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
WESTERN CAPE DIVISION, CAPE TOWN
REPORTABLE
Case no: A106/25
Court a quo case no: 13157/2024
In the matter between:
ECKERT BRAND Appellant
and
D[...] B[...] First Respondent
THE MASTER OF THE HIGH COURT, CAPE TOWN Second Respondent
Coram: Le Grange J, Lekhuleni J et Kantor AJ
Heard: 26 March 2026
Judgment: 12 May 2026
Summary: Appeal against removal of an executor in terms of section
54(1)(a)(v) of the Administration of Estates Act 66 of 1965.
ORDER
1. The appellant’s application to adduce further evidence on appeal is granted, with costs to be costs in
the appeal.
2. The first respondent’s application to adduce further evidence on appeal is dismissed, with costs to be
costs in the appeal.
3. The appeal is upheld with costs, including the costs of the application for leave to appeal to this court
and to the Supreme Court of Appeal, with scale C applying to the costs in this court.
4. The order of the court a quo is varied to be as follows: ‘The application is dismissed with costs, with
scale C applying.’
JUDGMENT
Handed down by email to the parties on 12 May 2026
Judgment handed down electronically by circulation to the parties’ legal
representatives by email and released to SAFLII.
KANTOR, AJ:
1. After I prepared and distributed this judgment, my colleague, Justice Lekhuleni,
prepared a judgment which I have had the pleasure of reading and considering.
We both consider that the appeal is against the exercise of a discretion in the
strict sense by the court a quo which requires (relevant to this matter)
misdirection on fact and/or law for appellate intervention. Wh at I consider to be
a core and material difference between our approaches in this matter which
contains myriad disputes of fact, is as follows: in my view, in order to make the
determination under section 54(1)(a)(v) of the Administration of Estates Act 66
of 1965 (“the Act”) which is the core issue in this matter , the court must first
determine the material before it on which that determination is to be considered
and made. Accordingly, I believe that one must undertake the exercise of
considering and resolving, through the prism of Plascon-Evans (considered in
detail below), the myriad disputes in the matter. This is necessary to determine
the material grounds which have in fact been established and which are before
the court on which the section 54(1)(a)(v) determination is to be made. Once
that is done and the evidence and material on which the court is to make the
determination has been identified, the court ha s the material on which the
section 54(1)(a)(v) determination is to be made. As appears from what is
contained in this judgment and the reasons articulated therein in some depth, I
considered the evidence through the prism of Plascon Evans and came to the
conclusion that each of the material grounds on which the first respondent
relied in her papers were not established and, as a result, there was no basis
established for the removal of the appellant as executor.
2. The appellant was nominated as executor in the will of M[...] B[...] (‘the
deceased’) executed on 19 April 2022 (‘the Will’) and was appointed as such in
respect of the estate of the deceased (‘the Estate’) by the second respondent
(‘the Master’) who issued letters of executorship in this regard on 23 May 2023.
3. The first respondent successfully applied to the court a quo for the removal of
the appellant from his office as executor, as well as other relief ancillary thereto
and in relation to his remuneration in that capacity. The decision of the court a
quo is reported as D.B. v Brand and Another [2025] 1 All SA 102 (WCC) . The
appellant appeals that decision to this court, with the leave of the Supreme
Court of Appeal, the court a quo having refused leave to appeal.
4. The Deceased and the first respondent were married in 2006. In 2014 the first
respondent instituted divorce proceedings, which were acrimonious. The
deceased was represented by the appellant. The deceased opposed the first
respondent’s claims vigorously and he claimed forfeiture of matrimonial benefits
against the first respondent. In the divorce proceedings the marital regime was
in dispute. On 2 December 2014, this was determined by this court, as sought
by the first respondent, to be in community of property. The deceased was
refused leave to appeal, including by the Supreme Court of Appeal. When the
Deceased died on 29 January 2023, he and the first respondent were still
married.
5. In consequence of the Deceased’s death pre -divorce, with the marriage being
in community of property, the legal position is that the whole joint estate falls
under the administration of the executor appointed to the estate of the
Deceased. The “… person to liquidate the joint estate is the executor of the first
dying, acting in consultation with the survivor, and that the survivor was entitled
to one half of the nett residue of the estate after it was liquidated and the debts
of the joint estate were paid. ” (Hare v Estate Hare 1961 (4) SA 42 (W) at 45H,
with reference to Van Wyk v Joubert 1947 (1) SA 285 (T) at 290). The duty of
the executor of the joint estate is to discharge all its liabilities before distributing
it. Half of the nett balance of the joint estate vests in the surviving spouse:
Costain v Godden 1960 (4) SA 458 (SR) at 461E, referred to with approval in
Hitzeroth v Brooks 1965 (3) SA 444 (A) at 452C-E.
6. The Deceased executed the Will on 19 April 2022 in which he acknowledged
the first respondent’s half share of the joint estate and that she was entitled to
the value thereof. In clause 8 thereof, his negative feelings towards the first
respondent were made clear to the effect that she was not to inherit anything
from him and that the executor should defend any claims which she may assert
against his half of the Estate, with his reasons articulated in somewhat
unrestrained terms. This clause 8, which the court a quo identified as being
‘vile’ and described as ‘ unpalatable’ in paragraph 12 of the Judgment , reads as
follows:
“Should at the time of my death I still be married to my still wife D[...] T[...], I herewith direct that
she is not to benefit from my will at all and she is in total disinherited. The reasons for
disinheriting her are inter alia:
8.1 That she, when she announced her divorce from me in writing undertook to, despite the
divorce, tend to me in my old age, an undertaking she has shamefully neglected;
8.2 That she during the divorce -proceedings wrongly and maliciously made false accusation
of rape and assault against me, which she was never able to substantiate;
8.3 That she, through her greed, refused to accept settlement offers made in the divorce -
proceedings, that were way beyond what she was in fact entitled to and protracted the
proceedings to such an extent that she stole the childhood and youth of our minor sons
and 10% of my life and destroyed my wealth and our children’s inheritance.
I direct my executor to, should the said D[...] T[...] put in a claim of whatsoever nature against
either my South African or my German Assets, resist those claims with all means necessary and
to all extents impossible. My executor will be entitled to his reasonable fees for work related to
the opposition of any claims as mentioned above.”
the opposition of any claims as mentioned above.”
7. In clause 2 of the Will the appellant was nominated as the deceased’s executor.
8. As mentioned, the Deceased died on 29 January 2023 and the appellant was
appointed executor to the Estate of the Deceased by the Master on 23 May
2023.
9. Before the court a quo, the first respondent sought the removal of the appellant
from his position as the executor of the Estate.
10. Removal of an executor by the court is governed by section 54(1) 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 reason the Court is satisfied that it is undesirable
that he should act as executor of the estate concerned; …
11. Relevant for the purposes of this appeal is section 54(1)(a)(v), the question
being whether a court is satisfied for any other reason besides those listed
above it that it is undesirable that an executor should act as such.
12. The first respondent brought an application in terms of section 54(1)(a)(v) of the
Act for the removal of the a ppellant from the office of executor of the Estate.
Section 54(1)(a)(ii) was later also relied upon, but it did not play a material role
in the matter or on this appeal and will not be considered further . Th at
application succeeded before the court a quo. The Judgment and the Order of
the court a quo will be referred to as the ‘Judgment’ and the ‘Order’.
The Notice of Appeal
13. For the sake of completeness, it was averred by the first respondent that the
Notice of Appeal was defective because it did not articulate the grounds of
appeal. Uniform rule 49(4) provides:
Every notice of appeal and cross-appeal shall state –
(a) what part of the judgment or order is appealed against; and
(b) the particular respect in which the variation of the judgment or order is sought.
14. The Notice of Appeal complies with this sub-rule which is what is required: see
the analysis in Wiese and Another v Absa Bank Limited [2017] 2 All SA 322
(WCC) at paragraphs 3 to 17. The first respondent did not press this point at all
in oral argument. Nothing further need be said on this aspect.
Evidence on appeal
15. Both the appellant and the first respondent applied for further evidence to be
admitted on appeal. The appellant’s application was initially opposed by the first
respondent, but on 17 March 2026 (the hearing was on 26 March 2026) the
opposition was withdrawn. On the same day, the first respondent launched her
application, which the appellant opposed.
16. These applications were dealt with at the outset of the hearing. The appellant’s
application was granted, with costs to be costs in the appeal. The first
respondent’s application was refused, with costs to be costs in the appeal. The
court indicated that reasons would be included in this judgment. What follows,
are the reasons for that order.
Legal principles
17. Section 19(b) of the Superior Courts Act 10 of 2013 (‘the SC Act’) provides that:
“The Supreme Court of Appeal or a Division exercising appeal jurisdiction may, in addition to
any power as may specifically be provided for in any other law – … (b) receive further
evidence;”.
18. The courts are reluctant to admit new evidence on appeal , exercise the
discretion to do so sparingly and will only do so in special circumstances . This
is because of the interest in the finality of litigation. The evidence must be
weighty and materially relevant to the matter, its absence before the court a quo
should not be due to the fault of the applicant for its admission, there must be a
reasonably sufficient explanation why it was not led at trial and there must be
no prejudice to the other parties : see Afribusiness NPC v Minister of Finance
2021 (1) SA 325 (SCA) at paragraph 11 and, in general , Erasmus Superior
Court Practice Vol 1 at D140-145. In Prophet v NDPP 2007 (6) SA 169 CC at
185E it, was held that new evidence may only be admitted on appeal “… in
exceptional circumstances where the evidence sought to be submitted is
“weighty, material and to be believed” and there is a reasonable explanation for
the late filing of the evidence.”
The appellant’s application
19. The appellant’s application is simple. The first respondent had commenced
litigation against the deceased’s son and his wife in Germany, the material
relevance of which will be dealt with in some detail later in this judgment.
Subsequent to the Judgment (of the court a quo ), the German appeal court
found against the first respondent. The result of the German appeal is
materially relevant, as appears from the consideration of that issue below. The
first respondent relied, including in reply, on the ongoing nature of these
proceedings in Germany which had by then not yet been dismissed on appeal.
The absence of this evidence before the court a quo is self -evidently not the
fault of the appellant because it was not yet in existence.
20. This is a good example of when new evidence should be admitted on appeal
and it was no surprise that the first respondent withdrew her opposition thereto.
Further, it emerged from the papers that the first respondent had applied to the
German Constitutional Court in respect of the appeal decision, which went
against her, and that was dismissed. The first respondent’s German litigation
was therefore finally adjudicated on and dismissed. The court granted the
appellant’s application for further evidence to be admitted on appeal.
The first respondent’s application
21. While the appellant’s application was a quintessential example of when
evidence should be admitted on appeal, the first respondent’s application was a
typical example of when it should not be. . Her application was for the
admission on appeal of evidence, in the form of her 21 page founding affidavit
in her application and the annexures thereto, which includes portions of
paragraphs of affidavits and annexures from the application under case number
2025–177657 of this court which is pending and is set down for hearing on 18
August 2026 (‘the 177657 Application’). Aside from, and as appears from, the
reasons below, this evidence would also introduce into the matter numerous
further disputes of facts.
22. The court refused the first respondent’s application for further evidence to be
admitted on appeal, with reasons to be provided in this judgment. The main
aspects of the first respondent’s 21 page affidavit motivating her application,
and which she sought to be admitted as further evidence, are considered
below.
23. The first respondent avers that the appellant made ‘ perjurious allegations’ as to
the German litigation having reached the stage of final judgment in his
answering affidavit filed on 29 January 2026 in the 177657 Application because
‘a constitutional complaint’ had been filed on 21 November 2025 with the
German Constitutional Court, which was pending until 13 March 2026 when it
was dismissed; and that this “ …should therefore disqualify him from continuing
to act as executor. ” This accusation is watered down somewhat a paragraph
later in the affidavit in which the first respondent stated that the appellant “ … at
all times keeps himself informed as to progress made in German litigation and
that, therefore, he would been fully aware of the launching of my constitutional
appeal.” What stands out from this is that the first respondent does not say that
the appellant was informed by her or anyone else or was served with the
papers. Her case is based on inference from which she makes her serious
accusations of perju ry. On her own version , there is no evidence that the
appellant knew about what had been submitted to the German Constitutional
Court. In his opposing affidavit, the appellant explained that by 29 January 2026
he did not know about the approach to the German Constitutional Court and
that no constitutional point had been raised before. In my view, this aspect does
not satisfy the legal test for the admission of new evidence on appeal.
24. The next point raised by the first respondent was that the effect of the result in
the German litigation is that H[...] B[...] (‘H[...]’, the deceased’s son from a
previous marriage) is the owner of the applicable properties and that the
appellant therefore had nothing to do with those properties which, she argues,
supports his removal because those properties do not form part of the estate
and the appellant caused funds of the estate to be squandered in the litigation
in Germany. The problem with this thesis is that the appellant’s actions,
considered in some detail below, were all geared towards bringing the litigation
which he regarded as having no prospect of success to an end to reduce joint
estate funds being spent thereon (anything the first respondent spen t on that
litigation reduces the extent of the Estate; further she had not undertaken that
any such costs would be paid from her half share of the Estate ). In my view,
this aspect does not satisfy the legal test for the admission of new evidence on
appeal.
25. The next point concern ed the observations, in the German appeal judgment
and by the court a quo , of the close temporal link between the marital strife
between the Deceased and the first respondent and the transfer of the
properties which suggests a lack of good faith. The obvious problem with this is
that the observations of th ose courts relate to the Deceased, not the appellant.
The court a quo stated that the appellant was defending the indefensible
(paragraph 126 of the Judgment). The obvious problem with this is that the
appellant was proved right in his view that the first respondent’s German
litigation would fail and was a wasteful exercise , including in respect of costs
(the first respondent was ordered to pay the costs of the German litigation) –
the indefensible proved to be defensible in the German litigation as the
appellant had contended : see National Scrap Metal v Murray & Roberts
(809/2011) [2012] ZASCA 47; 2012 (5) SA 300 (SCA) at paragraph 22 quoted
below, including that “… the path of the law is strewn with examples of open and shut
cases which, somehow, were not; of unanswerable charges which, in the event, were
completely answered.” In my view, this aspect does not satisfy the legal test for the
admission of new evidence on appeal.
26. The next aspect was the averment that the dismissal of the first respondent’s
German appeal does not mean that the application of the principles of South
African law by the court a quo, which are different to German law, should be set
aside on appeal. This compares apples with pears. The German law in question
related to the onus to be applied in the German litigation. The issue between
the appellant and the first respondent in respect thereof was the continuation of
the German litigation in which that German law applied. South African law was
irrelevant to that issue. It is meaningless to postulate that applying the different
onus applicable in South African law may have had a different result because
what was in issue was the result of a German case. In my view, this aspect
does not satisfy the legal test for the admission of new evidence on appeal.
27. The court had also to consider the averment that the first respondent’s and the
deceased’s joint ownership had not been registered over properties in
Germany. The reason for that is obvious: they did not know that they were
married in community of property (this is addressed in some detail below).
Similarly, it is my view that this aspect as well, does not satisfy the legal test for
the admission of new evidence on appeal.
28. Furthermore, the court had to determine the argument that the appellant
impermissibly obtained an interdict against the first respondent not to deal with
Estate property, including the six German units registered in her name. The
obvious problem with this is that the obtaining of the interdict is raised in the
papers and can be considered on the papers as they stand. The appellant
recorded in his affidavit that he has not yet applied to be recognised as the
executor in Germany because of a shortage of funds in the joint estate. I might
add that whether or not he d oes so, does not entitle the first respondent to deal
with those properties because they fall into the joint estate (the authority as to
the effect of the death of a spouse married in community of property is dealt
with below). The first respondent also contended that she and only she had, to
the exclusion of the Estate, any interest in the six German units registered in
her name. In my view, this is unfounded: first, the reason for the entry in the
register (termed a caveat by Mr Barnard, who appeared for the first respondent,
which seemed apt) was pertinently recorded in the German judgment to be to
eliminate a bona fide acquisition. There is no suggestion that the absence
thereof would convert (between the spouses in community of property) what is
a joint estate property to one which is somehow owned separately in another
estate by the first respondent. I do not know the German law, but I highly doubt
that that is the case, and, further, anyone relying thereon would need to prove it
as a matter of fact. What matters for present purposes is that the first
respondent’s assertion does not in fact appear from the German judgment
relied on by the first respondent. Second, this point was not relied upon in the
papers. The issue in this regard was taken up in paragraphs 119 to 125 of the
founding affidavit and no mention is made therein of this point, the allegation
made therein having been that the appellant had attempted to circumvent
another German judgment of 23 November 2023 relating to his attempt to be
included in the German litigation brought by the first respondent. Third, there
was no suggestion that the appellant was aware of this alleged point of German
law (which I do not consider to have been established and regard as dubious,
as mentioned) and therefore he cannot be criticised on the basis thereof. In my
view, this aspect does not satisfy the legal test for the admission of new
evidence on appeal.
29. The next point was that on 30 June 2017, the deceased guaranteed in writing
that he would reimburse H[...]’s costs of litigation against the first respondent
and that he ceded his claims in writing against the first respondent in respect of
the six apartments in Munich to H[...]. The first respondent avers that the ‘ likely
conclusion’ is that the appellant paid H[...]’s costs from the estate or allowed
them to be paid out of the rentals in Germany. It is also stated that it is ‘ most
unlikely and improbable ’ that the appellant would not have known about these
arrangements and would not have implemented them in favour of H[...]. The
first respondent also avers that the appointment of H[...] as custodian of funds
would have facilitated the set -off and that it is clear why the two critically
important documents made their belated appearance in the 177657 Application,
probably by accident. There are numerous problems with these allegations. The
first is that they are inferences based on alleged likelihoods and probabilities.
Second, these are documents signed by the deceased, not the appellant. Third,
the appellant states in his affidavit that the two documents were not included in
error in the 177657 Application and were not deliberately withheld in the instant
matter. He explains that he provided them in the 177657 Application as the
documents which H[...] used to support his claim to be reimbursed his costs by
the Estate and to persuade the appellant to agree to do so. The appellant
points out that this is not an indication that H[...] has been reimbursed from the
Estate. The appellant confirms that H[...] was not so reimbursed. In the
answering affidavit in this matter, and in the opposing affidavit in the first
respondent’s application to introduce further evidence on appeal, the appellant
explained why he did not and will not accept H[...]’s claim in totality, had
reservations about it and that it will be addressed in the normal course of the
administration of the estate. Fourth, he does not know whether anything was
paid by the Deceased to H[...] while he was alive. As from his appointment as
executor, the appellant records that no payments were made to H[...] from the
Estate. Equally, , this aspect, in my view, does not satisfy the legal test for the
admission of new evidence on appeal.
