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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE Number : 17373 / 2019
In the matter between: -
SIPHIWE HILDA MTHEMBU Applicant
and
THEMBA MLAMBA First Respondent
THEMBA RAFIQ THABIT Second Respondent
TEBOGO DORIS THABIT Third Respondent
MASTER OF THE HIGH COURT Fourth Respondent
REGISTRAR OF DEEDS GAUTENG, JOHANNESBURG Fifth Respondent
JUDGMENT
SNYMAN, AJ (1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/ NO
(3) REVISED: YES/ NO
7 March 2025
2
Introduction
[1] The current matter concerns an application brought by the applicant on 16
May 2019, in which the applicant seeks certain declaratory relief , relating to a
residential property situate at Erf 7 […], O[…] E[…], Soweto (the property) . In
particular, the applicant seeks an order that the sale of the property to the second
and third respondents be declared to be null and void, and consequently that the
registration of the ownership of the property in favour of the second and third
respondents be reversed. The applicant seeks a further order that the property be
transferred into her name as registered owner. The application has been opposed by
the first, second and third respondent .
[2] The application came before me for argument on 19 February 2025. After
hearing argument from the attorney for the applicant, as well as counsel for the first,
second and third respondents , I granted the following order:
‘1. The applicant’s application is dismissed.
2. The applicant is ordered to pay the first, second and third respondents’
costs on the party and party scale B.
3. Written reasons for this order will be provided to the parties on 7 March
2025. ’
[3] This judgment now constitutes the written reasons as contemplated by
paragraph 3 of my order of 19 February 2019, above. I will start by first setting out
the relevant background facts.
The relevant background facts
[4] The property had in the past been owned by one Nontsikeleo Mavis Sijaji
(Sijaji) . At the time when the events giving rise to this matter arose, Sijaji was elderly ,
and residing at the property . Sijaji also had no children of her own.
3
[5] According to the applicant, she first came to know Sijaji in 20 09, when the
applicant rented a shack situate on the property , from Sijaji. However, and by 2011,
the applicant had moved into the main house on the property , for the purposes of
taking case of the elderly S ijaji. The applicant further alleged that Sijaji’s relatives
neglected her and misused her State grant , and it was only the applicant that took
care of her. The applicant relies on a report by a social worker , Refiloe Diale , dated
27 October 2015, in confirmation of her allegations. However there was no
confirmatory affidavit by the social worker to substantiate the contents of this report.
[6] The first respondent has a different take of matters. He stated that Sijaji was
his aunt (his mother’s sister). According to the first respondent , the applicant came to
live at the property in February 2010, when she was evicted from her previous
residence and the first respondent’s sister ( Vuyisile Mlamba) brought her to stay at
the property . The first respondent states that all Sijaji’s relatives ‘loved her
immensely ’, and the allegation that she was being neglected was false. As to the
issue of the alleged abuse of Sijaji’s grant, the first respondent points out that there
as actually a dispute between the applicant and his sister concerning the manner in
which the applicant herself was dealing with the grant. The first respondent also
disputed the veracity of the report by the social worker, indicating it was ‘cut and
paste’ and was wrong, and he made submissions as to how Sijaji was actually being
looked after by her relatives.
[7] In her founding affidavit, the applicant contends that Sijaji had executed a will
in October 2011, in which she made the applicant the sole beneficiary of S ijaji’s
estate. A copy of the will was attached to the founding affidavit. A consideration of
this document provided shows that on face value, it appears to have been executed
by Sijaji on 17 October 2011, however there is no independent confirmation or
verification that it is indeed Sijaji’s signature on the document. The document does
reflect that the entire estate of Sijaji is indeed bequeathed to the applicant, and that
ABSA Trust is appointed as executors.
[8] The first respondent disputed the validity of this will. He questions the veracity
of the signature of Sijaji on the document , and provides a specimen signature of
4
what he contends to be Sijaji’s signature which does not compare to the signature on
the document. He states that Sijaji died intestate and that the alleged will r elied on by
the applicant is a forgery. He indicated that he had opened a fraud case against the
applicant as a result at the SAPS, under case number 602/06/2016, and provided the documents substantiating such criminal complaint .
[9] The above being said, Sijaji passed away on 30 July 2015. The applicant
stated that her ‘ distant relatives ’ simply came for the funeral , and after burying her,
moved away. The first respondent agreed that Sijaji’s relatives attended the funeral .
He however added that at Sijaji’s night vigil, the relatives were attacked by the
applicant to force them to leave, needing the community to intervene to restore
order .
[10] The applicant states that as she was aware of the existence of the alleged will
of Sijaji throughout . As a result, she went to ABSA Trust to require them take on the
role as executors of the estate of Sijaji, as they were specifically nominated as such
in the will. According to the applicant, ABSA trust told her to wait for a month,
following which they woul d provide her with all the documents she needed for the
administration of the estate.
