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in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NUMBER: 13157/2024
In the matter between
D[...] B[...] FIRST APPLICANT
and
ECKERT BRAND FIRST RESPONDENT
MASTER OF THE HIGH COURT, CAPE TOWN SECOND RESPONDENT
JUDGMENT
on leave to appeal
Date of hearing: 27 November 2024
Date of judgment: 6 December 2024
BHOOPCHAND AJ:
1. Where lies the straw in the vast ocean of words that evades the clutches of a
floundering cause? Where lies the error in adjudication, in which neither fault
of intent nor negligence unfolds? In the hidden meaning between the lines , in
the uncrossed tease and the dotty a yes, nestled amongst the subliminal
nuances of interpretation and the conundrums that neither logic nor reason
divulges. Perhaps, but there, in the cheerless chambers of judicial dormitories
where independence is jealously expressed through the pen’s might that
validates or vitiate s, the elusive thread of truth emerges, intertwined with
conscience and compassion of purpose, tempered by the application of law
and the pursuit of justice, the quest for the straw crumbles.
2. The First Respondent applies for leave to appeal the judgment handed down
on 28 September 2024. For this judgment, the Court retains the citation of the
parties as reflected above. The Respondent has raised 44 grounds of appeal,
which, together with its subparagraphs, amounts to a substantial total of about
seventy (70) grounds of appeal. The formulation of the grounds of appeal did
not lend themselves to easy correlation with the judgment . The Applicant, Ms
B[...], who opposes the application , expressed similar difficulties .
Respondent's Counsel disavowed any obligation to reference the grounds of
appeal in the offending paragraphs of the judgment or the record , although
there was a cursory attempt to reference twelve of them in the record. During
oral argument, the Court insisted that Counsel identify the paragraph s or
portions of the record upon which a ground of appeal was premised. The
process which unduly l engthened the hearing did little to enable the Court to
comprehend the alleged errors arising from them.
THE GROUNDS OF APPEAL
3. Some of the grounds of appeal were wrong. e.g., ground 8.8, where the
Respondent alleges that the Court summarised the facts incorrectly in that the
Respondent did not seek to replace the Applicant in German litigation. Page
84 of the bundle of documents has a copy of the letter the Respondent wrote
to the Judges of the German Court on 13 July 2023. The Respondent
explained to the Judges that the Applicant could not pursue the matter in her
own name. He alone “can decide whether he intends to replace D[...] as
Claimant and pursue the claim”.
4. Ground 7 alleges that the Court found that the Respondent was the author of
the will. Th e Court never made that finding. In ground 8.10 , the Respondent
alleges that the Court summarised the plan for the Respondent to retain the
close corporation incorrectly. The Respondent suggest ed he proposed a
distribution plan to enable the Applicant to retain her German units. This is
incorrect. The R espondent had suggested that the Applicant would have to
give up at least one or two of her three units to enable him to retain the close
corporation as the corporation was verging on insolvency . Through his
Counsel during oral argument, the Respondent elaborated that the estate was
verging on insolvency, to a question posed by the Court to clarify this aspect.
Ground 8.11 suffers the same fate. It is incorrect. As alluded to, t he
Respondent had indicated that the estate was verging on i nsolvency and
would liquidate the close corporation if he had to. The latter was made in
answer to the Applicant’s allegation that the Respondent would try to preserve
his part of the inheritance, which included 4 per cent of the membership in the
close co rporation. Ground 8.12 alleges that the Court summarised the
evidence incorrectly when it said that the Respondent preferred to pay the
maintenance of the deceased’s first wife and the body corporate to maintain
the building in Germany. The Respondent referenced paragraph 144 of the
judgment for this error. The evidence before the Court was that the first wife
was paid her maintenance, but the Applicant was not. The evidence clearly
indicated that the Respondent had s uspended the Applicant’s maintenance
payments in preference to paying the German body corporate to maintain the
public open spaces of the German building.