Legal principles
The removal of an executor in terms of section 54(1)(a)(v) is the exercise
of a discretion; the approach of an appeal court in an appeal against the
exercise of a discretion in this context by a court a quo
30. The Constitutional Court has held that a decision to remove an executor in
terms of section 54(1)(a)(v) (as the court a quo did) amounts to the exercise of
a discretion in the strict sense and will be interfered with on appeal only in
limited circumstances, for example if it is shown that the court a quo did not act
judicially in exercising its discretion, or based the exercise of that discretio n on
a misdirection on the material facts or on wrong principles of law . In these
respects, the Constitutional Court held as follows in Gory v Kolver NO and
Others 2007 (4) SA 97 (CC) at paragraphs 56 and 57:
“[56] In terms of section 54(1)(a)(v) of the Administration of Estates Act 66 of 1965 , an executor
may at any time be removed from his office by the Court if for any reason other than those set
out in the rest of section 54(1)(a), “the Court is satisfied that it is undesirable that he should act
as executor of the estate concerned”. In Die Meester v Meyer en Andere , Margo J (with whom
Davidson J and Franklin J concurred), dealing with the approach to be followed by a court in
exercising its discretion under this section, held as follows:
“Hoe dit ook al sy onder die gemenereg en ingevolge die gewysdes onder die ou Boedelwet,
24 van 1913, is die Hof nou gemagtig kragtens art. 54(1)(a)(v) van die huidige Boedelwet om
’n eksekuteur te verwyder indien dit onwenslik is dat hy as eksekuteur van die betrokke
boedel optree. Die Hof het hier ’n diskresie en myns insiens bly die oorheersende oorweging
die belange van die boedel en van die begunstigdes.” 1
[57] … The discretion vested in the High Court by section 54(1)(a)(v) is a discretion in the strict
sense and an appellate court will ordinarily only interfere with the exercise of that discretion in
limited circumstances; for example if it is shown that the High Court did not act judicially in
exercising its discretion, or based the exercise of that discretion on a misdirection on the material
facts or on wrong principles of law.”
31. Being, as held in Gory, a discretion in the strict sense, the consideration on
appeal of the exercise thereof is governed by the following principles, as held
appeal of the exercise thereof is governed by the following principles, as held
by the Constitutional Court in National Coalition for Gay and Lesbian Equality
and Others v Minister of Home Affairs and Others (CCT10/99) [1999] ZACC 17;
2000 (2) SA 1 (CC) at paragraph 11:
“A court of appeal is not entitled to set aside the decision of a lower court granting or
refusing a postponement in the exercise of its discretion merely because the court of
appeal would itself, on the facts of the matter before the lower court, have come to a
different conclusion; it may interfere only when it appears that the lower court had
not exercised its discretion judicially, or that it had been influenced by wrong
1 The following t ranslation of this passage in the headnote of the reported judgment in Meyer at 2E-F is quoted in footnote 65 of Gory:
“Whatever the position may be [u]nder the common law and according to the authorities under the old Administration of Estates Act, 24
of 1913, the Court is now empowered in terms of section 54(1)(a)(v) of the present Administration of Estates Act, 66 of 1965, to remove an
executor from office if it is undesirable that he should act as executor of the estate concerned. The Court has a discretion and the
predominating consideration remains the interests of the estate and of the beneficiaries.”
principles or a misdirection on the facts, or that it had reached a decision which in the
result could not reasonably have been made by a court properly directing itself to all
the relevant facts and principles.”
32. The exercise of a discretion can therefore be set aside on appeal, but not on
the basis per se that the appeal court disagrees with the decision, and only in
certain circumstances, such as in the case of material misdirection on the facts
or in law. As held in South African Broadcasting Corp Ltd v National Director of
Public Prosecutions and Others 2007 (1) SA 523 (CC) at paragraph 41:
“Therefore the question for this Court is not whether we would have permitted radio and
television broadcasting of the appeal in the circumstances of this case, but whether the
Supreme Court of Appeal did not act judicially in exercising its section 173 discretion, or based
the exercise of that discretion on wrong principles of law, or a misdirection on the material
facts.”
33. In regard to this aspect in general, see also Trencon Construction (Pty) Limited
v Industrial Development Corporation of South Africa Limited and Another 2015
(5) SA 245 (CC) at paragraphs 85 to 87.
Removal of an executor
34. The removal of an executor in terms of section 54 is a drastic step which the
court will not grant lightly: Segal v Segal 1979 (1) SA 503 (C) at 506G; Basson
v Redelinghuys 1945 CPD 194 at 196 (which describes it as very drastic ),
Meyerowitz The Law and Practice of Administration of Estates and their
Taxation 2025 edition at paragraph 11.1 which describes it as “… a very drastic
step which the court will not grant lightly. ” Footnote 66 of Gory (at 121H) reads
(albeit in respect of an earlier edition, but the content appears in principle to be
largely the same) “On the removal by the court of an executor in terms of s 54(1)(a)(v), see
generally Meyerowitz … at 11-1 – 11-5 and the authorities there cited.”
35. For an example where there were numerous proved contraventions on the part
of the executor but he was not removed, see Visagie v Bosua N.O and Others
(342/2024) [2024] ZAMPMBHC 85 (29 November 2024) in which it was held at
paragraph 29 that:
“Section 54(1)(a)(i) affords the Court a discretion to remove an executor from office, “… ..the
predominating consideration remains the interests of the estate and the beneficiaries.” Much
is required for the removal of an executor. A failure to exercise his or her duties or to strictly
observe the law is not enough. In Sackville West v Nourse and Another it was said: “ … 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 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…”. Reasonable fidelity depends on the circumstances
of each case, in particular, whether the executor is dishonest, grossly inefficient or
untrustworthy. The court must be able to reasonably foresee that the executor’s conduct, as
demonstrated by proven past conduct, is expected to expose a deceased estate to risk or
actual loss. See: Oberholster N.O. and Others v Richter [2013] All SA 205 GNP. What is
required from an executor is to act with the necessary skill and care, independently and in the
interest of the deceased estate and its heirs while having due regard to the rights of the
deceased estate’s creditors.”
36. For an example of the removal of an executor where he had secured his
appointment through dishonest means, thereby committing an offence, see
Goss v Bennett (A5021/2022) [2023] ZAGPJHC 556 (31 May 2023) in which
the Court stated:
“[18] It should be recalled that section 54(1)(a)(v) confers a discretion on the Court to remove
an executor if it is satisfied that it is just and equitable for the executor to be removed.
an executor if it is satisfied that it is just and equitable for the executor to be removed.
However, the Court must exercise its discretion judicially. It is not only the interests of the
estate and that of the heirs as contended by the appellant that should be considered in this
case. But whether the person so appointed as executor and the manner in which he
conducted himself in securing his appointment serves the interest of justice considering that
the administration of estate is governed by the law. The offending conduct of disregarding the
prescripts of the Act has deprived and prevented the Master from a general overview of the
facts surrounding the estate of the deceased.
[19] The gravamen of the respondent’s complaint is the manner in which the appellant
secured his appointment as the executor of the estate of the deceased. The question that
faced the Court a quo was whether it is just and equitable to allow the appellant, who has
conducted himself in a dishonest and unethical manner when he secured his appointment as
executor by breaching the provisions of the act which rendered him guilty of an offence, to
continue with the winding up of the estate of the deceased. Put in another way, whether a
person who commits an offence to secure his appointment as executor can be expected to act
and produce the best results in the interest of the estate and its heirs.
[20] It is my respectful view that the Court a quo correctly answered the above question in the
negative. Allowing the appellant to continue as the executor of the estate of the deceased
would be rewarding him for the dishonorable and unethical conduct he has committed to
secure his appointment as executor. The Court cannot countenance the flagrant disregard of
the law by the appellant when he reported the estate of the deceased. The offending conduct
of the appellant amounted to the flagrant disregard of the standard of complete honesty,
reliability and integrity expected of an attorney. I hold the view therefore that the Court a quo
cannot be [faulted] in the exercise of its discretion when it ordered the removal of the
appellant as the executor of the estate of the deceased for his appointment was unlawful.”
37. Negligence in administration , in the absence of prejudice , does not warrant
removal: Meyerowitz at paragraph 11.1 , citing a trust case, Sackville West v
Nourse 1925 AD 516 , in respect of which it submitted the principle to be the
same for executors. I agree. The principle was applied to executors in Kennedy
v Miller [2005] JOL 15800 (T).
38. In Harris v Fisher 1960 (4) SA 855 (A) at 862C, it was held that an executor
must not “… act in such a way as to benefit himself at the expense of the other
beneficiaries …”
39. It is not per se a conflict of interest to be a beneficiary and an executor . Where
an executor is a beneficiary, he/she “… holds a fiduciary position towards the
other beneficiaries, and therefore his acts will be narrowly scrutinised; he
should not derive any personal benefit from the manner in which he conducts
the business o r manages the assets of the estate.” Meyerowitz at paragraph
11.1.5, citing Harris v Fisher 1960 (4) SA 855 (A) at 862B-E and Beukman v
Pieterse NO and Others [2024] ZAWCHC 391 (26 November 2024) at
paragraph 45 which reads:
“The facts outlined earlier indicate that the second respondent harbours a clear conflict of
“The facts outlined earlier indicate that the second respondent harbours a clear conflict of
interest and is intransigent with regard thereto. No legal basis is revealed in the evidence for
the second respondent’s claim to retain the guesthouse income. The correspondence
indicates that, since the appointment of the executors, the applicant has been sent from pillar
to post, mostly to get the second respondent to comply with the clear terms of the Will. And
regrettably, the first respondent failed to bring to bear an objective mind to the respective
beneficiaries’ dispute in this regard. The equities were accordingly tilted against the applicant.
This is one reason I am of the view that it would be just an d equitable for the second
respondent to be removed as an executor. Her interests as a beneficiary in this matter are
interfering with her duties as an executor.” [my emphasis]
40. Where an executor’s private interests conflict with those of the estate or the
beneficiaries, removal from office may result. This is because he would have a
conflict of interest. In this regard:
40.1. An executor/executrix will be removed from office if he/she has a claim
against the estate which is disputed by the heirs. The court need not go
into the validity of the claim because the question as to who is right or
wrong is irrelevant. The reason for this is that the executor/executrix
finds himself/herself in the impossible position of having to argue for
his/her claim as creditor and resolve the dispute as to his/her claim as
executor and therefore cannot be impartial: Grobbelaar v Grobbelaar
1959 (4) SA 719 (A) at 724G; Barnett v Estate Beattie 1928 CPD 482 at
484-5.
40.2. The court has removed an executor who pursues a personal agenda in
the administration of the estate: Judin v J ankelowitz 2010 JOL 26471
(SG) at paragraph 17.
40.3. Reichman v Reichman 2012 (4) SA 432 (GSJ) concerned the removal of
an executor due to conflict of interest. In that matter, there were wide -
ranging disputes between children of the deceased, one of whom had
been appointed as executor. That son caused summons to be issued
against his brother “… in which he (acting as executor) is seeking an order that the ‘will’ is
valid and that he (in his personal capacity) should be declared the sole heir of the deceased.”
The court removed him as executor.
41. Hostility or d isagreement or breakdown of the relationship between the
executor and the heirs is not sufficient reason to warrant the removal of an
executor: Meyerowitz at paragraph 11.1.3, citing Oberholster NO and Others v
Richter [2013] 3 All SA 205 (GNP) in which it was held as follows at paragraph
17 (see also Nieman v Olivier and Others (4921/2024) [2026] ZANWHC 30 (16
February 2026) at paragraph 36):
“The aforesaid authorities confirm that 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. Bad relations
between an executor and an heir cannot lead to the removal of the executor unless it is
probable that the administration of the estate would be prevented as a result.”
42. This is a common theme: as held in (a trust case) Volkwyn NO v Clarke &
Damant 1946 WLD 456 at 474: “… the essential test is whether such disharmony as exists
imperils the trust estate and its proper administration ” and at 464 that for removal “ … the
particular circumstances of the acts complained of are such as to stamp the executor 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 loss or of administration in a way not contemplated by the trust
instrument.”
43. Die Meester v Meyer en Andere 1975 (2) SA 1 (T) at 16C -17F referred to
authority to the effect that “… the acts of 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 … main guide must be the welfare of the beneficiaries.”
44. Ultimately, in the exercise of the discretion to remove, as stated in Meyer at
17E-F, and approved by the Constitutional Court in Gory at paragraph 56, “… the
predominating consideration remains the interests of the estate and of the beneficiaries.”
Disputes of fact
45. The court a quo pointed out in paragraph 16 of the Judgment that “Almost every
fact is disputed, and there is little of common cause between the parties. Motion
proceedings are unsuitable to adjudicate the scale and substance of these
disputes, but the parties have chosen the application route, and the Court shall
endeavour to reach a decision. ” In paragraph 27 of the judgment in the
application for leave to appeal it was stated that there are hundreds of disputes
of fact.
46. A factor in this matter is that it was brought and persisted with on motion in the
face of many disputes of fact. Nadat v Bibi -Sulaman and Another (1718/2022)
[2024] ZALMPPHC 39 (23 April 2024) is an example where an application for
the removal of an executor was refused when it was sought on motion and
there were disputes of fact.
47. The rule in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3)
SA 623 (A) at 634E-635C therefore applies. As this rule plays an important role
in this matter, I consider it worthwhile not to resort to the common ‘ Plascon-
Evans’ reference but rather to quote the dictum of Corbett JA (as he then was):
“Secondly, the affidavits reveal certain disputes of fact. The appellant nevertheless sought a
final interdict, together with ancillary relief, on the papers and without resort to oral
evidence. In such a case the general rule was stated by VAN WYK J (with whom DE VILLIERS JP
and ROSENOW J concurred) in Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty)
Ltd 1957 (4) SA 234 (C) at 235 E-G, to be:
".... where there is a dispute as to the facts a final interdict should only be granted in
notice of motion proceedings if the facts as stated by the respondents together with
the admitted facts in the applicant's affidavits justify such an order ... Where it is clear
that facts, though not formally admitted, cannot be denied, they must be regarded as
admitted".
This rule has been referred to several times b y this Court (see Burnkloof Caterers Ltd v
Horseshoe Caterers Ltd 1976 (2) SA 930 (A) at 938 A -B; Tamarillo (Pty) Ltd v B N Aitken (Pty)
Ltd 1982 (1) SA 398 (A) at 430 -1; Associated South African Bakeries (Pty) Ltd v Oryx &
Vereinigte Backereien (Pty) Ltd en Andere 1982 (3) SA 893 (A) at 923G-924D). It seems to me,
however, that this formulation of the general rule, and particularly the second sentence
thereof, requires some clarification and, perhaps, qualification. It is correct that, where in
proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order,
whether it be an interdict or some other form of relief, may be granted if those facts averred
in the applicant's affidavits which have been admitted by the respondent, together with the
facts alleged by the respondent, justify such an order. The power of the court to give such
final relief on the papers before it is, however, not confined to such a situation. In certain
instances the denial by respondent of a fact alleged by the applicant may not be such as to
raise a real, genuine or bona fide dispute of fact (see in this regard Room Hire Co (Pty) Ltd v
Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 (T) at 1163 -5; Da Mata v Otto NO 1972 (3)
SA 585 (A) at 882D-H). If in such a case the respondent has not availed himself of his right to
apply for the deponents concerned to be called for cross -examination under Rule 6(5)(g) of
the Uniform Rules of Court ( cf Petersen v Cuthbert & Co Ltd 1945 AD 420 at 428; Room Hire
case, supra, at 1164) and the court is satisfied as to the inherent credibility of the applicant's
factual averment, it may proceed on the basis of the correctness thereof and include this fact
factual averment, it may proceed on the basis of the correctness thereof and include this fact
among those upon which it determines whether the applicant is entitled to the final relief
which he seeks (see eg Rikhoto v East Rand Administration Board 1983 (4) SA 278 (W) at 283
E-H). Moreover, there may be exceptions to this general rule, as, for example, where the
allegations or denials of the respondent are so far -fetched or clearly untenable that the Court
is justified in rejecting them merely on the papers (see the remarks of BOTHA AJA in
the Associated South African Bakeries case, supra, at 924 A).”
48. This was commented on as follows in Wightman t/a J W Construction v
Headfour (Pty) Ltd and Another 2008 (3) SA 371 (SCA):
“[12] Recognising that the truth almost always lies beyond mere linguistic determination the
courts have said that an applicant who seeks final relief on motion must in the event of conflict,
accept the version set up by his opponent unless the latter’s allegations are, in the opinion of
the court, not such as to raise a real, genuine or bona fide dispute of fact or are so far -fetched
or clearly untenable that the court is justified in rejecting them merely on the papers: Plascon-
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51 ; 1984 (3) SA 623 (A) at 634E -
635C. See also the analysis by Davis J in Ripoll-Dausa v Middleton NO [2005] ZAWCHC 6 ; 2005
(3) SA 141 (C) at 151A-153C with which I respectfully agree. (I do not overlook that a reference
to evidence in circumstances discussed in the authorities may be appropriate.)
[13] A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that
the party who purports to raise the dispute has in his affidavit seriously and unambiguously
addressed the fact said to be disputed. There will of course be instances where a bare denial
meets the requirement because there is no other way open to the disputing party and nothing
meets the requirement because there is no other way open to the disputing party and nothing
more can therefore be expected of him. But even that may not be sufficient if the fact averred
lies purely within the knowledge of the averring party and no basis is l aid for disputing the
veracity or accuracy of the averment. When the facts averred are such that the disputing party
must necessarily possess knowledge of them and be able to provide an answer (or
countervailing evidence) if they be not true or accurate but, instead of doing so, rests his case
on a bare or ambiguous denial the court will generally have difficulty in finding that the test is
satisfied. I say ‘generally’ because factual averments seldom stand apart from a broader matrix
of circumstances all of which needs to be borne in mind when arriving at a decision. A litigant
may not necessarily recognise or understand the nuances of a bare or general denial as against
a real attempt to grapple with all relevant factual allegations made by the other party. But
when he signs the answering affidavit, he commits himself to its contents, inadequate as they
may be, and will only in exceptional circumstances be permitted to disavow them. There is thus
a serious duty imposed upon a legal adviser who settles an answering affidavit to ascertain and
engage with facts which his client disputes and to reflect such disputes fully and accurately in
the answering affidavit. If that does not happen it should come as no surprise that the court
takes a robust view of the matter.”
49. In National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) it
was held as follows at paragraph 26:
“Motion proceedings, unless concerned with interim relief, are all about the resolution of legal
issues based on common cause facts. Unless the circumstances are special they cannot be used
to resolve factual issues because they are not designed to determine probabilities. It is well
established under the Plascon-Evans rule that where in motion proceedings disputes of fact
arise on the affidavits, a final order can be granted only if the facts averred in the applicant's
(Mr Zuma’s) affidavits, which have been admitted by the respondent (the NDPP), together with
(Mr Zuma’s) affidavits, which have been admitted by the respondent (the NDPP), together with
the facts alleged by the latter, justify such order. It may be different if the respondent’s
version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably
implausible, far -fetched or so clearly untenable that the court is justified in rejecting them
merely on the papers. The court below did not have regard to these propositions and instead
decided the case on probabilities without rejecting the NDPP’s version.”
