IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
CASE NO:094533 /2023
REPOR TAB LE: (1)
(2)
(3)
OF INTEREST TO OTHER JUD,~,.,_
REVISED .
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DA TE
In the m atter between:
SIMON CHUENE MESO
and
SIGNATURE
MATSHWENE JOHANNES MESO
STEVEN MATLAKALA PETERSON
NYAKU SALOME HAJANA
LERATO MORETSELE
REGISTRAR OF DEEDS
THE C ITY OF EKURHULENI METROPOLITAN
MUNIC IPALIT Y
JUDGMENT
Applicant
First A pplicant
Second Re spondent
Third Respondent
Fourth Respondent
Fifth Re spondent
Sixth R espondent
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MBONGWE, J:
INTRODUCTION
[1] This is an application brought by the Applicant, a co-heir and executor in the
estate of the late Simo la Margaret Meso , seeking declaratory, interdictory, and
ancillary relief in relation to the sale and transfer of immovable property
forming part of the deceased's estate. The First to Third Respondents are the
Applicant's siblings and co-heirs. The Fourth Respondent is the purchaser of
the property, and the Fifth Respondent is the Registrar of Deeds, Pretoria.
Factual Background
[2] The deceased passed away intestate on [insert date], leaving four children
namely, the Applicant and the First to Third Respondents-as her sole heirs
in terms of the Intestate Succession Act 81 of 1987.
[3] The First Respondent was initially appointed as the representative of the
estate by the Magistrate in terms of section 18(3) of the Administration of
Estates Act 66 of 1965 ('the Act'). Due to his failure to administer the estate,
he was removed and replaced by the Applicant, for whom the Master of the
High Court issued letters of executorship.
[4] On or about [insert date], the heirs concluded a redistribution agreement in
terms of section 14(1) of the Act. In terms of the agreement, the Applicant
would acquire sole ownership of the immovable property valued at R450 000,
subject to payment of R 150 000 to each of the three co-heirs by 4 October
2001.
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[5] The Applicant failed to make payment by the stipulated date. A 90-day
extension was granted, but he again defaulted. Written notice was issued to
him by the co-heirs, demanding compliance.
[6] Following continued non-performance, the co-heirs, including the Applicant,
agreed to sell the property to the Fourth Respondent for R300 000. The Fourth
Respondent paid the full purchase price and the property was transferred into
his name. The Second and Third Respondents collected their respective
shares from the conveyancers. The Applicant did not collect his portion and
instead launched this application.
Relief Sought
[7] The Applicant seeks:
7.1 An order setting aside the offer to purchase concluded between the First
to Third Respondents and the Fourth Respondent.
7.2 An interdict restraining the Fourth Respondent from taking occupation of
the property.
7.3 An order directing the Fifth Respondent to cancel the registration of the
property.
7.4 A declaration that the sale was invalid due to the estate's value
exceeding R250 000 and the absence of proper authorisation by the
Magistrate.
7.5 Alternatively, payment of his share of the proceeds.
7 .6 Costs of the application.
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Issues for Determination
[8] The issues for determination are:
• Whether the sale of the property to the Fourth Respondent was valid and
enforceable.
• Whether the Applicant's non-signature to the offer to purchase invalidates
the sale.
• Whether the sale was unlawful due to the estate's value exceeding
R250 000 and the absence of authorisation by the Magistrate.
• Whether the Applicant is estopped from challenging the sale or has wa ived
his rights.
• Whether the Applicant, as executor, discharged his fiduciary duties.
• Whether the Applicant is entitled to interdictory relief and cancellation of
the transfer.
• Whether the Applicant is entitled to payment of his share of the proceeds.
Legal Framework
[9] The administration of deceased estates is governed by the Administration of
Estates Act 66 of 1965. Section 14( 1) permits redistribution agreements
among heirs, provided they are in writing and signed by all parties.
[1 0] Section 18(3) of the Act applies only to estates valued at R250 000 or less.
