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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
C '-·I-I C 1 I 2 '-25
'DATE '
In the matter between:
SUMAIYA ABDOOL GAF FAR KHAMMISSA
And
MCCLEAN TSELANA N.O.
THEODOR WILHELM VAN DER HEEVER N.O.
DEBORAH LYNN KHAN N.O.
THE MASTER OF THE HIGH COURT, PRETORIA
JUDGMENT CASE NO: 2025-025127
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
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MBONGWE J:
INTRODUCTION
[1] The challenge of the jurisdiction of the Office of the Master, Pretoria in the
insolvent estate of Nel, who was resident in the Mpumalanga Province, is in the
heart of this urgent application serving before me.
[2] A final order for the final sequestration of the estate of Mr Nel was granted by the
Mpumalanga Local Division of the High Court, Middelburg on 6 May 202, prior to
establishment of the Master's Office, Middelburg or prior same becoming fully
functional. In that period and earlier, insolvent estate matters in that province,
including the present, fell under the jurisdiction of and were dealt with by the
Pretoria Office of the Master which appointed the Applicant as a co-Trustee of
the insolvent estate of Nel.
PAUSE
[3] I pause to state that the Master's office in Pretoria was involved and assisted in
the establishment of the Office of the Master, Middelburg. In particular, Mr
Serumola , an Assistant Master in the Pretoria office, presided over the first
meeting of the creditors of the insolvent estate of Nel which was held at the
Magistrate 's Court in Middelburg. It was in this meeting that Mr Serumola had,
inter alia, rejected a claim by First Rand Bank, a major creditor in the estate of
Nel. That rejection had resulted in FRB launching an application in this court for
the review and setting of Mr Serumola 's decision. The application served before
Potterill J whose judgment and orders are of significance in the consideration of
the present application . Potterill J's judgment and orders did not only review and
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set aside Mr Serumole 's decision, but had also ordered; the removal of the
Applicant and her co-trustee as trustees of the insolvent estate of Nel; that new
trustees be appointed and further that a first meeting of the creditors be convened
and held de novo. New Trustees, the second and third respondents, were
subsequently appointed as replacements for the Applicant and her co-trustee .
(4] Importantl y and of much relevance to the application before me was Potterill J's
explicit pronouncement in the review application that the Master's Office in
Middelburg, Mpumalanga , did not function independently of the office of the
Master, Pretoria. The gravamen of the Applicant purported case in this
application flies in the face of this pronouncement by Potterill J. An appeal
against the judgment and orders of Potterill was dismissed by the Supreme Court
of Appeal.
(5] Despite her removal as a trustee, the Applicant has subsequently made a
payment out of the funds in the insolvent estate account with the 'consent of the
Master', Pretoria, and is persistently refusing to account to the Master and current
trustees of the insolvent Nel estate for the balance of the funds in the insolvent's
estate account and to handover to the appointed Trustees the assets in the
estate. The second respondent has alleged in the answering affidavit that some
assets in the insolvent estate, including those that had been attached by the
Sheriff in terms of section 19 of the Insolvency Act, were questionabl y released
/ dissipated and remain unaccounted for.
[6] The Applicant's persistent refusal to account for and handover the assets in the
insolvent estate resulted in the Master, Pretoria taking the decision in September
2023 to conduct an enquiry/ interrogation in terms of section 152 of the
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Insolvency Act. The Applicant , through her attorneys , has challenged the
authority of the Master to institute such an interrogation citing a directive issued
by the Master's office, Middelburg , Directive 6 of 2023, in terms whereof the
Middelburg Master's office terminated the mandates of other Ma.;ters' Offices to
deal with estates/ insolvent estates falling under its jurisdiction .
[7] It is, in my view, curious that the Applicant has not cited the Master, Middelburg ,
whose jurisdiction the Applicant purports to assert, as a party in this application .
Clearly the Master, Middelburg , has a substantial interest in this matter. Statutory
provisions referred to later hereunder in para 15 do not preclude the office of the
fourth respondent from continuing with the estate matter concerned herein.
[8] The Applicant is under a subpoena to attend and give evidence in the
interrogation in terms of section 152 constituted by the Master, Pretoria.
[9] After some engagements and disagreements on the jurisdiction issue, the
Pretoria Master's office took the decision on 13 February 2025 that it has the
necessary jurisdiction on this matter and that the enquiry in terms of section 152
will proceed. The Applicant has alleged to have launched an application for the
review and setting aside of this 13 February 2025 decision.
