Ragghianti NO v The Master of the North Gauteng High Court, Pretoria and Others (7068/14) [2015] ZAGPPHC 899 (15 December 2015)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case Number: 7068/14

In the matter between:

FRANCO MARIO RAGGHIANTI N.O APPLICANT

and

THE MASTER OF THE NORTH GAUTENG HIGH

COURT, PRETORIA 1st RESPONDENT

BRUNO DANIELE RAGGHIANTI N.O 2nd RESPONDENT

HEIKO DRAHT 3rd RESPONDENT

Coram: HUGHES J

JUDGMENT

HUGHES J

[1] In this application the applicant seeks to review and set aside the decision of the first respondent to withdraw the appointment of the applicant as executor and the decision to appoint the applicant and the second respondent as joint executors and or an independent

executor, in the estate of the late Pellegrino Ragghianti. The applicant also seeks that the first and second respondents pay the

costs of this application jointly and severally.

[2] The applicant and the second respondent are brother. On 6 December 2006 their father, Pellegrino Ragghianti, died and both were

nominated joint executors of their father's estate. On the death of their father the applicant agreed that the second respondent would be responsible for the administration and winding-up of the estate.

[3] The estate of the deceased consists of an immovable residential property which consists of a main house with two units. All three dwellings were being leased by the second respondent and rental thereto was paid to the second respondent. From the time the second respondent was put in charge of administering the estate the rental was being paid into his personal account.

[4] The brothers were officially appointed as joint executor on 13 April 2011. This came about as a result of the second respondent failing to perform his duties, in that, he failed to open up an estate account to administer the affairs of the deceased estate. As at the official appointment of the brothers as executors the second respondent had not opened up the estate account.

[5] On 27 September 2010 an estate account was opened by the attorney of the applicant. It was agreed by the brothers that the rental would now be deposited in this estate account. However, the applicant states, the second respondent continued to receive the rental in his personal capacity in that he convinced the bank where the estate account was held that he exclusively had the power to administer the account. To this end the applicant applied to have the second respondent remove in terms of section 54(1)(b)(v) of the Administration of Estate's Act 66 of 1965 ( the Act). On 13 April 2011 the second respondent was removed by the first respondent as joint executor and the applicant was now the sole executor.

[6] The issue of the rental of the dwellings on the immovable property became culminated into a legal battle between the brothers. I do not intend to enter into that debate, save to say, that it resulted in the second respondent proceeding to this court, on 10 April 2013, to obtain an order declaring their fathers will valid. The reason for this was that the will made provision for both brothers to be appointed as joint executors.

[7] On 20 June 2013, the first respondent had to advise the applicant to return the previous letter of executorship appointing him as sole executor were being withdrawn and were to be returned and that new letters of executorship, in terms of the will, appointing both brothers jointly, were to be issued.

[8] The applicant made representations to the first respondent about the joint appointment. He did not see how this could be so as the second respondent had been removed by the first respondent. However, the first respondent advised that it had to abide to the prescript of the will.

[9] It transpired that on 9 December 2013 the first respondent appointed an independent attorney, Heiko Dracht, as an independent executor to administer and wind up the deceased estate.

[10] The applicant submits that the decision of the first respondent is in contravention of section 54(1)(a) read with 54(2) and 54(3) of the Act.

[11] It would seem that the applicant did not agree that he and the second respondent be appointed as joint executors. The first respondent then sent various correspondences to the attorney of the applicant advising that as no agreement could be reached between the brothers about the executorship of the estate the only way forward to finalise the estate was to appoint an independent executor. It was noted that the applicant refused to return the letters of executorship and that he refused to be appointed jointly with the second respondent.

[12] The applicant submits that this decision to appoint an independent executor has contravened sections 54( 1) and 54(2) of the Act.

[13] The second respondent raises two point in limine. The first, being that the applicant in his papers states that he derives his locus standi by virtue of the fact that he is an executor, whilst he is not. This being the case, the applicant in fact has no locus standi to institute these proceedings.

[14] Secondly, the second respondent requests that the supplementary affidavit filed by the applicant be struck from the proceedings. The affidavit was filed without the applicant obtaining the leave of the court to file same thus the supplementary affidavit should be considered pro-non scripto.

[15] Further, in the supplementary affidavit the applicant attempts to join the independent attorney Heiko Draft to these proceedings. The second respondent contends that this was not done in line with what is set out in R 13(1)(a) of the Uniform Rule of Court and as such this joinder should not be allowed. The second respondent argues that there has not been service of these papers upon the party that the applicant intends to join.

