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
(EASTERN CAPE DIVISION, EAST LONDON CIRCUIT COURT)
CASE NO. EL 713/2024
In the matter between:
N[...] M[...] APPLICANT
And
SILMA HAMDULAY N.O FIRST
RESPONDENT
STANDARD BANK OF SOUTH AFRICA
ESTATE AND FINANCIAL PLANNING DIVISION SECOND
RESPONDENT
T[...] M[...] THIRD RESPONDENT
S[...] M[...] FOURTH RESPONDENT
K[...] M[...] FIFTH RESPONDENT
MASTER OF THE HIGH COURT SIXTH RESPONDENT
JUDGMENT
COLLETT AJ
Introduction
[1] This application raises a novel situation re garding the appointment of a receiver, post the
passing of a spouse, to effect the division of a joint estate as ordered at date of divorce .
The applicant and K[...] N[...] M[...] (hereinafter referred to as ‘ the deceased’ ), whose
marriage in community of property was dissolved by decree of divorce on 15 August
2017, failed to attend to the division of the joint estate prior to the deceased’s passing on
22 December 2020 for reasons more fully apparent infra. Accordingly, the applicant
seeks, inter alia, the appointment of a receiver to effect same which relief is opposed by
the first and second respondents (hereinafter collectively referred to as the ‘respondents’).
First respondent is the appointed executor and an employee of the second respondent.
Factual Matrix
[2] As a starting point , the common cause or facts agreed to by the legal representatives
during argument are of relevance, more particularly:
2.1 The deceased and applicant were married to each other in community of property
and such marriage was dissolved by decree of divorce on 15 August 2017.
2.2 Division of the joint estate had not occurred at the time of the demise of the
deceased on 22 December 2020.
2.3 The parties agree that 50% of the value of the joint estate as at date of divorce
belongs to the applicant.
[3] Given the peculiar circumstances of this matter, it is necessary to digress and consider
certain facts arising from the founding affidavit , which are undisputed, and may be
informative in arriving at a just and equitable decision.
[4] The applicant and the deceased were married to each other in community of property at
Verwoedberg, Pretoria on 24 June 1995, which is not denied by the respondents, with the
fourth and fifth respondents being the children born of the marriage relationship.
[5] Seemingly, t he parties ceased living together when the deceased left the matrimonial
home and the applicant mov ed to Cape Town with the children. There is no date
provided as to when this occurred. The deceased failed to support the applicant or the
minor children culminating in a maintenance case being opened in East London . Whilst
no date is provided, apparently the deceased failed to pay the maintenance. The applicant
and the children later moved to Durban whe re the children embarked on tertiary
education and t hey remained there until 2015 . Thereafter, the applicant retired from
Transnet and returned to East London stay ing between her brother in East London and
her rural home in Flagstaff. The applicant states that during this period of time there was
‘very little contact’ between the deceased and herself.
[6] It is common cause that the deceased obtained a decree of divorce during 2017, pursuant
to a substituted service application . The applicant had no knowledge thereof and only
established this in 2021 after the deceased has passed away . The applicant subsequently
became aware of a will executed by the deceased during 2015 wh erein the third
respondent is referred to as his wife and heir.
[7] Pursuant hereto, the applicant launched an application culminating in an order on 19
[7] Pursuant hereto, the applicant launched an application culminating in an order on 19
October 2021 ordering division of the joint estate, and particularly that applicant was
entitled to 50% of the joint estate and 50% of the deceased’s interest in a pension fund
held by Liberty Life Group.
[8] Whilst not strictly relevant to the present application, it deserves mention that on 23
October 2023, pursuant to a further application brought by the applicant, the marriage of
the deceased and third respondent was declared null and void ab initio but the will was
declared valid by the Court. The second respondent was appointed as executor of the
deceased’s estate in terms of the will , with the first respondent being appointed by the
sixth respondent as the executor of the deceased’s estate on 6 March 2021.
