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Raubenheimer AJ:
Order
[1] In this matter I made the following order :
1. The application is dismissed with costs.
[2] The reasons for the order follow below.
Introduction
[3] The applicant approached the court on an urgent basis to have the
appointment of the first and second respondents as members of the fifth
respondent declared invalid, setting the appointment aside and removing the
said respondents as members of the fifth respo ndent.
[4] The applicant is the duly appointed executor in the estate of her biological
father who was the sole member of the fifth respondent.
[5] The first and second respondent s are sisters. They had two brothers, Tau
Andrew Raditsela and George Raditsela, both of them deceased.
[6] The second respondent together with Tau Andrew were members of the fifth
respondent.
[7] The parents of the first and second respondents, Samuel and Nomabece
Raditsela were the beneficial owners of the predecessor of the fifth
respondent, Sam Raditsela trading as Express Tours.
[8] On the death of Samuel Raditsela in January 1996 his wife Nomabece was
appointed as the representative of his estate in terms of section 23(10) of
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the Black Administration Act, 38 of 1927.
[9] Express Tours was operated as a family business and was managed by
Nomabece, the first and second respondents and their brothers Tau
Andrew and George Raditsela .
[10] Shortly after Nomabece died on 20 November 2003 Tau Andrew changed
the name of the business to Raditsela Express CC and took over the assets
of the business from Nomabece’s estate and appointed himself as the sole
member of the Close Corporation.
[11] The administration of the estate of Nomabece was never finalised. The
properties owned by Nomabece was never transferred and Tau Andrew
remained resident in the properties.
[12] The other siblings namely the first two respondents and George kept on
assisting with the business and occasionally provided financing for the
running of the business.
[13] Tau Andrew passed away on 26 November 2023 and the first and second
respondents together with their brother George were appointed as the
executors of his estate on 3 January 2024.
[14] Shortly after the death of Tau Andrew, the applicant appeared on the
scene, alleging that she is the biological child of Tau Andrew. Up to that
stage his siblings were not aware that he had any offspring.
[15] The siblings immediately challenged paternity and requested proof of
paternity from the attorneys of the applicant. They also requested proof of
the existence of any other children allegedly sired by their brother. They
received no response.
[16] George passed away on 6 January 2024 and the first and second
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respondents appointed themselves as members of Raditsela Express CC
in the belief that it was a family business. On closer inspection of the affairs
of the business they learnt that there is an amount of R13 Million owing to
the South African Revenue Service (SARS) in respect of unpaid taxes, the
business account had been frozen, the business was flagged as tax non -
compliant on the Central Supplier Database as a result of which the
Gauteng Department of Education (GDE) was precluded to make
payments to the business for services rendered.
[17] The first and second respondent succeeded in temporarily salvaging the
operations, securing payments from the GDE and entering into a
negotiations with SARS in respect of payment. The business is currently
fully operational, and the SARS debt is being serviced.
The basis for the relief sought
[18] The applicant contends that she is the eldest surviving child of Tau Andrew
and that he was the sole member of Raditsela Express CC.
[19] She avers that the first and second respondents not only acted unlawfully
when they changed the founding statement of the fifth respondent so as to
insert themselves as members of the fifth respondent but also acted
fraudulently when they reported the estate of Tau Andrew to the Master
when they indicated that he does not have any children and that they are
the only beneficiaries of his estate .
[20] On the strength of the letters of executorship issued to them they inserted
themselves as members of the Close Corporation and started dealing with
the assets of the Corporation.
[21] She contends that the appointment is contrary to the provisions of section
35 of the Close Corporations Act, Act 69 of 1984 (CCAct) . She further avers
that she as the executor is entitled in terms of section 35 to deal with the
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interest of her father in the CC.
Discussion
[22] The gist of the applicant’s contentions is that the first and second
respondents fraudulently misrepresented to the Master that the deceased
had no offspring and as a result their appointment was due to the fraudulent
misrepresentation.
[23] She furthermore submits that as a result of the existence of fraud the steps
taken by the then executors amounted to a nullity and should therefore be
declared invalid.
[24] The conclusion she arrives at that the Master cancelled the first Letters of
Executorship due to the existence of fraud is not borne out by the decision
of the Master .
[25] The Master informed the second respondent that the complaint by the
applicant was that she was not informed or involved in the nomination of
the executor. No mention was made in the notice of any fraud or fraudulent
misrepresentation.
[26] The minutes of the meeting that took place on 30 April 2024 makes no
mention of fraud or fraudulent misrepresentation. The minutes states the
complaint as follows:
“The children of the deceased complaint (sic) that they were not involved
nor participated in the appointment of the executors ”
[27] The resolution by the Master likewise makes no mention of fraud or
fraudulent misrepresentation. The resolution states as follows:
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“Pga Attorneys has resigned as agent for the executors and will return the letter
of appointment to the Master for cancellation The letter of appointment issued to
the siblings of the deceased is hereby recalled and the children are afforded
opportunity to participate and nominate an executor of their own choice. ”
[28] The letter cancelling the Letters of Executorship was issued by the Master
on 15 April 2024 and the decision by the Master to recall the Letter of
Executorship is dated 30 April 2024.
[29] The effect of the cancelling of the Letter of Executorship is that all that was
done in the administration of the estate by the former executors was done
in terms of a valid Letter of Executorship. The Master did not declare the
conduct of the erstwhile executors invalid nor is there an application before
court to declare the actions of the erstwhile executors invalid.
[30] Whilst in possession of valid Letters of Executorship the erstwhile
executors availed themselves of the power s in section 35 of the CC Act
which provides as follows:
Subject to any other arrangement in an association. agreement, an executor of
the estate of a member of a corporation who is deceased shall, in the performance
of his duties
(a) cause the deceased member's interest in the corporation to be transferred to
a person who qualifies for membership of a corporation in terms of section 29 and
is entitled thereto as legatee or heir or under a redistribution agreement, if the
remaining member or members of the corporation (if any) consent to the transfer
of the member's interest to such person ;
[31] The actions of the erstwhile executors in transferring the membership
interest of the deceased into their names as heirs was consequently not
fraudulent . The transfer was not invalid and does not stand to be set aside.
[32] The matter is furthermore nor urgent. The applicant knew as early as 10
March 2024 of the appointment of the erstwhile executors. There was
nothing to prevent her from launching the application then. Instead she