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[2002] ZASCA 56
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Zulu and Others v Majola (467/2000) [2002] ZASCA 56; [2002] 4 All SA 530 (SCA); 2002 (5) SA 466 (SCA) (29 May 2002)

IN
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
REPORTABLE
CASE NO: 467/2000
In
the matter between:
SICEBI
JUSTICE ZULU
FIRST APPELLANT
PATIENCE
HLONGWANE SECOND APPELLANT
THOKOZILE SARAH NYANGIWE THIRD
APPELLANT
and
DUDUZILE
MAJOLA
RESPONDENT
CORAM: SMALBERGER ADP, STREICHER, MPATI, MTHIYANE and
BRAND JJA
HEARD:
7 MAY 2002
DELIVERED:
29 MAY 2002
Summary:
Whether it is competent for a magistrate to substitute a
representative of a deceased estate appointed in terms of regulation
4(1) of the Regulations promulgated under s23(10) of the Black
Administration Act 38 of 1927.
JUDGMENT
MTHIYANE JA:
[1]
This appeal concerns the
estate of one Aaron Ngqongqoza Mchunu (the deceased), a taxi owner
and operator, who died intestate on 11
April 1997. The first
appellant claims that he is at present the duly appointed
representative of the estate. At the time of
his death the
deceased was married to the respondent by customary union. The
second and third appellants contend that they
too were married to
him by customary union. The deceased left an estate of just over
R1.3 million, comprising 13 minibus taxis,
immovable property valued
at R130 000,00 and a cash investment of R550 711,69 (the estate).
[2]
On 6 June 1997 the
magistrate of Johannesburg appointed Mr Frans Mashele, an attorney,
as the representative of the estate in
terms of regulation 4(1)
1
of the Regulations promulgated in terms of section 23(10) of the
Black Administration Act 23 of 1927 (the regulations).
2
In terms thereof Mashele was authorised to collect the estate
assets and to ‘pay all claims to the value of the assets in the
estate and to award the balance of the estate, including the
immovable property (if any), to the rightful heir/s’.
[3]
Although Mashele was not
required by the regulations to do so, he prepared a liquidation
and distribution account (the account)
for the estate. In terms of
the account the estate beneficiaries were the respondent and the
second and third appellants. The
respondent became entitled to
receive R223 162,09 in cash and 7 minibus taxis (R557 374,66 in
total value), the second appellant,
R223 162,09 in cash and 4
minibus taxis (R407 374,66 in total value) and the third appellant,
2 minibus taxis, R11 000,00 in
cash and the immovable property
valued at R130 000,00 (R225 212,47 in total value). The respondent
and the second appellant renounced
all claims to the assets due to
the third appellant.
[4]
On 29 August 1997 the
account was approved by the magistrate, including the payment of
R46 574,90 to Mashele in his capacity
as the representative of the
estate for his fees. Despite the approval of the account the
respondent refused to hand over to
the second and third appellants
the minibus taxis in her possession which they were entitled to
receive in terms of the account.
Her reason for refusing to do so
was that the second and third appellants were never married to the
deceased as they had only
been his lovers.
[5]
On
10 March 1998 the second and third appellants, represented by
Mashele, launched an application in the magistrate’s court for
an
order compelling the respondent to comply with the account, in
particular to deliver the minibus taxis due to them in terms of
the
distribution account. The application was, however, not proceeded
with as the second and third appellants and Mashele inexplicably
failed to appear at the hearing, and the respondent consequently
obtained an order dismissing the application with costs.
[6]
On 17 December 1998
Mashele advised the respondent’s attorneys of record that his
mandate had been terminated in favour of the
first appellant. On 11
January 1999 the first appellant, who is also the attorney of record
for the second and third appellants,
was appointed as the
representative of the estate in terms of regulation 4(1), in
substitution of Mashele. The certificate of
appointment issued to
him by the magistrate recorded that the first appellant was to
assume responsibility for the administration
and distribution of
exactly the same assets listed in the certificate previously issued
to Mashele.
