Daffue NO v Master of the High Court, Free State High Court, Bloemfontein and Others (2479/2019) [2020] ZAFSHC 189 (5 November 2020)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Reportable:

NO

Of Interest to other Judges: NO

Circulate to Magistrates: NO

Case number: 2479/2019

In the matter between:

FRANCOIS JACOBUE DAFFUE NO

Applicant

And

THE MASTER OF THE HIGH COURT, FREE STATE

HIGH COURT,BLOEMFONTEIN

1st Respondent

LIZZIE DIMAKATSO MAJARA (néé Thai)

2nd Respondent

MOTLATSI SIMON THAI

3rd Respondent

SEGAMETSI SUZAN THAI

4th Respondent

MABULE TRADING CC

5TH Respondent

[Registration number: 2005/124690/23]

KEAOTSHEPA THAI

6TH Respondent

TUMELO THAI

7th Respondent

Z[….] D[….]

8th Respondent

[Assisted by a natural guardian]

T[….] D[….]

9th Respondent

I[….] D[….]

10th Respondent

[Assisted by a natural guardian, if a minor]

ANY OTHER HEIR OR BENEFICIARY IN THE ESTATE

11thRespondent

OF THE LATE JEREMIAH THAI,

IDENTITY NUMBER: [….],

ESTATE NUMBER: 2925/99

HEARD ON: 03 AUGUST 2020

CORAM:

MBHELE ADJP et VAN ZYL J

JUDGMENT BY: MBHELE, ADJP

DELIVERED ON: 05 NOVEMBER 2020

[1] The applicant approached this court on motion seeking an order in the following terms:

1.1 That condonation be granted for the applicant’s failure to timeously bring this application;

1.2 That the decision of the first respondent in terms of which the first respondent refused to grant a certificate in terms of section 42 ( 2 ) of the Administration of Estates Act 66 of 1965 ( ‘ the Act”) relating to the transfer of the property known as erf [….], Bloemfontein (the property) from the estate of the late Jeremiah Thai, estate number 2925/ 99 to the fifth respondent be reviewed and set aside;

1.3 That the first respondent be ordered and directed to issue a certificate in terms of section 42 (2) of the Act stating that no objection by the first respondent exists to such transfer of the property into the name of the fifth respondent and to endorse the power of attorney necessary for the registration of such transfer;

1.4 That any respondent who opposes the application be ordered to pay the costs of the application;

1.5 Further and/ or alternative relief.

[2] Only the second respondent is opposing this application. The first respondent abides by the decision of this court.

[3] The second respondent was issued with Letters of Authority authorizing her to take control of the assets of the estate of the late Jeremiah Thai (the deceased). She is the deceased’s daughter and one of the heirs in terms of the will.

[4] On 1 March 2011 the fourth respondent wrote a letter to the first respondent complaining about the second respondent’s failure to timeously finalize the winding up of the deceased’s estate and requested that she be removed as the executrix of the estate and be replaced with the firm Schoeman Maree.

[5] The applicant was subsequently appointed executor in the estate of the deceased on 02 June 2012. He was, at the time of his appointment, a partner at Schoeman Maree, a firm of Attorneys.

[6] The deceased died testate on 1 November 1999.

[7] In his will he bequeathed certain properties to his children and directed that a property situated at [….] (the property) be sold either by public auction or private treaty and the proceeds thereof be shared equally among all his children.

[8] It is only the aforementioned property that forms the subject matter of this dispute.

[9] On 27 March 2013 Honey Attorneys, on behalf of the second respondent, wrote a letter to the applicant informing him that the second respondent was interested in buying the property from the deceased estate. After engagements between the applicant and representative from Honey Attorneys an offer was presented on behalf of the second respondent to purchase the property at R120 000. The applicant wrote a letter informing Honey Attorneys that the other heirs of the estate have agreed to sell the property to the second respondent at a price of R160 000.

[10] No written offer was received from the second respondent. Honey Attorneys informed the applicant that the second respondent was unhappy with his appointment as the executor.

[11] The second respondent was at all times in occupation of the property until she was evicted through a court order on 09 June 2016. No occupational rent was paid into the estate.

[12] On 24 March 2017 the applicant entered into a written sale agreement with the fifth respondent for the purchase price of R260 000. 00. The fifth respondent demolished the building on the property after conclusion of the agreement. Paragraph 19 of the agreement entered into between the applicant and fifth respondent reads as follows:

Other Undertakings / Special Conditions

“The purchaser commit to paying R60.000 deposit upon signing of the offer to purchase and the R200.000-00 to be paid in six months into Maree & Associate Absa Trust Account, Acc No: 4091056292 B/C 632005.

