SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 023949/24
1. REPORTABLE: YES/NO
2. OF INTEREST TO OTHER JUDGES: YES/NO
3. REVISED: YES/NO
DATE: 05 September 2025
SIGNATURE OF JUDGE:
In the matter between:
SANDRA RENE WOLFAARDT N.O First Applicant
RUEBEN CRAIG WOLFAARDT Second Applicant
DANICA MADISON WOLFDAARDT Third Applicant
And
MARIA JOHANNA HELENA SHERRIFF N.O First Respondent
MARIA JOHANNA HELENA SHERRIFF Second Respondent
MASTER OF THE HIGH COURT PRETORIA Third Respondent
In re:
MARIA JOHANNA HELENA SHERRIFF N.O. First Applicant
MARIA JOHANNA HELENA SHERRIFF Second Applicant
And
SANDRA RENE WOLFAARDT N.O. First Respondent
RUEBEN CRAIG WOLFAARDT Second Respondent
DANICA MADISON WOLFDAARDT Third Respondent
LOUINA MARAIS Fourth Respondent
ANDRIES PIETER VILJOEN N. O Fifth Respondent
MASTER OF THE HIGH COURT PRETORIA Sixth Respondent
ORDER
1. The Respondent’s Application for the condonation of the late filing of the replying
affidavit to a counter-application is dismissed with no order as to costs.
2. MARIA JOHANNA HELENA SHERRIFF is removed from her office as Executrix
of the estate of the late AJ Bates in terms of the provisions of section 54(1)(a)
(v) of the Administration of Estates Act 66 of 1965.,
3. MARIA JOHANNA HELENA SHERRIFF is directed to immediately return her
letters of executorship to the Master of the High Court, Pretoria.
4. SANDRA RENE WOLFAARDT is hereby removed from her office as Executrix of
the estate of the late AJ Bates in terms of the provisions of section 54(1)(a) (v)
of the Administration of Estates Act 66 of 1965.
5. SANDRA RENE WOLFAARDT is directed to return her letters of executorship to
the Master of the High Court, Pretoria, within five (5) days of this order.
6. The Master of the High Court, Pretoria, is directed to appoint a substitute executor
to such person or persons who it may deem fit and proper to be the Executor or
Executrix within 30 days of the service of this order at the Master's office.
7. Each party to pay its own costs.
JUDGEMENT
FLATELA J
“Have you no t heard that when the two brothers fight to the death, a
stranger reaps a harvest ? Chinua Achebe, Arrow of God (The African
Trilogy)”
[1] The judgment concerns three opposed applications with the same case
number, 023949/2022, the main application, the counter application and an
application for condonation of the late filing of the replying affidavit in the counter
application. The main application seeks the removal of the First and Second
Respondents as executors in the estate of the late Albertus Jacobus Bates, estate
number 0[...], in terms of section 54(1)(a)(v) of the Administration of Estates Act (the
Act), citing misconduct on the part of the First Respondent . In the counter -
application, the First and Second respondents also seek the removal of the First
Applicant as executor, citing a conflict of interest.
[2] The First Applicant and the First and Second Respondents are joint
executrixes of the estate of the late Albertus Jacobus Bates (the deceased ). The
executrixes are Sandra Rene Wolfaardt, the First Applicant in the main application .
Ms Wolfaardt is the daughter of the deceased, and Maria Johanna Helena Sherriff
NO and Maria Johanna Helena Sherriff, the Respondent in the main application , is
the surviving spouse of the deceased . The Master officially appointed them in
accordance with section 18 of the Act on 22 July 2022.
[3] In the main application, the applicant is seeking the following order:
1. That the First respondent be removed as executor of the
estate of the late Albertus Jacobus Bates , estate number
0[...], Master of the High Court , Pretoria, with immediate
effect in terms of section 54(1)(a)(v) of the Administration
of Estates Act, 66 of 1965
2. That the second respondent, in her personal capacity, be
ordered to pay the costs of this application on a scale
between attorney and client.
3. Further than alternative relief
[4] The First and Second Respondents are opposing the application and have
launched a counter -application for the removal of the First Applicant as executor
under section 54(1)(a)(v) of the Act.
Chronological and Procedural Events
[5] The main application was l aunched on 4 March 2024 and served on 8 March
2024. Notice of opposition was delivered on 25 March 2024, followed by answering
and replying to affidavits.
[6] A counter-application was served on 22 May 2024, and a notice to oppose
was filed on 3 June 2024 , followed by further exchanges of pleadings. The replying
affidavit in the counter application was filed out of time . A notice objecting to the late
submission of the counter -application was delivered on 3 September 2024, leading
to a condonation applicat ion on 13 September 2024 . A notice of set down was
served on 18 September 2024, and a notice of intention to oppose the condonation
application was delivered on 27 September 2024.
[7] The parties have been identified differently across the three applications,
which may lead to confusion. To avoid confusion, the parties will be referred to as in
the main application.
