Law Reports
Hopley N.O and Another v Dua N.O and …

Hopley N.O and Another v Dua N.O and Others (2025-132522) [2026] ZAKZDHC 58 (16 September 2026)

70 Reportability

Trusts and Estates

Brief Summary

Administration of Estates — Removal of co-executor — Applicants seeking removal of co-executor due to alleged delays and breakdown of trust — Court finding that the co-executor's continued appointment was undesirable and not in the best interests of the estate — Co-executor removed and ordered to return executorship letters and provide accounting of estate funds.

Full Judgment Text (Click to expand)

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Hopley N.O and Another v Dua N.O and Others (2025-132522) [2026] ZAKZDHC 58 (16 September 2026)
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IN
THE HIGH COURT OF SOUTH AFRICA
(KWAZULU-NATAL
LOCAL DIVISION, DURBAN)
CASE
NO.:
2025-132522
Reportable
YES
In
the matter between:
JONNA
CHRISTINE HOPLEY N.O
First
Applicant
RICHARD
MICHAEL HOPLEY N.O
Second Applicant
and
JOHN
VICTOR DUA N.O
First Respondent
JOHN
VICTOR
DUA
Second
Respondent
THE
MASTER OF THE HIGH COURT
Third Respondent
SOUTH
AFRICAN LEGAL PRACTICE COUNCIL
Fourth Respondent
ORDER
In
the result, the following order shall issue:
1.
The First Respondent is removed as co-executor of the estate of the
late Michael
David Hopley (Master's Reference 004488/2022PMB) in
terms of
section 54(1)(a)(v)
of the
Administration of Estates Act 66
of 1965
.
2.
The First Respondent is directed to return his letters of
executorship to the
Third Respondent forthwith under
section 54(5)
of
the
Administration of Estates Act 66 of 1965
.
3.
The Third Respondent, namely the Master of the High Court,
Pietermaritzburg,
is directed to issue fresh letters of executorship
to the Applicants removing the name of the First Respondent
therefrom.
4.
The First and Second Respondents are ordered to:
4.1
Forthwith hand over and deliver to the attorneys of record for the
Applicants, Evans De
Villiers & Petit, all original estate files,
documents, records, and correspondence relating to the administration
of the estate
of the late Michael David Hopley under Master’s
reference number 004488/2022PMB;
4.2
Forthwith provide a complete written accounting of all trust monies,
receipts, and disbursements
received, made or held by the First
Respondent and/or the Second Respondent in connection with the
winding up of the estate;
4.3
Forthwith pay over to the estate late account with Nedbank (as per
annexure “Q4”
to the Founding Affidavit) all funds held
in trust in relation to the estate, which are common cause, and any
related entities,
including Seariver Investments (Pty) Ltd and The
Crossbow Trust, as authorised by annexures “Q2” and “Q3”