[11] I have noticed that one of the documents discovered in the matter is a letter
dated 18 September 2015 which purports to be by ABSA T rust renouncing
executorship under the will. The problem I have with this letter is that it is not
introduced into evidence by way of the any of the affidavits filed. It is simply
uploaded on CaseLines as a loose document. In particular, it is not referred to in the
applicant’s founding affidavit. There is also no indication that this letter was ever
presented to the Master.
[12] The applicant states that she went to the Master’s Office in Johannesburg (the
fourth respondent) to report / register the death of Sijaji and the estate, but was
surprised to find that the first respondent had already done so. The applicant further
states that the first respondent had ‘ falsely reported’ the estate on the basis that he
was the son of Sijaji and that she had no will. It is not clear when the applicant went
to the Master’s offices to report the death / estate.
5
[13] In his answering affidavit, the first respondent disputed that h e ever indicated
that he was the son of Sijaji. He stated that Sijaji was his ‘great aunt ’, and he
reported her estate as her closest relative. He reiterated that she died intestate, an
dhe properly reported the estate on such basis. In fact, the first respondent in turn
made a similar accusation of fraud against the applicant, indicating that she falsely claimed to be the daughter of Sijaji , when she reported the death of Sijaji to Home
Affairs.
[14] What appears undisputed is that the first respondent did report the death of
Sijaji and estate , at the Master’s office , immediately after the death of Sijaji. It is also
undisputed that the first respondent was issued with a letter of executorship by the
Master for Sijaji’s estate , on 19 August 2015 .
[15] According to the applicant , she lodged the will at the Master . She alleges that
the Master’s office investigated the will and found it to be valid. She also referred to
some meeting called by the Master between herself and the first respondent, but
does not indicate when this meeting was, what happened in that meeting, or whet her
there was any resolution arrived at in such meeting. The upshot of all this, according
to the applicant , was that the Master decided that the letter of executorship given to
the first respondent was ‘ cancelled’.
[16] The first respondent does not dispute that such a meeting was convened, and
indicated that the date of the meeting was 12 October 2015. He however indicated
that the meeting did not ultimately happen because the official from the Master office, being one Bongani Blaauw (Blaauw) had misplaced the file. According to the
first respondent, nothing was discussed or decided in the meeting .
[17] In support of her contention that the letter of executorship issued to the first
respondent was cancelled, the applicant provides a letter dated 11 February 2016
authored by Blaauw, who appears to be work ing in the deceased section at the
Master’s office. The letter reads:
6
‘Kindly be informed that Letter of Authority which Themba Mlamba IN NO:
8[…] has, was obtain fraudulent and he does n’t want to return back to us
(Master office) that letter. That letter is declared null and voi d.
The person that suppose to occupy the property is Simphiwe Hilda Mthembu ID. 7[…] as in accordance with will accepted by the Master up until finalisation of the on-
going investigation in respect of the alleged fraudulent will … ’ (sic)
[18] I may add that the letter of 11 February 2016 is preceded by a letter dated 11
November 2015, also penned by Blaauw, which only records that the applicant is the
person that is ‘ supposed to’ occupy the property in accordance with the will accepted
by the Master until finalization of the ongoing investigation in respect of the allegedly
fraudulent will. No mention is made of the validity of the letter of executorship issued
to the first respondent, at this point. But it does appear from the letters of 15
November 2015 and 11 February 2016 that the Master, at this point, was not
convinced of the validity of the will and certainly did not finally accept the same as
valid.
[19] Nonetheless , the problem with these two letters is that it is not supported by a
confirmatory affidavit by anyone at the Master’s office. It is not even indicated what
position Blaauw h eld, or what authority he may have to make decisions, or if was
even the one who made decisions . There is no indication of what may have been
considered in deciding the letter of executorship issued to the first respondent was
fraudulent , other than a bald statement .
[20] It is common cause that the first respondent , on 19 August 2015, sold the
property to the second and third respondent , relying on the letter of executorship that
had been issued to him on the same date, which letter of executorship was obviously
valid a t that time. It is also common cause that the applicant herself was only issued
with a letter of executorship by the Master on 22 August 2016, which is long after the
entire transaction had been concluded.
[21] As stated, t he transaction in terms of which the second and third respondent
purchased the property was concluded on 19 August 2015, when a written offer to
7
purchase was signed. The purchase price for the property was a sum of
R400 000.00, paid by the second and third respondents in equal shares. The
property was ultimately registered in the names of both the second and third
respondents on 12 October 2015, which concluded the transaction. At the time, there
was nothing to indicate that this transaction was somehow untoward, and certainly,
there was nothing to indicate that the first respondent’s letter of executorship was subject to challenge.
[22] The applicant was in fact evi cted from the property by way of an order grated
by the honourable Tuchten J on 29 December 2015.
[23] Nonetheless , the applicant believes that the transaction executed by the first
respondent in selling the property to the second and third respondents was null and
void, because it was executed on the basis of a letter of executorship fraudulently
obtained. In short , and according to the applicant, the first respondent had no
authority to sell the property , and this property belonged to her in terms of the will .
