Mothupi v Master of High Court, Mahikeng and Others (UM99/2020) [2020] ZANWHC 44 (28 July 2020)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO: UM99/2020

In the matter between:

MAJOKO CYNTHIA MOTHUPI

Applicant

AND

MASTER OF THE HIGH COURT, MAHIKENG 1st Respondent

MOROKE HERMAN MOTHUPI

2nd Respondent

SEBONTHA SILAS MOTHUPI

3rd Respondent

MOROKE HERMAN MOTHUPI N.O

4th Respondent

SEBONTHA SILAS MOTHUPI N.O

5th Respondent

REASONS FOR JUDGMENT

DJAJE J

[1] The applicant brought this application on an urgent basis on 23 June 2020 and after hearing argument on behalf of both the applicant and the respondents, the following order was made:

“1. The application is found to be urgent and the forms and service provided for in the rules are dispensed with.

2. The Respondent’s point in limine of misjoinder is dismissed.

3. The 1st Respondent’s appointment of the 3rd Respondent as executor in the Estate of late Mothupi under Estate number 001829/2020 on 05 June 2020 is appealed and reviewed and set aside.

4. The 1st Respondent’s appointment of the 2nd and 3rd Respondent as joint executors in Estate late Mothupi under Estate number 001829/2020 on 09 June 2020 is appealed and reviewed and set aside.

5. The 1st Respondent is directed to appoint the Applicant as the executor in Estate late Mothupi under Estate Number 001829/2020.

6. The 2nd and 3rd Respondent are ordered to pay the costs of the application jointly and severally the one paying the other to be absolved on attorney and client scale which cost should include costs of two counsel.

7. The Respondent’s counter application is dismissed with costs.”

[2] I now furnish the reasons for the above order.

[3] The application was opposed by the fourth and fifth respondents who I shall refer to as the respondents for the sake of convenience. The first respondent filed a report which included a notice to abide the court’s ruling. The second and third respondents are the fourth and fifth respondents cited in their personal capacities.

[4] The Applicant launched this application to appeal and review the decision of the first respondent in appointing the fourth and fifth respondents as executors. The applicant was married to Kebalepile Solomon Mothupi (“the deceased”) in community of property and together they had three children. The deceased also had two children with the applicant’s sister who is also deceased. Both the deceased and the applicant’s sister died on 28 February 2020 in a fire. There are two wills by the deceased, one done in 2006 and the other on 24 February 2020. The will that is the subject of this application is the 2020 will and shall be referred as such in this judgment. In that will, the heirs to the undivided half share of the estate are the five children of the deceased who are all residing with the applicant.

[5] The deceased was the sole member of a security company named Tshireletso Professional Services CC and the sole director of Mamoratwa Wa Afrika Undertakers (Pty) Ltd. These are the two entities owned by the deceased. The applicant as the surviving spouse took over the management of the deceased businesses after his passing.

[6] As indicated earlier the deceased left a will signed on 24 February 2020. In the said will the deceased nominated his two brothers namely, Silas Mothupi and Herman Mothupi to be appointed as executors to his estate. The first respondent on 14 May 2020 issued letters of executorship appointing the fourth and fifth respondents as executors in the deceased estate. On 5 June 2020 the applicant realised that she had been prohibited from accessing business bank accounts of the companies and in particular her

authority to transact on them. The Executors have given such authority on the business bank accounts to the other brother of the

deceased, Ben Mothupi. Mr Ben Mothupi as a result of such authority addressed a letter to the office managers, employees and clients of Mamoratwa Wa Afrika Undertakers (Pty) Ltd purportedly suspending all new business resulting in confusion amongst the employees and clients.

