The Executor Estate Late Robert Mohapi V Teboho Mohapi & 3 Others (CIV/APN/0374/2023) [2024] LSHC 168 (20 September 2024)

 

 

 

 

IN THE HIGH COURT OF LESOTHO

 

HELD AT MASERU                                                CIV/APN/0374/2023

                                     

In the matter between

 

THE EXECUTOR ESTATE LATE ROBERT

MOHAPI                                                                        1^ST APPLICANT  

AND 

TEBOHO MOHAPI                                                        1^ST RESPONDENT

NEDBANK LESOTHO LIMITED                                    2^ND RESPONDENT

MASTER OF HIGH COURT                                           3^RD RESPONDENT

THE ATTORNEY GENERAL                                          4^TH RESPONDENT

 

Neutral Citation: The Executor Estate Late Robert Mohapi and Teboho Mohapi and 4 others [2023] LSHC 168 Civ (20 SEPTEMBER 2023).

 

CORAM                :         HLAELE J.

HEARD                :         15 DECEMBER 2023

DELIVERED        :         20 SEPTEMBER  2024

 

SUMMARY: Failure by executor to file a liquidation and distribution account within six months constitutes a breach of fiduciary duty entitling the Master of the High court to remove him/her as an executor.

ANNOTATIONS:

CITED CASES:

1. Wessels v The Master 9 SC 18.
2. Ramaili v Master of High Court (CIV/APN 69 of 20) [2020] LSHC 22
3. (15 October 2020).
4. Matete v Matete (C of A (CIV) 57 of 2018) [2019] LSCA 31 (31 May

2019).

5. Qocha v Nthongoa (C of A (CIV) 49 of 2016) [2018] LSCA 19 (7 December 2018).
6. Mphalali v Anizmi'halali and Others CIV/APN/260/2003 at p.3.
7. Bronkhorst V. Erasmus. 1907. June 14.
8. Phoenix Assurance Co. v Wepener 1935 OPD 35.
9. Lloyd Craig Henwood and Garth Gregory Henwood & 5 Others

(1556/10) [2012] SZHC 238 (12 October 2012.

10. Al-Karafi & Sons v Pema 2010 (2) SA 360 (W) par [11].

 

STATUES

1. Laws of Basutholand 1960 vol. II.
2. Administration of Estates Proclamation of 1935.
3. High Court Rules 1981.

 

BOOKS

1. 1. 1. 1. D. Meyerowitz: The Law and Practice of Administration of Estates and

          Estate Duty 2004 Editon The Taxpayer CC.

 

 

 

 

JUDGMENT

HLAELE J.

[1] INTRODUCTION

1.1 This matter came before me on an urgent basis. The Applicant had sought the following prayers:

1. Dispensing with ordinary rules and modes of service due to the urgency of this matter.
2. Rule nisi be issued returnable on a date to be determined by this Honourable Court calling upon respondent to show cause why, if any,

1. The appointment of the 1^st Respondent as Curator by the 3^rd Respondent, along with any contemplated or subsequent appointment of him or any other person as Executor shall not be declared as null and void ab initio and thereafter interdicted indefinitely.
2. The resulting payment of the 23^rd November 2023 by the 2^nd Respondent Bank amounting to M60, 000.00 shall not be declared unlawful.
3. In the event 1^st Respondent’s appointment is declared unlawful he shall not be ordered to reimburse the amount in prayer b) above.
4. The practice by the 3^rd Respondent and /or its officials of inserting validity periods on letters of Administration/ Executorship upon issuance of is ultra vires and therefore unlawful.
5. The 3^rd Respondent and /or its official cannot be declared to lack any authority under law to bypass an incumbent or duly appointed Executor, and thereafter approach or purport to give instruction to either the 2^nd Respondent Bank or any other commercial bank to either disburse or withhold funds held thereat in an Estate Late Bank Account unless it is by order of court.
6. 1^st Respondent and/or his agent shall not be interdicted and restrained, from interfering in any manner with and obtaining any funds from the Estate Late Account under Number (12990471981) held with the 2^nd Respondent.
7. 2^nd Respondent Bank shall not be interdicted from acceding in any manner to any instruction from either the 1^st or the 3^rd Respondent to either disburse or interfere with the Funds held in the Estate Late Account held with the 2^nd Respondent Bank.
8. The 3^rd Respondent and/or her subordinates together with the 1^st Respondent cannot be interdicted from interfering in any manner with the functions of the Applicants as the duly appointed Executor.
1. The 2^nd Respondent shall not be ordered to immediately and forthwith restore Applicant’s access to the Deceased Estate Account under Number (12990471981).
10. That Prayer 2 e), f), g, h) and i) operate immediately as interim court orders restoring the status quo pending the finalization of this matter.
11. Costs of Suit;
50. Further and /or alternative relief.

