SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU -NATAL LOCAL DIVISION, DURBAN

Case no: D11184/2024

In the matter between:

R[...] E[...] M[...] APPLICANT

and

A[...] S[...] C[...] M[...] FIRST RESPONDENT

C[...] M[...] SECOND RESPONDENT

C[...] M[...] THIRD RESPONDENT

STANDARD BANK OF SOUTH AFRICA LIMITED FOURTH RESPONDENT

ABSA BANK LIMITED FIFTH RESPONDENT

THE MASTER OF THE HIGH COURT, DURBAN SIXTH RESPONDENT


Coram : Mossop J
Heard : 7 May 2025
Delivered : 21 May 2025


ORDER


The following order is granted :
1. Paragraph 1(a)(i) of the rule nisi granted by Radebe J on 20 September 2024
is confirmed against the first respondent only.
2. The rule is otherwise discharged against all the respondents.
3. Each party shall pay their own costs.


JUDGMENT


MOSSOP J :

Introduction
[1] On 20 September 2024, Radebe J granted an urgent rule nisi, with interim
relief , at the instance of the applicant (the rule) . Despite six respondents being
identified, t he relief claimed by the applicant was primarily directed at the first,
second , and third respondent s. I am now required to determine whether the rule
should be confirmed.

The rule
[2] The rule reads as follows:
‘1. The first to sixth respondent are called upon to show cause on 24 January
2025 at 09h30 or as soon as the matter may be heard why an order in the following
terms should not be made final:
(a) Pending the finalisation of the winding up of the estate of the late Sean
McCann (the deceased) the first to third respondents, for so long as they
remain employed by or otherwise involved in the affairs of either Corporate
Motor Management CC (Registration No. 1997/044775/23), hereinafter
referred to as “the CC”, or Autorox (Pty) Ltd (Registration No.
2021/688372/08), hereinafter referred to as “the Company”, or the business
trading under the name and style of The business , hereinafter referred to as
“the Business”, are hereby interdicted and restrained from:
(i) drawing from the bank accounts or cash reserves from the CC, the
Company or the Business any amounts other than those that they
would have each been entitled to in the ordinary course of their
employment therewith prior to the death of the deceased, provided the
CC, the Company or the Business remain in a position to make the
aforesaid payments;
(ii) conducting themselves or carrying on the business of the CC, the
Company or the Business in such a manner as to cause the CC, the
Company or the Business to be in breach of the Mahindra Dealership
Agreement concluded by either the CC or the Company, as the case
may be, with Mahindra South Africa (Pty) Ltd and for so long as the
said Mahindra Dealership Agreement remains in existence;
(iii) conducting themselves or carrying on the business of the CC, the
Company or the Business in such a manner as to cause prejudice to
the interests thereof;
(iv) causing either the CC or the Company to cease making payment of
any amounts which were paid by either of them prior to the death of the
deceased in respect of the applicant and the deceased’s monthly
expenses provided, (sic) the CC or the Company remain in a position
to make the said payments.
(b) Pending the finalisation of the winding up of the deceased’s estate, the fifth
respondent is directed to provide, upon request by the applicant, copies of all
monthly statements in respect of any banking accounts held with it in the
name of either the CC or the Company, and to provide the application (sic)
with such information as she may require and as the fifth respondent may be
in possession of in relation to any transactions appearing on the said monthly
statements.
(c) The first to third respondents are directed to pay the costs of the application.
2. The provisions of paragraph 1.a, 1.a.i., 1.a.ii., 1.a.iii., 1.a.iv., and 1.b. above
shall operate as interim relief with immediate effect.’

Common cause
[3] It is not in dispute that Mr Regan McCann was married to the applicant and
conducted the business of a Mahindra motor vehicle dealership in Umhlanga Rocks ,
KwaZulu -Natal (the business ) through two corporate entities . The two corporate
entities were Corporate Motor Management CC ( CMM ) and Autorox (Pty) Ltd
(Autorox). CMM attend ed to the sale of motor vehicles on behalf of the business and
Autorox was responsible for the running of the business’s automotive workshop.