[9] The applicant avers that she and the deceased remained joint owners of the property of
the joint estate in a ‘joint partnership’ up until the death of the deceased due to the non-
division of the joint estate. The applicant contends further that she does not know the full
extent of the joint estate of the deceased and for this reason she requires a receiver to be
appointed.
[10] Seemingly, the first respondent , having acknowledged the applicant’s half share
ownership in the joint estate at date of divorce , has called upon the applicant to provide
details regarding the assets thereof, including those belonging to the applicant, which the
latter has failed to do . Regardless, the uncontroverted fact is that the full extent of the
joint estate between the deceased and the applicant at date of divorce is unknown.
Accordingly, the crisp issue before this Court is w hether a receiver should be appointed
to attend to the division of the joint estate of the parties consequent upon the decree of
divorce granted on the 15 August 2017.
Legal context
[11] When a marriage in community of property is dissolved by decree of divorce, the joint
estate is terminated and flows as a matter of law whether or not the court order directs the
division or not.1 In the absence of agreement between the parties as to the division of the
joint estate, a receiver may be appointed.
[12] The inherent power of a court to appoint a person to assist in the division of a joint estate
was succinctly stated by Innes CJ in Gillingham and Gillingham:2
‘…but where they do not agree the duty devolves upon the Court to divide the estate , and the
Court has the power to appoint some person to effect the division on its behalf. Under the
general powers which the Court has to appoint curators it may nominate and empower someone
(whether he is called liquidator, receiver, or curator – perhaps curator is the better word) to
collect, realise and divide the estate.’ (my emphasis)
[13] Accordingly, the court is clothed with a discretion to appoint a liquidator to collect,
realize and divide the joint estate. In Robson v Theron3 it was held that the court has a
wide equitable discretion relating to the division of a joint estate having regard to what is
most advantageous to the co-owner. Whilst this position has been confirmed subsequent
hereto, it is also recognised that the court is not obliged to appoint a liquidator.4
[14] Evidently, pivotal considerations are, inter alia, where the parties cannot agree on the
division of the joint estate and the estate is not of so trivial a nature or value that it does
not justify the appointment of a receiver. 5 In Revill v Revill ,6 whilst considering the
appointment of a receiver to effect the division of the joint estate , the Court referred to
the impartiality principle stating:
‘…no man can be a judge in his own cause, no man can force his decision upon another. I
cannot read this judgment in any other way other than reflecting the general principle that where
1 Keyser v Keyser 1979(4) SA 12(T) at p 15H
2 1904 J.S 609
3 1978 (c) SA 841A 855C
4 Moosa NO & others v Akoo and others [2008] All SA 585 (N) at 591 G
5 Schoeman v Rokeby Farming Co (Pty) Ltd 1972(4) SA 201 (N) at 206 D - G
5 Schoeman v Rokeby Farming Co (Pty) Ltd 1972(4) SA 201 (N) at 206 D - G
6 1969 (1) CPD 325 at 326 G -H
a division has to be made it must be made by an impartial person appoin ted by the Courts when
the parties cannot between them agree as to the division or upon the person who is to make the
division.’ (my emphasis)
[15] It is trite that the joint estate of a marriage in community of property terminates upon
death or divorce and a surviving spouse acquires a half share not by way of inheritance.
Ordinarily, should the marriage in community of property still subsist at the time of
death, the executor is required to wind up the entire estate and settle all liabilities of the
joint estate whereafter the surviving spouse will receive a half share thereof
[16] The Administration of Estates Act 66 of 1965 (hereinafter referred to as the ‘Estates Act’),
provides the Master with far -reaching powers regarding the compilation of an inventory
upon the death of a person. The inventory in the case of a joint estate existing at the death
of a spouse would include the assets and liabilities of the surviving spouse. In accordance
with the Estates Act7 the Master has jurisdiction over the property of a deceased person
and such estate may not be liquidated or distributed with out a letter of executorship
granted and signed by the Master.8
[17] An executor appointed by the Master in accordance with the Estates Act, has custody and
control over the property in the deceased estate and is authorised to liquidate and
distribute such estate .9 Clearly, the inventory provided relating to the estate of the
deceased is instructive of this process. The executor is obliged to submit a liquidation and
distribution account of the deceased estate to the Master within a prescribed time period10
or such further period as the Master may allow. 11 The submission of this account will
result in the finalisation of the liquidation and distribution of the deceased estate.