to the founding affidavit or have been established on the papers, to
be monies of the estate of the late Michael David Hopley.
For the
avoidance of doubt, this paragraph does not determine the ownership
of any monies held on behalf of Seariver Investments
(Pty) Ltd or The
Crossbow Trust, and no such monies are to be transferred to the
estate account unless the estate's entitlement
thereto is common
cause or has otherwise been lawfully established.
5.
The First and Second Respondents are interdicted and restrained from
taking any
further steps in the administration of the estate of the
late Michael David Hopley.
6.
The Applicants or their attorney must, within 5 (five) days, furnish
the First
and Second Respondents with the details of the estate
banking account if the account referred to in annexure “Q4”
to
the Founding Affidavit has changed. The First and Second
Respondents must immediately thereafter deposit into that account all
monies held by them on behalf of the deceased estate, subject to
paragraph 4.3 above.
7.
The First and Second Respondents must prepare a statement of account
reflecting
the work performed by Mr Dua in his capacity as
co-executor of the estate late Michael David Hopley, together with
any fees and
disbursements claimed in relation thereto. The statement
must be submitted to the Applicants' attorneys for assessment and, in
the event of a dispute, to the Master of the High Court,
Pietermaritzburg, for determination in accordance with the applicable
law.
8.
The Second Respondent shall pay the costs of this application on
scale C of the
tariff referred to in Rule 67A of the Uniform Rules of
Court, including the costs of two counsel where so employed.
JUDGMENT
NOTYESI
AJ
Introduction
[1]
The first applicant, Mrs Jonna Christine
Hopley NO, is the surviving
spouse, sole beneficiary and co-executrix of the Estate Late Michael
David Hopley (the estate). The
second applicant, Mr Richard Michael
Hopley NO, is the son of the first applicant (collectively referred
to as the applicants).
The first respondent, Mr John Victor Dua NO
(Mr Dua) is an attorney and appointed co-executor of the estate and
is cited in both
his personal and official capacity as a co-executor
of the estate. The third respondent is the Master of the High Court,
Pietermaritzburg.
The fourth respondent is the South African Legal
Practice Council.
[2]
The dispute concerns Mr Dua’s administration
of the estate,
particularly the alleged delay in its finalisation and the breakdown
in his relationship with the co-executors and
beneficiaries.
[3]
Relying
on section 54(1)(a)(v) of the Administration of Estates Act 66 of
1965
[1]
(the Act), the
Applicants seek an order removing Mr Dua as co-executor, together
with consequential relief and personal costs
orders. The Applicants
contend that his continued appointment is undesirable and no longer
in the best interests of the estate.
The application is brought in
their personal capacities and in their capacities as executrix,
beneficiary and co-executor of the
estate.
[4]
Mr Dua is opposing the
application. His initial technical objections were not pursued, and
the parties agreed that the matter should
be determined on its
merits. Mr Dua contends that the Applicants have failed to establish
grounds for his removal in terms of section
54(1)(a)(v). In
particular, he points out that there are no allegations that he was
dishonest, misappropriated funds nor
committed acts of
maladministration of the estate or other acts of wrongdoing. He
contends that the Applicants bear the onus of
establishing a complete
breakdown of trust, rather than a mere disagreement or conflict, and
that the existence of a dispute between
heirs and executors does not,
in itself, justify his removal. He further contends that the
Applicants have failed to demonstrate
that the interests of the
estate and its heirs would be served by his removal.
Background
facts
[5]
The material
facts are largely common cause or not seriously disputed. Mr Michael
David Hopley (the deceased) died on 28 August
2021. He is survived by
the Applicants. The surviving spouse is 81 years of age. In
terms of the deceased’s will, the
surviving spouse, Mrs Hopley,
is the sole beneficiary, and the Applicants and Mr Dua were appointed
as co-executors of the estate.
The Applicants’ case is
set out below.
[6]
On 8 December
2022, the Applicants executed a power of attorney authorising Mr Dua
to act as their agent in the winding-up of the
estate. According to
Mrs Hopley, following the appointment of Mr Dua, there was little
progress or communication regarding the
administration and
finalisation of the estate. She experienced difficulty in obtaining
information from him. She also alleges
that Mr Dua failed to
return her telephone calls or to properly account for the estate.
These delays and the lack of communication
resulted in a breakdown of
trust, leading the Applicants to appoint De Villiers, Evans &
Petit (the attorneys) to act on their
behalf.
[7]
The delays
ultimately led to the institution of these proceedings. According to
the Applicants, Mr Dua only furnished a draft liquidation
and
distribution account (L & D account) on 30 July 2024. When
questioned about certain transactions and items reflected in
the
account, he allegedly became infuriated and avoided communication.
Mrs Hopley had also questioned Mr Dua regarding his demands
for
certain documents and information, which were not in her possession.
She also raised concerns regarding the inclusion of an
amount of R25
million in the L & D account. The amount is part of the
estate’s claim against Dr Pillay. That
case has not been
finalised.
[8]
In response to
Mrs Hopley’s queries regarding the L & D account, Mr Dua
sent an email on 14 February 2025 in which he
expressed his intention
to resign as the co-executor. The relevant portions read:
‘…
While
I do understand that the legal side has cost more than we would like,
it is simply not possible for me to work under the conditions
that
you mention, ie with no fees and some form of guaranteed outcome.
There are other issues as well which have impacted
my trust
significantly, not the least of which is the production of a share
register now, which shows that the estate is not vested
with the
shares in SeaRiver. I am not going to comment at this time, but I
need to reiterate that I am not able, nor prepared,
to continue like
this.
I
suggest that we agree that I resign……’
[9]
Following this
email and further unsuccessful attempts to contact Mr Dua, the
Applicants instructed their attorney of record to
enquire into the
progress of the estate. The attorneys addressed a letter to Mr Dua,
to which he responded by email on 10 May 2025.
The relevant portion
of that email reads:
‘
I
will respond to you during the course of next week. I will not
include Mrs Hopley in the reply for reasons which will become
obvious
as they unfold. Save to say, however, that any suggestions that
I have in any fashion delayed the estate are disputed.
Please would
you in the interim provide me with written authority that I am able
to communicate with you on her behalf.’
[10]
The requested
proof of authorisation and mandate was provided to Mr Dua on 15 May
2025 by the attorneys. Unquestionably, the Applicants
had expected Mr
Dua to provide the progress report regarding the administration and
the winding up of the estate. Such report was
not furnished by Mr
Dua.
[11]
On 22 May
2025, Mr Dua sent a further email to the Applicants’ attorneys,
stating, inter alia:
‘
I
am preparing the files and will make them available for collection,
and am resigning. If arrangements have not been made
as to the
accounts for receipt of the funds, then I will transfer the funds
into the Guardians Fund.’
[12]
The email in
question concludes as follows:
‘
Accordingly,
all I await from you is
1.
your consent
that you will take up the appointment as executor, or not;
2.
resolutions
from the Company and Trust (to the extent that they are validly
appointed) as to transfer the funds;
3.
an
estate late account, duly FICA’d to deposit the funds.
I
will also be effecting a fee for the work done and a pro rata fee for
the executor’s fee, calculated on the value of the
estate.’
[13]
On 29 May
2025, Mr Dua was provided with the requested information to
facilitate his resignation and the handover of the file.
Surprisingly, Mr Dua, in his response, after receipt of the
correspondence and proof of authority, reneged on his earlier
position
and stated that he would not release the files until his
estate fees had been resolved and demanded that the Applicants
propose
a settlement fee. In response, the Applicants’
attorneys confirmed that Mr Dua would be paid his fees upon taxation.
They
further offered that Mr Dua retain sufficient funds in his trust
account to cover his fees and disbursements pending such taxation.
[14]
Mr Dua’s
response by way of an email was that:
‘
It
would appear that you are conflating the role of executor and
attorney in this matter. My capacity as executor is not
governed by the Legal Council, and is governed by the Master and my
appointment as executor. The estate fees are not governed by
a tariff
as you suggest, save that they will be calculated as a percentage of
the assets of the estate. This is where the
difficulty arises
because your client has deliberately understated the assets to dilute
the fee. It was on this basis that,
as co-executor, not as an
attorney, I suggested that your client propose a reasonable figure…’
[15]
Following
receipt of this email, the Applicants instructed their attorneys to
institute legal proceedings. On 2 June 2025, the Applicants’

attorneys formally notified Mr Dua of their intention to approach the
court for relief. The relevant portion reads:
‘…
I
must now formally advise you that unless we are in receipt of the
information and documentation relating to this estate and any
work
you may have done for the Hopley family by Tuesday, 17 June 2025, we
shall reluctantly have no alternative but to bring an
appropriate
application to the High Court and to refer this matter to the Legal
Practice Council for investigation…’
[16]
On 17 June
2025, Mr Dua delivered a further lengthy email. The relevant portion
states:
‘
Resignation
I
confirm it is my intention to resign as Co-Executor, and in respect
of which I will be applying to the Master to be discharged
from my
duties and resign (provided appropriate measures are taken to
safeguard my professional interests and statutory obligations
as are
outlined below). I will address you separately in this regard,
but the purpose of this mail is to call upon the co-executors,