[4] On 2 August 2024, Mr McCann sadly took his own life, and I shall accordingly
henceforth refer to him as ‘the deceased ’. The business apparently remains
operational , despite the passing of its guiding mind .

[5] The first respondent is the deceased’s father , the second respondent is his
mother, and the third respondent is his sister. They are employees of the business ,
although by which entity each is definitively employed is not conclusively revealed in
the papers. The applicant , the first and second respondent’s daughter -in-law, is not
aware of the capacity in which the first respondent is employed. She is , however,
certain that t he second respondent is employed as the bookkeeper of the business,
and she knows that the third respondent is also employed in an administrative
capacity .

[6] It appears to also be common cause that the relationship between the
applicant and the deceased’s immediate family has broken down for a variety of
reasons that need not be explored in this judgment.

The reason for the urgent application
[7] The applicant revealed the reason why the application was brought at the
commencement of her founding affidavit, claiming that it was:
‘… aimed at preserving and protecting the business interests and general status quo
in respect of two corporate entities …’
The two corporate entities referred to are CMM and Autorox.

[8] The deceased died testate. In fact, he and the applicant concluded a joint will
in which each appointed the other as the sole heir of their respective estates. Both
further agreed that either Standard Executors and Trust ees Limited or Standard
Bank of South Africa Limited, whichever first accepted the appointment, was to be
appointed as the executor of their respective estates upon their death s. The joint will
does not provide for an y bequests to any legatees and the applicant is, thus, the
deceased’s sole heir.

[9] The formal appointment of an executor , regrettably, often take s some time
and that was the case in this matter. The deceased died on 2 August 2024 and by
the date upon which this application was launched , 13 September 2024 , the sixth
respondent had not yet made the required appointment. Eventually, Ms Winnie
Alexander , as a nominee of Standard Executors and Trust ees Limited , was
appointed as the executrix (the executrix) to the deceased’s estate on 2 December
2024 , precisely four months after the deceased died .

[10] The appointment of the executrix , however, lay in the future when the
applicant brought her application. Indeed, the application was considered necessary
precisely because her appointment had not yet occurred. Whilst the applicant
awaited the appointment of the executr ix, she determined that certain irregularities
appeared to be occurring at the business . In identifying these irregularities, the
applicant candidly conceded that her knowledge of the business was imperf ect and
that she ha d:
‘… very limited information regarding the status of the business of the company and
the CC.’

[11] That statement is repeated in various permutations in both affidavits to which
the applicant has appended her signature in this application . This is, perhaps,
understandable, for s he had no formal connection to either CMM or to Autorox and
was not a member of the former, nor was she a director or shareholder of the latter.
Her only rather tenuous link to either of them was that she happened to be married
to their guiding mind .

[12] However, a s sole heir to the estate of the deceased , the applicant reason ed
that if the business was denude d of its resources and assets , including its cash
resources and its dealership agreement with Mahindra, it would be diminished in its
value, and she would , consequently , ultimately inherit less. She accordingly
submit ted that she was entitled to interdict such conduct of the first to third
respondents that might lead to a reduction in the value of her inheritance.

[13] From my understanding of the papers and, in particular, the position adopted
by the first to third respondents, it appears that they are prepared to accept th e
principle that the applicant was entitled to act in order to preserve estate assets . The
first respondent stated in the answering affidavit that he delivered on behalf of
himself and the second and third respondents that:
‘In the most remote of circumstances, and considering there is not yet an executor or
executrix appointed in respect of my late son’s estate by the Sixth Respondent,
notionally the Applicant could at best argue that she needs to preserve assets.’

[14] I deduce therefrom that the first to third respondents accept that the applicant,
on some level, may have been justified in approaching the court to preserve her late
husband’s estate pending the appointment of an executor. I , however, do not lose
sight of the fact that the first respondent goes on to state in the answering affidavit
that no case was made out by the applicant for the allegation that the value of the
deceased’s estate was, indeed, being imperilled by any culpable conduct on the part
of himself or the second or third respondents. This statement , however, must be
open to some doubt , especially with reference to the conduct of the first respondent ,
given his admitted conduct of withdrawing money from CMM ’s bank account , which
is examined in more detail later in this judgment.