[1 O] The enquiry in terms of section 152(2) has progressed and witnesses , including
the Applicant 's erstwhile co-trustee, have given evidence. Curious in this regard
is that the Applicant 's erstwhile co-trustee , according to unchallenged evidence
in the second respondent 's answering affidavit, has testified, inter alia, that she
did not give consent for the Applicant to make the payment made after their
removal as Trustees. Importantly , the Applicant and/or her attorney or counsel
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have been attending the proceedings in the enquiry without meaningful
participation nor the Applicant testifying.
[11] In March 2025 the inquiry was postponed to 10 April 2025. This prompted the
Applicant to bring the present application on urgency in terms of Rule 6 (12) to
interdict the first respondent from continuing with the inquiry on the said date
ostensibly pending the determination of the review of the decision of 13 February
2025. This application is opposed by all the four respondents , including the
Master, Pretoria.
THE LIS
[12) From the Applicant 's perspective , the real issue appears to be the contention
that the office of the Master, Pretoria, has no jurisdiction over the insolvent
estate of Nel and ostensibly that the enquiry to which the Applicant has been
subpoenaed to give evidence falls outside the authority of the Master, Pretoria.
[13] The second issue raised by the Applicant pertains to the respondents ' alleged
unexplained late filling of their opposition papers. With regard to this issue, the
Applicant seeks that this court rejects or not consider the respondents '
answering affidavits or that, in the event that the court admits and considers the
evidence in these affidavits, the evidence in the Applicant's belated replying
affidavits also be admitted and considered.
OPPOSITION
[14] The respondents ' opposition to the applicant's application is premised on
various grounds which can be summarised as follows;
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14.1 that the matter is not urgent, alternatively , that urgency was self-created
by the Applicant;
14.2 that the applicant lacks legal standing to bring this application ;
14.3 the applicant is not entitled to the relief it seeks;
14.4 the application has been brought for a sinister motive to evade
accountabil ity by the applicant;
[15] The fourth respondent and, by extension , the first respondent , may statutorily
exercise jurisdiction as follows; in terms of the Administration of Estates Act 66
of 1965:
15.1 a single Master can exercise jurisdiction in two different High Court
jurisdictions and a jurisdictional point would not competently be taken
against such Master;
15.2 a Master may assume jurisdiction in a matter where another Master
should exercise jurisdiction and a jurisdictional point may also not be
competently be taken against that Master;
15.3 decisions taken by the Master in the bona fide belief the he/she had
jurisdiction cannot be invalidated merely on it being established that
another Master had jurisdiction on the matter concerned . Provisions
similar to the above are contained in the Trust Property Control Act 57 of
1988.
DISCUSSION AND ANALYSIS
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[16] It is not in dispute that the Applicant is not a party to the main proceedings in
this matter -the sequestration of the insolvent estate of Mr Nel. While her
appointment as a co-trustee had ordinarily clothed her with the authority to act
on behalf of the estate, her removal as a Trustee by an order of this court
disqualified her from representing the estate in any capacity. Further and, in
any event, the Applicant is not representing the Master, Middelburg , whose
jurisdiction the Applicant purports to assert in this application .
[17] The Applicant , however, remains obligated to account to the Master of the high
Court, Pretoria, who had appointed her for the management of the insolvent
Nel estate and incidental processes in the sequestration thereof and to hand
over these duties to her duly appointed replacement successors .
[18] Other than her short-lived appointment as a co-trustee of the insolvent Nel
estate, the applicant has no interest in this matter and, therefore, no legal
standing to bring this application to purportedly challenge the jurisdiction of the
Master, Pretoria. As already pointed out earlier, the Applicant has not cited as
a party the office of the Master, Middelburg, which has an interest in this case
and whose jurisdiction the Applicant purports to assert. This is fatal to the
Applicant's case.
[19] By virtue of the findings in the two preceding paragraphs , the applicant does
not meet the barest of the requirements for entitlement to the interdict she seeks
in this application. Amongst the requirements the applicant has to establish are:
19.1 that she has a clear right which;
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19.2 may be harmed or she has a reasonable apprehension that it may be
harmed. This applicant is in no position to demonstrate her possession
of these minimal imperatives and, therefore, not entitled to the
interdictory relief sought.