through you, representing them, to respond to the various aspects
which may form part of my report to the Master, and potentially
any
reporting to the authorities. If it is your intention not to
respond or not to provide a reply to the questions asked,
then I will
file my report without the benefit of such information.’
[17]
Despite the
exchange of correspondence, Mr Dua neither delivered the estate files
to the Applicants’ attorneys, as he had
promised, nor formally
resigned as co-executor. According to the Applicants, Mr Dua had
provided different reasons for the delay
in effecting his stated
intention to resign. In the meantime, the winding-up of the estate
remained in limbo, with no accounting
report regarding the progress
made. This remained a principal concern of the First Applicant.
[18]
On 18 June
2025, the Applicants’ attorneys reminded Mr Dua that the
continuing exchange of correspondence was contributing
to the delay
in finalising the estate. They pointed out that approximately three
years had passed without the estate being finalised
and informed him
that his mandate to wind up the estate had been withdrawn or
terminated. He was also advised that the Applicants
had appointed a
new attorney to assist with finalisation of the estate.
[19]
On 19 June
2025, Mr Dua responded with further allegations concerning the estate
and threatened to transfer estate funds to the
Guardians Fund. In
paragraphs 4 and 5 of that email, he stated:
‘
4.
Indemnity and Trust Funds
I
have outlined the basis upon which funds may be disbursed: namely,
that ownership is clarified, and an appropriate joint indemnity
is
furnished. I am also willing to transfer these funds to the
Guardians Fund or to an independent attorney’s trust
account
subject to an agreement that the funds will not be released until
regulatory matters are resolved. This proposal
balances
protection of the estate with your client’s interest in
expediency.
5.
Demand for Compliance
If
I do not receive a comprehensive response addressing the substantive
issues previously raised by tomorrow, I will be compelled
to proceed
as follows:
(a)
Transfer
estate funds to the Guardians Fund;
(b)
Transfer
company-related funds to your trust account with caveats regarding
disputed ownership;
(c)
Submit reports
to the Financial Intelligence Centre (FIC), SARS, and SARB;
(d)
Finalise
estate accounts based on known and undeclared assets;
(e)
Lodge a formal
resignation with the Master including my concerns regarding
non-disclosure and obfuscation.’
[20]
In response to the notice of intended litigation, Mr Dua stated that
he had
decided
to defer his resignation until the matter was before court. In an
email dated 25 June 2025, he stated:
‘
In
light of this development, I have decided to defer my resignation as
co-executor until such time as your application is formally
served
and placed before the court. This will ensure that I am able to
respond in my statutory capacity as co-executor and
provide the court
with a complete and accurate account of the facts, including the
fiduciary issues that have arisen and the lack
of cooperation
received from your client to date. I confirm that I remain willing to
resign in due course, but not in circumstances
where that resignation
may be mischaracterised (
sic
)
as a concession to your client’s allegations or as an admission
of wrongdoing.’
[21]
The Applicants
contend that Mr Dua breached his duties as executor by
failing to identify
and take control of estate assets promptly and by failing to
administer the estate with the requisite diligence.
They further
allege that he failed to provide proper accounts, deliver the estate
files and trust funds, maintain proper accounting
records, and
deposit all estate monies into the separate estate banking account as
required by section 28 of the Act.
[22]
On the
contrary, Mr Dua denies delaying the finalisation of the estate and
denies failing to
fulfil his duties as co-executor. He contends that there are no
legitimate grounds for his removal. His
allegations are
summarised below.
[23]
Mr Dua states
that he had a longstanding relationship with the deceased,
who was both his
client and friend. He was aware that the deceased had various
business interests, including “soft”
loans to various
parties, including his firm, a client/friend, Robbie Labron, among
others. He further states that the deceased
owned shares in, at
least, SeaRiver, CANAF, a Canadian company, and LFH Incorporated, a
firm of accountants, as well as various
other assets.
[24]
According to
Mr Dua, after being nominated as co-executor in terms of the
will, he began
compiling a list of the deceased’s principal assets and made
enquiries regarding his financial records, laptop
and other storage
devices. Upon receiving the bank statements from the Applicants, it
appeared to him that the deceased was reflected
as impecunious, which
he considered unusual given that the deceased had recently purchased
a property on the Thames River for £1
million.
[25]
Mr Dua states
that he nevertheless proceeded to compile a list of assets in
terms of section 26
of the Act. The letters of executorship of the respective executors
were issued only on 10 June 2022. Between
September 2021 and June
2022, he ascertained that the deceased owned various assets,
including a computer.
[26]
He alleges
that the Applicants had refused him access to the computer and
would not permit him
to back up its hard drive. According to him, the Applicants were
nevertheless able to ascertain from the computer
that the deceased
had loaned substantial amounts of money to, inter alia, Dr Pillay
personally, as well as to trusts of which Dr
Pillay was a trustee.
[27]
Mr Dua states
that, in relation to the substantial amounts allegedly loaned
to Dr Pillay et al,
the executors had decided to institute legal proceedings. According
to him, the action is pending before the
Durban High Court and the
disputed amounts constitute assets of the estate. He further states
that he was instructed by Cedric
Petit of the Applicants’
present attorneys to withdraw as attorney of record.
[28]
Mr Dua also
states that he made further enquiries concerning
juristic entities,
apart from SeaRiver, in which the deceased could have had interests
and whether the deceased owned shares which
would constitute assets
of the estate.
[29]
According to
Mr Dua, the ownership of the SeaRiver shareholding had remained
uncertain. He states
that the shareholding does not correspond with records and that he
was unable to trace any transactional history
and expressed the view
that the shares could belong to the deceased estate. He further
established that Crossbow is a discretionary
trust of which the
deceased was the founder and the Applicants are the current trustees.
[30]
Mr Dua
disputes that he had delayed the finalisation of the estate. He
attributes the delays
to difficulties encountered in identifying and taking control of the
estate assets. He alleges that these
difficulties included
uncertainty regarding the estate assets, changes to the SeaRiver
share register, non-disclosure of material
assets and payments
allegedly made directly to Mrs Hopley of monies due to the estate. He
further states that these issues led
him to express an intention to
resign and that he was unable to pursue the Durban High Court action
in the absence of instructions
which, he alleges, were deliberately
withheld by the Applicants.
[31]
Mr Dua alleged
that he communicated these difficulties to Mr Petit, the Applicants’
attorney. He
further
alleges that the deceased may have incurred tax obligations during
his lifetime which were not fulfilled and that these
issues required
resolution.
[32]
He denies the
allegation that he failed to communicate with the First
Applicant. He
attributes the delay in winding up the estate, in part, to what he
describes as the “
vacillation
of the Applicants in respect of the Durban High Court action.”
[33]
Mr Dua further
alleges that the issues concerning foreign currency
transactions, the
SeaRiver shareholding, monies allegedly owed to the trust arising
from the cancellation of the Horizon property
transaction, and
potentially undisclosed rental income from the deceased’s UK
properties warranted reporting to the Master
of the High Court,
Financial Intelligence Centre (FIC) and/or other relevant
authorities, including South African Revenue Service
(SARS).
[34]
Mr Dua denies
failing to account to the Applicants. He maintains that the estate
could not be finalised until the queries he had
raised were addressed
and the High Court proceedings were concluded. He states that he was
obliged to engage with SARS regarding
certain transactions.
Notwithstanding these issues, he remains willing to resign as
executor, provided that he is indemnified against
any consequences
arising from the matters identified in the execution of his duties,
including transactions concerning any understatement
of the
deceased’s income for tax purposes.
[35]
In summary, Mr
Dua attributes the delay in finalising the estate to the Applicants
and the pending High Court litigation. He denies
that he acted
dilatorily in winding up the estate and seeks dismissal of the
application with a punitive costs order against the
Applicants.
The
issues before this Court
[36]
This Court
must determine the following issues:
36.1
Whether it is undesirable that Mr Dua should continue to act as
co-executor of the estate of the late
Mr Hopley in terms of section
54(1)(a)(v);
36.2
The costs of the application.
The
parties’ submissions
[37]
It was
submitted on behalf of the Applicants that it was no longer in the
interest of the estate and the heirs that Mr Dua should
continue as a
co-executor of the estate. In this regard, counsel for the
Applicants urged the court to act in terms of section
54(1)(a)(v) and
terminate his appointment. Counsel conceded that the test to be
applied is whether the continuance of the executor
in office will
prejudicially affect the future welfare of the estate, with the
dominant consideration being the interest of the
estate and of the
heirs.
[38]
The
Applicants’ counsel had stressed the breakdown of the
relationship between Mr Dua and the Applicants and the sole heir.

