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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
Not Reportable
Case no’s: 805/2024 & 1577/2024
In the matter between:
ANNA MARTHA NIEMAN Applicant
and
JOHANNES JACOBUS NIEMAN First
Respondent
NELLIE OOSTHUIZEN Second
Respondent
ANNAMART NIEMAN Third
Respondent
FLORA PETREA BREYTENBACH Fourth
Respondent
JOHANNA MAGDALENA SMITH Fifth
Respondent
GERHARD JACOBUS OLIVIER N.O. Sixth Respondent
MASTER OF THE HIGH COURT, MAHIKENG Seventh
Respondent
Estate Late WILLEM ADRIAAN NIEMAN
(Identity Number: 4[...])
Master’s Reference: 7170/2022
Coram: Petersen ADJP
Date heard: 11 November 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives via email. The date and time for handing down the
judgment are deemed to be 14h00 on 16 February 2026.
Summary: Consolidated applications concerning administration of deceased
estate – application for rescission of ex parte order authorizing sale of undivided
shares in agricultural land – applicant sought to bypass Master’s authority and
heirs’ consent to secure personal commercial advantage and avoid capital gains
tax – non-disclosure of material facts and existence of deadlock in ex parte
proceedings deemed egregious abuse of process – violation of peremptory
provisions of Section 47 of Administration of Estates Act 66 of 1965 – statutory
authority of Master to resolve sales disputes cannot be usurped by court of first
instance – common law actio communi dividundo inapplicable where specific
statutory procedures exist – ex parte order set aside as nullity – punitive costs on
scale C awarded against applicant personally for procedurally unfair conduct.
________________________________________________________________
JUDGMENT
________________________________________________________________
PETERSEN ADJP
Introduction
[1] This matter came before me as a consolidated hearing of two interrelated
applications impacting the administration of the estate of the late Willem
Adriaan Nieman. The applications under case numbers 805/2024 and 1577/2024
have been consolidated for this hearing due to the interrelated factual matrix and
overlapping relief sought.
[2] In the ex parte application brought under case number 805/2024, Mrs. Anna
Martha Nieman, the surviving spouse of the deceased, brought the application
in her capacity as the Interim Executrix of the estate and in her personal
capacity. It is this order that the first, second, and sixth respondents seek to have
rescinded.
[3] The first to fifth respondents are heirs and interested parties in the estate,
while the sixth respondent is an independent attorney with an interest in the
administration. The seventh respondent is the Master of the High Court,
Mahikeng.
Background
[4] On 28 November 2022, under case number UM 228/2022, Reid J granted an
order in favour of Mrs . Nieman, appointing her as an Interim Executrix of the
Estate with specific powers and ordering the Master to issue Letters of
Executorship to her officially.
[5] In terms of th is order, Mrs. Nieman was authorized to rent out any
immovable property registered in the deceased’s name or registered jointly in
both their names. Mrs. Nieman was also allowed to sell farming implements,
equipment, and livestock, provided they were no longer needed for the estate’s
farming operations ; and she was empowered to exercise the deceased’s
rights/members’ interests in four Close Corporations (WA Nieman Boerdery
BK, Ademshoop Boerdery BK, Geluksdeel Boerdery BK, and Niemansland
BK).
[6] The present dispute lies in an ex parte application instituted by Mrs. Nieman
under case number 805/2024. In that application, Mrs. Nieman approached this
Court on an unopposed basis, seeking wide -ranging declaratory and directive
relief regarding the sale of undivided shares in lucrative agricultural land, which
is co-owned in equal shares by the applicant and the deceased estate.
[7] On 27 February 2024, I granted an order in the ex parte application
directing, inter alia, that the estate’s undivided share be placed on public auction
alongside the applicant’s undivided share. The order provided that the auction
would be subject to a reserve price and confirmation by the applicant herself.
The order further provided a safety net that, should she not confirm the sale to
the highest bidder, the estate’s undivided share would automatically be deemed
sold to her at a prorated amount equal to the highest bid price.