Evaluation
7 Section 4(1)
8 Section 13(1)
9 Section 26
10 Section 35
11 Section 35(1)(c)
[18] The affidavits of both parties are not a picture of clarity in addressing the elephant in the
room, being the retrospective division of the joint estate of the applicant and the deceased
as at date of divorce. The salient feature of this matter is that the half share of the
applicant in the joint estate consequent upon the divorce between the deceased and
applicant should be specifically excluded from the deceased’s estate. This is by operation
of both matrimonial and testamentary law.
[19] The first respondent is ‘authorised as such to liquidate and distribute the estate of the
late K[...] N[...] M[...]’ in accordance with the letter of executorship. As the applicant’s
half share in the joint estate accrue d as at 15 August 2017, any suggestion that it either
forms part of the deceased’s estate or that the first respondent has authority to do
administer same is misplaced . The letter of executorship 12 is decisive of the estate to
which first respondent’s authority extends which would incorporate only the deceased’s
half share flowing from the division of the joint estate as at date of divorce.
[20] Whilst it is trite that the deceased had freedom of testation , despite the will having been
executed on16 July 2015 during the subsistence of the marriage between the applicant
and the deceased, he could not dispose of the applicant ’s half share of the joint estate
either during the subsistence of the marriage or upon divorce as at 15 August 2017 . Put
differently, the applicant’s half share in the joint estate, less applicable liabilities at the
time of the dissolution by divorce, is the exclusive property of the applicant.
[21] The question for consideration is whether this court should exercise its discretion to
appoint a receiver to attend to the division of the joint estate of the applicant and
deceased as at date of divorce based on the facts before it.
[22] The unequivocal conclusion from the common cause facts is that the joint estate between
[22] The unequivocal conclusion from the common cause facts is that the joint estate between
the deceased and applicant that was not divided as at date of divorce with the applicant’s
entitlement thereto being undisputed. The reason for the non-division is water under the
12 Applicant’s founding affidavit , Annexure B page 40(a)
bridge and it serves no purpose to cast aspersions relating thereto. The de facto position
is that it did not take place and by operation of law, it should have and must happen.
[23] Whilst the submission by respondents’ counsel is correct that the administration of the
deceased’s estate is governed by the Estates Act , it loses sight of the fact that the
applicant’s half share does not and should not form part of that estate. It would have
been a different scenario if the parties were married in community of property at at the
date of the deceased’s death.
[24] The question of the bias, impartiality or capability of the first respondent are non-issues
as her appointment relates to the liquidation and distribution of the deceased’s estate not
the property of the applicant. Similarly, submissions regarding the practical
considerations and potential conflicts advanced by respondents’ counsel between the first
respondent and a receiver will not arise as the duties of the receiver would not overlap
with those of the first respondent.
[25] Lastly, the respondents’ counsel referred to the cost implication regarding the
appointment of a receiver and suggested that the applicant should appoint somebody at
her own cost to effect a division. Quite why the applicant should be burdened with these
costs is unclear considering that the deceased would have known at the date of divorce
that the joint estate needed to be divided.
[26] There is no suggestion that the applicant knew of this prior to establishing the existence
of the decree of divorce after the demise of the deceased. It deserves mention that the
allegations in the founding affidavit far from support a harmonious and cooperative
relationship between the applicant and the deceased, hence the probabilities lean towards
a receiver having to be appointed upon the divorce of the parties to effect division of the
joint estate. Ordinarily the costs of appointing a receiver are costs in that joint estate.