 

[2] APPLICANT’S CASE

2.1 Applicant’s case, gleaned from his pleadings centre around his removal as the Executor of the estate. His lamentation is expressed in the founding affidavit and amongst other statements he states:

“ I strongly believe Ms. Kotelo’s actions are mala fide and uncomfortably bother very close to impunity and malfeasance. I say this because of the purported appointment of the 1^st Respondent as Curator bonis which came very soon after the withdrawal of a lawsuit brought by him for my removal.  The 1^st and 3^rd Respondents’ actions glaringly seem to have done or desired to be implemented surreptitiously without any regard or resort to due process as required by law”.

2.2 He therefore seeks that the decision to remove him be set aside.

 

[3] ISSUES FOR DETERMINATION

3.1 Flowing from the Notice of Motion, the main issues for determination for the court are:

1. Whether the removal of the Applicant as the executor was unlawful.
2. Whether the appointment of the 1st Respondent was unlawful.

3.2 The other issues are peripheral and the determination of these two identified issues will resolve them. In order to make a determination of the issues, it is important to sequentially deal with:

1. The duties and powers of the office of the Master of the High Court.
2. Rule 8(19) of the High Court Rules, with the purpose of interrogating the powers that the Master of the High Court has in relation to litigation before the court
3. The legal status of the report of the Master.

 

 

[4] DUTIES OF THE MASTER OF HIGH COURT

4.1 The decision which stands to be interrogated in these proceedings is the decision of the Master to remove the Applicant from being an executor. It becomes important and relevant therefore, to inquire into the office of the Master of the High court (herein after called the Master).  

4.2 The Master’s Office is also responsible for the supervision and administration of estates of deceased persons, property of minors, and persons under curatorship. His/her primary role is to protect the interests of creditors, heirs, legatees, and other persons who have claims on the estate. He/she has extensive powers of supervision, ranging from the appointment of executors, tutors, and curators, to decisions regarding the alienation of assets and the adjudication of claims made against estates. The Master also has the power to compel executors, tutors, and curators to perform any duty imposed on them by or under the law. Further, the Master is also concerned with the interest of the fiscus in respect of estate duty. Further he/she is responsible for filing completed information regarding every estate.[1] All these duties are outlined in the Administration of Estates Proclamation of 1935. Some are common law duties emanating from the duties envisaged from the office.

4.3 Flowing from these duties, where a dispute arises in relation to deceased’s estate, the court relies on the information gathered from the Master to assist the court in reaching a decision. This is envisaged by the High Court Rule, specifically under Rule 8(19). The court then utilises the contents of this report to garner and assess the status of the estate in order to resolve the dispute before the court.

4.4 In this case specifically, the Master has filed a report dated 15^th December 2023. I therefore proceed to discuss the report in relation to the prayers sought.

 

[5] RULE 8(19) AND THE REPORT OF THE MASTER

5.1 The Applicant herein had fortunately complied with Rule 8(19) of the High Court Rules 1981, in that he had not only cited the Master of the High Court in the proceedings but also caused for the pleadings to be served on the office.  The result of which is that the Master filed a report in terms of the Rule. It therefore becomes important for me to cite the rule and its effect because it was on the basis of the report that the court reached a decision.

Rule 8 (19) reads as follows:

“When an application is made to court, whether ex parte or otherwise in connection with the estate of any person deceased…, a copy of such application, must, before the application is filed with the Registrar, be submitted to the Master for his consideration and report. If any person is to be suggested to the court for appointment of curator to property such suggestion shall also be submitted to the master for his consideration and report”.

                             (own Emphasis)

 

5.2 Our jurisprudence is replete with case law that emphasises the importance of the compliance with this rule.[2] The rule requires an application relating to a deceased estate to be served on the Master of the High Court for his or her consideration and report as the court may consider appropriate action based on the report. The cases have stated categorically that compliance with this rule is mandatory. This issue of complience was however not the case before this court. It is only relevant to the extent that, absent the report of the Master, the court would otherwise not have been enlightened about the status of the Estate.

