been challenged.
[18] The parties’ present deadlock regarding the AirB&B business brings into sharp
focus the provisions of paragraphs 2.3 to 2.3.3 of the Will. In the f irst place, paragraph
2.3.1 reveals that the AirB&B, which is referred to as a guesthouse in the Will, was
established on the property by the deceased and the second respondent in 2017. To the
extent that there is a dispute between the parties regarding who was instrumental, or
most instrumental, in its establishment, the Will draws no such distinction, but
acknowledges a joint effort on the part of both the deceased and the second
respondent.
[19] Then, according to paragraph 2.3.1, the guesthouse is to continue to be run in
the same way as it has been since inception, but no detail is provided in this regard. It is
in this context that the respondents’ version is relevant, namely that the income
generated from the guesthouse has always been for the second respondent’s benefit, to
the exclusion of the deceased. This contention is based, firstly, on the allegation that the
income gained from the business was not declared as the deceased’s in his income tax
returns submitted to SARS, but was declared as the second respondent’s. Secondly, the
second respondent relies on an alleged agreement with the deceased that she would
retain the income generated by the guesthouse.
[20] Although the second respondent relies significantly on the allegation relating to
income tax returns submitted to SARS , she did not provide her tax returns in support of
these averments. In this regard, the applicant delivered a notice in terms of Uniform
Rule 35(12), requesting the income tax returns and bank statements of the deceased
and of the second respondent for the whole period starting in 2017, which is when the
guesthouse was started. The second respondent objected to the production of her tax
returns on the basis that they contain confidentia l information. She also objected to the
production of the bank account statements of the deceased as from 2017 to his passing
on the basis that she was not in possession thereof and because she did not refer to
those documents in her answering affidavit. She, however, disclosed some tax
documents of the deceased, as from 2019 to 2022.
[21] The second respondent is supported by the first respondent who states, in her
capacity as the deceased’s previous tax consultant who completed the deceased’s tax
returns from 2019, that the deceased never viewed the guesthouse or the income
derived from it as part of his estate, and as a result, the income from the guesthouse
was never reflected on his tax returns by her. However, the first respondent’s affidavit
did not attach tax returns from 2017, understandably because she only assisted the
deceased from 2019. As an executor, however, she would have access to those
documents if she requested them in terms of her fiduciary and custodial duties in terms
of the Administration of Estates Act 66 of 1965.
[22] It is understandable that the applicant made the Rule 35 request for the period
starting in 2017 because it would provide information relating to the period that the
business resumed and whilst the deceased was alive, so that this Court and the
applicant can have insight into th e respondents’ version, and be able to assess whether
or not their version is correct. This issue, after all, is the high watermark of the seco nd
respondent’s stance that the business income belongs only to her.
[23] The stance adopted by the respondents in response to the Rule 35(12) Notice is
unsatisfactory. Even if it is true that the deceased did not declare the income of the
guesthouse as part of his tax obligations , that does not necessarily mean that the
income belonged to the second respondent whilst the deceased was alive , or that it is
now due to the second respondent . Given the second respondent’s considerable
reliance on th e tax return averments , the executors’ refusal and/or failure to provide all
those documents is unhelpful because that information would only be peculiarly within
their knowledge.
[24] Furthermore, the importance and relevance of those documents to these
proceedings cannot be understated given that part of the reason that the applicant has
approached this Court is his frustration that the administration of the estate has been
shrouded in mystery and lack of information. I am accordingly in agreement with the
applicant that the respondent s, and in particular the second respondent, has failed to
take the Court into her confidence in support of her contention in this regard. As a result,
I consider her averment that her income tax documents prove that the income
generated from the guesthouse has always been hers, to be bald an d unsubstantiated,
and cannot be decided in her favour in light of Plascon-Evans10 rule.
