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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

CASE NO: 47784/2021

 

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED:

DATE: 15^th October 2021

 

In the matter between:

 

RUELE, PALESA VANESSA                                                             Applicant

 

and

 

RUELE, AUDREY N O,

In her official capacity as duly appointed

Executrix in the Deceased Estate Late:

RUELE, MORGAN BENJAMIN                                                          First Respondent

THE MASTER OF THE HIGH COURT, JOHANNESBURG               Second Respondent

RUELE, AUDREY                                                                                Third Respondent

 

Coram:          Adams J

Heard:            12 October 2021 – The ‘virtual hearing’ of the urgent application was conducted as a videoconference on the Microsoft Teams.

Delivered:     15 October 2021 – This judgment was handed down electronically by circulation to the parties' representatives by email, by being uploaded to CaseLines and by release to SAFLII. The date and time for hand-down is deemed to be 14h30 on 15 October 2021.

Summary:     Opposed urgent application – executrix in deceased estate ─ removal from office on grounds of misconduct ─ power of the high court to remove executrix – S 54(1)(a) of the Administration of Estates Act 66 of 1965 – if Court is satisfied that it is undesirable that she should act as executor of the estate concerned of – applicants’ application granted –

 

ORDER

 

(1)          The first respondent is hereby removed as the Executrix of the Deceased Estate of the Late: Morgan Benjamin Ruele, Master’s Reference Number: 029030/2019.

(2)          The first respondent is directed to return to the second respondent the original Letters of Executorship with Master’s Reference Number: 029030/2019 issued in her favour, within five days of service of this Court Order upon the first respondent.

(3)          The first respondent is declared to be unfit to act as the executrix of the Deceased Estate of the Late: Morgan Benjamin Ruele, Master’s Reference Number: 029030/2019.

(4)          The first respondent forfeits any entitlement to the executrix remuneration.

(5)          The second respondent is directed to appoint Attorney Mpho Gift Magome of M Magome Incorporated as the executor of the Deceased Estate of the Late: Morgan Benjamin Ruele, Master’s Reference Number: 029030/2019, subject to Mr Magome furnishing security as contemplated in Section 23 of the Administration of Estates Act 66 of 1965,

(6)          The costs of this application shall be paid as part of the administrative costs of the aforementioned deceased estate.

 

JUDGMENT

 

Adams J:

[1].         This urgent application concerns the removal of the first respondent, Audrey Ruele (‘Audrey’), the wife of the deceased, at the instance of the applicant (‘Palesa’), who is the daughter of the deceased. Audrey is cited in this application both in her personal capacity (as third respondent) and in her official capacity (first respondent) as the executrix in the deceased estate of the late Morgan Benjamin Ruele (‘the deceased’), who passed away on 27 November 2019. Palesa and Audrey are the only heirs in the deceased estate. On 13 December 2019 Letters of Executorship were issued by the Master of this Court in terms of which Audrey was appointed as the Executrix in the deceased estate on the basis that she is the surviving spouse of the deceased.

[2].         At the time of the death of the deceased, Audrey had been separated from him for an extended period of time and she and the deceased were in the midst of divorce proceedings. The deceased estate is constituted mainly by the deceased’s membership in a Close Corporation, which was the owner of immovable property situate in Bedfordview.

[3].         The applicant contends that the first respondent should, as a matter of urgency, be removed as the executrix, because, as a result of her neglecting her duties as executrix, the property of the estate is in the process of being sold in execution by the bondholder. The sale in execution was in fact scheduled for 13 October 2021, but thankfully that crisis was averted by the intervention of the applicant. Furthermore, so the applicant alleges, the first respondent has misappropriated monies due to the estate ostensibly on the basis of her entitlement to receive spousal maintenance from the deceased estate.

[4].         It is the case of the applicant that the first respondent is administering the deceased's estate in a reckless manner and continues to misappropriate monies due to the estate. There are also large sums of monies due to the estate from Alexander Forbes, which needs to recouped as soon as possible. However, this should not be done whilst Audrey is the executrix, so the applicant argues, because there is a real possibility that the monies would also be misappropriated.

[5].         To add insult the injury, so the applicant avers, the first respondent is endeavouring to sell the immovable property – to a family member no less – for an amount way less than the market value of same. This is a clear indication, so the applicant submits, that the first respondent has no regard for her fiduciary duty and has no hesitation to act to the detriment of the estate.

[6].         For all of these reasons, the applicant contends that the application is urgent. I find myself in agreement with this submission.

[7].         The applicant’s application for the removal of the first respondent as executrix is premised on the fact that, since being issued with the Letters of Executorship on 13 December 2019, the first respondent has failed dismally to perform her duties and obligations. So, for example, she has failed to publish or cause to be published the notice as contemplated in Section 29 the Administration of Estates Act, Act 66 of 1965 (‘the Act’). Furthermore, to date hereof she has not submitted to the office of the Master a Liquidation & Distribution Account, nor has she interacted with the applicant as an heir in the estate. If the trust truth be told, so the applicant contends, nothing has been done by the applicant since being appointed to progress the finalisation of the estate,

[8].         Moreover, so the applicant alleges, the first respondent is dealing with the deceased estate as if she is the sole beneficiary of the estate and without regard to the applicant and the creditors. She has acted recklessly and to the prejudice of the estate in more ways than one. Importantly, the first respondent put the immovable property in the estate at risk by not servicing the bond, which resulted in the bank foreclosing on the property. This, she did, despite the fact that she received monies on behalf of the estate, which she could and should have used to ensure that the property is preserved.