[7]
An
attempt by the first appellant to assume
control of the estate assets in terms of his appointment met with
resistance from the
respondent who refused to co-operate with him
and to release the undistributed assets which were in her
possession. The respondent
adopted the attitude that the estate
fell to devolve in accordance with customary law – in terms of
which the entire estate
would be inherited by her eldest son as the
general heir. The appellants disputed her claims.
[8]
On 16 September 1999
the first, second and third appellants launched an application in the
Witwatersrand Local Division for an order
authorizing the first
appellant, as representative of the estate, to collect all the
assets belonging to the estate and to take
all incidental steps
necessary to discharge the duties of an appointed estate
representative and certain ancillary orders. The
matter came
before Maseremule AJ who dismissed the application on the basis that
the estate had already been finalized. The learned
judge found
that the appointment of the first appellant as representative of the
estate was not competent and ordered the appellants
to pay the
respondent’s costs jointly and severally. But as against the
first appellant, the learned judge
ordered
that the costs were to be borne by him personally and not the
deceased estate. Leave to appeal was refused. The appellants
now
appeal to this Court against all those orders, with leave granted by
this Court on application to it.
[9]
The appellants’ heads
of argument were filed late. They applied for the condonation of
such late filing. Apart from the late
filing of the heads, the
appellants were confronted with a further difficulty when the appeal
came before us: the record lodged
in the appeal was defective in
many respects. First, the appeal record was not properly indexed
nor was it paginated so as to ensure
that every 10th line on each
page was numbered. Secondly, some pages contained illegible parts.
Thirdly, certain pages including
at least one important annexure,
were missing from the record. Fourthly, the record was burdened
with irrelevant material. Of
the four volumes filed of record,
only two were relevant to the matters in issue in this appeal.
With the exception of only fourteen
pages (containing the judgment
and order of the court
a quo
)
in volume 3, the rest of the material in volumes 3 and 4 was
irrelevant. On 9 October 2001 the first appellant’s attention was
drawn to the above defects by senior counsel for the appellants in
his practice note. He instructed the first appellant (who
is also
the appellants’ attorney of record) to correct the record
accordingly. Nothing was done. At the hearing of the appeal
the
first appellant was directed to file an affidavit by not later than
17 May 2002, explaining why the record had not been rectified.
On
16 May 2002 the first appellant submitted an affidavit in which he
stated that he was under the impression that the record had
been
corrected by his articled clerk, Ms Mabuchi Dama Maria Chipasula –
now a qualified attorney. Chipasula has left the first
appellant’s
employ and is now employed by the Road Accident Fund. She also
filed an affidavit confirming the correctness of the
allegations made
by the first appellant but says nothing about why the record was
not corrected. Apart from exculpating the
first appellant she
without protest accepts all blame for the non-observance of the
relevant rule
3
.
This is an unacceptable state of affairs. While the first
appellant has tendered some explanation for the late filing of the
heads, none has been forthcoming for the failure to correct the
appeal record. It is all very well for the first appellant to put
all blame for such failure to comply with the rules on his erstwhile
articled clerk. But it is the first appellant who is the

litigant and the attorney of record in the appeal. And it was he
who should have supervised the work of his articled clerk.
The
rules require that a proper record be lodged in the appeal. It has
been said many times in this Court that an attorney is
in duty bound
to acquaint himself with the rules of the Court in which the appeal
is to be presented.
4
This Court has warned that non-observance of the rules of the
kind displayed by the appellants in this case is viewed in a serious
light and offending parties and their attorneys may be subjected to
punitive costs orders.
5
[10]
Despite the
unsatisfactory manner in which the matter has been dealt with by the
first appellant, I am unable to say that the explanation
given for
the late filing of the heads and the failure to correct the record is
so unworthy of consideration, that the condonation
application falls
to be dismissed irrespective of the prospects of success. It is
therefore essential to consider whether prospects
of success exist.
If they do, condonation should be granted, with an appropriate order
as to costs; if not, it should be refused.