Parties
[8] The First Applicant, Sandra Rene Wolfaardt NO, is a major female and is
acting in her capacity as an executrix of the estate of the late Albertus Jacobus
Bates. The Second Applicant is Reuben Craig Wolfaardt, a major male student,
grandson of the deceased, and an heir to 25% of the residue of the late estate. The
Third Applicant is Danica Madison Wolfaardt, a major female teacher, granddaughter
of the deceased and an heir of 25% residue of the late estate.
[9] The Respondent is Maria Johanna Helena Sherriff NO, a major female widow.
She is cited in her capacity as co -executrix of the deceased estate. The Second
Respondent, Maria Johanna Helena Sherriff, is cited in her personal capacity (the
Respondent). The Respondent was married to the deceased out of the community of
property, with the inclusion of the accrual system , and the death of the deceased
terminated their marriage.
[10] The Third Respondent is the Master of the High Court, Pretoria , under whose
supervision the deceased estate is being administered. No relief is sought against
the Third Respondent. The Master is joined here insofar as it may have an interest in
the matter and is required to render a report to the court in accordance with rule 6(9)
of the Uniform Rules.
[11] I will now outline the factual background and the legal principles governing the
removal of executors . I will then address the parties' pleadings, relevant case law ,
and evidence, as well as the applicable law. I will conclude by applying the law to the
facts.
Factual Background and common cause facts
[12] The facts leading to the dispute in this matter are largely common cause. The
deceased executed his will on 17 April 2018 and passed away on 26 October 202 1.
He bequeathed his estate to his immediate family, consisting of his surviving spouse,
Maria Johanna Helena Sherriff (the Respondent), with whom he was married out of
the community of pr operty with the inclusion of the accrual system , and to his
daughter, Sandra Rene Wolfaardt (the First Applicant). The residue of the estate is to
be distributed equally among his surviving spouse, his daughter, and his
grandchildren, Reuben Craig Wolfaardt and Danica Madison Wolfaardt, (the second
and third applicants), with each inheriting 25% of the residue of the late estate.
[13] The deceased nominated two executors to administer the estate; however,
they declined the appointment due to incapacity. Consequently, the First Applicant
and the Respondent were nominated as co-executors by the next of kin. Jointly, they
appointed Ms. Louina Marais, an attorney, as their agent for the administration of the
estate on 14 December 2021.
[14] Before the Master issued the letter of executorship to the First Applicant and
the Respondent, the Respondent withdrew R7,563,071.63 from the deceased's bank
accounts between 26 October 2021 and 31 May 2022. The Master officially
appointed them in accordance with section 18 of the Act on 22 July 2022.
[15] On 8 March 2023, a meeting was held between the First Applicant, the
Respondent, and their agent to discuss the estate's administration, and the
Respondent's withdrawal of funds was also addressed. The Respondent promised to
repay the funds by 14 April 2023 but failed to do so. Instead, she purchased
immovable property registered in her name for R2,999,000.00 on 23 March 2023,
without repaying the amount. The Respondent later paid R3,990,324.84 to the estate
on 25 April 2023 but refused to settle the remaining balance, claiming the funds had
been used for business and household expenses.
been used for business and household expenses.
[16] The Respondent has lodged an accrual claim of R18,844,098.05 against the
estate. The agent and Ms Sandra Rene Wolfaardt NO rejected the accrual claim.
She submitte d a second claim, which her co -trustee, Andries Pieter Viljoen, the
trust’s auditor, recalculated to R6,196,181.07 . While she contests any liability for the
remaining balance owed to the estate, she maintains that her accrual claim takes
precedence as a fi rst charge against the estate. She argues that once the accrual
claim is adjudicated, a set-off can be executed accordingly.
[17] The First Applicant instructed her attorneys to demand repayment of the
outstanding balance and to demand that the Respondent immediately resign as
executor. The Respondent tendered her resignation as an executr ix, provided that
the First Applicant also resigns, citi ng a conflict of interest, because the First
Applicant, together with their agent, had rejected her accrual claim without cause.
[18] I now deal with the legal principles governing the removal of an executor.
Legal principles governing the removal of an executor
[19] The removal of an executor is governed by section 54 of the Act , which
provides as follows:
54 Removal from office of executor
(1) An executor may at any time be removed from his office-
(a) by the Court-
(i) ......