This belief then led to the current application.
Non-service on the Master
[24] In my view , there can be no doubt that the Master has a material interest in
the conducting of this case. This is because it is the actions of the Master and the
decisions that he had allegedly made that lies at the heart of the applicant’s case. In
particular, the applicant relies on a case of the Master receiving and registering the will of Sijaji at the outset, investigating and then accepting the purported will of Sij aji
as being valid, the M aster finding that the first respondent had obtained his l etter of
executorship by way of fraud, and lastly that the Master had decided to cancel the
first respondent’s letter of authority on that basis. This case of the applicant is
disputed by the first respondent. All this considered, I believe the Master has a
substantial legal interest in the outcome of this case.
1 Surely it must be patently
1 In Judicial Service Commission and Another v Cape Bar Council and Another 2013 (1) SA 170
(SCA) at para 12, it was held: ‘ It has by now become settled law that the joinder of a party is only
required as a matter of necessity — as opposed to a matter of convenience — if that party has a
direct and substantial interest which may be affected prejudicially by the judgment of the court in the
8
obvious to the applicant that the involvement of the Master in the case is essential , at
least to the extent that the Master can provide his in essence independent views on
what the applicant is the Court.2 Hence the applicant has indeed cited the Master as
the fourth respondent in this matter.
[25] It however turns out that the application was never served on the Master. The
first respondent pertinently raised this point, and it was not disputed by the applicant
that this was indeed the case I have also carefully considered all the returns of
service of the application provided by the applicant , as uploaded on CaseLines, and
the only proof s of service that exist is service of the application on the first, second
and third respondents .
[26] The failure to serve the application on the Master effectively means that there
is non- joinder of the Master in this case. Whilst i t may be so that the Master is cited
as a respondent party, that does not join him to the proceedings by simple reference. The Master must be brought into the proceedings as a party, and this can only
happen if the process is served on him. This was made clear in the judgment in
National Union of Metalworkers of SA v Intervalve (Pty) Ltd and Others
3. That case
dealt with dispute referrals under the LRA, which referrals function in exactly the
same way in instituting employment disputes , as a notice of motion and founding
affidavit would in the case of applications before this Court. It was found in that case,
on the facts, that some of the parties who sought to be joined to the proceedings at a
later stage were not served with the referrals. The Court had the following to say about this :
4
‘... The objectives of service are both substantial and formal. Formal service
puts the recipient on notice that it is liable to the consequences of enmeshment in the ensuing legal process. This demands the directness of
proceedings concerned ‘. See also Tlouamma and Others v Speaker of the National Assembly and
Others 2016 (1) SA 534 (WCC ) at para 159.
2 Compare Leketi v Tladi 2008 JDR 1188 (T) at para 19; Menziwa v Ndokwana and Others 2022 JDR
3259 (WCC) at paras 20 – 21.
3 (2015) 36 ILJ 363 (CC) .
4 Id at para 53 .
9
an arrow. One cannot receive notice of liability to legal process through
oblique or informal acquaintance with it. ...’
[27] The Court in Vilakazi v Commission for Conciliation, Mediation and Arbitration
and Others5 adopted the same approach where it came to the failure to serve a
review application on a party to the review , where the Court said:
‘It follows from the above that a referral to this court of a review application in
terms of rule 7A only exists when a notice of motion and founding affidavit is validly served on the respondent parties, and then filed in court. There is no delivery of the review application until such time as both the service and the filing requirements have been fulfilled.
There is an important reason why service on the respondent parties must always be effected in compliance with the requirements stipulated by law. It is this service that places the respondent parties on notice that there exist legal proceedings against them, and then calls on such respondent parties to
engage ...’
[28] Another example can be found in Safcor Forwarding (Johannesburg) (Pty) Ltd
v National Transport Commission
6. The case dealt with the question whether a
review applciation had to actually be served on a magistrate involved in the decision
making. The Court held as follows:7
‘... Consequently where Rule 53 speaks of the notice of motion having to be
'delivered' to, inter alios , the magistrate, it means service upon him of a copy
of the notice of motion. And when the Rule speaks of the notice of motion having to be 'directed' to the magistrate it must mean that the magistrate must
be cited as a party to the review proceedings. The word 'directed' is not defined in the Rules, but it seems to me to be an appropriate word to describe the process whereby a respondent is cited in motion proceedings. Notice of
5 (2024) 45 ILJ 369 (LC) at paras 10 – 11.
6 1982 (3) SA 654 (A) .
7 Id at 670D -F.
10
motion is, after all, a procedure whereby an applicant institutes proceedings
by giving notice thereof to any person against whom he claims relief, and to
the Registrar of the Court. ...’
[29] In sum, it is my view that the Master should have been called to Court , not
only because of his interest in the matter, but also because the applicant herself
contemplated this was necessary. However, and by not serving him with the
application, the applicant failed to bring him to Court. That failure is fatal, on the
basis of it constituting a non- joinder.