[7] On 7 June 2020 the applicant was advised by her attorneys that Herman Mothupi N.O (fourth respondent) resigned as a co-executor with immediate effect on 4 June 2020. Subsequently, on 5 June 2020 the first respondent issued letters of executorship appointing the fifth respondent (“Silas Mothupi”) as the sole executor in the deceased estate. The applicant through her attorneys addressed a letter to the first respondent on 8 June 2020, indicating that she wished to be nominated as executor as provided for in clause 4.3 of the 2020 will. Clause 4.3 of the said will provides as follows:

“ 4.3 Should any of brother and siblings mentioned supra, be unable or unwilling to assume offer as Executors and administer, or having assumed such office, cease for any reason of whatsoever to act in such combined capacity, I direct that my wife MAJOKO CYNTHIA MOTHUPI be appointed as an Executor with a competent attorney of her choice”

[8] However on 10 June 2020 the applicant received a letter from the attorneys of the Executors stating that the first respondent has issued ‘revised Letters of Executorship’ dated 9 June 2020 upon persuasion by the fourth respondent’s withdrawal of his tender to resign as a co-executor in the estate’.

[9] The respondents raised a point in limine of mis-joinder of the second and third respondents. The respondents argued that second and third respondents have no connection with the estate of the deceased and should not have been cited. In response the applicant’s argument was that the two have been cited as there is a cost order sought against them in their personal capacities. The applicant argued that there is no reason why the estate should be mulcted with costs for the malicious actions of the second and third respondents.

[10] Rule 10 of the Uniform Rules of Court deals with the joinder of parties and causes of action. The Rule provides that:

“10 Joinder of Parties and Causes of Action

(1) Any number of persons, each of whom has a claim, whether jointly, jointly and severally, separately or in the alternative, may join as plaintiffs in one action against the same defendant or defendants against whom any one or more of such persons proposing to join as plaintiffs would, if he brought a separate action, be entitled to bring such action, provided that the right to relief of the persons proposing to join as plaintiffs depends upon the determination of substantially the same question of law or fact which, if separate actions were instituted, would arise on each action, and provided that there may be a joinder conditionally upon the claim of any other plaintiff failing.

(2) A plaintiff may join several causes of action in the same action.

(3) Several defendants may be sued in one action either jointly, jointly and severally, separately or in the alternative, whenever the question arising between them or any of them and the plaintiff or any of the plaintiffs depends upon the determination of substantially the same question of law or fact which, if such defendants were sued separately, would arise in each separate action.

(4) In any action in which any causes of action or parties have been joined in accordance with this rule, the court at the conclusion of the trial shall give such judgment in favour of such of the parties as shall be entitled to relief or grant absolution from the instance, and shall make such order as to costs as shall to it seem to be just, provided that without limiting the discretion of the court in any way-

(a) the court may order that any plaintiff who is unsuccessful shall be liable to any other party, whether plaintiff or defendant, for any costs occasioned by his joining in the action as plaintiff;

(b) if judgment is given in favour of any defendant or if any defendant is absolved from the instance, the court may order:

(i) the plaintiff to pay such defendant's costs, or

(ii) the unsuccessful defendants to pay the costs of the successful defendant jointly and severally, the one paying the other to be absolved, and that if one of the unsuccessful defendants pays more than his pro rata share of the costs of the successful defendant, he shall be entitled to recover from the other unsuccessful defendants their pro rata share of such excess, and the court may further order that, if the successful defendant is unable to recover the whole or any part of his costs from the unsuccessful defendants, he shall be entitled to recover from the plaintiff such part of his costs as he cannot recover from the unsuccessful defendants;

(c) if judgment is given in favour of the plaintiff against more than one of the defendants, the court may order those defendants against whom it gives judgment to pay the plaintiff's costs jointly and severally, the one paying the other to be absolved, and that if one of the unsuccessful defendants pays more than his pro rata share of the costs of the plaintiff he shall be entitled to recover from the other unsuccessful defendants their pro rata share of such excess. (5)

Where there has been a joinder of causes of action or of parties, the court may on the application of any party at any time order that separate trials be held either in respect of some or all of the causes of action or some or all of the parties; and the court may on such application make such order as to it seems meet.”