5. Other grounds of appeal interpreted the Court’s recital of the party's
respective cases as findings of the Court, e.g., Ground 8.5, which relates to
paragraph 35 of the judgment and alleges that the Applicant was given notice
of the Respondent’s intention to intervene in the German proceedings. Apart
from the difficulty of understanding how th e Court summarised the statement
incorrectly, the Respondent failed to grasp that the Court was referring to the
Applicant’s allegation. Ground 8.6 suffers from the same fate. Paragraph 59
contains allegations made by the parties. They are not incorrectly
summarised. Ground 8.9 is tersely stated as follows: “There was no loan
account in GRG”, under the allegation that the Court had incorrectly recorded
this allegation. The Court summarised the Applicant's evidence in paragraph
135 of the judgment , which was referenced as the offending paragraph. This
was not a finding of the Court.
6. Other grounds of appeal are incomprehensible even after oral argument , e.g.,
Ground 13. Ground 13 contends that the Court er red in finding that the First
Respondent represented H[...] in proceedings, in circumstances where H[...]
was included in the divorce settlement proposal, purely because of the
litigation between H[...] and the Applicant. The Respondent referenced
paragraph 134 of the judgment for this error. Apart from correcting the third
sentence from the end of the paragraph to read”… protecting H[...]’s
interest…”, the Court cannot comprehend this ground of appeal.
7. Ground 22 deserves the same criticism. The parties dealt with transferring the
German units to H[...] at about the time the Applicant and the deceased
decided to separate. The Respondent canvassed the facts relating to the
deceased’s debt at length , particularly in the annexures to the answering
affidavit. The Respondent sought to defend the deceased’s transfer of many
German units to H[...] concurrently with the commencement of his divorce
from the Applicant . The Respondent referred to the restructuring of the
deceased’s debt in detail , which enabled the Court to make an informed
assessment of the Deceased’s debt. The deceased’s debt played little part in
the Court's order to remove the Respondent as the estate executor . The
Respondent could recall details and deny others , which exposed his
allegiance to H[...]. The aforegoing would also indicate why the remaining
grounds listed under paragraph 22 are baseless. The Respondent criticises
the Court for converting values reflected in the Euro currency to that of the
Rand without the assistance of expert evidence . Yet, he insists that the Court
consider expert evidence he submitted on the exact subject without
confirmation by affidavit.
8. Ground 26 falls into this category of incomprehensible grounds of appeal .
The Respondent did not refer to the offending paragraph or parts of the
judgment upon which this ground is premised. Ground 27 suffers the same
fate. The Court acknowledged early in the judgment that the Applicant is not
an heir. The relevance of the alleged acrimony between heirs is not apparent.
The Respondent alleges in ground 30 that the Court disregarded that mere
conflict between Executor and Applicant is not grounds for Respondent’s
removal and further disregarded the body of law that removal of an executor is
an extraordinary step. The Court acknowledges th at it should not readily
remove an Executor from office early in the judgment. Without any reference
to the offending paragraph or portions of the judgment, the Court finds it
difficult to understand thi s ground of appeal. Ground 31 suffers the same fate
as ground 30. The Court was cognisant that the Respondent was Executor
testamentary and attached the weight required when deciding to terminate his
executorship. The Court acknowledged that the deceased tasked the
Respondent to protect the minor children's inheritance . Ground 32 ,
concerning the Respondent's intention to carry out the testator's wishes,
hangs in mid -air. It is incomprehensible, with no elaboration or reference to
the parts of the judgment it attacks.
9. Yet other grounds misconstrued the tenor of the judgment. Ground 15,
concerning paragraph 137 of the judgment , alleges the Court found that the
Respondent intended to retain the close corporation for S[...]’s benefit. The
Court’s finding was not directed at the Respondent’s obligation to S[...] but
rather to the effect of the proposed redistribution plan on the App licant.
Ground 25, directed at paragraph 122 of the judgment, completely misreads
the meaning of the paragraph. The Court identified certain themes concerning
the Respondent’s suitability to remain as Executor. The sentence's context
and construction refer to the Respondent’s unsuitability to remain as Executor.