(ii) if he has at any time been a party to an agreement or
arrangement whereby he has undertaken that he will, in his capacity as
executor, grant or endeavour to grant to, or obtain or endeavour to
obtain for any heir, debtor or creditor of the estate, any benefit to which
he is not entitled; or
(iii) if he has , by means of any misrepresentation or any reward or
offer of any reward, whether direct or indirect, induced or attempted to
induce any person to vote for his recommendation to the Master as
executor or to effect or to assist in effecting such recommendation; or
(iv) if he has accepted or expressed his willingness to accept from
any person any benefit whatsoever in consideration of such person
being engaged to perform any work on behalf of the estate; or
(v) if for any other reaso n the Court is satisfied that it is
undesirable that he should act as executor of the estate concerned;
…”
[20] The principle governing the removal of the executor is neatly summarised in
the judgment of Collins J in a matter of M-S and Another v Le Motte and Others 1
[15] ‘ A court approached with an application seeking the removal of an
executor is vested with a discretion, and in the exercise of that discretion the
predominant considerations are the interests of the estate and those of the
beneficiaries.2 In the adjudication of this matter this Court shall also take into
account that the executors, were appointed on 25 February 2020, and have
been in control of the estate assets for over a year.
In the decision of Volkwyn NO v Clarke and Damant 1946 WLD 456, it was
held that it is a matter of “…seriousness to interfere with the management of
the estate of a deceased person by removing from the control thereof persons
who, in reliance upon their ab ility and character, the deceased has
deliberately selected to carry out his wishes…”
The incorrect exercise of his duties by an executor, and even a failure to
strictly observe the strict requirements of the law is not enough. “Something
more” is required.
“…it is not indeed every mistake or neglect of duty or inaccuracy of conduct
of trustees, which will induce Courts of Equity to adopt such a course. But the
1 M-S and Another v Le Motter and Others (64484/2020,10475/2021,zagpphc 620 (21 September
2021)
2 Die Meester v Meyer en Andere 1975 (2) SA 1 (T) at 17F, a passage approved by the Constitutional
Court in Gory v Kolver NO and Others (Starke and Others Intervening) 2007 (4) SA 97 (CC) at [56].
acts or omissions must be such as endanger the trust property or to show a
want of honesty or a want of proper capacity to execute the duties, or a want
of reasonable fidelity…”3
These principles are equally applicable to the removal of executors.4
This Court in the decision Oberholster NO and Others v Richter [2013] All SA
205 (GNP) after considering the authorities referred to above, held:
21.1 the court should not approach the matter as if it were an
application for an interdict, as this misconceives the nature of the
application before it;5
21.2 the enquiry is whether it is “undesirable” for the executor to
continue acting in such capacity;6
21.3 “…mere disagreement between an heir and the executor of a
deceased estate, or a breakdown in the relationship between one of
the heirs and the executor, is insufficient for the discharge of the
executor in terms of section 54(1)(a)(v) of the Act. In order to achieve
that result, it must be shown that the executor conducted himself in
such a manner that it actually imperilled his proper administration of the
estate.”7
21.4 “…the particular circumstances of the acts complained of are
such as to stamp the executor or administrator as a dishonest, grossly
inefficient or untrustworthy person , whose future conduct can be
expected to be such as to expose the estate to risk of actual l oss or of
administration in a way not contemplated by the trust instrument.”;8
[22] In the context of the administration of an estate the above
principles translate into the question whether the court is satisfied that
3 Sackville West v Nourse and Another 1925 AD 516 at 527.
4 Die Meester v Meyer en Andere supra at 16H.
5 At [21] and [22]
6 At [22]
7 At [17]
8 Ibid.
the continuance in office of the e xecutor would detrimentally affect the
proper administration and winding-up of the estate.9
The parties’ contentions
Applicant's contention
[21] The Applicant seeks the removal of the First and Second Respondent based
on three grounds, namely:
a. The respondent misappropriated funds from the deceased estate.
b. The respondent used estate assets for their own personal use and
benefit without proper permission
c. The respondent distributed estate assets unlawfully
d. The respondent has a conflict of interest
[22] The First Applicant asserts that during the period from the day the deceased
passed away to 31 May 2022, the Respondent misappropriated R7 563 071 63 from
the deceased estate as follows:
a. An amount of R7 324 283.68 from the RMB Maximiser account in the
deceased's name with account number 6[...]
b. An amount of R238 787.95 from the RMB current account in the
deceased's name and with account number 5[...]
[23] The Applicants contend that b etween 8 March 2023 and 14 April 2023, when
the Respondent was supposed to repay the appropriated funds to the estate, she
purchased an immovable property for R2,999,000. The sale took place on 23 March
2023. The property was registered in his name on 17 November 2023 . No bond was
registered over the property.
9 Van Niekerk v Van Niekerk and Another supra at [9].
[24] The First Applicant states that the Respondent, through her lawyers, asserted
that the funds withdrawn from the deceased's accounts belonged to the Trust and
that the withdrawal was fully supported by the co -trustee, who is also an auditor of
the Trust. The Respondents also informed the lawyers for the First Applicant that the
co-trustees will be asked to repay R2,314,759.84 to the deceased estate. The
Respondent further indicated her desire to negotiate over the outstanding balance of
R1,019,200.