[15] I also do not lose sight of the provisions of s 12(1) of the Administration of
Estates Act 66 of 1965 (the Act) , which read as follows:
‘The Master may appoint an interim curator to take any estate into his custody until
letters of executorship have been granted or signed and sealed, or a person has
been directed to liquidate and distribute the estate. ’
The applicant would have been entitled to request the sixth respondent for such an
appointment to occur. She did not do so but, instead, approached this court. She has
not explained why this was not done. It is notionally possible that she chose to
approach this court given the obvious lethargy displayed by the sixth respondent in
performing the functions assigned to that office. The applicant clearly believed that
immediate action was required, not a further interlude of being required to patiently
stand i n line awaiting a decision by the sixth respondent.

The relief claimed in paragraph (a) of the rule
[16] Summarised, the applicant seeks to interdict the first to third respondents from
drawing money from the business beyond what their functions ordinarily permitted
them to draw and from conducting themselves in a manner that would ultimately
prejudice the interests of the business and imperil the franchise agreement that it
holds with Mahindra . Whilst seeking to restrict the withdrawal of money by the first to
third respondents from the business , ironically, the applicant also seeks to compel
them to ensure that the business continue s to make payments that it made in
respect of the deceased’s and her monthly living expenses whilst the deceased was
alive. This she does , indirect ly, by compelling the first to third respondents personally
not to stop making those payments.

[17] It is perhaps convenient to deal with the issue of the payment of the monthly
expenses first , for the issue can be dealt with simply and swiftly . Mr Aldworth, who
appeared for the applicant, conceded that the rule could not be confirmed in respect
of that relief. The payments claimed are a form of maintenance and such a claim
should be directed to the executrix , who must determine the issue . There is a further
reason why the claim for payment cannot be permitt ed. The applicant’s claim is, in
truth, against the business , as constituted by CMM and Autorox. None of the first,
second or third respondents physically make those payments using their own
money . The business makes the payment but neither the business, nor CMM or
Autorox, are joined in the application. No order compelling the business to continue
making those payments could therefore be granted against it in its absence.

[18] As regards the other relief claimed in paragraph (a) of the rule, I deal with the
withdrawal of money first. The applicant explained that she acquired access to the
business ’s accounting records and from that she discerned that the first respondent
ordinarily received a monthly salary of approximately R23 000 from the business . In
the month in which his son died, August 2024, the first respondent withdrew from
CMM ’s bank account the amount of approximately R142 000. He had previously
never been paid anythin g by CMM . The applicant regarded this transaction with
extreme suspicion, and it appears that her discovery of this fact prompted this
application.

[19] The first respondent admitted to drawing that sum from CMM ’s bank account .
His explanation for doing so was the following:
‘129. However, the close corporation which attends to the sale of the vehicles
required a dealer princip al.
130. I took over this role to save the business from closure. I was told by the
auditors that I needed to pay myself a salary for the sake of the books of account
and tax affairs of the close corporation. These are the same auditors that the
Applicant has relied upon by providing the financial statements.
131. The amount of R141 577.12 was not “for the month of August ”. It was two
months’ worth of salary at this position. It was paid as a lump sum due to provisional
tax considerations. ’

[20] I confess that there is much that I do not understand about this explanation.
Perhaps the biggest difficulty that I have is that if the amount of R142 000 was
payment to the first respondent for two months ’ salary , which two months does it
relate to? If it was for July and August 2024, why was the first respondent required to
take over as dealer principal when his son was still alive and , by all accounts , was
performing that function perfectly adequately himself? And if the two months are
August and September 2024, why was the first respondent entitled to be paid in
advance in August for the month of September 2024? No explanation has been
forthcoming. What has been explained simply leads to further questions. If the
auditors gave the first respondent that advice, w hy have th ey not confirmed their
advice under oath? What are the provisional tax implications involved ? Who
determined that the first respondent’s salary should be increased from R23 000 per
month to an amount northward s of R70 000 per month? No answer has been
proffered to any of these questions.

