LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C OF A (CIV) NO 03/2024
CIV/APN/0374/2023
In the matter between:
THE EXECUTOR ESTATE LATE ROBERT MOHAPI FIRST APPELLANT
AND
TEBOHO MOHAPI FIRST RESPONDENT
NEDBANK LESOTHO LIMITED SECOND RESPONDENT
THE MASTER OF THE HIGH COURT THIRD RESPONDENT
ATTORNEY GENERAL FOURTH RESPONDENT
CORAM: MOSITO P
SAKOANE CJ
HEARD: 08 OCTOBER 2024
DELIVERED: 1 NOVEMBER 2024
SUMMARY
Administration of Estates – Removal of Executor – Appointment of Curator Bonis – Judicial oversight – Procedural fairness – Uncontroverted evidence – Unlawful administrative actions- The appeal was upheld, and costs were awarded to the appellant.
JUDGMENT
MOSITO P
Introduction
[1] The present appeal concerns the lawfulness of removing the appellant, Advocate S.K. Ramochela, as executor of the estate of the late Robert Mohapi. In its decision, the High Court (Hlaele J) upheld the Master of the High Court’s removal of the appellant based on alleged failures to file a liquidation and distribution account and unauthorised transactions within the estate. The appellant now challenges that decision on several grounds, chief among them being that the High Court failed to properly apply the law, that the removal was procedurally flawed, and that the court improperly relied on a report by the Master without allowing the appellant an opportunity to contest its contents.
[2] Sitting as the ultimate arbiter, this Court must scrutinise the factual underpinnings and legal principles at play. The removal of an executor, who holds a fiduciary position of trust, is a serious and consequential act requiring strict compliance with both substantive and procedural law. The powers vested in the Master of the High Court are significant, but they are not without boundaries, and such actions must be exercised in accordance with the law, respecting the rights of all parties involved. As such, this court is compelled to critically assess whether the Master acted lawfully and whether the High Court’s decision can be sustained.
Background
[3] The late Robert Mohapi passed away, leaving an estate requiring administration. The appellant was appointed as executor but failed to file the necessary liquidation and distribution account within the six-month statutory period. As a result, the 3rd respondent exercised her statutory powers to remove the appellant from his position and appointed the 1st respondent as curator bonis to administer the estate. The appellant challenged this decision before the High Court, which dismissed the application, leading to this appeal.
[4] The High Court’s decision was largely based on a report submitted by the Master of the High Court under Rule 8(19) of the High Court Rules 1981, which highlighted the appellant’s failure to perform his duties, including unauthorised withdrawals from the estate account and failure to account for the administration of the estate.
The facts
[5] Advocate S.K. Ramochela, the appellant, was appointed executor of the estate of the late Robert Mohapi. However, the Master of the High Court (3rd respondent) removed him for failing to file the liquidation and distribution account within the statutory six-month period, a legal requirement under the Administration of Estates Proclamation 1935.
[6] The Master’s report, filed under Rule 8(19) of the High Court Rules 1981, was central to the High Court’s decision to dismiss the appellant's application challenging his removal. This report was submitted to the High Court but was not formally served on the appellant prior to the hearing, raising issues of procedural fairness.
[7] The appellant argued that he was not given prior notice of the intention to remove him as executor and was denied an opportunity to be heard regarding his removal. He further contended that the removal was done without a court order and that the High Court disregarded his uncontroverted evidence in the founding affidavit.
[8] The High Court dismissed the appellant’s application primarily based on the Master’s report, finding that the appellant had failed to discharge his duties as executor and that the Master had acted within her statutory powers to remove him.
Issues on Appeal
[9] The first issue is whether the High Court erred in accepting and considering the report of the Master of the High Court, which was allegedly not served on the appellant. Second, whether the High Court failed to review the lawfulness of the Master’s actions in removing the appellant. Forth, whether the High Court disregarded the appellant’s uncontroverted evidence that he was not notified of his removal as executor and was not given an opportunity to be heard. Third, whether the High Court erred in dismissing the application based on the Master’s report without interrogating its legality.
The law
[10] An executor is legally vested with the administration of the estate. This means that the deceased estate's assets, liabilities, rights, obligations, and powers vest in the Executor, and he alone can deal with them. The job of an executor cannot equate to that of an agent, as he has no principal to give him instructions. An Executor is not free to deal with the assets of an estate in any manner he pleases. His position is fiduciary; therefore, he must act legally and in good faith. The executor must file a liquidation and distribution account within six months of the appointment, as required under section 31(1) of the Administration of Estates Proclamation 1935. Failure to do so constitutes a breach of fiduciary duty and may lead to the removal of the executor.
[11] The Master of the High Court has statutory powers under the Administration of Estates Proclamation 1935 to oversee the administration of estates, including the appointment and removal of executors. Section 38(1)(a) empowers the Master to revoke letters of administration if the executor fails to perform their duties satisfactorily, including failure to file required accounts or protect the estate from abuse.
[12] Rule 8(19) of the High Court Rules 1980 requires that any application involving a deceased estate must be served on the Master of the High Court for consideration and report. The report from the Master assists the court in determining the administration of the estate. Although not sworn evidence, the Master's report is given significant weight by the court as it reflects the estate's status and the executor's actions.