[20] It is pertinent that the Applicant does not seek the setting aside of the subpoena
that was served on her, but seeks the setting aside of the decision of the Master
to conduct the interrogation . In effect the Applicant seeks the vitiation of the
process the Master has commenced with, notwithstanding that the Applicant
lacks legal standing and grounding for entitlement to that relief. This is
undoubtedly a sinister effort by the Applicant to thwart the already running
interrogation and to render worthless the evidence that the Master, Pretoria,
has gathered, The Applicant is in possession of material that is the subject
matter of the interrogation she has been subpoenaed to give evidence in. She
consequently has no right to seeks to evade her obligation to account fully for
her handling of the affairs of the Nel estate by seeking the review of the decision
of the Master and the present interdictory relief.1
[21 J The Applicant relies on the supporting affidavit of Mr Ngako Jan Serumola , an
Assistant Master whose decision to reject a claim by First Rand Bank, an major
creditor in the insolvent estate, was reviewed and set aside in the same hearing
and judgment and orders of Potterill J in this division. It is also i:ertinent that Mr
Serumola was cited as a party in the review application and was a party in the
failed appeal against the judgment and orders of Potterill J and that, despite all
this Mr Serumola has deposed to an affidavit supporting the Applicant's
1 see Webster v Mitche/11948 (1) SA 1186 (W)
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misplaced grounding in this application . Furthermore , convenience and the
interests of justice gravitate in favour of the office of the Master, Pretoria,
continuing with the interrogation and to get to the bottom of the problems that
the Applicant , whom the Master had appointed , has caused and for which the
Applicant refuses to account.
[22] With regard to the Applicant 's prayer that the respondents ' answering affidavits
not be accepted , I find that the Applicant 's failure to serve the application on the
State Attorney's office within five days of service thereof on the office of the
head of the department concerned at the head office of his department as
required by the provisions of section 2 of the State Liability Act 20 of 1957, as
amended by the Judicial Matters Amendment Act 8 of 2017, was the cause of
the delayed response by the first and the fourth respondents . In any event, the
interests of justice would command , in my view of the circumstances of this
case, that the delay be condoned . There will also be no prejudice whatsoever
that may be caused to the Applicant as her own further supplementary replying
affidavit will also be considered , as requested by her. This will be considere d
once the court find that there is reason to consider this application to that stage.
[23] I am satisfied, on the preliminary issues and findings thereon thus far,
particularly that the Applicant lack locus standi and is not entitled to the
interdictory relief sought, that these findings alone are dispositive of the
Applicant's case and that a further considerat ion of the matter is unwarranted.
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CONCLUSION
[24] Litigation constitutes an abuse of court process if it was not brought to vindicate
a legitimate right, was used to achieve an improper end such as financial gain,
prejudice and, as in casu, a strategy to evade accountability , inter a/ia.2 There
are funds and assets that were under the control of the Applicant that have not
been accounted for to the respondents and handed over to the second and the
third respondents. The Applicant has not denied that she has repeatedly been
called upon in vain to render the relevant accounts to the Master. Worse still,
despite her removal as a Trustee, the Applicant refuses to render the closing
account and hand over the continuation of the management of the affairs of the
estate to the second and the third respondents . The prejudice to the creditors
of the insolvent Nel estate continues unabated . This application by the
Applicant , in my view, bears the hallmarks of an abuse of the process of the
court. This conclusion holds equally in respect of the Applicant' s application for
the review of the Master's decision of 13 February 2025.
COSTS
(25] An award of punitive costs against the Applicant is appropriate in this case.
ORDER
(26] Premised on the findings and conclusion in this judgment , the following order
is made:
1. This Application is dismissed .
2. The Applicant is ordered to pay the costs on the attorney and client scale
2 see Mineral Sands Resources (Pty) Ltd and Others v Reddell and Others (2022 ZACC 37
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C, including the costs consequent upon the employmen o counsel one
of whom is senior counsel, where applicable .
DATE OF HEARING : 25 March 2025
JUDGMENT HANDED DOWN: 04 July 2025 MPN
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES
For the Applicant
Instructed by 12
Advocate M.M.V. Van Zyl SC
Goodes & Co. Attorneys
222 Rivonia Road
Morningside Office Park
Johannesburg
Tel: 011 656 1452
Email: george@goodesco .co.za
Ref: GS Goodes/tdt/MA T 2638
C/O Khammissa Atorneys, Pretoria
Tel: 012 342 9944
Email: sumaiya@khammissa .co.za
For the 1 stand 41h Respondents Office of the State Attorney, Pretoria
Ref: 0665/2025/270
Email: RSikhala@justice .gov.za
Enq: MR RUDZANI SIKHALA
For the Second and Third Respondents : Van VEIJEREN ATTORNEYS INC
Houghton Estate
Tel: 011 648 6074
Email: litigation@vvinc .co.za
Ref: CW/el/DT01 71
C/o: FRIEDLAND HART SOLOMON &
NICOLSON ATTORNEYS
79 STEENBOK AVENUE
PRETORIA
Ref: G. Painter