[21] That the first respondent’s entitlement to this money is , at the very least ,
questionable , appears to have been realised by him and he accordingly made the
following statement in the answering affidavit immediately after advancing the
explanation just narrated :
‘I am very happy to pay this money back to the business considering the payment
was only made on the advice of the auditors, and I did not jump into the business for
the purpose of immediate financial reward…’.

[22] As I understand things, the repayment has not been made. However, t he
tender of repayment was repeated in argument before me by Mr Tucker, who
appeared for the first to third respondents. It appeared to be made seriously and , in
my view, should be given effect to.

[23] The remaining issue in paragraph (a) of the rule, being the applicant’s
concern over the way that the affairs of t he business are now being conducted is
less clearly defined. What appears to irk the applicant is that the first respondent
stepped forward, took control of the business, and took certain decisions
immediately after the death of his son . The first respondent had previously been the
sole member of CMM and at some stage had transferred his membership interest in
it to the deceased. The applicant indicated that she is aware that there may be a
considerable sum of money owing to the first respondent arising out of this
transaction, although she has not seen documentary proof of the existence of the
indebtedness . The applicant consequently advise d the first respondent in her
founding affidavit to formally present his claim for payment to the executor and
admonishe d him against simply helping himself to funds from the business .

[24] The applicant stated that she had observed from the business ’s website that
the first respondent has now identifi ed himself as being the dealer principal of the
business . What she says in this regard is the following:
‘Quite obviously, Sean has no authority to unilaterally appoint himself the dealer
principal of the dealership. While I do not necessarily take issue with him having
done so, it illustrates the fact Sean seems to be of the view that he can simply take
over and run the business as he wishes to.’

[25] The fact of the matter is that someone had to step up to the plate when the
deceased passed away to allow the business to continue to operate . To have
remained passive, it seems to me, would inevitably have led to the failure of the
business . The first respondent had experience in the industry in which the business
operated and did what had to be done. The applicant , on her own version, has none
of that experience: she is an educator. In my view , she has sensibly indicated that
she does not take issue with what the first respondent did. That being the case, I fail
to understand what her complaint is regarding the way in which the business is being
conducted. No case has been made out for such dissatisfaction in the founding
affidavit, unless the complaint relates to the withdrawal of money by the first
respondent , which has already been discussed. I do not discern any other grounds in
the founding affidavit that relate to the way that the business is presently being
conducted. No case may be made out in reply, for obvious reasons.1

The relief claimed in paragraph (b) of the rule
[26] Not much needs to be said about th is portion of the rule . The rule permitted
the applicant to demand from the business ’s bank, the fifth respondent, that it
provide her with copies of the business ’s bank account statements and to provide
her, upon her request, with information regarding any transaction appearing in the
bank statements.

[27] In argument, Mr Aldworth, who most ably represented the applicant
throughout, intimated that it would be difficult for him to seek the confirmation of
paragraph (b) of the rule. In my view, he was correct in making that concession. The
applicant has no entitlement to receive the business ’s bank statements. Those are
the property of the business . In the performance of her duties, the executrix will have
access to them, but the applicant has no right to such access.

Analysis
[28] While the facts of this matter are being considered some time after the
appointment of the executrix by the sixth respondent , it is important not to be
distracted by the fact of that appointment. It is so that u pon being appoint ed, an
executrix assumes control of a deceased person’s estate . Section 26(1) of the Act
creates the following skeletal outline of the executrix’s obligations and powers:
‘Immediately after letters of executorship have been granted to him an executor shall
take into his custody or under his control all the property, books and documents in
the estate and not in the possession of any person who claims to be entitled to retain
it under any contract, right of retention or attachment. ’


1 Pienaar v Minister of Police [2019] ZANCHC 18 para 13 .
[29] To this skeleton, the courts have given muscle and sinew. In 1959, the
Appellate Division commented as follows on the duties of an executor in Lockhat’s
Estate v North British and Mercantile Insurance Co Ltd :2
‘The duty of an executor who has been appointed to administer the estate of a
deceased person is to obtain possession of the assets of that person, including
rights of action, to realise such of the assets as may be necessary for the payment
of the debts of the deceased, taxes, and the costs of administering and winding up
the estate, to make those payments, and to distribute the assets and money that
remain after the debts and expenses have been paid among the legatees under the
will or among the i ntestate heirs on an intestacy.’