5.3 The rational and I may add the importance of engaging the Master of the High Court and requesting the report of the Master in cases affecting deceased's estate was expressed by Nomngcongo J in the case of Mphalali v Anizmi'halali and Others,[3] where he said:

“This rule in providing specifically that even if applications in connection with deceased estate are brought ex parte they must still be first submitted to the Master before filing with the Registrar, leaves very little discretion with the court to grant condonation for failure to comply. Not only that, the Master is further enjoined to consider the matter and then to make a report. Such a report might lend a totally different colour to the outcome of proceedings. A copy of this application must therefore have been forwarded to the Master for his consideration and report, otherwise we would be trespassing on the Master's territory ex parte, a proceeding that is specifically not allowed by the rules”.

                          (own emphasis)

5.4 The meaning I subscribe to the dictum by Nomngcongo J is that, the court should glean at the report in order to determine the true status of the Estate. So much so that it is taken as the true reflection of the status of the Estate, until it is reviewed. The learned judge calls any other consideration a trespass on her/his territory. I agree with him.

5.5 Thus, when interrogating the issues tabulated above, reliance will be placed on the report of the Master, because it gives the court the true picture of the status of the Estate. It should be noted that the report is not the subject of the review in these proceedings, it is the decision that emanates from the report that stands to be reviewed. Thus, the contents of the report are not challenged, but the decision that flows from the contents. Meaning, the Applicant challenges the decision and its consequences.

5.6 I proceed to interrogate the report of the Master, inquiring as I do, whether she/he addressed his/her mind to the issue of the removal of the Applicant as an Executor.  Also, whether she acted ultra vires the powers she has under the statute that governs her/his office.

 

[6] THE REPORT OF THE MASTER

6.1 The report of the Master was placed before the court and it bears the stamp dated 15^th December 2023.  It was served on the court on the date of hearing, which incidentally is the 15^th December 2023.

6.2 In the said report, the Master made the following important points and conclusion which, as Nomngcongo J said ‘lends a totally different picture’ from what was said initially. It may even make certain disclosures that may contradict the allegations made by a litigant, as it did in the present case.

6.3 The report states that funds were withdrawn from the estate account by Adv. Ramochela the Applicant herein. The Master states that such transactions were not authorized by her office or the law.

6.4 The Master also states that the same Adv. Ramochela had not filed a Liquidation and Distribution account but was already utilizing the Estate funds.

6.5 The Master also states that the same Executor had failed to exercise his fiduciary duties in that he failed to protect the Estate from abuse.

6.6 The Executor had remunerated himself contrary to the law that governs administration of estates.

6.7 As a result of these malpractices, the Master exercised her powers to remove Adv. Ramochela. The Master states:

“Since the executor’s time to lodge the Liquidation and distribution had not been extended it meant that the estate had not been in control of any person for close to nine months which is an inconvenience to the estate and its beneficiaries, hence the Master’s decision to appoint a curator Bonis. Letters of Administration authorise the executor to administer the estate (s.31(2) AEP), since Adv. Ramochela’s time to lodge the account was not extended he does not have authority to act as an executor”.

6.8 The Master appointed 1^st Respondent as executor and upon his request of funds for his maintenance and living costs as beneficiary, the 1^st Respondent was given authority to withdraw the funds that he needed from the estate account.

6.9 It is the view of this court that, as has been alluded to earlier, the Master, being the overseer of deceased’s estates cannot and should not be a passive by stander in a situation where Estate under her custody and control is being mismanaged to the detriment of beneficiaries.  It would be remise of the office and would be boarder dereliction of duties.

 

[7] THE LAW

7.1 The pertinent question is whether the Master acted within the scope of the law that governs her office. This will be derived from the law that governs his/her office.

7.2 Section 31(1) of the Administration of Estates Proclamation 19 of 1935 reads:

31.1 “The estates of all persons dying either testate or intestate shall be administered and distributed, according to law, under letters of administration granted by the Master in the form “B” in the First Schedule to this Proclamation. Such letters of administration shall be granted to the executors testamentary duly appointed by persons so dying or to such persons as, in default of executors testamentary, are appointed, as in this Proclamation described, executors dative to the persons so dying”.

