Nieman v Master of High Court and Others (UM 228/2023) [2024] ZANWHC 161 (10 July 2024)


 

Reportable: YES / NO

Circulate to Judges: YES / NO

Circulate to Magistrates: YES / NO

Circulate to Regional Magistrates: YES / NO

 

IN THE NORTH WEST HIGH COURT, MAFIKENG

Editorial note: Certain information has been redacted from this judgment in compliance with the law.

CASE NO: UM 228/2023

 

In the matter between:

ANNA MARTHA NIEMAN Applicant

AND

THE MASTER OF THE HIGH COURT First Respondent

GERHARD JACOBUS OLIVIER Second Respondent

ANNAMART NIEMAN Third Respondent

NELLIE OOSTHUIZEN Fourth Respondent

JOHANNES JACOBUS NIEMAN Fifth Respondent

FLORA PETREA BREYTENBACH Sixth Respondent

JOHANNA MAGDALENA SMITH Seventh Respondent

 

DATE OF HEARING : 02 MAY 2024

DATE OF JUDGMENT : 10 JULY 2024

 

FOR THE APPLICANT : ADV. J PETER SC

 

FOR THE SECOND RESPONDENT : ADV. J H F PISTOR SC

with ADV. M HITGE

 

FOR THE FOURTH & FIFTH RESPONDENTS: ADV. K W LUDERITZ SC

with ADV. K FITZROY

 

JUDGMENT

Delivered: This judgment was handed down electronically by circulation to the parties’ legal representatives via email. The date and time for hand-down is deemed to be 10h00 on 10 July 2024.

 

 

ORDER

Consequently, the following order is made:

1. The application is dismissed.

2. The applicant, Mrs. Neiman, is ordered to pay the costs of the application on a party-and-party basis, in terms of Scale C of Rule 67A of the Rules Board for Courts of Law Act 107 of 1985 as amended, Gazetted on 08 March 2024, which came into operation on 12 April 2024.

3. Such costs shall include the costs consequent upon the employment of two (2) counsel [legal practitioners – advocates] Senior (SC) and Junior.

 

 

JUDGMENT

HENDRICKS JP

 

Introduction

[1] The applicant, Mrs. Anna Martha Nieman, was married to Mr. Willem Adriaan Nieman, in community of property. On 05 February 2008 they made a joint last will and testament. Mr. Nieman’s health deteriorated to the extent that a curator ad litem, Adv Goedhart SC, was appointed by this Court to act on his behalf on 04 August 2022 by Petersen J. On 24 October 2022 Mahlangu AJ (as she then was) appointed the applicant with certain powers. On 06 November 2022 Mr. Nieman passed on. The report of the curator ad litem was made available on 22 November 2022, after the demise of Mr. Nieman. The report proposed that a curator bonis be appointed for Mr. Nieman and identified the applicant to be so appointed. The last will and testament of the applicant and the late Mr. Nieman made provision for who should inherit and nominated their attorney, Mr. Gerhard Jacobus Olivier, to be appointed as executor of their testate.

 

[2] There is a litigious history to this matter. The applicant launched an urgent application in two (2) parts, Part A and Part B on 24 November 2022. In Part A, the relief prayed for in the Notice of Motion is that pending the determination of Part B,

“The applicant Anna Martha Nieman, be and is hereby authorised and empowered to:

2.1.1 let for any lawful purpose, any immovable property registered in the name of the late Willem Adriaan Nieman, or registered in the name of the applicant and the late Willem Adriaan Nieman;

2.1.2 sell any farming implements, equipment and livestock fading within the estate that are no longer needed for the purpose of conducting farming operations by the estate;

2.1.3 exercise any power associated with the members' interests registered in the name of the late Willem Adriaan Nieman, in relation to any of the members' interests held by Willem Adriaan Nieman as a member in each of the following close corporations:

2.1.3.1 WA Nieman Boerdery BK;

2.1.3.2 Ademshoop Boerdery BK;

2.1.3.3 Geluksdeel Boerdery BK; and

2.1.3.4 Niemansland BK;

2.2 the first respondent is ordered and directed to issue letters of executorship in favour of the applicant in respect of the deceased estate of the late Willem Adriaan Nieman.

3. Save in the event of opposition, the costs of Part A of this application are to be costs in the cause of Part B of this application.

The relief prayed for in Part B are the following:

 

PART B

1 The first respondent be and is hereby interdicted and restrained from appointing the second respondent as executor of the estate of the late WILLEM ADRIAAN NIEMAN ID […]; Masters Reference 7170/2022.