50. While trite, I consider it to be important to identify the core elements of what has
entered the South African legal vernacular as the Plascon-Evans rule, owing to
its importance as the prism through which the material evidence in this matter is
to be viewed and considered:
50.1. Motion proceedings will be adjudicated on the facts averred in the
applicant's affidavits which have been admitted by the respondent,
together with the facts alleged by the respondent. Put another way, an
applicant who seeks final relief on motion, in the event of conflict of fact,
does so on factual version set up by his opponent.
50.2. This is subject to two main qualifications:
50.2.1. Where facts, though not formally admitted, cannot be denied,
they must be regarded as admitted. This would also include the
situation when a bare denial is made in circumstances in which
the respondent must necessarily possess knowledge of the
facts averred and be able to provide an answer.
50.2.2. Where the respondent’s allegations do not raise a real, genuine
or bona fide dispute of fact or are palpably implausible or so far-
fetched or clearly untenable that the court is justified in rejecting
them merely on the papers.
51. According to the Microsoft Word thesaurus: Palpably can mean obviously,
unmistakeably or unambiguously. Implausible can mean unbelievable, fantastic,
far-fetched or incredible. Far -fetched can mean unbelievable, implausible,
fantastic or incredible. Fantastic can mean bizarre, fanciful, imaginary,
incredible, unbelievable or implausible. The words feed off each other.
52. Finally on this aspect, a common companion of the dispute of fact is the request
to refer specified issues to oral evidence (or the matter to trial), which is often
opposed on the basis that there is no real dispute of fact. In other words, on the
basis of the second qualification referred to above, that the version is palpably
implausible or so far -fetched or clearly untenable that the court is justified in
rejecting it merely on the papers and it would be futile to refer the matter to oral
evidence or trial. In this respect the Supreme Court of Appeal has held as
follows:
52.1. In Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa
(Pty) Ltd 2017 (2) SA 1 (SCA) at paragraph 36:
“Media24 chose not to pursue this case by way of trial. Nor did it ask for the matter to
be referred to oral evidence. In asking for it to be decided on the affidavits alone, it
therefore bound itself to the long established approach described in Plascon
Evans. That meant that the case could not be determined simply on a weighing of the
probabilities as they emerged from the affidavits. The facts deposed to by OUP’s
witnesses had to be accepted, unless they constituted bald or uncreditworthy denials
or were palpably implausible, far-fetched or so clearly untenable that they could safely
be rejected on the papers. A finding to that effect occurs infrequently because courts
are always alive to the potential for evidence and cross -examination to alter its view of
the facts and the plausibility of evidence.” [underlining added]
52.2. In National Scrap Metal v Murray & Roberts (809/2011) [2012] ZASCA
47; 2012 (5) SA 300 (SCA) at paragraph 22:
“As was recently remarked in this court, the test in that regard is ‘a stringent one not
easily satisfied’. In considering whether it has been satisfied in this case, it is necessary
to bear in mind that, all too often, after evidence has been led and tested by cross
examination, things turn out differently from the way they might have appeared at first
blush. As Megarry J observed in a well -known dictum in John v Rees [1970] Ch 345 at
402:
‘As everybody who has anything to do with the law well knows, the path
of the law is strewn with examples of open and shut cases which,
somehow, were not; of unanswerable charges which, in the event, were
completely answered; of inexplicable conduct which was fully
explained; of fixed and unalterable determinations that, by discussion,
suffered a change.’ ”
[underling added]
General comment
suffered a change.’ ”
[underling added]
General comment
53. It is in the aforesaid legal context that this court must consider, as held in Gory,
whether the court a quo “… did not act judicially in exercising its discretion, or based the exercise
of that discretion on a misdirection on the material facts or on wrong principles of law.”
54. The papers and argument focused on whether there was misdirection on the
material facts. The main aspects will be considered below.
55. In my view, the core issues in this matter are whether any of the following were
established, warranting the removal of the executor: (1) conflict of interest;
and/or (2) bias and/or dishonesty and/or untrustworthiness; and/or (3)
maladministration imperilling the estate. I consider the core factual aspects
pertaining to these issues to be (1) the litigation in Germany in regard to
properties alienated by the deceased to his son H[...], (2) whether the appellant
was biased in favour of H[...], (3) the circumstances in which the Will was
drafted, i.e. whether the content thereof was created by the appellant or the
Deceased and (4) the bequest in the Will of 4% in a close corporation to the
appellant and any conflict of interest in relation thereto. These factual issues,
amongst others, are dealt with below.
56. Each of the grounds raised by the first respondent against the applicant in the
founding affidavit (with references to the replying affidavit as appropriate), using
the headings of sections therein (or paraphrasing thereof) will be considered
against the appellant’s version in order to determine whether there were any
misdirections of fact and/or law by the court a quo material to its conclusion that
the appellant be removed as executor in terms of section 54(1)(a)(v) of the Act.
These aspects will be dealt with in the order in which they are raised in the
founding affidavit, save that those which relate to the ‘German litigation’ and
‘H[...]’ aspects (which span various headings in the founding affidavit) will be
dealt with together first in one section.
The German litigation and alleged bias in favour of H[...]
“Litigation in Germany”
“The position of the [appellant] as agent for the deceased”
“Further evidence of the [appellant’s] bias in favour of H[...]”
“The costs of H[...]’s litigation in Germany are being paid from the
resources of the joint estate”
57. The core issue in this respect is whether the appellant was biased in favour of
H[...], the Deceased’s son, to whom he transferred properties in Germany which
the first respondent challenged in German litigation, and whether he was his
client.
58. The court a quo found as follows:
58.1. The appellant had favoured H[...] above the estate and the first
respondent (see paragraphs 124 to 134 of the Judgment in general),
holding in paragraph 134 that “The Respondent denies favouring H[...] to the
detriment of the estate. The denial does not correlate with his actions as an attorney to the
deceased and H[...] and his subsequent actions as Executor.”
58.2. In paragraph 134 of the Judgment: “The Respondent’s actions in favouring H[...],
both in the latter’s retention of the units and his intention to accept H[...]’s claim against the
estate, do affect the welfare of the estate. The court finds that the Respondent’s denial of any
leaning towards H[...]’s preserving interest is implausible. The Court also finds that the
Respondent’s support of H[...] is not only to the detriment of the estate but also to the interests
of the Applicant. He has a fiduciary duty to protect her half-share of the estate.”
58.3. In paragraph 131 of the Judgment : “The Applicant’s allegation that the Respondent
has attended to the administration of the estate with premeditated and preconceived ideas has
merit. The Court rejects the Respondent’s contention that he holds no agenda to ‘eliminate’ the
Applicant’s claim against H[...].”
58.4. In paragraph 125 of the Judgment: “The evidence suggests that the transfers
occurred as a ‘gift’.” This concerned the transfers of the properties in
Germany to H[...].
58.5. In paragraph 129 of the Judgment, that the facts “… demonstrate his unwavering
determination to halt the Applicant’s litigation.”
58.6. In paragraph 14 2 of the Judgment : “There are other compelling reasons for the
removal of the Respondent as Executor. The Respondent, as the attorney to the deceased, has
been involved in the acrimonious litigation against the Applicant, which was directed to stifle
the Applicant’s entitlement to a fair half share of the joint estate. The Respondent acted as an
attorney just before the deceased’s death in litigation that was intended to deprive her of the
German assets of the deceased.”
58.7. In paragraph 144 of the Judgment: “ The Respondent’s actions suggest an undue
inclination towards promoting the interests of H[...] and S[...] .”
59. There are other examples in the Judgment, but I consider the above more than
sufficient to illustrate the point.
60. The first respondent’s main contentions (the papers are voluminous and a more
comprehensive exposition of the evidence will unduly burden this judgment):
60.1. According to the first respondent, having taken advice from another
attorney (Fanie Roux), that she had a claim to 50% of the joint estate on
divorce, the Deceased, in November 2013, without the first respondent’s
knowledge or consent, which she would not have given, donated certain
properties in Germany to his son H[...] which were transferred in 4 days
instead of the usual 6 weeks, and the deceased obtained a usufruct over
the properties. The first respondent averred that these actions by the
Deceased and H[...] were aimed at diminishing and denuding her claims
against the joint estate.
60.2. The first respondent commenced litigation in Germany against H[...] and
his wife I[...] to amend the land registers which reflected them as the
owners of the properties in question. The appellant entered the picture
as executor and, having investigated the situation, reached the
conclusion that the litigation should not be pursued and persisted with as
it had no prospect of success and would be prohibitively expensive (even
though the first respondent was paying for the litigation, the fact of the
joint estate meant that ultimately it was funding those legal costs and she
had not indemnified the Deceased’s half share thereof from effectively
sharing those costs). He wrote to the German court expressing his views
against the first respondent’s right to participate in the German litigation
and applied to become a party to the litigation to provide his input, but
this was refused by the German court. The first respondent submitted
that the appellant’s actions were made by him in the interest of and for
the benefit of H[...] and as the agent of the deceased.
60.3. The deceased averred in litigation, “upon grounds which were not legally
sound, … that the German properties which he had transferred to H[...]
should not form part of the joint estate.”
60.4. In December 2022, six weeks before his death, the deceased launched
proceedings in G eorge, Western Cape, to declare and ratify the
alienation of the German properties as being in the normal course of
business for the purposes of the section 15(6) of the Matrimonial
Property Act 88 of 1984 (‘the MPA’). The first respondent contended that
this was solely the appellant’s doing because (1) the deceased could not
understand such proceedings and form his own opinion and (2) this
could only be to benefit H[...] because the deceased was about to die. By
then, the appellant had already been nominated as executor and
therefore had no intention to be impartial.
60.5. The first respondent alleged that:
60.5.1. “The initiative behind such application could only have
emanated from the [appellant], and could only have been
inspired by the [appellant]’s intention to protect H[...].”
60.5.2. The appellant “… continued to actively conjure up ways and
means with which to thwart and scupper my claims, in the
interests of mostly H[...].”
60.5.3. The appellant “… had no intention to act impartially in
assessing either my own claims against the estate, or the
defences of H[...] to my claims against him (H[...]). The fact that
he would prefer the interests of H[...] over those of any other
parties with an interest in the joint estate, was a preconceived
and premeditated decision.”
60.5.4. Even in the matters where the appellant “… was not the
formally appointed attorney of record of the deceased, he
continued to act as agent of not only the deceased, but also as
representative of and in the interest of H[...].”
60.6. The appellant failed to take cognisance of legal precedents
overwhelmingly contradicting his own stance concerning the first
respondent’s capacity to act in the German courts as she was doing.
60.7. The appellant appointed H[...] to accept rental income from German
properties and to keep those funds in a separate account and to pay
them to the executor once letters of executorship have been received.
The first respondent alleged it to be “ … risible that the one co -
perpetrator of the fraud forming the subject matter of my claims in the
German courts, could be appointed as alleged custodian of funds
arising from fraudulent transactions .” The appellant threatened an
interdict in a South African court to stop the first respondent from
interfering in the administration of the estate which the first respondent
alleged to be audacious, partisan and biased.
60.8. The first respondent alleged there to have been cloak and dagger type
of administration of the estate in that rental funds in Germany had been
withheld there for the maintenance of the German properties as a result
of which her personal maintenance instalment could not be paid from
the estate, without indicating what exactly the total rental income is and
what portion and by whom it had been withheld, which she alleged to
be “… a clear hallmark of an executor who has no desire or intention to
discharge his duties in a properly transparent, objective and neutral
manner. It furthermore paints the picture of an executor who has a
personal agenda to conduct such administration in the favour of a party
that he wishes to prefer and/or benefit, to the detriment of other parties
having an interest in the funds and assets of the estate.”
60.9. The Deceased had sent a WhatsApp message to the first respondent
complaining that her German litigation against H[...] and the legal costs
he had to pay to H[...]’s attorneys in Germany to defend them was
pulverising the monies in the estate. The first respondent alleged that
the appellant must have been aware at all times that the joint estate
was paying for H[...]’s legal expenses in Germany and that he was most
likely also aware that the rental income generated in Germany was
abused, and continues to be abused, by H[...] for payment of such
expenses.
60.10. The appellant sent a letter on 17 February 2023 in which he advised
the first respondent (through her attorneys) that he had carefully
considered all aspects of the German litigation and after careful perusal
of the court documentation he had come to the conclusion that it would
not be in the interests of the Estate to pursue that litigation which he
intends to withdraw on condition that H[...] withdraws his claim against
the Estate for €1 141 882 which the Deceased had accepted although
the appellant was not personally satisfied that all the amounts would be
recoverable by H[...]. The appellant expressed the view that given the
high costs and risks of litigation it is not in the interests of the heirs of
the Estate to continue with the litigation which would be better served if
H[...]’s claim against the Estate and the litigation were both withdrawn.
The first respondent alleged that the appellant had the agenda and
modus operandi to “… eliminate my litigation against H[...] in Germany
to exonerate him ( H[...]) from any liability to me and/or the joint estate,
which liability in extent is far in excess of the amount of H[...]’s claim. By
doing so he would vicariously do his (indirect) client H[...] a substantial
favour.” The first respondent alleged this to be “… egregiously
unconscionable and unacceptable …” and to demonstrate “… an
inability of substantial proportions to discharge the duties of an executor
in a transparently neutral and unbiased manner.”
60.11. The first respondent contended that the following extract from an email
on 21 May 2020 from the appellant to the first respondent’s previous
attorneys in George “… places the question whether or not the
respondent acted on behalf or advised H[...], beyond dispute.”: “In the
light of your client’s stance we have no other choice to but advise
Mr. H[...] B[...] that has (sic) to forge ahead with his preparation for
upcoming litigation in Germany …” [the underlining, bold and italics is
as in the replying affidavit].
61. Ultimately, the first respondent was alleging that the appellant had a bias in
favour of H[...] which negatively affected the administration of the Estate.
62. The appellant’s version:
62.1. He contends that there is nothing wrong with trying to “ … resolve a
dispute which has been ongoing since 2014, without any progress
being made therein, where the chances of success are negligible. I am
not prepared to tie the estate up by waiting for the Applicant’s vexatious
ongoing litigation in the face of overwhelming evidence against her and
thereby act to the detriment of the other heirs to the estate. I reiterate
that I have got no special relationship with H[...] and am not acting as
his agent in any way or form. What does concern me is the cost of the
litigation in Germany and the possibility that the joint estate is
substantially diminished thereby.”
62.2. Having investigated the German litigation as executor, which included
considering the papers and the law, he reached the conclusion that the
litigation should not be pursued and persisted with as it had no prospect
of success and would be prohibitively expensive (as I understood the
effect of the facts, even though the first respondent was paying for the
litigation, her funds are part of the joint estate, and therefore that
expense would ultimately be funded by the joint estate; and she had not
indemnified the Deceased’s half share thereof from effectively sharing
those costs). He wrote to the German court expressing his views
against the first respondent’s right to participate in the German litigation
and applied to become a party to the litigation to provide his input, but
this was refused by the German court.
62.3. He considered it appropriate to address the German court in
correspondence because of the substantial impact of the German
litigation on the joint estate especially when it came to costs, as he has
an obligation towards the heirs of the estate to safeguard the estate’s
assets and where the first respondent litigates personally an adverse
costs order against her, even though against her personally, has a
significant effect on the joint estate. The correspondence was not
written on the request of H[...] but rather out of concern for the Estate’s
assets and out of his obligation to take control over the Estate in its
entirety. He requested the first respondent’s input on his view but it was
not received.
62.4. On his reading of the papers and a previous judgment of the German
court, the appellant had formed the view that the continued litigation
against H[...] was without merit and the likelihood of success negligible.
He explained this in detailed letters to the first respondent’s previous
attorneys on 17 February 2023 and 2 October 2023.
62.5. The result on appeal confirmed this view. The fact of this result was
allowed as evidence in this appeal, as mentioned above.
62.6. The costs of the litigation could be ruinous and H[...]’s claim is very
substantial which makes it worthwhile considering the withdrawal of the
matter on condition that he pays his own costs and withdraws his claim
against the joint estate. This was the basis on which he was prepared
to do this, which was a substantial quid pro quo.
62.7. The first respondent does not have the sole interest in the outcome of
the litigation and the appellant cannot just act as she pleases because
he is duty-bound to look after the interests of the heirs as well.
62.8. For these reasons the appellant’s view was that the German litigation
should have been withdrawn and he wished to become a party for this
purpose. The application for the latter was made in the interests of the
estate and not H[...]. He had been advised by his German attorneys
that they were satisfied with his chances of success and he therefore
did not bring the application recklessly. The reason why the application
was not granted, according to the judgment therein, was that an
executor cannot involve himself/herself in matters relating to property
which does not fall within the estate.
62.9. The result on appeal confirmed his view as to the merits of the German
litigation. H[...] was found not to have acted in bad faith because at the
time he did not know that the Deceased and the first respondent were
married in community of property.
62.10. The appellant’s view was that only an executor can litigate on behalf of
a joint estate. He disagreed with the opinion of the first respondent’s
counsel in this regard and furnished his own written reasons in the form
of a letter dated 22 August 2023. The appellant invited comment on his
opinion from the first respondent, but none was forthcoming.
62.11. The first respondent’s litigation in Germany failed, including on appeal
(the result of that appeal having been introduced in evidence allowed in
this appeal).
62.12. Before he was appointed executor, the appellant could not and did not
receive the income from the rental of the German properties. Before the
passing of the Deceased, the rental income had always been paid to
H[...] who then paid the usufructuary interest to the deceased’s account
in South Africa. H[...] had always acted in this way and paid the
Deceased without demur and it made sense for this practice to continue
and to properly account to the appellant. He had a special account to
receive the Estate’s rental income for this purpose. This was the
prudent thing to do in order to protect the incoming funds on behalf of
the heirs of the Estate. After his appointment as executor, H[...] paid the
funds into the estate account. The appellant told the first respondent
that he was satisfied with the funds received. She never asked for an
accounting. This is denied by the first respondent in reply but she does
not provide any details thereof – what she provides is a reference by
the appellant to her seeking an order in Germany against the managing
agent there to provide information, but no request to the appellant. He
received a full and proper accounting from H[...] and attached an
accounting to the answering affidavit which reflected that H[...] had
over-paid by €660. Nothing was ever deducted from the rent for any
legal or other expenses. This matter is the first time that he has heard a
concern from the first respondent in this regard. He had no reason to
suspect H[...] of fraud in any respect. He refers to section 11 of the Act
dealing with the temporary custody of estate assets pending
appointment of an executor.
62.13. The first respondent threatened via her German attorneys to have the
income due to the estate paid to her and the appellant applied for an
interdict against her in this regard which was granted by this court.
62.14. Some of the rental income, by agreement between the appellant and
the managing agent of the properties, was withheld to pay for the
mandated maintenance to the public open spaces of the building in
which the rental units are situated. This was authorised by the Body
Corporate in a meeting in December 2023. The documentation from
Germany set this all out and the first respondent was provided with a
copy. No funds were withheld by H[...]. There was no cloak and dagger
administration. All the relevant information was provided to the first
respondent’s attorneys.