(2) “Letters of administration shall authorise the executor to administer the estate wherever situate”.

 

7.3 This section talks to the powers of the Master to Issue letters of administration.

7.4 On the issue of revocation of the letters of Administration, section 38(1) (a) states that the Master may revoke the letters of administration. However, in this particular case, the Master argues that the Applicant was removed by effluxion of time in that “the executors time to lodge the Liquidation and Distribution account had not been extended, it meant the estate had not been in control of any person close to nine months. This left the Estate in a vulnerable situation which the Master could permit. This being her primary responsibility.

7.5 Another legal issue is whether in law, Adv. Ramochela owes a fiduciary duty to the estate as an executor. The executor in her/his report has stated that the other ground for removal of the Advocate from executorship was that he had squandered the funds of the estate or alternatively, he had filed to furnish the office with a proper accounting report detailing the expenditure.

Meyerowitz states;

An executor may at any time be removed from office by the Master:

11.9 (e) If he fails to perform satisfactorily any duty imposed upon him by or under this Act or to comply with any lawful request of the Master;

He explains this by stating:

Under (e) will fall all cases of dereliction of duty such as failure to lodge accounts, to bank estate moneys, to transfer property, to pay creditors and heirs, and so forth”.

7.6 In the case of Bronkhorst v. Erasmus[4] the court stated that the Master has power under the common law to remove an executor for misconduct prior to his appointment. Executors have been removed for failing to lodge accounts after a long period had elapsed as stated in the case of Phoenix Assurance Co. v Wepener[5],  they have also been removed for serious dereliction of duty.[6]

Meyerowitz states;

11.4 “The court will remove an executor on the ground of maladministration or absence of administration if proved to its satisfaction.  Thus executors have been removed for failing to lodge accounts after a long period had elapsed, for failing to sign an account without just cause, for refusing without just cause to pass transfer, for serious dereliction of duty. Mere negligence in administration will ordinarily not be a ground for removal in the absence of proof that the estate or the beneficiaries would be prejudiced if the executor remained in office”.

 

[8] CONCLUSION

8.1 I find that the legal status of the Master’s report is that it is a tool which Rule 8(19) has given the courts of law to be appraise of the status of an Estate where such an estate is the subject matter of litigation. Although it is not an affidavit that contains sworn evidence, the report has the status, according to Rule 8(19) of being accepted by the court as the true reflection of the Estate. The Master is, after all, the sole custodian of deceased’s estates. The court can therefore rely on the report of the Master, as a true, accurate and appropriate reflection of the status of the Estate. In Al-Karafi & Sons v Pema[7]

“A court hearing a review application under s 151 sits both as a court of review and a court of appeal to reconsider the ruling or decision of the Master. That does not mean that the court may disregard the factual material before the Master or the Master’s reasoning. It is only where the Master, in granting his approval, has erred or misdirected himself based on the material placed before him that the court can, on review and or appeal, go further and decide the matter de novo. It is by reference to what was placed before the Master that the correctness or otherwise of the Master’s decision is to be judged. If, based on what was before the Master, there was no error or misdirection on the Master’s part, then that is the end of the matter. It is not open to the parties to introduce the new material that they seek to place before this court and argue on the basis of what was not before the Master that the Master erred or misdirected himself. The approach is to consider the factual material placed before the Master, together with the Master’s decision and his report, and to consider whether in the light of that material, the Master erred or misdirected himself in any material respect. If any basis for interfering with the Master’s decision does appear ex facie the documents before the Master as read with his decision and rulings, then the reviewing court may reconsider the matter based on the material before it.”

                            (own emphasis)

 

8.2 Nothing in the report suggests that the Master misdirected herself/himself in reaching the decisions she/he made. She addressed her mind to the facts and evidence before her and she made her decision.

8.3 I also conclude that in law, the Master has the power to remove an executor who fails to exercise his duties or fails to discharge his fiduciary duties. In the present case, the removal of the executor was not only for failure to exercise his fiduciary duties but also by effluxion of time.

8.4 The Applicant has also failed to make out a case for the granting of the orders sought.

 

[9] ORDER

9.1 I therefore make the following order:

1. The application is dismissed with costs.

 

 

 

_______________________

              M. G. HLAELE

  JUDGE

 

 

Applicant:       Adv S.K Ramochela

 

Respondent:    Adv. Chitja