Court name
High Court of eSwatini
Case number
258 of 2006
2741 of 2004

Okh Farms (Pty) Ltd v Litter N.O and Others In Re: Willemse v Litter (258 of 2006, 2741 of 2004) [2008] SZHC 43 (31 October 2008);

Law report citations
Media neutral citation
[2008] SZHC 43


IN THE HIGH COURT OF SWAZILAND



Civil
Case No. 258/2006







OKH FARMS (PTY)
LTD Applicant







And







CECIL JOHN LITTLER N.O. 1st
Respondent



GIDEON TRUTER WILLEMSE 2nd
Respondent



THE MASTER OF THE HIGH
COURT 3
rd
Respondent



THE REGISTRAR OF DEEDS 4th
Respondent



THE ATTORNEY GENERAL 5th
Respondent







In Re:



Civil Case No. 2741/2004







GIDEON TRUTER
WILLEMSE Plaintiff







And







CECIL JOHN
LITTLER Defendant











Coram S.B.
MAPHALALA - J



For the
Applicant Advocate Robert Wise SC (Instructed by Robinson Bertrams.



For the 1st
Respondent. Advocate O. Ebersohn (Instructed by Littler &
Company).



For 2nd
Respondent Advocate M. van der Walt (Instructed by Shilubane and
Maseko & Associates).















JUDGMENT



31st
October 2008


_____________________________________________________________







The application







[1] The
application before court is for the removal of the 1
st
Respondent who is the executor in the estate of the late Petrus
Jourbert Van der Walt (the deceased) and the appointment of another

person in his stead. Further a rescission of the consent judgment
under Case Number 2741/2004, in terms of which judgment was
awarded
against the estate in favour of the 2nd
Respondent. The instant application has been preceded by other
applications and appeals, as set out more fully in the papers.
The
order sought reads
ippsissima
verba

as follows:



1. That
the first Respondent be removed from the office of executor in the
estate of the late Petrus Joubert Van der Walt, Estate
Number EH
183/98;



2. That
subject to due compliance with the provisions of the Administration
of the Estates Act the third Respondent is directed
to issue letters
of administration to and in favour of Richard John Stanley Perry
(“Perry”) in Estate Number EH 183/98;



3.



3.1. That
the judgment and order granted by the above Honourable Court on the
7
th
October 2005 under Case Number 2741/2004 be rescinded and set aside;



3.2. That
the action in Case Number 2741/2004 be stayed from the granting of
this order until 60 court days after letters of administration
have
been issued to Perry by the third Respondent, and that second
Respondent be precluded from taking any steps in that action
during
the afore-mentioned period;



3.3. That
the bar in Case Number 2741/2004 be lifted, and that the Defendant
(including any substitution of the present Defendant)
be allowed to
deliver a plea in that action;







4. Alternatively
to prayer 3







4.1 That
if the Perry considers it fit and proper to bring proceedings for the
rescission and setting aside of the said default
judgment granted by
consent, he do so within 40 court days of letters of administration
having been issued to him, or such longer
period as this Honourable
Court may allow on good cause shown;







5. That
the costs of the application under Case Number 4386/2005 be paid by
the second Respondent and the first Respondent
de
bonis propiis
,
jointly and severally, the one paying the other to be absolved and
that such costs be payable on the scale between attorney and
own
client and that they include the certified costs of Counsel.



6. That
the costs of this application be paid by the second Respondent and
the first Respondent
de
bonis propriis
,
jointly and severally, the one paying the other to be absolved, and
that such costs be payable on the scale between attorney and
own
client and that they include the certified costs of Counsel;







7. Ordering
that the third, fourth and fifth Respondents pay the costs of this
application only in the event of their opposing
it, and then only
such costs as occasioned by such opposition.







8. Further
and/or alternative relief.







[2] The
Respondents oppose the above prayers and have raised points
in
limine

and addressed the merits of the dispute. If I find in favour of the
Respondents on the preliminary points I ought to dismiss the

application there and there and not canvass the merits of the
dispute.







[3] In paragraph 4
of the first Respondent’s Answering Affidavit the Respondents have
advanced a number of points of law
in
limine
.
The first point is that the Applicant has no
locus
standi

to bring this application because it is a creditor of the deceased
estate in respect of certain costs orders; and secondly, that
on the
basis that the Applicant has an enrichment claim for expenditure for
“necessary
or useful improvements to the property brought about by the
Applicant. In the nature of things the last mentioned
claim is not
qualified”.







[4] The second
point
in
limine

is that the Applicant, in any event, has no
locus
standi

to, and cannot at law, apply for the rescission of the final judgment
which was granted by agreement between the first Respondent
in his
capacity as executor of the estate and the second Respondent.







[5] The third
point
in
limine

is that the deponent Cameron-Dow has no knowledge of the facts, and
on his own admission, is no expert in any field, and merely
stated
that he looked at certain documents and what is to be found in the
Founding papers, in his comment about these papers, intersperse
with
scandalous and argumentative matter and which comment is absolutely
irrelevant.







[6] In paragraph 6
of the second Respondent’s Answering Affidavit a point is also made
that the Founding Affidavit of Cameron-Dow
consist of inadmissible
hearsay matter, irrelevant and argumentative speculation and should
be struck out and the application dismissed
with costs.







[7] Before
proceeding with the determination of this matter I wish to apologize
profusely to the parties for the delay in issuing
this judgment and
state that this has been caused by other urgent matters which
clamoured for my attention.