10. Other grounds were raised without checking the facts that informed the
findings. Ground 18 accuses the Court of relying on the Applicant’s hearsay
evidence to conclude that the Respondent and the deceased sought to stifle
the Applicant’s half share of the joint estate. The Court did not need the
Applicant’s say so on thos e aspects. The parties had placed emails and
letters before the Court, the content of which evinced those aspects . Similarly,
Grounds 19 and 20 allege that the Court erred in considering events and
litigation before the First Respondent was appointed executor as grounds for
his removal. The Court decided on the case that had been placed before it. An
elementary analysis of the Respondent’s papers reveals that he was intent on
defending his position as attorney to the deceased and cited chapter and
verse about his engagement as the deceased’s lawyer. It indeed impacted the
court’s findings for the correct reason , as it displayed the Respondent’s bias
against the Applicant.
11. Other grounds of appeal were just fatuous , e.g., ground 5, which contends
that the Court erred in considering the will where no application to set it aside
was made. The will was central to the adjudication of this matter. Ground 8.7
was based on paragraphs 125,128 , and 129 of the judgment. The
Respondent takes i ssue with the Court’s finding asserting that the
Respondent did not allege that the transfers to H[...] were to restructure the
deceased's debt. The Respondent allegedly stated that when he represented
the deceased in the divorce proceedings, his instructi ons were that this was
the purpose of the transfer. The Court cannot distinguish the difference, let
alone determine how this could constitute a ground of appeal.
12. Ground 8.14 refers to the incorrect summation of the Respondent's decision
to withdraw the litigation in Germany in October 2023 without elaboration. The
Respondent referenced paragraph 129 of the judgment for this error. The
judgment says exactly that. The Respondent’s intention to intervene and
withdraw the action against H[...]….demonstrated his unwavering attempts to
halt the Applicant’s litigation.
13. Ground 13 takes issue with the Court’s industry in converting Euro exchange
rates to Rand value. The Court did this to enable the reader to understand the
value in South African currency. The Respondent contends that the Court
required expert evidence about the property market in Germany before it
could reach a decision. The Court did not require expert evidence on this
aspect.
OTHER GROUNDS OF APPEAL
14. Ground 9 Refers to the Court’s finding in paragraph 134 of the judgment that
the Respondent failed to answer the allegation that the transfer of the
properties occurred in four days rather than the usual six weeks. The
Respondent asserts that the Court erred in not considering that the
Respondent was not involved in the transfer and had no knowledge of it. The
Court correctly found that the Respondent had failed to answer this allegation,
and the Court was correct in drawing a negative finding against him. The
Respondent’s failure to answer the allegation relating to the expedited transfer
of units must be assessed in the context of the Respondent’s vast knowledge
of the details relating to the alienation of those units. The Respondent's four-
page answer to the corresponding paragraphs of the founding affidavit bears
testimony to the fact that he could cite minutiae about these events but shied
away from answering material aspects of the Applicant’s case.
15. In Ground 10, the Respondent alleges that the Court erred in finding that the
Respondent intended to halt the Applicant’s German litigation and withdraw
the claim against H[...]. The Respondent refers to p age 272 of the bundle and
annexure EB 17. In the first place, page 272 of the bundle is a document in
German. Secondly, the letter the Respondent refer to begins on page 273 and
carries a different annexure number (which differs from the two numbers
quoted by the Respondent. This is yet another instance of the Respondent
failing to take the trouble to identify documents and page references correctly
and expecting the Court to do the work for him. The penultimate paragraph of
page 274 states the following: “ I have , after careful consideration of all
aspects regarding the German litigation and after careful perusal of the Court
documentation, come to the conclusion that it will not be in the interest of the
estate to pursue the litigation against H[...] B[...] or his wife Ina and further ,
and I intend to withdraw the litigation against Mr H[...] on the following basis
and for the following reasons…”
16. Ground 11 alleges that the Court erred in finding that the litigation in Germany
was between the Appl icant and H[...] and that the First Respondent was not
obliged to pursue foreign assets in circumstances where the relief sought by
the Applicant is the return of assets to the joint estate over which the First
Respondent exercises control and has a direct and substantial interest. The
substance of the judgment, i.e., that an Executor is not obliged to pursue
foreign assets of an estate, is a statement of the law. The credible evidence
before the Court is that the Respondent was not pursuing the German assets.