2 Save in the event of opposition, the costs of this application are to be borne by the estate of the Late WILLEM ADRIAAN NIEMAN ID […]; Masters Reference 7170/2022.”

 

[3] On 28 November 2022, Reid J, delivered judgment granting the relief in Part A as prayed, with a costs order against the second respondent, Mr. Olivier, the nominated executor. On 29 November 2022, the second respondent lodged an appeal against the whole of the judgment and order granted on 28 November 2022, suspending the operation of the judgment and order with immediate effect, pending the finalization of the application for leave to appeal (and incidental thereto any further possible appeal). However, on 30 November 2022, the Master of the High Court, issued a letter of executorship in favour of the applicant, Mrs. Nieman, apparently as “interim executor” with the powers prayed for in Part A, in compliance with the court order of 28 November 2022. Needless to say, the Administration of Estates Act 56 of 1955 (the Act) does not make provision for the appointment of an interim executor but an interim curator in terms of the provisions of section 12 of the Act. The application for leave to appeal was heard on 03 March 2023. This is after the issuing of a letter of interim executorship on 30 November 2022. The judgment dismissing the application for leave to appeal was handed down on 06 April 2023.

 

[4] Part B was up for determination on 02 May 2024. To reiterate, the relief sought is that the first respondent, the Master of the High Court, be interdicted and restrained from appointing the second respondent, Mr. Olivier, the nominated executor, as executor of the estate of the late Mr. Nieman, plus costs if opposed. This application is opposed, on the basis that the relief sought is:

(a) untenable and bad in law as it is in conflict with the Administration of Estates Act 56 of 1955 (the Act). This Court is requested to prescribe to the Master how he should exercise his/her discretion regarding the appointment of a nominated executor;

and

(b) no case is made out for the relief sought in Part B, namely a final interdict in that the applicant has failed to satisfy the requirements for a final interdict.

It must be pointed out that this is not an appeal against Part A of the judgments of Reid J. I refrain from making any pronouncement with regard to these judgments, in relation to both the main judgment dealing with Part A, as well as the judgment on the application for leave to appeal.

 

Affidavits filed

[5] A founding affidavit dealing with both Part A and Part B was filed by the applicant, Mrs. Nieman. A further affidavit was filed by the applicant entitled “Replying Affidavit”, in which new facts were brought to the fore. The second respondent oppose the filing of this replying affidavit based on new facts; alternatively, prays that it be struck out or that in the event that this Court allow the replying affidavit to stand, then in the alternative, “Second Respondent’s Provisional Application To File a Further Supplementary Affidavit” be granted, and the said affidavit be allowed as evidence in answer to the new facts contained in the “Replying Affidavit” of the applicant. This Court has a discretion to allow the filing of further sets of affidavits, apart from the three (3) sets to wit founding, answering and replying affidavits, and will allow same in the interest of justice in order to ventilate all the issues.

 

[6] Insofar as the fourth and fifth respondents are concerned, they are represented by Mr. Luderitz. Initially they indicated that they will abide any decision by this Court. However, they decided to enter the fray. Mr. Peter submitted that there is a difference between interest and cited vis-a-vis right to be heard. He submitted that although they have an interests and are cited, they do not have a right to be heard at this late stage, seeing that they indicated that they will abide the decision of this Court. This Court has a discretion, like in allowing the replying affidavit containing ‘new facts’ and answer thereto in a supplementary affidavit by second respondent, also to allow not only the affidavits of fourth and fifth respondents condoning the lateness thereof, but also their heads of argument. Heads of argument is at the end of it all for the benefit of the court. This Court cannot deny Mr. Luderitz on behalf of the fourth and fifth respondents an audience, in the interest of justice.

 

The Act

[7] Section 13 of the Act is peremptory in stating that “no person shall liquidate or distribute the estate of any deceased person, except under letters of executorship granted or signed and sealed under this Act, or under an endorsement made under section fifteen, or in pursuance of a direction by a Master.” Letters of executorship may only be issued by a Master.

(emphasis added)

 

Section 15 of the Act deals with the endorsement of appointment of assumed executors on letters of executorship, in peremptory terms and state that the Master shall endorse the appointment of such person as assumed executor on the letters of executorship granted to the executor testamentary:

(a) on the written application of any person who has been duly nominated as an assumed executor and who is not incapacitated from being an executor of the estate of the deceased and has complied with the provisions of the Act;

and

(b) upon production of the deed of assumption duly signed by the person so nominated. It is quite apparent from the wording of this section that it is the Master who must make an endorsement. This is after letters of executorship has been granted in terms of section 14 (1) of the Act.