[11] In Judicial Service Commission and Another v Cape Bar Council and another 2013 (1) SA 170 (SCA) at par [12] the court held that:

“It has now become settled law that the joinder of a party is only required as a matter of necessity- as opposed to a matter of convenience- if that party has a direct and substantial interest which may be affected prejudicially by the judgment of the court in the proceedings concerned….”

[12] The applicant argued that the only reason the second and third respondents were joined in these proceedings was because a cost order is sought against them in their personal capacities. This meant that the court could not order costs against a party that is not before it. It was for that specific reason that I dismissed the point in limine and found that the two were joined as they would be affected by the judgment of the court.

[13] The second point in limine raised was lack of urgency. According to the respondents, the application was not urgent and no case for urgency had been made by the applicant. The applicant argued that the respondents were preventing her from having access to the business entities when she had always been part of the businesses. It was submitted that the respondents had not been involved in the businesses of the deceased and as such lacked the relevant experience to run them. This was also evidenced by the respondents not being able to pay the employees their salaries for the month of May. A further submission made by the applicant in support of urgency was that the contract of one of the business entities, Tshireletso Security was at risk of being cancelled due to the inexperience of the respondents in running the business.

[14] Rule 6(12) (a) of the Uniform Rules of Court provides that:

“ In urgent application the court or a judge may dispense with the forms and service provided for in these Rules and may dispose of such matter at such time and place and in such manner and in accordance with such procedure (which shall as far as practicable be in terms of these Rules) as to it seems meet.”

[15] The applicant was married to the deceased in community of property. Half of the estate belongs to her. The heirs to the estate are her minor children and her sister’s minor children. If the estate loses any assets, she and the heirs are the ones who stand to suffer. It was submitted that there are contracts that are at risk and the employees not being paid their salaries. This will surely affect the assets of the estate. As already submitted, the applicant has always been involved in the running of the businesses with the deceased and continued after the deceased passed away in February 2020. It would

not be in the best interest of the estate that she be excluded in the running of the businesses as the respondents have already done. The applicant could not have waited to bring this application on normal motion as the estate would then take a long time to be finalised. It was for these reasons that I found there was a case of urgency made out in this application.

[16] This application is brought in terms of section 95 of the Administration of Estates Act. Section 95 of the Act provides that:

“95 Review of Master's appointments, etc

Every appointment by the Master of an executor, curator or interim curator, and every decision, ruling, order, direction or taxation by the Master under this Act shall be subject to appeal to or review by the Court upon motion at the instance of any person aggrieved thereby, and the Court may on any such appeal or review confirm, set aside or vary the appointment, decision, ruling, order, direction or taxation, as the case may be.”

[17] The applicant’s case is that the resignation of the fourth respondent as co-executor meant that the first respondent should have appointed the applicant as the next executor in terms of the will. It was argued that in interpreting the will, the intention of the testator was that the applicant be appointed as executor should one of the siblings cease to act in such combined capacity. The applicant does not challenge the appointment of the respondents in May 2020. It is the appointment of the fifth respondent as a sole executor that is being challenged together with the second appointment of the two respondents on 9 June 2020 as co-executors. The applicant argued that the first respondent acted outside his powers with the said appointments and for that reason his decision stands to be reviewed and set aside.

[18] A further argument made on behalf of the applicant was that the Master in appointing the fifth respondent on 5 June 2020 and both respondents on 9 June 2020 did not comply with section 14 of the Administration of Estates Act which provides that:

“(1) The Master shall, subject to subsection (2) and sections 16 and 22, on the written application of any person who-

(a) Has been nominated as executor by any deceased person by a will which has been registered and accepted in the office of the Master; and

(b) Is not incapacitated from being an executor of the estate of the deceased and has complied with the provisions of this Act, grant letters of executorship to such person.”

[19] According to the applicant the first respondent did not apply his mind to the provisions of the will and to the appointments of 5 June and 9 June 2020.

