IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG LOCAL DIVISION, JOHANNESBURG )
Case No. 2024 -012066
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
SIGNATURE
DATE: 7 March 2025
In the matter between:
EULANDER MATHAPELO LENTSOANE Applicant
and
MAHLAPE KHASIANE MOKOENA N.O. First Respondent
THE MASTER OF THE HIGH COURT, JOHANNESBURG Second Respondent
KHOMOTSANA PETRUS NYAPOTSE Third Respondent
NYAPOTSE INCORPORATED Fourth Respondent
JUDGMENT
D’OLIVEIRA AJ:
1 This is an application for a mandamus directing the first respondent to
comply with her obligations as executrix of the estate of Mamonyane Clara
Mokoena (the deceased).
2 The deceased passed away on 25 November 2021.
3 The applicant was a friend of the deceased. She claims that she contributed
R80 000.00 towards the costs of the deceased’s funeral. It is in that
capacity, as a n alleged creditor of the deceased estate, that the applicant
has brought the applicatio n.
4 The first respondent is Mahlape Khasiane Mokoena , who is the daughter of
the deceased. She was nominated by the deceased to be the executrix of
her deceased estate.
5 The second respondent is the Master of the High Court, Johannesburg, who
plays no active role in these proceedings.
6 The third respondent is Khomotsana Petrus Nyapotse, who is the sole
director of the f ourth respondent .
7 The fourth respondent is Nyapotse Incorporated, the firm of attorneys that
was appointed by the first respondent on 20 February 2022 to be her
attorney and agent to act on her behalf in all matters pertaining to the
administration of the deceased estate. I will refer to the th ird and fourth
respondents as the “first respondent’s attorneys”.
8 The first respondent’s attorneys been joined in the application because the
applicant seeks costs de bonis propriis against them.
9 The applicant has brought the application because she and her attorney ’s
efforts to lodge her claim and have it dealt with in accordance with the
provisions of the Administration of Estates Act 66 of 1965 (the Act) have
been consistently and unreasonably ignored by the first respondent and her
attorneys .
10 The fact s in this regard, summarised, are that, between 21 October 2022
and 23 September 2023, the applicant’s attorney addressed no less than
eleven letters , in which they, inter alia :
12.1. sought a copy of the first respondent’s letters of executorship (until
the tim e she was appointed in June 2023);
12.2. asked when the estate would be advertised in terms of section 29 of
the Act;
12.3. informed the respondents of her status as a creditor and her
intention to lodge a claim; and later
12.4. attempted to lodge the applicant’s claim agai nst the deceased
estate.
13. The first ten letters were written to the first respondent’s attorneys. The last
letter was written to the first respondent, and copied to the first respondent’s
attorneys.
14. The last letter , dated 23 September 2023, specified that all the applicant’s
attorney’s requests, notices and demands had been ignored and warned
that, should no response be received within five days, legal proceedings
would be instituted. This letter, too, prompted no reaction from either the first
respondent or her attorneys.
15. The first respondent’s attorneys not only ignored all of the applicant’s
attorney’s attempts to obtain information concerning the deceased estate,
the section 29 publication and the anticipated date of the lodging of a
liquidation and distribution account, the first respondent’s attorneys treated
one of the applicant’s attorneys ’ employee s, who was given the task of
delivering one of the letters by hand, in a manner that can fairly be described
as abusive.
16. The first responde nt’s attorneys do not oppose the application. The
application is only opposed by the first respondent.
17. The first respondent’s answering affidavit , however, is superficial and
unsatisfactory.
18. The first respondent says that the applicant’s attorney has not been
responded to because she has needed time to grieve the passing of her
mother and of her brother .
19. This is not a credible explanation for why the first respondent or first
respondent’s attorney failed to react at all to any of the letters of the
applicant’s attorney. The deceased passed away on 25 November 2021, and
the first respondent’s brother passed away on 13 December 2022. The
enquiries and attempts made on behalf of the applicant to lodge her claim
against the deceased estate started 11 months after the deceased had
passed away, and two months before the brother passed away. They
continued for another eleven months.