The Respondent was not pursuing the deceased’s German assets. He clearly
intended to stop the litigation , which was a private matter between the
Applicant and H[...].
17. Ground 14 takes issue with the Court interrogating the Respondent's value
attached to the close corporation in the draft liquidation and distribution
account. The Respondent asserted that the document was prepared as a
discussion document, and he had not determined whether part of the loan had
prescribed. The Court should have accepted the explanation as reasonable ,
given that the First Respondent had corrected the Applicant ’s attorney’s loan
valuation. The Respondent did not reference the part of the bundle where
these allegations were made. The Respondent valued the loan account in the
close corporation at R6 million when the evidence before the court indicated it
was closer to about R3 5 million. There was no basis for the Respondent to
devalue the deceased’s loan account in the close corporation to that extent.
The Respondent had sufficient time to determine whether parts of the loan
account had prescribed.
18. Ground 16 also refers to the draft liquidation and distribution account . The
evidence indicated that the document undervalued the estate. The Court did
not have to con sider that the Applicant could object when the account was
placed before the Master before making this finding. The Respondent could
not identify the paragraphs of the judgment that dealt with this aspect.
19. Ground 21 alleged that the Court raised on its own accord the Respondent’s
failure to submit a liquidation and distribution account timeously. The
Respondent alleged that neither party dealt with this aspect in the papers.
This is incorrect. Ms B[...] referred to the delay in dealing with aspects of the
estate on pages 111 and 126 of the record. The timeous submission of the
account is an integral part of an Executor’s obligation to an estate.1 Paragraph
96 of the founding affidavit foreshadows the parties' exchange about the
liquidation and distribution account in the annexures and the answering
affidavit.
20. In ground 28, the Respondent alleges the Court’s finding that the Respondent
had delayed the estate’s administration was speculative. Again, the
Respondent has not read the judgment properly before presenting it as a
ground of appeal. The Court dealt with the liquidation and distribution account
and section 35 of the Act. In an application for the removal of an Executor, this
aspect becomes material to that determination against the backdrop that the
Applicant consistently alleged that her interests were ignored. The emails and
letters exchanged between the legal representatives of the parties and
attached as annexures allude to the Respondent’s delay in administrating the
estate.
21. Ground 17 is directed at the Court’s finding that the Respondent had a low
threshold for litigating against the Applicant. The Respondent alleges that the
finding is incorrect. The evidence of actual and threatened litigation against
the Applicant belies this ground of appeal. The Responden t’s intervention in
the German litigation and his application to interdict the Applicant from
interfering in the administration of the estate c onfirm that the finding was
correct.
22. Ground 24 hangs in the air without any elaboration. The Respondent has not
directed the Court to the negative credibility finding it has made against him. It
is correct that the Court did not spare the Applicant from criticism regarding
1 Section 35(1) of the Administration of Estates Act 66 of 1965 , see paragraph 93 of the
judgment.
her extravagant allegations made across her papers , but that was insufficient
to make a finding against her.
23. Ground 29 is based on hearsay. The Resp ondent contended that the Court
had not considered that none of the heirs took issue with the admin istration of
the estate by the First Respondent , nor did they complain of the delays in
finalising the estate. Th e information relating to the administration of the
estate is completely hearsay. The Respondent did not refer to the heirs
complaining of any delays as he did regarding the administration. The
Respondent contended that S[...] alone, one of the heirs, did not object to him
being the estate executor.
24. Ground 34 alleges that “The Court erred in rejecting the evidence of the First
Respondent that the deceased was reasonably active and of sound faculties
should be rejected ”. The latter part of this ground is incomprehensible. The
evidence contained in a letter addressed to the children’s school , copied to
the Respondent and attached to the Respondent’s answering affidavit,
indicates that the deceased was ill and not in the con dition that the
Respondent would have had the Court believe.