[30] This approach was echoed in Clarkson NO v Gelb and others ,3 where the
court observed that:
‘A deceased estate is an aggregate of assets and liabilities. It has no legal
personality and, when referring to it as an entity, one must be careful not to imply or
understand thereby that one is dealing with anything like a persona. The executor is
vested with its administration and he alone has the power to deal with this totality of
rights and obligations. He is not merely a procurator or agent. His primary duty is to
obtain possession of the assets of the deceased, to realise them as far as may be
necessary, to make payment of debts and expenses, to frame a liquidation and
distribution account and thereafter to effect a distribu tion to the heirs and legatees.’

[31] That is all well and fine. And undoubtedly correct . It also follows that virtually
all that is claimed in the rule naturally falls within the powers and duties of the
executrix now appointed. But what is being considered here is not the present
situation with the executrix in place , properly performing her duties . What is being
considered is the situation before such an appointment was made.

[32] The crisp issue to be determined is whether , pending the appointment of the
executrix, the applicant ha d the necessary standing in law to take steps to preserve
the corpus of the deceased’s estate . The first to third respondents suggest that she

2 Lockhat’s Estate v North British and Mercantile Insurance Co Ltd 1959 (3) SA 295 (A) at 302F-G.
3 Clarkson NO v Gelb and others 1981 (1) SA 288 (W) at 293C -E.
did not have the legal standing to do so, notwithstanding their qualified
acknowledgment mentioned earlier that she could take such steps .

[33] In his heads of argument, Mr Aldworth drew attention to the concept of the
Beningfield exception. Beningfield v Baxter4 was a decision of the erstwhile Natal
Supreme Court that found its way, ultimately, to Her Majesty's Most Honourable
Privy Council in the United Kingdom (the Privy Council) . The Privy Council
recognised an exception in Beningfield (hence the name, ‘the Beningfield exception’)
to the general rule that only an executor of an estate has locus standi in relation to
estate assets and transactions . Through the Earl of Selborne , the Privy Council
found as follows:
‘When an executor cannot sue, because his own acts and conduct, with reference to
the testator’s estate, are impeached, relief, which (as against a stranger) could be
sought by the executor alone, may be obtained at the suit of a party beneficially
interested in the proper performance of his duty. . . .’5

[34] The Beningfield exception was approved of , and followed by, Corbett CJ in
Gross and others v Pentz ,6 where the Chief Justice stated that:
‘In my view, the Beningfield exception should be recognised and the general rule
modified to this extent. Clearly a defaulting or delinquent trustee cannot be expected
to sue himself. The only alternative to allowing the Beningfield exception would be
to require the aggrieved beneficiaries to sue for the removal of the trustee and the
appointment of a new trustee as a precursor to possible action being taken by the
new trustee for the recovery of the estate assets or other relief for the recoupment of
the loss sustained by the estate. This, in my opinion, would impose too cumbersome
a process u pon the aggrieved beneficiaries .’

[35] It would therefore appear that the Beningfield exception , in its purest form , first
requires an executor to be in place and then further requires intolerable or
impeachable conduct by the executor before the right to act on behalf of the estate
accrues to an interested party. However, i n Standard Bank of South Africa Limited v

4 Beningfield v Baxter (1886) 12 AC 167 (PC) (Beningfield ).
5 Ibid at 178-179.
6 Gross and others v Pentz 1996 (4) SA 617 (A) (Gross ) at 628G -H.
July and others ,7 the high court was faced with a situation where an appointed
executor had died, and the heirs took steps to preserve estate assets where there
simply was no executor able to act. The high court held that although , generally , only
an executor can claim on behalf of an estate, the Beningfield exception allow ed
beneficiaries of an estate to claim where the executor will not or simply cannot. On
appeal, the Supreme Court of Appeal considered the respondent ’s argument that the
Beningfield exception could not apply because there was no delinquent executor in
place. That proposition was rejected, and the decision of the high court was upheld,
with Lewis JA opining that the Beningfield exception, as approved of in Gross ,
cover ed the situation.

