Banjatwa v Maintenance Officer For The District Of Butterworth and Others (779/2014) [2014] ZAECMHC 21; 2014 (6) SA 116 (ECM) (28 May 2014)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE LOCAL DIVISION, MTHATHA

REPORTABLE

CASE NO: 779/2014

In the matter between:

NONKWAKAZI BANJATWA Applicant

and

THE MAINTENANCE OFFICER FOR THE DISTRICT

OF BUTTERWORTH First

Respondent

DEPUTY DIRECTOR OF PUBLIC PROSECUTIONS:

MTHATHA Second

Respondent

MINISTER OF JUSTICE AND CONSTITUTIONAL

DEVELOPMENT Third

Respondent

JUDGMENT

STRETCH J:

[1] The applicant is the mother of four minor children. The natural father who maintained these children and a fifth child of his own during his lifetime, died on 2 April 2013, and one Ruben Roebert was appointed as the executor of the deceased estate on 17 May 2013.

[2] On 24 July 2013 the applicant’s attorney wrote a letter to Roebert requesting him to pay maintenance to her for the deceased’s five children of at least R120 000,00 per month from the estate directly into the attorney’s trust account, as opposed to the guardians’ fund which would normally be the case. This was followed by a reminder on 8 August 2013 threatening legal action if no response was received within ten days.

[3] On 14 November 2013 the applicant deposed to an affidavit in terms of section 6(1)(a) of the Maintenance Act 99 of 1998 complaining that the executor had failed to maintain the children, and applying for a maintenance order in the sum of R250 000,00 per month in respect of the children.

[4] The first respondent is the maintenance officer for the district of Butterworth. During December 2013, he refused to investigate the claim as a precursor to an enquiry and advised the applicant to approach the executor and/or the Master who deals with deceased estates and if necessary to proceed in the High Court.

[5] On 14 January 2014, after the applicant had made telephonic enquiries, she received an email from a Ms Swanepoel, confirming that the claim had been noted and that the executor “required time to review the claim against the estate to determine the reasonableness, legality or otherwise of such claim”, and also furnishing the applicant with a telephone number if she needed any further information.

[6] On 20 March 2014 the applicant sought the intervention of this court by way of semi-urgency for the granting of the following final relief:

(a) reviewing the first respondent’s decision not to investigate the maintenance claim;

(b) directing the first respondent to investigate the claim.

[7] The respondents, being the maintenance officer, the deputy director of public prosecutions and the Minister of Justice and Constitutional Development respectively, have opposed the application.

[8] Counsel who argued the matter before me agreed that the crisp issue for decision is whether section 6 of the Maintenance Act applies to the investigation of claims against deceased estates, which claims are ordinarily regulated by the Administration of Estates Act 66 of 1965 (hereinafter referred to as the “Estates Act”). If the answer is yes, the application must succeed. If not, the application falls to be dismissed.

[9] The relevant portions of section 6 of the Maintenance Act, dealing with maintenance complaints, read as follows:

‘(1) Whenever a complaint to the effect –

(a) That any person legally liable to maintain any other person fails to maintain the latter person;

… has been made and is lodged with the maintenance officer in the prescribed manner, the maintenance officer shall (my emphasis) investigate that complaint in the prescribed manner and as provided in this Act.

(2) After investigating the complaint, the maintenance officer may (my emphasis) institute an enquiry in the maintenance court …’

[10] Section 7 of the Maintenance Act provides some guidance to the maintenance officer as to what he may do in the process of investigating this complaint. He may, for example, gather information concerning any other matter which may be relevant concerning the subject of such complaint (such as whether the claim should not be dealt with in terms of the Estates Act).

[11] In the event of the maintenance officer electing thereafter to hold an enquiry, and once that enquiry has been concluded, the maintenance court may, in terms of section 16 of the Act, make a maintenance order against any person proved to be legally liable to maintain any other person for the payment of maintenance.

[12] The applicant contends that the executor is a person legally liable to maintain the children as defined in the Maintenance Act.

‘executor means any person who is authorized to act under letters of executorship granted or signed and sealed by a Master, or under an endorsement made under section fifteen.’

‘letters of executorship includes any document issued … by which any person named or designated therein is authorized to act as the personal representative of any deceased person or as the executor of the estate of the deceased person.’

[14] In Ex Parte Eckard, 1902 TS 169, Innes CJ at p170 stated:

“The plain duty of an executor, as defined by the Privy Council in the case of Hiddingh v Denyssen, 5 S.C. 308, is to liquidate the estate, reduce it into possession, clear it of its debts and their immediate outgoings, and so leave it free for the enjoyment of the heirs.”