The parties







[8] The Applicant
is
OKH
Farms (Pty) Ltd,

a company having a share capital and which is duly incorporated and
registered in terms of Companies Act No. 7 of 1912 with its

registered address at care of Ernest Young, Gwamile Street, Mbabane
(I shall refer to it herein either as “the
Applicant”

or as
“OKH
Farms”
,
as convenience dictates).







[9] The first
Respondent is
Cecil
John Littler N.O.

an adult male attorney who is sued herein in his capacity as the
executor of the deceased estate of the late Petrus Jourbert Van
der
Walt who died in Swaziland at the age of 93 on the 24
th
January 1988. The 1
st
Respondent carries on practice as an attorney and on administration
of deceased estates under the name and style of C.J. Littler
and
Company at Ground Floor, Embassy House, Gwamile Street, Mbabane.
Letters of Administration in favour of the first Respondent
to
administer and wind up the deceased estate were issued by the 3
rd
Respondent on the 7
th
July 2005. The first Respondent is the successor in title to one
Fikile Mthembu as the executor of the estate of the deceased,
she
having being the executrix of the said deceased estate from 9
th
June 2004, until removed from office by order of this court on the
24
th
June 2005. By Notice dated 19
th
September 2005, the first Respondent caused himself to be substituted
for the said Fikile Mthembu as the Defendant in Case Number

2741/2004. I shall refer to the first Respondent either as such or
as “Littler”
as convenience or expedience dictates.







[10] The second
Respondent is
Gideon
Truter Willemse

an adult male farmer whose residential and business addresses are
unknown to the Applicant but who, to the best of Applicant’s

knowledge and belief ordinary place of residence is in the Republic
of South Africa. In the action before court second Respondent
has
nominated the address of P.M. Shilubane and Associates, Ground Floor,
Lilunga House, Somhlolo Road, Mbabane.







[11] The third
Respondent who is the Master of the High Court is cited as having
offices at Miller’s Mansion Building, Mbabane,
district of Hhohho,
Swaziland. The person currently occupying the post of Acting Master
is Isaac Malamlele Fitkin Dlamini. The
third Respondent is cited
herein by virtue of the interest and responsibility he has in
ensuring the due and proper administration
of all deceased estates in
Swaziland and which are registered with his office, as is the case of
the deceased estate of the said
late Petrus Jourbert Van der Walt.
The only relief sought against the third Respondent is on of an
administrative nature. No
order for costs is sought against the
third Respondent.







[12] The fourth
Respondent is the
Registrar
of Deeds of Swaziland
,
of the Deeds office next to Hospital Hill, Mbabane, district of
Hhohho, an adult male who is cited in his official capacity.
The
person currently occupying the post of Registrar of Deeds is Samuel
Juba Dlamini. The fourth Respondent is joined as an interim

interdict has been granted against it in Case Number 4386/2005
pending finalization of this application. No order for costs is

sought against the fourth Respondent.







[13] The fifth
Respondent is the
Attorney
General of Swaziland

who is cited by virtue of the fact that interim interdicts (pending
this application) have been granted against two officials in
the
administration of Swaziland, namely the third and fourth Respondents
and certain final relief is sought against the third Respondent.







The factual
background.







[14] In order to
fully understand the issues in this case it is important to sketch
the historical background of this matter. The
dispute revolves
around a farm described as certain Portion H of the Farm Kubuta
Estate 222. During his lifetime the deceased
was the registered
owner of the said property situated in the Shiselweni district
measuring 214,1330 hectares which he held under
and by virtue of Deed
of Transfer No. 158/1992 dated 3
rd
April 1992. This property will hereinafter be referred to as
“the
property”

or
‘the
farm”.

This farm has for some years been referred to as the
“Roc
Farm”

or
“the
Roc Trust Farm”.

The property has not yet been transferred out of the deceased estate
and is accordingly still registered in the name of the deceased.

This property shares a boundary with Mellowwood of which Ashley
Malcolm Cameron-Dow since 2003 has been the Farm Manager.







[15] The deceased
left a last Will and Testament and a codicil thereto (being annexure
“ACD-15” and annexure “ACD-16” respectively.
As the codicil
is in the Afrikaans language a translation thereof for the
convenience of the court is attached as annexure “ACD-17”
made by
a professional translator one Linda Maria Botha.







[16] The following
provisions of the Will are relevant for present purposes:








  1. The deceased
    nominated two persons as executors of his estate. These were
    Jeremiah De La Rouviere
    (“Rens”)
    and Beukes Willemse
    (“Beukes”).



  2. The deceased
    purported to create a trust by the name of the
    Roc
    Fund Trust
    .



  3. The deceased
    bequeathed the property to the
    Roc
    Fund Trust
    .








[17] The deceased
in Clause 6 thereof directed that the farm be let to the 2
nd
Respondent for a period of five (5) years at a nominal rental. The
2
nd
Respondent seems to be of the view that Clause 6 of itself gave him
the right to occupy the farm as a tenant, a contention which
the
Applicant disputes. Prior to March 1999, it is plain that the basis
of the 2
nd
Respondent’s occupation thereafter was governed by a written
agreement of lease dated 29
th
July 1999, between himself and
Rens
as a trustee of the
Roc
Fund Trust
.
(A copy of that lease is attached as annexure “ACD-20”).







[18] The above
stated lease provides,
inter
alia
,
that in terms of the codicil of the deceased the farm
“was
to be leased by G.T. Willemse for a period of five years at the
nominal value”
.
It further records that the 2
nd
Respondent and
Rens
acknowledges and agree that the provisions of paragraph 6 of the
codicil were not clear as to the terms and conditions and that

[accordingly] the parties now agreed [as set out therein].