 

[8] Section 14 (1) is equally in peremptory terms and it states that the Master shall grant letters of executorship, on the written application of any person who:

(a) has been nominated as executor by any deceased person by a will which has been registered and accepted in the office of the Master;

and

(b) is not incapacitated from being an executor of the estate of the deceased and has complied with the provisions of the Act.

 

Section 14 (2) is not applicable to the present case. Section 14 is subject to sections 16 and 22 of the Act. Section 16 deals with endorsements to or in favour of corporations and does not find application in this matter, and therefore need no consideration by this Court.

 

[9] Section 22 of the Act states that the Master may refuse to grant, endorse or sign and seal letters of executorship in certain cases, if any objection has been lodged that the nomination of any person as executor testamentary or assumed executor is or should be declared invalid, until the validity of the nomination has been determined by the Court; or the objection has been withdrawn, or the person objecting has had a period of fourteen (14) days after such refusal to apply to Court for an order restraining the grant of letters of executorship. The Master may refuse to grant letters of executorship or make endorsement or sign and seal the letters of executorship in terms of section 22 (2) (b), if such a person could, if he/she is appointed as executor, be removed from his/her office under section 54 (1) (a) (ii), (iii) or (iv); or section 54 (1) (b) (iii).

 

[10] Section 54 of the Act deals with the removal from office of an executor. Section 54 (1) (a) deals with the removal from office by the Court in subparagraphs (ii), (iii) or(iv), which does not find application in this matter and need no further consideration by this Court. Section 54 (1) (b) deals with removal from office of executor by the Master. Section 54 (1) (b) (iii) referred to in section 22, deals with a situation where an executor may be removed from office by the Master if he/she is convicted of theft, fraud, forgery, uttering a forged instrument or perjury. This equally does not find application in the case at hand and need not detain this Court any further.

 

[11] The contention on behalf of the applicant is with reference to section 54 (1) (a) (v) of the Act, which provides that an executor may be removed from his [her] office by the Court “if for any other reason the Court is satisfied that it is undesirable that he [she] should act as executor of the estate concerned.” It was contended by the applicant that although the second respondent is only nominated and not yet appointed as the executor:

at the very least it is undesirable that he should act as executor of the estate. That being so, if the second respondent were to be appointed by the Master, he would immediately be liable for removal by the Court. Accordingly, if the applicant is able to satisfy the court that it is undesirable that the second respondent should act as executor of the estate, it follows that he ought not to be appointed in the first place and the relief in prayer one of Part B should be granted. That is, the Master should be interdicted and restrained from appointing the second respondent has executor…”

One should carefully look at the wording of section 54, which deals with the removal from office of an executor by either the court or by the Master, under specific circumstances. Logically, removal follow upon appointment.

 

The Case law

[12] This Court was referred to Port Elizabeth Assurance Agency & Trust Co (Ltd) v Estate Richardson 1965 (2) SA 936 (c) at page 939 C-D and H, where Van Winsen J stated:

I conclude, therefore, that the source of the Court's power in regard to the appointment, control and removal of an administrator derives not from the terms of the will but from the common law.”

and on page 940 A-B.

I have no doubt that in the exercise of its power to appoint or remove an administrator the Court will pay close attention to the wishes of the testator as expressed in or implied from the terms of the will. The Court cannot, however, necessarily be bound by these wishes even to the detriment of the beneficiaries to whose interest it must equally clearly have regard. Thus the Court has under the common law the right to remove an executor, guardian or administrator on the ground, for instance, of mal-administration by him of the estate assets (see Voet, 26.10. 1 - 8; de Groot, 1.10.4; van der Keesel, Selectae Theses, 162; Bronkhorst v Erasmus, 1907 T.S. 486; The Master v Edgecombe's Executors, supra at pp. 266 - 267), and in so doing it would act in direct conflict with the express wishes of the testator as to the person of his administrator.”

 

[13] In Hoofar Investment (Pty) Ltd v Loonat and Another 1991 (2) SA 222 (N) in the headnote it is stated:

There is no authority for the proposition that a Court possesses a general power derived from the common law to prevent the appointment as executor in a deceased estate of the person nominated in the testator's will.”

Levinsohn J referred to the case of Port Elizabeth Assurance Agency & Trust Co (Ltd) v Estate Richardson supra and in particular to the passage quoted above, and remarked on page 228 A-B.

