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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case Number: 8468/2022
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES / NO
18 February 2026
In the matter between:
Z[…] M[…] First Applicant
(Identity Number: 7[…] )
N[…] B[…] Second Applicant
(Identity Number: 8[…] )
L[…] C[…] M[…] Third Applicant
(Identity Number: 7[…] )
I[…] P[…] M[…] Fourth Applicant
(Identity Number: 8[…] )
P[…] S[…] Z[…] Fifth Applicant
(Identity Number: 8[…] )
And
C[…] T[…] M[...] N.O First Respondent
(Identity Number: 7[…] )
THE MASTER OF THE HIGH COURT, Second Respondent
JOHANNESBURG
MINISTER OF JUSTICE AND CONSTITUTIONAL Third Respondent
DEVELOPMENT
JUDGMENT
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MALINDI, J
Introduction
[1] The first applicant is Z […] M[…] , an adult female person, who resides in
Johannesburg, Sandown.
[2] The second applicant is N […] B[…] , an adult female person, employed in
Johannesburg, Edenvale. She is the mother of M […] T[…] B[… ], a minor
male child born on 11 September 2011, a child she shared with the deceased,
and on whose behalf, she is a co-applicant herein.
[3] The third applicant is L[ …] C[…] M[…] , an adult female person, who is
employed in Johannesburg, Sandown. She is the mother to T […] K[…] P[…]
M[…] , a minor female child born on 22 October 2009, a child she shared with
the deceased, and on whose behalf, she is a co-applicant herein.
[4] The fourth applicant is I […] P[…] M[…] , an adult female person, employed in
Johannesburg, Randburg. She is the mother of O […] N[…] M[… ], a minor
female child born on 18 May 2010. She shared the child with the deceased,
and on whose behalf, she is a co-applicant herein.
[5] The fifth applicant is P […] S[…] Z[…] , an adult female person who resides in
the province of KwaZulu Natal, in Amanzimtoti. She is the mother to O […]
M[…] Z[…] , a minor female child born on 9 August 2016, a child she shared
with the deceased, and on whose behalf, she is a co-applicant herein.
[6] The first respondent is Carol Thandi M[...], an adult female person currently
residing in Mondeor, Johannesburg. She is being sued in her capacity as the
appointed executor of the estate of the late B[...] M[...] M[...] (the deceased),
who died on 24 June 2018. The first respondent holds letters of authority,
issued by the Master of the High Court, Johannesburg, appointing her as
executor of the deceased estate.
[7] The second respondent is the Master of the High Court, Johannesburg, and
no relief is sought against him/her, except as would be required by law if the
order prayed for is granted.
[8] The third respondent is the Minister of Justice & Constitutional Development,
[8] The third respondent is the Minister of Justice & Constitutional Development,
against whom no relief is sought.
Purpose of the Application
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[9] The applicants aver that they have minor children, who have an interest in this
matter, and on whose behalf the first applicant deposes to the founding
affidavit, with confirmatory affidavits by the other four co- applicants. They
represent the minor children, as the minor children’s legal guardians. The first
applicant is the mother of G […] K[… ] M[…] , a minor child born on 31 March
2006, a child she shares with B[...] M[...] M[...] (the deceased), who passed
away on 24 June 2018.
Background
[10] The first respondent and the deceased were married to each other, on or
about, 5 December 1992 in Dobsonville, Johannesburg. They were married
in community of property, and three children were born of the marriage,
namely, Obakeng Tiro M[...], born on 14 May 1989, M […] T[…] M[...], born on
28 October 1994, and M[…] M[...], a female born on 15 December 1997.
[11] The deceased died intestate and therefore his estate is to be distributed in
terms of section 1 of the Intestate Succession Act 81 of 1987.
[12] Although the first respondent and the deceased were married as aforesaid,
the two had been separated for a period of 14 years preceding the death of
the deceased. During those 14 years of separation, the deceased was
involved in two other customary marriages with Ms S […] Z[…] and Ms I […]
M[…] .
[13] From these two customary marriages, two more children were born, being
O[…] M[…] Z[…] and O[…] N[…] M[…] . The deceased and the first applicant
had a relationship from which two more children were born, being K […] L[...]
M[…] , born on 28 April 2002, and G [… ] K[… ] M[…] , born on 31 March 2006.
In total, the deceased had 11 children with several other women, of which the
first respondent was aware of.
Applicants’ Contentions
[14] The applicants contend that:
14.1. When the deceased died, the first respondent was tasked with
reporting the death and ultimately the estate of the deceased to the
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Master’s office in Johannesburg. However, the first respondent omitted
certain information when applying for the letter of executorship in that
she only reported her three children and left out the other eight children
of the deceased.
