Botha NO v Smith & Assoicates (27836/09) [2009] ZAGPPHC 115 (11 June 2009)

Botha NO v Smith & Assoicates (27836/09) [2009] ZAGPPHC 115 (11 June 2009)

The court found that the first and second respondents, by their own admissions, failed to deny that the third respondent acted within the scope of his employment as an employee of the first respondent. This constituted an admission of vicarious liability. The respondents' lack of supervision over the third respondent and failure to account for monies received from the estate further supported their liability. The payments made to the respondents were not justified, as no liquidation and distribution account had been approved by the Master, and no written approval for remuneration was obtained. The respondents' opposition to the application was unreasonable, warranting a punitive costs...

Citation
[2009] ZAGPPHC 115
Parties
Applicant: Frederik Rudolph Botha N.O.; Respondent: Smith & Associates; Respondent: A P P Smith; Respondent: N J Wolmarans
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
11 June 2009
Case Number
27836/09
Procedural Posture
Urgent Application / First Instance
Outcome
Application granted. Relief awarded to applicant as per draft order.
Judges
Legodi
Legal Topics
Vicarious Liability, Executor Remuneration, Attorneys Act Compliance, Administration of Estates, Trust Account Liability
Civil Procedure Land and Property Vicarious Liability Executor Remuneration Attorneys Act Compliance Administration of Estates Trust Account Liability

Case Brief

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Parties

Frederik Rudolph Botha N.O.

Applicant

Smith & Associates

Respondent

A P P Smith

Respondent

N J Wolmarans

Respondent

Procedural Posture

Urgent Application / First Instance

Legal Issues

  1. 1 Whether the first and second respondents are vicariously liable for the actions of the third respondent in relation to the administration of the deceased estate.
  2. 2 Whether the third respondent was entitled to any remuneration or executor's fees prior to the approval of the liquidation and distribution account by the Master.
  3. 3 Whether the respondents properly supervised the third respondent as required by the Attorneys Act.

Ratio Decidendi

The court found that the first and second respondents, by their own admissions, failed to deny that the third respondent acted within the scope of his employment as an employee of the first respondent. This constituted an admission of vicarious liability. The respondents' lack of supervision over the third respondent and failure to account for monies received from the estate further supported their liability. The payments made to the respondents were not justified, as no liquidation and distribution account had been approved by the Master, and no written approval for remuneration was obtained. The respondents' opposition to the application was unreasonable, warranting a punitive costs...

Court Disposition

Application granted. Relief awarded to applicant as per draft order.

Orders

  • The name of the first respondent is amended to Van Zyl Smith en Assosiate Ingelyf.
  • The first and second respondents are ordered to immediately deliver all documentation relating to the estate of the late David Piercy, estate reference number 3644/09, to the applicant.