[20] In contention the respondents argued that before the first respondent could make a determination on the fourth respondent’s resignation application, the fourth respondent wrote a letter retracting his application to resign and pleaded to be reinstated as co-executor. As a result the letters of executorship issued on 5 June 2020 appointing the fifth respondent as sole executor were merely issued in the interim whilst the first respondent was still considering the fourth respondent’s application to resign. The respondents submitted that the appointment of 9 June 2020 of both respondents was not a new appointment but was done in terms of the will for the continuation of the winding up of the estate.

[21] The respondents argued that the fourth respondent’s resignation was not an actual resignation as there was no compliance with section 54(1)(b)(iv) of the Administration of Estates Act. The section provides that:

“(1) An executor may at any time be removed from his office-

(b) by the Master-

(iv) if he applies in writing to the Master to be released from his office.”

[22] It is the respondents’ case that the first respondent had not released the fourth respondent as a co-executor when he retracted his application to resign. As such there is no basis for the applicant to rely on the provisions of clause 4.3 of the will that she be appointed as executor.

[23] It is important to look at the interpretation of clause 4.3 of the will in relation to the appointment of the applicant as executor. As stated above the clause provided for the appointment of the applicant if one of the siblings is unable or unwilling to take up the offer. In the matter of Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at par 18 the following approach towards the interpretation of documents was stated that:

“The present state of the law can be expressed as follows; Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusiness like results or undermines the apparent purpose of the document.”

[24] The will clearly provide that should any of the siblings be ‘unwilling or cease for any reason’ to ‘act in such combined capacity’ then the applicant should be appointed executor. The ordinary meaning that can be attached to the will is that the change in executorship will take effect if any of the appointed siblings is unwilling or ceases to assume office to act in such combined capacity. The will does not provide for the appointment of the applicant as a co-executor to replace the one who is unwilling or ceases to assume office, but as sole executor to the estate. The will had been registered and accepted as such by the first respondent and should be complied with.

[25] The issue raised by the respondents was that the fourth respondent had not resigned and as such there was no need to comply with clause 4.3 of the will by the first respondent. However, the first respondent upon receipt of the resignation letter by the fourth respondent, immediately appointed the fifth respondent as a sole executor. There was no communication from the first respondent that such appointment was made on an interim basis whilst still considering the application by the fourth respondent to resign. The respondents have not referred to any authority relied on for the interim appointment of the fifth respondent. The only inference is that the first respondent accepted the fourth respondent’s resignation and thereafter issued the letters of executorship to the fifth respondent without applying his mind to the provisions of the will. When the applicant raised a concern about the said appointment the first respondent on 17 June 2020 addressed an email to the applicant’s attorneys stating as follows:

“Good day

Kindly note that I am currently attending your matter even though I am not in agreement with your interpretation in para5. We must co-appoint the surviving spouse with the existing available executor. Please return the original letter of appointment for correction.

Regards

Mr WM Sekete

Head of the office

Master of the High Court Mahikeng

P/Bag X42

Mmabatho

2735

WSekete@justice.gov.za

Tel: 018 381 1131”

[26] The contents of the email referred to above is a further indication of the first respondent’s ignorance of the provision of the will. The first respondent suddenly refers to co-appointing the surviving spouse when there is no mention of co-appointment in the will. To add salt to the wound, at the time the first respondent addressed the said email to the applicant’s attorneys, the second appointment of the respondents as co-executors had already been made. The first respondent was clearly acting outside his powers.