[16] I do not propose to entertain the point in limine with regard to locus standi of the applicant, which to my mind is a technical point detracting from the merits of the application. I am mindful of the dicta in Affordable Medicines Trust v Minister of Health [2005] ZACC 3; 2006 (3) SA 247(CC) at para [9],

"[9] The principles governing the granting or refusal of an amendment have been set out in a number of cases. There is a useful collection of these cases and the governing principles in Commercial Union Assurance Co Ltd v Waymark N0.19. The practical rule that emerges from these cases is that amendments will always be allowed unless the amendment is ma/a fide (made in bad faith) or unless the amendment will cause an injustice to the other side which cannot be cured by an appropriate order for costs, or "unless the parties cannot be put back for the purposes of justice in the same position as they were when the pleading which it is sought to amend was filed "11 These principles apply equally to a Notice of Motion. The question in each case, therefore, is what do the interests of justice demand."

The applicant seeks to amend his notice of motion to rectify the issue of locus standi as he is no longer an executor. In my view, in these circumstances the amendment sort is not ma/a tides neither will it cause any injustice to the respondents. Thus there is no reason for the amendment not to be granted.

[17] The second point raised regarding the supplementary affidavit is yet another technical point. The first and third respondents who are mentioned in this affidavit do not object to this affidavit forming part of the pleadings and have chosen to abide by this court decision. I accept to the approach adopted by Goldstone J in Baeck & Co SA (Pty) Ltd v Van Zummermeren & Another 1982 (2) SA 112 (W) at 119A-B, where he said that substance should be considered rather than form in order not to prejudice any party. This is a case where this approach should be adopted. Though the leave of the court was not sought to file the supplementary affidavit the substance within it is relevant to the issues before me and as such, not to prejudice any of the parties, I will admit the supplementary affidavit as part of the pleadings. Therefore the supplementary affidavit is duly admitted and allowed.

[18] In keeping with the spirit of substance rather than form, the second respondent sought condonation for the late filing of his answering affidavit, condonation is duly granted.

[19] The third point raised is that the applicant has failed to adhere to section 53(1) of the Uniform Rule of Court and accordingly the application is defective.

[20] Section 53(1) reads as follows:

"53 Reviews

(1) Save where any law otherwise provides, all proceedings to bring under review the decision or proceedings of any inferior court and of any tribunal, board or officer performing judicial, quasi-judicial or administrative functions shall be by way of notice of motion directed and delivered by the party seeking to review such decision or proceedings to the magistrate, presiding officer or chairman of the court, tribunal or board or to the officer, as the case may be, and to all other parties affected-

(a) calling upon such persons to show cause why such decision or proceedings should not be reviewed and corrected or set aside, and

(b) calling upon the magistrate, presiding officer, chairman or officer, as the case may be, to despatch, within fifteen days after receipt of the notice of motion, to the registrar the record of such proceedings sought to be corrected or set aside, together with such reasons as he is by law required or desires to give or make, and to notify the applicant that he has done so. "

[21] The second respondent argues that the applicant has called upon the first respondent to show cause why the decision taken by the first respondent should not be reviewed. However, he has not called for the records of the proceedings were the decision was and neither has he requested the first respondent to provide its reasons for its decision.

[22] The most relevant argument of the applicant to counter the above is that in its supplementary affidavit it granted the first respondent "an opportunity to file its records and/or reasons for my "removal" and the Third respondent's "appointmenf' . . . "

[23] This is a clear indication that the applicant appreciated the fact that the first respondent had a right to file the records and/ or the reasons for its decision.

[24] To highlight the importance of the record and reasons I refer to Superior Court Practice, Second Edition, Volume 2 at page 01-707 where Van Loggerenberg points out the importance of Rule 53,

"Subrule 1(b)

The purpose of the record is to enable the applicant and the court fully to assess the

/awfulness of the decision-making process. it allows the applicant to interrogate the decision and, if necessary, to supplement his grounds of review under subrule (4).

Subrule (3)

The right to require the record of the proceedings is primarily intended to operate for the benefit of the applicant. Depending on the circumstances, the respondent should not be prevented from placing the record, or the relevant parts thereof, before a court simply because the applicant does not do so.

An applicant can, however, not elect to disregard the provisions of the Rule to impinge upon the procedural

rights of a respondent."

In these circumstances this is exactly what the applicant has done. The conduct of the applicant in doing so cannot be condoned, as in my view, it infringes prejudicially on the rights of the first respondent and the other parties in these proceedings. Therefor due to the applicant's non-compliance with Rule 53(1) this review application is defective.

[25] I turn to deal with the so called joinder of the third respondent. There has been no service of the applicant's intention to join the third respondent. There has been no service of these review papers on the third respondent. There cannot be a joinder of the third respondent without the service of such intention upon the third respondent. The third respondent has not been given an opportunity to respond to this intention and to answer to the applicant's papers. This is yet another infringement on one of the parties' rights. The attempt to join the third respondent does not conform to Rule 13(1) is therefore also defective.

[26] The non-compliance with the rules of court renders this application pre-mature and as such I have no option but to dismiss the review application.

[27] Consequently the following order is made:

27.1. The review application is pre-mature and is dismissed with costs.

___________________________

W Hughes

Judge of the High Court