Superficially the quoted passages lend some support to counsel's submission that the Court enjoys a general power to control the appointment of executors and administrators. The question is, did Van Winsen J intend to go to the lengths of saying that a Court indeed enjoys a power to override the appointment made by a testator in his will? I think not.

and F-J

In my view the Port Elizabeth Assurance Agency case is not authority for the proposition that a Court possesses a general power derived from the common law to prevent the appointment of the person nominated in the will. Apart from this case counsel was unable to refer me to any direct authority in point nor am I aware of any. As a matter of policy I would be most hesitant to conclude that a Court had this power to prevent the appointment of the person in whom the testator reposed his trust and thereby making inroads into the principle of freedom of testation.

The Legislature in the Act has seen fit to regulate the specific circumstances under which a proposed executor testamentary can be prevented or disqualified from taking up his appointment. It appears to have been fully conscious of the futility of issuing letters of executorship to certain categories of persons who, upon taking up office, may fall to be removed.

As I have indicated, s 22(2)(b) entitles the Master to refuse to grant letters of executorship to any person if such person could on appointment be removed in terms of certain of the provisions of s 54(1).

It is of some significance that the general ground of removal in terms of s 54(1)(v) already referred to was apparently not included in the class of cases referred to in s 22(2)(b).

I conclude, therefore, that as a matter of law the Court does not possess the power to make the order sought in this case.

 

[14] In Bankorp Trust Bpk v Pienaar en ‘n Ander 1993 (4) SA 98 (A) in the headnote, the following is stated:

Held, as to prayer (1), [discharging the appellant from its nomination as executor in the estate of the deceased] that s 99 of the Administration of Estates Act 66 of 1965 did indeed confer on the Court the power to suspend or remove in particular circumstances an appointed executor (from office) but that this power did not, however, cover the case where the executor had merely been nominated or indicated in a will (as in the present case).”

Held, further, as to prayer (2), [appointing the first respondent as executrix in the estate] that it was clear that the Court a quo did not have the power, either at common law or in terms of the Administration of Estates Act, to appoint the first respondent as executrix.”

on page 105 G-H it is stated:

Weliswaar verleen art 99 die bevoegdheid aan 'n hof om 'n aangestelde eksekuteur in bepaalde omstandighede te skors ('suspend') of te onthef ('remove'). Hierdie bevoegheid dek egter nie die geval waar 'n eksekuteur bloot in 'n testament benoem of aangewys is, soos in die onderhawige geval nie.”

on page 107 D-E it is stated:

Kragtens Boedelwet 66 van 1965 reik die Meester eksekuteursbriewe aan eksekuteurs uit (art 14(1)). Die Meester stel eksekuteurs datief aan (art 18). Geen bevoegdheid word aan die Hof verleen om 'n eksekuteur aan te stel nie. 'n Eksekuteur kan wel in bepaalde gevalle deur die Hof van sy amp onthef word (art 54(1)(a)). Insgelyks kan die Meester dit doen uit hoofde van art 54(1)(b).”

on page 109 B-D it is stated:

Daar was geen gronde vir die ontheffing van Bankorp Trust as eksekuteur indien dit as sulks deur die Meester aangestel sou word nie. Die uitlating van Roux R in sy uitspraak dat indien Bankorp Trust reeds as eksekuteur aangestel was, sou hy hom ingevolge art 54(1)(a)(v) van die Boedelwet 66 van 1965 van sy amp onthef het, is ongegrond en onvanpas.

Wat Roux R beoog het, was om te keer dat die Meester vir Bankorp Trust as eksekuteur testamentêr aanstel. Daardeur sou hy inmeng deur die Meester te verhinder om sy statutêre verpligting ingevolge art 14(1) van die Boedelwet 66 van 1965 uit te oefen. Kragtens welke regsbevoegdheid? Die Hof a quo het immers nie die 'exclusive supervision' oor die bereddering van bestorwe boedels deur eksekuteurs nie. Dit is nie 'n oppereksekuteur nie.”

(emphasis added)

 

[15] In Thomas and Another v Clover NO and Others 2002 (3) SA 85 (N), the following is stated on page 89 I – page 90.

In the Hoofar Investments case the Court dealt with an application for an order declaring that it was undesirable for a person nominated as an executor in a will to be appointed as the deceased testator's executor and, following upon such declaration, an order restraining the Master from issuing the letters of executorship to the nominated person.