[19] It provides
that what is let to and hired by the second Respondent is not the
whole farm but a defined portion thereof. The
period of the lease is
three years commencing 1
st
March 1999 and terminating on 28 February 2002. It provides that the
rental consideration payable will be 5% of the gross farming
income
derived from farming operations conducted on the property which
rental consideration was to be payable annually in arrears
not later
than 31
st
March, of each year, being 31 days after the end of every lease year.







[20] It provides
further that any improvements effected by the [second Respondent] on
the property became property of the lessor,
i.e
Roc
Fund Trust
,
which of course, was to become the owner of the property in terms of
the will of the deceased.







[21] In paragraphs
30, 31, 32 and 33 of the Applicant’s Founding Affidavit the tenure
of the second Respondent as a tenant in
the farm is described in
great detail even the income received by the second Respondent from
farming operations (see annexure “ACD
- 21, “ACD - 23. “ACD -
25”).







[22] On or about
22 July 2003 the Applicant, duly represented by one Peter Barry
Forbes (“Barry Forbes”) concluded a written
agreement of lease
after the lease between
Roc
Fund Trust

and second Respondent expired by effuxion of time on 28 February
2002. The said lease with Barry Forbes was for a period of three

years from 1 July 2002 to 1 July 2005. (Annexure ACD - 26). The
said Barry Forbes is now deceased having died on 15th
January 2005. Certain discussions and negotiations between Barry
Forbes on behalf of the Applicant and second Respondent were
reached
which were reduced to writing. The two agreements in writing, both
of which are dated the 29
th
July 2002 (copies of these are attached in the Applicant’s
affidavits as annexure “ACD – 27 and ACD – 28” respectively.

Also attached are the cheques drawn by the Nisela Farms (Pty) Ltd in
payment of the price/compensation due in terms of the said

agreements.







[23] On or about
the 13
th
August 2003 Beukes caused two applications on Notice of Motion to be
launched out of the High Court of Swaziland. These had Case
Numbers
1973/2003 and 1974/2003 respectively. The first of these (that is to
say Case Number 1973/2003) sought an order that
Rens
be removed as executor of the deceased estate. This application was
duly granted on the 6
th
February 2004. However, the order of court also directed Beukes to
resign as executor which he thereafter duly did. Subsequently

thereto, on 9th
June 2004 one Fikile Mthembu was appointed executive
dative
of the deceased estate and Letters of Administration were issued to
her.







[24] The second
application on Notice of Motion launched by Beukes on the 13
th
August 2003, which had a Case Number 1974/2003 sought an order
declaring the purported creation of the
Roc
Trust Fund

to be invalid in law. This application was duly granted by
Annandale
ACJ

on the 6
th
February 2004. The order was thereafter taken on appeal and was
confirmed by the Swaziland Court of Appeal. This judgment is
dated
17
th
March 2005. The Court of Appeal Case Number was 15/2004.







[25] In
consequence of the judgment setting aside the
Roc
Trust

and certain
dicta
in both the judgment of
Annandale
ACJ

and that of the Court of Appeal it became apparent that the purported
agreement of lease of property dated 22
nd
July 2002 between
Rens
and the Applicant represented by Barry Forbes was probably invalid in
law. Accordingly and in order to remedy the situation a
lease was
purportedly concluded between the deceased estate represented by
Fikile Mthembu as
executrix
dative

and the Applicant represented by the said Barry Forbes. (See
annexure ACD - 31).







[26] The Applicant
was in occupation of the property at the time that lease was
concluded and was actively farming it and has remained
in occupation
ever since.







[27] The above is
the essential history of the matter relating to the farm and certain
snippets of other events in this matter will
emerge as I proceed with
the judgment.







The Applicant’s
case.







[28] The first
issue I need to outline before the other issues raised by the
Applicant is the issue of wrongful conduct of the 1
st
Respondent in agreeing to the settlement. In this regard Applicant
avers that the 1
st
Respondent committed a material and most serious breach of his duties
as an executor and of his fiduciary obligations. This submission
is
based on the following propositions and facts:







77.1 Executors
of deceased estates are bound in law to admit all lawful claims
against the estate and to reject all unlawful, spurious
or specious
claims.



77.2 For
any executor to admit an invalid or spurious or deceitful claim
against the estate is unlawful. A fortiori it is unlawful
for an
executor to consent to judgment against the estate in respect of a
claim that is unlawful or invalid or specious or contrived.



77.3 It
is equally unlawful for an executor to admit a claim or consent to a
judgment in an amount that is exaggerated and inflated,
albeit that
there might be some legal validity to some amount.



77.4 It
follows that an executor has a duty – and, it is submitted, an
onerous duty because of the fiduciary relationship –
to scrutinize
any and all claims submitted with the utmost diligence and care, and
to ensure that there is sufficient credible
evidence to substantiate
such claims and their amounts.



77.5 The
failure by an executor to take all reasonable steps to diligently
investigate and verify into the veracity and bona fides
of claims
against a deceased estate when, as here, he could and should have
done so, is culpable.



78.



78.1 In
the light of the facts and reasons I have set out above it is plain
that the second Respondent does not have and never has
had a valid
claim against the deceased estate. Put conversely, it is plain that
the claim advanced and asserted by him in his
particulars of claim is
spurious and without foundation. At the very best for the second
Respondent it is beyond doubt that even
if there should be some
component of a claim that has validity, the amount thereof would be
very, very much less than that consented
to by the first Respondent.