The seller has agreed to the purchaser taking occupation of the property before registration at no costs of occupational rent for six months.

The purchaser warrant to make sure that the property will be secured (new locks and keys) at his own costs.

The executor Francois Daffue declared and gave the purchaser a word of assurance and cooperation to any request that the purchaser might need towards the said property e.g. drawing up of plans prior property being transferred.”

[13] It is the sale of the property and the demolition of the structure on the property that sparked a host of complaints from the second respondent against the applicant. The second respondent registered a complaint in a letter received by the Master on 25 July 2017 after the property was demolished and a fencing wall built around it. The following are the contents of the said letter:

“Re: Dissatisfaction of current situation with my father’s estate.

I Lizzy Dimakatso Majara would like to bring a few things to the attention of the Master’s office. It has come to our attention that unlawful events have been happening and how the executor is handling my father’s estate is unsatisfactory, untruthful and unprofessional.

We have been coming to Master’s office seeking for assistance and proper explanation on why these things have been happening and we didn’t receive any explanation of the processes as the beneficiaries.

My father’s property was destroyed and people claim to have about the place (pictures are attached). We asked them how did they buy the place because we don’t know anything about the property being sold already. According to my knowledge the property is still under legal process. It has come to my attention that the property was not surveyed or inspected before it was destroyed because these people built the wall fence on top of the location’s main hall sewerage system and pipes.

I went to Municipality offices to check if the property has changes ownership but it was still under my father’s name and there was not even a request of change of ownership by the executor.

I went to the people who bought the property and asked them what was happening and they told us to go to the lawyers and ask them. We went to the Master’s office to ask why were things happening this way and we received no explanation.

After extreme dissatisfaction I then sent emails to the Chief Master’s office and after some time I went to the Chief Masters office in Pretoria to ask for assistance and explanation of why things are happening the way they are now. The office of the Chief Master advised me……”

[14] Attached to the above letter were pictures of the demolished structure within the property. In response to the above complaint the applicant informed the first respondent that he had a meeting with the second respondent on 25 July 2017 where he explained that the estate had no funds to enable him to either advertise the sale of the property or put it up on public auction. It is clear from the above letter that the demolition happened within 4 months from the date of the agreement. There is no indication that the purchase price, which had to be paid in six monthly instalments, had been paid in full at the time of the demolition.

[15] The second respondent approached this court in person. I must indicate that her papers were haphazard and her presentation was without structure and difficult to follow. At the heart of the second respondent’s complaints was that the applicant sold the property below the market value and further that he allowed the fifth respondent to demolish the structure making it impossible for the heirs to obtain valuations that would reflect the fair market value of the property.

[16] On 27 July 2015 OPTI Property Consultants received a specific instruction to indicate unimproved Land value of the property and valued it as such at R214 830. 00. The property returned Municipal value of R180 000 on 19 February 2018 after the dwelling structure was demolished.

[17] The Master rejected the application for endorsement in terms of section 42 (2) of the Administration of Estates Act 66 of 1965 (the Act) on the basis that the premature demolition of the building hindered second respondent from obtaining further valuation to compare to the one obtained by the applicant.

[18] The second respondent rejects the sale of the property to the fifth respondent and she is unhappy and suspicious of the processes followed before the property could be sold. The second respondent is of the view that the property was undervalued and demolished to frustrate the process of obtaining objective and independent valuation thereof. She contended, further, that the process used by the first respondent to appoint the applicant as the executor was unfair, marred with irregularities and lacked transparency. The second respondent submitted that the only way fairness can be achieved is if the fifth respondent is ordered to rebuild the demolished structure for the purpose of valuation.

[19] The second respondent contended, further, that she did not receive the letters of authority but she was elected to control the estate while awaiting the other heirs to come of age. This is contrary to Annexure ‘FA7’ to the founding affidavit. In her view she had to wait for the Master to finalize the administration of the estate while she occupied the property and taking care of other assets in the estate. She has no idea why it took so long to finalize the administration of the estate. In her view, the document she received from the first respondent did not appoint her as the executrix of the estate.