The Court first quoted or paraphrased the various provisions of the Administration of Estates Act 66 of 1965 that deal with the circumstances under which executors nominated by wills may be prevented from having letters of executorship issued to them by the Master. It then summarised the effect of these (at 226C - H) as follows: 'To summarise, it seems to me that in terms of the [Administration of Estates Act 66 of 1965] the following grounds exist to assail the issue of letters to a proposed executor testamentary:

1. That the person is by law prohibited from liquidating or distributing an estate of any deceased person (see in this regard Meyerowitz The Law and Practice of Administration of Estates and Estate Duty 6th ed chap 8.3 and 8.4).

2. That the person's nomination is invalid. Here questions of whether the will itself has been validly executed could arise, as well as allegations that the person appointed may have written the will himself. The emergence of a later will, such as in this case, could serve to disqualify the person nominated in the first will.

3. That the person is incapacitated from being an executor of the estate. Into this class of case would fall minors, persons who are mentally disordered and under curatorship, as well as prodigals under curatorship (see Meyerowitz (op cit chap 8.6)).

4. The person nominated has not complied with the provisions of the Act, such as to satisfy the Master that he is able to furnish the required security.

5. That the person to whom letters of executorship are to be granted resides outside the Republic of South Africa and has not chosen domicilium citandi et executandi in the Republic.

6. That the person could be removed from his office under subpara (ii), (iii), or (iv) of para (a) of ss (1) of s 54 or subpara (iii) of para (b) of s 54(1).

7. That the person has failed to satisfy the Master that letters of executorship have not already been issued by any other Master in the Republic of South Africa.'

The Court went on to deal with s 54(1)(v) of the Administration of Estates Act, which reads:

'54(1) An executor may at any time be removed from his office -

. . .

(v) if for any other reason the court is satisfied that it is undesirable that he should act as executor of the estate concerned.'

Plainly, this section deals with the situation after an executor has been appointed, and does not itself provide a statutory ground for preventing the Master from appointing an executor nominated in a deceased person's will. As is pointed out in the Hoofar Investments case, the Master may refuse to issue letters of executorship to a person who can be removed from his office under subparas (ii), (iii) or (iv) of para (a) of ss (1) of s 54 or under subpara (iii) of para (b) of s 54(1), but not on the grounds that the executor can be removed under s 54(1)(a)(v). Thus, the Court held that a proposed executor's susceptibility to removal under s 54(1)(a)(v) was not something which the Act meant to be a statutory bar to his or her appointment.

and page 91 A-C:

Having come to these conclusions, the Court then went on to hold that it had no common-law jurisdiction to interfere with the appointment of executors nominated by wills and that, accordingly, it was precluded from granting the order prayed.

I am in respectful agreement with the Court's analysis in the Hoofar Investments case of the grounds upon which the issue of letters of executorship to an executor may be assailed, subject to two qualifications.

and page 92 I:

As far as the latter contention is concerned, the decision in the Hoofar Investments case is decisive. I do not have the power to restrain the Master on this ground.

and page 93 E-F:

Thus, the situation which faces me in this case is exactly the same, in principle, as the situation which faced the Court in the Hoofar Investments case.

I am bound by the decision in the Hoofar Investments case. According to that, the second ground for preventing third respondent's appointment has no basis in law.

 

[16] In Master of the High Court Northern Gauteng High Court, Pretoria v Motala NO and Others 2012 (3) SA 325 (SCA), the following is stated with regard to the appointment of a judicial manager:

[6] That section reserved to the Master the power to appoint a judicial manager. The effect of such a provision, as Potgieter J observed (albeit in respect of s 151 of the Insolvency Act 24 of 1936) in Goldfields Trading Company (Pty) Ltd v Schutte 1956 (3) SA 1 (O) at 2D, is that:

The appointment of a provisional trustee is purely statutory and I cannot see how the Court has any inherent power where such power is vested in the Master by statute.”

That was echoed by Myburgh J in respect of the Act here under consideration in Lipschitz v Wattrus NO 1980 (1) SA 662 (T) at 671G, who stated:

'As to any such provisional appointments [of trustees, liquidators and judicial managers] the Master clearly has an unfettered and sole administrative discretion and it is within his enacted powers to give directions to his staff about such appointments.”

[7] Any doubt as may have existed as to the power of the high court to appoint judicial managers - and to my mind there ought to have been none - has now been laid to rest by the judgment of Bertelsmann J in Ex parte The Master of the High Court South Africa (North Gauteng) 2011 (5) SA 311 (GNP). In that matter the Master saw fit to approach the high court for declaratory relief. What motivated the application appears from the reported judgment (paras 2 – 4), which reads:

'The application has been necessitated by a practice that has developed over the past years that attorneys who apply for the sequestration of individuals or the liquidation of companies (or, for that matter, close corporations), or for judicial management of a company in terms of the Companies Act 61 of 1973 (see now Act 71 of 2008), include a prayer in the notice of motion and draft order for the appointment of a specific individual as trustee or provisional trustee, as liquidator or as provisional liquidator or judicial manager or provisional judicial manager.

