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DELIVERED : This judgment was handed down electronically by circulation to the
parties’ legal representatives by e -mail and publication on CaseLines. The date
and time for hand -down is deemed to be 16h00 on 8 January 2024.
F. BEZUIDENHOUT AJ:
INTRODUCTION
[1] The applicants seek to review and set aside a decision taken by the
respondent (“ the Master ”) on 29 April 2021 to transfer an amount of
R38 771.76 (“ the funds ”) held in the name of the late Sabata Elias Moiloa
(“the deceased ”) into the Guardians Fund.
[2] Once the decision has been set aside, the applicants seek an order that the
Guardians Fund transfer the funds to the bank account of the second
applicant (“ the beneficiary ”) and/or trust account of the beneficiary ’s
attorneys of record within thirty (30) days of service of the order. A costs
order is also sought against the Master.
[3] The Master o pposes the application on several grounds: -
[3.1] It avers that the first applicant ’s appointment (“the executrix” ) was
not proper and therefore disputes the locus standi of the executrix to
institute the present proceedings.
[3.2] It alleges that the next of kin af fidavit submitted by the applicants to
the Master and the one attached to the founding papers contain
material discrepancies and is fraudulent.
[4] The Master therefore seeks a dismissal of the application on a punitive
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costs scale.
THE APPLICANTS’ CASE
[5] The executrix informed the court that she was appointed in her nomino
officio capacity upon the issuing of letters of authority on the 12th of
August 2020. A copy of the letters of authority is attached to the founding
papers and reflect s one asset only, namely funds to the tune of R38 771.76
held in a First National Bank account.
[6] The deceased died intestate.
[7] The beneficiary alleged that she is the only surviving kin and therefore the
only beneficiary , of the deceased estate. In support she attached a next of
kin affidavit deposed to by her on the 26th of January 2022. A copy of this
affidavit was attached to the founding papers ( “the 26 January
affidavit ”).
[8] The 26 January affidavit contained the following information: -
[8.1] It states there is no surviving spouse of the deceased;
[8.2] The deceased had no children ;
[8.3] The parents of the deceased are identified, but are both deceased;
[8.4] The beneficiary is listed as the only full blood sibling of the deceased;
[8.5] Other than the beneficiary , there are no other brothers and sisters.
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[9] The beneficiary informed the court that she is the older sister of the
deceased who passed away on the 15th of February 2020. She alleged
further that she and the deceased resided with one another during his
lifetime. She advised that the deceased did not acquire any immovable
and/or movable property during his lifetime, save for the funds which he
held in his First National Bank account.
[10] During the funeral arrangements the executrix (then not yet appointed)
elected to intend to the administration of the deceased estate but she was
concerned that she would not be able to do so as she and the deceased
have different surnames. She sought advice from a certain
Mr Seanego Josiah (“ Mr Josiah ”), who introduced her to a gentleman by
the name of Mr Sakie (“ Mr Sakie” ).
[11] On the 3rd of March 2020 Mr Sakie and Mr Josiah visited the executrix at
her home where she was informed by Mr Sakie that he would be able to
assist her in obtaining letters of authority. Believing Mr Sakie’s offer to be
legitimate, the second applicant accepted his assistance at a charge of
R4 500.00. She duly paid the fee to Mr Sakie and provided him with the
required documentation for the issuing of letters of authority, which inter
alia included the deceased’s death certificate.
[12] On the 5th of March 2020 Mr Sakie returned to the executrix’s home with
issued letters of au thority, handed it to the second applicant and left, never
to be seen again.
[13] On the 6th of March 2020 the executrix attended at the Lakeside Mall branch
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of First National Bank and submitted the required documents to enable the
financial institution to pay the funds over to her. She was assisted by one
Mr Isaac Lemeka (“ Mr Lemeka ”).