[25] Furthermore, the Respondent’s attorneys prepared a reconciliation of the
funds that were withdrawn, which indicated that:
a. R5 568 975 was appropriated to the respondent.
b. An amount of R1 755 309.68 was appropriated to business accounts
c. An amount of R5 568 975 was appropriated to the respondent, an d
amount of R980 000 is allocated to her personal maintenance.
d. An amount of R559 450.16 is allocated to business accounts
e. An amount of R39 200 is allocated to funeral costs.
[26] In response , the Respondent states that the funds withdrawn from the
deceased's accounts were actually the trust funds. She explains that her late
husband had bequeathed the shares to her, but in a meeting with the trustees, it was
agreed that the shares be sold for R6 million, the proceeds invested, and the interest
used to meet the deceased's needs. She says that after her husband's death, the
business and life continued, and she had to oversee the running of the business,
including paying various expenses. Therefore, the funds were used to cover these
expenses of the trusts. The Respondent also averred that he used some of the funds
for household costs.
[27] The Respondent admitted her purchase of a property, which was registered in
her name two years post the deceased’s death. However, she contended that this
situation must be viewed in light of the following: the First A pplicant and the joint
agent are obstructing her accrual claim against the estate without due consideration;
agent are obstructing her accrual claim against the estate without due consideration;
the bank accounts associated with the two trust owned by the deceased were frozen,
with the exception of the RMB account, which, while belonging to the deceased, held
funds that were attributed to the trust. T he Respondent indicated that a portion of
these funds was utilised for the operational expenses of the trust across various
business ventures.
[28] The First Applicant further claims that the Respondent has been using estate
assets for their own benefit and enjoyment without permission, particularly the
deceased's Land Cruiser and trailer. The First Applicant states that the deceased
owned a Venter trailer before his death , and this trailer was part of the assets in the
deceased's estate. The First A pplicant mentioned that after receiving the letter of
executorship and during meetings with the joint agent, she asked about the trailer.
Initially, the First Respondent denied any knowledge of the trailer, but later admitted
that she had taken it from the storage facility and given it to her son. The First
Applicant asserts that the Respondent had no entitlement to the trailer under the will.
The trailer was required to be sold in accordance with Section 47 of the Act. Any
distribution of the estate assets in breach of this section is a criminal offence
punishable by a fine or imprisonment.
[29] In response , the Respondent admitted that her son was not entitled to the
trailer. However, the Respondent denies using estate assets for personal benefit and
unlawfully distributing them, claiming a conflict of interest involving the First
Applicant. She states that the First Applicant has taken the assets and keys to the
beach house, denying her access despite the will's stipulation that the deceased
wished for her to have access for a period of four weeks annually, in agreement with
the First Applicant . Still, the First Applicant changed the locks and denied her
access.
Conflict of interest
[30] The First Applicant asserts that, according to the initial inventory prepared by
the agent, the gross value of the estate was R8,086,016.00; however, the
Respondent has lodged a claim in the amount of R18,844,098.05 in respect of the
Respondent has lodged a claim in the amount of R18,844,098.05 in respect of the
alleged accrued amount due upon the deceased's death. The First Applicant asserts
that the Respondent's accrual claim exceeds the total value of the deceased estate.
[31] The applicants contend that , in terms of the provisions of section 32 of the
Act, the capacity to reject claims against the estate is vested in the executor,
meaning that the Respondent, as executrix, will be required to accept or reject their
own claim, effectively judging their own claim against the estate. Therefore, the
Respondent faces a conflict of interest between her personal interest in the estate
and her role as an executr ix who should act in the best interest of the estate and the
heirs.
[32] The Applicants assert that the deceased's estate has a valid claim against the
Respondent for misappropriated funds under section 46 of the Act. Recovery may
necessitate legal action against the Respondent, but the estate cannot proceed
without her cooperation. Since she is unlikely to sue herself for the misappropriated
funds, she faces a conflict of interest between her personal interests and those of the
estate.
The Respondent’s contentions
[33] The Respondent raised four points in limine, namely:
a. The Respondent contended that the applicants failed to provide a copy
of their application to the Master before filing it with the registrar, which
constitutes a violation of Rule 6(9) of the Uniform Rules. The
respondent asserted that they intend to file an interlocutory application
under Rule 30(1) for this non -compliance and will seek an order to
compel the Master to fulfil their duties under the Act, along with a
request for a punitive costs order.
b. Non-Compliance with Rule 41 A - The Respondent asserts that the
applicants did not indicate their position on mediation as required by
Rule 41A(2)(a). The respondent contends that this matter is suitable for
mediation and has suggested the resignation of the executor,
proposing that the Fiduciary Institute of South Africa (FISA) nominate a
new executor if the first applicant also resigns.
c. Non-Joinder of the Appointed Agent - Louina Marais was jointly
c. Non-Joinder of the Appointed Agent - Louina Marais was jointly
appointed as the agent for estate administration but has neither
submitted a liquidation and distribution (L&D) account nor requested an
extension. The respondent argues that the agent should be joined in
this application; therefore, it should be dismissed due to the non -
joinder.
d. Non-Joinder of Trust Trustees - The deceased's will mentions the AJB
Family Trust and the Albie Family Trust, where both applicants are
beneficiaries. The respondent asserts that the trustees have a
significant interest in the relief sought and that the application should
be dismissed due to their non-joinder.