As I understand it, the contention of the Applicants’ counsel
is that the disintegration of the relationship is not based
on mere
disagreements or mere conflicts. The submission in essence was that
the breakdown of the relationship is material to the
continuation of
Mr Dua’s appointment as co-executor. In support of this
submission, counsel pointed to factors such
as the delay in the
finalisation of the estate for approximately three years from the
date of appointment of Mr Dua; lack of accountability;
and the fact
that Mr Dua had expressed his intention to resign and that there were
no communications with the heirs and the other
co-executors by Mr
Dua.
[39]
The
Applicants’ counsel had bolstered his submission by heavy
reliance on Mr Dua’s expressed wish to, and his undertaking
to,
resign as a co-executor, and his conduct of suddenly refusing to
effect such expressed and unequivocal wish to resign.
The court
was also urged, by the Applicants’ counsel, to consider the
current state of affairs where Mr Dua has not proposed
or outlined
any plan for the progression of the administration of the estate and
instead, simply described the present position
as an impasse.
[40]
It was also
highlighted that Mr Dua has shown an apparent conflict of interest,
which on its own is a further ground for his removal.
This
submission was premised on the basis that although Mr Dua had
expressly stated that he wished to resign as a co-executor,
he had
placed conditions on such resignation. These conditions
included payment of his fees and other indemnity demands which
would
free him from liability for claims that may arise against him out of
his conduct whilst in office as a co-executor.
It was pointed
out on behalf of the Applicants that by this conduct, Mr Dua had
allowed himself to be conflicted.
[41]
This Court was
also urged by the Applicants’ counsel to consider what is
termed to be unlawful conduct or threats of unlawful
conduct by Mr
Dua. In advancing this submission, counsel pointed out that Mr Dua
had not deposited some monies due to the estate
in the estate account
and instead, he kept monies of the estate in the attorneys’
trust account. Regarding threats,
counsel pointed to the emails
of Mr Dua in which he threatened to pay estate funds to the Guardians
Fund. This Court was
also urged to consider the failure by Mr
Dua to provide regular or prompt accounting to the heirs and
co-executors.
[42]
In a nutshell,
counsel contended that Mr Dua’s continuation in office is
undesirable.
[43]
On the
contrary, it was submitted on behalf of Mr Dua that the Applicants
had not made out a case for the removal of Mr Dua in terms
of section
54(1)(a)(v). In this regard, counsel for Mr Dua submitted that
there was no alleged wrongdoing on his part, and
in such an instance,
the Court must scrutinise with particular care whether the asserted
“undesirability” is real,
or whether it has been
constructed by the very parties who seek to rely upon it. In
this case, counsel submitted that the
alleged undesirability is
self-created by the Applicants.
[44]
The essence of
the submission on behalf of Mr Dua was that a co-executor cannot
manufacture an impasse by instructing the executor
to stop work, by
withholding information, and by refusing every neutral mechanism or
resolution and then present that impasse to
the Court as the ground
of removal. Counsel had stressed that to permit such conduct
would be to substitute the executor’s
preference for the
testator’s choice, and to reduce section 54(1)(a)(v) to removal
at the instance of whoever wants the executor
to be removed.
The thrust of these submissions, as I understand, was that the
asserted undesirability is as a result of Mrs
Hopley refusing (a) to
provide access to the pc; (b) to grant Mr Dua permission to make a
backup of the hard drive; (c) instructing
Mr Dua to proceed with the
action; (d) information about the shareholding register; and (e) to
deal with the unresolved tax issues,
and non-disclosures, including
providing the information that were requested.
[45]
It was
submitted on behalf of Mr Dua that this is such a classical case
where Mrs Hopley had obstructed Mr Dua in the performance
of his
duties and now seeks to have Mr Dua removed. The submission was
that, in such circumstances, the delays in the finalisation
of the
estate were caused by the Applicants themselves and not Mr Dua, and
therefore, it was not available for the Applicants to
seek for the
removal of Mr Dua for their own actions and omissions.
[46]
It
was contended that the breakdown of the relationship had only
commenced when Mr Dua had raised legitimate queries concerning

undisclosed assets, unexplained share transfers, offshore
transactions and the deceased’s tax compliance. Counsel
contended that a breakdown in relations between executors is not,
without more, a ground for removal and that something more is

required. This Court was referred to the authority of
Oberholzer
NO and Others v Richter
[2]
;
counsel
submitted that there were no objective facts demonstrating that the
estate’s welfare is prejudiced by Mr Dua’s
continuance.
The submission was that Mr Dua had performed his duties and was
willing to continue with his duties as an executor.
[47]
Regarding the
alleged conflict of interest and the demand for indemnity, counsel
contended that the Applicants’ “conflict
of interest”
ground is not a “conflict” at all and instead, it is a
characterisation of Mr Dua’s settlement
proposal contained in
his correspondence. In this regard, counsel contended that the
court should view the tender of resignation
and the conditions
attached thereto as part of a settlement proposal.
[48]
The submission
was that the Applicants simply misinterpret or misunderstand the
indemnity sought. Regarding payment to the Guardians
Fund, it was
contended on behalf of Mr Dua that there was no payment made to the
Guardians Fund and that the statement was merely
a conditional
position in the correspondence made expressly in the alternative,
namely payment into an independent attorneys’
trust account
pending resolution of the ownership queries. The submission is
that the context was protective, and not dissipative.
[49]
On the
question of the failure to account, it was submitted, on behalf of Mr
Dua, that monthly statements were rendered by Mr Dua
to the
Applicants in respect of both the litigation and the estate funds
under Mr Dua’s control. It was also submitted that
a draft
liquidation and distribution account was prepared by Mr Dua and
furnished to the Applicants. In this regard, it was
submitted
that the final liquidation and distribution account is dependent upon
the finalisation of the pending case against Dr
Pillay and the
outstanding asset queries, including sources of funds.
[50]
Regarding the
resignation by Mr Dua, counsel submitted that Mr Dua had only
expressed a willingness to resign on orderly terms and
that should
not be misconstrued to be an admission that his continuation in
office is undesirable.
Legal
framework
[51]
Section
54(1)(a)(v) confers a discretion on the court to remove an executor
if it is satisfied that it is undesirable that such
an executor
should continue to act as an executor of the estate concerned.
[3]
Significantly, the discretion that the court possesses under
section 54(1)(a)(v) needs to be stated. The distinction
of the
type of discretion has been developed with reference to two cases as
observed by the Constitutional Court in
Trencon;
Mahomed v Kazi’s Agencies (Pty) Ltd and Others
[4]
(Mahomed) and
Ex
Parte Neethling and Others
[5]
(Ex parte Neethling).
[52]
In
Mahomed,
the court held that:
‘…
[T]he
truth of the matter is that no general principle can be formulated
which will govern all cases where the exercise of a discretion
is
brought on appeal. For discretions vary infinitely in their nature.
On the one hand there are discretions such as that dealt
with in
Rex
v Zackey
(1945 AD 505)
, viz. the discretion vested in
the presiding judicial officer to deal with an application for an
adjournment. One can well
imagine that the appellant in such a case
would find it difficult to persuade the Court of Appeal to upset a
decision of a judicial
officer as to the conduct of business in his
own court. Not the least of his difficulties would be to recreate in
the Appeal Court
the atmosphere in which the application for an
adjournment was made. On the other hand there are cases like the
present where we
have before us all the material which was before the
lower Court and where we are in as good a position to decide the
matter as
that Court was; indeed, it may well be that we are in a
better position, for the longer time available to counsel for
investigation
has probably given us the benefit of a more elaborate
and helpful argument than could be presented to the lower Court. I
should
be very sorry to find that the cases required us to restrict
the field of enquiry on appeal to a consideration of the fairness and