[14] During August 2020 the executrix returned to the First National Bank
branch and enquired about the progress of the payout. She was once again
assisted by Mr Lemeka, who informe d her that upon checking his system,
the account had been flagged for fraudulent activity. Mr Lemeka advised
her to approach the Master and to seek legal assistance as the financial
institution’s hands were tied. It was then that Mr Josiah informed the
executrix that the letters of authority provided by Mr Sakie were fraudulent.
[15] In the days that followed, the executrix attended at the offices of the
respondent and personally applied for the issuing of legitimate letters of
authority , whereupon the Master issued the executrix with such letters of
authority .
[16] The executrix mentions that criminal proceedings were instituted against
her as a result of the flagged bank account , but that the charges were
withdrawn with a finding of nolle p rosequi by the prosecuting authority.
[17] The executrix then consulted her present attorneys of record, who
addressed correspondence to First National Bank wherein a certificate of
balance of the deceased’s bank account was requested, a copy of the
legitimate letters of authority was provided as well as an explanatory
affidavit setting out how the second applicant had come about the
fraudulent letters of authority.
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[18] On the 19th of April 2021 the Assistant Master, Mr Angelo Hendricks
(“Mr Hendricks ”), addressed a letter to First National Bank directing them
not to allow any transactions on any and all accounts held by the deceased
and to transfer the funds over to the Guardians Fund. First National Bank
complied and the funds were so transferred.
[19] On the 26th of November 2021 the executrix caused a letter to be addressed
to Mr Hendricks wherein he was informed that the criminal case against her
had been withdrawn, that she had been exonerated of all wrongdoing, that
she was the duly appointed executrix of the deceased estate and the only
beneficiary. On this basis, the beneficiary sought to claim funds held by the
Guardians Fund.
[20] In response, Mr Hendricks on the 30th of November 2021, requested that
the relevant and particular section of the Intestate Successi on Act, 81 of
1987 be complied with, together with particulars of the next of kin affidavit
to demonstrate the beneficiary ’s entitlement to inherit, whereafter the
matter would be reviewed.
[21] On the 20th of January 2022 a letter was duly addressed to Mr Hendricks
wherein it was set out that the beneficiary is the intestate heir of the
deceased estate by virtue of the provisions of section 1(1)(e)(i)(bb) of the
Intestate Succession Act.
[22] On the 21st of January 2022 Mr Hendricks responded and requested the
particulars of the status of the beneficiary ’s parents, whether they were
living or deceased. This information was provided to Mr Hendricks on the
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26th of January 2022. The beneficiary attached to the founding affidavit a
death certificate of her late mother and confirmation of her father’s passing.
[23] On the 2nd of March 2022 a follow -up email was addressed to Mr Hendricks
enquiring about progress.
[24] On the 3rd of March 2022 Mr Hendricks replied and informed the beneficiary
that notwithstanding the withdrawal of the criminal proceedings, the Master
was not satisfied that she was entitled to inherit from the deceased’s
intestate estate.
[25] Understandably, the beneficiary was dissatisfied with this outcome and
implored the Master to reconsider all the information before it and to
attempt to resolve her claim amicably without approaching this court. No
details of the attempt made or process followed is provided in the found ing
papers.
[26] The applicants accordingly brought the present proceedings in terms of
section 95 of the AE of Deceased Estates Act, 66 of 1965 (“ ADE”), which
provides as follows: -
“Every appointment by the Master of an executor, curator or interim
curator, a nd every decision, ruling, order, direction or taxation by the
Master under this Act shall be subject to appeal to or review by the
court upon motion at the instance of any person aggrieved thereby,
and the court may on any such appeal or review confirm, s et aside
or vary the appointment, decision, ruling, order, direction or taxation,
as the case may be.”
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THE RESPONDENT’S CASE
[27] Mr Hendricks deposed to the answering papers on behalf of the respondent.
He informed the court that there are a number of discrepancies between
the next of kin affidavit attached to the founding papers and the one
provided to him, which he attached to the answering pap ers. The next of
kin affidavit provided to him was dated the 20th of January 2022 ( “the 20
January affidavit” ) and preceded the 26 January affidavit.