[34] The point in limine r aised by the Respondent lacks merit. It is worth noting
that the Master was properly joined in these proceedings and duly served with the
application. Concerning compliance with Rule 41(A), the requisite notice was served
alongside the application on 8 March 2024. Therefore, this point in limine is
unfounded.
[35] Regarding the joinder of the parties' agents, it is pertinent to highlight that the
relief sought is against the principals of the parties involved. Since Ms. Marais serves
as an agent for both parties and no specific relief is sought against her, her joinder is
unnecessary. Additionally, regarding the fourth point in limine, no claims are being
made against the Trustees, and therefore, their joinder was not necessary.
Merits
[36] The Respondent admitted to withdrawing a total of R7 234 000 from the
deceased's estate over roughly seven months before the First Applicant and herself
were appointed as executors. However, she denies that she misappropriated funds
from the deceased's estate as alleged. She states that the deceased passed away
on 26 October 2021, and the letters of executorship were only issued by the Master
nine months later, on 20 July 2 022. She explains that after her husband’s passing,
life and business “carried on proverbially," and therefore, she had to oversee the
management of various businesses, which involved making payments for several
management of various businesses, which involved making payments for several
expenses, including but not limited to payin g SARS, levies, and other recurring
monthly costs.
[37] The Respondent states that she was married to the deceased for 25 years
and is an heir to the estate. She is a co -trustee of the AJB Familie Trust and the
Albie Familie Trust. She is also a co -director of Lansie Eiendoms Beleggings PTY
LTD, which her late husband owned. The Respondent claims that, as a director, co -
trustee, and wife, she was actively involved in the deceased's various business
ventures for many years and was therefore fully familiar with his businesses and
their management. The Second Respondent states that, before the deceased's
passing, she also acted through the authority granted to her.
[38] The Respondent states that not all the funds credited to the RMB account
belonged to the deceased. She explains that the deceased bequeathed his shares in
Aeterno Investments 159 (Pty) Ltd to her according to his will. At a meeting of the
trustees of the AJB Families Trust held on 18 January 2020, the trustees approved
the sale of shares in Aeterno Investments 159 (Pty) Ltd for R6 million. The interest
received was t o be reinvested in an interest -bearing investment, and the earnings
were to be used to meet the deceased's needs. An amount of R5 million, paid in
tranches of R1 million, was transferred to the RMB account for the beneficial interest
the capital would have earned. As a result, although R5 million was paid into the
RMB account from the sale of shares, it technically and legally belonged to the AJB
Family Trust, and the shares were, in any event, bequeathed to her.
[39] The Respondent claim s that the funds were withdrawn with the full
knowledge and consent of her co-trustees, Peter Viljoen, the auditor of the trusts.
[40] The Respondent argues that the First Applicant opposes her claims without
proper consideration, which may warrant her removal. She was advised to apply
under section 54(1)(a)(v) of the Act.
The Counter-Application
[41] The Respondent seeks the removal of the First Applicant from the office of
[41] The Respondent seeks the removal of the First Applicant from the office of
executor with immediate effect. She also relies on section 54(1)(a) (v) of the Act. The
Respondent seeks, in addition, an order that the First Applicant be directed to return
the letters of executorship to the Master, and to pay the costs of the application in
her personal capacity.
[42] The Respondent claims that the First Applicant, in h er capacity as co -
executor, has consistently refused to recognise the Respondent’s actuarially
calculated accrual claim against the estate, which the Respondent contends exceeds
what she allegedly owes the estate.
[43] The Respondent asserts that the agent appointed (the fourth respondent) has
not taken the obvious approach of provisionally including her accrual claim in the
Liquidation & Distribution (L&D) account and submitting it to the Master to resolve
the impasse quickly and finalise the estate. Instead, th ey have rejected the accrual
claim and failed to respond to correspondence from her attorney.
[44] The Respondent asserts that the First Applicant's refusal to fairly consider the
accrual claim is described as a "self -serving exercise" that resists all claims from a
particular source irrespective of their merits. Based on this conduct, the Respondent
argue that there is good cause for the removal of the First Applicant as executrix in
terms of section 54(1)(a)(v) of the Act, as the First Applicant shouldn't continue acting
as executrix given the obstruction and refusal to deal with the claims fairly.
[45] The grounds for the application are that the First Applicant is unsuitable to
remain as executor because she has a conflict of interest.
[46] The Respondent proposes that both the First Applicant and the Respondent
must resign as executrixes and that an independent person be appointed as sole
executor to finalise the estate, which would save legal costs and avoid burdening the
court.
