Bester NO and another v Master of the High Court and another
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Hofmeyr AJ |
| Judgment Date | 16 August 2023 |
| Citation | 2023 JDR 2971 (WCC) |
| Hearing Date | 24 July 2023 |
| Docket Number | 17428/2021 |
Hofmeyr AJ:
In this application, the executor of a deceased estate seeks an order authorising him to sell the main asset in the estate, an immovable property in Hout Bay, on specified terms and conditions, so that sufficient funds are realised to finalise the estate.
The application is opposed by the second respondent who is the widow of the deceased and his sole heir.
At the commencement of the hearing, the attorney representing the second respondent sought a postponement of the matter. I refused the postponement and indicated that my reasons for doing so would be set out in this judgment. The judgment therefore deals, first, with the issue of the postponement and, second, with the merits of the application.
Postponement
In Psychological Society of South Africa v Qwelane 2017 (8) BCLR 1039 (CC), the Constitutional Court set out the test for postponements as follows:
“Postponements are not merely for the taking. They have to be properly motivated and substantiated. And when considering an application for a postponement a court has to exercise its discretion whether to grant the application. It is a discretion in the true or narrow sense – meaning that, so long as it is judicially exercised, another court cannot substitute its decision simply because it disagrees. The decision to postpone is primarily one for the first instance court to make.
In exercising its discretion, a court will consider whether the application has been timeously made, whether the explanation for the postponement is full and satisfactory, whether there is prejudice to any of the parties and whether the
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application is opposed. All these factors will be weighed to determine whether it is in the interests of justice to grant the postponement. And, importantly, this Court has added to the mix. It has said that what is in the interests of justice is determined not only by what is in the interests of the immediate parties, but also by what is in the broader public interest.” [1]
In this case, the postponement request was made from the Bar. Ms Fleischer, who appeared for the second respondent and who indicated to me that she has had 32 years in practice as an attorney, explained that the reason for the postponement was her error in recording the date of the hearing as being 24 August 2023 rather than 24 July 2023. She tendered to pay the wasted costs of the postponement personally.
Given her experience in the law, Ms Fleischer would no doubt have been aware of the warning the courts have regularly given to practitioners briefed to move a postponement application on the day of a hearing: they come unprepared at their peril.
In the Shilubana matter before the Constitutional Court, [2] counsel had come to the hearing unprepared to present his client’s case in the event that the application for postponement had been refused. Counsel appeared to have assumed that the application for postponement would be granted. But the Constitutional Court warned that it is incumbent upon legal practitioners to appear prepared to argue the matter on the merits if the postponement application is refused. The Court referred to its previous decision in National Police Service Union, in which it held as follows:
“Ordinarily . . . if an application for a postponement is to be made on the day of the hearing of a case, the legal representatives . . . must appear and be ready to
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assist the Court both in regard to the application for the postponement itself and, if the application is refused, the consequences that would follow.”” [3]
Shortly after Ms Fleischer began addressing me on the postponement request, I raised with her the fact that I had no substantive application for a postponement before me. Ms Fleischer said that there was no postponement application because there had not been enough time to prepare one. However, she went on to say that she had discovered that the matter had been set down for 24 July, at 10am the previous morning (Sunday, 23 July 2023) and had spent some time on the Sunday trying to prepare basic heads of argument so that the matter could proceed.
Having read the papers in the matter, it was clear to me that Ms Fleischer was steeped in the case. She had been acting as the second respondent’s attorney in all her dealings with the applicant. She had been responsible for the pertinent correspondence attached to the papers setting out the second respondent’s position. Furthermore, during the course of arguing for the postponement, Ms Fleischer, herself, began addressing the merits of the application.
The applicant opposed the postponement. I was informed that this was the second respondent’s second postponement request. The previous postponement was granted by agreement between the parties because Ms Fleischer had suffered some personal difficulties towards the end of last year and so was not in a position to proceed with the matter in November 2022. That postponement resulted in the matter coming before court again only on 24 July 2023 – eight months later.
Mr Steenkamp, who appeared for the applicant, pointed out that a further delay in the matter would likely result in the case only being heard in 2024. It would also mean that further legal costs would be incurred because counsel would again have to prepare
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for, and attend, a further hearing. In the event that the applicant was successful at the later hearing, those further costs would likely have to be paid out of the estate. As the sole heir of the deceased’s estate, it was the second respondent who would be prejudiced most by further legal costs being incurred in the matter.
In the circumstances, I exercised my discretion to refuse the postponement for six main reasons.
No substantive application for a postponement had been prepared. Such an application could have been prepared in the 24 hours before the hearing on the 24 July 2023. However, instead of preparing a proper application for postponement, Ms Fleischer had turned her attention to preparing basic heads of argument for the matter.
Ms Fleischer was clearly steeped in the matter. This was evident from her role in the matter over many years as well as her foray into the merits of the case during her address on the postponement application.
There had been one previous postponement already to accommodate Ms Fleischer’s difficulties.
The finalisation of the estate has been pending for more than five years.
Further delays in the finalisation of the matter would involve further legal costs being incurred and if the second respondent were to be unsuccessful at that later date, the costs would be paid out of the estate of which she was the sole heir. It was therefore primarily to her detriment for further legal costs to be incurred in the matter.
Finally, I had prepared fully to hear the matter and did not believe that it would be in the interests of justice to burden another court with the obligation to
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hear a matter that was already ripe for hearing and in which the second respondent’s interests could be well represented by her attorney, Ms Fleischer.
I therefore refused the postponement and the matter proceeded on the merits. I have no doubt that the second respondent’s interests were properly represented by Ms Fleischer. In my engagement with her during the hearing, she revealed a close understanding of the facts and the law.
The Merits
Background facts
The applicant was nominated as the executor of the late David Hartley’s estate in his will and was appointed as the executor in April 2018.
After his appointment, the applicant appointed a specialised chartered accountant to assist him in finalising the estate. A liquidation and distribution account was drawn up. The estate’s main assets, at the time of the deceased’s death, were a property at 1[. . .] S[. . .] B[. . .j, Berg-en-Dal, Hout Bay, two motor vehicles, positive bank balances in various accounts, some furniture and a claim against a debtor, Mr Bradley Lynn.
Judgment had been taken against Mr Lynn in October 2015 before the deceased’s death in the amount of £27,260. Mr Lynn had entered into a payment arrangement to discharge his indebtedness by paying R15,000 a month for some time. However, at a point in mid-2020, he started to experience financial difficulties and ceased the instalment payments.
In order to finalise the estate, the applicant needed to have sufficient funds to pay creditors, the administration costs of the estate, the advertising, the Master’s fees and the executor’s fees. At the time that the application was launched in October 2021, this amounted to just over R206,000.
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The challenge facing the applicant, however, was that there were no liquid funds available in the estate. The applicant explained in his founding papers that in his more than 50 years’ experience as an attorney and conveyancer, he had come to learn that the most efficient way to raise cash to finalise an estate in such a situation was for the heir to make a cash contribution. However, the second respondent had not been willing to do so.
The applicant also considered other ways to obtain sufficient funds to finalise the estate. According to the applicant, however, none of these alternatives presented a viable solution.
In so far as the estate’s bank accounts were concerned, the funds in them had been depleted, presumably for the day to day living expenses of the second respondent.
In so far as the judgment against Mr Lynn was concerned, given his unwillingness to pay the outstanding debt, the only option available would be to apply for his sequestration. But that would require legal...
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