[28] Firstly, Mr Hendricks points out that the two affidavits bear different dates,
namely the one is dated the 20th of January 2022 and the other the 26th of
January 2022. The signatures of the Commissioners o f Oaths differ. The
area and position of the Commissioners differ. The 20 January affidavit
provides no details regarding the status of the deceased’s parents. All that
was stated was “N/A” (not applicable), as opposed to the 26 January
affidavit where the names of the deceased’s parents appear. Mr Hendricks
concludes that the 26 January affidavit is either fraudulent or was deposed
to in order to cure all of the defects existing in the 20 January affidavit.
[29] Mr Hendricks advised the court that the beneficiary omitted to state in her
founding papers that when she attended at the offices of the Master and
met with Mr Hendricks to relay to him the story regarding the fraudulent
letters of authority, she informed Mr Hendricks that she and the deceased
were involved in a romantic relationship at the time of his death and further
that the deceased did not have any parents, children and siblings. However,
I interject to observe that if one has regard to both next of kin affidavits,
the beneficiary consiste ntly recorded her status as the only sister of the
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deceased.
[30] Mr Hendricks confirms the version of the beneficiary that she advised him
that she paid Mr Sakie and another individual to assist her with the letters
of authority. Mr Hendricks does however exp ress some concern about the
letters of authority issued on the 5th of March 2020 in that it reflects his
name but he did not issue this particular letter of authority. Mr Hendricks
further pointed out that the manner in which the assets were described was
also suspicious. Mr Hendricks more importantly states that according to the
ICMS system, there was and still is no record of a letter of authority issued
on the 5th of March 2020 under number 003882/2020. This, in my view,
confirms the beneficiary ’s versio n that the first letters of authority dated
the 5th of March 2020 were issued fraudulently.
[31] Mr Hendricks explained in detail the process to be followed when reporting
an intestate estate. He informed the court that after the executrix had
relayed to him h er encounter with Mr Sakie and the fraudulent letters of
authority, Mr Hendricks confiscated the fraudulent letters of authority and
let the executrix go with a warning not to use any copies thereof as in doing
so, she would be committing a crime.
[32] It was not Mr Hendricks who issued the legitimate letters of authority. He
assumes that the executrix managed to have the legitimate letters of
authority issued by another colleague on another floor. There is no
suggestion by Mr Hendricks, however, that the secon d letters of authority
is not legitimate. In fact, at paragraph 37.1 of the answering affidavit he
states that legitimate letters of authority was issued to the executrix after
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she had been to another colleague.
[33] However, Mr Hendricks contends that the beneficiary has not fulfilled all the
requirements to satisfy the Master that she is a beneficiary of the deceased
estate. He explains that in matters such as these, a deceased must be linked
to a common ancestor, preferably parents or a parent by blood or the law
through adoption and where that is still insufficient, with corroborating
evidence from other family members. He concludes therefore that the
beneficiary has failed to provide the corroboratory evidence as required by
the Master and the provisions of the Intestate Succession Act.
THE APPLICANTS’ REPLY
[34] The executrix stated that it was thanks to Mr Hendricks that she received
confirmation that the letters of authority issued on the 5th of March 2020
were fraudulent, which resulted in the first appli cant taking the correct steps
to obtain legitimate letters of authority.
[35] The executrix denies having bypassed Mr Hendricks in order to procure the
legitimate letters of authority. She also states that she was not aware that
she was expected to return to M r Hendricks for the issuing of legitimate
letters of authority. She was under the impression that she could approach
any official in the Master’s office and would be assisted accordingly and this
is what she did. The beneficiary also denies that she ever i nformed
Mr Hendricks that she was involved in a romantic relationship with the
deceased.
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MASTER’S REPORT
[36] Mr Hendricks compiled a Master’s report which essentially regurgitates the
facts set out in the answering papers.