[36] The applicant clearly is an interested party, and she was thus entitled to take
steps to preserve the estate assets , pending the appointment of the executrix . That ,
however, does not necessarily mean that she made out a case entitling her to relief,
but she cannot be non -suited because of a lack of legal standing.

[37] I am , in the event, not satisfied that the applicant has made out any case
against the second and third respondents. Through the operation of chance, they
happen to be blood relatives of the deceased . The second respondent is the
bookkeeper of the business, and it appears to be suggest ed by the applicant that
she was somehow complicit in allowing the payment to the first respondent to be
made . There is, however, no evidence that supports that allegation nor is there any
evidence of the system in place at the business regarding the authorisation of bank
payments. There is even less reason to include the third respondent in this
application . The applicant explained why she was included as follows:
‘Obtaining relief against the first and second respondents would be effectively
meaningless if said relief did not extend to the third respondent as well. In such
circumstances, the first and second respondents would be able to facilitate the
commission of any acts which the relief sought in these proceedings was intended to
guard against by the third respondent without them actually being in breach of any
order granted against them.’


7 Standard Bank of South Africa Limited v July and others [2018] ZASCA 85 .
[38] No factual basis for this supposition is advanced. No evidence was adduced
that established that the second and third respondents had acted in any improper
way whatsoever and they cannot simply be swept along in this application in the
belief that doing so may help to prevent a potential future difficulty .

[39] A final thing needs to be said about the duration of the rule. I have accepted
that the applicant sought to preserve the deceased’s estate until the appointment of
an executor and that she was entitled to do so . However, the relief granted by
Radebe J, ex facie the order, was to endure until the estate of the deceased had
been finally wound up. In her founding affidavit, the applicant did not put the matter
as crisply as that. She proposed that the relief that she claimed was:
‘… to apply either pending the appointment of an executor to the deceased’s estate
or to the finalisation of the winding up of the deceased ’s estate …’

[40] If preservation was the true motivating factor, as I have found that it was, then
the relief claimed could only endure until the executor was appointed. The duty to
preserve, realise , and distribute estate assets would then be the executor’s. I can
find no justification for the applicant and the executrix both having parallel rights in
this regard, for t he Act makes it perfectly clear that the executrix acquires all the
rights necessary to wind -up the deceased’s estate. Permitting the applicant to have
overlapping rights with the executrix would be a breeding ground for future disputes.
However, given the decision to which I have come, the duration of the relief has
become moot.

Conclusion
[41] For the reasons set out above, only the relief detailed in paragraph 1(a)(i) of
the rule can be confirmed and only against the first respondent. The balance of the
relief contained in the rule cannot be confirmed and must be discharged.

Costs
[42] Both parties have tasted success: the applicant in obtaining limited relief
against the first respondent and the first to third respondents in having the balance of
the rule discharged. The application ha d all the qualities of the curate ’s egg .8 Some
of it was good and some of it was bad. As a consequence, I am of the considered
view that the appropriate order should be that each party bears its own costs.

Order
[43] I consequently grant the following order:
1. Paragraph 1(a)(i) of the rule nisi granted by Radebe J on 20 September 2024
is confirmed against the first respondent only.
2. The rule is otherwise discharged against all the respondents.
3. Each party shall pay their own costs.



MOSSOP J

APPEARANCES


Counsel for the app licant: Mr D W D Aldworth

Instructed by: Goldman Schulz Attorneys
Suite 4
55 Gladys Mazibuko Road
Berea
Durban

Counsel for the respondent : Mr M C Tucker

Instructed by: Thorpe and Hands Incorporated
Unit 8, Northsands Centre
5 Forest Drive

8 The story of the curate’s egg stemmed from an 1895 Punch cartoo n. Served a bad egg for breakfast
by his host, the bishop, the young curate told his host : ‘Oh no my Lord, I assure you, parts of it are
excellent.’
Umhlanga Rocks