[30] But in any event, this failure must at the very least mean the applicant’s
contentions about what the Master may have done, decided and what happened in
the Master’s office relating to the letter of executorship of the first respondent and the
will cannot be accepted as true. This would include her as sertions t hat the purported
will of Sijaji was registered and accepted as valid by the Master, and the letter of
authority issued to the first respondent was cancelled by the Master on the basis of
fraud. I think this is important to appreciate, as I intend to nonetheless deal with the
merits of the applicant’s application, in order to illustrate that the case in any event
has no merit .
Analysis
[31] Before commencing with my reasoning, it is necessary to deal with several
material factual disputes that have arisen in this case. These factual disputes , in
summary, relate to the relationship of the first respondent to Sijaji, how the first respondent came to be appointed as executor, and whetehr Sijaji had a valid will that
was registered, interrogated, and then accepted by Master as such . This is all
intermixed with reciprocal allegations by each party that the other committed fraud.
This is the kind of case that is very difficult to resolve in motion proceedings.
Considering the history between the parties, which is evident fr om everything that is
filed under CaseLines, the applicant should have anticipated the eventuality of
material factual disputes . Yet the applicant pushed on, never sought a referral to oral
evidence, and must therefore stand or fall on the basis of how these kinds of factual
11
disputes are ordinarily resolved in motion proceedings , as enunciated in Plascon
Evans Paints v Van Riebeeck Paints8, where the Court held:
‘... These principles are, in sum, that the facts as stated by the respondent
party together with the admitted or facts that are not denied in the applicant
party’s founding affidavit constitute the factual basis for making a
determination, unless the dispute of fact is not real or genuine or the denials in the respondent's version are bald or not creditworthy, or the respondent's version raises such obviously fictitious disputes of fact, or is palpably
implausible, or far -fetched or so clearly untenable, that the court is justified in
rejecting that version on the basis that it obviously stands to be rejected ...’
[32] In Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and
Others
9, the Court added another dimension to the enquiry in applying the Plascon
Evans principle, where the Court said:
‘Ordinarily, the Court will consider those facts alleged by the applicant and
admitted by the respondent together with the facts as stated by the
respondent to consider whether relief should be granted. Where, however, a
denial by a respondent is not real, genuine or in good faith, the respondent has not sought that the dispute be referred to evidence, and the Court is persuaded of the inherent credibility of the facts asserted by an applicant, the Court may adjudicate the matter on the basis of the facts asserted by the applicant. '
[33] As to when a denial (factual dispute) by the respondent party may not be
considered to be real or genuine, the Court in Thebe Ya Bophelo Healthcare
Administrators (Pty) Ltd and Others v National Bargaining Council for the Road Freight Industry and Another
10 provided the following guidance:
8 1984 (3) SA 623 (A) at 634E -635C.
9 2005 (2) SA 359 (CC) at para 53.
10 2009 (3) SA 187 (W) para 19.
12
‘… the dispute is not real or genuine or the denials in the respondent's version
are bald or uncreditworthy, or the respondent's version raises such obviously fictitious disputes of fact, or is palpably implausible, or far -fetched or so clearly
untenable that the court is justified in rejecting that version on the basis that it obviously stands to be rejected … ’
And in Wightman t/a JW Construction v Headfour (Pty) Ltd and Another
11 the Court
explained:
‘A real, genuine and bona fide dispute of fact can exist only where the court is
satisfied that the party who purports to raise the dispute has in his affidavit
seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirement because there is no other way open to the disputing party and nothing more can therefore be expected of him. But even that may not be sufficient if the fact averred lies purely within the knowledge of the averring party and no basis is laid for disputing the veracity or accuracy of the averment. When the
facts averred are such that the disputing party must necessarily possess
knowledge of them and be able to provide an answer (or countervailing
evidence) if they be not true or accurate but, instead of doing so, rests his case on a bare or ambiguous denial the court will generally have difficulty in finding that the test is satisfied. ...’
[34] All the above being said, I do not believe it can be said that the factual
disputes as raised by way of the first respondent’s answering affidavit are not real or
genuine. Where certain facts were in the knowledge of the first respondent, he put
them fo rward . Where it came to allegations by the applicant concerning the conduct
of the Master, the first re spondent would not know this, and a bare denial would
suffice. This is especially true where it comes to the allegations that the first
respondent perpetrated a fraud when he sought to be appointed as executor, and
the Master declared his let ter of executorship null and void as a result. There is
11 2008 (3) SA 371 (SCA) at para 13. See also Minister of Home Affairs and Others v Jose and
Another 2021 (6) SA 369 (SCA) at para 20.