APPLICABLE LEGAL PRINCIPLES
[37] Letters of executorship must be issued or signed and sealed or endorsed in
every estate.1
[38] There are also exceptions which are not applicable in this instance.
[39] Letters of executorship may only be issued inter alia by the surviving spouse
of the deceased or any person related by consanguinity or affinity up to an
including the second degree to the deceased. Persons within the stated
degrees are grandparents, parents, children, grandchildren, brothers and
sisters and their spouses.
[40] In intestate succession where the deceased is not survived by any spouse,
descendant or parent, the intestate estate devolves in equal shares upon
those blood relations who are related to the deceased nearest in degree.2
[41] The degree of relationship between blood relations of the deceased and the
deceased is determined as follows: -
[41.1] In the red line, the number of generations between the ancestor and
1 The Law and Practice of Administration of Estates and their Taxation, paragraph 8.2, 2nd
edition, Meyerowitz D.
2 Section 1(1)(f) of the Intestate Succession Act.
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the deceased or the descendent and the deceased, as the case
may be;
[41.2] In the collateral line, the number of generations between the blood
relations and the nearest common ancestor plus the number of
generations between such ancestor and the deceased. Thus, an uncle
of the deceased is related to him in the third degree. A common
ancestor of the two is the deceased’s grandfather; the unc le is one
generation away and the deceased is two generations away.3
[42] According to section 1(1)(e) (i)(bb) and (ii) of the Intestate Succession Act,
if a person dies intestate and is not survived by a spouse or descendant or
parent, but is survived by desce ndants of his deceased parents who are
related to the deceased through both such parents, the intestate estate
shall be divided into two equal shares and the descendants related to the
deceased through the deceased’s mother shall inherit one half of the es tate
and the descendants related to the deceased through the deceased’s father
shall inherit the other half of the estate or only by descendants of one of
the deceased’s parents of the deceased who are related to the deceased
through such parent alone, suc h descendant shall inherit the intestate
estate.
[43] In essence, this application seeks a review of the Master’s decision and asks
the court to compel the Master to change that decision. I therefore take the
view that the determination of this matter depends on whether in the
circumstances the court has the power to interfere with the Master’s
3 Section 1(4)(d) of the Intestate Succession Act.
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decision. That in turn depends on the nature of the discretion exercised by
the Master.
[44] The A DA is the source of the Master’s authority and sections 35(10) and 95
of the Act provide that his decision is reviewable by the court.4
[45] The court will only interfere with the Master’s decision if it is so grossly
unreasonable that it indicates that the Master acted mala fide or from
improper motives or that he did not apply his mind to the matter.5
[46] While no allegations of acting mala fide or from improper motive have been
made by the applicants in this matter, it was contended for the applicants
that the Master is unreasonable in disregarding the status of the second
applicant as beneficiary and imply that Mr Hedricks’s judgment was cloude d
by the previous transgression of the first applicant in having procured
fraudulent letters of authority.
[47] In Hartley N.O. v The Master6 Innes CJ stated that: -
“For the matter is left to his entire discretion. The test is what he
thinks with regard to pr ejudice, not what we think. We have no power
to compel him to change his mind in respect of the question which
he has duly considered.”
[48] In Lipschitz v Wattrus N.O.7 Myburgh J reviewed the provisions of inter alia
the A DA, relating to the powers of the Master to appoint executors,
4 Coetzer en ‘n Ander v De Kock N.O. en Andere 1976 (1) SA 351 (O) at 359.
5 Logan v Morris N.O. and Others 1990 (3) SA 620 (ZH) at 624D -E.
6 1921 A D 403 at 407 .
7 1980 (1) SA 662 (T).
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provisional as well as final liquidators, where the words “if in the opinion of
the Master” or “he is of the opinion” are used and concluded at 671: -
“As to any such provisional appointment the Master clearly has an
unfettered and sole administrative discretion and it is within his
enacted powers to give directions to his staff about such
appointments.”