[29] Further
averments are made by the Applicant regarding the above
subject-matter in the subsequent paragraphs from 78.2 to 79.







[30] The Applicant
further addresses the issue of the conduct of the 1
st
Respondent in the administration of the deceased estate and breaches
of his fiduciary duties in paragraphs 80 to 82 of the Founding

Affidavit at pages 60 to 61 of Vol. 1 of the Book of Pleadings. In
paragraphs 83 and 84 the Applicant deals with the inappropriate
use
of Mr. P. Shilubane as his attorney.







[31] Furthermore,
in paragraphs 85 to 87 of the Founding Affidavit the Applicant deals
with the issue of entering upon the administration
of the deceased
estate before having furnished a security bond to the Master. In
paragraphs 88 the Applicant deals with the 1
st
Respondent’s conduct prior and during the
ex
parte

application. In paragraphs 89 to 90.4 of the Founding Affidavit
mention is made of the bringing of the
ex
parte

and so-called Urgent Application by Littler on 7
th
July 2005.







[32] Furthermore
in paragraphs 91 to 92 of the Founding Affidavit mention is made of
attending property before service of order.
In paragraphs 93 to 94.3
averments are made by the Applicant of 1
st
Respondent agreeing to the settlement and the consent order. In
paragraphs 95 to 95.11 averments are made on the conduct calculated

to mislead the Applicant’s South African attorney Jurgens Bekker.
In paragraphs 96 to 110 of the Founding Affidavit allegations
are
made of the writ of execution and attachment of property being
unlawful and also that the Notice of Sale and the condition
of sale
were unlawful.







[33] The last
paragraphs in the Founding Affidavit concerns the issue of the
rescission of judgment and directions as to further
conduct of case
Number 2741/2004 in paragraphs 112 to 116 of the Founding Affidavit.







[34] The above are
the essential averments for the Applicant and when the matter came
for argument Counsel for the Applicant furnished
very thorough Heads
of Argument as he usually does before this court. I am grateful to
Counsel for his high professional standards.
I wish to point out an
issue I might have omitted above in the outline of the Applicant’s
case pertaining to the
locus
standi

as creditor where the court was referred to a number of legal
authorities to the general proposition that a creditor has
locus
standi

to bring an application for the removal of an executor of a deceased
estate. (see
Mthembu
vs Willemse, Court of Appeal Case No. 8/2005
).







[35] Further, he
mentions the issue of
locus
standi

in respect of rescission of the judgment against the deceased estate
by consent in Case No. 2741/2004. In paragraphs 56 to 60.6
Counsel
dealt with the issues of the removal of 1
st
Respondent as executor.







[36] On costs, it
is the Applicant’s contention that 1
st
Respondent’s handling of the affairs of the estate, and his conduct
in concluding a settlement agreement and consent order was
unlawful,
culpable, unreasonable and denied that the Applicant has a direct or
substantial interest in the winding up of the estate
to entitle him
to bring the present application. The Applicant’s only interest
herein is that of a prospective creditor. The
Applicant is yet to
establish the estate’s liability for his claim as well as the
quantum
thereof
in a pending action before this court.







[37] The Applicant
further contends that an heir or creditor would have
locus
standi

to apply for the removal of an executor. What is to follow is based
on the assumption that an heir cessionary would also have
such a
right to apply. The Applicant relies, firstly, on sales and cessions
to it by the heirs of their right, interest and title
in the estate.
Cession is complete when consensus is reached and all formal and
other substantive requirements have been fulfilled.
(see
Jourbert
et al The Law of South Africa Vol.

4 paragraphs
26
and
27.
Cession in writing is not required but
in
casu

the Applicant elected to rely on written Memorandum of Sale and
Cession. In this regard paragraph 6.1 to 7.3 of the Heads of
Argument are referred.







The
Respondent’s case.







[38] In argument
before court Counsel for the first Respondent abandoned the argument
on rescission as stated in paragraph 8 to
12 of the first
Respondent’s Heads of Arguments. The first Respondent further
abandoned his argument in respect of stay of action
and lifting of
bar being prayers 3.1 and 3.2 found in paragraphs 13 to 15 of the
Heads of Arguments.







[39] On the merits
of the case the first Respondent advanced thorough arguments on
various aspects of the case including removal
and substitution of
executor; prayers 1 and 2. This aspect of the matter is addressed in
paragraph 17 to 19 of the first Respondent’s
Heads of Arguments.
In paragraph 19 to 19.1.3 the issue of the use of attorney Shilubane
is addressed. In paragraph 19.2 to 19.2.3
the issue concerning the
entering upon administration before furnishing security bond is
outlined. In paragraph 19.3, 19.4 and
19,5 the issues of the conduct
prior and during
ex
parte

application, the bringing of the urgent
ex
parte

application and attending property before service of order are
respectively addressed in the Heads of Arguments.







[40] In paragraph
19.6 to 19.6.4 the issue concerning the agreement to settlement and
consent order is addressed. Further on in
paragraphs 19.7 to 19.7.2
conduct calculated to mislead Applicant’s South African attorney
Bekker
is outlined. Further on in paragraph 19.8 to 19.9 the issues of the
writ of execution and attachment of property unlawful and
that of
Notice of sale and conditions of sale were unlawful are addressed.