[8] The relationship between Mrs. Nieman and the remaining heirs has
irrevocably broken down, resulting in a complete deadlock regarding the
liquidation and distribution of the estate’s assets. The immovable properties
cannot be transferred in undivided shares to the numerous heirs due to the
practical and financial impossibilities of such divided co -ownership. This is
compounded by the strict limitations on subdivision imposed by the Subdivision
of Agricultural Land Act 70 of 1970. The only practical solution appears to be a
realisation of the immovable property to finalise the heavily contested
liquidation and distribution account.
[9] It appears, in hindsight, that Mrs. Nieman launched the impugned ex parte
application in an attempt to break this deadlock and realise the assets on her
own terms.
[10] The respondents , who are direct beneficiaries, became aware of the ex
parte order only after it had been granted. When the order came to the attention
of the first and second respondents , they filed an urgent interlocutory
application to intervene and rescind the order. The sixth respondent supports the
rescission application. This interlocutory application was granted by this c ourt
(per Morgan AJ). The order suspended the operation of the order granted on 27
February 2024, which preserved the status q uo pending the final determination
of the rescission application, presently before this Court.
The central issues
[11] The central issue in this matter is whether the order of 27 February 2024
should be rescinded. The rescission application centres on whether the order
was ‘erroneously granted’ within the ambit of Rule 42(1)(a). Aligned thereto is
whether Mrs. Nieman complied with s 47 of the Administration of Estates Act
66 of 1965.
[12] I turn to Counsel’s submissions. The arguments are extensive and at times
conflate several issues, which in my view fall outside the ambit of the relief
sought for rescission of the ex parte order of 27 February 2024. I have therefore
endeavoured as best possible to cut through the prolixity of argument, to focus
on the essence of the relief sought. For reasons extrapolated in this judgment, it
should be clear why I focus mainly on the rescission application and not the
veracity of the relief which Mrs. Nieman sought on an ex parte basis, if the
order is rescinded.
Submissions on behalf of Mrs. Nieman
[13] In my understanding of the arguments advanced by Adv Peter SC for
Mrs. Nieman, more focus was placed on why the suspension of the ex p arte
order of 27 February 2024 ought to be uplifted , rather than the rescission of the
order. The thrust of his argument is that the respondents’ application for
rescission is legally and factually meritless, as they rely on disputes that are
either contrived or demonstrably false.
[14] Adv Peter SC, correctly in my view, identified on the factual grounds
raised by the respondents, that the allegation that the deceased and Mrs. Nieman
were married out of community of property is refuted by the objective evidence.
He referred the Court to the marriage register, which is annotated ‘no’ regarding
an antenuptial contract. Further, there was no registered antenuptial contract. He
further pointed out that the submission that the relevant properties were
inherited subject to an exclusion from the joint estate was baseless, as no such
condition appears in the Title Deeds.
[15] I further agree that the applicants unnecessarily obfuscate the issue of
rescission of the ex parte order by raising the paternity of the third respondent,
which was conclusively settled by DNA evidence, which is ‘scandalous’. It adds
nothing to the question of whether the order should be rescinded.
[16] On the issue of locus standi raised by the sixth respondent, Adv Peter
argued that the sixth respondent’s challenge to Mrs. Nieman’s authority, based
on her status as an ‘interim’ rather than ‘substantive’ executor, is legally
unsound. He submitted that the Administration of Estates Act does not
distinguish between the powers of these appointments , thereby excluding the
relief sought. In the alternative, he argued that Mrs. Nieman has the necessary
standing in her personal capacity as a co-owner of the property and is entitled to
approach the Court to sever the co-ownership.
[17] In opposing the rescission application, Adv Peter SC submitted that the
sale of Mrs. Nieman’s half share is a compelled realisation brought about by her
husband’s death and statutory requirements, rather than a voluntary commercial
enterprise. The Subdivision of Agricultural Land Act essentially compels the
relief. It was submitted that , because the Act prohibits the transfer of undivided
shares in agricultural land to multiple beneficiaries, the executor is duty -bound
to realize the asset.
[18] He emphasized that selling Mrs . Nieman’s undivided half share to a third
party at auction would trigger severe and punitive capital gains tax
consequences for her personally, which could be entirely avoided if she were
permitted to purchase the estate’s undivided half share herself. The argument is
predicated on the commercial premise that the only true interest of the deceased
estate is to achieve the highest possible monetary value for the property,
rendering it irrelevant whether the purchase price is paid by an independent
third party or by the surviving co-owner.