[27] The first respondent’s report at paragraph 11 and 12 states that:

“11 In the application of Mr Mothupi, master have not applied his mind when accepting such application, based on the prejudice the heirs may find themselves in and whether such resignation is just and fair to benefit the estate. It must be noticed that in terms of PAJA master has 90 days to respond to any application unless there is serious threat or danger to issue in dispute. In this estate, there is nothing urgent since master opted not to confirm the resignation of Mr Mothupi immediately but endorse the remaining executor to proceed. The honourable court must be informed that such endorsement or appointment of the remaining executor was not to allow the estate to be in limbo since there are also business running. This was not done on the interpretation of the clauses of the will. It aimed at protection of the interested parties in the estate and to avoid others to approach the court on urgent basis since there are no executors or administrators. Furthermore, it must be emphasized that Mr Mothupi resignation application was still under scrutiny before he interrupts our possible decision by asking re-instatement. Moreover, the reasons for the removal from the office of the executor(s) is primarily regulated by deceased estate Act66 of 1965 whereas the procedure is Promotion of Administrative Justice Act3 of 2000. The ambiguity as to when the conduct of the other executor can affect the other to be removed automatically, clearly urge the master to follow the above mentioned acts. This statement must not be construed as if master already applied these abovementioned acts since there was interruption from one of the executor who initially applied to be released then reconsidered his application.

12 Based on the fact that master did not accept his resignation application, master confirmed that through the letter of appointment issued on the 91h of June 2020 Moroke Herman Mothupi is still co-executor with Sebonta Silas Mothupi. We treat this appointment as if there was no interruption (application for resignation) of appointment since Mr Herman Mothupi was never released in his office as an executor by master. Master's consideration does not amount to functus officio since master never concluded about application for resignation. Master has a legal obligation to safeguard the interest of all heirs, beneficiaries and creditors. Moreover, to keep the estate solvent as much as possible it could be.

The consideration of sole appointment of one executor was basically aimed at keeping the estate solvent and protecting the interest of the creditor, more specifically the workers. On record, master was informed that there are workers that needed to get paid since some of the properties in the estate are business related. Without executor, the estate could have faced another unnecessary possible litigation and deterioration of the assets. Poor employees may have been severely affected and subsequently loose jobs.

The court must note that master has diarise the letter of appointment issued on the 14 May 2020 as contemplated in terms of section 35 of the deceased act 66 of 1965. In other words, the executors have 6 months as from 14 May 2020 to lodge with the master liquidation and distribution account.

Master will abide by this honourable court decision.”

[28] In the above report the first respondent states that he had not accepted the fourth respondent’s resignation and only endorsed the remaining executor to proceed. This is however not in line with the correspondence sent to the applicant’s attorneys on 17 June 2020. Further to that, there was no communication by the first respondent that the appointment of the fifth respondent was interim. The letters issued on 9 June 2020 were not issued as reinstatement of the letters of executorship dated 14 May 2020. These were new letters of executorship issued after the fourth respondent retracted his resignation.

[29] In terms of section 95 of the Administration of Estates Act the court has the power to review and appeal the appointment of an executor. This is a type of review where the court has both the power to review and appeal. In the case of Nel and Another NNO v The Master (ABSA BANK LTD and others intervening) 2005 (1) SA 276 (SCA) at para 22 and 23 the court held that:

“[22] South African courts have long accepted that the review envisaged by s151 of the Insolvency Act is the ‘third type of review’ identified more than a hundred years ago in Johannesburg Consolidated Investment Co v Johannesburg Town Council, ie where Parliament confers a statutory power of review upon the court. In the Johannesburg Consolidated Investment Co case, Innes CJ stated, with reference to this kind of review, that a court could enter upon and decide the matter de novo. It possesses not only the powers of a court of review in the legal sense, but it has the functions of a court of appeal with the additional privileges of being able, after setting aside the decision arrived at, to deal with the matter upon fresh evidence.”