62.15. The first respondent interfered in the collection of rental in Germany
resulting in the agent withdrawing and the appellant having to collect
the rental himself. This has created more difficulties because the
appellant is unable to open a trust account in Germany and will have to
convince tenants to pay rental directly to the estate account in South
Africa which creates unnecessary administration and costs.
62.16. The appellant was not aware that the Deceased had been paying
H[...]’s legal costs in Germany. That came as news to him in this matter.
62.17. The Deceased and the first respondent lived beyond their means and
would sell property in Germany to finance their lifestyle. This caused a
liquidity crisis and the banks were not prepared to release more
properties from bonds. The only way to resolve the crisis was with debt
restructuring. The deceased stumbled from one liquidity crisis to the
next which was addressed by selling properties but that created a
vicious cycle because, while the sale of a property paid debt, it at the
same time resulted in cash -flow problems because of decreased rental
income.
62.18. The restructuring involved transferring the remaining properties in
Germany to H[...] in return for the payment of debts, including the bond,
and a usufruct to be registered in favour of the Deceased until 2028 or
his death. The bond liability at the time was €1 801 567 which was paid
off/taken over by H[...].
62.19. At the time that the first respondent and the Deceased separated,
neither of them was aware that they were married in community of
property. They only became aware of this in 2014 after certain
properties in Germany had already been transferred to H[...]. This was
recorded by the first respondent’s attorney in court papers filed by her
in the German courts.
62.20. That the parties were previously unaware that they were married in
community of property and that they believed that they were married
according to the laws of Germany appears from a deed of transfer in
respect of a property purchased by them in 2005.
62.21. The Deceased had invested in property all his life and was involved in
many property transactions. He never obtained the first respondent’s
consent while they were married.
62.22. The Deceased transferred three properties to the first respondent in
2012 at substantial cost. There would have been no reason to do so
were they to have believed that they were married in community of
property.
62.23. The Deceased therefore did not consider that he needed the first
respondent’s consent to transfer property and the transfers in Germany
were for the purpose of debt restructuring.
62.24. An independent accountant, Hilton Greenbaum (‘Greenbaum’), was
requested to report on the financial consequences of the transaction
between H[...] and the Deceased. He prepared a written report which
showed that the Estate was slightly better off from an asset perspective
and there was no benefit to H[...], while the transaction resulted in the
alleviation of cash flow problems because of the usufruct over rentals.
In essence, debt had been reduced without reducing net asset value
while cash flow was preserved. The asset/liability position in Euro was
as follows:
Value of property transferred 5 373 000
Less: Land charge M[...] B[...] (832 121)
Less: Deceased’s liabilities paid by H[...] (2 187 961)
Less: Value of usufruct (2 012 054)
Less: Payments to the deceased (450 970)
Less: Payment of legal costs to M[...] B[...] (62 550)
Net value to the deceased: 172 655
62.25. Greenbaum also reported that the restructuring resulted in the net
monthly income to the Deceased increasing from €7 729 to €12 758
and in his monthly deficit reducing from €12 756 to €3 721.
62.26. Greenbaum summarised the effect of the restructuring as follows:
62.26.1. Bank loan of €1 500 000 no longer a liability of the Estate.
62.26.2. The loans secured over the properties that had been donated
to the first respondent were expunged.
62.26.3. The first respondent’s portion of the original property loan of
approximately €270 000 was expunged.
62.26.4. The restructuring improved the Deceased’s financial position
which had declined between 2003 and 2013 and would have
continued to do so had the restructuring not been effected.
62.26.5. The restructuring benefited the Deceased by increasing his
monthly cash flow for the remainder of his life, eliminating his
financial exposure to the bank and repaying his personal
loans and other liabilities.
62.27. The first respondent has consistently refused to consider the reasoning
relating to the transaction with H[...], causing the matters to drag on,
despite the German court finding against her and this being confirmed
on appeal. The first respondent also lost her similar case in Germany
against H[…]’s wife, I[...] B[...].
62.28. He was not involved in the transaction between the deceased and H[...]
in Germany and had no knowledge thereof.
63. Evaluation:
63.1. There is a core dispute of fact, as to whether the appellant was biased
against the first respondent and in favour of H[...] and was not able to
act in an even -handed, fair and objective manner , as contemplated in
Plascon-Evans.
63.2. There were no bald denials. The first qualification in Plascon-Evans
therefore does not apply.
63.3. That leaves the second qualification: whether the appellant’s version is
so palpably implausible or far-fetched or untenable as to be rejected out
of hand.
63.4. The disagreement as to locus standi between the first respondent’s
counsel and the appellant need not be resolved. What is relevant is that
a considered and reasoned basis for his approach was proffered by the
appellant.
63.5. The appellant was not an attorney to H[...]. The court a quo misdirected
in this regard.
63.6. H[...] has put in a claim which is a further indication that no payment
had been received by him for the joint estate.
63.7. In my view, the word ‘advise’ in the email from the appellant dated 21
May 2020 was used in the sense of ‘inform’ and not in the sense of
formal legal advice or as an attorney. This ties up with the fact that the
appellant had been negotiating a settlement on behalf of the deceased
with the first respondent at the time and had said that terms thereof
affected third parties, being H[...], his wife I[...] and S[...] (the
deceased’s daughter) who would need to agree thereto. To me, this
means that they stood on a different footing to the deceased in that the
appellant had a mandate to act for him, but not for them.
63.8. In footnote 4 on page 14 of the Judgment , the court a quo recorded:
“After reading the German judgment, the Court does not share the [first
respondent’s] optimism regarding her case against H[...].” Having found
this, it does appear somewhat surprising that the court a quo then saw
fit to criticise the appellant for being against the litigation (paragraph s
129 and 130 of the Judgment). I consider this criticism to be a material
misdirection on the facts.
63.9. Similarly, I consider the finding in paragraph 126 of the Judgment that
the appellant was defending the indefensible to be a material
misdirection on the facts (and which also contradicts footnote 4 on page
14 of the Judgment).
63.10. The facts establish that the properties were not donated to H[...] by the
deceased. The evidence of Greenbaum established a significant benefit
to the estate which had stumbled from one liquidity crisis to the next.
63.11. The facts show that the appellant had carefully considered the German
litigation and that his opposition thereto was justified; and vindicated by
the result of the litigation, after appeal – both cases against H[...] and
his wife I[...] having been lost by the first respondent. They do not show
bias in favour of H[...]. I consider the findings of bias to be a material
misdirection on the facts applying the rules as to the resolution of
disputes of facts in motion proceedings.
63.12. The appellant’s version as to the rental income from Germany involved
a continuation of an existing state of affairs which worked and H[...] was
successful in the allegations against him (no fraud was established on
the papers).
63.13. The appellant’s attempt to join the German litigation: He based it on
the South African legal position mentioned above ( Hitzeroth) that the
whole joint estate falls under the administration of the executor
appointed to the estate of the deceased and only the executor has
locus standi to sue or be sued. He had also taken legal advice from his
German attorneys in this regard. His actions were motivated by his duty
to protect the Estate from exposure to legal costs.
63.14. In oral argument, Mr Barnard, who appeared for the first respondent,
relied on the following finding of the German appeal court in paragraph
46 of its judgment to aver that the six German properties registered in
the first respondent’s name are hers and hers alone to the exclusion of
the joint estate and that for this reason the appellant’s conduct in regard
to those properties should disqualify him as executor (warranting his
removal): “ The joint ownership status that arose on the basis of the
South African Community of Property would have to be entered in the
Land Register in order to eliminate a bona fide acquisition . This is
permissible and necessary … but in the present case this was
undisputedly not done … The registration of such foreign matrimonial
regimes serves precisely to eliminate good faith in the sole right of the
disposal of the registered person.”
63.15. I consider this submission to be unfounded: first, the reason for the
entry in the register (termed a caveat by Mr Barnard, which seemed
apt) was pertinently recorded in the German judgment to be to
eliminate a bona fide acquisition. There is no suggestion that the
absence thereof would convert (between the spouses in community of
property) what is a joint estate property to one which is somehow
owned separately in another estate by the first respondent. I do not
know the German law, but I highly doubt that that is the case, and what
matters for present purposes is that it does not appear from the
German judgment relied on by the first respondent. Second, this point
was not relied upon in the papers. The issue in this regard was taken
up in paragraphs 119 to 125 of the founding affidavit and no mention is
made therein of this point, the allegation made therein having been that
the appellant had attempted to circumvent another German judgment of
23 November 2023 relating to his attempt to be included in the German
litigation brought by the first respondent. Third, there was no suggestion
that the appellant was aware of this alleged point of German law (which
I do not consider to have been established and regard as dubious, as
mentioned) and therefore he cannot be criticised on the basis thereof.
63.16. Finally, in paragraph 145 of the Judgment it is recorded that “ A new
executor must consider, among others, the implications of intervening
in the German litigation … ” This is a strange bedfellow of a finding that
the appellant’s consideration of that same litigation warrants his
removal.
63.17. For these, and the other reasons provided by the appellant as
summarised above, I do not consider that his version is “palpably
implausible, far-fetched or so clearly untenable that the court is justified in rejecting them
merely on the papers”.
63.18. In my view, and applying the primary rule in Plascon-Evans and its two
qualifications, the court a quo materially misdirected itself on the facts
in regard to this aspect and its findings listed above were not justified.
63.19. In the premise, I am of the view that first respondent’s case on this
aspect was not established.
‘Our divorce and ancillary litigation in South Africa ’ (t he disposal of assets
after an interdict was in place)
64. The first respondent’s main contentions (the papers are voluminous and a more
comprehensive exposition of the evidence will unduly burden this judgment):
64.1. The appellant represented the Deceased in the acrimonious divorce
proceedings between him and the first respondent, with the Deceased,
as represented by the appellant, initially vigorously opposing all the first
respondent’s claims. This included two opposed interlocutory
applications which were decided in the first respondent’s favour.
64.2. An interdict against the disposal of assets of the joint estate was granted
by this court on 27 February 2017. The first respondent averred that the
appellant acted in “ abject disregard of such order by assisting the
deceased to sell a number of assets ” and caused the proceeds to be
paid to his firm and to the deceased personally. The assets were farm
vehicles and equipment owned by Droogekraal Meulenrivier CC
(‘Droogekraal’), 100% of the members interest of which was registered in
the deceased’s name . These included a Mercedes water truck
(R38 000), disc plough (R20 000), round baler (R30 000), Orbagh Mover
(R75 000), Massey Ferguson 135 tractor (R45 000), Forklift (R18 000), 2
caravans ( R25 000) and “ 2 centre Pivots for Irrigation of significant
value”.
64.3. The deceased averred in litigation, “… upon grounds which were not
legally sound, … that the German properties which he had transferred to
H[...] should not form part of the joint estate.”
65. Although not a model of clarity, it would appear that, ultimately, the first
respondent was alleging that the appellant was conducting litigation on legally
unsound bases and that he assisted the deceased in acting contrary to a court
order, with which the court a quo effectively agreed.
66. The appellant’s version:
66.1. The question of the German litigation has already been dealt with in
detail.
66.2. At the time that the first respondent and the deceased separated, neither
of them was aware that they were married in community of property. The
deceased told the appellant that at the time they were married they
believed that their marriage would be governed by the laws of Germany.
66.3. The appellant was not involved in the disposal of any of the farm assets
and vehicles. He also had no knowledge of any of this, other than the
Mercedes Unimog, which the deceased told him was not being used and
was deteriorating.
66.4. The interdict order of this court granted on 27 February 2017 did not
prevent the deceased from trading and farming which was part of his
livelihood. From the information and documentation which the appellant
has been able to obtain , equipment no longer required in
business/farming operations was replaced by newer and better items in
the normal course of business and more assets higher in value were
purchased than those sold, leaving the Estate in a better financial
position. The appellant provided details of the figures involved. The
appellant was made aware of the Mercedes Unimog which was not being
used and was deteriorating, and which was sold. He has no knowledge
of any of the other transactions.
66.5. He therefore denies that he acted or assisted the Deceased in acting
contrary to a court order.
67. Evaluation:
67.1. There is a dispute of fact as to whether the appellant was conducting
litigation on legally unsound bases and whether he assisted the
deceased in acting contrary to a court order. Insofar as the German
litigation is concerned, this has been dealt with above.
67.2. There were no bald denials. The first qualification in Plascon-Evans
therefore does not apply.
67.3. That leaves the secon d qualification: whether the appellant’s version is
so palpably implausible or far -fetched or untenable as to be rejected out
of hand.
67.4. His version is that he did not participate in the sale of any assets and he
provided an explanation which was so palpably implausible or far-fetched
or untenable as to be rejected out of hand.
67.5. The litigation aspect has been dealt with above.
67.6. In my view, the appellant’s version is not so palpably implausible or far -
fetched or untenable as to be rejected out of hand and therefore the
court a quo misdirected itself.
67.7. In the premise, I am of the view that first respondent’s case on this
aspect was not established.
Droogekraal and the allegation of a conflict of interest
68. The core issue in this respect is whether, due to the bequest to him of a 4%
interest in Droogekraal and his involvement in litigation as an attorney, the
appellant has a conflict of interest imperilling the administration and future
welfare of the estate and of interested parties which justifies his removal.
69. The court a quo found:
69.1. In paragraph 72 of the Judgment, in regard to the 4% bequest, that “ The
Applicant suggests the Respondent is aware that attaching a lower value to the loan account
would yield a higher value to the four percent held by the Respondent. The Applicant is
concerned about the Respondent’s inaction in enforcing the claim. The glaring conflict of
interest is evident.”
69.2. In paragraph 135 of the Judgment, that “ Despite acknowledging that the close
corporation owed the joint estate R35 million in October 2023, the [appellant] reflected the
loan account in the draft liquidation and distribution account to be R6 million .. . The
Respondent has already missed the deadline for filing a liquidation and distribution account
within the six weeks specified by the Act.”
69.3. In paragraph 137 of the Judgment, that “ The allocation of four percent of a
member’s interest in the close corporation undoubtedly poses a conflict of interest for the
Respondent .. . he undoubtedly benefits if the close corporation is retained. His conflict of
interest becomes manifest even though he denies it strenuously.”
69.4. In paragraph 138 of the Judgment, that “ The draft liquidation and distribution
account is sufficient evidence for the Court to find that the Respondent cannot be trusted to
ensure the estate is properly valued.”
69.5. In paragraph 139 of the Judgment, that “ The units in Munich were valued by
Kaufmann Stephan and included in the Respondent’s answering papers. They were each
valued at approximately R2 395 305 on 7 December 2017. The value on the day this matter
was heard amounts to R2 991765. Yet the Respondent overvalues each by approximately
R1 500 000 in the draft liquidation and distribution account. H[...]’s claim of approximately
R23 million against the estate is reflected there, even though the Respondent purports to have
reservations about some line items in the claim. If the units in Germany are overvalued, it
prejudices the Applicant in a redistribution plan conceived by the Respondent.”
69.6. In paragraph 140 of the Judgment, that “ The Respondent has effectively declared
the estate insolvent. This is inconceivable, given the estate could afford to offer the Applicant
a R40 million settlement a few years back and has a substantial property portfolio.”
69.7. In paragraph 140 of the Judgment, that “ The Court finds that the Respondent has
a conflict of interest, and the plans he has proposed thus far will benefit him whether he
intended that outcome or not. The Respondent’s actions, therefore, affect the welfare of the
estate as well as the legal interest of the Applicant.”
69.8. In paragraph 1 44 of the Judgment , that the appellant “… has not attempted
to seriously resolve the loan issues with the close corporation or with GRG. His handling of the
Ouplaas and Oaktree properties is less than ideal.”
70. Before considering the versions of the appellant and the first respondent in
regard to this issue, I consider it instructive to mention what is probably the only
material common cause aspect of the matter as it is pertinent to this issue: The
material common cause aspect of the matter as it is pertinent to this issue: The
appellant was bequeathed a 4% interest in Droogekraal. The joint estate has a
loan account claim of approximately R35 million against Droogekraal. The first
respondent’s former attorney thought the amount was R20 million. The
appellant corrected this and confirmed that the actual amount was R35 million.
This runs directly contrary to the thesis against him of acting against the
interests of the Estate because it prejudices the value, if any (see below – all
indications are that there is no value), of his 4% interest in Droogekraal. In my
view this (rare) common cause aspect undermines a case of conflict or
prejudice to the welfare of the estate or its beneficiaries.
71. As to the contentious aspects, the first respondent’s main contentions (the
papers are voluminous and a more comprehensive exposition of the evidence
will unduly burden this judgment):
71.1. The appellant has failed, despite demand, to indicate how he intends to
deal with Droogekraal in which he has a 4% interest and against which
the estate has a R35 million claim.
71.2. The appellant had recorded in a letter dated 17 February 2023 to the first
respondent’s then attorneys that he was “… in my capacity as executor
ex officio the only member of Droogekraal CC for purposes of liquidation
of the estate. I do not understand how I am supposed to deal with the
loan account if I do not know what the final figures thereof are. The mere
fact that a 4% interest in the CC has been bequeathed to me, has no
bearing on the decision-making process. I therefore once again deny that
there is any conflict of interest in this matter and your assertion that I
must have assisted in formulating a strategy on how to act to the
detriment of your client, is ludicrous. ” [the underlining and italics were in
the founding affidavit].
71.3. The first respondent alleged (in a letter sent by her attorneys to the
appellant on 13 September 2023) that “ It is untenable that a CC in which
you were bequeathed a 4% interest must first provide financials before
you decide how to “deal” with the loan account of nearly R20 million. We
repeat, you have a conflict of interest . While we accept that our client
might not be objective, neither was the deceased, who you represented
at all times during acrimonious litigation and whom you surely must have
assisted in formulating and executing strategy. ” [the underlining and
italics were in the founding affidavit].
71.4. The first respondent alleged in the founding affidavit with reference to the
above letter from the appellant that “ … the respondent piously and with
feigned surprise reacted to the above allegations concerning his 4%
members interest in Droogekraal”.
71.5. The first respondent also alleged that “ It is surprising that the [appellant]
could be as bold and audacious to suggest that he is not aware of the
fact that, if the liability of Droogekraal towards the estate is
disingenuously presented in an amount lower than what it actually is, the
member’s interest in the corporation, of which the [appellant] holds 4%,
would have a commensurately higher value. There is therefore every
reason to be concerned, charitably put, about the [appellant’s] inaction or
apparent reluctance in enforcing the claim of approximately R35 million
against Droogekraal. The glaring conflict of interest is self evident.”
71.6. The appellant recorded in a letter dated 11 March 2024 to the first
respondent’s then attorneys that “ The loan of Droogekraal CC obviously
forms part of the whole picture and we have in previous correspondence
to you already indicated that according to the CC’s books it amounts to
approximately R35 million. As we do not know whether it will be
necessary to liquidate the CC, we have for now not taken that figure into
account.”