[49] Myburgh J cited the judgment of Innes CJ in Hartley and at 672A -B, a
passage of Maasdorp JA’s judgment at 412 of the same case, which reads
as follows: -
“I have said that the discretion of the Master is full and absolute and
cannot be interfered with by this court. But suppose this court is
of the opinion that the Master is wrong, which I do not
suggest, should the court – for his future guidance – point out
where it thinks he erred? I do not think that the court is called
upon to do so, and by laying down any legal proposition for
the future guidance of t he Master it would indirectly interfere
with his absolute discretion. And, even if that mode of instructing
the Master were proper, it would, in my opinion, be utterly futile,
considering the infinite variety of circumstances under which
applications of th is sort come before the Master.” (emphasis added)
[50] As Bands J in Ncelekazi8 stated at paragraph [18]: -
“It is axiomatic that the right to review an appointment by the Master
in terms of section 95 of the Administration of Estates Act is a
statutory recordal of such right and provides no independent grounds
of review apart from those contained in the Promotion of
Administration Justice Act, 3 of 2000 or, to the extent applicable, the
8 Ncelekazi v Master of the High Court Mthatha and Others 2023 JDR 3510 (ECM).
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common law.”
POINT IN LIMINE
[51] One of the first things to be established when adjudicating a litigious matter
is whether the party initiating the proceedings has the necessary
locus standi .9 Insofar as the first applicant is concerned, her locus standi is
derived from the letters of au thority issued by the Master. As already stated,
the legitimacy of these letters of authority is not disputed, and I accordingly
find that the first applicant had the necessary locus standi to bring the
application. As far as the second applicant is conce rned, she clearly has an
interest in the proceedings and it is only right, therefore, that the first
applicant cited her as a party.
[52] As was stated in Booysen and Others v Booysen and Others :10 -
“In regard to the legal status of both the deceased estate and the
executor, the deceased estate is not a separate persona, but the
executor is such person for the purposes of the estate and in whom
the assets and the liabilities temporarily reside in a representative
capacity. The executor only, has locus standi to sue or to be sued.”
[53] Accordingly, it can hardly be argued on behalf of the Master that the first
applicant does not have the requisite locus standi . The point in limine is
therefore dismissed.
9 Four Wheel Drive Accessory Distributors CC v Leshni Rattan N.O. 2019 (3) SA 451 (SCA).
10 2012 (2) SA 38 (GSJ).
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DELIBERATION ON THE MERITS
[54] The issue therefore to be determined in this matter is whether on the
common cause facts the applicants are entitled to the relief sought in terms
of section 95 of the A DA.
[55] It is then therefore appropriate at this juncture to indicate that nowhere in
the founding papers does one f ind any particular reference to grounds of
review relied upon by the applicants in relation to the relief sought other
than referring to the Master’s decision to transfer the funds to the Guardians
Fund as an impugned decision.
[56] Having said that , however, it is quite clear that the Master requires specific
information before it can reconsider the second applicant’s claim to the
funds. However, it can certainly not be argued by the applicants that the
Master’s decision was taken arbitrarily, capriciously and /or irrationally.
Even if such an allegations was made, I do not find any supporting facts.
[57] The remotest case made out by the applicants is perhaps that the Master
acted procedurally unfair in not having afforded the beneficiary a further
opportunity to am plify the information required in the manner suggested
now only by the Master in the answering papers and in the report. I n this
regard it is telling that although the Master refused to reconsider its decision
to transfer the funds to the Guardians Fund, the second letters of authority
issued to the executrix remains extant.
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[58] In Nel and Another N.N.O. v The Master11 the SCA held as follows: -
“[22] South African courts have long accepted that the review
envisaged by section 151 of the Insolvency Act is the ‘third type of
review’ identified more than 100 years ago in Johannesburg
Consolidated Investment Co v Johannesburg Town Council,
i.e. where Parliament confers a statutory power or review upon the
court. In the Johannesburg Consolidated Investments Co case ,
Innes CJ stated, with reference to this kind of review, that a court
could enter upon and decide the matter de novo. It possesses not
only the powers of the court of review in the legal sense, but it has
the functions of a court of appeal with the additi onal privileges of
being able, after setting aside the decision arrived at, to deal with
the matter upon fresh evidence.
