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[2011] ZAWCHC 496
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Mbonjwa and Others v Mbonjwa and Others (9915/2011) [2011] ZAWCHC 496 (8 September 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE NUMBER: 9915/2011
DATE: 8 SEPTEMBER 2011
In
the matter between:
SONWABILE GLADWELL MBONJWA
…......................................................
1
st
Applicant
VUYOKAZI GLORIA MBONJWA
…...............................................................
2
nd
Applicant
FRANK MBONJWA
….....................................................................................
3
rd
Applicant
WENDY LANGA
…..........................................................................................
4
th
Applicant
and
NIKHUSELO CORNELIA MBONJWA
…....................................................
1
st
Respondent
PHATHISWA PRINCESS MBONJWA
…...................................................
2
nd
Respondent
AMANDA MBONJWA
….............................................................................
3
rd
Respondent
TKR JIYANA
…............................................................................................
4
th
Respondent
MASTER OF THE COURT N.O.
…..............................................................
5
th
Respondent
JUDGMENT
DOLAMO.
AJ
:
I am going
to be very brief in my judgment. The applicants herein have brought
the present application for the following
relief:
that the fourth respondent's appointment, as sole executor in the
estate of Meluleko Philip Mbonjwa, Master's reference
number
1733/2009, be set aside; that the fifth respondent be directed to
appoint Frans Hendrik Cronje, ID number , together with
the 4
th
respondent
as joint executors in the estate of Meluleko Philip Mbonjwa; that
the respondents pay the cost of this application
on the scale as
between attorney and client, jointly and severally, the one paying
the others to be absolved.
Save for the fifth respondent,
all the respondents are opposing this application. The application
was originally brought on an
urgent basis, but the parties have
since resolved this aspect and the matter proceeded on a semi-urgent
basis. I shall not repeat,
in any details, the allegations contained
in the parties' papers, but essentially restrict myself, in
summarising the facts,
to those which are a matter of common cause
between the parties. I shall also draw extensively from both sets of
heads of argument,
which I have found very useful.
The deceased in this matter,
Meluleko Philip Mbonjwa, who died on 8 January 2009, had seven
children, five of whom are the applicants
and two the second and
third respondents, respectively. Applicants were fathered by the
deceased with different mothers, whereas
the second and the third
respondents share a common mother, namely the first respondent, who
was married to the deceased in community
of property, which marriage
subsisted until the deceased's death. The deceased left a sizeable
estate, which is valued at approximately
R5.8 million. It is, inter
alia, made up of immovable properties and two transportation
businesses. The deceased died intestate.
The first respondent was
initially appointed the executrix to the deceased's estate, by the
firth respondent, that is the Master
of this court, but was removed
from office during or about June 2010. This was after, according to
the Master, failing to properly
attend to the administration of the
estate. The removal followed on a complaint lodged with the fifth
respondent by the applicants.
This removal of the first respondent,
executrix to the deceased's estate, led basically to two camps
making nominations of their
preferred candidate for appointment by
the fifth respondent as a replacement executor.
These candidates were the
fourth respondent nominated by first to third respondents, who were
joined by the fifth applicant and,
on the other hand, Mr Cronje, who
was nominated by the applicants. Both these candidates for
appointment as executors are attorneys
in private practice.
The fifth respondent, not
surprisingly in my view, given the history of the matter and the
size of the estate, called for bonds
of security for the due
fulfilment by the nominated executors of their duties. Fourth
respondent furnished the requested security,
but Mr Cronje was
unable to do so. This led the fifth respondent to appoint the fourth
respondent, alone, and this, notwithstanding
his or her earlier
indication that he or she was willing to appoint both as joint
executors.
The appointment of the fourth
respondent did not sit well with the applicants and this resulted in
this application to review
and set aside the fifth respondents
decision and for this court to direct that the firth respondent
appoint Mr Cronje, together
with the fourth respondent, as joint
executors of the deceased's estate.
In argument
Mr
Fourie
,
who appeared for the applicants, conceded that an appropriate
relief, if the court were to set aside the fifth respondent's
decision, will be to refer the question of the appointment of
executor or executors back to the fifth respondent.
The applicants are relying on
the provisions of the Promotion of Administrative Justice Act, Act 3
of 2000, which is commonly
referred to as PAJA, and, in particular,
to section 6(2)(a)(iii), (e)(i)(ii)(iii)(iv)(v) and (vi), (f)(ii)
and (h) for the call
for a review and the setting aside of the fifth
respondent's decision. The first to the fourth respondents naturally
disputes
the grounds upon which the applicants rely for the review
of the fifth respondent's decision. The fifth respondent, as already
indicated, is not opposing this application. This, in short, is the
brief background to this application. I need to point out
at the
onset that there is no dispute as to the application of PAJA in this
matter.
