IN THE HIGH COURT OF SOUTH AFRICA (LIMPOPO HIGH COURT, THOHOYANDOU) In the matter between: Case No. 356/2012 MINYUKU TSAKANI YVETTE MINYUKU TINYIKO ROSE MINYUKU MUHLURI 1 st Applicant 2 nd Applicant 3 rd Applicant and MINYUKU HLEKANI ROSE 1 st Respondent MASTER OF LIMPOPO HIGH COURT, THOHOYANDOU ESTATE OF MINYUKU HLENGANI DEMORIA 2 nd Respondent 3 rd Respondent CORAM KGAYANGO AJ DATE HEARD: 22 MAY 2012 DATE JUDGMENT HANDED DOWN: 01 JUNE 2012 JUDGMENT KGANYAGO AJ Page 1 of 12
2 [1] The letter of executorships which was issued on the 2 nd April 2012 by the Second Respondent appointing the First Respondent as an executor in the estate of the late Hlengani Demoria Minyuku is the subject of the dispute before me. [2] The deceased was married to the Second Applicant. During the subsistence of their marriage, they had two children, namely, the First Applicant and the Third Applicant. At the time of his death, the deceased and the Second Applicant have divorced. However, even though they were divorced, they were still living together in the same house as husband and wife. The legal representative of the applicants could not clarify whether it was a divorce for convenience. The First Respondent is the sister of the diseased. [3] The deceased died intestate on the 13 th February 2012. On the 8 th March 2012 the Second Respondent, wrote a letter to the First Applicant calling her to a meeting at his/her office regarding the estate of the deceased. It is not stated in the application or canvassed during the arguments as to what informed the Second Respondent to call the First Applicant to a meeting of the 13 th February 2012. [4] The First Applicant attended the offices of the Second Respondent on the 9th March 2012 and completed the necessary forms for reporting an estate. It is not clear as to when the First Respondent came into picture. However, on the 28 th March 2012, the attorneys for the First Applicant, wrote a letter to the Second
Respondent objecting to the appointment of the First Respondent as the executor of the deceased estate. That letter was served on the Second Respondent on the 28 th March 2012. The Second Respondent did not reply to the objection. [5] From the papers filed, the First Respondent completed the necessary forms to report the estate on the 1 st April 2012. The First Respondent also submitted a nomination form signed by Masingita Gloria Chabane and Matamela Tobela. It is alleged that the two are the mothers of the deceased two minor illegitimate children. They were both nominating the First Respondent to act as the Executrix of the deceased estate. Based on the nomination form submitted, the Second Respondent appointed the First Respondent as the executrix of the deceased estate. [6] The Second Respondent has stated his/her reason as to why he/she has appointed the First Respondent as an executor of the deceased estate in a report that was submitted to this court. Paragraphs 5 and 6 of the report read as follows: 5 Minyuku Hlekani Rose was appointed in terms of nomination by the two mothers of the deceased children in their representative capacity. This was after the Master was approached by the mothers of the two minor children alleging that Minyuku Tinyiko Rose a divorcee together with her daughter Minyuku Tsakane Yvette are busy disposing of the assets of the deceased. The Master wrote a calling letter to them to inquire and to proceed with the necessary appointment and despite our Page 3 of 12
4 numerous attempts to appoint Minyuku Tsakani Yvette were unsuccessful because she did not want to disclose property and their whereabouts. 6 In terms of section 7(2) of the Administration of Estates Act provides that whenever any person dies within the Republic leaving any property or any document being or purporting to be a will therein the surviving spouse of such a person, or if there is no surviving spouse, his nearest relative or connection residing in the district in which the death has taken place, shall within fourteen days thereafter give notice of death substantially in the prescribed form, or cause such notice to be given to the Master. This left the master with no other avenues but to appoint Minyuku Hlekani Rose as the executrix as per nomination by the mother of the two minor children in their representative capacity in order to protect the interest of the minor children of the deceased. [7] The Applicants have approached this Court on urgent basis. The Court found that the Applicants have established the existence of urgency in their application and their application was disposed on urgent basis. [8] The First and Third Respondents have raised a point in limine arguing that the Applicants should have brought their review application in terms of Rule 53 and