[19] Adv Peter SC relied on the actio communi dividundo, arguing that where
division of the property is impossible, a sale is the only available remedy to
dissolve the co-ownership. Regarding the ‘right of first refusal ’ granted to Mrs.
Nieman in the initial order, he argued that this provision is neither prejudicial
nor inequitable. In particular, and relying heavily on the established common
law principles governing the termination of co -ownership, c iting Grotius
(3.28.4-5), he submitted that there is nothing inequitable about giving an
existing co -owner a preference to purchase the remaining undivided share,
provided the co -owner is prepared to match the best market price offered by a
bona fide third party.
[20] On these grounds, it was contended that the suspension of the ex parte
order should be lifted rather than rescinding the order.
Submissions on behalf of Mr. Nieman and Mrs. Oosthuizen
[21] Adv Lüderitz SC for Mr. Nieman and Mrs. Oosthuizen vehemently
opposed Mrs. Nieman’s submissions, characterising her conduct as an egregious
abuse of the judicial process. They seek the rescission of the ex parte order
granted by this Court on 27 February 2024 primarily on the provisions of
Uniform Rule 42(1)(a), and in the alternative, on the common law grounds of
fraud or iustus error.
[22] Adv Lüderitz SC submitted that the impugned order was ‘erroneously
sought and erroneously granted ’ within the ambit of Rule 42(1)(a) because of
three fatal defects , which include the breach of the duty of utmost good faith
(uberrima fides ), the lack of notice to interested parties, and the legal
incompetence of the relief granted.
[23] In advancing his argument, Adv Lüderitz SC emphasized the manner in
which the order was obtained by Mrs. Niem an, on an ex parte basis, without
observance of the trite principle of our law that in such applications, an
applicant must strictly observe the uberrima fid es rule. It is argued that Mrs.
Nieman failed to disclose material facts which, had they been placed before me,
would have precluded the granting of the order. Relying on Schlesinger v
Schlesinger,1 Adv Lüderitz SC highlighted that the non-disclosure need not be
wilful or mala fide to warrant rescission and that the mere suppression of
material facts is sufficient.
[24] As to the rescission of the ex parte order, r eliance was placed on the
principle in Lodhi 2 Properties Investments CC v Bondev Developments (Pty)
Ltd2 that the order was erroneously granted since the Court, at the time of its
issue, was not made aware of facts that existed, which would have precluded the
granting of the order.
[25] Adv Lüderitz SC essentially identifies what are purportedly three
overarching material non-disclosures. Firstly, t he existence of a bona fide
dispute regarding the matrimonial property regime of the deceased and the
second respondent , specifically, whether they were married in or out of
community of property. Secondly, t he incorrect classification of certain
immovable properties as jointly owned, whereas they were inherited by the
deceased and registered solely in his name. Finally, the fact that a meeting had
already been scheduled between the parties to negotiate a redistribution
agreement, which would have rendered the sale of estate assets unnecessary.
1 Schlesinger v Schlesinger 1979 (4) SA 342 (W).
2 Lodhi 2 Properties Investments CC v Bondev Developments (Pty) Ltd (128/06) [2007] ZASCA 85;
[2007] SCA 85 (RSA); 2007 (6) SA 87 (SCA) (1 June 2007).
[26] The nub of the compla int, in seeking rescission , is that as heirs and
interested parties in the deceased estate, they had a direct and substantial
interest in the relief sought. The failure to serve the application on them
constitutes a procedural irregularity that renders the order erroneously granted.
[27] In the alternative, the common law is invoked as a basis for rescission.
While the requirements for common law rescission generally require a showing
of ‘sufficient cause’ , reliance is placed on the specific ground of fraud or
reckless disregard for the truth.
[28] Adv Lüderitz SC argues that Mrs. Nieman and her legal representatives
acted with a ‘reckless disregard for the full and true facts’ in an effort to obtain a
tactical advantage over the heirs. This conduct, characterised by the withholding
of material facts in ex parte proceedings, he submitted, is tantamount to
constructive fraud.
[29] In the final analysis, the submission is that this Court must frown upon
the order obtained ex parte where material facts were withheld, and that unless
cogent practical reasons exist to preserve such an order, it should be rescinded
to prevent an abuse of the Court’s process.