[41] In paragraph
21 to 26 of the Heads of Arguments the issues concerning rescission
in prayer 3.1 and alternative prayer to prayer
3 are addressed. In
this regard the court was referred to the South African case of
Minister
of Local Government and Land Tenure and Another vs Sizwe Development
and others: In re: Sizwe Development vs Flagstaff
Municipality 1991
(1) S.A. 677
(TK
)
quoted with approval in

K.R. Sibanyoni Transport Services CC and Others vs Sheriff, Transvaal
High Court and Another [2005] ZAGPHC 118; 2006 (4) S.A. 429 (T).







[42] In paragraph
27 to 30 of the Heads of Arguments on the issue of Case No. 2741/2004
(consent order sought to be rescinded),
staying action and lifting
bar being prayers 3.1 and 3.2.







[43] On costs 1st
Respondents advanced arguments in the Heads of Arguments in
paragraphs 31 to 37 thereof to the general argument that the
application
stands to be dismissed in its entirety in view of the
scurrilous and founded allegations of fraud and impropriety, and the
fact
that the Applicant would refer to previous court applications
but not attach copies, causing the Respondents the expense and
inconvenience
of copying and attaching same, and the Applicant
insisting on costs
de
bonis propris

on the attorney and client scale including certified costs of
counsel, the Applicant has invited a punitive costs order against
it.







[44] The 1st
Respondent further addressed his arguments on his counter application
in paragraphs 38 to 43 of the Heads of Arguments. In this
respect
the case for the 1
st
Respondent is that the Applicant is in unlawful possession and
occupation of the farm, the said farm which is an asset of the
estate, vests in the 2
nd
Respondent, and that the Applicant has so been in unlawful possession
and occupation since the unlawful spoliation and ejectment
of the 2
nd
Respondent. In this regard the court was referred to the case of
Major’s
Estate vs De Jager 1944 T.P.D. 96

as cited in
Henderson
vs Barlett and Another 1950 (3) S.A. 109 (W)
at
114
where
the following is stated:







There
is no doubt that generally speaking it is not the function of an
executor to purchase or hire property or to enter into fresh

contracts in relation to estate property; at any rate, he acts at his
peril in doing so, unless he has adopted the salutary precaution
of
obtaining the court’s sanction for his proposed action … Though
advisable in such matters to obtain the sanction of the
court in
advance, the executor has the authority to bind the estate in
transactions concerning the estate assets which are not
manifestly
unreasonable and unnecessary for the liquidation, i.e. the reduction
into possession of the estate” and in the Henderson
case it was
further stated that: “As against the general discussion of the
power of executors the right of an executor to make
specific
contracts in regard to estate assets is dealt with in a number of
cases. To grant long leases of estate property has
been held to be
beyond the executor’s power – Amod’s
Executor v Registrar of Deeds (1906, T.S. 90
at
p
.
93); Ex parte Lotzof (1944 OPD 281).
In
Ex parte Kuelz, N.O. (1934, S.W.A. 111),

Van
Den Heever J

says “the duty of the executor is to liquidate the estate and
distribute the assets in accordance with the will of the deceased.

It is no part of his duty to speculate with the assets to the
advantage of the heirs even if the prospects of gain are, humanly

speaking, great”.







[45] The court was
further referred to the judgment of the Supreme Court in
Mthembu
(supra)

(Bundle
CJL1 (Vol. 2)

at page
457:



The
validity of the lease entered into with OKH Farms is, as indicated
above, a matter that will have to be dealt with by the executor

appointed by the court a quo. However, the failure of the Appellant
[Mthembu] to be candid with the court concerning her motive
for
concluding a lease with the parties involved and for the period
reflected therein, is either attributable to poor judgment
at best or
mala fides at worst. On either footing her conduct of negotiating
and concluding the lease without the authorization
of either of the
court or the Master and without consulting the Respondent [second
Respondent in
casu
]
before doing so, is in my view conduct that calls for her removal
from office”.







[46] It is
contended for the 1
st
Respondent that the weight of legal authorities, taken in conjunction
with the remarks of the Supreme Court, justifies the finding
that
Mthembu was not empowered to enter into any lease agreement with the
Applicant or any other person. It is self-evident that
a lease, with
reference to
huur
ggat voor koop

will have an adverse impact on the purchase price of immovable
property, to the prejudice of the estate.







[47] The first
Respondent furthermore filed supplementary Heads of Argument touching
on the terms of settlement agreement and I
shall revert to some of
the arguments as I progress with this judgment.







[48] The second
Respondent represented by the learned
Advocate
Eberhson

also filed before this court very useful Heads of Arguments. I shall
proceed to sketch the case for the second Respondent on the
arguments
by Counsel.







[49] These points
are firstly that the Applicant has no
locus
standi

to bring this application. The arguments in respect of this point
are reflected in paragraph 4.1 to 4.6 of the second Respondent’s

Heads of Arguments. Further on at paragraph 4.6 the second
Respondent contends that heirs and ab
interstatio

heirs in any case have no
locus
standi

to interfere in the administration of an estate and to bring actions
pertaining to the administration of an estate as that is the
sole
function of the executor of the estate. In this respect the court
was referred to the South African case of
Asmal
vs Asmal 1991 (4) S.A. 262 (NPD).







[50] The second
point
in
limine

is that the Applicant, in any event, has no
locus
standi

to, and cannot at law, apply for the rescission of the final judgment
which was granted by agreement between the 1
st
and 2
nd
Respondents. In this regard the court was referred to
Erasmus,
Superior Court Practice B1 – 306/308
.