71.7. In this regard the first respondent alleged that “ It is overwhelmingly clear
that, in view of the above statement, the respondent he is likely to be
called upon to make a decision whether or not to liquidate Droogekraal,
which would require him to take a position on behalf of either the estate,
or effectively his own behalf arising from his personal interest of being a
4% member in the corporation. His conflict of interest s in this context is
glaring and indisputable.”
71.8. The first respondent alleges that the appellant paid rental income from
two properties owned by Droogekraal into his own account.
71.9. The first respondent alleges that the appellant boldly violated her
constitutional property rights and that he “… initiated such violation,
introduced it into the will with the intention to give effect thereto, and now
attempted to implement the violation … ”, which evidences the “…
improper and vindictive bias that the respondent bears towards me.”
72. The appellant’s version:
72.1. “I am not aware of any legal hindrance which would disqualify me from
being a beneficiary in the estate as well as an executor.” It is noted that
this is correct in law, as dealt with above.
72.2. The 4% of the member’s interest in Droogekraal bequeathed to him “ is
probably worth nothing.”
72.3. Droogekraal, given the loan account that needs to be repaid, is in all
likelihood insolvent.
72.4. The loan account in favour of the Estate substantially exceeds the
value of Droogekraal’s assets. It however needs to be considered
whether the biggest part of the loan account has not prescribed and is
therefore not recoverable from the estate. He is in the process of
considering this.
72.5. It is incorrect that he failed to indicate how he intended to deal with
Droogekraal. He explained in a letter to the first respondent’s previous
attorneys dated 2 October 2023 that he “ … will recover the loan to
Droogekraal to the extent that it is legally recoverable. I have also made
it clear that I do not intend to at this stage put the CC in liquidation, as I
wanted to discuss a distribution plan on a reasonable and calculated
basis, by which not everything had to be sold but rather allocated in a
way that the Applicant got 50% of the value of the estate and the heirs
the balance. Obviously, I was not able to deal with the loan account
before I was provided with the financial statements, which proved to be
the correct approach because the loan account turned out to be
substantially more than the R20 million as asserted by the Applicant, to
wit R35 million.”
72.6. “I made it known that the loan account against Droogekraal was
substantially higher than the Applicant believed it to be. I can’t be
forced to take steps for the recovery thereof until I have a distribution
plan, of all the estate assets collectively. Droogekraal only owns fixed
assets. I have no reluctance in enforcing the loan account claim and
have stated as much. I however need the co -operation of the Applicant
to formulate the distribution plan, which has despite numerous requests
been completely lacking.”
72.7. “I have no issue in liquidating Droogekraal if need be. I however cannot
be forced to make that decision before [‘before’ should be ‘while’] I do
not have a distribution plan. It was the testator’s wish that Droogekraal
not be sold and that his daughter, S[...] should continue farming there. I
have therefore tried to establish whether this would be possible by
compensating the Applicant for her shar e via other available assets
and/or funds. I am duty -bound to do so. If this should eventually not be
possible, I will take the necessary steps to recover the loan account in
as far as it is recoverable.”
72.8. “I have no legal obligation to transfer a 50% membership interest in the
CC to the Applicant. She is entitled to one half of the value of the
members’ interest in Droogekraal. It is a legal entity that stands on its
own and the wish of the testator is that I should not sell the farm but
rather pay the Applicant her share which is a request I will try to honour,
should it be possible.”
72.9. He prepared what he termed a ‘ discussion document’ in the form of a
draft liquidation and distribution account, stating that “ It was merely a
discussion document and was never intended to be a liquidation and
distribution account, but rather a guideline for the discussions I had with
Applicant’s counsel. This was recorded in “ DB15”.” Annexure “DB15” is
dated 11 March 2024 and records as follows: “ The document referred
to as a L & D Account is a mere discussion document in the form of a
template and was prepared merely for purposes of the meeting with
your counsel. It was never intended to be a final document nor were the
figures related therein given to be final and accurate. This was made
abundantly clear when the document was handed to your counsel.”
72.10. No rental income has been received by the appellant from Ouplaas or
the Oaktree Guest House. The Deceased entered into an agreement
with a couple to live rent-free in the Ouplaas residence on condition that
the residence is renovated. The appellant is satisfied that renovations
are taking place as envisaged. After two years, a market related rental
will be negotiated. The Oaktree Guest House was rented out but the
lessee did not pay the rent (while the Deceased was still alive), was
evicted and left the building in a total state of neglect which the
appellant had cleaned up to make it more presentable . This was
relayed to the first respondent’s attorney in a letter dated 12 April 2024
together with his concern about that property and a request to agree to
the sale thereof because the heir thereof, S[...] B[...], has indicated that
the property may be sold. To date he has not received the courtesy of a
reply. Much of this was disputed in reply.
73. Evaluation:
73.1. There is a core dispute as to whether the appellant is conflicted.
73.2. There were no bald denials. The first qualification in Plascon-Evans
therefore does not apply.
73.3. That leaves the second qualification: whether the appellant’s version is
so palpably implausible, far -fetched or untenable as to be rejected out
of hand.
73.4. The appellant has placed on record that Droogekraal, given the loan
account that needs to be repaid, is in all likelihood insolvent and that
the 4% interest bequeathed to him is probably worth nothing.
73.5. As to Ouplaas and the Oaktree Guest House, there are clear disputes
of fact which cannot be resolved on the papers.
73.6. As mentioned above, the legal position is that while it is not per se a
conflict of interest to be a beneficiary and an executor , where an
executor is a beneficiary, his acts will be narrowly scrutinised and he
should not derive any personal benefit from the manner in which he
conducts the business or manages the assets of the estate (see Harris
and Beukman referred to above).
73.7. On the appellant’s version, the loan account and asset values are to be
determined. No case has been made out as to him, with his acts
narrowly scrutinised, having derived any personal benefit from the
manner in which he has conducted the business or managed the
assets of the estate.
73.8. There is therefore no case made out of the acts of the appellant
imperilling the administration and future welfare of the estate and of
interested parties which justifies his removal.
73.9. Subject to the next paragraph, which I think is the main aspect on this
issue, i n my view, on the facts, and applying the primary rule in
Plascon-Evans and its two qualifications, the court a quo materially
misdirected itself on the facts in regard to this aspect and its findings
listed above were not justified.
73.10. In the premise, I am of the view that first respondent’s case on this
aspect was not established.
74. There is, however, another aspect pregnant in this issue:
74.1. This is the question of the possible prescription of the ‘bigger part’ of
the loans from the Deceased to Droogekraal which was raised by the
appellant.
74.2. I agree with the first respondent that “… if the liability of Droogekraal
towards the estate is disingenuously presented in an amount lower than
what it actually is, the member’s interest in the corporation, of which the
[appellant] holds 4%, would have a commensurately higher value. ” The
word ‘disingenuously’ does not contribute to this evaluation.
74.3. While, in making the above statement, the first respondent was
addressing the determination of the actual amount of the loans
advanced, and not prescription thereof, in my view, this consideration
applies equally to prescription. The more of the loans that have
prescribed, the less that Droogekraal owes to the estate and the
greater that Droogekraal’s value may be. To illustrate by way of
hypothetical figures: if the loans after prescription, were R5 million and
the net value of Droogekraal after payment of the loans and all other
liabilities is R10 million, then the appellant’s 4% members interest is
worth R400 000 (4% of R10 million) as opposed to the zero value he
postulated in the papers.
74.4. It follows, therefore, that it would be in his personal interest for as much
as possible of the loans to have prescribed.
74.5. It is the appellant, as the executor, who must make the call on behalf of
the Estate as to whatever, if any, extent of the loans the Estate will treat
as having prescribed. Whatever he decides could result in a dispute or
could not.
74.6. This, although not completely pari passu, has echoes of what was held
in Grobbelaar referred to above: An executor will be removed from
office if he has a claim against the estate which is disputed by the heirs.
The court need not go into the validity of the claim because the
question as to who is right or wrong is irrelevant. The reason for this is
that the executor/executrix finds himself/herself in the impossible
position of having to argue for the claim as creditor and resolve the
dispute as to the claim as executor/executrix and therefore cannot be
impartial.
74.7. The reason it is not completely pari passu is because the 4% is not in
dispute and nor is the question of prescription. However, the extent of
the prescription of the loans, while not in dispute, is ‘in the air’ and
could become the subject of a dispute once resolved. On the facts of
this matter, should the extent of prescription determined by the
appellant in due course be in any significant respect, there is a prospect
that it will be contested, probably vigorously.
74.8. Had the appellant dismissed any question of prescription at the outset,
or never raised it at all, I do not consider that this would have been an
issue.
74.9. The question then is whether the fact that prescription could, at some
stage, become in dispute, is now a ground for removal or whether it
only becomes a ground for removal should a dispute arise, as was the
case in Grobbelaar at 724CG.
74.10. As pointed out in Grobbelaar, while it matters not whether the executor
is right or wrong in such a dispute, the conflict arises because there is a
dispute.
74.11. The question then is whether on these facts the appellant is disqualified
due to conflict of interest.
74.12. Grobbelaar postulates a dispute. The fact is that there is not a dispute,
yet. It will only arise if the appellant determines that there has been
prescription to an extent which does not meet the approval of the first
respondent and which she considers to be incorrect and decides to and
does dispute.
74.13. That does appear unlikely because the appellant has already indicated
that Droogekraal “… is in all likelihood insolvent and that the 4%
interest bequeathed to him is probably worth nothing.”
74.14. It would appear to me on the facts before this court that this is most
likely to be the case taking prescription into account as well (of course,
this is not a decision on that aspect which is not an issue before this
court): that by lending funds to Droogekraal of which he was the sole
member (he then believed he was not married in community of
property) the deceased had effectively lent money to himself and did
not regard the debt as due and payable there and then (it would make
no commercial sense to do so because the funds could be needed for
many years and payment of a loan account is the most tax efficient
means of extracting funds from a corporation). The result then would be
that there has been no prescription. See Stockdale v Stockdale 2004
(1) SA 68 (C) at paragraphs 12 to 18 and De Bruyn v Du Toit
(1162/2015) [2015] ZAWCHC 20 (27 February 2015) at paragraph 7,
referred to with approval and recognised as exceptions to the general
rule that debts are due and payable on coming into existence
established in Trinity Asset Management (Pty) Limited v Grindstone
Investments 132 (Pty) Limited 2018 (1) SA 94 (CC) at paragraphs 105,
125 and 126.
74.15. If, in the instance of a claim by the executor against the Estate, the
claim is not disputed by anyone, then, on my reading of Grobbelaar and
Barnett, a conflict does not arise. On the facts as they currently stand,
where there is not a dispute (and I do not apprehend one to arise
because prescription should not arise, for the above reasons), I
therefore do not consider there to be a conflict of interest along the
lines of the nature identified in Grobbelaar.
74.16. In the premise, I am of the view that first respondent’s case on this
aspect was not established.
The failure of the appellant to attend to the first respondent’s maintenance
claims and his involvement as author and initiator of the content of the Will
75. The core issue in this respect is whether out of bias, malice and vindictiveness
the appellant intentionally failed to attend to the first respondent’s maintenance
claims and was the author and initiator of the content of the Will.
76. The court a quo found:
76.1. In paragraph 123 of the Judgment that “ The Respondent had to know that the
deceased was far more ill than he acknowledged.”
76.2. In paragraph 124 of the Judgment that “ The Respondent’s allegation that he was
not involved in formulating the terms of the will is implausible.”
76.3. In paragraph 143 of the Judgment, that “ His protestations about obeying the
repugnant clauses in the will are unconvincing.”
76.4. In paragraph 144 of the Judgment, that “ His preference to pay the maintenance of
the first wife and the German body corporate for work to be done to the public spaces in the
Munich building, over his obligation to pay maintenance to the Applicant, cannot be deprecated
enough ... the Respondent agrees to halt the source of that payment in favour of paying over
R2 million to maintain the public spaces in the German building.”
77. The first respondent’s main contentions (the papers are voluminous and a more
comprehensive exposition of the evidence will unduly burden this judgment):
77.1. She has a maintenance claim of R1 415 148.19 against the joint estate
which has been long outstanding.
77.2. She alleged that the appellant’s “… refusal/neglect to make the
maintenance payments to me is however consonant and perfectly in line
with the vindictive and toxic instruction that the [appellant] himself – as
party who drafted the last will and testament of the deceased – inserted
as the last paragraph of clause 8, that reads as follows:
“I direct my executor to, should the said D[...] T[...] put in a claim of
whatsoever nature against either my South African all my German
[A]ssets, resist those claims with all means necessary and to all extents
impossible. My executor will be entitled to his reasonable fees for work
related to the opposition of any claims as mentioned above.” ”
[the underlining and italics were in the founding affidavit. The word ‘all’
in the second line is an error and in the will is ‘or’, the word ‘impossible’
in the fourth line is an error and in the will is ‘possible’ and ‘assets’ was
‘Assets’ in the will].
77.3. The first respondent alleges that the appellant “… fully intends giving
effect to a clause that he himself inserted in the will, that effectively gave
him a free hand to, reasonably or unreasonably, oppose any claims that I
institute against the estate, without considering or assessing whether it
would be prudent or reasonable to do so, and whether or not such
obstructive attitude would be in the interests of the heirs and
beneficiaries of the estate.”
77.4. The first respondent claimed that one of the Deceased’s previous wives
was preferred over her (his third wife) insofar as maintenance was
concerned.
77.5. The first respondent claimed that the appellant inserted clause 8 (quoted
above) in the Will and he intends to use it to oppose her maintenance
claims.
77.6. The first respondent alleged that at the time that the Will was signed in
April 2022 , the Deceased no longer had clear and sound mental
faculties. She said that he could barely communicate and often drifted
away in mid -sentence. She said that their children said that it was not
possible to freely communicate with him since he was always sleeping
(this was hearsay). She also said that the Deceased could barely read,
write or communicate in English.
77.7. For these reasons she alleged that the content of the Will was prepared
and recorded by the appellant. In her founding affidavit she stated that
“… it is submitted to be clear that the respondent had a substantially free
hand to record in the will what he preferred to see included therein.”
77.8. Effectively she was saying that the Will did not reflect the will of the
Deceased but rather that of the appellant.
78. Ultimately, the first respondent was alleging that the content of the Will was
authored by the appellant and that he had inserted clause 8 in the will to give
him a free hand to act contrary to her interests and that he used this to deprive
her of maintenance.
79. The appellant’s version:
79.1. The Estate is not in a position to pay the first respondent’s arrear
maintenance because there are not enough funds in the Estate and
there is also the claim for maintenance from the deceased’s second
wife, M[...] B[...], which is also substantially in arrears.
79.2. The maintenance claims of the two claimants would be paid
proportionately from the rental received.
79.3. He is not in a position to liquidate assets to pay maintenance because
the first respondent refuses to co-operate.
79.4. The appellant explained that maintenance was paid as and when cash
became available and that there was no preference.
79.5. The fact is that the first respondent’s claims were not ignored and
maintenance was paid. She was requested in writing to submit claims.
79.6. He was not aware that the Deceased was terminally ill with cancer, nor
was he ever so informed by him. He knew that the Deceased suffered
from a lung and liver issue for which he had been treated in hospital
from time to time, but was otherwise in good health until shortly before
his death.
79.7. The Deceased was well and of sound mind when he signed the Will in
April 2022. He regularly attended the appellant’s offices personally
which involved a 180 kilometre round trip from Oudtshoorn for him
which the Deceased drove himself. He communicated clearly and
properly with the appellant. He was very clear in his instructions
regarding a number of matters and his mind was clear. Had the
appellant and the Deceased’s children been of the view that he was of
unsound mind, they would not have allowed him to depose to affidavits
and would have approached the court for the appointment of a curator.
79.8. In late February 2022 , the Deceased appeared personally in a criminal
matter instituted by the first respondent against him. He made
arrangements for visits of his minor children and arranged their
passports at the German consulate. He consulted with the appellant
extensively on complex environmental regulatory matters. He never
experienced the deceased drifting off mid-sentence.
79.9. The appellant explained that he did not create or author the content of
the Will. Rather, it was dictated to him in German by the deceased and
he translated it into English. He had no role in the terms of the Will and
had nothing to do with their content. On the contrary, he cautioned the
Deceased against certain aspects thereof, explaining that “Despite me
advising on the legalities of certain aspects thereof, the deceased
insisted on the content as dictated, to be his final will, which was his
right.”
80. Evaluation:
80.1. There is a core dispute of fact as to whether the appellant intentionally
failed to attend to the first respondent’s maintenance claims and was the
author and initiator of the content of the Will , as contemplated in
Plascon-Evans.
80.2. There w ere no bald denials. The first qualification in Plascon-Evans
therefore does not apply.
80.3. That leaves the secon d qualification: whether the appellant’s version is
so palpably implausible or far -fetched or untenable as to be rejected out
of hand.
80.4. In oral argument, Mr Barnard emphasised that the rental income from the
six properties in Germany registered in the first respondent’s name was
impermissibly used to pay for the German equivalent of ‘levies’ raised by
the German equivalent of a sectional title ‘body corporate’ in respect of
properties owned by H[...] (the properties owned by H[...] and the first
respondent were all in the same development and had their own ‘levies’).
There was no evidence in the papers of payment of expenses for H[...].
Mr Barnard also contended that the rental was the first respondent’s
alone and did not fall into the joint estate, relying on the German ‘caveat’
point mentioned in paragraphs 28 and 63.15 above. For the reasons
mentioned above in regard to this point, I do not consider this argument
to be of any merit.
80.5. One might add to the factors mentioned above in respect of the
appellant’s version, that the first respondent was content to press on with
criminal proceedings in February 2022 and it was not suggested that the
Deceased had no capacity to act and did not the mental faculties to
understand the criminal proceedings which she was pressing against
him.
80.6. The appellant had advised on the legalities of certain aspects of the will,
but the Deceased insisted on the content as dictated (considered further
in the next section). While one’s legal instinct may at first blush question
an attorney formalising a will for a client which, in his or her view,
contains provisions which are not enforceable and which he or she would
not enforce (as in the case of the appellant in respect of the Will), this
cannot, in my view, warrant removal as an executor. First, the first
respondent did not take this point and it was not canvassed on the
papers. Second, the Will is that of the client, not the attorney and it is the
client’s prerogative as to what is to be included in it. Third, for the
removal of an executor, the predominating consideration remains the
interests of the estate and of the beneficiaries (as considered in the
authorities above). Fourth, it is the implementation of objectionable
provisions which must be considered by an executor, which is what the
appellant did in this matter. For example, despite clause 8 of the Will
purporting to prevent any claim by the first respondent, the appellant
requested her to file her claims, including in correspondence.
80.7. The first respondent’s allegation that the Deceased could not converse in
English appears to be contradicted in the first respondent’s replying
affidavit in which she stated that Morné Kleinhans, who was the farm
manager of the deceased for 15 years “ … had an exceptionally close
relationship with the deceased for the entire period during which he was
holding the position of farm manager, and that the deceased confided in
him concerning matters affecting almost every aspect of his personal life
and business.”