[25] But most importantly, even if the respondents’ version is correct, that does not
have the effect of invalidating or vitiating the express terms of the Will which relate, not
to the past but the future income of the guesthouse. Nowhere does the Will state that
the guesthouse and income derived therefrom is not to be considered as part of the
deceased’s estate. Instead, paragraph 2.3.1 states unambiguously that the future
proceeds and liabilities of the guesthouse are to be divided equally between the two
beneficiaries, namely the second respondent and the applicant. It has not been
suggested by the respondents that the deceased was not entitled to include such a
provision in his will. After all , if the income of guesthouse was not his to dispose of one
would have expected the second respondent to take issue with that, in line with the well-
established principle of election in terms of which a beneficiary must either adiate or
repudiate the benefits of a will.11
[26] The general rule in that regard is that a beneficiary is assumed to have adiated
unless she expressly repudiates. In Ex Parte Sutherland , the court quoted a passage
from Wills as follows:
“The principle of election is that when a testator bequeaths or disposes of
property which belongs to a beneficiary (heir or legacy) alone or which
belongs to the beneficiary jointly with the testator, the beneficiary must
elect whether he will accept the b enefits conferred by the will. If he
accepts the benefits he must abide by the other provisions of the will
disposing of his own property (or his share therein), and the bequest and
disposition of his own property must be fulfilled, the rule being that, wh en
a person accepts a benefit under a will, he is bound to adopt the whole
10 Plascon-Evans Paints (TVL) Ltd v Van Riebeck Paints (Pty) Ltd 1984 (3) SA 623 (A). See also National
Director of Public Prosecutions v Zuma [2009] 2 All SA 243; 2009 (2) SA 279 (SCA).
11 Ex parte Sutherland N.O. 1968 (3) SA 511(W); Meyerowitz, The Law and Practice of Administration of
Estates and their Taxation (2023) Juta, page 323 para 18.4. See also LAWSA 2011 para 218.
contents of the will conforming to all its provisions and renouncing every
right inconsistent with it, and that when he elects to keep his own property
he forfeits all benefits under the will.”
[27] The second respondent has taken no step s to repudiate the terms of the Will ,
even after the doctrine of election was pertinently raised in the applicant’s papers, and
she must accordingly be taken to have accepted all its terms. That being so, it must be
accepted that the terms of the Will require the second respondent to share the income
of the guesthouse with the applicant. There is otherwise no evidence of the alleged
agreement between the deceased and the second respondent to the effe ct that the
second respondent is to retain the income from the guesthouse for her own use ,
whether from before the death of th e deceased or afterwards. At best, the evidence
indicates that the income from the Air B&B business was shared between the deceased
and the second respondent, but even in that regard, there is not adequate evidence to
reach a definitive conclusion. But, in any event, in the face of the clear terms of the Will
which make provision for the future proceeds of the business to be divided equally
between the applicant and the second respondent, such a conclusion would not entitle
the second respondent to exclusively retain the income of the guesthouse.
[28] The result is that, w here paragraph 2.3 .1 states that the guesthouse is to
continue to run as it has been since its inception, that cannot include the proceeds and
liabilities of the business because the Will expressly sets out what is to be done in
regard thereto. The phrase: “shall continue to be run in the same way as it has been
since its inception ”, must therefore refer to something other than the income and
liabilities of the business. Rather, the strong likelihood is that this phrase refers to the
operational running of the business.
[29] That conclusion is supported by the specific acknowledgement in paragraph
2.3.2 of the second respondent’s “running every aspect of this business”. In that regard,
the paragraph provides that the second respondent is to be remunerated, not by
retaining income received from running the business , but by being allowed to stay rent -
free on the property. This is another clear indication that the income from the
guesthouse is not automatically due to the second respondent . If that were so, there
would be no need for the Will to provide for her remuneration.
[30] Concomitant to paragraph 2.3 .2 is paragraph 2.3 .3, in terms of which the
applicant may occupy part of the property , in which event he forfeits what is granted in
paragraph 2.3 .1, namely his share of the monthly income derived from the propert y.
This is further support that the income generated from the Air B&B is to be shared
equally between the applicant and the second respondent , and that the deceased had
the exclusive right to dispose thereof as between the two beneficiaries.
