Govender NO v Mvongve (21/27360) [2021] ZAGPJHC 725 (7 July 2021)

Govender NO v Mvongve (21/27360) [2021] ZAGPJHC 725 (7 July 2021)

The court found that the applicant had established urgency only in relation to access to the estate property and the protection of estate assets. The applicant demonstrated a prima facie right to access the property as executrix, as the Master had not yet appointed another executor and continued to recognize her in correspondence after the statutory notice period. The respondent's counterclaim failed due to material non-joinder of the Master and Mr Viljoen, both of whom have a direct interest in the relief sought. The Administration of Estates Act does not empower the court to direct the Master whom to appoint as executor. The respondent's actions in locking out the applicant were...

Citation
[2021] ZAGPJHC 725
Parties
Applicant: Govender N.O. Preshnee; Respondent: Mvongve, Daniel
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
7 July 2021
Case Number
21/27360
Procedural Posture
Urgent Application / Interim Relief; Counterclaim
Outcome
The application for interim relief was granted in part; the respondent was interdicted from preventing the applicant's access to the property and from interfering with estate assets. The respondent's counterclaim was dismissed with costs. Costs of the application were reserved for the hearing of Part B.
Judges
Strydom
Legal Topics
Urgent Interdict, Executor Removal, Non Joinder, Administration of Estates Act, Locus Standi, Estate Access
Civil Procedure Land and Property Family and Children Urgent Interdict Executor Removal Non Joinder Administration of Estates Act Locus Standi +1 more

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Parties

Govender N.O. Preshnee

Applicant

Mvongve, Daniel

Respondent

Procedural Posture

Urgent Application / Interim Relief; Counterclaim

Legal Issues

  1. 1 Whether the matter is urgent and warrants interim relief.
  2. 2 Whether the applicant retains locus standi as executrix after notice of intended removal by the Master.
  3. 3 Whether there has been a material non-joinder of necessary parties in the counterclaim.

Ratio Decidendi

The court found that the applicant had established urgency only in relation to access to the estate property and the protection of estate assets. The applicant demonstrated a prima facie right to access the property as executrix, as the Master had not yet appointed another executor and continued to recognize her in correspondence after the statutory notice period. The respondent's counterclaim failed due to material non-joinder of the Master and Mr Viljoen, both of whom have a direct interest in the relief sought. The Administration of Estates Act does not empower the court to direct the Master whom to appoint as executor. The respondent's actions in locking out the applicant were...

Court Disposition

The application for interim relief was granted in part; the respondent was interdicted from preventing the applicant's access to the property and from interfering with estate assets. The respondent's counterclaim was dismissed with costs. Costs of the application were reserved for the hearing of Part B.

Orders

  • This matter is urgent as envisaged in terms of Rule 6(12) of the Uniform Rules of Court.
  • Pending finalisation of Part B or removal of the applicant as executrix by the Master, the respondent is interdicted and restrained from preventing the applicant or her agents' access to the property.