not in terms of Promotion of the Administration Act 3 of 2000 commonly known as PAJA. Since the point in limine also goes to the merits of the application; the Court ordered that the point in limine and merit be dealt with at the same time. [9] Section 95 of the Administration of Estate Act 66 of 1965 reads as follows: Every appointment by the Master of an executor, tutor, curator or interim curator, and every decision, ruling, order, direction or taxation by the Master under this Act shall be the 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. [10] The application by the Applicants was brought by way of notice of motion on urgent basis. I am therefore satisfied that the Applicants have complied with the provisions of section 95 of the Administration of Estates Act 66 of 1965. The issue of PAJA was raised by the First and Third Respondents in their answering papers. In the Applicants notice of motion there is nowhere it is stated that the review application is brought in terms of PAJA. The Second Respondent s action amounted to an administrative action and could still be reviewed in terms of PAJA. But in this case, it is a review brought in terms of section 95 of the Administration of Estate Act 66 of 1965. Therefore, the First and Third Respondent s point in limine has no basis, and is hereby dismissed. Page 5 of 12
6 [11] It is common cause that the deceased Hlengani Demoria Minyuku died intestate. Section 1(1) of the Intestate Succession Act 81 of 1987 reads as follows; 1(1) If after the commencement of this Act a person ( hereinafter referred to as deceased )dies intestate, either wholly or in part, and (a) is survived by a spouse, but not by a descendant, such spouse shall inherit the intestate estate; (b) is survived by a descendant, but not by a spouse, such descendant shall inherit the intestate estate; (c) is survived by a spouse as well as descendant- (i) such spouse shall inherit the child s share of the intestate estate or so much of the intestate as does not exceed in value the amount fixed from time to time by the Minister of Justice by notice in the Gazette whichever is the greater; and (ii) such descendant shall inherit the residue (if any) of the intestate estate;. [12] It is common cause that the deceased and the Second Applicant were divorced at the time of his death, even though it is alleged that they were living together as husband and wife in the same house. The issue of the Second Applicant that she should be declared the lawful wife of the deceased at the time of his death, is not an issue that I am called upon to decide on. Therefore, the estate of the deceased will be dealt with in terms of section 1(1)(b) of the Intestate Succession Act No. 81 of 1987.
[13] Section 1(2) of the Intestate Succession Act 81 of 1987 reads as follows: Notwithstanding the provisions of any law or the common or customary law, but subject to the provisions of this Act and section 40(3) and 297(1)(f) of the Children s Act, 2005 (Act 38 of 2005), having been born out of wedlock shall not affect the capacity of one blood relation to inherit the intestate estate of another blood relation. [14] Illegitimate child or children born from an adulterous relationship are covered by this section. Put it differently, it means that illegitimacy or adulterine shall not affect the capacity of one blood relationship to inherit the intestate estate of another blood relation. [15] For one to inherit from the deceased person who died intestate, one has to have a direct or collateral relationship with the deceased. In a situation where the deceased is not survived by a spouse, like in the present case, the first descendant to look at are the children of the deceased who are related to him directly in the first degree. The sisters are related to him collaterally in the second degree. In the present case, on the face of it will be the First Applicant, Third Applicant and the minor children who their mothers nominated the First Respondent to be appointed as an executrix of the deceased estate. Page 7 of 12
8 [16] However, there seems to be a dispute as to whether the two minor children are the children of the deceased. The Applicants in their replying affidavit state that they heard a rumour, and they are not admitting that they are the children of the deceased. The First Respondent on the other hand submits that the deceased was maintaining the two minor children and that there are maintenance orders to that effect. The alleged maintenance orders were not attached to her answering affidavit or submitted to court. The alleged maintenance orders were not submitted to the Second Respondent when the First Respondent was appointed as an executrix. On the other hand the Second Respondent has not verified whether indeed the two minor children were the descendants of the deceased or not. The Second Respondent accepted the say-so of the mothers of the two minor children. That is a serious gross irregularity which cannot be overlooked. Anybody can come and claim to be descendant of the deceased. Without proof no claim can be accepted. That may create a wrong precedent. This cannot be allowed to occur. [17] Section 22(1) of the Administration of Estate Act 66 of 1965 read as follows: (1) If it appears to the Master or if any person having an interest in the estate lodges with the Master in writing an objection that the nomination of any person as executor testamentary or assumed executor is or should be declared invalid, the letters of executorship or an endorsement, as the case may be, may be refused by the Master until- (a) the validity of such nomination has been determined by the Court; or