[23] Thus, we engaged in this third kind of review, the court has powers of both appeal and review with the additional power, if required, of receiving new evidence and of entering into and deciding the whole matter afresh. It is not restricted in exercising its powers to cases where some irregularity or illegality has occurred. However, while it is sometimes stated that the court’s powers under this kind of review are ‘unlimited’ or ‘unrestricted’, this is not entirely correct. The precise extent of any ‘statutory review type power’ must always depend on the particular

statutory provision concerned and the nature and extent of the functions entrusted to the person or body making the decision under

review. A statutory power of review may be wider than the ‘ordinary’ judicial review of administrative action (the ‘second type of review’ identified by Innes CJ in the Johannesburg Consolidated Investment Co case), so that it combines aspects of both review and appeal, but it may also be narrower, ‘with the court being confined to particular grounds of review or particular remedies.”

[30] The appointment of the fifth respondent on 5 June 2020 was done by the first respondent without having considered the provisions of the will. At the time the fourth respondent resigned as co-executor, the first respondent should have complied with clause 4.3 and appointed the applicant. The court is thus empowered in terms of section 95 of the Administration of Estates Act to set aside the appointment of the fifth respondent as the sole executor of the estate which appointment was made on 5 June 2020.

[31] Similarly the appointment of the two co-executors made on 9 June 2020 stands to be set aside. It is not clear why the first respondent ignored the applicant’s application to be appointed as executor after the resignation of the fourth respondent in terms of the will. The fourth respondent indicated that he retracted his resignation, however there is no mention of a retraction of resignation in the report filed by the first respondent. All that the first respondent stated in the report is that the resignation was not accepted. If that is true, that should have been communicated to the fourth respondent and there would have been no need for a retraction.

Counter-application

[32] The respondents brought a counter-application seeking an order that the applicant be declared incompetent and/or unfit to be appointed as an executrix of the estate. In substantiation the respondents argued that the applicant unlawfully and without the knowledge of the co-executors changed ownership of one of the entities of the deceased. Further that she transacted on the bank accounts of one of the entities wherein she made a withdrawal and/or transfer to the total of about R15 000 000-00 and the suspicion being that the money was used for her own benefit. As a result of which the employees of Tshireletso Security Services, one of the entities of the deceased, were not paid their salaries.

[33] In contention the applicant submitted that the allegations levelled against her conduct are unsubstantiated and without any basis. In addition the applicant argued that she had been cooperative with the executors from the time of their appointment and provided them all the required information. She denied the allegations of unlawful conduct against her without the required proof by the respondents.

[34] The respondents’ counter-application is based on allegations of misappropriation of funds against the applicant. The respondents were not able to substantiate the allegations except for stating that the applicant used the money withdrawn from the business accounts for her own benefit. No substantiation that she did not act in the interest of the estate or the heirs. It is also noteworthy to state that the heirs to the estate are the minor children of the applicant and her

sister, all of whom are in the care of the applicant. She as a mother surely has the interest of her children at heart including those of her sister. It is my view that the counter-application cannot be sustained and it further raises a serious dispute of fact which is not capable of being resolved on paper. The respondents were clearly aware of the dispute of fact and still persisted in bringing the counter-application on motion proceedings. It was for these reasons that I dismissed the counter-application.

Costs

[35] It is trite that costs should follow the results. The appointment of the fourth and fifth respondents in this matter on 5 June 2020 and 9 June 2020 were unlawful and as such the costs of the application cannot be borne by the estate. It is for that reason that they had to be cited in their personal capacities as the applicant sought a cost order against them. Both of them acted contrary to the interest of the estate and the heirs. They frustrated the applicant by refusing her access to the businesses of the deceased for no reason. The resignation and purported retraction thereof were clearly done to further frustrate the applicant and delay the finalisation of the estate. It was for these reasons that they were ordered to pay the costs on a punitive scale.

[36] It was for the above reasons that the order in paragraph [1] was granted on 23 June 2020.

_________________________

J T DJAJE

JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING

: 23 JUNE 2020

DATE OF REQUEST FOR REASONS : 26 JUNE 2020

DATE OF REASONS

: 28 JULY 2020

COUNSEL FOR THE PLAINTIFF :

ADV R S SHEPSTON SC with ADV READ

COUNSEL FOR THE DEFENDANT

: ADV M L MASHELE