[13] The removal of an executor must comply with the principles of natural justice. This includes giving the executor prior notice of any intended removal and an opportunity to be heard. A failure to provide notice or a hearing may render the removal procedurally unfair, as highlighted in the case law cited in the judgment.
[14] While the Master’s report is critical to the court's understanding of the estate’s status, the report is not conclusive and must be scrutinised. The court must ensure that the report is not relied upon to exclude other evidence, particularly where there are contested issues about the executor’s conduct.
[15] These legal principles guide the determination of whether the appellant’s removal as executor was lawful and whether the High Court properly considered the procedural and substantive issues involved in the case.
Consideration of the appeal
[16] This appeal calls upon us to examine the lawfulness of the appellant's removal as executor of the late Robert Mohapi's estate by the Master of the High Court. Advocate S.K. Ramochela, the appellant, was removed for failing to file the liquidation and distribution account within the prescribed six-month period, as required under section 31(1) of the Administration of Estates Proclamation 1935. The appellant challenges the High Court's decision to dismiss his application without properly scrutinising the procedural fairness surrounding his removal and the Master’s report, which was central to that decision but was not properly served on him. The essence of this appeal lies in whether the High Court erred in its reliance on the Master's report and in dismissing the appellant’s uncontroverted evidence without adequate judicial review of the legality of the Master’s actions.
[17] The principles of natural justice are foundational to our legal system. The right to be heard is fundamental and must be observed whenever an individual’s rights or status are at risk of being altered by judicial or administrative action. The right to procedural fairness is enshrined in the legal system, ensuring that parties are notified and given an opportunity to respond to decisions that may adversely affect them.
[18] In the present case, the appellant was removed as executor without prior notice or an opportunity to be heard. This omission constitutes a breach of natural justice. As a result, the appellant was unfairly deprived of the opportunity to contest his removal or explain the reasons for his failure to file the liquidation and distribution account within the statutory timeframe. The High Court’s failure to review this procedural irregularity renders its decision unsound. The fact that the appellant was not afforded an opportunity to respond, as he was entitled to do so under the law, significantly undermines the fairness of the proceedings.
[19] The Master's report, while important, does not carry the status of sworn evidence and must be subjected to the court’s careful scrutiny. Although the Master’s report is informative and necessary for estate matters, it must not be regarded as conclusive. In the present case, the Master’s report was filed under Rule 8(19) of the High Court Rules 1981, but it was not served on the appellant, which meant that the appellant was denied the opportunity to challenge or respond to its contents. This lack of adversarial scrutiny significantly compromises the report’s evidentiary value.
[20] The Master’s report formed the sole basis for the High Court’s dismissal of the appellant’s application, which was a clear error in law. The High Court failed to examine the contents of the appellant’s uncontroverted founding affidavit, which raised serious concerns about the procedural unfairness of his removal. By giving undue weight to the Master’s report while disregarding the appellant’s sworn evidence, the High Court failed to fulfil its judicial duty to balance and scrutinise all the evidence before it.
[21] The appellant’s removal as executor was an administrative action taken by the Master under section 38(1)(a) of the Administration of Estates Proclamation 1935, which grants the Master the authority to revoke an executor’s appointment for failure to perform their duties satisfactorily. However, such powers must be exercised lawfully and in accordance with the principles of procedural fairness. The High Court was duty-bound to review the lawfulness of the Master’s actions, particularly given the appellant’s contention that his removal occurred without a court order and without his knowledge.
[22] Judicial review is critical in cases where the lawfulness of administrative actions is questioned. The High Court erred in failing to review the lawfulness of the Master’s actions and instead focused on whether the appellant had fulfilled his duties as executor. This misdirection is particularly glaring, as the appellant’s primary contention was the lack of due process in his removal. The High Court was required to scrutinise whether the Master’s actions complied with the statutory requirements and principles of natural justice, which it failed to do.
[23] The appellant’s affidavit, which was not challenged by any contrary evidence, raised crucial issues about the procedural irregularities in his removal. The legal principle is that unchallenged evidence should be accepted as true unless inherently improbable. In the present case, the appellant’s affidavit, which detailed the procedural failings in his removal, should have been given significant weight by the High Court. Instead, the court disregarded this sworn testimony in favour of the Master’s unverified report. This approach constitutes a serious misdirection that undermines the fairness and integrity of the judicial process.
Disposal
[24] In light of the foregoing, the High Court erred in several critical respects. It failed to uphold the principles of procedural fairness and natural justice by not affording the appellant the opportunity to respond to the Master’s report. It relied excessively on the Master’s report without subjecting it to proper scrutiny and disregarded the appellant’s uncontroverted evidence. Furthermore, the court neglected to review the lawfulness of the Master’s actions, which were at the heart of the appellant’s challenge.
Order
[25] In the result,
- The appeal is upheld.
- The judgment of the High Court dismissing the appellant’s application is set aside and replaced with one that, “the application is granted.”
- The respondents are ordered to pay the costs of this appeal.
________________________
K E MOSITO
PRESIDENT OF THE COURT OF APPEAL
I agree
S P SAKOANE
CHIEF JUSTICE
I agree
__________________________
VAN DER WESTHUIZEN
ACTING JUSTICE OF APPEAL
For the Appellant: Adv. S.K. Ramochela
For the Respondents: Adv. P.T.B.N Thakalekoala