[20] She, further, pointed out to the applicant that there were heirs that were left out of the process of administration who have interest in the matter and were not served with these proceedings. Subsequent thereto the applicant moved an application to join sixth to eleventh respondents as parties to these proceedings. They were joined to the proceedings through an order granted by my sister, Opperman, J on 09 January 2020. The sixth to tenth respondents are the surviving children of the deceased’s heirs who were nominated in the will and passed on after the deceased’s death. The service of the order and the notice of Motion for the current proceedings was to be effected on the sixth to eleventh respondents by way of substituted service through one publication in the Sunday Times newspaper. The above order and the amended Notice of Motion in the present application were published in the Sunday Times newspaper on 09 February 2020.

[21] It is the applicant’s case that the second respondent made it impossible for the administration of the estate to be finalized. He submitted that the second respondent hindered every move taken to ensure smooth administration of the estate. He contended that the second respondent’s refusal to pay occupational rent into the estate and her refusal to vacate the property hindered smooth administration of the estate. It is the applicant’s case that the second respondent had on several occasions prevented appointed estate agents from accessing the property for viewing by possible buyers.

[22] Section 42 (1) and (2) of the Act provides as follows:

“42 Documents to be lodged by executor with registration officer

(1) Except as is otherwise provided in subsection (2), an executor who desires to have any immovable property registered in the name of any heir or other person legally entitled to such property or to have any endorsement made under section 39 or 40 shall, in addition to any other deed or document which he may be by law required to lodge with the registration officer, lodge with the said officer a certificate by a conveyancer that the proposed transfer or endorsement, as the case may be, is in accordance with the liquidation and distribution account.

(2) An executor who desires to effect transfer of any immovable property in pursuance of a sale shall lodge with the registration officer, in addition to any such other deed or document, a certificate by the Master that no objection to such transfer exists.”

[23] Section 47 provides as follows in relation to sale of immovable property by the executor:

“47 Sales by executor

Unless it is contrary to the will of the deceased, an executor shall sell property (other than property of a class ordinarily sold through a stockbroker or a bill of exchange or property sold in the ordinary course of any business or undertaking carried on by the executor) in the manner and subject to the conditions which the heirs who have an interest therein approve in writing: Provided that

(a) in the case where an absentee, a minor or a person under curatorship is heir to the property; or

(b) if the said heirs are unable to agree on the manner and conditions of the sale, the executor shall sell the property in such manner and subject to such conditions as the Master may approve.”

[24] Upon perusal of the papers it is not apparent that the approval of conditions of sale was obtained from the second respondent. Nothing shows that she was consulted when the conditions of sale were formulated. The Act requires the heirs to approve the conditions of sale in writing. It is only when heirs are unable to agree or when there are minor heirs that the Master would be called upon to approve the conditions of sale. It is not in dispute that the second respondent only learned of the sale of property after the building was demolished. The applicant informed the second respondent for the first time about the method of sale at the meeting he held with her on 25 July 2017. This is an indication that her approval was not sought when the sale was concluded. The third and fourth respondents signed affidavits in support of this application. Their support of this application is an indication that they knew about the sale.

In Essack v Buchner NO and Others 1987 (4) SA 53 (N) at page 57 the court remarked as follows when dealing with the approval in terms of section 47:

“Before proceeding to deal further with these facts, it is necessary for me to consider the meaning of s 47. At the outset it should be noted that the section relates to the manner and conditions of sale of estate property by the executor, and not to the decision as to whether or not to sell. That decision falls within the province of the executor alone. He merely requires approval as to the way in which he intends to carry it out. See Meyerowitz The Law and Practice of Administration of Estates 5th ed para 12.27”

[25] It is clear that the decision of the applicant to sell the property cannot be assailed, what is assailable is the manner in which the property was sold.

[26] It is not clear from the papers why applicant requested valuation on unimproved land when there was a shop and a dwelling structure on the property. Brick walls, windows, roofing and doors would have counted for something had they been considered for the purpose of valuation. Section 42 (2) requires the Master to lodge a certificate that no objection to the sale of the property has been lodged. In the current matter there was an objection and the demolition of the dwelling structure exacerbated issues.

[27] It would be unreasonable to order the fifth respondent to rebuild the structure to meet the expectations of the second respondent. Even if a new structure is built it will not be a true reflection of the demolished building. The second respondent contributed immensely to the delay in the winding up of this estate. At some point she was willing to buy the property for R 120 000. 00 from the estate but she takes offence when the property is sold for twice the amount she was offering. She is not an innocent party and cannot be allowed to benefit from the crisis she created. The inordinate delay in finalizing this estate is inexcusable and cannot be laid at the door of the applicant alone.