[30] In a further, distinct argument , Adv Lüderitz SC argues that the order
constitutes a legal nullity. He contends that the order purported to confer powers
of administration and sale upon an Interim Executrix in a manner that usurped
the statutory functions of the Master of the High Court. Relying on the principle
that a judge has no authority to effect appointments or confer powers reserved
for the Master by the Administration of Estates Act 66 of 1965, he argued that
the Court lacked the jurisdiction to grant such relief. Consequently, so the
submission goes, the order is void ab initio and must be set aside as a nullity.
[31] In expounding o n the aforesaid submission, Adv Lüderitz SC argued , in
particular, that the Master’s explicit consent to sell the immovable properties
was required, and the Master declined on the basis that the court order only
clothed Mrs. Nieman with limited interim powers. The Master declined because
s 47 of the Administration of Estates Act required the heirs to consent.
[32] It was further argued that selling an ‘undivided half -share’ of a farm is
commercially nonsensical in that no independent third party would bid a
market-related price for a half -share that entails co -ownership with a surviving
spouse. This mechanism, it was argued, is designed to allow Mrs. Nieman to
acquire the estate’s share at a depressed value.
Submissions on behalf of Mr. Olivier
[33] Adv Pistor SC for the now appointed substantive Executor, Mr Olivier,
aligned himself with the aforesaid sentiments in seeking the rescission of the ex
parte order. In furtherance of the submi ssions of Adv Lüderitz SC, it was
submitted that Mrs. Nieman approached the Court ex parte and surreptitiously,
without giving notice to the Master or the beneficiaries of the deceased estate,
despite the order materially affecting their rights. Mrs. Nieman, he submits, was
not procedurally entitled to the order , and had the Court been aware of the
failure to join numerous affected parties, the relief would not have been granted.
[34] Adv Pistor SC further expounded that the order was erroneously granted
because of, inter alia, the failure by Mrs. Nieman to disclose that her
appointment as Interim Executrix was expressly limited to letting, not selling,
immovable property. Furthermore, Mrs. Nieman misrepresented that the Master
had appointed her under s 14 of the Administration of Estates Act with the
authority to conclude sale agreements. It was further pointed out that Mrs.
Nieman failed to properly explain the nature of the imminent litigation under
case number UM228/2022, where the appointment of the substantive Executor
was to be determined.
[35] Under the common law, Adv Pistor SC argued that rescission was
justified because, whilst the default was not wilful , it was occasioned by Mrs.
Nieman’s deliberate failure to serve the application on Mr. Olivier , or the
Master. As to the requirement of a bona fide defence, it was argued that Mr
Olivier has a strong prospect of success on the merits.
[36] Adv Pistor SC under this rubric, weaves Mrs. Nieman’s attempt to secure
a Court order dictating the sale of estate property , as constituting an
impermissible usurpation of the Master’s statutory discretion under s 47 of the
Administration of Estates A ct, as a basis for rescission under the common law .
He emphasizes that where beneficiaries cannot agree on the manner and
conditions of a sale, the Master, not the Court, is the statutorily appointed
functionary to determine those conditions.
[37] Adv Pistor SC therefore concludes that the ex parte order stands to be
rescinded either as a procedural nullity under Rule 42(1)(a) or based on
sufficient cause under the common law. In emphasizing the failure to observe
the utmost good faith (uberrima fides) in ex parte proceedings as a fatal ground
justifying rescission, he urged this Court to mark its profound disapproval by
ordering the applicant to pay costs in her personal capacity on scale C.
The applicable legal principles
Rule 42(1)(a) and Section 47 of the Administration of Estates Act
[38] Rule 42(1)(a) empowers the Court to rescind an order erroneously sought
or granted in the absence of any party affected thereby. It is trite that an order is
‘erroneously granted’ if there was a procedural irregularity or if the Judge was
unaware of facts that, if known, would have prevented the order.
[39] The administration of deceased estates is strictly regulated by the
Administration of Estates Act 66 of 1965. Section 47 expressly dictates the
specific manner in which an executor is legally permitted to sell property
belonging to a deceased estate. It requires that an executor shall sell property in
the manner and subject to the conditions which the heirs approve in writing.
