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Palvie and Others v Master of High Court and Others (22380/2009) [2010] ZAWCHC 399 (12 May 2010)

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IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NUMBER: 22380/2009

DATE: 12 MAY 2010

In the matter between:

MS W A PALVIE …..................................................................................1^st Applicant

MS E W SNYMAN ….............................................................................2^nd Applicant

MS L M SNYMAN …..............................................................................3^rd Applicant

MR G J H PALVIE …..............................................................................4^th Applicant

and

MASTER OF THE HIGH COURT …..................................................1^st Respondent

REGISTRAR OF COMPANIES ….....................................................2^nd Respondent

MR S A D DU TOIT N.O.

(EXECUTOR OF THE ESTATE OF

LATE G J ENGELBRECHT) …..........................................................3^rd Respondent

MR C A WHITE …........................................................................4^th Respondent

CENTRAL BRIDE TRADING 63 CC …...............................................5^th Respondent

DISTINCLE CHOICE 1432 CC …..................................................6^th Respondent

JUDGMENT

I do not intend to give full reasons for my order and will do so, if requested, in terms of the rules. I will give a short ex tempore ruling in order not to delay this matter.

The case involves a dispute about the distribution of a deceased estate. The third respondent, being the executor, was duly appointed and had to deal with the matter in terms of the law. The applicants are all beneficiaries of the estate. The fourth respondent was the life partner of the deceased and inherited some of the assets.

The main claim of the applicants in the estate was that the valuations were not done properly. Secondly, that the executor did not perform his functions as he should have, which would include managing the businesses that were left and ultimately the distribution of the estate.

This matter has a long history of lots of litigation since 2006 between applicants and more particularly the executor. The Executor drove this matter to finality. The applicants were dissatisfied and, again more particularly, to the issues that I have raised before. He made a ruling, they objected within time. He then rejected the objection. Between the Master and the executor, they became functus officio.

What the applicants could do, in terms of the law, was to bring an application to court to set that ruling aside and for the Court to give directions as to what should happen. It seems, after thorough reading of the notice of motion, that this review is hidden somewhere in the relief sought. That is not my concern for now.

This matter was brought on an extremely urgent basis, not complying with the court rules. Therefore, the applicants were enjoined to make out a case as to why the Court should allow the non-compliance of the rules. To put it bluntly, they have not even made out a case to comply with the rule for noncompliance itself. Not only had they shortened timeframes, but they simply failed to set out why they did not comply.

There were correspondence between these parties, papers got served late on the Friday afternoon for the respondents, which include a corporation to appear on the next Friday after close of business. It is conceded that they would most probably have received the papers only on the Monday. The fifth respondent only receives the papers on the Tuesday to be in court on a Friday, asking for urgent relief. Knowing the facts, the applicants still had gone and cited the wrong respondents in the case of the third respondent.

It didn't stop there. The Court made an order on the first appearance. They simply ignored that order as well complying with timeframes and complying with the rules. It becomes even worse. Representatives of the applicants go and misrepresent the order of the Court to individuals, including the accountants of respondents and so on, behind the backs of those attorneys. I am of the view that, in itself, would be sufficient to dismiss the application, as the applicants cannot stand before me with clean hands under these circumstances.

It did not end there. Affidavits are filed up to 73 days late with, to say the least of it, flimsy excuses. This noncompliance with the practice notes, which include the heads of argument is apparent. This case is simply so badly prepared.

The applicants have failed to comply with the court rules, and deliberately so, as pointed out to counsel in argument, that this Court will not condone that. I will, therefore, dismiss the application on the basis of the non-compliance with the rules, and I am not dealing with the merits at this stage. The applicants are to pay all the wasted costs of Absa Trust, who was the original third respondent and of the other respondents on an attorney-and-client scale.

That is the order of the Court.

NC ERASMUS, J