Point in Limine
[47] The First Applicant raised two points in limine to the Respondent’s
counterapplication. She argues that the application for the executor's removal should
be made against her personally, not just as an executor, as Ms. Sherriff has not
joined her in her personal capacity while seeking personal costs. She asserts that
the counter-application should be dismissed with costs due to this non-joinder.
[48] The First Applicant claims that Ms. Sherriff delayed filing the counter -
application until after the main application was served, despite previously stating that
it would be submit ted concurrently. She contends this is an attempt to stall
proceedings and constitutes an abuse of process, warranting a punitive costs order.
The accrual claim is acknowledged but awaits verification of its extent.
[49] Regarding the point in limine , the Respondent filed a notice of intention to
amend the citation. The Respondent did not object to the amendment, and it was
effected.
Accrual Claim
[50] In response to the Respondent , the First Applicant does not dispute the
Respondent's accrual claim but insists it must be calculated accurately based on
factual and legal principles before acceptance. The First Applicant argues that the
calculation is flawed because it includes assets from two trusts excluded from the
deceased’s estate. She claims the actua ry’s calculations were based on an incorrect
joint estate assumption and that the issues were outlined in an email from the agent.
Consequently, she believes the initial accrual claim was fundamentally defective,
which justified her in rejecting it as executor.
[51] Regarding the second recalculated claim , the First Applicant asserts that she
is unable to evaluate the claim due to the initial miscalculation, a non -actuarial claim
lacking documentation, disputes over asset valuation, and a conflict of interest. She
emphasises that the accrual claim can only be included in the Loss and Dividend
(L&D) accou nt if it is admitted . She says s ubmitting an inaccurate L&D account
would breach her fiduciary duty.
[52] The First Applicant maintains that the L&D account prepared by the
Respondent’s attorneys does not accurately reflect the estate’s position and favours
Respondent’s attorneys does not accurately reflect the estate’s position and favours
her claim. The calculations seem to uncritically accept Ms. Sherriff's asset
valuations. Furthermore, the deceased’s estate must include funds from his RMB
Money Maximiser account, which Ms. Sherriff claims belonged to the trusts.
[53] The First Applicant clarifies that both she and the Respondent each inherit
25% of the estate's residue and that her executor responsibilities require her to act in
the interests of all heirs, preventing her from accepting a flawed accrual.
[54] The First Applicant assert that the claim is considered a “so -called accrual
claim” lacking a legitimate basis. The Applicant expressed readiness to evaluate the
latest claim once she receives the necessary documentation. She states that Ms.
Sherriff owes the estate R3,333,958.8 4 for misappropriated funds and may face a
penalty under section 46 of the Act.
[55] Regarding the Respondent’s proposal that the FISA should nominate a senior
FISA member to be appointed, she argues that the appointment of a new executor
would not be in the best interest of the estate or the heirs, especially since an
independent attorney is already engaged in the winding-up process.
[56] The Respondent filed her replying affidavit to her counter -application late and
failed to address condonation in it. The Applicant objected to its filing and filed a Rule
30 notice. It was then that the Respondent filed a condonation application. The
Respondent says she was abroad for over 30 days . When the Respondent decided
to go overseas, she either knew or ought to have known that there were pending
pleadings. In any event, the points raised in the reply are not different from those
raised in the answering affidavit. There is no reason why the affidavit could not have
been filed on time. I am not satisfied that the Respondent has shown good cause for
condonation. The application for condonation is dismissed with no order costs.
Issues for determination
[57] Whether it is in the interest of the deceased estate that the Respondent
[57] Whether it is in the interest of the deceased estate that the Respondent
and/or the First Applicant should be removed as executors or that they continue. She
says she was abroad, and he was also advised that the court was on recess.
The duties of executors
[58] The duties of an executor were neatly summarised in the matter of D B v
Brand and Another10
“An executor is legally vested with the administration of the estate. This
means that the deceased estate's assets, liabilities, rights, obligations, and
powers vest in the Executor, and he alone can deal with them. The job of an
Executor cannot equate to that of an agent, as he has no principal to give him
instructions.11 An Executor is not free to deal with the assets of an estate in
any manner he pleases. His position is fiduciary; therefore, he must act legally
and in good faith.12 A party instituting litigation against an estate has to join the
Executor as a party to the litigation.13 “
Discussion
[59] In the main application, the issues are relatively straightforward. The
Respondent admitted the withdrawal of funds from the deceased's account before
the issuance of letters of executorship. In a meeting held between the First
Applicant, the Respondent, and their joint agent, the Respondent undertook to repay
the withdrawn amounts and has engaged in discussions regarding the terms for
settling the remaining balance.
[60] When the Respondent failed to fulfil the undertaking, the First Applicant
instructed her attorney to write a letter to the Respondent demanding the bank
statements of the accounts from which the funds were transferred from the deceased
estate and further demanded that the Respondent immediately resign as an
executor.