Appropriate relief
[27] In considering whether a receiver should be appointed in this instance, th is Court is
mindful of the following:
27.1 There can be no agreement between the parties on the division of the joint estate
for obvious reasons.
27.2 On the probabilities, the estate as gleaned from the draft liquidation and
distribution account, is not of a trivial a nature or value such that it would not
ordinarily justify the appointment of a receiver.
27.3 The executor is, to say the least, neither empowered to administer the applicant’s
half share nor aware of the value of the joint estate at the date of divorce and, if
anything, is in a compromised position in this regard.
27.4 The extent of the deceased’s estate on the face of it, is vast and complicated . On
the applicant’s own version, she is unaware of its extent and the first respondent is
unaware of the applicant’s assets or liabilities at the date of divorce.
[28] The applicant has identified Mr Paterson as a potential recei ver alleging in the founding
affidavit that he has in excess of 30 years’ experience as a receiver. Somewhat belatedly,
the consent of Mr Paterson found its way into the application papers by means of a
further affidavit . Whilst this affidavit was frowned upon by the respondents, no
submission was made to disregard it. Mr Paterson ’s consent refers to Case No. EL
51/2017 which relates to the divorce action, and his engagement would be in respect of
the di vision of the joint estate pursuant to the decree of divorce granted therein. The
respondents’ counsel correctly submitted that in event of a receiver being appointed, the
only mandate should be in respect of the joint estate assets and liabilities up until 15
August 2017, deferring to the court to define the functions of the receiver.
[29] Despite the wholly uns atisfactory and regrettable state of affairs relating to the non -
division of the joint estate pursuant to the decree of divorce, it would be remiss of this
Court not to exercise its discretion in appointing a receiver to determine the value of the
joint estate of the applicant and the deceased as at 15 August 2017. The appointment of a
receiver is considered just and equitable given the circumstances of the matter and will
facilitate certainty regarding the value of the applicant’s half share of the joint estate.
[30] The determination from the receiver regarding the division of the joint estate of the
applicant and the deceased as at the date of divorce does not fall within the powers
assigned to the first respondent in accordance with the Estates Act. Moreover, the value
of the applicant’s half share in the joint estate as at 15 August 2017 will assist the first
respondent in the liquidation and distribution of the deceased’s estate. Any claim that the
applicant may reasonably believe that she has post the division of the joint estate as at 15
August 2017 is not before this court for consideration.
[31] There is no basis set out in the founding papers for the interdict sought by the applicant
against the first respondent from attending further to the administration of deceased’s
estate pending the division of the joint estate between applicant the deceased. It is trite
that applicants must set out the grounds for the relief sought in their founding papers. The
applicant has failed to so relating to the interdict .13 In any event, there is no reason to
‘freeze’ or interdict the first respondent from administering the deceased’s estate as the
first respondent, given the nature and extent of the deceased’s estate, may attract
responsibilities pending the liquidation and distribution of the assets. It is reasonable to
conclude that the assets and the business interests referred to in the draft liquidation and
distribution account may require administration and input from the first respondent
pending the finalisation of the receiver’s mandate.
pending the finalisation of the receiver’s mandate.
[32] Moreover, the first responden t will not be able to finali se the liquidation and distribution
account of the deceased’s estate pending the finalisation of the mandate of the receiver.
As it is this liquidation and distribution account that facilitates the ultimate finalisation of
the deceased’s estate and is governed by the Estates Act, the sixth respondent should
13 Reynolds NO v Mecklenberg (Pty) Ltd 1996 (1) SA 75 (W) at 78I
extend the submission thereof by the first respondent pending the completion of the
duties of the receiver.
Costs
[33] Regrettably, neither party seems to have sought the intervention or guidance of the sixth
respondent in this matter. Whilst the impasse between the parties is tangible and real,
protracted litigation is and will have the effect of depleting the deceased’s estate
[34] The applicant has been only partially successful in this matter and I accept that the
respondents’ opposition thereto was in the interest s of the of the deceased’s estate.