14.2. The first respondent failed to report all the assets, movable and
immovable, of the deceased on the inventory form, knowing that the
deceased had more than just one immovable property.
14.3. The first respondent has not performed her duties as executor
diligently, as she has failed to collect or take into custody, or under her
control, all the property, books, and documents in the estate. The
applicants allege that all the first respondent has done, is sell off the
assets, which were easily accessible to her, and squandered the
proceeds thereof, in contravention of Act 81 of 1987, and Act 66 of
1965, being the Administration of Deceased Estates Act.
14.4. The first respondent should be removed from her role as the executor
of the estate of the late B[...] M[...] M[...], as she has failed to discharge
her duties and functions as required.
14.5. The first applicant states that, to her knowledge, she is aware of one
estate bank account referred to in paragraph 31 of the founding
affidavit, which is the bank account into which a portion of the proceeds
from the sale of the property situated in Bassonia, were received. She
believes that the first respondent keeps opening various bank accounts
in the name of the estate, using the letter of executorship in order to
conceal estate assets.
14.6. A section 29 notice to creditors was never published in either a local
newspaper of the district of where the deceased was resident, or in the
Government Gazette. Therefore, since no creditors’ claims have been
registered, it is difficult to determine the solvency of the estate in terms
of section 34 of the Act.
14.7. The J85 form states that the liquidation and distribution
14.7. The J85 form states that the liquidation and distribution
account was due on or before 12 January 2019, yet to date no
liquidation and distribution has been lodged, and no communication to
the Master of the High Court has been made with regards to a possible
extension.
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[15] The applicants seek the removal of the first respondent as executor of the
late estate, relying on section 54(1)(a)(i) and section 54(1)(a)(v) to have the
first respondent removed as the executor of the estate. The amended notice
of motion, dated 6 February 2023, reads as follows:
15.1. That the first respondent be, and is hereby removed as the executor,
as per section 54 of the Administration of Estates Act 66 of 1965, in the
late estate of B[...] M[...] M[...];
15.2. That the first respondent account for every action and money that she
has taken in an effort to ‘wind up’ the estate;
15.3. Should it be found that the first respondent misappropriated any funds,
or misused funds of the estate, such amount misappropriated, or
misused, be forfeited from the first respondent’s half share, and/or
child’s share in the estate;
15.4. That the first respondent is to hand over all documents and books
and assets belonging to the estate to the newly appointed executor;
15.5. That the applicants be allowed, and authorised to nominate two
executors amongst themselves to administer the estate of B[...] M[...]
M[...];
15.6. The first respondent is ordered to pay the costs of this application on
attorney and on client scale;
15.7. Further and/or alternative relief as the honourable Court deems fit.
[16] The application is opposed by the first respondent.
[17] The existence of the applicants’ children is not disputed, including that they
were not listed as deceased’s descendants with the Master of the High Court
by the first respondent.
[18] The respondent contends that section 53 of Act 66 of 1965, that is the
Administration of Estates Act, has been repealed and cannot be relied upon.
Conclusion
[19] In conclusion, I am satisfied that it, being common cause that the applicants’
children are not listed as the deceased’s children, and that the first
respondent has not executed her duties and function, as executor of the
respondent has not executed her duties and function, as executor of the
deceased estate, she stands to be removed as prayed for.
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[20] I therefore make the following order in terms of the draft order provided by
the applicants:
1. The first respondent in her capacity of the executor in the estate
of B[...] M[...] M[...], is removed, in terms of section 54 of the
Administration of Estates Act 66 of 1965.
2. The first respondent in her capacity as the executor, is
ordered to account for all monies and assets, and/or books that she
took into her possession for the duration when she acted as the
executor, and transfer all accounts to a new executor, who will be
appointed by the Master of the High Court, within five days of the
new executor being appointed.
3. If it is found, after the accounting, that the first respondent
misappropriated money or assets of the estate, the first
respondent’s share in the estate, by virtue of marriage in community
of property to the deceased, will be forfeited in full or partially to the
extent necessary in order to make good of all the money or assets
so misappropriated.
4. The applicants are allowed and authorised to nominate two
executors amongst themselves to administer the estate of B[...]
M[...] M[...].
5. The first respondent is ordered to pay the costs of this application,
including the costs of counsel, where employed, on Scale B.
_______________________________
G MALINDI
Judge of the High Court of South Africa,
Gauteng Local Division, Johannesburg
Appearances
For the Applicant: Adv MB Mhango
Instructed by: Bazuka and Company Inc
For the 1st Respondent: Adv P Mafu
Instructed by: SW Nkala Attorneys
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For the 2nd and 3rd Notice to abide filed
Respondents:
Date of hearing: 11 March 2024
Date of judgment: 18 February 2026