The following submissions were
made in the heads of argument and in argument before court on behalf
of the applicants. For the
sake of brevity, I have paraphrased these
submissions, the same as I did with the submissions and arguments by
the respondents:
1. It was submitted that fifth
respondent's decision to appoint fourth respondent as the sole
executor, is reviewable in terms
of section 6(2)(e)(iii) of PAJA, in
that at the time of making the decision to appoint the fourth
respondent, the first respondent
had already been removed as
executrix of the deceased's estate after she had failed to properly
administer the estate with the
help of fourth respondent.
2. That the fifth respondent
knew that fourth respondent had assisted the first respondent in her
failed attempted to administer
the estate.
3. That the fifth respondent
had received the nomination forms from applicants who were
nominating Cronje as executor.
4. That the fifth respondent
already indicated to applicants that he/she intends appointing both
Cronje and fourth respondent
as joint executors.
5. That the fourth respondent,
on his own version, attended at the offices of the fifth respondent
and insisted on being appointed.
6. That on Friday, 3 December
2010, Mr Cronje addressed an e-mail to the firth respondent wherein
he stated that the bond of security
will be available for submission
to the fifth respondent on Monday 6 December 2010 and warned fifth
respondent not to appoint
fourth respondent as the sole executor.
7. That consequently fifth
respondent clearly did not take into account the aforesaid relevant
consideration when making the decision
to appoint fourth respondent.
It was argued that if he did so, he or she will not have appointed
fourth respondent as the sole
executor.
8. As regards reliance on
section 6(2)(e)(iv) of PAJA, applicants argued that the fourth
respondent's decision was reviewable
due to the fact that the
decision was made because of the unauthorised or unwarranted
dictates of first respondent, in that,
on fourth respondent's own
version, he attended at fifth respondent's offices several times and
insisted that fifth respondent
must appoint "the"
executor, considering the long period the estate was without an
executor.
9. That despite above-mentioned
relevant considerations, fifth respondent appointed fourth
respondent on the very next business
day, being Monday 6 December
2010.
10. Furthermore it was
submitted that fifth respondent's decision was also reviewable in
terms of section 6(2)(e)(iii) of PAJA,
in that fifth respondent
appointed fourth respondent for an ulterior purposes. It was pointed
out that section 18 of the Administration
of Estate Act provides for
the appointment of a person who may be deemed fit and proper to be
an executor.
11. That in the light of the
aforegoing factors and circumstances, fifth respondent's appointment
of fourth respondent was not
because he was deemed a fit and proper
person to be appointed sole executor, but because fourth respondent
insisted that an executor
be appointed.
12. That
fifth respondent's decision was also reviewable, in terms of section
6(2)(e)(v) of PAJA, in that the decision was made
in bad faith. In
this regard, and in this context, bad faith was said to mean that an
administrator may be
mala
fide,
even
though no blameworthiness was present. This kind of
mala
fide
action
will then relate to a serious dereliction of duty committed in good
faith. Reference was made to
Law
of South Africa
,
Volume 1, page 115, paragraph 133.
13. That for these reasons,
fifth respondent's decision was taken in bad faith and accordingly
stands to be reviewed. Again for
the same reasons as above, it was
submitted that fifth respondent's decision was to be reviewed in
terms of section 6(2)(a)(3).
I need to
point out that Mr
Fourie
submitted
that the factors and circumstances on which they were relying were
so overlapping as to satisfy all the grounds upon
which a review of
the fifth respondent's decision was sought.
14. And that the fifth
respondent's decision to appoint fourth respondent was not
rationally connected to the information before
him or her, at the
time of making that decision.
15. And ultimately that in
terms of section 6(2)(h) of PAJA the exercise of fifth respondent's
power to appoint fourth respondent
was so unreasonable in the
circumstances, that no reasonable person could have exercised this
power in that fashion.
These were
the submissions made in the heads of argument and supported by Mr
Fourie
's
oral argument before court. On the other hand Mr
Sidaki
argued that
the fifth respondent acted perfectly legitimate in appointing the
fourth respondent. He also challenged the decision
of the applicants
to approach the court before exhausting internal remedies as
required by section 7(2)(a) of PAJA, which stipulates
that no court
or tribunal shall review an administrative action in terms of PAJA
unless internal remedies provided for in any
other law has been
exhausted.
At that time
when Mr
Sidaki
made the
argument, he did not have any authority to support this submission.
He requested, and was granted, leave to submit further
heads of
argument. This was done this morning, together with a response of
further submissions from Mr
Fourie
.
I have found the further submissions also very helpful in lightening
the court's burden.