Frankly, it may have been preferable if the applicant ha d sought the appointment of a
receiver at the time of seeking the declarator regarding the joint estate.
[35] The relief sought actually relates to the division of a joint estate which existed as at 15
August 2017 and it seems fair that the costs, as is ordinarily the case upon an
appointment of a receiver, are to be costs in that joint estate.
Order
Accordingly, the following order is issued:
1. Mr Andrew Stuart Paterson is appointed as a receiver to collate the assets and
liabilities and to facilitate the division of the joint estate of the applicant and the
deceased, K[...] N[...] M[...] (hereinafter referred to as the ‘deceased’), as at date
of decree of divorce 15 August 2017 under Case No. EL 51/2017, within 90 days
of the service of this order upon him.
2. Directing the applicant and first respondent to furnish the receiver with a
complete inventory of all known or potentially being assets and liabilities of the
joint estate of the applicant and deceased, as at that date of divorce 15 August
2017 within 10 (ten) days of this order.
3. The receiver is assigned the undermentioned powers and duties:
3.1 The receiver is authorised to demand from the applicant and the first
respondent a full account of all assets movable and immovable potentially
belonging to the joint estate of the applicant and deceased as at 15 August
2017, including but not limited to, pension funds, investments, debt and
monies due to the said joint estate
3.2 With respect to the immovable property the applicant and first respondent
shall each appoint an estate agent / valuer to value the immovable property
of the joint estate and the average value of the combined values shall be
accepted as the value of the property by the receiver who will calculate the
liquidity of the immovable property.
3.3 The receiver shall obtain appraisals for the purpose of determining the
value of any of the other assets that form part of the joint estate.
3.4 The receiver is authorised to apply to this Honourable Court for further
determination and direction, in the case where he is not satisfied with the
information furnished to him by either of the parties or in the case of any
other difficulty arising in determining the nature , extent and value of the
joint estate.
3.5 The receiver shall be empowered to rule on any objection from the
applicant or first respondent on behalf of the deceased and either allow or
disallow it, either in whole or in part and his decisio n shall be sent to the
applicant, first and sixth respondent which will become final and binding
upon them should they not approach this Honourable Court for relief
within 7 (seven) days of that decision.
3.6 The receiver is to prepare a final account and to establish the value of the
applicant and deceased’s half share in the joint estate as at 15 August 2017
in accordance with the law and any objection thereto must be lodged
within 7 days of receipt of the final account by the applicant and first
respondent.
3.7 In the event of no objection being made to the receiver ’s final account
within the time limit provided, it will become final and binding in respect
of the value of the half share of the applicant and the deceased relating to
the joint estate as at 15 August 2017.
4. The first respondent upon being advised of the value of the applicant’s half share
in the joint estate as at 15 August 2017, is directed to exclude such value from the
deceased’s estate and pay same to the applicant prior to finally liquidating and
distributing the deceased’s estate.
5. The sixth respondent is directed to extend the time period for the submission of
the liquidation and distribution account in the estate of the late K[...] N[...] M[...]
Estate no 001193/2021 in terms of Section 35(1)(b) of the Administration of
Estates Act 66 of 1965 pending the final determination by the receiver of the
value of the applicant’s half share in the joint estate as at 15 August 2017.
6. The costs of this application are costs in the joint estate of the applicant and the
deceased as at 15 August 2017.
7. A copy of this order must be served on all respondents.
_____________________________________
S A COLLETT
ACTING JUDGE OF THE HIGH COURT
APPEARANCES
For the Applicant : Mr SJ Swartbooi SC together with Ms L
Swartbooi
Instructed by : B Nduli & Co.
For the Respondent : Mr Steenkamp
Instructed by : Heidi van der Meulen Attorneys
Date of hearing : 21 August 2025
Date of delivery of judgment : 03 September 2025