13
nothing obviously fictitious, palpably implausible, far-fetched or untenable in what the
first respondent had to say in his answering affidavit. There is no reason why this
matter should not be decided on the basis of the admitted facts, together with the
version as contained in the answering affidavit of the first respondent . In the end, as
held in TIBMS (Pty) Ltd t/a Halo Underground Lighting Systems v Knight and
Another12:
‘… Credibility is only capable of being addressed on paper when the assertions are palpably absurd or demonstrably false. The threshold that had to be cleared is ‘wholly fanciful and untenable’. Moreover, the appetite to resolve paper contests by reference to the probabilities, though ever present, is not appropriate. …’
[35] The above being said, the determination of this matter starts with setting out
the relevant statutory framework. The administration of the estate of Sijaji would be
regulated by Administration of Estates Act (AEA)
13. In this context, it must be
accepted that the first respondent was closely relate d to Sijaji, in that she was his
aunt. By virtue of this relationship, the first respondent was entitled to report her
death and her the estate to the Master by way of a notice of death,14 as he did.
When the first respondent discharged this obligation, he was unaware of any will
executed by Sijaji, and reported her as having died intestate. There can be nothing
untoward or irregular in any of this, as there is no case made out by the applicant of
the first respondent being aware of any will when he submitted the notice of death.
[36] What the applicant did was to in essence pin her hopes on her contention that
the first respondent indicated in the death notice that he was the son of Sijaji , which
would obviously be untrue. It is so that the applicant discovered some documents by
way of her founding affidavit, which had purportedly been submitted to the Master , in
which the first respondent appeared to indicate he was the son of Sijaji. The problem
with this is that the authenticity of these documents has not been established. The
applicant has not indicated where and how she obtained these documents. There is
12 (2017) 38 ILJ 2721 (LAC) at para 29.
13 Act 66 of 1965 (as amended).
14 See section 7(1)(a) of the AEA.
14
no confirmatory affidavit by any responsible person f rom the Master’s office
substantiating the veracity of these documents , and I again refer to the issue of the
Master not being served with the application, discussed above. This was especially
needed, considering that the first respondent specifically denied, in his answering
affidavit, that h e ever represented that he was the son of Sijaji . For all these reasons,
it simply cannot be confidently said, on the facts, that the first respondent obtained
the letter of executorship by fraudulent means .
[37] In terms of section 18(1) of the AEA , the Master may, if any person has died
without having by will nominated any person to be his or her executor , appoint and
grant letters of executorship to any person the Master may deem to be fit and proper .
In this instance, and when the estate was reported by the first respondent in August
2015 on the basis that Sijaji died intestate , the Master clearly exercised his discretion
in terms of this provision to appoint the first respondent as executor. There is also no
case made out by the applicant that the Master decided to appoint the first
respondent as executor because he believed the first respondent was Sijaji’s son.
Clearly the Master properly exercised his discretion in terms of this section, and once
he had made this appointment accordingly , he would be functus officio .15
[38] Because the Master would be functus off icio following appointment, it is not
up to the Master to reconsider the appointment of the first respondent as executor.
But what the Master can do is to remove the first respondent as executor . This would
be done in terms of section 54(1)(b) of the AEA , which reads:
‘(1) An executor may at any time be removed from his office- ...
(b) by the Master -
(i) if he has been nominated by will and that will has been declared to be
void by the Court or has been revoked, either wholly or in so far as it relates to
his nomination, or if he has been nominated by will and the Master is of the
opinion that the will is for any reason invalid; or
15 See Levinson v The Master of the High Court 2020 JDR 2180 (GJ) at para 28; Coetzer en 'n Ander
v De Kock, NO en Andere 1976 (1) SA 351 (O) at 359C -H; Bouwer NO v Master of the Pretoria High
Court and Another 2023 JDR 3533 (GP) at para 10.
15
(ii) if he fails to comply with a notice under section 23 (3) within the period
specified in the notice or within such further period as the Master may allow;
or
(iii) if he or she is convicted, in the Republic or elsewhere, of theft, fraud,
forgery, uttering a forged instrument or perjury, and is sentenced to imprisonment without the option of a fine, or to a fine exceeding R2 000; or
(iv) if at the time of his appointment he was incapacitated, or if he becomes
incapacitated to act as executor of the estate of the deceased; or
(v) if he fails to perform satisfactorily any duty imposed upon him by or under
this Act or to comply with any lawful request of the Master; or
(vi) if he applies in writing to the Master to be released from his office. ’
[39] However, r emoving a person as executor under section 54(1)(b) does not
contemplate reconsidering the original appointment as executor, nor does it
contemplate that the original letters of executorship are declared invalid or null and
void. Obviously, removing a person as an executor under section 54 would only be
competent if that person was properly appointed as executor in the first place. Only
the Chief Master , by virtue o f the provisions of section 95(1) of the AEA,
16 would
have the power to review the appointment of an executor, and consequently declare
a letter of executorship invalid or null and void, however that can only happen once
all parties have been given a proper opportunity to make representations , and those
representations have been considered.17 If there is any doubt about this, it must be
pointed out that section 54(5) provides that where a person is removed as executor ,
that person must return the letter of executorship to the Master. What is the point of
returning a document that is declared invalid or null and void. Therefore, it would not be permissible for the Master to simply reconsider the issuing of a letter of
executorship, and then declaring the same to be null and void or invalid. The Master
is functus officio in this regard, and simply does not have that power .