80.8. The version of the appellant as to the preparation of the Will is, in my
view, not so palpably implausible or f ar-fetched or untenable as to be
rejected out of hand (this is dealt with further in the next section). Nor is
his version as to maintenance. Similarly, his version as to not preferring
the ex-wife over the first respondent and why funds were not available.
80.9. On the facts, applying the primary rule in Plascon-Evans and its two
qualifications, I am of the view that findings of the court a quo referred to
above are material misdirections.
80.10. In the premise, I am of the view that first respondent’s case on this
aspect was not established.
Drafting of the W ill and clause 8 by the appellant alleged by the first
respondent: th is ignores the first respondent’s constitutional rights in
property being her 50% interest in the joint estate
81. The core issue in this respect is whether the appellant had conceived and
created the content of the Will, and in doing so deprived the first respondent of
her constitutional rights.
82. There is substantial overlap between this and the previous section, but I have
considered it appropriate and convenient to deal with them separately and to
deal with the evaluation of the Will aspect in some further detail in this section.
83. The court a quo found:
83.1. In paragraph 12 of the Judgment: “ It is difficult to believe that the Respondent, who
was the deceased’s lawyer, for at least 10 years, did not have a hand in drafting the will ... It is
apparent that an attorney, if not the Respondent, drew up, or at least assisted in drawing up
the will.”
83.2. In paragraph 123 of the Judgment that “ The Respondent had to know that the
deceased was far more ill than he acknowledged.”
83.3. In paragraph 124 of the Judgment that “ The Respondent’s allegation that he was
not involved in formulating the terms of the will is implausible.”
83.4. In paragraph 143 of the Judgment, that “ His protestations about obeying the
repugnant clauses in the will are unconvincing.”
84. The first respondent’s main contentions (the papers are voluminous and a more
comprehensive exposition of the evidence will unduly burden this judgment):
84.1. She alleges that the appellant “… (when he initiated and drafted the will),
as well as the deceased when he signed and executed same, totally lost
sight of the fact that I am a 50% owner of an undivided share of the
assets in the joint estate. This is evidenced by what I set out below.”
84.2. Clause 3.1 of the Will contained prohibitions as to selling or transferring
his 100% members interest in Droogekraal. The first respondent
contends that it was her constitutional entitlement to be owner of 50% of
the members interest in Droogekraal. Similar considerations apply to
clauses 5, 6.2 and 7 of the Will.
84.3. She alleged that “ It appears that the respondent and the deceased were
so driven by their malice towards me that they simply lost sight of the
limitations upon the legal competence of the deceased to make
testamentary dispositions in respect of the entirety of a joint estate,
including the 50% part thereof of which I am the owner.”
84.4. She alleged that the appellant “… ( as initiating party who drafted the will
clearly made recommendations to the deceased), together with the
deceased, then proceeded to gratuitously vent their spleen in a toxic
display of animosity towards me, recording that the “reasons for
disinheriting me were …” and she then quoted clauses 8.1 to 8.3 of the
Will (quoted above).
85. Ultimately, the first respondent was alleging that the appellant had from his own
initiative produced the Will in a toxic display of malice and animosity towards
her, losing sight of legalities and the first respondent’s property rights.
86. The appellant’s version:
86.1. The Will was signed on 19 April 2022. In it , the Deceased accepted that
community of property applied to his marriage to the first respondent.
86.2. Clause 8 disinherits the first respondent and instructs the executor to
resist all her claims.
86.3. However, none of that can be imputed to the appellant.
86.4. This is because the appellant’s version was that he had nothing to do
with the terms of the Will – he did not prepare them or have anything to
do with their content. They were simply dictated to him by the Deceased.
The Deceased did this by giving him oral instructions in German at a
consultation which the appellant translated into English. The appellant
recorded that had he been the author of the Will , it would have looked
different. He contends that i t is ludicrous and defamatory to aver that he
drafted a will for the Deceased to suit himself.
86.5. The appellant denied that he had anything to do with the substantive
content of the Will or that he advised the Deceased on the content
thereof and/or dictated the content thereof. He stated that “… the content
of the will was dictated to me by the deceased.” This was done in
German and translated into English by the appellant.
86.6. He recorded in his affidavit that he can only follow lawful directions given
by the Deceased and has made it abundantly clear in correspondence to
the first respondent and her legal representatives that he will not follow
directions which are unlawful and/or ethically untenable.
86.7. The appellant pointed out that the content of clause 6 of the Will which
deals with jewellery and furniture bequeathed to the Deceased by his
parents could only have come from the Deceased, which supports his
version that the Deceased had dictated the terms of the Will to him.
86.8. As to content of the will which might be objectionable or unlawful , he
stated: “Despite me advising on the legalities of certain aspects thereof,
the deceased insisted on the content as dictated, to be his final will,
which was his right.”
86.9. The appellant cautioned and advised the Deceased on the legalities of
some aspects of the Will but the Deceased insisted that they be
included.
87. Evaluation:
87.1. There is a core dispute of fact as to whether the appellant conceived
and drafted the terms of the will, as contemplated in Plascon-Evans.
87.2. There were no bald denials. The first qualification in Plascon-Evans
therefore does not apply.
87.3. That leaves the second qualification: whether the appellant’s version is
palpably implausible, so far-fetched or untenable as to be rejected out
of hand.
87.4. The first respondent had no direct knowledge as to whether the
appellant had conceived and drafted the terms of the Will.
87.5. The appellant explained what actually happened in his interaction with
the Deceased in regard to the Will. This is dealt with in some detail in
the above section. I do not think that this is so far-fetched or implausible
or untenable as to be rejected on the papers. In my view, to have done
so was a misdirection by the court a quo.
87.6. I think that the finding in paragraph 12 of the Judgment quoted above
has pregnant in it a misdirection: the fact that an attorney must have
assisted in drawing up the Will document (i.e. reducing it to writing) –
with which I agree, simply because of its format and legalistic wording –
does not mean that the attorney authored or initiated or created the
actual substantive content of the Will. Of course , the document which
embodies the Will was put together , was formatted and made use of
‘legalese’ in its presentation with the input of an attorney. The
misdirection which I perceive is that this does not mean that the
attorney play ed a part in the creation and authoring of its content. I
consider that the first respondent conflated the physical creation of the
document embodying the Will in formal legal parlance and format with
the creation and authoring of the substantive content thereof and that
the court a quo made the same misdirection.
87.7. Indeed, on the contrary, the appellant’s version is that he actually
cautioned the Deceased on the legalities of certain aspects of the Will,
but the Deceased declined to follow that advice.
87.8. The direction in clause 4 of the Will to pay out half the value of the
members interest in Droogekraal to the first respondent is effectively
the function of an executor in this situation, in that “ … the person to
liquidate the estate is the executor of the first dying, acting in
consultation with the survivor, and that the survivor was entitled to one
half of the nett residue of the estate after it was liquidated and the debts
of the joint estate were paid. ”: Hare v Estate Hare 1961 (4) SA 42 (W)
at 45H; see also Costain v Godden 1960 (4) SA 458 (SR) at 461E,
Hitzeroth v Brooks 1965 (3) SA 444 (A) at 452C-E.
87.9. As mentioned, the appellant has also stated that he did not author the
terms and content of the will, had advised against the legalities of
aspects thereof and will not act in terms of anything therein which is
illegal or unethical. On his version he has not done anything illegal or
unethical.
87.10. The first respondent contended that the disposition of 4% of the
members interest in Droogekraal made him a direct and complicit party
in despoiling the first respondent of her property rights. I disagree, for
the above reasons (including the appellant’s version that he did not
author the Will) and because the Deceased could in law only dispose of
his undivided half share in the members interest (to that extent, any
contrary provision in the Will would not be legally effective: Costain v
Godden 1960 (4) SA 458 (SR) at 460H, approved in Hitzeroth at 452C).
In other words, were 4% of the members interests to be transferred to
the appellant (which I consider unlikely because of the function of the
executor in dealing with the Estate and the facts of the matter, both
mentioned above), it could only come from the deceased’s half share
and the first respondent retains her half share (whether in the form of
the members interest itself or the monetary value thereof).
87.11. In my view, the appellant’s version is not palpably implausible or so far-
fetched or untenable as to be rejected out of hand , which has the
consequence that any of the objectionable or unlawful terms in the Will
are not to be attributed to him and his version that he will not act in
terms of anything therein which is illegal or unethical and had also
advised the Deceased against the legality of aspects of certain of the
proposed content of his Will, must be accepted.
87.12. On the facts, applying the primary rule in Plascon-Evans and its two
qualifications, I am of the view that the court a quo erred in accepting
the version that the appellant had conceived and drafted the Will and in
rejecting his version.
87.13. In the premise, I am of the view that this is a material misdirection and
the first respondent’s case on this aspect was not established.
The launching of the interdict application against the first respondent on 22
May 2024
88. The core issue in this respect is whether the launching of the interdict
application on 22 May 2024 showed that the appellant was biased against the
first respondent. The relief sought was to interdict the first respondent from
interfering with the administration of the estate of the deceased and dealing
with the assets falling within the joint estate.
89. The first respondent’s main contentions (the papers are voluminous and a more
comprehensive exposition of the evidence will unduly burden this judgment):
89.1. This application was an attempt to circumvent the decision of the
German court on 30 November 2023 which confirmed that she could
proceed with her litigation in Germany.
89.2. She alleges that this “… is fully consonant with the vindictive and t oxic
attitude that the respondent has exhibited in his dealings against me,
from the inception of the divorce action in 2014, to date hereof. ” and
demonstrates “… the intransigent inability of the [appellant] to act in an
even-handed, fair and objective manner, in matters involving the
interests of parties such as myself, in the joint estate.”
89.3. She states that the order was granted on the appellant’s founding papers
and she did not put in a version. She stated that she considered an
appeal but was advised that the order was interim and would not be
appealable.
90. Ultimately, the first respondent was alleging that the appellant was biased
against her and was not able to act in an even -handed, fair and objective
manner.
91. The appellant’s version:
91.1. The interdict application was granted by this court on an interim basis on
6 June 2024. It was launched on 22 May 2024.
91.2. After hearing counsel, the first respondent was interdicted and restrained
from interfering with the administration of the estate or dealing with any
of its assets, but this excluded the pending litigation in Germany. A copy
of this court’s order was attached to the answering affidavit.
91.3. The application was brought at the instance of the deceased at a time
when he was still in a position to clearly understand the content thereof.
He gave the appellant full and proper instructions. The reason he gave
for the application was that he wished to have the divorce finally
adjudicated.
91.4. The appellant was not the initiative behind the application.
92. Evaluation:
92.1. There is a core dispute of fact as to whether the appellant was biased
against the first respondent and was not able to act in an even -handed,
fair and objective manner, as contemplated in Plascon-Evans.
92.2. There were no bald denials. The first qualification in Plascon-Evans
therefore does not apply.
92.3. That leaves the second qualification: whether the appellant’s version is
so palpably implausible or far-fetched or untenable as to be rejected out
of hand.
92.4. In paragraph 99 of the Judgment the court a quo held that “… the
surviving spouse is an automatic heir to half of the joint estate ”. This is
legally incorrect. She is not an heir but the owner of an undivided half
share of the joint estate. It also contradicts what was, in my view
correctly, said earlier in the Judgment, namely that the first respondent
“is neither heir nor beneficiary of the deceased’s will”.
92.5. I have already indicated that, in my view, on the papers, the court a quo
erred in accepting the version that the appellant had conceived and
drafted the Will.
92.6. In my view, as to constitutional rights to property, the first respondent
retains her entitlement to an undivided half share of the members
interest in Droogekraal, i.e. an effective 50%. The deceased bequest of
4% to the appellant would come from his effective 50%. She is not
deprived of any rights to property.
92.7. On the facts, applying the primary rule in Plascon-Evans and its two
qualifications, I am of the view that this it was a material misdirection for
the court a quo to decide otherwise.
92.8. In the premise, I am of the view that first respondent’s case on this
aspect was not established.
93. In line with what is mentioned in the first paragraph of this judgment, I have
considered the evidence through the prism of Plascon Evans and, for the
reasons articulated in detail above, have come to the conclusion that none of
the material grounds on which the first respondent relied in her papers were
established. As a result, in my view, there was no material averred and relied
upon which was established on the evidence for the section 54(1)(a)(v)
determination to be made in the first respondent’s favour.
The tone of affidavits
94. The tone of the first respondent’s affidavits requires some attention and
comment. Criticism of the appellant in emotive and aggressive terms was made
by the first respondent in the papers. The following were some of what was
employed in respect of appellant: ‘ perjurious allegations’, ‘venom’, ‘risible and
startlingly disingenuous’, ‘vindictive and toxic ’, ‘driven by malice ’, ‘toxic display
of animosity’, ‘venting his spleen’ and ‘cloak and dagger’.
95. Knoop NO and Another v Gupta and Another 2021 (3) SA 88 (SCA) at
paragraph 145 reminds legal practitioners about the care that is required when
affidavits are drafted. It cautioned against allegations cast in emotive terms that
are not borne out by any evidence. And it reminded legal practitioners that
serious allegations of misconduct against opponents should only be made “…
after due consideration of their relevance and whether there is a tenable factual
basis for them.”:
“[145] Before concluding it is appropriate to remark that the application papers in this matter
reflect little credit on the legal practitioners responsible for their preparation. They were replete
with allegations in emotive terms not borne out by any of the evidence. Ms Ragavan's allegations
against the BRPs did not stand up to scrutiny and the charges of incompetence, conflict of
interest, lack of independence, a failure to live up to the high professional standards expected of
BRPs and the like, were unwarranted. It should not be necessary to remind legal professionals
who draft affidavits for their clients that they bear a responsibility for the contents of those
documents and may not use them for the purpose of abusing their client's opponents. Such
allegations should only be made after due consideration of their relevance and whether there is a
tenable factual basis for them. This aggressive tone was likewise reflected in the affidavits of Mr
Knoop where he described Ms Ragavan and others as 'Gupta acolytes', an expression more
appropriate to a newspaper report than an affidavit. On many points, he would have been better
advised to set out greater detail and less rhetoric. As to some of the correspondence between
advised to set out greater detail and less rhetoric. As to some of the correspondence between
the attorneys, the less said the better. It was marked by aggression, hostility and accusations but
little of great relevance to the case and little that reflected well on the authors.”
Conclusion
96. In my view, for the above reasons, the appeal should succeed and the order of
the court a quo varied to the application before it being dismissed
Costs
97. There is no reason why the appellant, having been successful in the appeal,
should not be awarded his costs in respect thereof and of the application before
the court a quo . He was, by means of an amendment, cited in his personal
capacity. The appellant and the first respondent both advocated scale C and I
do not see any reason for it not to apply.
Order
98. In the premise, I propose that the following order be granted:
1. The appellant’s application to adduce further evidence on appeal is granted, with costs to be
costs in the appeal.
2. The first respondent’s application to adduce further evidence on appeal is dismissed, with costs
to be costs in the appeal.
3. The appeal is upheld with costs, including the costs of the application for leave to appeal to this
court and to the Supreme Court of Appeal, with scale C applying to the costs in this court.
4. The order of the court a quo is varied to be as follows: ‘The application is dismissed with costs,
with scale C applying.’
_________________
A Kantor
Acting Judge of the High Court
I agree, and it is so ordered:
______________________
A Le Grange
Judge of the High Court
Lekhuleni J:
[1] I have had the benefit of reading the judgment of my colleague, Kantor AJ (the
first judgment). Regrettably, I disagree with the conclusion it reaches particularly in
the setting aside of the judgment of the court a quo. In my view, the appeal should
fail. However, I agree with the views expressed in the first judgment in respect of the
preliminary issues relating to the application to adduce further evidence on appeal.
[2] The central issue in this appeal is whether the court a quo erred in granting an
order removing the executor, the appellant herein, as the appointed executor in the
estate of the late M[...] B[...] (“the deceased”), who died on 29 January 2023.
[3] As will be demonstrated hereunder, I hold the view that in the circumstances of
this case, the appointed testamentary executor (the appellant) is conflicted and thus,
it is undesirable that he should continue his work as the executor of the deceased’s
estate. I further believe that the hostility that existed between the deceased’s wife
(“first respondent”) and the testamentary executor who represented the deceased as
his attorney of record in various matters against the first respondent as well as the
predisposition of the appellant towards the deceased’s son, makes it undesirable for
him to continue as an executor in the estate of the deceased. I further believe that it
will be problematic for the appellant, as the executor, to make impartial judgments
while fulfilling his duties, especially concerning the first respondent, who is the
surviving spouse of the deceased.
Background
[4] The factual background has been succinctly set out in the first judgment;
however, to give context to the conclusion that I reach and to the order I propose
hereunder, I deem it prudent to give a summary of the background facts that
underpin my reasoning on the central issue in this appeal. The first respondent and
the deceased were married in community of property on 6 February 2006 at
Oudtshoorn, South Africa. During the marriage, both the deceased and the first
respondent believed they had been married in accordance with German law, that is,
out of community of property with accrual, as the deceased was a German citizen,
and the first respondent was a Filipino citizen. In 2012, the parties' marriage
relationship began to break down. Thereafter, in November 2013, the first
respondent informed the deceased of her intention to institute divorce proceedings.
[5] Subsequent thereto, the deceased immediately approached their family lawyer,
one Fanie Roux (“Roux”), for advice on what steps to take to address the first
respondent’s intended action. Roux gave the deceased, and the first respondent
advice contained in a letter setting out that the deceased and the first respondent
were married in community of property and that each would have a claim equal to 50
per cent against the joint estate. Roux also suggested a settlement between the
parties and made settlement proposals to the first respondent. Pursuant thereto, the
first respondent consulted her attorney and subsequently rejected the proposal.
[6] After that, the deceased donated some of his German properties to his son, born
from his first marriage, H[...] B[...] (“H[...]”). In respect of those properties, the
deceased obtained the rights of a usufructuary, with the full power to utilise the
properties and to receive income therefrom. The first respondent believed that her
husband, the deceased herein, dissipated most of the German properties by
transferring them to his son H[...] upon being advised that the marriage between
transferring them to his son H[...] upon being advised that the marriage between
them was in community of property. The first respondent asserted that H[...] and the
deceased unlawfully collaborated to facilitate this disposition. She never consented
to such transactions, which, according to her, violate the provisions of section 1,
15(2)(a) and 15 (3) of the Matrimonial Property Act 88 of 1984 (“the Matrimonial
Property Act”). The first respondent therefore instituted action in the courts of Munich
in accordance with German law to impugn the validity of the dispositions. H[...]
opposed the proceedings.
[7] In the interim, the marriage relationship between the parties deteriorated, giving
rise to the first respondent instituting divorce proceedings against the deceased in
January 2014 in the Eastern Circuit Local Division of the High Court, in George. The
divorce proceedings between the first respondent and the deceased continued until
29 January 2023, when the deceased passed away, and the death of the deceased
dissolved their marriage. The appellant was nominated as the executor of the
deceased’s last will dated 19 April 2022. The appellant accepted such nomination
and was subsequently appointed as executor on 23 May 2023.