[28] Her objection to the appointment of the applicant is not supported by genuine desire to see the winding up of the estate finalised. Her argument that she was only appointed to control assets and look after the properties while awaiting the direction from the Master is without basis. She was the representative of the master and she enjoyed the benefits of the estate at the exclusion of other heirs until she was evicted in 2016. She failed to set the wheels of administration in motion until the applicant was appointed in 2011. For 12 years she sat and did nothing to protect the estate and the wishes of the deceased.

[29] Courts are slow to interfere with the discretion of the executor unless it is clear that the executor abused his authority and acted in serious contravention of the law. The duties of the executor are succinctly set out in Meyerowitz on Administration of Estates and their Taxation 2010 edition at 12. 20

“The executor acts upon his own responsibility, but he is not free to deal with the assets of the estate in any manner he pleases. His position is a fiduciary one and therefore he must act not only in good faith but also legally. He must act in terms of the will and in terms of the law, which prescribes his duties and the method of his administration and makes him subject to the supervision of the Master in regards to a number of matters.

But where the executor acts legally the court will be very slow to interfere with the exercise of his discretion unless improper conduct is clearly established; the court is in no sense an ‘upper executor.”

The learned author further states the following:

“An executor is not a mere procurator or agent for the heirs but is legally vested with the administration of the estate. A deceased estate is an aggregate of assets and liabilities and the totality of the rights, obligations and powers of dealing therewith, vests in the executor, so that he alone can deal with them.”

[30] The discretion of the executor cannot be interfered with simply because of the conflict existing between the executor and the heirs to the estate. Where the executor made a mistake or failed to exercise the degree of care required of him the courts have to weigh the extent of loss to the estate before a drastic step can be taken against the executor.

In Sackville-West v Nourse & Another 1925 AD 516 Solomon ACJ held as follows at 527, referring to the judgment of Lord Blackburn in Letterstedt v Broers, ( 9 A.C 371) :

“But in cases of positive misconduct Courts of Equity have no difficulty in interposing to remove trustees who have abused their trust; it is not indeed every mistake or neglect of duty or inaccuracy of conduct of trustees, which will induce Courts of Equity to adopt such a course. But the acts or omissions must be such as endanger the trust property or to show a want of honesty or a want of proper capacity to execute the duties, or a want of reasonable fidelity.”

[31] In the circumstances of the current matter it cannot be said that the executor committed an act of negligence or maladministration that warrant interference with his discretion. There is no clear proof that the applicant’s decisions caused loss to the estate.

[32] The decision by the first respondent not to issue section 42 (2) certificate was motivated by the prevailing conflict between the applicant and the second respondent. The Act does, however, empower the first respondent to intervene where the executor and the heirs are unable to agree on the conditions of sale. This is one of those matters that called for the interference of the first respondent regard being had to the history of the matter and the obstructive conduct of the second respondent.

[33] The applicant ought to have consulted the affected second respondent to seek her approval on the conditions of sale. It is not too late to comply with this requirement. If the second respondent is not able to agree then the Master should intervene and grant the approval.

[34] It is as a result of the conduct of the fifth respondent that the first respondent refused to issue a section 42 (2) certificate. The fifth respondent must bear 50% of the applicant’s costs. I cannot find that the second respondent unreasonably opposed this application.

[35] In the circumstances the following order is made:

ORDER

1. The decision of the first respondent in terms of which the first respondent refused to grant a certificate in terms of section 42 ( 2 ) the Act relating to the transfer of the property known as erf 30371, Extension 4, Mangaung, District Bloemfontein, situated at 3569 Nyokong Street , Bochabela, Bloemfontein ( the property) from the estate of the late Jeremiah Thai, estate number 2925/ 99 to the fifth respondent is hereby reviewed and set aside;

2. The applicant is directed to seek the approval of the second respondent on the conditions of sale;

3. In the event the second respondent is unable to agree on the conditions of sale, the first respondent is ordered to grant such approval;

4. The first respondent is ordered and directed to issue a certificate in terms of section 42 (2) of the Act after the approval in paragraph 3 has been granted.

5. The fifth respondent is ordered to pay 50% of the applicant’s costs.

6. The remaining 50% shall be costs in the administration of the estate.

N.M. MBHELE, ADJP

I concur

C. VAN ZYL, J

On behalf of the appellant: Adv Groenewald

Instructed by:

Maree & Partners

BLOEMFONTEIN

On behalf of the respondent: In person [L.D Majara]

3599 Maleleka Str

Bochabela