Mbatha and Others v Maluka and Others (32979/2015) [2018] ZAGPJHC 658 (13 December 2018)

Mbatha and Others v Maluka and Others (32979/2015) [2018] ZAGPJHC 658 (13 December 2018)

The court found that the applicants failed to provide proof that the assets allegedly omitted from the liquidation and distribution account belonged to the deceased or that the first respondent acted dishonestly or with conflict of interest. The first respondent acted within the prescripts of the Administration of Estate Act, including proposing a redistribution agreement and demanding proof of claims. The applicants did not exhaust internal remedies available under the Act, such as lodging objections with the Master. There was no evidence of gross maladministration or conduct warranting removal of the executrix. The application for removal was therefore dismissed.

Citation
[2018] ZAGPJHC 658
Parties
Applicant: Lindi Hezekeiel Mbatha; Applicant: Sipho Mbatha; Applicant: Siphiwe Mbatha; Applicant: Julia Malele; Applicant: Mashakeni Maluka; Applicant: Neo Maluka; Applicant: Tlotlo Maluka; Applicant: Nelly Xaba; Applicant: Innocentia Maluka; Applicant: Bongiwe Makihin; Respondent: Magaret Maluka; Respondent: Beloved Maluka; Respondent: Irene Maluka; Respondent: Alfred Maluka; Respondent: Musa Maluka; Respondent: Sheila Maluka; Respondent: Ntwanano Maluka; Respondent: Hlulane Maluka; Respondent: Master of the High Court
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
13 December 2018
Case Number
32979/2015
Procedural Posture
Review Application / Opposed Motion for Removal of Executrix
Outcome
Application dismissed with costs.
Judges
Twala M L
Legal Topics
Removal of Executor, Administration of Deceased Estates, Conflict of Interest, Liquidation and Distribution Account
Civil Procedure Family and Children Removal of Executor Administration of Deceased Estates Conflict of Interest Liquidation and Distribution Account

Case Brief

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Parties

Lindi Hezekeiel Mbatha

Applicant

Sipho Mbatha

Applicant

Siphiwe Mbatha

Applicant

Julia Malele

Applicant

Mashakeni Maluka

Applicant

Neo Maluka

Applicant

Tlotlo Maluka

Applicant

Nelly Xaba

Applicant

Innocentia Maluka

Applicant

Bongiwe Makihin

Applicant

Magaret Maluka

Respondent

Beloved Maluka

Respondent

Irene Maluka

Respondent

Alfred Maluka

Respondent

Musa Maluka

Respondent

Sheila Maluka

Respondent

Ntwanano Maluka

Respondent

Hlulane Maluka

Respondent

Master of the High Court

Respondent

Procedural Posture

Review Application / Opposed Motion for Removal of Executrix

Legal Issues

  1. 1 Whether the first respondent, as executrix, acted improperly or with conflict of interest in administering the deceased estate.
  2. 2 Whether the first respondent should be removed as executrix under section 54 of the Administration of Estate Act.
  3. 3 Whether applicants exhausted internal remedies under the Act before approaching the court.

Ratio Decidendi

The court found that the applicants failed to provide proof that the assets allegedly omitted from the liquidation and distribution account belonged to the deceased or that the first respondent acted dishonestly or with conflict of interest. The first respondent acted within the prescripts of the Administration of Estate Act, including proposing a redistribution agreement and demanding proof of claims. The applicants did not exhaust internal remedies available under the Act, such as lodging objections with the Master. There was no evidence of gross maladministration or conduct warranting removal of the executrix. The application for removal was therefore dismissed.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed.
  • The applicants are to pay the costs of the respondents, jointly and severally, the one paying the other to be absolved.