[8] As noted in the first judgment, the first respondent successfully applied to the
court a quo for the removal of the appellant from his office as executor, as well as
other relief ancillary thereto and in relation to his remuneration in that capacity. The
appellant appeals the decision of the court a quo to this court, having obtained leave
from the Supreme Court of Appeal, as the court a quo declined to grant leave to
appeal. In this appeal, the appellant seeks a reversal of the order made by the court
a quo.
Applicable legal principles
[9] It is trite that the removal of an executor is a very drastic step which the court will
not lightly grant. Segal v Segal 1979 (1) SA 503 (C). The removal of the executor
from his position involves the exercise of a discretion. The discretion vested in the
High Court to remove an executor in terms of section 54(1)(a)(v) of the
Administration of Estates Act 66 of 1965 (“the Administration of Estates Act”) is a
discretion in a true sense. Die Meester v Meyer en Andere 1975 (2) SA 1 (T). It is a
well-settled principle that the power to interfere on appeal in matters of discretion is
strictly circumscribed. In Ex parte Neethling and Others 1951 (4) SA 331 (A) at 335
Greenberg JA, indicated that the question in such a case is whether ‘the Court a
Greenberg JA, indicated that the question in such a case is whether ‘the Court a
quo has exercised its discretion capriciously or upon a wrong principle, that it has not
brought its unbiased judgment to bear on the question or has not acted
for substantial reasons’. (See also Benson v SA Mutual Life Assurance
Society 1986 (1) SA 776 (A) at 781I–782B. That, in my view, is the approach which is
to be adopted in the instant case.
[10] In Trencon Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd and Another 2015 (5) SA 245 (CC) para 83, (“ Trencon”) the Constitutional
Court observed that in order to decipher the standard of interference that an
appellate court is justified in applying, a distinction between two types of discretion
emerged in our case law. That distinction is now deeply rooted in the law governing
the relationship between appeal courts and courts of first instance.
[11] The Court noted that the proper approach on appeal is for an appellate court to
ascertain whether the discretion exercised by the lower court was a discretion in the
true sense or whether it was a discretion in the loose sense. The distinction between
the two is made for the purposes of determining the extent of an appellate court’s
power to substitute its own determination for that of the court a quo where the
decision in point is accepted to have involved the exercise of ‘a discretion’. See also
S v Tafeni 2016 (2) SACR 720 (WCC) para 6.
[12] A discretion in the true sense is found where the lower court has a wide range of
equally permissible options available to it. The lower court has an election of which
option it will apply, and any option can never be said to be wrong, as each is entirely
permissible. In contrast, where a court has a discretion in the loose sense, it does not
necessarily have a choice between equally permissible options. A discretion in the
loose sense means no more than that the court is entitled to have regard to a
number of disparate and incommensurable features in coming to a decision. See
Knox D'Arcy Ltd and Others v Jamieson and Others 1996 (4) SA 348 (A) at 361I.
[13] In National Coalition for Gay and Lesbian Equality and Others v Minister of
Home Affairs and Others 2000 (2) SA 1 (CC) para 11, the Constitutional Court
emphasised that when a lower court exercises a discretion in the true sense, it would
emphasised that when a lower court exercises a discretion in the true sense, it would
ordinarily be inappropriate for an appellate court to interfere unless it is satisfied that
this discretion was not exercised judicially, or that it had been influenced by wrong
principles or a misdirection on the facts, or that it had reached a decision which in the
result could not reasonably have been made by a court properly directing itself to all
the relevant facts and principles.
[14] Section 54 of the Administration of Estates, deals with the removal of executor
from office. Section 54(1)(a)(v) which is pertinent to the instant case provides:
‘An executor may at any time be removed from his office if for any other reason
the court is satisfied that it is undesirable that he should act as executor of the
estate concerned.’ (emphasis added)
[15] Section 54(1)(a)(v) of the Administration of Estates Act endows a court with a
discretion to remove an executor from his position if it is undesirable for the executor
to continue to act as the executor of the estate of the deceased. A court may make
this finding without any finding that there has been wrongdoing on the part of the
executor as contemplated in section 54(1)(a)(ii), (iii) or (iv) of the Administration of
Estates Act. See Reichman v Reichman at [2011] JOL 28151 (GSJ) para 24.
[16] The common law principle affirmed in Grobbelaar v Grobbelaar 1959 (4) SA 719
(A) at 724F -G, is that the Court is vested with a discretion to remove an executor
from office if his personal interests are in entire conflict with the interests of the
estate. In the exercise of its power to appoint or remove an executor, the Court will
pay close attention to the wishes of the testator as expressed in or implied from the
terms of the will. The Court cannot, however, necessarily be bound by these wishes
even to the detriment of the beneficiaries to whose interest it must equally clearly
have regard. See Port Elizabeth Assurance Agency & Trust Co Ltd v Estate
Richardson 1965 (2) SA 936 (K) at 940.
[17] Meyerowitz The Law and Practice of Administration of Estates and Estate Duty
(2007) at 11 – 2, notes that where an executor's private interests conflict with those
of the estate, he may be removed from office. If an application is made for the
removal of an executor on the ground that he has made a claim against the estate
which is disputed by the heirs, it is not necessary for the Court to go into the validity
which is disputed by the heirs, it is not necessary for the Court to go into the validity
of the claim, as the question as to who is right or wrong is irrelevant. The executor
finds himself in the impossible position on the one hand having to fight for his claim
as a creditor and on the other hand having as executor to defend the estate against
the same claim; he cannot remain impartial.
[18] In determining an application in terms of section 54(1)(a)(v), Scholtz AJ in
Reichman v Reichman (supra), concluded from a review of relevant authorities that
the court may exercise its power under this section where there is a conflict of
interest between the executor in his capacity as executor and his personal capacity,
such as where there is a dispute between the executor and other beneficiaries
concerning their entitlement to benefit from the estate. Importantly, as foreshadowed
above, the court was satisfied that even where there was no finding of wrongdoing
on the part of the executor, the facts established it was undesirable for him to
continue to act as executor.
[19] In Van Niekerk v Van Niekerk and another [2011] 2 All SA 635 (KZP) paras 10
and 11, Wallis J, observed that the executor of an estate has broader responsibilities.
The executor is given the custody and control of all the property in the estate (section
26(1) of the Act). The executor is not a mere agent for the heirs. As soon as possible
after letters of executorship have been granted, the executor must cause a notice to
be published calling upon all persons having claims against the estate to lodge such
claims (section 29(1). The executor must consider these claims and having done so,
may dispute them (section 32) and reject them ( section 33). Thereafter, the admitted
claims and any rejected claims that are proved against the estate in legal
proceedings must be included in the liquidation and distribution account and paid, in
order of preference, before the claims of legatees and heirs.
[20] The court emphasised that an executor is obliged to exercise these powers bona
fide and with a measure of objectivity. In dealing with a claim, he or she should
assess its merits on a fair consideration of the facts and its legal merits. The court
noted that it is not proper for an executor to reject claims against the estate without
some good reason to do so.
some good reason to do so.
[21] From the principles discussed above, it is apparent that the Court must be
satisfied that there are some acts or conduct on the part of the executor which
demonstrate or prove that it is undesirable for him to continue as executor. It is not
any dispute which causes the executor of an estate to become susceptible to
removal at the instance of the court. M ere 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. Oberholster NO and others v Richter [2013] 3 All SA 205
(GNP) para 17.
[22] Expressed differently, there has to be a proven conflict of interest or facts which
demonstrate that he is incapable of impartial administration of the estate to the
detriment or prejudice of the estate, and consequently its heirs or beneficiaries. See
SNS and another v Master of the KwaZulu -Natal High Court, Pietermaritzburg and
others paras [2015] JOL 33962 (KZP) para 30.
Discussion
[23] The court a quo considered the provisions of s 54(1)(a)(ii) and s 54(1)(a)(v) of
the Administration of Estates Act and found that there was a manifest conflict of
interest in the appellant acting as an executor in the deceased’s estate. The court a
quo found that the appellant’s actions suggest an undue inclination to promote H[...]’s
interests over those of the first respondent. The court opined that the respondent’s
preference to pay maintenance to the first wife and the German body corporate for
work to be done to the public spaces in the Munich building, over his obligation to
pay maintenance to the first respondent, cannot be sufficiently deprecated.
[24] In the view of the court a quo, the first respondent had to resort to litigation to
obtain a commitment to get maintenance payments. Yet shortly after that, the
appellant agreed to halt the source of that payment and pay over 2 million to
maintain the public spaces in the German building. In my opinion, the findings of the
court a quo indicating a conflict of interest in the appellant serving as the executor of
the estate are beyond criticism and should not be disturbed.
[25] It is common cause that the appellant, the testamentary executor herein, as an
[25] It is common cause that the appellant, the testamentary executor herein, as an
attorney of the deceased, represented the deceased in acrimonious litigation against
the first respondent, which was directed to restrain the first respondent’s entitlement
to a fair half share of the joint estate. This commenced on 24 January 2014, when
the first respondent instituted divorce proceedings against the deceased and sought
a decree of divorce with further ancillary relief. From the inception of the divorce
proceedings and throughout thereafter, the deceased was represented by the
appellant as his attorney of record. The deceased initially denied that the marriage
between them was in community of property. That denial culminated in an
application, launched in this court under case 10019/2014, for an order declaring that
the marriage between the parties was in the community of property.
[26] The deceased opposed the application. The appellant was the deceased’s
attorney of record when the application was heard. As detailed below, whilst it is
accepted that the appellant was acting on behalf of the deceased, his client, it must
be emphasised that the appellant demonstrated a mindset that is unfriendly towards
the first respondent and favoured his client and H[...] even after the deceased’s
death. The application for the determination of the parties’ marriage regime was
heard on 28 October 2014 before Cloete J. On 2 December 2024, Cloete J granted
the relief sought and found that the marriage between the deceased and the first
respondent was in community of property. The deceased, represented by the
appellant, sought leave to appeal, but both Cloete J and the Supreme Court of
Appeal denied it.
[27] It is common cause that the deceased, assisted by the appellant, filed a
counterclaim against the first respondent, seeking an order for forfeiture of benefits.
Essentially, it was contended that the first respondent should not receive any share
of the joint estate despite the determination of Cloete J finding that the parties were
married in community of property and that the first respondent is entitled to 50 per
cent of the joint estate. Ostensibly, the prayer for forfeiture in terms of section 9(1) of
the Divorce Act 79 of 1970, was predicated on shaky grounds as it was subsequently
withdrawn.
withdrawn.
[28] It is also common cause that the first respondent brought an application to
amend her particulars of claim in the divorce action by introducing averments that the
deceased had fraudulently dissipated the German properties with the intention of
placing them beyond the first respondent’s reach and beyond the reach of the joint
estate in contravention of the provisions of the Matrimonial Property Act. The first
respondent sought to introduce a prayer declaring that the disposition of the
properties to H[...] was null and void and that the properties formed part of the joint
estate. The deceased objected to the proposed amendment and refused to provide
any further particulars in respect of the German properties. Still, the appellant
represented the deceased in that application as well as in the first respondent’s
application for further and better particulars.
[29] I am mindful that the appellant was representing his client and advancing his
interests when he acted on behalf of the deceased. However, it is notable that the
appellant, acting as the deceased's attorney, represented the deceased in a
contentious legal battle against the first respondent. Essentially, the litigation sought
to deny the first respondent’s right to a fair share of the joint estate, despite the
parties being married in community of property. Crucially, the appellant also served
as the deceased's attorney shortly before the deceased's death in litigation aimed at
depriving the first respondent of the deceased's German assets.
[30] Concernedly, as will be discussed below, the appellant’s correspondence to the
German court for the withdrawal of the first respondent’s case against H[...] for
properties which do not form part of the joint estate raises serious concerns. The
failure to pay maintenance from the estate that the first respondent requested for
herself and her children is indeed troubling. This situation not only raises serious
concerns about the fairness and objectivity of the appellant but also highlights
potential bias that could affect the heirs, particularly the first respondent.
[31] As the court observed in Van Niekerk v Van Niekerk and another [2011] 2 All SA
635 (KZP) paras 156H-I, whilst the executor of an estate may be vigorous in resisting
a claim that he or she regards as doubtful and this may result in acrimony between
a claim that he or she regards as doubtful and this may result in acrimony between
the executor and the claimant, the proper execution of the duties of an executor
demands, a measure of impartiality and fair treatment in dealing with claims against
the estate. From a conspectus of all the evidence, I am of the view that the appellant
did not treat the first respondent fairly and objectively as he did with H[...]. This is, in
my view, is a compelling reason for the removal of the appellant as an executor. I will
address the appellant’s relationship with H[...] at a later point in this judgment.
[32] The dispute raised by the first respondent as to who prepared the will between
the appellant and the deceased is, in my view, neither here nor there. If the first
respondent disputes the contents of the will, the first respondent should have
challenged the validity of that will. That was not done, and I need not say more than
that. For the purposes of this judgment, I accept that the appellant prepared the will
of the deceased at the instructions of the deceased. Consequently, I will not deal with
the issue relating to the disputes of fact that the first judgment traverses. To this end,
I agree with the first judgment on the legal principles espoused governing the
resolution of factual disputes.
[33] Notwithstanding, I am of the firm view that the appellant had an ethical and legal
duty to advise the deceased of the contents of his will and to ensure that it complied
with the law and the Constitution. As the court a quo pointed out, the appellant had a
duty to be fully involved in giving the deceased appropriate and thorough advice on
what was achievable and appropriate under South African law when he dispensed
advice on the contents of the will. In clause 3.1 of the will, the following is stated:
‘I direct that my membership in the Droogekraal Meulenrivier Farm CC, as well as my
share of the property situated in the van der Riet Street, Oudtshoorn, may not be sold
or transferred other than directed herein…’
[34] In clause 4 of the will, the deceased bequeathed 100 per cent of the members’
interest in the Droogekraal CC to various heirs, including 4 per cent to the appellant.
It is incontestable that the first respondent remained constitutionally entitled to be the
owner of 50 per cent in the members’ interest in the corporation. The deceased did
not at all specify that clause 4 of his will concerns only his 50 per cent share. It is
clear from the will that the first respondent was unconstitutionally denied her
clear from the will that the first respondent was unconstitutionally denied her
entitlement to 50 per cent of the members’ interest in the close corporation. The
appellant contended that he is not the initiator nor the drafter of the will and cannot
dictate to a testator what he should state in his will. In the context of this matter, I do
not agree with this proposition. The deceased was a German citizen who relied on
the appellant for legal advice on what was lawfully achievable and appropriate under
South African law, when the appellant dispensed advice to the deceased on the
contents of the latter’s will.
[35] I appreciate the argument of Ms McChesney, the appellant’s counsel, that
freedom of testation provides for the right of the testator to determine the contents of
his will even where contrary to advice received or legally enforceable. It must be
stressed that freedom of testation itself is constitutionally protected as it implicates
the rights to property, dignity and privacy. see Wilkinson and Another v Crawford NO
and Others 2021 (4) SA 323 (CC), para 70 . Freedom of testation entails a testator's
right to dispose of his estate as he pleases in a will, provided that the disposition is
lawful and is not contrary to public policy. Harvey NO and others v Crawford NO and
2019 (2) SA 153 (SCA) para 56. Simply put, there are various restrictions on freedom
of testation. These include: (a) effect will not be given to testamentary dispositions
which are illegal, contrary to public policy or vague; See Minister of Education v
Syfrets Trust Ltd NO 2006 (4) SA 205 (C); (b) restrictions imposed by legislation.
[36] I find the expression of Jafta J, in King N.O and others v De Jager and others
[2021] JOL 49722 (CC), apposite. The learned justice stated:
‘[124] Therefore, it cannot be gainsaid that freedom of testation, as a right, is
protected in our law. It is protected not only because it forms part of our common law,
but also because it advances the values of freedom and dignity which are the
foundation of the Constitution, our supreme law. The importance of freedom of
testation to our law of succession was affirmed by this Court in Moosa NO.
[125] But freedom of testation, important as it is, is not a licence for testators to act
unlawfully. This means that a testator may not dispose of her property in a will or trust
deed by unlawful methods. Nor can she impose unlawful conditions. If she does any
of these things, she renders the will unenforceable to the extent of the unlawfulness.
This is because a testator cannot, after departing from this world, do what she could
This is because a testator cannot, after departing from this world, do what she could
not achieve in her lifetime. The right of ownership, of which freedom of testation
forms part, entitles the owner to do as she pleases with her property, as long as what
she chooses to do is permissible under the law.’ (footnotes omitted and emphasis
added)
[37] Whilst it is accepted that the deceased enjoyed the freedom of testation, it must
be stressed that the appellant, as the deceased’s attorney of record, had a legal and
ethical duty to advice the deceased and ensure that the deceased’s will was lawful
and complied with the law. Consistent with the Code of Conduct for all legal
practitioners, the appellant had a duty to treat the interests of his client as
paramount, provided that his conduct was subject always to his duty to the court; the
interests of justice; the observance of the law ; and the maintenance of the ethical
standards prescribed by the Code. The appellant knew that the deceased and the
first respondent were married in community of property as determined by the court.
[38] That court order constitutionally entitled the first respondent to 50 per cent of the
members’ interest in the close corporation. If the first respondent were to be not
interested in owning such percentage or portion of the total membership interest, she
would be entitled in terms of the provisions of the Close Cooperation Act 69 of 1984,
to sell same at the market related price in terms of and in according with the
requirements of the relevant sections in the Close Cooperation Act.
[39] In my view, the appellant had a duty to advise the deceased accordingly and not
allow a clause that essentially conflicted with the court order of Cloete J to form part
of the will. Crucially, clause 4 of the will that disinherits the first respondent benefits
the appellant by granting him 4 per cent of the members' interest. At the same time, it
clearly disadvantages the first respondent by disinheriting her.
[40] The appellant’s entitlement to a bequest of 4 per cent from the 100 per cent
members’ interest compounds the difficulty. Notably, the will does not specify that the
4 per cent shall be from the deceased’s 50 per cent share. Instead, it is bequeathed
from the totality (100 per cent) of the members’ interests. As discussed above, I
accept that the appellant is not the initiator of the will; however, I find it strange that
when the appellant translated the deceased’s will from German to English, he must
have noted that the deceased is unlawfully disinheriting the first respondent of her 50
per cent and instead bequeathing the 4 per cent to him. This, in my view, raises
concern about the appellant’s objectivity and impartiality towards the first respondent.
[41] I acknowledge the freedom of testamentary disposition. However, as the
[41] I acknowledge the freedom of testamentary disposition. However, as the
attorney representing the deceased, I believe the appellant should have taken care
to ensure that the allocation of 4 per cent of the member's interest to himself, along
with the disinheritance of the first respondent, does not unlawfully conflict with the
court order that declared the marriage of the parties to be in community of property.
The conflict further arises from the lack of specificity regarding whether the payment
was to come from the deceased's 50 per cent share or that of the first respondent.