(b) (c) the objection has been withdrawn; or the person objecting has had a period of fourteen days after such refusal or such further period as the Court may allow, to apply to the Court for an order restraining the grant of letter of executorship, or the making of the endorsement, as the case may. [18] In the case before me, it is common cause that the Applicants attorneys have lodged an objection with the Second Respondent on the 28 th March 2012 regarding the nomination of the Second Respondent. The Second Respondent never dealt with the objection but proceeded to appoint the First Respondent on the 2 nd April 2012. Fourteen days have not yet elapsed, and the Applicants have also not withdrawn their objection. Therefore, the Second Respondent in ignoring the provisions of this section has committed a gross irregularity which cannot be overlooked. [19] The reasons furnished by the Second Respondent as to why he/she did not appoint the First Applicant as the executrix of the deceased estate, despite the fact that the First Applicant was the first person to report the estate, are very much flimsy. If the Second Respondent was unable to deal with the First Applicant, why did he/she not deal with her attorneys. In the report the Second Respondent is not stating that she/he was unable to deal with the First Applicant s attorneys. The First Applicant s attorneys wrote a letter to the Second Respondent on the 28 th March 2012. The Second Respondent did not reply to that letter, but proceeded to appoint Page 9 of 12
10 the First Respondent under mysterious circumstances. If it was a condition that the First Applicant should disclose the property and their whereabouts before she can be appointed as an executrix, the Second Respondent could simply have brought that to the attention of her attorneys. Therefore, his/her submission in his/her report that there were numerous attempts to appoint the First Applicant without success has no merits. The Second Respondent s employee who was handling this matter, had therefore, committed a gross misconduct with the way she/he was handling this matter. [20] From the beginning, the Second Respondent was aware that there might be four heirs of the deceased. When he/she considers the nominations, he/she considers the nominations of two heirs only. If the First Applicant was not co-operating, why did he/she not approach the mother of the Third Applicant, who is also a minor, and ask for a nomination. It is also not explained as to why the Second Respondent did not see it fit to receive the nomination of the Third Applicant, as it seems that the person who was giving her problems was only the First Applicant. Therefore, in my view, the Second Respondent has committed a gross irregularity. [21] Clearly, the Second Respondent s employee who was handling this estate has committed serious gross irregularities which cannot be condoned. Therefore, I am left with no alternative but to set aside the letters of executorship issued by the Second Respondent on the 2 nd April 2012 appointing the First Respondent as the executrix of the late Hlengani Demoria Minyuku.
[22] The First Applicant is a major direct descendant of the deceased in the first degree. If the First Applicant had submitted all the necessary documents required to report the estate, I do not see any reason as to why she should not be appointed as the executrix of the deceased estate. [23] This judgment does not in any way prevent the two minor children from lodging their claim against the estate in the normal way to prove their claims. [24] This now brings me to deal with the issue of costs. The Second Respondent s Counsel, has attended Court only to argue that a costs order should not be awarded against the Second Respondent as the First Applicant is to blame. In awarding costs, I must exercise a discretion that I have judicially having regard to fairness to the parties. Clearly, the conduct of the employee of the Second Respondent and the way the First Respondent was appointed, cannot be overlooked. The employee of the Second Respondent has not acted in a way a person in his/her position was expected to. The First Respondent was appointed under mysterious circumstances. The attorney for the First Applicant, tried to knock sense into her/him by writing a letter of the 28 th March 2012. The First Respondent decided to ignore that letter. Had he/she acted in terms of that letter, I do not think the parties would have approached this Court. The First Respondent also came into picture under mysterious circumstances. Therefore, both Respondents are liable for the applicants costs. Page 11 of 12
[25] In the result, it is my view the appropriate order is the following: 12 a) The letters of executorship issued by the Second Respondent in favour of the First Respondent is hereby set aside. b) The First Applicant is hereby ordered to submit all the outstanding necessary documents to report an estate within 5(five) days of this order. c) Thereafter, the Second Respondent is ordered to appoint the First Applicant as the executrix in the estate of the late Hlengani Demoria Minyuku within 10 (ten) days of receipt of this necessary prescribed forms of reporting an estate. d) Both Respondents are ordered to pay the Applicants costs jointly and severally. M F KGANYAGO ACTING JUDGE OF THE LIMPOPO HIGH COURT, THOHOYANDOU Adv A D Ramagalela Instructed by Madala Phillip Attorneys for the Applicants Mr V L Nange Instructed by Richard Mathobo Attorneys for the 1 st & 3 rd Respondents Adv F Muneri Instructed by State Attorney, Thohoyandou for the 2 nd Respondent