16 Section 95(1) r eads : ‘The Chief Master may review any appointment of an executor, curator or
interim curator, and every decision, ruling, order, direction or taxation made by the Master, after taking
into consideration representations from an executor, curator, interim curator, beneficiary or any other
person whom the Chief Master considers relevant, and the Chief Master may confirm, set aside or
vary the appointment, decision, ruling, order, direction or taxation, as the case may be …’.
17 See 95(4) of the AEA.
16
[40] The instances when the Master may remove an executor under section 54 are
specifically circumscribed , and concern, simply described: (1) where the will
nominating the executor is declared invalid / revoked; (2) the failure to comply with
the providing of security requirements in section 23; (3) where the executor is
convicted of a criminal offence relating to dishonesty (such as fraud) and sentenced
to imprisonment without the option of a fine; (4) the executor becomes incapacitated;
(5) the executor fails in his tasks; and (6) the executor resigns. I n particular, the
Master does not have the power under section 54(1)(b) to remove a person as an
executor in circumstances where the letter of executorship may have been obtained
by misrepresentation (this would obviously encompass the fraud allegation made by
the applicant in casu). Only the Court has this power under section 54(1) (v) of the
AEA.18 As succinctly said in Mlunguza and Another v Master of the High Court and
Another19:
‘... This view of the matter is fortified by the division of removal powers
between the court and the Master in s 54(1). The grounds on which a court
may remove an executor are set out in para ( a) of the subsection. The
grounds listed in sub- paras (ii), (iii) and (iv) are concerned with misconduct of
various kinds, while sub- para (v) empowers the court
to remove an executor ‘if for any other reason the Court is satisfied that it is
undesirable that he should act as executor of the estate concerned’. This
would obviously include a complaint that the executor is not a fit and proper
person.
By contrast, and leaving aside administrative non- compliance (in respect of
which matters the Master has oversight), the only ground of misconduct for
which the Master may remove an executor under para ( b) is where
the executor has been convicted of certain offences (sub- para (iii)). And in
such cases, it is a determination of wrongdoing by a court which triggers
the Master’s power; the Master himself or herself does not have the power to
18 The section reads: ‘ An executor may at any time be removed from his office (a) by the Court …
(v) if for any other reason the Court is satisfied that it is undesirable that he should act as executor of
the estate concerned. ’.
19 (21755/2018) [2020] ZAWCHC 6 (11 February 2020) at paras 33 – 34.
17
investigate and determine whether the executor has committed one of the
specified offences …’
[41] A comparable example of the Court exercising its power sunder section
54(1)(a)(v) is found in Goss v Bennett20, where the Court had the following to say :
‘I agree with the appellant that there is no issue about his conduct in handling
the estate of the decease since his appointment. However, the issue is how he conducted himself in securing his appointment as the executor. Section 54(1)(a)(v) provides for the Court to remove an executor if it is satisfied that it is undesirable for him or her to continue to act as such. The conduct of the appellant before his appointment is telling and is such that the other heirs and legatees have lost confidence that he will handle and wind up the estate properly. He has clandestinely secured his appointment as executor by withholding crucial information to the Master, and by refusing any other party access to the information contained and stored in the laptop of the deceased
[42] The applicant did not approach the Chief Master under section 95 of the AEA
to review the appointment of the first respondent as executor on 19 August 2015.
There is in any event no evidence of such a decision ever being by the C hief Master,
which decision could only have been made if due process and audi alter am partem
had first been complied with. The applicant has also not applied to this Court under
section 54(1)(v) , to remove the first respondent as executor based on a
misrepresentation he had made when obtaining a letter of executorship from the
Master. Instead, the applicant relies solely on what she contends is a decision by the
Master reflected in a letter dated 11 February 2016 to declare the letter of
executorship issued to the first respondent to be invalid , and null and void.
[43] The applicant’s case firstly has difficulty on the facts. As stated above, the
letter by Blaauw of 11 February 2016 is of little value in establishing that a decision
was actually made by the Master to revoke the letter of executorship issued to the
first respondent based on fraud. In particular, one does not even know what position
20 (A5021/2022) [2023] ZAGPJHC 556 (31 May 2023) at para 16.
18
Blaauw may occupy at the Master , and in respect he was involved in the decision
making at the office of the Master relating to this matter . But worse still, there is no
confirmatory affidavit by Blaauw that can attest what may have been considered and
on what basis the Master had made a decision, which I believe was important .21 The
applicant has simply not done enough to prove her case in this respect .
[44] But even if it can be said that the Master decided to declare the letter of
executorship issue d to the first respondent as invalid or null and void based on fraud
allegedly perpetrated by the first respondent , the problem remains that the Master
simply did not have the power to do so, as discussed above. In sum, he does not
have the power to declare a letter executorship as being invalid and null and void,
because he is functus officio , and he does not have the power to remove the first
respondent as executor on the basis of fraud / misrepresentation, as only the Court
can do so.22 This would therefore, on the law, be equally destructive of the
applicant’s case .