Mr Barnard, counsel for the respondent, submitted that the disposition of 4 per cent
of the members’ interest in the close corporation to the appellant personally made
the appellant a direct party in the despoiling of the first respondent’s property rights.
[42] As adumbrated above, in terms of the deceased’s will, the appellant was
bequeathed 4 per cent of the members’ interest in the close corporation; Droogekraal
Meulenrivier Farm. The close corporation is indebted to the estate (loan account) in
the sum of approximately R35 million. Simply put, the appellant is a beneficiary of
members’ interests in the close corporation that is indebted to the estate, which the
appellant, as the executor, is entrusted to administer. The first respondent’s attorney
has requested the appellant to indicate how he intended to deal with the close
corporation and its indebtedness to the estate. In response, the appellant indicated
that, as he did not know whether it would be necessary to liquidate the close
corporation, he had not yet considered the R35 million debt.
[43] The appellant is likely to be required to make a decision regarding the potential
liquidation of the close corporation. This will necessitate him to adopt a position that
favours either the estate or, conversely, acts against his own interests with respect to
his 4 percent membership interest in the close corporation. The appellant also raised
the question of the prescription of this claim. He must determine whether the claim
has prescribed or not. In one of his correspondences to the first respondent’s
attorneys, he stated that it needs to be determined whether the biggest part of the
loan account has not prescribed and is therefore not recoverable from the estate.
The appellant also indicated that he is in the process of considering same.
[44] Invariably, if he determines that the claim has prescribed, his 4 per cent share
would have a commensurately higher value. A dispute may arise, particularly where
would have a commensurately higher value. A dispute may arise, particularly where
the first respondent or one of the heirs does not agree with his finding. Clearly, this
raises a conflict of interest. If the matter goes into Court, the appellant will have to
instruct attorneys in his personal capacity, and tell them what evidence to obtain
concerning the prescription, or determination of his share in the close corporation
and, in his capacity as executor, he will have to instruct attorneys how best to meet
the case set up by himself in his personal capacity. See Barnett v Estate Beattie
1928 CPD 482 at 485.
[45] It seems to me that the position of the appellant is an impossible one. The
appellant cannot act as his own watchdog in respect of the 4 per cent interest and
the loan to the estate. This brings to mind the observation of Van Blerk JA, in
Grobbelaar v Grobbelaar 1959 (4) SA 719 (A) at 724 F -G, where the learned judge
stated:
‘Dit is duidelik dat hier 'wesenlike botsing bestaan tussen die persoonlike belange
van die respondent en die van die boedel waardeur'n toestand geskep is wat
respondent se posisie as eksekuteur vir hom onhoudbaar maak. Hy bevind hom in
die onmoontlike posisie dat hy enersyds as skuldeiser van die boedel sal moet veg
vir sy eis en andersyds in sy hoedanigheid as eksekuteur die boedel sal moet
verdedig teen dieselfde eis. In hierdie rol say hy genoodsaak wees om kant te kies.
Hy kan nie onsydig of onpartydig bly nie.’ (emphasis added)
[46] Moreover, the appellant, as an executor, most likely stands to benefit financially
in his personal capacity, depending on the decision he takes as executor regarding
his 4 per cent and the loan to the estate. Evidently, the appellant’s interests in the
corporation and those of the estate are in sharpest conflict. The court a quo's finding
that the allocation of 4 per cent of a member's interest in the close corporation
undoubtedly creates a conflict of interest for the appellant cannot be faulted. The
appellant cannot be a player and a referee of his own game. The conflict of interest
in this context is glaring and indisputable.
[47] The conflict of interest is further exacerbated by the potential for disputes
regarding the appellant's involvement in the close corporation's debt to the estate, as
well as his 4 percent interest. These issues are likely to become sources of
contention among the heirs, particularly with respect to the first respondent. Clearly,
the appellant cannot represent his own interests in the close corporation and still
represent the estate's interests. Mores so, as articulated above, the appellant
represent the estate's interests. Mores so, as articulated above, the appellant
represented the deceased as his client in acrimonious litigation against the first
respondent. The deceased, in his lifetime, acknowledged indebtedness to his son
H[...] for more than 1 million euros. Similarly, H[...] filed a claim against the estate for
this amount. The first respondent disputes this claim. Although the appellant
expresses some doubts about the validity of this claim, the appellant appears willing
to accept it.
[48] This situation presents a conflict of interest. It seems to me, the current
circumstances also present significant challenges for the appellant to take action that
contradicts the wishes of his former client in the administration of the estate.
Addressing this claim, in his correspondence to the first respondent’s attorneys,
amongst others, the appellant stated:
‘Although I am personally not satisfied that all the amounts referred to in these
claims would have been recoverable from the joint estate, had the late M[...] B[...] not
accepted such claim....I am of the view that it will rather be in the interest of the heirs
if the claim of H[...] B[...] against the joint estate can be set off against the withdrawal
of the matter , and the estate can be concluded without further encumbrances and
delay.'
[49] The appellant is prepared to set off a claim that he doubts its validity at the
expense of the first respondent withdrawing her claim against H[...]. Evidently, the
prejudice to the fist respondent is manifest. As I see it, the learned Judge in the court
a quo was correct in removing the appellant from his position as executor.
[50] I accept that there is nothing in our law that precludes an executor from
inheriting or receiving a bequest from the estate he is administering. However, this
case stands on a different footing. The mere fact that the appellant is a beneficiary in
the estate under these circumstances, in my view, disqualifies him from being the
executor in the estate. The close corporation is currently indebted to the estate. The
appellant holds a beneficial interest in the close corporation. As such, the appellant
must make a decision regarding the appropriate course of action between the estate
and the close corporation, while carefully considering his interests in the corporation.
and the close corporation, while carefully considering his interests in the corporation.
Here, there is a glaring conflict of interest. Where an executor’s private interests
conflict with those of the estate, he should be removed from office. The appellant
must assess any prescription issues and determine whether the close corporation
should settle its debt with the joint estate or be liquidated, which could have negative
financial implications for him.
[51] In Oberholzer NO and others v Richter [2013] 3 AII SA 205 (GNP) para 15, the
Gauteng full court found that both in Grobbelaar and Webster matters, the executor
stood to benefit financially in his personal capacity, depending on what actions he
took as executor. In such instances, his personal interests are in conflict with the
interests of the estate and his inability to be impartial may be a prima facie ground for
his removal as executor. To this end, s 54(1)(a)(v) gives the court a discretion and
the main consideration remains a consideration of the interests of the estate and the
heirs.
[52] The first respondent has complained that the appellant is hostile to her and has
clubbed together with H[...] against him. The appellant has disputed this assertion.
However, a thorough examination of the appellant’s conduct and various
correspondences corroborates the first respondent’s version. I do not intend to
address all the correspondence, but I consider the following pertinent. It is common
cause that the first respondent instituted proceedings against H[...], challenging the
transfer of properties that her deceased husband had made to H[...] during his
lifetime. On 23 July 2023, the appellant addressed a letter directly to the judges of
the court in Munich, stating that he had been informed that the first respondent was
pursuing a claim against H[...] in her personal capacity for the transfer of certain
properties that previously belonged to the joint estate.
[53] The appellant further stated that he held the view that the first respondent did not
have locus standi to pursue the matter in a German court in the first place, as the
divorce proceedings were instituted in South Africa and all issues relating thereto had
to be addressed here in the first instance. Importantly, the appellant noted that since
the deceased's passing, the first respondent has no locus standi in either the
German or South African courts to pursue any claim relating to assets belonging to
German or South African courts to pursue any claim relating to assets belonging to
the joint estate, and that only the executor may pursue such claims.
[54] What I find concerning is that the properties in question had already been
transferred to H[...]. The properties did not form part of the joint estate. They fell
outside the scope of the executor as the administrator of the deceased’s assets. The
appellant had no power, in my view, to deal with or administer such assets, as they
had been transferred into the names of H[...]. The appellant was not requested by the
first respondent or the court in Munich to render such assistance to the court, or to
provide the court with opinions or a memorandum of such nature.
[55] As I see it, the appellant's interference in the German proceedings was
unsolicited and, on the objective facts, was taken to protect H[...]'s interests. As
correctly pointed out by Mr Barnard, counsel for the first respondent, the
correspondence was intended to ultimately block the litigation against H[...] by
substituting the first respondent as a plaintiff with the appellant solely for the purpose
of withdrawing the proceedings instituted by the first respondent against H[...].
[56] I am mindful of the cost implications of the litigation in Germany that the
appellant postulates; however, it must be stressed that the first respondent had a
constitutional right to vindicate her rights. She was married to the deceased in
community of property. Irrespective of the purpose of such transfer, the deceased
transferred properties belonging to the joint estate to H[...] without her consent in
contravention of section 15 of the Matrimonial Property Act. At the time of the
transfer of the properties, the deceased was aware that the parties were married in
community of property, pursuant to the advice they received from attorney Fanie
Roux.
[57] I am mindful of the version proffered by the appellant and the argument raised
by Ms McChesney, that the deceased’s instructions to the appellant were that at the
time of the transfer of the units to H[...], the purpose of the transfer was to restructure
and alleviate his debts. I also accept that the proceedings were in Germany;
however, it cannot be gainsaid that the first respondent had the right of access to
courts guaranteed in section 34 of the Constitution to vindicate her claim in South
Africa and in the German courts. The property that belonged to the joint estate was
Africa and in the German courts. The property that belonged to the joint estate was
transferred to H[...] without her consent. The proposed withdrawal of her case was a
typical violation of her constitutional right to access the courts.
[58] Furthermore, it must be highlighted that the first respondent has borne her own
legal expenses, not those of the estate. To date, there is no evidence whatsoever
that the appellant has paid the legal costs incurred by the first respondent from the
estate account in respect of the proceedings conducted in Germany. In Laws v Laws
1972 (1) SA 321 (W) the court noted:
‘Professor Hahlo, in the SA Law of husband and Wife, 3rd ed, at p.157 take the same
view. At p. 156 Professor Hahlo Says that if a husband married in community of
property makes donations out of the joint estate to third parties in deliberate fraud of
his wife, then the wife or her estate has a right of recourse against him or his estate
on dissolution of the marriage, and that, where necessary, she or her estate may
proceed with the Actio Pauliana directly against the third party for the gift or its value.’
[59] The right to sue in Germany, in order to assert her rights, is a constitutional
entitlement of the first respondent that cannot be easily revoked as suggested by the
appellant, as such an action would undermine the foundational legal protection
provided by section 34 of the Constitution. From the objective facts, despite his
fervent denial, in my opinion, the appellant went an extra mile to protect H[...] the
party whom the first respondent accused of fraudulently collaborating with the
deceased to defraud her of assets of the joint estate.
[60] In doing so, the appellant interfered in the German litigation between the first
respondent and H[...] and attempted to thwart the proceedings in that court in H[...]'s
favour. The appellant's attitude toward the first respondent's claim against the estate,
as well as against H[...], raises concerns about a potential lack of impartiality toward
the first respondent. It bears emphasis that an executor is obliged to exercise his
powers bona fide and with a measure of objectivity. See Van Niekerk v Van Niekerk
and another [2011] 2 All SA 635 (KZP) para 11.
[61] The appellant, in my view, cannot be expected to administer the estate
impartially in instances where he prefers one beneficiary over the other. The
appellant has consistently denied having represented H[...]; however, the objective
appellant has consistently denied having represented H[...]; however, the objective
evidence contradicts this assertion. In the replying affidavit, the first respondent
raised a very glaring point that, in my view, disqualifies the appellant as an executor
in this matter. Of great concern, the appellant never responded to it, nor did he seek
the indulgence of the court to address this point. For completeness, I deem it proper
to reproduce the first respondent’s assertion in paragraph 14.1 to 14.6 of the replying
affidavit.
14.1 ‘H[...] for all intents and purposes, has at all times been and continues to be,
currently albeit indirectly, a client of the respondent (appellant).
14.2 In the above context I point out that during 2019, I conducted settlement
negotiations with the deceased and H[...] and his wife, I[...]. During the course of such
negotiations, H[...] and I[...] were represented by the respondent (appellant).
14.3 I draw the attention of this honourable court to the fact that, in paragraph 13.1
of the respondent’s answering affidavit, he disclosed confidential and privileged
information concerning the settlement proposals exchange between the deceased,
H[...] and I[...], and me, with scant regard to the ethical and common law obligation
prohibiting such disclosure.
14.4 His disregard of such obligation however demonstrates, yet again, to what
length he will go to cast aspersions on my integrity. His intention in doing so appears
to be an attempt to convey the impression that my litigation for the recovery of the
properties transferred to H[...], need not receive the attention and consideration from
him that I respectfully submit it deserves. He attempts to convey the notion that in
demanding my lawful share of the joint estate, I do so unreasonably, for which reason
he is entitled to treat my claims dismissively.
14.5 However, and now that the respondent waived the privilege that attached to
such settlement negotiations, I similarly waive such privilege and attach hereto as
annexure DB18, a copy of a draft settlement agreement, of which the relevant parts
were proposals insisted upon by respondent (appellant) in his capacity as
representative of H[...] and I[...], as well as S[...] M[...] , during the course of 2019.
14.6 The copy of the proposed settlement agreement is redacted not to include any
of the customary issues that would normally have been dealt with as part of a divorce
of the customary issues that would normally have been dealt with as part of a divorce
settlement. However, I below refer to the following features of the proposed
agreement that dealt with the claims and demands of H[...], I[...] and S[...] .
[62] As can be seen from the above, the first respondent drew the court’s attention to
the settlement negotiations that took place between the deceased, the deceased’s
son H[...] and the first respondent. Both parties waived the privilege that attached to
such settlement negotiations, and the first respondent attached a copy of the
settlement agreement. In clause 7 of the settlement agreement, the following was
noted:
‘The parties record their awareness of the fact that any settlement in division of their
joint estate also involves the rights and obligations of third parties, namely H[...] B[...]
(“H[...]”), I[...] B[...] (“I[…]”) and S[...] M[...] B[...] M[...] (“S[...] ”), and the rights of
M[...] B[...] (jnr) (“M[...] jnr”). For this agreement to have any effect and or validity, it
must therefore be agreed to and also signed by H[...], I[...] and S[...] .’
[63] Clause 7.15.3 provided as follows:
‘Without derogating from the generality of the above, the plaintiff specifically agrees
to withdraw the anti -dissipation interdict registered against the title deeds of the
properties of H[...] and I[...], in Germany, and agrees to sign all the necessary
documents to reflect such withdrawal. H[...] and I[...] agree to pay all costs, charges
and expenses that will or may be incurred for purposes of the withdrawal of the anti -
dissipation interdict.’
[64] The first respondent asserted that the document contained proposals insisted
upon by the appellant in his capacity as representative of H[...] and I[...], as well as
on behalf of S[...] M[...] - B[...]. Most importantly, the first respondent pointed out that
when she rejected the proposal made by the appellant upon the basis of the
provisions relating to her and the children, the appellant reacted indignantly and with
anger in an email dated 21 May 2020 addressed to the first respondent’s attorney in
George, in which the appellant, inter alia, stated the following in an outburst of
intemperate and disrespectful language:
intemperate and disrespectful language:
‘I have taken with absolute disbelief notice of the content of your letter and are
flabbergasted and quite frankly disgusted that we have to be subjected to such utter
nonsense and that you are quite willingly align yourself with an instruction which in
our view is not only unethical but also immoral…
In the light of your client’s stance, we have no other choice to but to advise Mr H[...]
B[...] that has to forge ahead with his preparation for further upcoming litigation in
Germany and will those extra costs be recovered from whatever the parties may
eventually agree on, if anything at all.’ (emphasis added)
[65] The settlement agreement and this correspondence, in my view, put paid to the
fact that the appellant represented H[...]. As I see it, it seems to me that the appellant
communicated with H[...] and his wife as his client on the proposed settlement
agreement. From the contents of the above correspondence, it can be reasonably
inferred that the parties were represented by their attorneys when the settlement was
negotiated. Ms Isabelle Buhr represented the first respondent. The first respondent’s
attorney could not communicate directly with H[...] and his wife I[...], or with S[...],
during negotiations of the settlement. From the correspondence, it can be reasonably
inferred that it was the appellant who communicated with H[...] and I[...], his clients.
[66] Based on the objective facts , the first respondent’s attorney negotiated with the
appellant; hence, the appellant was concerned when the first respondent rejected the
settlement proposal. Pursuant thereto, he was adamant that he would advise H[...] to
proceed with the civil suit in Germany. From the correspondence above, it is my firm
view that the appellant represented H[...] B[...]. As stated, this conclusion is
demonstrated by the terms of the draft settlement agreement and the appellant’s
letter.
[67] The first judgment proposes that the appellant's use of the phrase ‘he will advise
Mr B[...]’ in the letter quoted above indicates an intention to merely inform him rather
than to offer legal advice or as an attorney . I respectfully disagree with this
interpretation. It is important to emphasise that this email should not be viewed in
interpretation. It is important to emphasise that this email should not be viewed in
isolation; rather, it must be considered in the broader context of the unsuccessful
settlement negotiations. On these facts, I firmly believe that the appellant assisted
H[...] during the settlement negotiations. When the first respondent made what
seemed to be unreasonable demands, the appellant responded by stating that he
would advise H[...] to proceed with litigation in Germany. In my opinion, this shows
that the appellant represented H[...], who is involved in a civil suit with the first
respondent concerning the estate that the appellant is managing. Given these
circumstances, I believe it would be inappropriate for the appellant to continue
serving as the executor of the estate.
[68] Most importantly, the appellant sought an order that the transfer of the
deceased’s properties, listed in annexure MB1 to the founding affidavit, to H[...] B[...],
be ratified by the court due to the respondent’s refusal to consent to transfer as
envisaged in section 15 of the Matrimonial Property Act. In my view, H[...] must have
known about this application. I am mindful of the appellant’s contention of the
deceased’s usufructuary claim in respect of these properties. However, I am of the
view that, in the bigger scheme of things, the application was intended to thwart the
first respondent’s claims in H[...]’s interest. This raises a clear conflict of interest.
[69] I do not propose to deal with all the incidents raised by the first respondent
regarding the appellant preference of H[...] over her; however, the facts in my view,
speaks for themselves. The appellant's conduct, as outlined above, raises significant
concerns about his ability to render an unbiased judgment in assessing the first
respondent’s claims against the estate. In my view, due to the conflict of interest
raised above, and the apprehension of bias against the first respondent, it is
undesirable that the appellant should act as executor of the estate concerned.
[70] Section 54(1)(a)(v) of the Administration of Act provides that an executor may at
any time be removed from office by the court if, for any reason, the court is satisfied
that it is undesirable that she should act as executor of the estate concerned. In my
opinion, the court a quo was correct in granting an order removing the appellant as
the executor of the deceased estate.
[71] In the result, I would have dismissed the appeal with costs, including the costs of
counsel on scale B.
______________________
J Lekhuleni
Judge of the High Court
Legal representatives
For the appellant:
Adv M McChesney
Instructed by Brand & van den Bergh Attorneys
For the respondent
Adv T Barnard
Instructed by John Smith & Associates