honesty of the Judge in the Court below. Fortunately they do not.
In
Amod v Khan
(1947 (2), S.A.L.R. 432)
this Court
heard an appeal from an order of a single Judge setting aside a
provisional order of sequestration. HATHORN, J.P., said
at p. 434:
“
There
can be no doubt that it is a full appeal, that is, a retrial of the
case, and that this Court is in exactly the same position
as was the
Court below, and that the discretion . . . which was imposed in the
learned Judge, is now imposed in this Court.”’
[53]
In
Ex
parte Neethling
,
the Appellate Division, held that:
‘…
[I]
think, therefore, that, if an appeal lies, this Court would be
entitled to interfere, not on the ground that in its opinion
the
contract was in the interests of the minors, because if it did so it
would be substituting its discretion for that of the upper
guardian,
but only if it came to the conclusion that the Court
a
quo
had not exercised a judicial discretion.
Rex v
Zackey
,
1945 AD 505
, dealt with the question of an appeal court's
power to overrule a lower court's decision where the decision had
been on a matter
within the discretion of such lower court and three
classes of such cases were referred to, viz. decisions on the
question
of costs, on a postponement and on an amendment of pleadings
in the lower court. To these might be added the question of an
alteration
of sentence on appeal (see
Rex v Ramanka
,
1949
(1) SA 417).
I see no distinction in principle between these and the
present case …’
[54]
In
Trencon
Construction v Industrial Development Corporation of South Africa
Limited and Another,
[6]
the
distinction in the types of the court’s discretion was stated
as follows:
‘
[85]
A discretion in the true sense if found where the lower court has a
wide range of equally
permissible options available to it. This
type of discretion has been found by this Court in many instances,
including matters
of costs, damages and in the award of a remedy in
terms of section 35 of their Restitution of Land Rights Act. It
is “true”
in that 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.
[86]
In contrast, where a court has a discretion in the loose sense, it
does not
necessarily have a choice between equally permissible
options. Instead, as described in Knox, 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’
[55]
What
is important in this case is to first understand the nature of the
discretion conferred by section 54(1)(a)(v). The answer
must be found
in
Gory
v Kolver NO and Others
[7]
(Starke and Others Intervening) where it was stated:
‘
The
discretion vested in the High Court by s 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. I am of the view that this Court should not
interfere with the exercise by the High Court of its
discretion in
this regard.’ (Footnote omitted).
[56]
The
parties, in their respective submissions, seem not to lock horns on
the nature of the discretion conferred by section 54(1)(a)(v).

