Ncelekazi v Master of the High Court Mthatha and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Bands J |
| Judgment Date | 14 September 2023 |
| Citation | 2023 JDR 3510 (ECM) |
| Hearing Date | 14 September 2023 |
| Docket Number | 1481/2020 |
| Court | Eastern Cape Division |
Bands J:
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By letters of executorship granted by the assistant master of the High Court, Mthatha, on 6 June 2019, the applicant was appointed as the executor in the estate of Dora Mhlauli (“the deceased”). This is a review application in which the applicant, acting in the aforesaid capacity, seeks to review and set aside the Master’s decision, acting through the Assistant Master, to appoint the second respondent as co-executor in the deceased’s estate on 16 March 2020.
The application was brought in two parts. Only part B of the application was before me for determination. The relief originally sought in part A of the notice of motion was an order interdicting and restraining the: (i) first respondent from implementing or otherwise giving effect to the decision to appoint the second respondent as a co-executor; and (ii) the second respondent from carrying out any act of administration and/or winding up of the deceased estate, pending the determination of the relief sought in Part B of the notice of motion. Although it appears to be common cause that an order in accordance with Part A of the notice of motion was previously granted, this is neither apparent from the papers before me, nor from the court file. In respect of the relief sought in Part B, whilst the relief initially sought was considerably more comprehensive in nature, the applicant limited its ambit to the issue set out in paragraph 1 of this judgment. [1] The fourth respondent makes common cause with the applicant.
The application was opposed by the second and third respondents, whom I shall refer to as the respondents in this judgment, unless the context dictates
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otherwise. In addition to opposing the application, [2] the respondents launched a counter application [3] in which they sought inter alia that:
“The appointment of the executrix including that of the Applicant in the said deceased estate be reviewed and set aside as invalid, alternatively stayed, pending the appointment of the late Goodman Mhlauli, deceased’s husband herein, and finalisation of its winding up. As a further alternative thereto, that the appointment of the 2nd Respondent as the co-executrix in the deceased estate be declared as lawful”,
the aforesaid being the only relief on their papers, which they elected to pursue when the matter was argued. In addition, the respondents’ counsel, from the bar, sought further alternative relief, to the effect that the first respondent be directed to appoint a neutral executor to the deceased estate. I return to the relief sought in the counter application later.
The first respondent filed a notice to abide the decision of this court.
This application initially came before me on the opposed motion court roll on 2 February 2023, having previously been postponed to such date in terms of an order of court, dated 28 July 2022, which order recorded the attendance of the legal representatives on behalf of the both the applicant and respondents (“the parties”). Notwithstanding the aforesaid, there was no appearance on behalf of the applicant on 2 February 2023. After having stood the matter down to the end of the opposed motion court roll, and having been satisfied that the applicant was aware of the date of
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hearing, [4] I proceeded to hear argument on behalf of the respondents in the absence of the applicant.
Following argument and prior to judgment being delivered, the legal representative on behalf of the applicant approached my offices, through my clerk, advising that, to his knowledge, the matter had been postponed to 3 February 2023, by agreement between the parties, in terms of a draft order of court. Accordingly, he was of the view that the matter had erroneously been enrolled on the motion court roll and heard on 2 February 2023. At the time of the query, the draft order to which reference was made, was not contained in the court file and accordingly a copy thereof was supplied by the applicant’s legal representative depicting the date, 3 February 2023, this being at variance to the order of court contained in the court file.
As I was performing judicial duties in Gqeberha at the time, I was unable to engage personally with the respective legal representatives to enquire into the apparent dichotomy. The matter was accordingly referred to the Acting Deputy Judge President of this court. Following a meeting between the parties’ legal representatives and the Acting Deputy Judge President, the parties agreed to the matter being disposed of without the need to advance further oral argument, subject to their right to supplement the submissions made in argument by way of supplementary heads of argument to be submitted by 10 and 20 March 2023, respectively, with the effective
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date of argument being 20 March 2023. Curiously, only the respondents availed themselves of this opportunity.
Lastly, prior to dealing with the merits of the applications, the status of the papers before court requires comment. Certain of the annexures [5] to the applicant’s founding papers are not contained in the court file. An explanation for this anomaly is contained in an explanatory affidavit, deposed to by the respondents’ attorney of record, and was further addressed in argument by the respondents’ counsel in open court on 2 February 2023. The relevant portion of the affidavit reads as follows:
. . . the matter was before court on the 3rd of February 2022 and was then postponed at the instance of the applicant to the 28th of July 2022 on the opposed court roll.
I attended the court thereafter on numerous occasions trying to get the court ordered dated the 3rd of February 2022 and to ensure that the court file is in order prior to it (sic) matter being enrolled on the set-date (sic) only to be advised that the file is empty.
I tried to call the applicant’s attorneys to request them to email us all the annexes to their notice of motion. I have spoken to the director of the firm and he promised that he will make sure that I get the annexes as requested. I waited until I deposed to this affidavit for those annexes in vain.
I then decided to construct a temporal (sic) file as the original file could not be found or located by the clerks and its whereabouts remain unknown.”
Prior to the delivery of judgment, and despite efforts, through the offices of my clerk, the missing annexures were unable to be located to supplement the court file. Having said that, and given the finding to which I have arrived, the matter can readily
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be disposed of on the papers, as constituted, without reference to the annexures in question.
Background
The deceased died intestate on 13 September 2018 leaving behind her four children, namely, the applicant and the second to fourth respondents. Whilst the third respondent was initially appointed as the executor in the deceased estate, on 20 November 2018, his appointment was successfully challenged by the applicant on the basis that the third respondent had fraudulently misrepresented his nomination to the first respondent. Albeit that the respondents denied any fraudulent conduct on behalf of the third respondent, in their answering affidavit, this aspect was later conceded in the respondents’ heads of argument. [6]
The applicant was thereafter appointed as the sole executor of the deceased estate on 6 June 2019. Due to a divide in the family regarding the administration of the deceased estate, the assistant master convened a meeting at the Masters’ Office on 25 October 2019 in an endeavour to resolve the family’s differences, including the issue of whether the applicant ought to remain as executor of the deceased estate.
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Notwithstanding that the aforesaid issue was resolved in favour of the applicant, the assistant master...
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