[31] Thus, a holistic reading of paragraph 2.3 is that it sets out the conditions for two
things, namely the continuation of the guesthouse business, and secondly, the
occupation of the property by the beneficiaries. It permits the second respondent to
continue to run the guesthouse. If she continues to run the business, her remuneration
is to occupy the property free of charge . It is not to receive the full income of the
business, but only a half share of the proceeds of the guesthouse.
[32] By contrast, the applicant stands to lose more if he chooses to occupy the
property in that he forfeits his half share of the income generated from the Air B&B
business according to paragraph 2.3.3. In this regard, it was highlighted on behalf of the
respondents that, since the applicant has no wish to occupy the property, paragraph 2.3
as a whole cannot be implemented because the two beneficiaries cannot agree
regarding its implementation.
[33] I do not agree with th is argument. Paragraph 2.3.3 gives the applicant an option
to occupy the property or not. If he chooses to occupy the property, he forfeits his share
of the income derived from the property in terms of clause 2.3.1. If he chooses not to
occupy the property, he does not forfeit his share of the monthly income derived from
the property. That is the only consequence of his choosing not to occupy the property. It
is not that the whole of 2.3 cannot be given effect to.
[34] There is accordingly a way to interpret the Will i n such a manner that the
business continues to run, operated and occupied only by the second respondent . In
such event, each beneficiary receives their share of the income generated from the
business, but in addition, the second respondent occupies the property for free.
[35] The converse is that, if the second respondent is not willing to continue to run the
guesthouse, there is no income to generate from th e business and no income for the
beneficiaries to share. It also means that there is no remuneration for the second
respondent in terms of paragraph 2.3.2, for her running of the business in the form of
free accommodation on the property. It is in that eventuality that selling the property in
terms of paragraph 4 may be the only available option.
[36] Whilst paragraphs 2.3 to 2.3.3 set out the conditions for occupation of the
property during the continued running of the guesthouse business , paragraph 4 dea ls
with the distribution of the estate, in terms of which each of the beneficiaries is to
receive 50% of the property plus a motor vehicle and specified movable items. The
respondents argued that, because paragraph 2.3 is dealt with under the heading of
‘Executors and Trustees’ instead of under ‘Distribution of the Estate’, it does not amount
to a bequeathment. This is also indicated, so it was argued, by the fact that paragraph
2.3 opens with: “It is my wish” . In aid of this argument the respondents referred to the
previous will of the deceased dated June 2021, which made no mention of the
guesthouse, an indication that the guesthouse is not an asset in the estate but merely a
business that is inextricably linked to possession and/or ownership of the property. Apart
from this, the respondents point out that the second respondent is to acquire all the
movable property that is currently used in the guesthouse , which is another indication
that her ownership of the guesthouse.
[37] I have already dealt with the second respondent’s alleged ownership of the
guesthouse. It is neither supported by the terms of the Will , nor by any evidence before
this Court. But importantly, the running of the guesthouse can not operate outside the
ambit of section 26 of the Administration of Estates Act which places upon the executors
a duty to take custody and control of all the deceased’s estate, save for that which is in
the possession of any person who claims to be entitled to retain it under any contract,
right of retention or attachment . The second respondent has yet to establish a right to
retain the income of the guesthouse, even in these proceedings, save for her say -so. In
those circumstance, u ntil there is a di sposition of the deceased’s estate in the form of
sale of the property, the income generated from the guesthouse must be dealt with in
accordance with clause 2.3.1.