[45] Considering that the will that Sijaji had purported made later came into play,
what consequences could this have on justifying the removal of the first respondent
as executor? The answer must be nothing at all. I say this for a number of reasons.
In terms of section 8(1) of the AEA, the applicant , who contended that she had
knowledge of the existence of the will throughout , was obliged to transmit the will to
the Master as soon as the death of Sijaji came to her knowledge. There is no
indication when she did this, but it does seem that it was only several months later.
Where the Master receives the will , the Master registers the same in a register of
estates .23 The applicant has provided no proof the registration of the will in casu in
the register of estates. The only docum ent she has provided is a copy of the will
itself, which documents contains a stamp by the Master reflecting it was registered,
but this stamp is only dated 16 February 2016. Accordingly, there is no evidence of
the Master even registering the will in this case until long after the entire transaction
that the applicant takes issue with, in this case , had been concluded.
21 Compare Olivier v Master of the High Court and Others [2016] ZAGPPHC 536 (23 April 2016) at
para 38.
22 See Mlunguza (supra ) at para 38.
23 Section 8(3) of the AEA.
19
[46] Further, and even if a will is registered, it does not mean it is accepted by the
Master , because under section 8(4) the Master may refuse to accept a will despite it
being registered, if it appears to the Master that the will may for any reason be
invalid, until the validity thereof has been determined by the Court. There is no
indication, on the evidence, that the Master accepted the will. It certainly appears that it was undisputed that the validity of the will was contested. In fact, the letters
from Blaauw relied by the applicant herself records that the will is contested, and that
it is still subject to investigation. The applicant needed conf irmation from the Master
that the will was accepted, in the form of at least a confirmatory affidavit by a person
from the Master’s office in the know . It follows that the applicant has not even shown
that the will was accepted by the Master .
[47] A final consideration remains. Accepting for the purposes of argument that the
letter of 11 February 2016 by Blaauw can be considered or read to be the removal of the first respondent as executor as contemplated by section 54, then on what
provision in this section could the Master have relied upon. First and foremost, if the
Master had relied on any of the provisions in section 54(1)(b), the Master also
needed to comply with audi alter am partem , by giving the first respondent notice of
his intentions in this regard. This is evident from section 54(2), which reads :
‘Before removing an executor from his office under subparagraph (i), (ii), (iii),
(iv) or (v) of paragraph (b) of subsection (1), the Master shall forward to him
by registered post a notice setting forth the reasons for such removal, and informing him that he may apply to the Court within thirty days from the date of such notice for an order restraining the Master from removing him from his office .’
[48] In casu, there is no evidence of any compliance by the Master with the
provisions of section 54(2). In any event, none of the circumstances as contemplated
by section 54(1)(b) have been relied on by the applicant herself, or would be
applicable in this case. So, the Master could not have utilised his entitlement under
section 54(1)(b) to effect the removal of the first respondent .
20
[49] This only leaves section 54(3) . In terms of this section: ‘An executor who has
not been nominated by will may at any time be removed from his office by the Master
if it appears that there is a will by which any other person who is capable of acting and consents to act as executor has been nominated as executor to the estate which he has been appointed to liquidate and distribute ...’. It is true that where it comes to
the Master exercising his powers of removal under this section, the prvosions of
section 54(2) do not apply, and the Master would not have been obliged to give
notice to the first respondent before removing him as executor.
24
[50] However, there is no indication on the facts that the Master relied on section
54(3) in removing the first respondent as executor. The letter of 11 February 2016
certainly gives no such indication. Instead, and as said above, it specifically refers to
action being taken as a result of ‘ fraud’. There is no confirmatory affidavit from the
Master, establishing that that the M aster relied on section 54(3). And finally in this
respect, section 54(3) effectively contemplates that where the Master had appointed
an ex ecutor , and it is found that there existed a will which specifically appointed
another person as executor, the Master may remove the first ly appointed executor,
and then instead appoint the executor nominated by the will itself. This kind of
provision would make sense, as it is intended to give effect to the wishes of the
testator, and correct where a mistake in appointment of the executor may have been
made. But in casu, it cannot be said that the first respondent was removed by the
Master for the purposes of replacing him with an executor appointed under the will of
Sijaji. The executor appointed under the will of Sijaji is ABSA T rust. On the
applicant’s own case, ABSA T rust renounced executorship as far back as 25 August
2015. The M aster could thus not have applied section 54(3) in removing the first
respondent as executor .
[51] A comparable example to the case in casu in the judgment of Phanyane NO
v Phanyane and Others
25 bears mention. In that case, the applicant contended that
the deceased had made a will in which the a pplicant was nominated as executor .
However, the respondent party had first reported the estate to the Master on the
24 See Phanyane NO v Phanyane and Others 2022 JDR 2131 (GJ) , discussed below.
25 2022 JDR 2131 (GJ) ,
21
basis that the deceased had died without a will , and a letter of executorship was
issued to the respondent on that basis. The applicant then also reported the estate,
but with the will, which will the Master accepted and registered. The Master then
withdrew the respondent’s letter of executorship, to appoint the applicant instead.