Advocates who are instructed to appear in these applications, usually in the unopposed motion court, move for orders in these terms, and, as is apparent from a number of orders granted by judges of this court, do so successfully.”

Ponnan JA (Malan JA and Wallis JA concurring)

The Master contends that such orders are in conflict with the clear provisions of the relevant statutory provisions, and that officers of the court should not apply for, and this court should not grant, orders that interfere with the exercise of the applicant's functions.”

Bertelsmann J issued, inter alia, the following order:

'1. It is declared that the Master of the High Court of South Africa is the only person authorised to appoint:

1.1.1 trustees and provisional trustees of sequestrated and provisionally sequestrated estates;

1.1.2 liquidators and provisional liquidators of companies and close corporations in liquidation or provisional liquidation; and

1.1.3 judicial managers and provisional judicial managers of companies in judicial management and provisional management; and

1.2 no judge of the High Court of South Africa has authority or jurisdiction to effect any appointment of any person to any of the positions referred to in para 1 . . .”

[8] It thus was plainly impermissible for Kruger AJ to appoint the provisional judicial managers of Realeka. What is more, nothing in the order of 5 August 2010 required the Master to do or not do something. In particular it did not direct the Master to appoint Mr Van Vuuren - as the judge had already purported to do that - or, for that matter, to issue him with a certificate of appointment. Nor, on the authorities that I have already cited, could it.”

 

[17] In Mlunguza and Another v Master of the High Court and Another (21755/2018) [2020] ZAWCHC 6 (11 February 2020), the following is stated:

[30] In any event, we are not here dealing with an executor dative but with an executor testamentary. Section 14(1) sets out the limited circumstances in which the Master may refuse to issue letters of executorship to an executor testamentary. The only requirement is that such person not be ‘incapacitated from being an executor of the estate of the deceased’ and that he or she should have complied with the provisions of the Act. This should be read with s 13(2), which states that no letters of executorship shall be granted to any person ‘who is by any law prohibited from liquidating or distributing the estate of any deceased person’. Legislative prohibitions are to be found in the regulations (as amended) originally promulgated in terms of the Attorneys, Notaries and Conveyancers Admission Act 23 of 1934.

[31] In terms of s 22(2)(b) the Master may refuse to issue letters of executorship to an executor testamentary if such person, if he or she were appointed, could be removed from office on various of the grounds specified in s 54(1). Section 54(1)(a)(v), which empowers a court to remove an executor if satisfied that it is undesirable for such person to act as such, is not one of the specified grounds. In other words, the Master is not empowered to withhold letters of executorship to an executor testamentary whose appointment the Master regards as undesirable.

[32] In Thomas & another v Clover NO & others 2002 (3) SA 85 (N) Southwood AJ held that the effect of these statutory provisions was that the Master could not withhold letters of executorship from somebody who was alleged not to be a fit and proper person to hold office (and see also the decision in Hoofar Investments (Pty) Ltd v Loonat & another 1991 (2) SA 222 (N)). In other words, the fact that a nominated executor testamentary is thought not to be a fit and proper person to hold office is not in itself a circumstance which renders such person incapacitated within the meaning of s 14(1).

[33] If the lawmaker had intended to give the Master the power to make a value judgment as to whether an executor testamentary is a ‘fit and proper’ person, this would surely have been expressly stated. This view of the matter is fortified by the division of removal powers between the court and the Master in s 54(1). The grounds on which a court may remove an executor are set out in para (a) of the subsection. The grounds listed in sub-paras (ii), (iii) and (iv) are concerned with misconduct of various kinds, while sub-para (v) empowers the court to remove an executor ‘if for any other reason the Court is satisfied that it is undesirable that he should act as executor of the estate concerned’. This would obviously include a complaint that the executor is not a fit and proper person.

[34] By contrast, and leaving aside administrative non-compliance (in respect of which matters the Master has oversight), the only ground of misconduct for which the Master may remove an executor under para (b) is where the executor has been convicted of certain offences (sub-para (iii)). And in such cases, it is a determination of wrongdoing by a court which triggers the Master’s power; the Master himself or herself does not have the power to investigate and determine whether the executor has committed one of the specified offences.