[38] The fact that paragraph 2.3 is formulated as a wish does not mean it deserves
less weight or can be ignored , and I have not been referred to any legal authority for
such an approach . That would go against the principle of freedom of testation. In
expressing the contents of paragraph 2.3 as a wish, the deceased was expressing his
intimate wishes as regards the continuation of the guesthouse, whose ownership is not
seriously disputed as already discussed. The deceased’ s right to express his intimate
wishes in this regard has been recognized by the Constitutional Court in the following
passage of King N O and Others v De Jager and Others:
‘It cannot be gainsaid that private testamentary bequests (when
juxtaposed to publ ic trusts) relate to our most intimate personal
relationships and can very well be based on irrational and erratic decisions
which are located in the domain of the “most intimate core of privacy”. It is,
therefore, apposite for the right to privacy to play an active role in
determining whether judicial interference can enter the perimeter of private
testamentary bequests. This, in turn, buttresses the point that when courts
intervene in private testamentary bequests of this nature there ought to be
a lower level of judicial scrutiny.’12
[39] As was stated in Raubenheimer v Raubenheimer and Others13:
12 At para 144.
13 Raubenheimer v Raubenheimer and Others 2012 (5) SA 290 (SCA) par [23].
“In interpreting a will, a court must if at all possible give effect to
the wishes of the testator. The cardinal rule is that 'no matter how clumsily
worded a will might be, a will should be so construed as to ascertain from
the language used therein the true intention of the testator in order that his
wishes can be carried out.”
[40] The conclusion of all the above is that there is no support for the reading of the
Will in such a way that the income from the Air B&B belongs solely to the second
respondent and not to the deceased estate.
[41] In terms of section 54(1)(a)(v) of the Act a court has a discretion to remove an
executor from office if it is undesirable that he or she should act as executor of the
estate concerned. Some of the relevant considerations in this regard may include the
interests of the estate and of the other beneficiary in the estate .14 Mere disagreements
between heirs and the executor of a deceased's estate, or even a breakdown in the
relationship between one of the heirs and the executor is insufficient for the discharge of
the executor in terms of subsection 54(1)(a)(v) of the Act. It must be shown that, inter
alia, the executor has conducted him or herself in such a manner that it has actually
affected his or her proper administration of the estate.
[42] The court will remove an executrix on the ground of maladministration or
absence of administration if proved to its satisfaction. 15 Executors have been removed
for failing to lodge accounts after a long period had lapsed 16, and for serious dereliction
of duty. Mere negligence in administration will ordinarily not be a ground for removal in
the absence of proof that the estate or the beneficiaries would be prejudiced if the
executor remained in office.17
14 See Gary v Kolver NO Gory v Kolver NO and Others (CCT28/06) [2006] ZACC 20; 2007 (4) SA 97
(CC); 2007 (3) BCLR 249 (CC) (23 November 2006) ft 65.
15 Section 54(1)(a).
16 Die Meester v Meyer 1975 (2) SA 1 (T).
17 Van Heerden v Keyser 1913 CPD 3 ; Nettleton v Kilpatrick 1 Roscoe 190 ; Keane v Coghlan 11 CTR
550. See also Letterstedt v Broers 9 AC 370; Sackville West v Nourse 1925 AD 516 at 527.
[43] Meyerowitz states that: -
“Where it is sought to remove an executor from office it must appear that
the acts complained of are such as to stamp the executor as a dishonest,
grossly inefficient or untrustworthy person whose future conduct can be
expected to expose the estate to actual loss, or of administration in a way
not contemplated …”18
[44] As stated in Gary v Kolver 19section 54(1)(a)(v) confers a discretion on the Court
to remove an executor if it is satisfied that it is just and equitable for the executor to be
removed.
[45] The facts outlined earlier indicate that the second respondent harbours a clear
conflict of interest and is intra nsigent with regard thereto. No legal basis is revealed in
the evidence for the second respondent ’s claim to retain the guesthouse income. The
correspondence indicates that, since the appointment of the executors, the applicant
has been sent from pillar to post, mostly to get the second respondent to comply with
the clear terms of the Will. And regrettably, the first respondent failed to bring to bear an
objective mind to the respective beneficiaries’ dispute in this regard. The equities were
accordingly tilted against the applicant. This is one reason I am of the view that it would
be just an equitable for the second respondent to be removed as an executor. Her
interests as a beneficiary in this matter are interfering with her duties as an executor.