[15] It is trite that both parents owe a duty of support to a child, and that duty, it has been held, continues after the death of the parent (see Carelse v Estate de Vries 23 SC 532). If therefore, a dependent child has no resources of his own, and the deceased parent has left the estate neither to the child nor to the surviving parent, the child will have a claim against the estate for maintenance. This claim is usually quantified by using table B of the Estate Duty Act 45 of 1955 to calculate the present value of the amount required over the anticipated period of the child’s dependency (see Kernick L.A. Administration of Estates & Drafting of Wills, 2006 4ed 22).

[16] To this end, and on 24 July 2013 the applicant’s attorneys (albeit informally and not quite in the format and with the detail required by the Estates Act) lodged a maintenance claim against the estate for R120 000,00 maintenance per month.

[17] Section 26(1A) of the Estates Act states that the executor may, before the account has lain open for inspection in terms of section 35(4), with the consent of the Master, release such amount of money and such property out of the estate as in the executor’s opinion are sufficient to provide for the subsistence of the deceased’s family or household. This section was specifically designed to alleviate family hardship pending the winding up of the estate.

[18] By virtue of section 32 of the Estates Act, if an executor disputes any claim against the estate, he may, by notice in writing:

(a) require the claimant to lodge, in support of the claim, within a period specified in the notice, an affidavit setting forth such details of the claim as the executor may indicate in the notice; and

(b) with the consent of the Master, require the claimant or any other person who may in the opinion of the Master be able to give material information in connection with the claim, to appear before the Master or any magistrate or Master nominated by the Master, at a place and time stated in the notice, to be examined under oath in connection with the claim.

[19] Section 33(1) of the Estates Act says that if any executor rejects any claim against the estate, he shall forthwith notify the claimant in writing by registered post and shall state in the notice his reasons for rejecting the claim.

[20] Section 54 of the Act says that an executor may at any time be removed from office by a judge of the High Court (not a maintenance court), if the court is satisfied for any reason that it is undesirable that he should act as such, and likewise by the Master if, for example, the executor fails to perform satisfactorily any fiduciary duty imposed upon him by or under the Estates Act or if he fails to comply with a lawful request of the Master (see Die Meester v Meyer & Andere 1975 (2) SA 1 TPA; Segal and Another v Segal and Others 1976 (2) SA 531 CPD).

[21] Having dealt with the relevant provisions of both the Estates Act and the Maintenance Act, as well as the history of this matter, I am of the view that in order to answer the question as to whether section 6 applies to executors, it is necessary, with due regard to the spirit, purport and objects of both of these Acts, to determine whether the executor is “a person legally liable” to maintain these children as envisaged in chapter 3 of the Maintenance Act. This chapter deals with complaints about failure to pay maintenance, the investigations that follow thereafter, and the nature and the extent of enquiries which may then follow having regard to the paramount best interests of children and their non-derogable rights to be protected from neglect in terms of sections 28 and 37 of The Constitution of the Republic of South Africa, Act 108 of 1996.

[22] The executor’s letters of executorship purport, ex facie the document to have been granted in terms of sections 13 and 14 of the Estates Act and accordingly as a result of a nomination by the deceased in his will. The letters at best authorise the executor to liquidate and distribute the deceased’s estate, which mandate is strict and regulated in terms of the Estates Act, and which mandate carries with it appropriate penalties and sanctions for non-compliance, including the removal of the executor by the Master or by order of court. In my view, delegated authority to do one thing in a fiduciary capacity (to liquidate and distribute an estate) does not necessarily imply that the authorised person is also legally liable (for purposes of a maintenance enquiry) to personally maintain entitled beneficiaries of the proceeds and the assets of the estate. That legal duty was the deceased’s during his life-time and devolved upon his estate post mortem (see Oshry v Feldman 2010 (6) SA 19 SCA para27).

[23] Indeed, the legal dictionary definition of an executor (Concise Oxford Dictionary 10ed 498) is:

‘A person appointed by a testator to carry out the terms of their will’

[24] The letters of executorship were issued a year ago. It goes without saying, that if the applicant was dissatisfied with the executor’s conduct and the discharge of his mandate she could have, and ought to have invoked the provisions of section 54 of the Estates Act as a matter of urgency. I have no doubt that if she had made her best endeavours in terms of the Act to secure maintenance for the children and the executor did not come to her assistance, this Court as the Upper Guardian of minor children

would have viewed such a dereliction of duties in a very serious light indeed, and would have come to the assistance of these children

much quicker than it would take for a maintenance officer to first institute an investigation, then perhaps hold an enquiry, and then only to find that the entire process really has no teeth in that, by way of example, the maintenance court as a magistrates’ court has no power to forthwith remove the executor and substitute him with someone more efficient.

[25] The maintenance court is a creature of statute. It deals on a daily basis with complaints about failure to pay maintenance mainly against natural parents; alternatively, but to a lesser extent against parties who have, down the line, been determined to be under a legal duty to maintain children.