However, the respondent had sold a property, under the first issued letter of
executorship, to third parties , and the applicant as a result of the aforesaid events
sought the transaction to be declared invalid . The respondent in turn challenged the
withdrawal of the letter of executorship by the Master. In considering the aforesaid,
the Court first held:26
‘The First Respondent is correct that the Master ordinarily becomes functus
officio once Letters of Authority or Executorship have been issued. However,
this is subject to the powers of removal which the Master has in terms of
Section 54 of the Act, titled Removal from office of executor .’
[52] The Court in Phanyane supra sought to distinguish the different
circumstances under which the Master would be empowered to remove an executor.
The Cour t accepted that in the case of a removal under section 54(1)(b), there had
to compliance with audi alter am partem under section 54(2).
27 But in this case, the
respondent had been removed as executor in terms of section 54(3), by virtue of the
provisions of the valid will which had come to light. The Court consequently held
that:28
‘... The procedure prescribed by section 54(2) applies only to removals in
terms of subsection (1). It seems clear to me the First Respondent was removed in terms of section 54(3) ...
It is clear from the quoted subsection that the Master has the authority to replace an executor who was not nominated by will, with one who was
nominated by will and who is willing and able to act as executor. In the present case the First Respondent was removed following the registration of
26 Id at para 16 .
27 See para 17 of the judgment.
28 Id at paras 20 – 21.
22
the deceased's will, which nominated the Applicant as executor. The Master
therefore did not act unlawfully or exceed his powers by withdrawing the First Respondent's Letter of Authority. ’
[53] It is also important to note that in Phanyane supra, the respondent’s letter of
executorship had be en withdrawn by the Master prior to the final execution of the
transaction selling the property, and that meant the transaction was invalid .
29
[54] Comparing Phanyane supra to the case in casu, a number of differences are
immediately apparent. First, the letter of executorship of the first respondent in casu
was only disavowed b y the Master long after the transaction had been finally
executed. Second, the Master did not seek to disavow the le tter of executorship
based on the will. Thi rd, the applicant was in any event not nominated as executor
under the will. As such, the cause for removal could only be one as contemplated by
section 54(1)(b), and in which event compliance with audi alter am partem as
prescribed by section 54(2) was essential .
[55] All the above considered, there is only one conclusion that can follow. The
first respondent had been validly appointed by the Master as executor on 19 August
2015, and was functus officio where it c ame to such appointment. The Master cannot
declare such appointment as invalid or null and void, as the Master does not have
the power to do so. The Master also never removed the first respondent as executor
as contemplated by section 54(1)(b) or section 54(3) . This must mean that when the
first respondent transacted to sell the property to the second and third respondents ,
that transaction was legitimate and authorised by his extant letter of executorship
issued to him by the M aster, and the transaction stands. If the applicant believed the
original appoint ment of the first respondent as executor was tainted with invalidity as
a result of a fraud or misrepresentation perpetrated by the first respondent in
securing such appointment, the applicant sh ould have approached t he Court in
terms of section 54(1) (a)(v) of the AEA to remove the first r espondent as executor , or
should have sought a review of the appointment , in terms of section 95 of the AEA ,
by the Chief Master . But the applicant cannot rely on a purported declaration of
29 Id at para 27 .
23
invalidity of the letter of executorship issued to the first respondent by the Master as
basis for her claim, which was unproven on the facts in any event .
[56] Consequently, the applicant has faile d to make out a case for the relief sought
in her notice of motion. The applicant has fail ed to establish a proper factual
foundation for her claim, which claim in any event has no legal basis to support it.
There is no basis to set aside the transaction concluded between the first
respondent , on the one hand, the second and third respondents , on the other, in
terms of which the property was sold to, and then registered in the names of, the
second and third respondents . The applicant’s application falls to be dismissed.
[57] This only leaves the issue of costs. The applicant was not successful . As
such, the first and second and third respondents , who opposed the matter, would be
entitled to their costs. I also consider that the applicant elected to pursue this matter
on motion, when it should have been apparent to her that this would be problematic. Her failure to even serve the Master with the application is also a factor that weighs
in my decision with regard to costs. I thus consider that a costs award against the
applicant , on the party and party scale B, is justified.
[58] It is for all the reason as set out above, that I made the order that I did as
reflected in paragraph 2 of this judgment, supra .
SNYMAN AJ
Acting Judge of the High Court of South Africa
Gauteng Division, Johannesburg
Appearances :
Heard on: 19 February 2025
For the Applicant : Ms S Mabaso of Sharon Mabaso Attorneys
For the First Respondent : Advocate C R Du Plessis
Instructed by: Nivani Muller Attorneys
24
For the Second and Third Respondent s: Advocate M J Mbadi
Instructed by: Wits Law Clinic
Judgment: 7 March 2025