6
[11]
In dismissing the
application while upholding the point in
limine
that the estate had already been finalized
, the judge
a quo
said:
‘…
it is not competent to deal with disputes arising
out of the distribution of assets in a deceased estate where a
liquidation and distribution
account has been drawn up and approved,
by securing the appointment of another person as the representative
of an estate to collect
and distribute afresh the same estate assets
which have already been dealt with in terms of the liquidation and
distribution account.
’ [Emphasis added]
[12]
Consequently this
appeal turns on the competence of the magistrate to substitute an
estate representative duly appointed in terms
of regulation 4(1).
There can be no question that if the estate was not finalized, it was
competent for the magistrate to appoint
the first appellant as the
representative of the estate, in substitution of Mashele. The
difficulty with the reasoning of the judge
a
quo
is that while he
accepted that Mashele had collected only
‘some of the assets’, and distributed only ‘some of the
assets’, and found that
the respondent had refused to hand over to
the second and third appellants the minibus taxis which ‘they were
entitled to receive
in terms of the liquidation and distribution
account’, he nevertheless concluded that the estate had been
finalized. The fact
that only ‘some of the assets’ had been
distributed, warranted a finding to the contrary. Yet, the learned
judge held that
the first appellant ‘could not validly be
appointed as representative of the estate in respect of which a
liquidation and distribution
account had been finalized in the estate
and approved by the magistrate’. The learned judge further
found that the magistrate’s approval of the
account signified the finalization of the account and went on to
equate the procedure
in the regulations with that provided for in
section 35(12)
7
of the Administration of Estate Act 66 of 1965.
[13]
The analogy drawn by
the judge
a quo
is
misconceived. While the procedure provided for in the
Administration of Estates Act is more elaborate and section 35(12)
provides
for the estate account to lie open for inspection for a
certain period to enable interested parties to object to it and to
have
the account amended at the Master’s direction, regulation 4
provides for a more simplified procedure in which the magistrate
exercises
supervisory power over the administration and distribution
of the deceased estate. In terms of regulation 4(3)
8
the representative may be required to render a ‘ just, true and
exact account’ of his administration but a liquidation and
distribution
account is not called for. No provision is made for
the account to lie for inspection to enable aggrieved parties to
object
to it. The matter is left solely in the hands of the
magistrate. This does not of course mean that errors may not be
corrected
if they occur. It would be within the magistrate’s
power to do so.
[14]
Turning to the
merits, it is clear that on the available evidence not all the
estate assets were distributed in terms of the
account. As pointed
out, the judge
a quo
himself
found that ‘only some of the assets’ were distributed by Mashele
and that the respondent had refused to hand over the
minibus taxis
that had been allocated to the second and third appellants. It is
no answer to suggest that an application should
have been launched
‘to review the decision of the magistrate to approve the account
drawn by Mashele,’ nor to suggest that an
order should have been
sought ‘to set aside the liquidation and distribution account …as
well as the part distribution which
took place in accordance
therewith’. In terms of the regulations (4(1)and(2)) the
representative is entitled to take ‘control
of the assets’ and to
administer and distribute them. The problem did not lie with the
approval of the account but with the
failure to distribute the assets
in terms thereof. It was not necessary for the appellants to incur
the expense of a review application
when a more simplified procedure
was available to them, to deal with the actual problem.
[15]
Because the minibus
taxis have not yet been distributed, it cannot be said that the
estate has been finalized. The distribution
of these assets is a
matter which the estate representative still needs to attend to. On
the papers it is not clear whether the
immovable property (the
dwelling house) allocated to the third appellant has already been
transferred. In terms of regulation
4(2)
9
it is the first appellant who is vested with such power in his
capacity as an estate respresentative. Argument to the contrary
advanced by counsel for the respondent, namely that the transfer
could be effected by the magistrate ignores the clear wording of
the
sub-regulation (4(2)).
[16]
The argument that at
the stage at which the first appellant was appointed, the magistrate
was
functus officio
is
not sound.