[26] In my view, to expect maintenance courts to become embroiled in complex and lengthy matters pertaining to the administration of estates and the rights and duties of executors, would not only open gates which would flood these courts with collateral litigation, but would ignore perfectly sound and expedient remedies and rights of recourse specifically provided for in the Estates Act. In particular that Act empowers the Master to take control of a situation such as this, either of his own accord or as a result of a court order. By way of example, where a claim for maintenance is lodged on behalf of minors (as in the case before me),

an important point for consideration is whether payment must be made to the guardian (the applicant in this case), or to the Guardians’

Fund (sections 43 and 86 of the Estates Act). The Master has in fact issued an instruction on this point which is dealt with

regularly in litigation under the Estates Act. I have my doubts however, as to whether the maintenance court is (or is expected to be) au fait with this (see Kernick supra 22).

[27] By the same token, a full blown investigation into the non payment by the executor may expose all sorts of problems and difficulties which may require this Court’s intervention, such as a potential conflict between claims by major survivors and claims by children (born both in and out of wedlock), where the applicant seems not to be the only guardian involved (as in

the case before me).

[28] These are but a few potentially complex problems which have in the past been both identified and provided for in terms of estate law, as opposed to more clearly defined questions pertaining to the need versus the duty and the ability to pay maintenance, which are issues clearly falling in the domain of maintenance investigations and enquiries.

[29] In the premises I am of the view that in these particular circumstances the executor of the estate and “a person legally liable to maintain another person” are not, for purposes of a compulsory investigation in the maintenance court, the same entity.

[30] However, even if I am wrong in arriving at this conclusion, I am in any event of the view that the first respondent did in fact (no doubt because of the sensitivity of this matter) “investigate” the complaint as envisaged in section 6 of the Maintenance Act. To that end he:

(a) received the applicant’s application and complaint and perused this document;

(b) entertained the applicant personally at his offices on 6 December 2013;

(c) investigated the complaint and its justiciability in the Maintenance Court by consulting his senior colleagues regarding what he considered to be an inordinate request;

(d) was duly advised in this regard;

(e) informed the applicant on both 9 and 17 December 2013 of the outcome of his investigations;

(f) advised the applicant to:

· approach the Master of the High Court in Mthatha;

· lay a claim there for maintenance;

· sue the executor of the estate to pay a subsistence allowance to the deceased’s family because he (the maintenance officer) believed (and correctly so) that the deceased’s children fall into the category of “the deceased’s family” (as defined in section 26 of the Estates Act), regardless of whether they were born in our out of wedlock.

[31] While it may be mandatory in terms of the Maintenance Act for a maintenance officer to investigate a complaint of failure to pay maintenance (provided the complaint is about a person legally liable to maintain another), the institution of an enquiry thereafter is discretionary.

[32] I am of the view that the first respondent not only investigated the matter but gave the applicant sound and proper advice, which she ought to have followed.

[33] It seems to me that the applicant’s election to pursue this angle of litigation instead, appears to have had as its primary objective the expression of dissatisfaction regarding the first respondent’s advice, rather than to vociferously secure and protect the paramount best welfare interests of these children.

[34] It is only my concern for these children as their Upper Guardian which has motivated me not to simply dismiss this application without further ado. The executor has not been joined as a party in these proceedings and I am accordingly reluctant to make any adverse findings at this stage with respect to the conduct he has been accused of. It suffices to say, that if the applicant has not already taken the steps readily available to her in terms of the Estates Act to secure maintenance for the children, and/or if the executor has not complied with his duties in this regard, these steps must be taken forthwith. In order to encourage the speedy resolution of this unfortunate state of affairs in the best interests of the welfare of these children, I make the following order:

ORDER:

1. The application is dismissed with costs.

2. The registrar is directed to forthwith serve a copy of this judgment on the executor, Dr Ruben Roebert, Riverside Ministries, River Park Building, 1 Pontoon Road, East London, and on the Master of the Mthatha High Court.

3. The Master is requested to forthwith investigate the applicant’s complaint with respect to maintenance for the children.

4. In the event of appropriate steps to the satisfaction of the Master and/or the applicant not having been taken to provide for the subsistence of the children referred to by the applicant in her application within one calendar month of service of this order on the executor, the applicant, and/or the Master are granted leave to approach this court on these papers, duly amended and supplemented to cite the executor and the Master as parties to these proceedings, for urgent appropriate relief, including but not limited to review, financial relief for the children and/or the urgent removal and substitution of the executor.

_________________

STRETCH J

JUDGE OF THE HIGH COURT

APPEARANCES:

Counsel for the applicant: Mr J.L. Hobbs

Instructed by: Z.Y.M Ndzabela Inc, Butterworth

Counsel for the respondents: Mr M. Bodlani

Instructed by: State Attorney, Mthatha

Heard: 17 April 2014

Delivered: 28 May 2014