Mlunguza and Another v Master of the High Court and Another (21755/2018) [2020] ZAWCHC 6 (11 February 2020)

Mlunguza and Another v Master of the High Court and Another (21755/2018) [2020] ZAWCHC 6 (11 February 2020)

The Master’s removal of the first applicant as executor was invalid both substantively and procedurally. Substantively, the Master relied on complaints and an interdict, not on statutory incapacity as required by s 54(1)(b)(iv) of the Administration of Estates Act. Procedurally, the Master failed to provide the mandatory notice and opportunity to apply to court under s 54(2). However, the first applicant was in fact absolutely incapacitated from serving as executor testamentary because he witnessed the will, which disqualified him under s 4A of the Wills Act. Given this absolute incapacity and damning judicial findings against him, it would not be just and equitable to reinstate him. The...

Citation
[2020] ZAWCHC 6
Parties
Applicant: Siyakudumisa Mlunguza; Applicant: Andile Booi; Respondent: Master of the High Court; Respondent: Nadia Mouton
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
11 February 2020
Case Number
21755/2018
Procedural Posture
Review Application / Final Judgment After Opposed Motion
Outcome
The application succeeded only to the extent that the removal decision was declared invalid, but all consequential relief was refused. The applicant was ordered to pay wasted and punitive costs.
Judges
Rogers
Legal Topics
Administration of Estates Act, Removal of Executor, Procedural Fairness, Wills Act Disqualification, Costs in Constitutional Litigation
Administrative Law Civil Procedure Administration of Estates Act Removal of Executor Procedural Fairness Wills Act Disqualification Costs in Constitutional Litigation

Case Brief

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Parties

Siyakudumisa Mlunguza

Applicant

Andile Booi

Applicant

Master of the High Court

Respondent

Nadia Mouton

Respondent

Procedural Posture

Review Application / Final Judgment After Opposed Motion

Legal Issues

  1. 1 Whether the Master lawfully removed the first applicant as executor of the estate.
  2. 2 Whether the removal decision complied with substantive and procedural requirements under the Administration of Estates Act.
  3. 3 Whether the appointment of the second respondent as executor was valid.

Ratio Decidendi

The Master’s removal of the first applicant as executor was invalid both substantively and procedurally. Substantively, the Master relied on complaints and an interdict, not on statutory incapacity as required by s 54(1)(b)(iv) of the Administration of Estates Act. Procedurally, the Master failed to provide the mandatory notice and opportunity to apply to court under s 54(2). However, the first applicant was in fact absolutely incapacitated from serving as executor testamentary because he witnessed the will, which disqualified him under s 4A of the Wills Act. Given this absolute incapacity and damning judicial findings against him, it would not be just and equitable to reinstate him. The...

Court Disposition

The application succeeded only to the extent that the removal decision was declared invalid, but all consequential relief was refused. The applicant was ordered to pay wasted and punitive costs.

Orders

  • It is declared that the first respondent’s decision of 21 August 2018 to remove the first applicant as executor was inconsistent with the Constitution and invalid.
  • The prayers to set aside the removal decision and reinstate the first applicant as executor, or appoint the second applicant, are refused.