10 D B v Brand and Another (131572024) 2024 ZAWCHC 164
11 Van Den Bergh v Coetzee 2001(4) SA 93(T)
12 Ries v Ries’s estate1912 CPD 390
13 Booysen v Booysen 2012 (2) SA 38 (GSJ)
[61] On 23 May 2023, through her attorneys, the Respondent again admitted
withdrawal. The Respondent even committed the co -trustees to paying part of the
balance of R2,314,759.84 to the estate, whilst she indicated that she wanted to
negotiate regarding the balance of R1,019,200. It is acknowledged that the
Respondent ac quired the property for a purchase price of R2,999,000.00 in cash;
however, the Respondent has failed to provide a clear account of the financial
resources utilised for this acquisition.
[62] It does not avail Ms Sherriff to deny liability in these proceedings. The First
Applicant has substantiated allegations of misconduct against the Respondent on
several grounds. Firstly, the Respondent misappropriated the estate’s funds by
improperly withdrawing funds from the deceased's estate without obtaining the
requisite permissions. Secondly, the Respondent undertook to repay the withdrawn
amounts and engaged in negotiations regarding the repayment terms but failed to
repay the full amount due . Thirdly, the Respondent failed to fulfil the payment
undertaking by the deadline. However, a partial payment was subsequently made,
and the Respondent instead acquired a property , claiming to have utilised personal
funds for this transaction. In my view, the Respondent used the estate assets for her
own benefit and did so without required permission.
[63] The Respondent is also a creditor of the estate, as she has lodged an accrual
claim against the estate for R18,844,098. Although the Respondent also submitted a
second claim of R6 million, she has not abandoned the initial claim. In terms of
section 32 of Act, the executor must either accept or reject the claim.
[64] This matter is in all fours with the matter of Hanath v Hanath and Others 14,
and the judgment in that matter, penned by Binns -Ward J, is dispositive of this
matter. Dealing with the duties of executors in Hanath v Hanath and Others 15Binns-
Ward J stated:
14 Hanath v Hanath (3239) [2021] ZAWCHC 102
Ward J stated:
14 Hanath v Hanath (3239) [2021] ZAWCHC 102
15 Id.
“In the current case, it is worth remembering that an executor also has
a duty towards creditors of the estate to exercise his or her powers
bona fide and with objectivity. In dealing with a claim, an executor is
expected to assess its merits on a fair consideration of the facts and its
legal merits. Should an executor also be one of the creditors of the
estate, an unenviable situation will arise in which he or she will have to
be the judge of his or her own claim. In my view, it is generally
undesirable that an executor should find him or herself in such a
situation. It not only goes against the basic principle that anyone
should be the judge in their own case, but it also posits a potential
conflict between the executor’s interest as a creditor of the deceased
estate and his or her fiduciary duty to administer it for the ben efit of the
beneficiaries.”
[65] I am satisfied that it is not desirable for the Respondent to continue serving as
an executor due to her misconduct and a conflict of interest.
[66] In its counter -application, the Respondent contends that it is also not
desirable for the First Applicant to continue serving as an executor due to a conflict
of interest. She stated that the First Applicant has denied her access to the beach
house, contrary to her late husband’s wishes that she spend four weeks a year
there. In response, the First Applicant conceded that she changed the locks to the
beach house and removed all the Respondent’s belongings after she noticed that
some items were missing from the house.
[67] Regarding the accrual claim, it is common cause that the Respondent’s
attorneys initially lodged an accrual claim of R18,844,098.05, which Ms Marais
wholly rejected . Subsequently, the Respondent submitted a recalculated claim of
R6,215,185.64, which was further amended and amounted to R6,196,181.07.
[68] On 16 January 2024 , the Respondent’s accrual claim was provided to the
[68] On 16 January 2024 , the Respondent’s accrual claim was provided to the
Fourth Respondent. However, on 18 January 2024, the First Respondent’s attorney
addressed a letter to her attorney wherein the following was stated:
“We furthermore confirm that on perusal of the so -called calculation on(sic)
your client’s accrual claim, we have to place on record that, as it stands at this
point, it is totally unacceptable”
[69] On 23 January 202 4, the Respondent’s attorney wrote to the First
Respondent’s attorneys and stated that:
“… We have received amended calculations in respect of the accrual claim
from the auditor, which was sent to Mrs. Louina Marais - agent for both of the
executors. We await her response and an updated draft of the first and final
liquidation and distribution account. We are concerned about your client’s
rejection of our client's accrual claim in toto. Also , in what appears to be your
client’s general unwillingness to work towards the finalisation of matters. Your
client is apparently not willing to even accept our client's claim partially or to
advance any reasons for h er non-acceptance. That attitude defies all reason
in our opinion”.
[70] On 30 January 2024 , the First Respondent’s attorneys of record replied and
stated the following:
“We confirm that your client is not interested in playing open c ards with our
client, and in fact, this is borne out of your client’s first attempt to have a so-
called accrual claim calculated” (Emphasis added).