[23] Thus, when engaged in this third kind of review, the court has
powers of both appeal and review with the additional power, if
required, of receiving new evidence and of entering into and deciding
the whole matter afresh. It is not restricted in exercising its powers
to cases where some irregularity or illegality has occurred. However,
while it is sometimes stated that the court’s po wers under this kind
of review are ‘unlimited’ or ‘unrestricted’ this is not entirely correct.
The precise extent of any ‘statutory review’ must always depend on
the particular statutory provision concerned and the nature and
extent of the functions entrus ted to the person or body making the
decision under review. A statutory power of review may be wider
than the ‘ordinary’ judicial review of administrative action (the
‘second type of review’ identified by Innes CJ in the Johannesburg
Consolidated Investmen t Co case), so that it combines aspects of
both review and appeal, that it may also be narrower, ‘with the court
being confined to particular grounds of review or particular
11 Nel and Another N.N.O. v The Master (Absa Bank Ltd and others intervening) 2005 (1) SA
276 (SCA) at paragraphs [22] and [23].
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remedies’. ”
[59] A court faced with the current application, therefore has a wider disc retion.
In my view it would serve no purpose to simply dismiss the application
because the grounds for review have not been set out succinctly and clearly.
It would not be in the best interests of the deceased estate either as it
would not put an end to th e litigation and would unnecessarily mulct the
deceased estate in unnecessary costs.
[60] As already stated, it is quite clear to this court and to the Master what case
the Master was called upon to meet. Having considered the facts and the
version of the Mas ter, I am unable to find that it acted with any mala fides
in directing the financial institution to have the funds transferred into the
Guardians Fund. The Master oversee all deceases estates and is statutory
obligated to preserve the interests of benefi ciaries. I accordingly find that
the Master acted prudently and reasonably and that its action to have the
funds so transferred is not reviewable.
[61] It is not clear whether the second applica nt was specifically advised, as was
done in the answering affidavi t, what additional information was required.
It also is not the Master’s or the second applicant’s case that the second
applicant was unable to. It seems that the second applicant took the view ,
perhaps a little prematurely, that the Master as not going to be satisfied
with whatever information is required and therefore decided to approach
this Court.
[62] What is clear is that the Master requires more corroboratory information
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regarding the second applicant’s status a s beneficiary. It is incumbent that
she provides such information to the Master in order to satisfy the Master
that she is entitled to the funds. Accordingly, I intend to gra nt an order that
the second applicant be given a further opportunity to supplement the
information and submit it to the Master for consideration. Should the
Master still decline to release the funds to the applicants for whatever
reason, justified or not, the applicant would then be entitled to approach
this court for appropriate relie f, on papers duly supplemented.
COSTS
[63] I do not intend to grant a costs order against either of the parties at this
stage. In my view the applicants and the Master are equally to blame for
the current dilemma the parties find themselves in.
ORDER
I accordi ngly grant a n order in the following terms: -
1. The application is postponed sine die .
2. The first applicant in her capacity as executrix shall submit on behalf of the
second applica nt a new and updated next of kin affidavit, duly completed
and commissioned and , as required by the Master, shall include information
to establish a link between the deceased and the second applicant to a
common ancestor, preferably parents or a parent by blood , or if this is not
possible, by way of corroborating evidence from other family members.
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APPEARANCES :
On behalf of applicant s: Adv S Jozana
sjozana3@gmail.com
Instructed by :
BA Chauke Incorporated Attorneys
bongani@bachaukeattorneys.co.za .
On behalf of respondent: Adv S Nelani
snelani@duma.nokwe.co.za
Instructed by:
The State Attorney
ZSahib@justice.gov.za .