25. Ground 35 alleges that the Court erroneously concluded that the First
Respondent’s 4% member’s intere st in the close corporation created a
conflict. The Court finds it difficult to comprehend how the Respondent can
persist with this allegation. The Respondent’s 4% inheritance creates a
conflict of interest, as is evident in his valuation of the corporation.
26. Grounds 37 to 41 suggest that the Court erred in applying the Plascon Evans
Rule to the disputes of fact. The Respondent alleges that the Court failed to
set out which disputes of fact were considered genuine and which were
decided in the Respondent's favour and why. The Court is also accused of not
setting out the basis upon which it decided that certain defences raised by the
Respondent did not raise a real, genuine, or bona fide dispute of fact and why.
The Respondent alleges that the Court’s incorrect s ummation of the facts
could not have led to a correct application of Plascon Evans. The Respondent
alleges further that on a proper application of the test , the facts required by
the Applicant to support the relief sought could not have been proven. The
Court, having held that the disputes of fact patently apparent to the Applicant
before launching the application , should have resulted in the dismissal of th e
application.
27. The Respondent has sought to level every conceivable misapplication to how
the Court applied the test in this judgment. The Applicant has placed the onus
on the Court to find the instances where the test was applied and defend it.
The Respondent wanted the Court to trawl through every dispute of fact, of
which there were hundreds, to satisfy the Respondent. These grounds are
unsustainable and fall to be rejected out of hand.
GROUNDS OF APPEAL RELATING TO COSTS
28. Ground 23 is the first of many of the grounds directed at the costs orders
granted by the Court. Ground 23 is incomprehensible. The Court granted the
application for substitution of the Respondent in his personal capacity as the
law requires. The Respondent did not object to the application. The Court then
refused the Respondent’s application to strike out defined material but granted
the Respondent’s application to disallow affidavits that were fil ed out of time.
The Court did not grant any order of costs against the Respondent or the
Applicant for these three applications and expressed no further comment.
29. In ground 36, the Respondent alleges that the Court erred in disallowing the
prescribed executor’s fees of 3.5% as provided for in the will. Once the
Respondent ceased being an Executor, he was not entitled to claim the 3.5%
fee. The Court ordered that his fees be determined under the applicable
legislation. The Court outlined the relevant provisions of the Administration of
Estates Act 66 of 1965 and referred that aspect to the Master .2 There is also
no reference to a 3.5% fee in the will.
2 See paragraphs 147-153 of the judgment
30. The Respondent alleges that the Court erred in ordering him to pay the costs
in his personal capacity because the relief was sought against the
Respondent as Executor, the body of authority provided for costs to be borne
by the Estate and was disregarded by the Court in the exercise of its
discretion. The Respondent contended further that the Court did not explain
the de bonis propriis order, and the punitive costs order contradicts paragraph
156 of the judgment in which the Court concluded that it was averse to
granting punitive costs orders but granted costs de bonis propriis. This ground
is incomprehensible as the Court did not make any co sts de bonis propriis
orders or any orders that amount to it.
31. The Respondent alleges that the Court erred in granting an order precluding
the Respondent or his attorney firm from recovering legal costs to the litigation
in Germany because the relief s ought did not appear from the Applicant’s
papers, the relief was first raised by the Applicant’s counsel in argument in
reply, the Respondent objected to this relief sought . The principle of audi
alteram partum was disregarded, and neither the Respondent nor the firm was
allowed to address the submission and prayer. The Court ordered against a
party that was not before it, and the Court erroneously assumed that Brand &
Van Den der Bergh Attorneys was the Applicant’s firm.
32. The order stated , " The First Respondent or his attorney firm shall not be
entitled to claim any legal costs relating to the intervention in the matters
involving the Applicant in Germany from the date of his appointment as
Executor to the date of this judgment .” The evidence before the Court in the
liquidation and distribution account lists the fees of the Respondent’s attorney
firm. The court did not infer that the Respondent was the owner when it
referred to the Respondent’s firm . Still, the Court papers evincing the
Respondent as an attorney in the firm and the Respondent's presence in
Court without any other person inferred that the Respondent was acting in a
binary role. as the attorney and the Respondent instructing Counsel.