[40] The Act provides for deadlocks, in situations where the heirs are unable
to agree on the manner and conditions of the sale, by providing that the executor
shall sell the property in such manner and subject to such conditions as the
Master may approve.
[41] This statutory scheme firmly places the authority to resolve disputes
regarding the sale of estate property squarely in the hands of the Master, and not
the High Court as a court of first instance.
[42] In M.K N.O v J.H.P .T and Others 3 the applicant sought the authority of
the High Court to, inter alia, enable her as the executor to sell the immovable
property, subject to s 47 and any other relevant provision of the Administration
of Estates Act; to terminate the joint ownership of the property, subject to
conditions determined by the court, including the manner in which the property
was to be sold and further providing for the respondent to have the right of first
refusal; and further subject to the conditions imposed by the Master.
3 M.K N.O v J.H.P .T and Others [2025] ZAGPPHC 555.
[43] Bam J had to decide whether, under s 47 of the Administration of Estates
Act, the court could grant the relief sought by the applicant. The court dealt with
the issue as follows:
‘24. Section 47 deals with Sales by the Executor, and it reads:
‘Unless it is contrary to the will of the deceased, an executor shall sell property (other
than property of a class ordinarily sold through a stock -broker or a bill of exchange or
property sold in the ordinary course of any business or undertaking carried on by the
executor) in the manner and subject to the conditions which the heirs who have an
interest therein approve in writing: Provided that-
(a) in the case where an absentee, a minor, or a person under curatorship is heir to the
property; or
(b) If the said heirs are unable to agree on the manner and conditions of the sale, the
executor shall sell the property in such manner and subject to such conditions as the
Master may approve.’
25. The applicant asks this court to authorize the termination of joint ownership in the
property, subject to the court placing various conditions, which include the manner in
which the property is to be realized. At this point, the court has no information on
whether the executrix had identified or even consulted any heirs; whether there are any
minor children or persons represented by a curator who have an interest in the property;
what their views are, whether there were any disagreement between the heir s, and the
nature of those disagreements. Certainly, the applicant is silent on these critical issues.
The applicant does not claim to have ever approached the Master for consent but
contents herself with inviting the Master to issue those conditions in line with Section
47.
26. But there is something more perplexing about the applicant’s decision to come to
court directly, without approaching the Master, it is that the court is asked to step into
the role of an administrator by setting conditions with no relevant information
the role of an administrator by setting conditions with no relevant information
whatsoever. In Bester N.O v Master of the High Court and Another , a matter concerned
with an administrative review of the Master’s failure to issue their consent, in
circumstances where the applicant had sought such consent prior to coming to court,
the court after surveying relevant authorities, was of the view that it was not in as good
a position as the Master would be to make the decision on the manner and conditions of
sale. It noted:
“[48] [E]ven in a case where there is a single heir, as opposed to a number of heirs, if
the single heir did not consent to the manner and conditions proposed for the sale by the
executor, the executor would be required to approach the Master for approval.”
27. It must be noted, as the provision of Section 47 make plain, that the executor is
vested with the authority to sell the property. The court made the point in Jackson v
Stanford Cawood and Others (3945/2016) [2017] ZALMPPHC 20 (18 August 2017),
paragraph 29, that Section 47 relates to the manner and conditions of sale of estate
property by the executor, and not to the decision as to whether or not to sell.
28.It seems to me that stepping into the Master’s shoes and setting the conditions and
the manner in which the sale is to be carried out, even where, as in the present case, the
applicant still intends to seek the Master’s consent, is not what was intended by the
lawmakers. Besides being a recipe for chaos, in the event the Master were to issue
conditions contrary to those issued by this court after considering the circumstances of
this case, I am persuaded that, acceding to the applicant’s request woul d offend the
separation of powers rule. The application must thus be refused.’
[44] I align myself with the reasoning in M.K N.O v J.H.P .T and Others, that
an executor is absolutely obliged to seek the Master’s directive approval when
co-owners or heirs cannot agree on the termination of joint ownership. This fits
snugly with the de facto position that the statutory power to do so is vested in
the Master and not in the court. The record reflects that the Master specifically
the Master and not in the court. The record reflects that the Master specifically
refused consent because the dispute between the heirs regarding the method of
sale, that is auction of a half-share versus a whole, remained unresolved.