[71] Responding to these allegations, the First Applicant asserted that the second
accrual claim can be considered once Ms Sherriff has been removed as the
executor, and all documentation has been received.
[72] Dealing with the conflict of interest, Binns-Ward J in Hathan16 Said:
“The issue is whether it is appropriate when a creditor’s claim by an
executor of a deceased estate who is also a beneficiary in terms of the
16 Id.
will is disputed by another beneficiary that the executor should be
charged with determining it. I think not; on the trite premise that no-one
may be the judge in his own cause. It matters not that there is a
remedy available to anyone dissatisfied by the executor’s decision by
way of objecting to the liquidation and distribution account or recourse
to court. That w ould be the same as suggesting that anyone may be
the judge in their own cause so long as a right of appeal is available. It
is an obviously untenable proposition. As Margo J (Davidson and
Franklin JJ concurring) noted in Die Meester v Meyer en Andere 1975
(2) SA 1 (T) at 17D -E, ‘In die geval van botsende belange, is die blote
feit dat ’n eksekuteur nie onpartydig kan wees by die beoordeling van
eise teen die boedel nie, prima facie grond vir sy verwydering. Webster
v Webster en 'n Ander , 1968 (3) SA 386 (T) op bl. 388C - D.’17 In my
view that consideration, when it arises, will ordinarily determine how a
court will exercise its discretion in terms of s 54(1)(a)(v) of the
Administration of Estates Act. I would therefore respectfully endorse
the previ ously expressed view that the mere existence of a
demonstrated conflict of interest affords prima facie sufficient ground
for the removal of an executor in terms of the provision. It seems to me
to be axiomatic that it would ordinarily be undesirable for an executor
affected by a conflict of interest to remain in office.”
[73] I fully agree with the evaluation provided by Binns -Ward J in Hathan on this
matter. After a thorough consideration of the evidence presented, I find that the
continuation of the First A pplicant, who is both an heir and co -executor, as executor
of the deceased estate is not in the best interests of the estate. There is a conflict of
interest; similarly, the First Applicant cannot be a judge in his own cause.
[74] I have considered the First Applicant’s submission on the potential delays
[74] I have considered the First Applicant’s submission on the potential delays
associated with appointing a new executor. Regrettably, this dispute has escalated
to litigation, a situation that could have been amicably resolved by the parties
17 ‘In the case of a conflict of interests, the mere fact than an executor cannot be impartial in the
consideration of claims against the estate is prima facie a ground for his removal’. Webster v Webster
en 'n Ander, 1968 (3) SA 386 (T) at p. 388C – D’
involved. Instead, they acted unilaterally and accessed the estate's assets without
prior authorisation. Fortunately, a joint agent appointed by bo th parties, who is also
an attorney, has already been appointed to manage the administration of the estate.
It would be prudent for the Master to consider appointing this joint agent as the
executor, as doing so could streamline the process and minimise additional delays
and costs for the estate. Even if a different executor is appointed, it's important to
recognise that the new appointee would benefit from the groundwork laid by the joint
agent, who has been actively overseeing the winding-up of the estate.
[75] As a result, I make the following order:
1. The Respondent’s Application for the condonation of the
late filing of the replying affidavit to a counter-application
is dismissed with no order as to costs.
2. MARIA JO HANNA HELENA SHERRIFF is removed
from her office as Executrix of the estate of the late AJ
Bates, estate number 0[...], Pretoria , in terms of the
provisions of section 54(1)(a) (v) of the Administration of
Estates Act 66 of 1965.
3. MARIA JOHANNA HELENA SHERRIFF is directed to
return her letters of executorship to the Master of the
High Court, Pretoria, within five (5) days of this order.
4. SANDRA RENE WOLFAARDT is hereby removed from
her office as Executrix of the estate of the late AJ Bates
estate number 0[...] in terms of the provisions of section
54(1)(a)(v) of the Administration of Estates Act 66 of
1965.
5. SANDRA RENE WOLFAARDT is directed to immediately
return her letters of executorship to the Master of the
High Court, Pretoria.
6. The Master of the High Court, Pretoria, is directed to
appoint a substitute executor to such person or persons
who it may deem fit and proper to be the Executor or
Executrix within 30 days of the service of this order at the
Master's office.
7. Each party to pay its own costs
___________________
FLATELA LULEKA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
This Judgment was handed down electronically by circulation to the parties and/or
their representatives by email and by being uploaded to CaseLines. The date and
time for the hand down is deemed to be 05 September 2025 at 10H00
Appearances
Counsel for the Applicants: Adv A Coertze
Instructed by: JPA Venter Attorneys
Counsel for the 1st – 2nd Respondents: Adv N.C Maritz
Instructed by: Ehlers Fakude Attorneys
Date of the Hearing: 17 February 2025
Date of the Judgement: 05 September 2025