Da Silva and Another v Da Silva N.O and Others (2498/07 & 4247/07) [2007] ZAWCHC 82 (19 November 2007)

IN

THE HIGH COURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

REPORTABLE

CASE NO: 2498/07 &

CASE NO: 4247/07

In the matter between

VALERIE MABEL DA SILVA First Applicant

VALENTIA

DA SILVA Second Applicant

and

MATTHEWS JOSEPH DA SILVA N.O. First Respondent

DONALD CLIFFORD WICHMAN &

WILNA

JOY WICHMAN Second Respondent

MASTER OF THE HIGH COURT Third Respondent

JUDGMENT DELIVERED ON 19 NOVEMBER 2007

ZONDI,

J

INTRODUCTION

[1] In the Notice of Motion issued on 5 March 2007 under case number 2498/07 the applicants seek the following relief:

“4. An Order

Declaring that the value of the Estate Late Elizabeth da Silva was worth in excess of R125 000-00 on the date of her death namely 26 July 2004;

Declaring that the Master of the High Court, Cape Town was not entitled to make an appointment in terms of section 18(3) of the Administration of Estates Act 66 of 1965;

Reviewing and setting aside:

the appointment of the First Respondent dated 3 August 205 as the representative of the Master to take control of the assets of the Estate Late Elizabeth da Silva in terms of section 18(3) of the Administration of Estates Act 66 of 1965 (annexure “NoM.1”);

the certificate and/or permission granted by the Master of the High Court, Cape Town dated 15 February 2005 in terms of section 42(2) of the Administration of Estates Act 66 of 1965 granting permission for the property to be transferred from Estate Late Elizabeth da Silva to the Second Respondent is set aside;

Setting aside the agreement of sale concluded between the first respondent and the second respondent in respect of the property concluded on or about 22 February 2007(annexure “NoM.2”).

Directing the First Respondent (and such other Respondent(s) as may oppose this order jointly and severally with the First Respondent, the one paying the other to be absolved) to pay the costs of this application.

5. Granting such further and/or alternative relief as this Honourable Court may deem fit”.

[2] At the hearing hereof Mr Berthold, who appeared for the applicants, indicated that the applicants were no longer seeking relief as set out in para 4.2 of the Notice of Motion.

Factual Background

[3] During her life-time the Late Elizabeth da Silva (“the testatrix”) was the registered owner of the immovable propery namely erf 5200 Hout Bay, Cape Town (“the property”). This was the only asset of any value in her estate. The testatrix died on 26 July 2004, leaving a Last Will and Testament in which she appointed her son, the Late Tim William John da Silva as her executor. The Late Tim William John da Silva predeceased the testatrix, and there was therefore no executor testamentary.

[4] The Late Tim William John da Silva (“John da Silva”) was married to the first applicant and there are four children born of the marriage between them. The second applicant is one of them.

[5] The first respondent, being the only surviving brother of the Late John da Silva and son of the testatrix, reported the estate to the Master of the High Court, the third respondent and later secured an appointment in terms of the Letters of Authority issued on 3 August 2005. These Letters of Authority were issued by the third respondent in terms of section 18(3) of the Administration of Estates Act, 66 of 1965 (“the Act”) on the basis that the value of the estate was not more than R125 000-00. A municipal valuation obtained by the first respondent from the City of Cape Town and filed with third respondent indicated that the value of the property was R79 000-00 as at 29 March 2005. The Letters of Authority authorised the first respondent “to take control of the assets of the Estate of the Late Elizabeth Da Silva… to pay debts, and to transfer the residue of the estate to the heir/heirs entitled thereto in law”

[6] Clause 6 of the testatrix’s Last Will and Testament provided as follows:

“ I further direct that in the event that Tim William John Da Silva should no longer wish to occupy the said property and elect to sell it or upon his death, whichever occurs first, that the proceeds of any sale of the said property should be divided equally amongst the three beneficiaries of this Will or failing any of them, their off-spring through representation per stirpes.”

[7] On about 17 April 2006 the first respondent, purporting to be acting as a representative of the estate, sold the property to the second respondents for the sum of R120 000-00. On 4 July 2006 the first respondent sought permission from the third respondent to have the property transferred into the names of the second respondents. The permission was sought in terms of section 42(2) of the Administration of Estates Act.