[9].         The first respondent’s riposte to these allegations and accusations by the applicant is to the effect that she was relying on the attorney, whom she appointed to assist her in the administration of the estate. The said attorney, so the first respondent alleges, let her down and did not act on her mandate and failed to execute her instructions. The said attorney denies this claim by the first respondent. I do not accept the first respondent’s attempt at justifying her neglect. It rings hollow.

[10].      Section 54(1)(a) of the Act provides as follows:

'Removal from office of executor

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

(a).     by the Court -

(i).… … …

(ii). if he has at any time been a party to an agreement or arrangement whereby he has undertaken that he will, in his capacity as executor, grant or endeavour to grant to, or obtain or endeavour to obtain for any heir, debtor or creditor of the estate, any benefit to which he is not entitled; or

(iii).if he has by means of any misrepresentation or any reward or offer of any reward, whether direct or indirect, induced or attempted to induce any person to vote for his recommendation to the Master as executor or to effect or to assist in effecting such recommendation; or

(iv).if he has accepted or expressed his willingness to accept from any person any benefit whatsoever in consideration of such person being engaged to perform. any work on behalf of the estate; or

(v). if for any other reason the Court is satisfied that it is undesirable that he should act as executor of the estate concerned; and …’

[11].      A review of the authorities, as was done by the court in Reichman v Reichman & Others[1], shows that the court may exercise this power where there is a conflict of interest between the executor in his capacity as executor and the executor in his personal capacity, such as where he is a beneficiary in the estate and there is a dispute between the executor and other beneficiaries concerning their entitlement to benefit from the estate.

[12].      The grounds on which the applicant contends the first respondent ought to be removed as executrix are alluded to above. I am satisfied that on the basis of those grounds 'it is undesirable that (the first respondent) should act as the executrix in the estate concerned', By all accounts, the first respondent has not acted in the interest of the estate.

[13].      Positive misconduct on the part of the first respondent has been demonstrated by the applicant. I therefore do not have any difficulty in interposing to remove the first respondent, who has abused her trust. Her acts, in my firm view, endangered the trust property and shows a want of honesty or a want of proper capacity to execute the duties or a want of reasonable fidelity. This is aptly demonstrated by the fact the immovable property was almost lost to the estate as a result of the negligent conduct on the part of the first respondent.

[14].      In the exercise of the Court’s discretion to remove an executor, its main guide must be the welfare of the heirs and the estate.

[15].      In the circumstances and applying the applicable principles to the present case, I am satisfied that it is undesirable that the first respondent should continue to act as executor of the estate concerned. In my view, it has been demonstrated by the applicant that the first respondent did not act in the best interest of the estate and its assets, but to the detriment of the heirs.

[16].      In the circumstances the application should succeed.

[17].      As far as costs go, I believe, because this was a dispute between the heirs in the estate, that the appropriate order should be that the deceased estate should pay the costs.

Order

[18].      Accordingly, I make the following order: -

(1)          The first respondent is hereby removed as the Executrix of the Deceased Estate of the Late: Morgan Benjamin Ruele, Master’s Reference Number: 029030/2019.

(2)          The first respondent is directed to return to the second respondent the original Letters of Executorship with Master’s Reference Number: 029030/2019 issued in her favour, within five days of service of this Court Order upon the first respondent.

(3)          The first respondent is declared to be unfit to act as the executrix of the Deceased Estate of the Late: Morgan Benjamin Ruele, Master’s Reference Number: 029030/2019.

(4)          The first respondent forfeits any entitlement to the executrix remuneration.

(5)          The second respondent is directed to appoint Attorney Mpho Gift Magome of M Magome Incorporated as the executor of the Deceased Estate of the Late: Morgan Benjamin Ruele, Master’s Reference Number: 029030/2019, subject to Mr Magome furnishing security as contemplated in Section 23 of the Administration of Estates Act 66 of 1965,

(6)          The costs of this application shall be paid as administrative costs of the aforementioned deceased estate.

 

 

L R ADAMS

Judge of the High Court

Gauteng Local Division, Johannesburg

 

HEARD ON:                                                       12^th October 2021 – in a ‘virtual hearing’ during a videoconference on Microsoft Teams

JUDGMENT DATE:                                           14^th October 2021 – judgment handed down electronically

FOR THE APPLICANT:                                       Advocate L M Mataboge

INSTRUCTED BY:                                               Mamathuntsha Attorneys, Johannesburg

FOR THE FIRST AND THIRD

RESPONDENTS:                                                 In person

INSTRUCTED BY:                                               In Person

FOR THE SECOND RESPONDENT:                No appearance

INSTRUCTED BY:                                               No appearance

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