The
functus officio
rule
only applies ‘…when an administrative official
has made a decision which bears directly upon
an individual’s interests, [and] it is said that the decision-maker
has discharged
his office’.
10
It was said that a person to whom statutory power has been
entrusted is
functus officio
once
he has exercised it and he cannot himself call his own decision in
question.
11
This was not the case in the present matter where some of the
estate assets had not yet been distributed at the time of the
appointment of the first appellant as a representative of the estate.
The
functus officio
rule
cannot apply where, as here, the estate has not been finalized and
the magistrate is still expected, in the exercise of his
supervisory
functions, to give further directions concerning the undistributed
assets. It therefore follows that the substitution
of the first
appellant fell within the magistrate’s powers. In terms of
regulation 4(5)
12
the magistrate is at any time entitled to revoke the certificate
issued by him to a representative under sub-regulation (1). On
a
proper reading of regulation 4(5), the power to revoke would, in my
view, include in appropriate cases the power to substitute,
where the
estate has not been finalized. It follows that the power of
substitution is implicit in the power conferred on the
magistrate to
appoint a representative and to revoke such appointment because, in
a case like the present, without such substitution
there will be no
one to finalize the administration and distribution of the estate,
where the previously appointed representative
has failed to do so.
The substitution of the first appellant was reasonably incidental to
the finalization of the administration
and distribution of the
undistributed assets in the estate and therefore competent.
13
[17]
It follows from the
above that the appeal must succeed and that the first appellant is
entitled to an order in terms of prayers
1 and 2 of the original
notice of motion. The further relief that was sought is not being
persisted with in view of the decision
of this Court in
Mthembu
v Letsela and Another
.
14
[18]
Three further matters require comment.
The first relates to the first appellant’s dual role as
representative of the estate and
attorney of record for the second
and third appellants. That situation gives rise to a potential
conflict of interest, as the interest
of the estate, on the one hand,
and the second and third appellants, on the other, may not
necessarily correspond in all respects.
It is further undesirable
that the estate’s appointed representative should act as the
attorney for certain interested parties
against another interested
party arising out of the administration of the estate. The first
appellant should therefore cease to
act on behalf of the second and
third appellants, in his own interests and theirs, and should be
precluded from recovering any costs
from them in relation to the
present litigation, not recoverable from the respondent, which he
might otherwise have been entitled
to in his capacity as their
attorney.
[19]
The second matter is that the first
appellant’s functions must be limited to the recovery of all assets
of the estate that have
not yet been distributed in terms of the
account. It is of some concern that the estate having disbursed
R46 574,90 towards Mashele’s
fees/commission now faces the prospect
of further disbursements to meet the first appellant’s expenses in
finalizing the estate.
As this matter is destined to find its way
back to the magistrate he, in the exercise of his supervisory powers,
must ensure as
far as possible that any further disbursements to be
incurred by the estate are limited to services rendered in respect of
the undistributed
assets, to avoid any duplication of fees to the
detriment of the estate.
[20]
The third matter relates to costs. The
conduct of the first appellant (or members of his firm) in relation
to the inept preparation
and presentation of the record of appeal,
the failure to remedy the numerous defects when they were pointed out
to him and he was
requested to do so by his counsel and his delay in
applying for condonation, requires a punitive costs order depriving
the first
appellant of part of his costs on appeal. Such an order
would appropriately mark this Court’s displeasure of his or his
firms
continued and persistent disregard of the rules, conduct which
borders on the contemptuous.
[21]
In the result the following order is made
1. Condonation is granted in respect of the appellants’
failure timeously to file their heads of argument. The
appellants are
to pay the costs of the application including the
respondent’s costs of opposition thereto.
The appeal succeeds and the order of the Court below is
altered to read:
‘
The application is granted and an order is made:
(a) Authorizing the first applicant, as the
representative of the estate of the late
Mr Aaron Ngqongqoza
Mchunu No. 1467/97,
to collect all the undistributed assets
belonging to the said estate and to take all incidental steps
necessary to discharge the duties
attendant on his representation of
the said estate.