Where the estate exceeds that threshold, full administration under letters of
executorship is required.1
1 Section 18(3), Administration of Estates Act 66 of 1965 .
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[11] A co-owner may not unilaterally alienate jointly owned property without the
consent of the other co-owners.2 However, where a redistribution agreement
is concluded and default occurs, the non-defaulting heirs may act to preserve
the estate's value, provided they do not act in bad faith.
[12] Estoppel arises where a party, by conduct or representation, induces another
to act to their detriment and is then precluded from rescinding that
representation. 3
[13] Waiver is the intentional relinquishment of a known right. It may be expressed
or inferred from conduct inconsistent with the enforcement of the right.4
[14] An executor owes fiduciary duties to the estate and its beneficiaries, including
the duty to act in good faith, avoid conflicts of interest, and administer the
estate diligently and transparently.5
Analysis
[15] The Applicant's challenge of the offer to purchase is premised on the fact that
he was not a signatory thereto and did not consent to the reduction of the
purchase price of the property. However, the evidence indicates that he was
present during the negotiations, but failed to object, and did not take steps to
2 Ma/uleka N.O. v Mbatha &Another(2019l63169) (2022] ZAGPPHC 419 (5 June 2022).
3 Arts Enterprises (Finance) (Ply) ua v wateroerg Koeikamers (Pty) Ltd 1977 (2) SA 425 (A).
4 Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews & Another (CCT 97/07) [2009] ZACC 6; 2009 (40
SA 529 (CC).
5 Land and Agricultural Bank of South Africa v PARKER and Others (2005) (2) SA 77 (SCA).
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prevent the sale. His conduct amounted to tacit consent and, at the least,
acquiescence.
[16] The Applicant's silence and inaction, despite receiving written notice and being
aware of the impending sale, induced the co-heirs and the Fourth Respondent
to proceed with the transaction. He is accordingly estopped from now asserting
that the sale was unauthorised.6
[17] Moreover, the Applicant's conduct is inconsistent with the enforcement of any
right to exclusive acquisition of the property. His failure to perform under the
redistribution agreement, coupled w ith his conduct in the subsequent sale
process, constitutes a waiver of any such right.
[18] As executor, the Applicant bore a fiduciary duty to act in the best interests of
the estate and all heirs. His failure to comp ly with the redistribution agreement,
delay in administering the estate, and subsequent attempt to reverse a
concluded sale, despite not having objected to it, reflects a dereliction of that
duty.7
[19] The Fourth Respondent acted in good faith, paid the full purchase price, and
acquired the transfer lawfully. The drastic remedies sought, such as interdicting
the Fourth Respondent from taking occupation of the property and cancelling
registration of transfer, are not justified on the facts or in law .
6 Estoppet principles as applied in N ational and Overseas Distributors Corporation (Pty) Ltd v Potato
Board 1958 (2) SA 473 (A) at 479.
7 Gory v Kolver NO and Others (CCT28/06) [2006] ZACC 20.
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[20) The Applicant's reliance on section 18(3) is misplaced. By the time of the sale,
he had been appointed as executor under letters of executorship. The estate
was no longer subject to the limited administration regime.
Conclusion
[21] The Applicant has failed to establish a basis for the relief sought. He is
estopped from challenging the sale, he had waived any rights under the
original redistribution agreement and failed to discharge his fiduciary duties as
executor. The application falls to be dismissed.
ORDER
[22) Consequent to the findings in this judgment, I make the following order:
1. The application is dismissed.
2. The Applicant is directed to collect his share of the proceeds of the sale
held in trust by the conveyancers.
3. The Applicant is ordered to pay the costs
MPN MBONGWE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
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APPEARANCES
For the Applicant: Advocate P. Lebea
Instructed by: Komape Attorneys
For the 1st to 3rd Respondents: Mr Phephenyane
Instructed by: Sibuyi Attorneys Inc.