20. The first respondent also states that she was completely unware of the
letters from the applicant’s attorney , his attempts on beh alf of the applicant
to obtain information about the estate , and his attempts to lodge the
applicant’s claim. She effectively places the blame for the lack of response
on her attorney s, indicating that her attorney s should account for their
conduct. This response is not acceptable for two reasons. First, the first
respondent was written to directly by the applicant’s attorney, and ignored
the letter herself. Secondly, it is the first respondent who is the executrix of
the estate. She ultim ately bears responsibility for the conduct of the attorney
and agent she has chosen to administer the estate on her behalf.
21. In the meantime, the first respondent admits that she continues to reside in
the immovable property that was owned by the deceased. It is apparent that
she is in possession of the deceased’s movable property and is enjoying the
benefit of such property. There is much to be said for the case made out by
the applicant that the consistent failure of the first respondent and her
attorneys to react to the applicant’s attempts to assert her claim in the estate
was a deliberate stratagem to avoid and thereby stifle any claims against the
deceased estate .
22. Section 35 of the Act prescribes that an executor shall, as soon as may be
after the last day of the period specified in terms of the notice referred to in
section 29(1), but within six months after the letters of executorship have
been granted, lodge the liquidation and distribution account of the estate with
the Master.
23. The Legislature has limited the period in which the liquidation and
distribution account should be lodged for good reason. The limited time
period compels those charged with the administration of a deceased estate
to wind up the estate within a reasonable time, protecting aga inst abuse and
the dissipation of the assets to the prejudice of creditors and heirs.
24. The letters of executorship were issued by the Master in favour of the first
respondent on 23 June 2023. The first respondent’s answering affidavit,
delivered on 9 April 2024, disclosed for the first time that advertisement in
terms of section 29 of the Act had taken place in the Star newspaper and the
Government Gazette in October 2023.
25. The first respondent and her attorneys failed to lodge the liquidation and
distributio n account within six months of the issue of the letters of
executorship. The liquidation and distribution account had not been lodged
by the time the applicant launched the application on 5 February 2024. It had
still not been lodged by the date of the hea ring of this application on 28
January 2025.
26. Section 36 of the Act provides:
“36 Failure by executor to lodge account or to perform duties
(1) If any executor fails to lodge any account with the Master as and
when required by this Act, … or to perform any other duty imposed
upon him by this Act … the Master or any person having an interest in
the liquidation and distribution of the estate may , after giving the
executor not less than one month's notice, apply to the Court for an
order directing the executor to lodge such account … or to perform
such duty or to comply with such demand. ”
27. Although the applicant did not make express reference to s ection 36 in her
application , a proper case has been made out for relief under this section,
and under common law.
28. The applicant has also made out a proper case for the order that the first
respondent and the first respondent’s attorneys pay costs on a pu nitive
scale. Their conduct is unacceptable and is deserving of th e court’s censure.
29. The following order is made:
1. The first respondent is directed to provide the applicant’s attorney
with a written acknowledgement of the lodgement of the
applicant’s claim in the amount of R80 000.00 in the deceased
estate of the late Mamonyane Clara Mokoena within 10 days of
the date of this order .
2. The first respondent shall respond to and deal with the applicant’s
claim in accordance with the provisions of the Administration of
Estates Act 66 of 1965 within 5 days of confirming the lodgement
of the claim in terms of paragraph 1 of this order.
3. The first respondent shall lodge the liquidation and distribution
account of the deceased estate of the late Mamonyane Clara
Mokoena with the Master within 30 days of the date of this order .
4. The first, third and fourth respondents are liable, jointly and
severally, to pay the costs of this application on an attorney and
client scale.
_____________________
A J D’OLIVEIRA
Acting Judge of the High Court
This judgment is handed down electronically by circulation to the parties or their legal
representatives by email, by uploading to Caselines, and by publication of the
judgment to the South African Legal Information Institut e. The dat e for hand -down is
deemed to be 7 March 2025.
HEARD ON: 28 January 2025
DECIDED ON : 7 March 2025
For the Applicant s: M R Webbstock
Heads prepared by J C Van der Merwe of J C Van
Der Merwe Attorneys
For the Respondent Z Bingwa
Instructed by Nyapotse Incorporated