[46] The delays in the administration of the estate, while the second respondent
continues to earn an income from the estate, to the detriment of the applicant, are
incongruous. As a result of the long history of events that have occurred, it is evident
that there has been a complete breakdown of trust between the applicant and the
respondents, and the former has lost all faith in the m as executors. This is aside from
18 Volkwyn NO v Clarke & Damant 1946 WLD 456.
19 At para 56.
the acrimony between the applicant and the second respondent, which is evident from
the papers, and which is not sufficient to remove the respondents as executors. The
conflict of interest alone has a detrimental effect on the proper administration of the
estate, and is sufficient reason to remove, at the very least the second respondent, as
an executor. However, as discussed below, the delays incurred in the matter, are also
relevant, as is the conduct of the first respondent.
[47] For now, it is relevant to mention that courts have held that it is only executors
who are vested with the authority to vindicate the assets of an estate. In this case, that
would include the authority to institute proceedings for disclosure of the income of the
Air B&B business from 2017 and to pay over the income received since the passing of
the deceased, to the deceased estate.
[48] In Cumes v Estate Cumes 20 it was held that if an heir or other interested per son
maintains that an executor should take steps for the recovery of assets in the estate,
then his or her proper remedy, if such action is not instituted, is to request the court for
the removal of the executor for breach of duty, since it is only the exe cutor who is
vested with the authority to vindicate the assets of the estate. In Segal and Another v
Segal and Others the court stated as follows:
“In our law the executor is the person in whom, for administrative
purposes, the deceased’s estate vests. It is his function to take all such
steps as may be necessary to ensure that the heirs in the estate to which
he is appointed receive what in law is due to them. It is an aspect of this
function to remove whatever obstacles exist to the achievement of this
end. If the actions of an executor in another estate are such as to prevent
the receipt by the estate which he administers of assets due to such latter
estate, it is he who should take all appropriate steps to remedy the
position. If these steps involve t he removal of the executor in such other
20 Cumes v Estate Cumes 1950 (2) SA 15(C) at p19. See also Gross and Others v Pentz [1996] ZASCA
78; 1996 (4) SA 617 (SCA).
estate it falls within the competence of the executor in the creditor estate,
and not of an heir in the estate, to take the necessary action.”
[49] The applicant has requested information relating to the income of the guesthouse
for a long time before instituting these proceedings, with the second respondent
refusing to give such account on the basis that the income is hers to retain. As a result,
the actual income of the guesthouse for this whole period remains unk nown, and the
second respondent continues to benefit from it. It is no wonder that the applicant seeks
an order directing the executors to account in respect of the business, amongst other
things. The second respondent’s failure to account in respect there of is in direct conflict
with her responsibilities an executor. The income should furthermore be paid into the
bank account of the deceased estate and form part of its administration, as required in
terms of section 28 of the Act.
[50] As I have already adverted, the first respondent has failed to display impartial ity
in keeping with her fiduciary duties , and has, instead, enabled the second respondent’s
conduct, which the applicant regards as rubber -stamping. I agree with the applicant. I
have already rejected the view held by he r in support of the second respondent , which
is contrary to the clear terms of the Will , that the income of the Air B&B belongs to the
second respondent and not the deceased estate. It is difficult to reconcile the fiduciary
responsibilities held by the first respondent as an executor, with her decision to go along
with the second respondent’s stance. In part , this may be explained by her reliance on
what she claims occurred prior to the death of the deceased. However, that information
is clearly at odds with the expressed terms of the Will, which she is required to execute
as part of her fiduciary duties. There is also to consider that the first respondent did not
distance herself from t he conduct of the second respondent or from opposing this
application.
[51] The primary duties of an executor are succinctly set out in Meyerowitz,
Administration of Estates and Estate Duty,21 which states that:
21 2004 edition, para 12.20.