The parties agree that the test to be used should be the one
formulated in
Die
Meester v Meyer,
[8]
cited with approval by the
Constitutional Court in
Gory
v Kolver NO and Others
[9]
(Starke and Others Intervening), where Van Heerden AJ articulated the
principle as follows (the English translation being taken
from the
headnote of
Die
Meester v Meyer
:
‘
[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 s 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.’
[57]
The removal of
an executor under
section 54(1)(a)(v)
is a general one relating to
the desirability of the executor continuing to act. The mere
disagreement or breakdown of the
relationship between the executor
and the heirs is not sufficient reason to warrant the removal of an
executor.
The enquiry is whether the
executor's continued tenure, viewed objectively, threatens the proper
administration of the estate
or the interests of its beneficiary.
[58]
I
agree with Mr Dua’s counsel in this regard and Oberholzer is
the correct authority. The removal of an executor is
a very
drastic step which the court will not grant lightly. Under the
repealed Act, the Administration of Estates Act 24 of 1913,
the court
had the power to remove an executor if it was satisfied that by
reason of good cause, the interest of the estate would
be furthered
by his removal. The sections under the Act and the repealed Act
do not repeal or remove the common-law power
of the court to remove
an executor. It may be useful and at times relevant to refer to
some of the circumstances under which
the court exercised its power
under the repealed Act as well as the Act.
[10]
[59]
The
essential enquiry is therefore not confined to whether the executor
has committed a particular act of misconduct. The
Court must
determine whether, in all the circumstances, it is undesirable for Mr
Dua to continue acting as executor of the estate.
The
discretion is a judicial discretion, with the interest of the estate
paramount.
[11]
The
focus is therefore on the practical consequences of continued office,
rather than on moral blame or proof of misconduct
as a prerequisite
to removal.
[60]
This Court,
therefore, is required to conduct an overriding enquiry under
s54(1)(a)(v) and determine whether, having regard to all
the
circumstances, the continued appointment of Mr Dua is in the interest
of the proper administration of the late Mr Hopley’s
estate and
the beneficiaries. This Court derives its support from cases
such as:
(a)
Van
Niekerk v Van Niekerk and Another
[12]
where the court held that:
‘
[4] Before
exploring any further the disputes between the applicant and the
respondent, it is appropriate to have regard to the
statutory
provision under which this application is brought. Section
54(1)
(a)
(v) reads as follows:
“
An executor may at
any time be removed from his office —
(a)
by
the Court —
. . .
(v) if
for any other reason the Court is satisfied that it is undesirable
that he should act as executor of the
estate concerned . . .”
In considering an
application under this section the court is vested with a
discretion, and in the exercise of that discretion
the predominant
consideration will be the interests of the estate and those of the
beneficiaries.
…
[12] … [H]owever,
where it is apparent from the executor's conduct that it is their
purpose and intent to use their office
to resist all claims, or all
claims from a particular source, irrespective of their merits and
without any fair-minded consideration
thereof, that may, in my view,
constitute good cause for their removal in terms of s 54(1)
(a)
(v).
That view would be strengthened where the motive was to secure
personal financial benefit in their capacity as heir. The
office of
executor should not be used in order to pursue a private agenda.’
(b)
In
Oberholzer
[13]
,
the court held that:
‘
13.
Margo J, at p 17B, also referred to the matter of Volkwyn, N. O. v
Clarke & Damant, 1946 (WLD) 456 where Murray J said the
following
on p 464:
“
Both
the statute and the case cited (Letterstedt v Broers) indicate that
the sufficiency of the cause for removal is to be tested
by a
consideration of the interests of the estate. It must therefore
appear, I think, that the particular circumstances of the
acts
complained of are such as to stamp the executor or administrator 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.”
…
16.
In the matter of Gory v Kolver NO and
Others
[2006]
ZAGPHC 28
;
2006
(5) SA 145
(T)
in paragraph [27] Hartzenberg J said the following:
“…
[S]ection
54 of the Administration of Estates Act deals with circumstances
under which an executor may be removed from office. In
terms of s
2(b)(i) the Master may remove an executor who has been nominated by
will after the will has been declared void. The
first respondent was
not nominated by will but he was nominated by intestate heirs who
were not heirs. In my view, that is one
factor pointing to his
removal. Because of the way in which he treated the applicant, I am
of the view that it is desirable that
he be removed in terms of s
54(1)(a)(v).”
The
court found that the executor was, inter alia, obstructive and that
he tried his best to steamroller the administration of the
estate
through on a basis that the
applicant's
claim be negated. In this the executor was aided and abetted by the
second and the third respondents who were not nominated
as heirs in
the will. The court also found that the executor ought not to be
remunerated for his services with the administration
of the estate or
to be reimbursed for expenses.
17.
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. But,
in my view, even in such
event, the respective actions of the heir and the executor must be
considered, for an heir cannot be allowed
to frustrate, through
unreasonable and wrong conduct, the actions of an executor which is
beyond reproach. A disgruntled heir cannot
be allowed to circumvent
the administration process by improperly pressurizing the executor to
accede to his demands. To remove
an executor in such circumstances
would not serve any purpose for the same lot would befall the next
executor as well. It is not
necessary to discuss this issue any
further since in the present matter I hold the view that the
relationship between the respondent
and the appellant is not such
that it would prevent the administration of the estate.’
[61]
In order for
the Applicants to succeed in their request for the removal of Mr Dua
as the co-executor, they are required to place
facts before this
Court which would have the effect of convincing this Court to come to
such a decision. On the other hand, this
Court is required to
scrupulously scrutinise the facts. In other words, the onus
rests with the Applicants for the court
to grant the relief. In
this regard, the submissions on behalf of Mr Dua were correctly made.
[62]
In evaluating
whether Mr Dua’s continued appointment as co-executor is
undesirable within
the meaning of section 54(1)(a)(v) of the Act, this Court must
consider the totality of the evidence, taking
into account the
following interrelated factors:
62.1
The duration and nature of the delay in winding up the estate;
62.2
The extent of the breakdown in trust and working relationship between
the co-executors and the sole
beneficiary;
62.3
The positions adopted by Mr Dua regarding his conditional offers to
resign, fee demands,
and assertions of indemnity;
62.4
The handling of estate funds and compliance with the statutory
framework governing estate administration;
and
62.5
The ultimate interest of the estate and its sole beneficiary.
[63]
While a mere disagreement between executors, or between
an executor and a beneficiary, will not ordinarily justify removal, a
different
position may arise where the conflict has practical
consequences for the administration of the estate. The question is
whether
the objective facts, assessed under the applicable
motion-proceedings rule, establish an inability to administer the
estate effectively,
expeditiously and in an orderly manner. That
enquiry must be undertaken without treating the mere loss of trust,
on its own, as
decisive.
[64]
Particular caution is required because a number of
material allegations are disputed, including the causes of the delay,
the Applicants'
alleged failure to provide information, the basis
upon which funds were retained in trust, and the purpose of the
indemnity and
Guardian's Fund proposals. Those disputes cannot be
resolved simply by preferring the Applicants' version on
probabilities. Their
significance must be assessed consistently with
the rule applicable to final relief in motion proceedings.
[65]
Against that legal framework, and before considering
the evidence in detail, it is necessary to state the evidential rule
applicable
to these proceedings.
Discussion and
evaluation
[66]
These
being motion proceedings, this Court is obliged to apply the
principles
enunciated in
National
Director of Public Prosecutions v Zuma,
[14]
where the court held:
‘
[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 (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.’ (Footnote omitted).
[67]
I was urged by
counsel for the Applicants to consider the effect of Mr
Dua’s expressed
intention to resign, as conveyed in various emails addressed to the
First Applicant, the Applicants’
attorneys and the Applicants
themselves. The submission was that, should this Court find that Mr
Dua had in fact resigned, cadit
quaestio: his resignation, or,
alternatively, his unequivocally expressed intention to resign,
would, on its own, establish the
undesirability of the estate being
administered by a person who had communicated his unwillingness to
continue in office. In my
view, the submission carries considerable
weight and warrants close scrutiny of the relevant correspondence.
[68]
Before
considering the correspondence relied upon by the applicants, it is
necessary to determine the meaning and effect of the
language
employed therein. The proper interpretation of documents is governed
by the now-settled principles articulated by the
SCA in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
.
[15]
[69]
It is
therefore necessary to examine the emails exchanged and, in
particular,
the
language employed by Mr Dua when communicating his position regarding
his continued appointment as co-executor. The first email
relied upon
by the Applicants was addressed to Mrs Hopley. The heading of the
email is styled “Subject: re: Resignation”.
In this
email, Mr Dua states:
“
I
suggest we agree that I resign. I will prepare a brief advising
you what needs to be done to finish the process of winding
up the
estate.”
[70]
On a proper
interpretation of this email, Mr Dua had not, at this stage,
resigned. The language employed is that of a proposal rather
than an
unequivocal act of resignation. In particular, the words “I
suggest we agree that I resign” indicate that Mr
Dua was
proposing that the parties agree to his resignation. The proposal was
therefore, at least on the face of the email, subject
to agreement.
It cannot, in my view, reasonably be construed as an unequivocal
communication that he had already relinquished the
office of
co-executor. Self-evidently, reliance cannot be placed on the email
of 14 February 2025, standing alone, for the conclusion
that Mr Dua
had resigned as co-executor. More is required for such
inference to be drawn.
[71]
The position
is materially different when regard is had to the subsequent
correspondence, and in particular the email of 22 May
2025. The
background to that email is the correspondence exchanged on 9, 14 and
15 May 2025. In the email of 9 May 2025,
Mr Petit, acting on
behalf of the First Applicant, recorded the concerns that had arisen
regarding the administration of the estate.
The relevant portion
reads:
‘
We
have been consulted by Mrs Hopley, your co-executor and sole
beneficiary in the estate of her late husband, Michael. Our