[35] The second reason why the first respondent’s reliance on s 54(1)(b)(iv) must fail is this. Even if the Master has the power under that provision to remove an executor because such person is not in the Master’s opinion ‘fit and proper’, it would not suffice that there were complaints which, if true, would render the executor not fit and proper. The Master would need to determine whether the allegations of misconduct are true.”

 

[18] In a judgment of this division penned by Petersen J in the matter between The Current Employees of the Leopard Park Golf Club and Others v Signal Development (SOC) Ltd and Others case number UM19/2022 (15 February 2022), the following is stated:

[30] The relief sought by the applicants in respect of the winding up of the first respondent is respectfully tantamount to imploring this Court to bypass the statutory process which follow upon plasing a company in provisional liquidation. The role of the Master in the statutory process cannot be usurped by this Court.”

 

Discussion

[19] The question which arises is whether the court has a common law power to prevent the appointment of a nominated executor testamentary. The submission was initially, as I understood Mr. Peter, that there is at common law not a general power to control the appointment of an executor testamentary but a specific power to prevent the appointment. This was not based on statutory authority but on common sense and taking into consideration the scheme and spirit of the Act. It is not that the court has a general power to interdict but it can under the common law prevent the appointment of an executor testamentary under specific circumstances, if the person is undesirable to be appointed as such. The argument later revolved around section 54 (1) (a) (v). This, so it was further contended, is no limitation to freedom of testation. It is in the court’s discretion to determine if it will be a futile exercise to appoint an executor testamentary only to be then removed thereafter. Mr. Luderitz submitted that what the applicant seeks is to deny the Master the statutory right and duty to decide on the appointment or not of the testamentary nominated executor. He contended that Mr. Peter’s argument goes along the line that if a nominated executor testamentary is in any event going to be removed from office after appointment as such, it serves no purpose that (s)he be appointed only to be thereafter removed. The word used is incapacitated and not whether such person is ‘fit and proper’ to be appointed as executor. Mr. Pistor argued that in addition to the prayer by the applicant that this Court usurp the functions and powers of the Master as a functionary, which it cannot do (as stated in the aforementioned cases: Leopard Park/ Motala/ Hoofar/ Thomas/ Mlunguza, supra), the applicant also did not satisfy the requirements for a final interdict as prayed for in Part B paragraph 1 of the Notice of Motion.

 

[20] It is vitally important to note that the second respondent is nominated to be the executor of the joint last will and testament of both the applicant and the late Mr. Nieman. It was inter alia the wish of the late Mr. Nieman that the second respondent be appointed as executor. After the demise of Mr. Nieman, his estate “The Estate of the late Willem Adriaan Nieman, I.D. […], Master’s reference 7170/2022,” was registered with the Master. No objection or process to that effect was lodged with the Master, to object that the second respondent be appointed executor testamentary, as nominated by the late Mr. Nieman.

 

[21] The relief requested is an interdict (final) and not a substitution. It is prayed that the Master be “interdicted and restrained from appointing the second respondent as executor of the estate of the late Willem Adriaan Nieman I.D. […]; Master’s Reference 7170/2022.” There is a prescribed procedure to be followed for the nominated executor to be appointed as such and issued with letter(s) of executorship(s). There are instances after the lodging of objections, if considered valid objections, where the Master may refuse to issue letters of executorships. The court may be approached to remove an appointed executor testamentary under certain circumstances in terms of section 54 (1) (a) (ii)/(iii)/(iv) or (v) “if for any reason the court is satisfied that it is undesirable that (s)he should act as executor of the estate concerned.”

 

[22] The prescribed process needs to take its course. The estate is registered. The applicant (and any other interested party) may lodge objections, if any, with the Office of the Master as to why the second respondent as nominated executor by the late Mr. Nieman should not be appointed. The Master will then make a decision whether or not to appoint the second respondent as executor of the estate of the late Mr. Nieman as nominated. After the Master has made his/her decision to appoint the second respondent, any aggrieved party may approach the court for the review of the Master’s decision. It is only then that the court will decide whether or not the appointment should be reviewed and set aside. The court does not have the power under the common law, either general or specific, to interdict and restrain the Master to exercise his/her discretion.