“The executor acts upon his own responsibility, but he is not free to deal
with the assets of the estate in any manner he pleases. His position is a
fiduciary one and therefore he must act not only in good faith but also
legally. He m ust act in terms of the will and in terms of the law, which
prescribes his duties and the method of his administration and makes him
subject to the supervision of the Master in regard to a number of matters”.
[52] The learned author also states 22 that an executor is “not a mere procurator or
agent for the heirs ”, but is legally vested with the administration of the estate. Where
there are co-executors, Meyerowitz23 points out that “all of the executors must exercise
their functions and duties jointly, and or share equal responsibility for the administration
of the estate and are liable for one and other’s acts. If one of the executors refuses to
join in the administration of the est ate ... The remaining executors must seek relief from
the court by obtaining an order compelling the co-executor to do the specific required, or
dispensing with his concurrence, or removing him from office...”
[53] In addition to the above , there have bee n some delays in the matter , which are
not explained satisfactorily. It is not disputed that, as far back as 17 March 2022, before
the appointment of the executors, the applicant made clear that he wished for the
administration of the estate to be finalise d as soon as possible and that all the property
in the estate should be sold. Then, as from 4 May 2022 the applicant’ s attorneys
requested various financial documents, including a statement of account reflecting the
income and expenses pertaining to the property since the passing of the deceased, with
no success. Although the execut ors were not yet appointed at that stag e, they have not
denied being aware of the applicant’s stance and requests since appointment . The
evidence shows that the applicant’s pleas have fallen on deaf ears. And it is only the
second respondent that has benefited from the delays in the administrat ion of the
estate, whether by design or wilfully. It is therefore ironic that two years later, an
22 At para 12.20.
23 At para 12.20
argument was mounted on behalf of the respondents that the property should rather be
sold because the applicant does not want to occupy the property whilst th e second
respondent wants to continue running the guesthouse.
[54] Despite the fact that the executors were appointed on 27 June 2022, a written
request for extension of the period for the filing of a liquidation and distribution account
(“L&D account”), was only made after the launching of these proceedings on 14 March
2024. Although the executors allege that they previously made a request orally, there is
no indication when this was, or of any other details in that regard or of evidence thereof.
I am inclined to agree with the applicant that this is a belated knee jerk reaction given
that they were appointed almost a year previously, and had failed to respond to the
applicant’s inquiries about their progress.
[55] Cynically, the executors reported in th at same belated letter of 14 March 2024
that these proceedings were part of the cause of the delay in the administration of th e
estate. This, in circumstances where these proceedings were launched more than a
year after their appointment. No reason is otherwise given for the belated request for
extension, or the failure to provide the requested documentation to the applicant.
[56] Another reason given in that letter for the delays is the litigation involving the
estate of the deceased Adi, which was launched on 6 September 202 3, over a year
after the appointment of executors . I note that the merits of that matter are disputed by
the applicant. However, I do not consider it appropriate to pro nounce on that issue in
these proceedings given that the matter is before a court of law, and given that this
Court has not been fully placed in a position to pronounce on the merits thereof. It is
rather appropriate that that litigation should take its course.
[57] For all these reasons, I am of the view that both executors should be removed
from their positions as executors, and for new executors be appointed, forthwith.
E. COSTS
[58] The applicant seeks costs de bonis propriis against the executors. Although the
conduct of the executors leaves much to be desired, especially that of the second
respondent, who continues to earn an income from the v ery estate that she is
administering and continues to refuse to account for that inc ome, I am of the view that
the first and second respondents should pay costs on an attorney and own client scale.
There is no reason as to why the estate, from which the second respondent continues
benefit, should be placed out of pocket.
[59] The same applies in respect of the applicant who has been forced to approach
the Court in the circumstances of this case. The law allows a beneficiary, by reason of
their vested right in the proper administration of the estate, to institute proceedings
especially in circumstances where the executor is conflicted in challenging her own
decision, as is the case here.24
[60] Furthermore, it is clear from the contents of the letter addressed by the executors
to the Master on 14 March 2024 that they only formally sought an extension as regards
the submission of the prescribed documents once these proceedings were launched.