In these
further submissions, Mr
Sidaki
argued that
the applicants did not exhaust the internal remedy which would have
been to approach the fifth respondent to revisit
its initial
decision to appoint fourth respondent, same as it did with the first
respondent. In short, he was of the view that
fifth respondent was
not
functus
officio
in
the sense of the magistrate who was
functus
officio
in
the case referred to of
Nkosi
v Khanvile NO and Another
2003
(2) SALR on page 63.
Though this
argument has merits, in the light of the view that I have adopted in
respect of the application as a whole, I do not
deem it necessary to
decide the point. I need to point out further that, for the
submissions that fifth respondent was pressurised
by fourth
respondent to make an appointment, Mr
Fourie
relied on
paragraphs 8.19, 8.20, as well as paragraph 20 of fourth
respondent's affidavit, where fourth respondent set out the
actions
which he took and which led to his appointment. The argument was
that fourth respondent, by his own admission, knew that
fifth
respondent was not going to make any appointment until Mr Cronje had
filed his bond of security, but nevertheless insisted
on the
appointment of "the" executor and by doing so, exacted the
kind of pressure or influence as will have amounted
to an improper
exercise of his/her powers by the fifth respondent; thus violating
the provision of section 6(2)(e).
I respectfully cannot agree
with this argument. It is inconceivable that fifth respondent, even
though she/he intended to appoint
joint executors, will have waited
indefinitely for Mr Cronje to file his bond of security. When Mr
Cronje failed to file his
bond of security, on 6 December 2010, as
he undertook in his e-mail and in the conversations that went on
between his secretary
and Ms Alexander of the fifth respondent's
office, the fifth respondent, by virtue of his powers in terms of
section 18 and 19
of the Administration of Estate Act, was perfectly
within his/her rights to appoint the fourth respondent the sole
executor of
the deceased's estate.
I must point
out that I find nothing untoward in the conduct of the fourth
respondent in calling at the fifth respondent's office
to inquire as
to the progress made in the deceased's estate. This is normal
practice when one is seized with an administration
of a deceased's
estate and it is so in the circumstances of this case. There was
nothing untoward for the fourth respondent to
insist on the
appointment of an executor. Furthermore, I do not agree with Mr
Fourie
that he
insisted on his appointment. The paragraph 20 that was relied upon,
though not drafted in elegant language, clearly makes
reference to
the appointment of the executor and cannot, in the circumstances, be
interpreted to mean that it was the appointment
of fourth respondent
as the sole executor of the deceased's estate which was sought.
On the whole there is no
evidence on the papers that the fourth respondent insisted on his
sole appointment, nor any suggestion
that the fifth respondent was
only moved to do so when the fourth respondent insisted on an
appointment of an executor. All the
circumstances, on the other
hand, points to the fifth respondent having taken his or her own
decision, based on the facts available
to him or her to appoint the
fourth respondent. The inference sought to be drawn that he was
influenced by the fourth respondent
is not the only reasonable
inference to be drawn and I find it inconsistent with the facts at
hand.
I am further of the view that
the argument that first respondent failed to administer the estate
while assisted by the fourth
respondent, without any merits. The
record shows that fourth respondent's only involvement, prior to his
appointment as the executor
of the deceased's estate, was to request
from the fifth respondent an extension of time for first respondent
to comply with her
responsibilities. There is no prove of any
involvement in the administration of the deceased's estate as to
justify his exclusion
from appointment, or as suggested, his
appointment as sole executor.
In the absence of any evidence
pointing to the fifth respondent being influenced by the fourth
respondent to appoint him the sole
executor, I cannot find on the
papers any proof to substantiate any of the other grounds relied
upon by the applicants. In my
view the fifth respondent duly
exercised the powers invested in him/her in terms of the
Administration of Estates Act and appointed
the fourth respondent
the sole executor of the deceased's estates, based on the
circumstances of the case. Mr Cronje was not
appointed simply
because he did not meet the fifth respondent's requirements that he
furnish a bond of security.
Before I make an order, I need
to just point out the following which I find relevant remarks to
make in the circumstances: An
executor administers a deceased's
estate under the supervision of the Master of the High Court, in
this case the fifth respondent.
Any concern which an interested
party may have in the administration of a deceased's estate, can be
brought to the attention
of the Master who, in an appropriate case,
may take the necessary steps. We already have proof here that when
first respondent
was seen to be failing in the administration of the
deceased's estate, was summarily removed as an executrix.
There is also the additional
safeguard in that a security for the due fulfilment of his
responsibilities was called for in the
form of the bond of security
which the fourth respondent was able to furnish, leading to his
appointment as the sole executor.
In the circumstances, it is my
view that the application stands to fail and to be dismissed.
The order I make, therefore, is
the following:
1. That the application is
dismissed.
2. That the applicants are
ordered to pay the costs on a party and party scale.
DOLAMO, AJ