 

[23] If the legislature wanted the court to appoint an executor testamentary it would have been specifically stated in the Act. This, the legislature did not do. In my view, purposefully so. The reason being that it would definitely curtail the Master’s discretion to appoint an executor testamentary who was nominated to be so appointed in the last will of the deceased. There are specific grounds upon which the Master may refuse to appoint the nominated executor testamentary, and the Master can only do so on the specified grounds. The Master does not have a general power to refuse the appointment of an executor testamentary ‘for any other reason’ than those expressly enunciated in the Act. The court can also not interfere with the discretion of the Master, administratively so ordained by the legislature. The Master is cloth with the necessary administrative power and authority to appoint an executor testamentary (an executor nominated in a valid will) in terms of the Act. The court cannot usurp the powers of the Master and appoint an executor. The power to grant or refuse letters of executorship rest upon the Master as functionary.

 

[24] This Court must apply the law as enacted by parliament and do so with due regard to the will and intention of the legislature in enacting the Act in the wording it used. This is not a case of interpreting what the legislature wanted to enact. The Act is clear and unambiguous. This is also not a case to develop the common law or interpreting the Act of parliament where it is uncertain. This piece of legislation is clear and concise on this point. No extension of the power to interdict and restrained a nominated executor from appointment are given to the court.

 

[25] The rasionale is that the legislature gave specific powers to the Master to remove an executor upon certain grounds. What the legislature did not do is to give the Master the power and authority to determine whether a nominated executor should not be appointed when it concerns the undesirability to appoint such a person as executor or not. That discretion is reserved for the court. Emphasis need to be placed on the word remove which means that after the appointment as an executor testamentary, (s)he may be removed by the court ‘for any other reason’.

 

[26] The argument goes, that if the court has the power to remove ‘for any other reason’ an appointed executor, why can’t the court interdict the appointment of a nominated curator who is for one or other reason undesirable to be so appointed? Why must the nominated executor first be appointed and then removed, whereas the court can, based on acceptable evidence of the undesirably, interdict the appointment in the first place? This contention is assailed on the basis that if the legislature wanted to give the court such power, it would have specifically said so. This it did not do. Therefore, this contention is bad in law. The court does not have the statutory power to interdict the appointment of a nominated executor testamentary on that basis.

 

[27] A procedure is enacted for the Master to appoint a nominated executor testamentary. It was not left open for the courts to do so. It is the removal of an appointed executor ‘for any other reason’, as the court may deem it undesirable that such a person continue to be an executor. Not before the appointment or to interdict the appointment. This is no noval issue and it was already decided in some cases.

 

[28] Although the cases of Hoofar, Thomas and Mlunguza are cases of other divisions of a single judge and only have persuasive value and that this Court is not bound by it, this Court can follow and apply it unless it is clearly wrong on the law. The case of Motala is a Supreme Court of Appeal (SCA) decision. Although dealing with the appointment of a liquidator and not an executor testamentary, it is based on the same principle, namely that the power and administrative authority to appoint a executor testamentary like a liquidator is legislatively ordained for the Master and not the court. This principle is in my respectful view correct. If the legislature wanted to give the power to the court to interdict the appointment of a executor testamentary, it would have expressly stated it in the Act.

 

[29] Insofar as costs are concerned, it should follow the result and be awarded in favour of the successful litigant, the second respondent, who successfully opposed the application to interdict the Master to appoint him as executor testamentary in terms of the estate of the late Mr. Nieman. Insofar as the costs of the fourth and fifth respondents are concerned, at first they decided to abide and not to oppose. Thereafter, they came out in support of the second respondent’s appointment as executor, by implication opposing the relief sought by the applicant to interdict the first respondent from appointing the second respondent as executor testamentary. They too, are entitled to be awarded costs in their favour. That this case is indeed complex and involved behoves no argument. The employment of two counsel (Senior [SC] and Junior) are warranted and the parties employed both Senior (SC) and Junior counsel. The scale of the costs should be on a party-and-party basis in terms of Scale C, of the Rules of Court of Law Act 107 of 1985 as amended, Gazetted on 8 March 2024, which came into operation on 12 April 2024.

 

Order

[30] Consequently, the following order is made:

1. The application is dismissed.

2. The applicant, Mrs. Neiman, is ordered to pay the costs of the application on a party-and-party basis, in terms of Scale C of Rule 67A of the Rules Board for Courts of Law Act 107 of 1985 as amended, Gazetted on 08 March 2024, which came into operation on 12 April 2024.

3. Such costs shall include the costs consequent upon the employment of two (2) counsel [legal practitioners – advocates] Senior (SC) and Junior.

 

 

 

 

____________________

R D HENDRICKS

JUDGE PRESIDENT OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

 

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Cited documents 3

Legislation 3
1. Insolvency Act, 1936 3588 citations
2. Companies Act, 2008 1853 citations
3. Rules Board for Courts of Law Act, 1985 189 citations

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