[45] In the present matter, Mrs. Nieman clearly sought to completely
circumvent the peremptory provisions of s 47 by obtaining an ex parte court
order. The ineluctable deduction is that Mrs . Nieman, in approaching the court
on an ex parte basis, deprived the heirs of their fundamental statutory right to
opine on the conditions of the sale.
[46] In using the Court as a conduit, Mrs . Nieman succeeded in usurping the
Master’s statutory prerogative to determine the manner of sale. The ex parte
application was therefore materially defective for failing to join the heirs in
circumstances where Mrs . Nieman was acutely aware of the acrimony
surrounding the Estate.
[47] Adv Peter SC’s application of Grotius and common law co -ownership
principles, though well-reasoned, is distinguishable from the present matter. The
common law right to actio communi dividundo cannot override the specific,
peremptory statutory procedures ordained by the Administration of Estates Act.
[48] Notably, in Robson v Theron, the Appellate Division stated that the actio
communi dividundo governs the termination of co -ownership, and that while a
court has a wide discretion, it will rarely order a method of partition that is
manifestly prejudicial to one party.
[49] By structuring the auction to exclude third -party competition effectively,
the applicant ensures she is the only logical buyer. Even as Interim Executor,
Mrs. Nieman occupied a fiduciary position and had to act in the best interests of
all the beneficiaries.
[50] The sale structure proposed by Mrs . Nieman, which has the outcome of
depressing the value of the estate’s assets to her own personal benefit, places her
in a position of conflict. This Court cannot countenance an order that facilitates
such a result under the guise of ‘estate administration’.
[51] The arguments advanced by Adv Lüderitz SC and Adv Pistor SC that the
order is a nullity due to non -compliance with s 47 are legally sound. This Court
cannot invoke its inherent jurisdiction to disregard statutory preconditions for
the sale of estate assets. The Master has been vested with supervisory powers by
the Legislature to sanction sales where heirs disagree. When the Master refused
to accede to her request, Mrs . Nieman’s recourse should probably have been to
review the Master’s decision, and not to seek the acquiescence of the Court on
an ex parte basis.
Conclusion
[52] As the Supreme Court of Appeal confirmed in Menqa and Another v
Markom and Others4, albeit in a different context, that actions taken pursuant to
a legally invalid judicial process are themselves susceptible to being set aside.
The clandestine nature of the ex parte application constitutes a serious abuse of
court processes.
[53] It is fundamentally unacceptable for a litigant to approach a court ex parte
to resolve a highly contested estate dispute where the identities and opposition
of the other parties are well known.
[54] In the final analysis, I am satisfied that the ex parte order was erroneously
sought and granted. The order was granted in the absence of the respondents, in
4 Menqa and Another v Markom and Others 2008 (2) SA 120 (SCA) at para 45.
circumstances where the Master’s statutory approval was absent, and based on a
method of sale that is prejudicial to the estate heirs.
Costs
[55] The submissions that a punitive cost order is warranted to protect the
estate resonate with this Court. The deceased estate should not be burdened with
the costs of defending a procedurally unfair application brought by Mrs.
Nieman to secure a personal commercial advantage.
[56] Mrs. Nieman should bear the costs of these proceedings in her personal
capacity on scale C to reflect this Court’s displeasure.
Order
[57] In the result, the following order is made:
1. The order granted ex parte on 27 February 2024 is hereby
rescinded and set aside.
2. The applicant, Anna Martha Nieman, is ordered to pay the costs of
the applications under case numbers 805/2024 and 1577/2024 in her
personal capacity on scale C, including the costs consequent upon the
employment of two counsel where so employed.
___________________
A H PETERSEN
ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
Appearances
For the Applicants: Adv K.W. Lüderitz SC with Adv. K. Fitzroy
Instructed by: Japie Van Zyl Attorneys
c/o CJP Oelofse Attorneys
Mahikeng
For the First and
Second Respondents: Adv. John Peter SC
Instructed by: Loubser-Ellis and Associates Inc.
Mmabatho
For the Sixth
Respondent: Adv. J F Pistor SC with Adv M G Hitge
Instructed by: De Kock & Duffey Attorneys
c/o Van Rooyen Tlhapi Wessels Inc.
Mahikeng