[51] The third
point
in
limine

is that the deponent to the Applicant’s Founding affidavit, one
Cameron-Dow, has no knowledge of the full facts, and on his own

admission, is no expert in any field and he thus was not a competent
deponent to the Founding affidavit. In support of this argument
the
court was referred to the case of Coopers
(SA) Ltd vs Deutsche Shadlingebekampfung MBh 1976 (3) S.A. 352 (A).








[52] The fourth
point
in
limine

is that the Applicant does not have
locus
standi

to ask for the relief set out in prayers 3 and 4 namely to apply on
behalf of the executor of their choice for relief in Case No.

2741/2004, even for the upliftment of a Notice of Bar properly
served.







[53] On the
removal of the first Respondent as executor the second Respondent
contends that he has no interest in this. On the
issue of setting
aside of the court judgment the second Respondent contends that the
Applicant made out no
locus
standi

to attack the consent judgment and also made out no case why it
should not be set aside.







[54] On the
counter-claim application by first Respondent the second Respondent
states that he has no interest in this.







[55] In the
supplementary Heads the second Respondent addressed an argument
around paragraph 6 of the codicil that it was queried
in argument
under what right the second Respondent occupied the farm.







[56] On costs the
second Respondent argued that the Applicant should thus not be
awarded any costs of this application against the
second Respondent.







[57] The second
Respondent has given a useful summary at paragraph 9 of page 14 of
his Heads of Argument that
“there
are in effect two main goals of the application,, on paper, tries to
achieve with this application, namely firstly, the
removal of the
first Respondent as executor and to have an executor of its choice
appointed, secondly, to have the consent judgment
set aside”.

I must further add that before the court addresses the merits of the
matter to have to address the points
in
limine

raised by the Respondents.







[58] In summary
therefore the Respondents have raised the following points
in
limine

and I must say that some of these topics have been raised by each
Respondents but common to both as follows:








  1. Applicant has no
    locus
    standi

    to remove an executor;



  2. Applicant has no
    locus
    standi

    to apply on behalf of the executor their choice for relief in Case
    No. 2741/2004.



  3. Disputes of fact



  4. Inadmissible
    hearsay.








[59] I shall
address points (a) and (b) together as they relate to the same
subject-matter as follows:








  1. Locus
    standi

    to remove the executor: prayer 1








[60] The
Respondents contended under this head that an heir or creditor would
have
locus
standi

to apply for the removal of an executor. What is to follow is based
on the assumption (for argument’s sake) that an heir’s
cessionary
would also have such a right to apply. The Applicant relies,
firstly, on sales and cessions to it by the heirs of all
their right,
interest and title in the estate. Cession is complete when consensus
is reached and all formal and other substantive
requirements have
been fulfilled. In this regard the court was referred to
Jourbert,
et al The Law of South Africa Vol. 4

paragraphs
26
and
27.







[61] Cession in
writing is not required but
in
casu

the Applicant elected to rely on written memorandum of agreement of
sale and cession (being annexures ACD5 to ACD9 at page 95 of
the Book
of Pleadings).







[62] The Applicant
on the other hand has taken the position that the cessionary of the
rights of an heir does have
locus
standi

to bring an application for the removal of an executor. For this
proposition the court was referred to the South African case
of
Segal
vs Segal 1977 (3) S.A. 247 (c).

The Applicant has taken cession of the rights, title and interest of
the interstate heirs. That on of the interstate heirs and
cedents,
Johannes Hendrik van der Walt, has an affidavit setting out the
family relations.







[63] Having
considered the arguments of the parties regarding this aspect of the
matter I am inclined to agree with the Respondents’
arguments that
the Applicant has failed to establish
locus
standi

on the basis of purported cession. I say so because firstly, the
agreement of cession relied upon was not duly stamped in terms
of
Section 9 (e) of the Stamp Duties Act No. 37 of 1976 and as such, in
terms of Section 13 of the said Act, are inadmissible and
irrelevant.







[64] Secondly,
consensus on the part of both cedent and cessionary are required.







[65] The deponent
to the Founding affidavit is neither a director, officer or employee
of the Applicant, but is working as a Farm
Manager for Nisela Farms,
a related company to the Applicant at Shiselweni, Swaziland.
Notably, neither this deponent not the
Applicant’s attorney Bekker
who signed as a witness, disclosed to the court who purportedly
signed the sale and cession agreements
on behalf of the Applicant as
cessionary in Bedfordview, South Africa (the memoranda were signed by
the cedents in Randburg, Jeffrey’s
Bay, Nelspruit and Pretoria).







[66] It appears
that this spectral signature (the signature is illegible) whose
identity remains a secret, is the only person who
can confirm that
the sale and cession was signed or agreed to on behalf of the
Applicant. In this regard I agree with the Respondents
argument that
it then follows, even if the agreements had been properly before
court, that there is no reliable evidence of consensus
on the part of
the Applicant. Any allegation in this respect by the deponent to the
Founding Affidavit, or deponents to confirmatory
affidavits would
constitute inadmissible hearsay and therefore irrelevant evidence.







[67] Thirdly, the
cessions are conditional upon payment. There is no allegation, in
the Founding Affidavit or the supporting affidavit
(of the only
cedent who made an affidavit) (see annexure “ACD10” pages 120 –
125 of the Book of Pleadings) that this condition
has been fulfilled.







[68] The averments
by the deponent, who does not and cannot have any personal knowledge
of the cessions, consensus on the part of
the cessionary, and/or the
fulfillment or non fulfillment of the conditions of payment, and who
discloses no source for his allegations
that the Applicant entered
into these agreements, therefore constitutes hearsay evidence and as
such the purported cessions are
irrelevant.