And they mischievously, if not misleadingly, included the institution of these proceedings
as an additional cause for delay in the finalization of the administration of the estate.
Had they been accountable and transparent regarding their administration of the estate
it would not have been necessary for the applicant to launch these proceedings.
F. ORDER
[61] For all these reasons, the following order is granted:
1. The first and second respondents are hereby removed as executors of the
deceased estate of the late Ronnie Johann Beukman (“the deceased estate”).
24 This is known as the ‘Benningfield principle’ from the foreign case of Benningfield v Baxter (1886) 12
AC 67 (PC).
2. The third respondent is ordered to appoint a new executor to the deceased
estate, within thirty days hereof.
3. The first and second respondents shall, within 15 court days of the
appointment of the new executor, deliver to such executor an account of their
administration of the deceased estate, duly supported by the relevant
documentation, which account shall include:
3.1 A chronological summary of all the procedural steps taken by them
during the administration of the deceased estate;
3.2 All the income received and expenses incurred to date;
3.3 A list of all the established assets of the deceased estate and th eir
whereabouts;
3.4 A list of all the liabilities and running expenses of the deceased estate;
and
3.5 All further information or documents in their possession or under their
control that the new executor may reasonably required in order to take
over the administration of the deceased estate.
4. The first and second respondent s are to pay the costs on an attorney and
own client scale.
_________________________
N. MANGCU-LOCKWOOD
Judge of the High Court
Appearances
For the applicant : Adv A Walters
Instructed by : Smit & Kie Attorneys
Y Smit
For the respondent : P D W Myburgh
Instructed by : Riaan De Kock & Co. Inc.
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No:2526/2024
In the matter between:
SEAN BEUKMAN Applicant
and
MARYNA PIETERSE N.O. First Respondent
In her capacity as Co-Executor of the
Deceased Estate of The late Ronnie Johann Beukman
(Master’s Reference: 4249/2022)
SUSANNA ALETTA LOUBSER N.O. Second Respondent
In her capacity as Co-Executor of the
Deceased Estate of The late Ronnie Johann Beukman
(Master’s Reference: 4249/2022)
THE MASTER OF THE HIGH COURT, CAPE TOWN Third Respondent
____________________________________________________________________
VARIATION ORDER IN TERMS OF RULE 42 DELIVERED ELECTRONICALLY
ON 11 DECEMBER 2024
_____________________________________________________________________
The parties have brought to my attention that the costs order in the judgment handed
down on 26 November 2024 contained an ambiguity, which I consider to be an error.
Accordingly, paragraph 4 of the order is hereby varied in terms of Rule 42, to reflect the
intention of the judgment.
THE VARIED ORDER
Having considered the documents filed of record and heard counsel for the
parties, it is hereby ordered as follows:
5. The first and second respondents are hereby removed as executors of the
deceased estate of the late Ronnie Johann Beukman (“the deceased estate”).
6. The third respondent is ordered to appoint a new executor to the deceased
estate, within thirty days hereof.
7. The first and second respondents shall, within 15 court days of the appointment
of the new executor, deliver to such executor an account of their administration of
the deceased estate, duly supported by the relevant documentation, which
account shall include:
3.6 A chronological summary of all the procedural steps taken by them during
the administration of the deceased estate;
3.7 All the income received and expenses incurred to date;
3.8 A list of all the established assets of the deceased estate and their
whereabouts;
3.9 A list of all the liabilities and running expenses of the deceased estate; and
3.10 All further information or documents in their possession or under their
control that the new executor may reasonably required in order to take over
the administration of the deceased estate.
8. The first and second respondents are to pay the costs de bonis propriis, jointly
and severally, on an attorney and client scale.
BY ORDER OF THE COURT
_________________________
COURT REGISTRAR
Smit & Kie Attorneys
Y Smit
6 Seekant Street
8130
LAMBERTSBAAI
082 888 88 66
yansmit@lando.co.za