client has become concerned that she has been unable for some time to
obtain any information from you as to the progress of the
winding up
of this estate. Mrs Hopley has furnished us with a copy of the draft
liquidation and distribution account prepared by
you together with a
summons and plea involving Dr Das Pillay under case number
D5192/2023. … We would also be grateful if
you would kindly
let us have a reconciliation of all amounts received and disbursed by
your firm in connection with these various
matters.’
[72]
On 14 May
2025, the First Applicant addressed an email to Mr Dua in which she
stated:
‘
As
you are aware I am the sole beneficiary of my late husband’s
estate as well as a joint executor. Please will you
supply
attorneys De Villiers Evans & Petit who act on my behalf, with
all the information that they may require relating to
this estate and
to my late husband’s affairs.’
[73]
On 15 May
2025, Mr Petit addressed a further email to Mr Dua. The relevant
portion of that email reads:
‘
I
refer to previous correspondence and annex hereto a copy of a letter
of authority duly signed by Mrs Jonna Hopley. Please
will you
now let me have the initial information requested in my letter of the
9th of May 2025. In the interim, our client
has furnished us
with a copy of your email to her of the 14th of February 2025, and we
enquire whether you intend continuing to
deal with the estate and
related matters.’
[74]
This email is
significant. Unlike the earlier correspondence, it put a direct and
pertinent question to Mr Dua: whether he intended
to continue dealing
with the estate and related matters. The enquiry therefore required
Mr Dua to clarify his position regarding
his continued involvement in
the administration of the estate. It was against this background that
Mr Dua furnished his response
of 22 May 2025.
[75]
The response
of 22 May 2025 is, in my view, of considerable significance. It is no
longer couched in the tentative language employed
in the email of 14
February 2025. In response to the direct enquiry whether he intended
to continue to deal with the estate and
related matters, Mr Dua
stated, in unequivocal terms, “and am resigning”. The
relevant portion of his email reads:
‘
I
am preparing the files and will make them available for collection,
and am resigning. If arrangements have not been made
as to the
accounts for receipt of the funds then I will transfer the funds into
the Guardians Fund.
I
am entitled to seek whatever opinion I wish, to the exclusion of your
client, particularly when the conduct under scrutiny is
that of your
client and relates to my report to the Master or the authorities,
including the Reserve Bank on transactions which
have been questioned
of your client and no answer given (hence my request for an opinion
in relation to areas which are beyond
my expertise on exchange
control and various other issues). Your client can deal with
the consequences of my report as necessary.
Accordingly,
all I await from you is
1.
your consent
that you will take up the appointment as executor, or not;
2.
resolutions
from the Company and Trust (to the extent that they are validly
appointed) as to transfer of the funds;
3.
an estate late
account, duly fica’d to deposit the funds.
I
will also be effecting a fee for the work done and a pro rata fee for
the executor’s fee, calculated on the value of the
estate.’
[76]
The language
used in the email of 22 May 2025 admits of little ambiguity.
Mr Dua did not state
that he was considering resigning; that he intended to resign at some
future stage or that he proposed that
the parties agree to his
resignation. He stated, plainly, “and am resigning”. This
statement must be considered in
the context in which it was made,
namely, in direct response to the enquiry whether he intended
continuing to deal with the estate
and related matters.
[77]
The
surrounding language reinforces that interpretation. Mr Dua stated
that he was preparing the files and would make them available
for
collection; he contemplated the transfer of funds to the Guardians
Fund; and he sought confirmation as to whether Mr Petit
would take up
the appointment as executor. These are not the statements of a person
indicating a mere possibility that he may resign.
They are statements
consistent with an intention to bring his involvement in the
administration of the estate to an end.
[78]
There is,
however, a distinction to be drawn between an unequivocal expression
of an intention to resign and the legal consequences
of such an
expression. The office of executor is a statutory office and the
resignation of an executor is regulated by the Administration
of
Estates Act. In particular, section 54(1)(b)(vi) contemplates an
executor applying in writing to the Master to be released from

office. It follows that the Court must distinguish between the
question whether Mr Dua unequivocally communicated his intention
to
resign and the separate question whether, as a matter of law, he
thereby ceased to hold office as executor.
[79]
In my view, it
is not necessary, for purposes of the enquiry under section
54(1)(a)(v), to
conflate these two questions. Even if the email of 22 May 2025 did
not, without more, have the legal effect of terminating
Mr Dua’s
appointment as executor, it remains highly relevant to the question
whether it is desirable for him to continue
to administer the estate.
The issue under section 54(1)(a)(v) is not confined to whether the
executor has committed misconduct.
The Court is required to consider
whether, in the circumstances, it is desirable for that particular
person to continue in office.
[80]
Mr Dua's
unequivocal statement that he was resigning, coupled with his conduct
in preparing the estate file for collection and making
arrangements
concerning the funds of the estate, is therefore a relevant
consideration in determining whether his continued appointment
is
desirable. His communication was not made in isolation. It followed a
direct enquiry as to whether he intended continuing to
deal with the
estate and was accompanied by statements indicating that he was
taking steps consistent with bringing his administration
of the
estate to an end.
[81]
The
significance of the statement is accordingly not dependent solely
upon whether it constituted a completed resignation in the
technical
statutory sense. If Mr Dua had, in fact, unequivocally communicated
that he no longer intended to continue acting as
executor, that fact
is relevant to the Court's assessment of whether it is desirable that
he should nevertheless remain entrusted
with the administration of
the estate. The Court must therefore consider the substance and
effect of his communication, rather
than merely the nomenclature
attached to it.
[82]
I accordingly
distinguish between the email of 14 February 2025, which amounted to
no more than a proposal that the parties agree
to his resignation,
and the email of 22 May 2025, in which Mr Dua expressly stated that
he was resigning. The latter communication,
viewed in its proper
context and together with the conduct recorded therein, constitutes
cogent evidence of his unequivocal intention
not to continue
administering the estate. Whether that intention was thereafter
translated into a legally effective cessation of
office in accordance
with the statutory mechanism is a separate question. For purposes of
section 54(1)(a)(v), however, the communication
and the circumstances
in which it was made are plainly relevant to the enquiry whether it
is desirable for Mr Dua to remain in
office.
[83]
It is clear on the papers that the relationship between
Mr Dua, on the one hand, and the First Applicant and the other
co-executor,
on the other, has broken down seriously. That fact is
not, by itself, sufficient for removal. Its importance lies in its
practical
consequences. By June 2025 communications concerning the
estate were being conducted through attorneys; the estate files had
not
been handed over notwithstanding the indication that they would
be made available for collection; Mr Dua had stated that he was

resigning and later deferred that resignation pending the litigation;
and the parties had reached an acknowledged impasse. Even
accepting
Mr Dua's version that the asset, tax and regulatory enquiries he
raised were legitimate, the objective position was that
the
co-executors were no longer able to work together in a manner
conducive to the orderly administration of the estate.
[84]
I do not consider it necessary to find that Mr Dua's
proposed resort to the Guardian's Fund was unlawful, or that it was
intended
to discourage the Applicants from demanding accountability.
Mr Dua explains that his proposals were protective and were prompted