Furthermore, the issue of the Respondent’s fees was foreshadowed in the
founding affidavit. The judgment cited the relevant caselaw supporting the
contention that an application for the removal of an Executor is a claim against
the Executor in his personal capacity.
33. Neither did the C ourt err in granting Counsel’s fees on scale C , where the
default position is scale A, and no argument regarding scale was presented.
The new rule 67A does not diminish the Court’ s discretion to award an
appropriate costs order. The Court considered the complexity of the case and
the importance of the relief sought in granting the advocate’s fee on scale C.
34. The Respondent sought to introduce a further ground of appeal in its
submissions. The Respondent submitted that the case has a novel aspect in
that the deceased's spouse, who was not an heir, sought the removal of the
Respondent as Executor. The situation was not directly on point with any of
the authorities the parties and the Court relied upon . Respondent’s Counsel
was asked to point to the multitudinous grounds of appeal where this ground
was raised. Respondent’s Counsel was unable to do so . Respondent did not
allege that the Court erred or misdirected itself in any aspect relating to this
belated ground to warrant leave to appeal.
35. Finally, the most objectionable grounds of appeal (grounds 1 and 2) are
related to the introductory passage of the judgment and the Court’s
prerogative to define a starting point of the adjudication. Neither constitute the
ratio nor are they expressed obiter or as findings of the Court . How they are
appealable is imponderable.
36. The Applicant in the main case, Ms B[...], experienced similar difficulties
correlating the grounds of appeal to alleged findings and conclusions in the
judgment. Ms B[...] asserted that even if the judgment summarised the facts
incorrectly, a contention she did not support, it is irrelevant in the context of
the leave to appeal unless it was material to the decision. The Respondent
failed to address th e latter aspect. The Court notes that apart from failing t o
identify a ny fact allegedly incorrectly summarised, the Respondent failed to
direct the Court or Ms B[...] to the references in the bundle of documents. The
Court has shown that in many of these instances, the Respondent did not
check its papers before alleging that a fact was incorrect.
37. A Court can at least expect Counsel to know their papers before raising
grounds of appeal . It is unpleasant for the Court to point out to Counsel that
the allegations they allege were incorrect, emanated from their client’s papers
or that the Court knew the content of their papers better than they did. A Court
can, at least , expect Counsel to apply themselves meticulously to the task at
hand and couch the grounds of appeal in a comprehendible manner to permit
the Court and the opponent to identify the source of their Client’s complaints.
38. An appeal should be granted only when there is a sound, rational basis for the
conclusion that there are prospects of success on appeal .3 There must be a
reasonable prospect of an appeal succeeding or a compelling reason to hear
it. Parties should not be put through the inconvenience and expense of an
appeal without merit .4 The Respondent’s Counsel argued the application for
leave to appeal on the basis that another Court may come to a differ ent
conclusion on many of the grounds of appeal. The Respondent sought leave
to appeal to the full bench of this Court , alternatively to the Supreme Court of
Appeal.
39. After careful consideration, the Court could not identify a single ground of
appeal raised by the Respondent as worthy of referral. The application for
leave to appeal falls to be dismissed with costs.
ORDER
1. The application for leave to appeal is dismissed with costs,
2. Applicant’s Counsel’s fees are to be taxed or agreed to on Scale C.
3 S v Smith [2011] ZASCA 15; 2012 (1) SACR 567 (SCA) para 7
4 Four Wheel Drive Accessory Distributors CC v Rattan NO (1048/17) [2018] ZASCA 124; 2019
(3) SA 451 (SCA) (26 September 2018) at para 3
________________________
Ajay Bhoopchand
Acting Judge of the High Court
Western Cape Division
Cape Town
Judgment was handed down and delivered to the parties by e -mail on 6 December
2024.