[69] In the
premises, the Applicant has failed to establish
locus
standi

on the basis of the purported cession. Further, it would appear to
me that the Respondent is correct that the deponent further
relied on
an allegation that the Applicant is a creditor of the estate. This
too cannot be sustained because the Applicant never
filed a claim
against the estate, as is required by Section 42 of the Estate Act
No. 28 of 1902, nor has it quantified its alleged
damages (in so far
as it may be permitted to sue the estate for damages resulting from
its unlawful occupation of the farm). The
Applicant, at the time
when it instituted the proceedings, therefore had no
locus
standi
.







[70] I must
mention at this stage that Respondent in argument abandoned their
argument that Applicant is seeking rescission of the
order which
issued pursuant to the settlement agreement between the 1
st
and 2
nd
Respondents, in essence averring that the agreement giving rise to
the judgment is open to attack. The argument in this regard
was that
only an executive can litigate on behalf of an estate, i.e. institute
or defend/oppose proceedings on behalf of an estate
(see Section 22
of the Administration of Estates Act No. 28 of 1902) an heir cannot
institute proceedings on behalf of an estate
unless he has letters of
administration granted to him. (see
Asmal
vs Asmal and Others 1991 (4) S.A. 262 (N
).







[71] I wish to
further record that the argument on stay of action and lifting of bar
in prayer 3.1 and3.2 was also abandoned by
the Respondents.








  1. Locus
    standi

    in respect of rescission of the judgment against the deceased estate
    by consent in Case No. 2741/2004.








[73] The second
point
in
limine

is that the Applicant, has no
locus
standi
to,
and cannot in law, apply for the rescission of the final judgment
which was granted by agreement between the 1
st
and 2
nd
Respondents. In this regard the Respondents have cited what is
stated by the learned author
Erasmus,
Superior Court Practice page B1 – 306/308

that as the Applicant was not a party to the matter and in any case
is not the executor of the estate and the Applicant cannot
interfere
in the administration of the estate.







[74] It is
contended by the Respondents further that the Applicant in any case
did not state the precise grounds which it is relying
upon, but
merely burdened the papers with many annexures and made vague
allegations that it is entitled to apply for the rescission
of the
judgment. When the Applicant’s attorney Bekker was challenged he
went “overseas” and did not revert back to the first
Respondent.
The Respondents contend that according to
Erasmus
(supra)

where the author deals with Rule 42, the Applicant should have with
regard to its allegation of fraud alleged and proved:










      1. that the
        evidence was in fact incorrect






5.3.3that it was
made fraudulently and with an intent to mislead; and



5.3.4 that
diverged to such an extent from the truth that the court would, if
the true facts had been placed before it, have given
judgment other
than which it was induced by the incorrect evidence to give. (see
Rowe
vs Rowe [1997] ZASCA 54; 1997 (4) S.A. 160 (SCA)
at
1661).








[75] The second
point
in
limine

is that the Applicant, in any event has no
locus
standi

to and cannot, at law, apply for rescission of the final judgment
which is granted by agreement between the first and second
Respondents.
The proposition in this regard is that as the Applicant
was not a party to that matter and in any case is not the executor of
the estate and the Applicant cannot interfere with the administration
of the estate. In this regard the court was referred to the
legal
authority of
Erasmus,
(supra)
at
page
B1
– 306/308.







[76] The Applicant
on the other hand contends that it has
locus
standi

to bring an application to rescind the consent order (prayer 3 in the
Notice of Motion).







[77] According to
the Applicant the law recognizes court proceedings involving deceased
estates to be of two kinds. A distinction
between actions brought on
behalf of an estate, on the other hand, and actions brought by
beneficiaries or heirs in their own right
against the executor for
example maladministration. The former known as “representative
actions” and the latter as “direct
actions”.







[78] An example of
a direct action would be a claim by a beneficiary for transfer to him
of what is due to him from the estate.
The general rule is that the
proper person to act in legal proceedings on behalf of the estate is
the executor and only the executor.
There is, however, an exception
to this general rule which allows a beneficiary to bring
representative proceedings on behalf
of a deceased estate. This is
the so-called
Benningfield
exception

which was recognized in South African law by the Appellate Division
in the
Gross
case. This exception takes its name from the decision of the Privy
Council which came before it on appeal from the Supreme Court
of
Natal. (see
Benningfield
vs Baxter (1886) 12 AC 167 PC
).







[79] The Applicant
contends that the circumstances giving rise to the need and validity
for such an exception to be recognized and
for a beneficiary to be
accorded
locus
standi

was the impossibility of a diliquent executor suing himself.







[80] The Applicant
further contends in this regard that accepting that the application
for rescission of the consent judgment could
not be brought by a
beneficiary as a “direct action”, and constitutes a
“representative action”, it is submitted that the
Benninfield
exception

applies, and that under that exception the Applicant standing as it
does in the shoes of estate heirs has
locus
standi
.







[81] After
weighing the arguments of the parties it would appear to me that the
arguments of the Respondents are correct that the
Applicant in any
case did not state the precise grounds which it is relying upon, but
merely burdened the papers with many annexures
and made vague
allegations that it is entitled to apply for rescission of the
judgment.







