Moloto and Others v Velashiya and Others (2015/17117) [2016] ZAGPJHC 126 (24 May 2016)

Moloto and Others v Velashiya and Others (2015/17117) [2016] ZAGPJHC 126 (24 May 2016)

The court found that the application was not urgent, as similar applications had previously been withdrawn or struck off for lack of urgency, and the facts had not changed. The applicants failed to establish a reasonable apprehension of irreparable harm, as the withdrawals from the estate account were legitimate and accounted for, including legal fees and maintenance. The executrix is only obliged to account to the Master, not the heirs, during administration. The applicants have an alternative remedy under section 36 of the Administration of Deceased Estates Act, which allows them to apply to court for relief after giving proper notice. The apprehension of dissipation was found to be...

Citation
[2016] ZAGPJHC 126
Parties
Applicant: Moloto Thando Michelle; Applicant: Moloto Elliot Seleka; Applicant: Sibanda Palesa Moresi; Applicant: Thandi Maseko; Applicant: Mokoka Masekau Jacobs; Respondent: Velashiya Vanessa; Respondent: First National Bank Ltd; Respondent: Master of the High Court
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
24 May 2016
Case Number
2015/17117
Procedural Posture
Urgent Application / Application for Urgent Interdict Pending Rescission Proceedings
Outcome
Application dismissed with punitive costs against the applicants.
Judges
Twala
Legal Topics
Administration of Deceased Estates, Urgent Interdict, Executor Duties, Customary Marriage Dispute, Liquidation and Distribution Account, Costs Punitive Order
Civil Procedure Family and Children Land and Property Administration of Deceased Estates Urgent Interdict Executor Duties Customary Marriage Dispute Liquidation and Distribution Account +1 more

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Parties

Moloto Thando Michelle

Applicant

Moloto Elliot Seleka

Applicant

Sibanda Palesa Moresi

Applicant

Thandi Maseko

Applicant

Mokoka Masekau Jacobs

Applicant

Velashiya Vanessa

Respondent

First National Bank Ltd

Respondent

Master of the High Court

Respondent

Procedural Posture

Urgent Application / Application for Urgent Interdict Pending Rescission Proceedings

Legal Issues

  1. 1 Whether the application for urgent relief to interdict the executrix from administering or dissipating the deceased estate is justified.
  2. 2 Whether the applicants have established a reasonable apprehension of irreparable harm to warrant an interdict.
  3. 3 Whether the executrix is obliged to account to the heirs during the winding up of the estate.

Ratio Decidendi

The court found that the application was not urgent, as similar applications had previously been withdrawn or struck off for lack of urgency, and the facts had not changed. The applicants failed to establish a reasonable apprehension of irreparable harm, as the withdrawals from the estate account were legitimate and accounted for, including legal fees and maintenance. The executrix is only obliged to account to the Master, not the heirs, during administration. The applicants have an alternative remedy under section 36 of the Administration of Deceased Estates Act, which allows them to apply to court for relief after giving proper notice. The apprehension of dissipation was found to be...

Court Disposition

Application dismissed with punitive costs against the applicants.

Orders

  • The application is dismissed.
  • The applicants are ordered to pay the costs of this application, including costs occasioned by the postponement on 19 April 2016, jointly and severally, on a scale as between attorney and own client.