(b) Directing the respondent to co-operate with the
first applicant to give effect to the order specified in prayer (a)
hereinabove.
Ordering the respondent to pay the costs of this
application.’
Subject to 4 below, the respondent is to pay two-thirds
of the appellants’ costs of the appeal.
The appellants are not entitled to recover from the
respondent any costs in respect of volumes 3 and 4 of the appeal
record, save
in respect of the fourteen pages relating to the
judgment and order of the court
a quo
;
The first appellant is not entitled to recover any
costs from the second and third appellants, in his capacity as
their attorney
of record arising from the litigation in this matter.
___________________
KK MTHIYANE
JUDGE OF APPEAL
Concur:
Smalberger
ADP)
Streicher
JA)
Mpati
JA)
Brand
JA)
1
Regulation 4(1) provides: ‘For the administration and distribution
of any property in the estate of a deceased Black referred
to in
regulation 2 the appointment of an executor shall not be necessary:
Provided that whenever the magistrate in whose area
of jurisdiction
the deceased Black ordinarily resided considers it desirable, he may
issue a certificate to any person whom he
may deem suitable,
appointing him to represent the estate and to assume
responsibility for the payment of debts, the collection of assets
and the general
administration and distribution of property.
Such certificate shall be issued in any case where it is necessary
to pass transfer to any person of immovable property, not
being land
in a location held under quitrent conditions, registered in the name
of the deceased.’ [Emphasis added]
2
Regulations for the Administration and Distribution of the Estates
of Deceased Blacks, published under Government Notice R200 on
6
February 1987.
3
Rule 8 of the Supreme Court of Appeal Rules.
4
See
Ferreira v Ntshingila
1990 (4) SA 271
AD at 281G.
5
See
W.G. Davey (Pty) Ltd v National Union of Metalworkers of
South Africa
1999 (3) SA 697
(SCA) at 707B-D.
6
cf South African Allied Workers’ Union (in liquidation) and
Others v De Klerk NO and Another
1992 (3) SA 1
at 4F-G, for the
approach adopted.
7
Section 35(12) provides: ‘When an account has lain open for
inspection as hereinbefore provided and-
no objection has
been lodged; or
an objection has
been lodged and the account has been amended in accordance with the
Master’s direction and has again lain open
for inspection, if
necessary, as provided in sub-section (11), and no application has
been made to the Court within the period
referred to in sub-section
(10) to set aside the Master’s decision; or
an objection has
been lodged but withdrawn, or has not been sustained and no such
application has been made to the Court within
the said period,
the
executor shall forthwith pay the creditors and distribute the estate
among the heirs in accordance with the account, lodge with
the
Master the receipts and acquittances of such creditors and heirs and
produce to the Master the deeds of registration relating
to such
distribution, or lodge with the Master a certificate by the
registration officer or a conveyancer specifying the registrations
which have been effected by the executor.’
8
Regulation 4(3) provides: ‘The magistrate may require any person
to whom a certificate has been issued under subregulation (1)
to
provide such security for the due and proper administration of such
property as the magistrate may deem necessary and to render
a just,
true and exact account of his administration within such period and
at such intervals as the magistrate may prescribe.’
9
9
Regulation 4(2) provides: ‘A person to whom a certificate has
been issued under subregulation (1) shall have full power and
authority to represent the estate in relation to such property,
including power on behalf of the estate and subject to the approval
of the magistrate to pass and to receive transfer of immovable
property’
10
See
Baxter – Administrative Law
372.
11
See
De Freitas v Somerset West Municipality
1997 (3) SA 1080
(C) at 1082 I-J.
12
Regulation 4(5) provides: ‘The magistrate may at any time revoke a
certificate issued by him to any person under subregulation
(1).’
13
cf Johannesburg Municipality v Davies and Another
1925 AD 395
at 403.
14
2000 (3) SA 867
(SCA).