[82] I agree with
the Respondents when they cite
Erasmus
(supra)
,
where the author deals with Rule 42, the Applicant should have with
regard to its allegation of fraud alleged and proved:








  1. That the 2nd
    Respondent being the successful litigant was a party to the (see
    Groenewald
    vs Gracia (Edms) Bpk 1985 (3) S.A. 968 (T)

    at
    971);



  2. That the evidence
    was in fact incorrect;



  3. That it was made
    fraudulently and with intent to mislead; and



  4. That it diverged
    to such an extent from the truth that the court would, if the true
    facts had been placed before it, has given
    a judgment other than
    that which it was induced by the incorrect evidence to give. (see
    Rowe
    vs Rowe [1997] ZASCA 54; 1997 (4) S.A. 160 (SCA) at 161
    ).








[83] In the
instant case the Applicant neither made the said allegations nor
proved them. The 1
st
and 2
nd
Respondents completely rebutted the allegations of fraud and
impropriety against them in their Answering Affidavits and annexures

thereto. For these reasons I find that the principles of law
enuaciated in the Benningfield
case (supra)

do not apply to the facts of this case. Therefore the point of law
in
limine

by the Respondents in this regard succeeds.







(c) The
disputes of fact.







[84] The third
point
in
limine

is that there is at least a vast disputes of fact which the Applicant
must and clearly did foresee but merely blundered on incurring
a
large amount of costs. The Applicant with an alterior motive
launched these proceedings namely to drag out the case as long
as
possible so as to remain in occupation of the farm as long as
possible.







[85] The Applicant
on the other hand contended that there are no disputes of facts in
this matter the court can grant an application
on the papers.







[86] Having
weighed the pros and cons of the arguments of the parties I have come
to the considered view that in this regard the
Respondents are
correct in their contentious that
in
casu

there are disputes of facts which should have been foreseen by the
Applicants. I say so because on his own admission Cameron-Dow
does
not have personal knowledge of the facts deposed to in the Founding
Affidavit and his affidavit consists of inadmissible hearsay
matter,
irrelevant and argumentative speculation. Therefore the points
in
limine

also succeed.







[87] Further on
the totality of the arguments I find that the Applicant does not have
locus
standi

to ask for the relief set out in prayer 3 and 4 namely to apply on
behalf of the executor of their choice for relief in Case Number

2741/2004, even for the upliftment of a Notice of Bar properly
served. No valid allegations as to what may be the basis for asking

for upliftment of the Notice of Bar are made. Therefore the point of
law in
limine

in this regard is sustained.







(d) The
affidavit of Cameron-Dow







[88] The last
point
in
limine

is that the deponent to the Applicant’s Founding Affidavit, one
Cameron-Dow, has no knowledge of the full facts, and, on his
own
admission, is no expert in any field and he thus was not a competent
deponent to the Founding Affidavit. In this regard the
court was
referred to the dictum by
Wessels
JA

in
Coopers
(SA) Ltd vs Deutsche Shadlingebekampfung MBH 1976 (3) S.A. 352 (A)

wherein it stated:







As
I see it, an expert’s opinion represents his reasoned conclusion
based on certain facts or data, which are either common cause,
or
established by his own evidence or that of some other competent
witness except possibly where it is controverted; an expert’s
bald
statement of his opinion is not of any real assistance proper
evaluation of the opinion can only be undertaken if the process
of
reasoning which led to the conclusion, including the premises from
which the reasoning proceeds, are disclosed by the expert”.







[89] On my
assessment of the said affidavit of Cameron-Dow I have come to the
considered view that his comments about the documents
is not
admissible and did not entitle him to intersperse his comments with
argumentative and irrelevant matter (see per 6 of the
1
st
Respondent’s Answering Affidavit at page 275).







[90] Van
Winsen, Cillier’s Loots, The Civil Practice of the Superior Courts
of South Africa, 4
th
Edition
at
page

624
refer
to the following two essential requirements a deponent must comply
with in order to be regarded as an expert:









    1. The evidence
      must be in the nature of an opinion, and;



    2. It must be given
      by a person who is an expert (quoting
      Uni-erections
      vs Continental Engineering Co. Ltd 1981 (1) S.A. 240 (W)
      at
      250
      E – F

      as authority.









[91] The learned
authors also refer to other requirements at pages 369/371 of the same
text.







[92] For these
reasons I find that this point
in
limine

is sustained. I now have to address the first Respondent’s counter
application. I must mention that the second Respondent has
no
interest in this aspect of the matter as it only concerns the first
Respondent.







[93] The first
Respondent states at para 81.2 of his Answering Affidavit in support
of the counter application that the following
facts are common cause:







81.2.1 It is clear
that the (first) lease agreement annexure ACD 26 (pages 181-184) is
invalid and the Applicant is not entitled
to occupation of the farm
of the estate in terms thereof;



81.2.2 The
(second) lease in terms whereof the Applicant is presently purporting
to occupy the farm of the deceased having been
entered into
invalidity by the previous executrix of the estate namely one Ms
Mthembu and the Applicant, and is not valid and not
binding upon the
estate of the deceased.







[94] Therefore
this court should issue a declaration to that effect and order the
Applicant to vacate the farm within 14 days of
the order, with costs
and that the costs of Counsel be certified in terms of Rule 68 (2).







[95] Having
considered the arguments of the parties in the whole matter I have
come to the view that the points of law
in
limine

raised by the Respondent succeed and the application is dismissed
with costs including costs of Counsel under Rule 68 (2). Furthermore

that prayers 1, 2, and 3 of the first Respondent’s counter
application are granted forthwith.











S.B.
MAPHALALA



PRINCIPAL JUDGE