by unresolved ownership and regulatory concerns. Applying the
Plascon-Evans rule, that explanation must be taken into account.
Even
on that footing, however, the correspondence shows that the release
of files and funds, the question of resignation, the payment
of fees,
the demand for indemnity and the regulatory concerns had become
intertwined in a manner that left the administration stalled.
The
significance of the Guardian's Fund proposal is therefore not that it
proves bad faith, but that it forms part of the objective
evidence of
the depth of the impasse.
[85]
Nor do I treat Mr Dua's expressed intention to resign
as a completed statutory resignation, or as an admission of
wrongdoing. Its
significance is more limited, but nevertheless
material. He repeatedly communicated that he wished to relinquish the
office, stated
that he was preparing the files for collection, and
thereafter deferred his resignation so that he could respond to the
application
in his statutory capacity. That sequence reinforces the
conclusion that the existing co-executorship had ceased to function
effectively.
[86]
I have considered
Oberholzer NO and Others v
Richter
. The principle that mere disagreement or hostility does
not justify removal is accepted. The present matter, however,
involves
more than disagreement. The estate has remained unfinalised
for more than three years; a draft liquidation and distribution
account
was furnished only on 30 July 2024; the parties became unable
to agree on the handover of the files and the treatment of funds;
and
no workable mechanism for continued joint administration is apparent
from the papers. It is unnecessary to decide that the
delay was
entirely attributable to Mr Dua. Even accepting his explanation that
unresolved assets, the pending action and tax questions
required
attention, his continued participation as co-executor has, in the
circumstances now prevailing, become an impediment to
the orderly
finalisation of the estate.
[87]
I accept that a testator's choice of executor is
entitled to weight and is not to be overridden merely because a
beneficiary or
co-executor has lost confidence in that person. But
that consideration is not decisive where the objective evidence
demonstrates
practical paralysis in the administration of the estate.
The evidence does not establish that Mr Dua legally resigned from
office.
It does establish that he unequivocally communicated an
intention to relinquish the office, later remained in office amidst
unresolved
disputes concerning files, funds, fees, indemnity and
regulatory matters, and that the co-executors can no longer
administer the
estate together effectively. In those circumstances,
the interests of the estate and its sole beneficiary outweigh the
consideration
that Mr Dua was chosen by the testator.
Findings
[88]
To summarise, I am satisfied that it is undesirable for
Mr Dua to remain a co-executor of the estate. That conclusion does
not rest
on the breakdown of the relationship alone, nor on the
proposition that his emails constituted a completed resignation. It
rests
on the cumulative effect of the prolonged non-finalisation of
the estate, the serious and mutual breakdown in the working
relationship
between the co-executors, Mr Dua's repeated and
unequivocal indication that he wished to relinquish office, the
failure thereafter
to achieve an effective handover, and the manner
in which disputes concerning files, funds, fees, indemnity and
regulatory issues
have become inseparable from the continued
administration of the estate. Viewed objectively, the existing
co-executorship has reached
a state in which its continuation
prejudices the orderly administration and finalisation of the estate.
[89]
The chronology concerning the liquidation and
distribution account is a relevant part of that overall picture. The
draft L&D
account was delivered on 30 July 2024, more than two
years after the letters of executorship were issued on 10 June 2022
and approximately
nineteen months after the power of attorney of 8
December 2022. The delay cannot, without more, determine the
application, particularly
in the light of the disputes concerning
assets and the pending litigation. It is nevertheless relevant when
considered with the
remaining circumstances. The correspondence also
indicates that monies said to be estate monies were held in an
attorney's trust
account. Section 28 of the Administration of Estates
Act regulates the banking of estate monies and provides that:
‘
(1)
An executor-
(a)
shall, unless the Master otherwise directs, as soon as he or she has
in hand moneys in the estate in excess of R1 000, open
a cheque
account in the name of the estate with a bank in the Republic and
shall deposit therein the moneys which he or she has
in hand and such
other moneys as he or she may from time to time receive for the
estate.’
[90]
In
Van
Niekerk v Van Niekerk and Another
[16]
,
the court 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 (s26(1) of the Act). The
executor is not a mere agent for the heirs.
That
statutory responsibility underscores why the enquiry under section
54(1)(a)(v) is directed to the proper administration
of the estate
rather than to assigning moral blame between the parties.
Conclusions
[91]
I am satisfied that the Applicants have made out a case
for the grant of the principal relief sought. Counsel for Mr Dua
urged the
court not to make a personal costs order against him. That
question must be considered separately from the merits of the removal

itself.
[92]
Mr Dua's opposition was not devoid of legal substance
merely because he had previously indicated a willingness to resign.
He was
entitled to place his explanation for the delays and the
unresolved estate issues before the Court. The relevant consideration
for costs is, however, that by the time these proceedings became
necessary he had repeatedly indicated that he would relinquish
office
and hand over the files, yet no effective resignation or handover
followed and the administration remained at an impasse.
The
Applicants were therefore reasonably driven to seek an order
resolving the position. It is common cause that Mr Dua remains

entitled to such executor's fees and disbursements as are properly
due, subject to the applicable process for their determination.
[93]
The Applicants cited Mr Dua in both his official and
personal capacities and sought costs in the notice of motion. There
is no reason
for the estate to bear the costs occasioned by
litigation required to resolve an impasse in which Mr Dua's personal
claims to fees
and indemnity had become intertwined with the question
whether he would relinquish office. Costs should therefore follow the
result
against Mr Dua personally. The matter was sufficiently complex
to justify costs on scale C of the tariff, including the costs of
two
counsel where so employed.
[94]
The personal costs order is not punitive. It reflects
the conclusion that the financial burden of obtaining the removal and
handover
necessary to restore the orderly administration of the
estate should not fall upon the estate or its sole beneficiary.
Order
[95]
In the result, the following order shall issue:
1.
The First Respondent is removed as co-executor of the estate of the
late Michael
David Hopley (Master's Reference 004488/2022PMB) in
terms of
section 54(1)(a)(v)
of the
Administration of Estates Act 66
of 1965
.
2.
The First Respondent is directed to return his letters of
executorship to the
Third Respondent forthwith under
section 54(5)
of
the
Administration of Estates Act 66 of 1965
.
3.
The Third Respondent, namely the Master of the High Court,
Pietermaritzburg,
is directed to issue fresh letters of executorship
to the Applicants removing the name of the First Respondent
therefrom.
4.
The First and Second Respondents are ordered to:
4.1
Forthwith hand over and deliver to the attorneys of record for the
Applicants, De Villiers
Evans & Petit, all original estate files,
documents, records, and correspondence relating to the administration
of the estate
of the late Michael David Hopley under Master’s
reference number 004488/2022PMB;
4.2
Forthwith provide a complete written accounting of all trust monies,
receipts, and disbursements
received, made or held by the First
Respondent and/or the Second Respondent in connection with the
winding up of the estate;
4.3
Forthwith pay over to the estate late account with Nedbank (as per
annexure “Q4”
to the Founding Affidavit) all funds held
in trust in relation to the estate, which are common cause, and any
related entities,
including Seariver Investments (Pty) Ltd and The
Crossbow Trust, as authorised by annexures “Q2” and “Q3”

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