Court name
High Court
Case name
Kanguatjivi and Others v Shivoro Business and Estate Consultancy and Others
Media neutral citation
[2012] NAHC 306
Judge
Van Niekerk J













REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA MAIN
DIVISION, WINDHOEK








REASONS FOR JUDGMENT



Case no: A 206/2011








In the matter between:








RUTH VAANDA
KANGUATJIVI (born BLACK) .......................................FIRST
APPLICANT



NATASHA LETICHIA KANGUATJIVI
..................................................SECOND
APPLICANT



EUGENE IVAN KANGUATJIVI
.................................................................THIRD
APPLICANT








and








SHIVORO BUSINESS AND ESTATE
CONSULTANCY .......................FIRST
RESPONDENT



MARY CALINE KANGUATJIVI
........................................................SECOND
RESPONDENT



EDWIN KAMBURONA (IHEKA) KANGUATJIVI
..................................THIRD
RESPONDENT



GERSON MARENGA
........................................................................FOURTH
RESPONDENT



MBATJIUA KANGUATJIVI
....................................................................FIFTH
RESPONDENT



KAPENA KANGUATJIVI
.......................................................................SIXTH
RESPONDENT



PAHEE KANGUATJIVI SEVENTH
RESPONDENT HIMEE KANGUATJIVI ...............EIGHTH
RESPONDENT



THE MASTER OF THE HIGH COURT
..................................................NINTH
RESPONDENT



ANNASTACIA KANTANAURA BLACK
..............................................TENTH
RESPONDENT








Neutral citation: Kanguatjivi
v Shivoro Business and Estate Consultancy
(A 206-2011) [2012]
NAHCMD 95 (16 October 2012)








Coram: VAN NIEKERK J



Heard: 23 August 2012



Delivered: 16 October 2012



Reasons: 3 December 2012








Flynote: Administration of estates
– Section 35(4) of the Administration of Estates Act, 66 of
1965 – Provision that liquidation and distribution account lies
open for inspection for a period of not less than 21 days –
Such provision does not require exact compliance – Substantial
compliance suffices





REASONS FOR JUDGMENT










VAN NIEKERK J:








[1] I made an order on 16 October 2012
dismissing the application with costs, indicating that the reasons
will follow, as they now do. The first applicant alleges that she was
married to the late Ewald Tjoutuku Kanguativi (‘the deceased’)
in community of property on 1 August 1993. During his lifetime, the
deceased adopted the second and third applicants, the biological
children of the first applicant, as his children. On 10 November 2008
the deceased passed away without leaving a will.








[2] The applicants instituted these
proceedings in which they seek the following relief:








1.
Ordering the first, third and ninth respondents to comply with the
provisions of section 35(4) of the Administration of Estate’s
(
sic)
Act, Act No. 66 of 1965 (as amended) by allowing the Liquidation and
Distribution Account in the estate of the Late (
sic)
Ewald Tjoutuku Kanguatjivi, filed by the first respondent with the
ninth respondent, to lie open for inspection for a period of not less
than twenty-one days.



2.
Directing the first respondent to give notice contemplated in section
35(5)(a) of the Administration of Estates Act, Act 66 of 1965.



3.
Granting leave to the applicants to file objections to the
liquidation and distribution account, as contemplated in section
35(7) of the Administration of Estates Act.



4.
Directing the ninth respondent to deal with the objection as
contemplated in section 35(9) of the Administration of Estates Act,
Act No. 66 of 1965.



5.
Granting the applicants further and/or alternative relief as to the
Court may seem meet.



6.
An order of costs, jointly and severally only against those
respondents who oppose the relief claimed in the notice of motion.’








[3] The first respondent is the duly
authorized agent of the third respondent, who is a son of the
deceased and who was appointed the executor of the deceased’s
estate. The first respondent is authorized to assist the third
respondent in the administration of the deceased estate in accordance
with the laws of intestate succession.








[4] The second respondent, who lives
in the United States of America, is mentioned in the estate’s
first liquidation and distribution account as being the surviving
spouse from a marriage with the deceased in community of property and
as being a beneficiary. The first applicant disputes that the second
respondent is the surviving spouse. The third, fourth, fifth, sixth,
seventh and eighth respondents are mentioned in the account as
children and beneficiaries of the deceased. The ninth respondent is
the Master of the High Court of Namibia (“the Master”),
who is the only party opposing the application. The tenth respondent
is cited in her capacity as guardian of a minor child mentioned in
the liquidation and distribution account as a child of the deceased
and a beneficiary. None of the applicants are mentioned in the
liquidation and distribution account.








[5] In their founding affidavit the
applicants state that when the liquidation and distribution account
was advertised there was non-compliance with the provisions of
section 35(4) and 35(5) of the Administration of Estates Act, 1965
(Act 66 of 1965). (It is actually section 35(5)(a) which is relevant
in this matter). Section 35 deals with liquidation and distribution
accounts and section 35(4) provides as follows:








Every
executor's account shall, after the Master has examined it, lie open
at the office of the Master, and if the deceased was ordinarily
resident in any district other than that in which the office of the
Master is situate, a duplicate thereof shall lie open at the office
of the magistrate of such other district for not less than twenty-one
days, for inspection by any person interested in the estate.”








[6]
Section 35(5)(a) reads as follows:








The
executor shall give notice that the account will be so open for
inspection by advertisement in the
Gazette
and in one or more newspapers circulating in the district in which
the deceased was ordinarily resident at the time of his death and, if
at any time within the period of twelve months immediately preceding
the date of his death he was so resident in any other district, also
in one or more newspapers circulating in that other district, and
shall state in the notice the period during which and the place at
which the account will lie open for inspection.”








[7] The first liquidation and
distribution account in the deceased estate was advertised in the
“New Era” newspaper of 3 May 2011 and in Government
Gazette No 4703 of 29 April 2011.








[8] On 27 May 2011 the first applicant
via her legal practitioners of record drew up three objections in
terms of section 35(7) of the Act and lodged same with the Master on
30 May 2011. The objections are addressed at issues relating to (i)
the alleged marriage in community of property between the deceased
and the second respondent; (ii) an alleged failure to include the
minor child of the tenth respondent in the liquidation and
distribution account; and (iii) the failure to include the second and
third applicants, being the deceased’s adopted children, in the
account.








[9] On 21 June 2011 the Master replied
in writing that the account had laid open for inspection during the
period 3 May 2011 until 23 May 2011. She refused to entertain the
objection as it was received outside the period advertised. She
stated that it was received on 31 May, but the date stamp
acknowledging receipt indicates 30 May 2011. Nothing turns on this.
In an apparent reference to section 35(10) of the Act she stated that
the applicant may approach the Court for the relief sought. However,
the applicant did not use the remedy under section 35(10), which is
to apply within 30 days to this Court for the Master’s decision
to be set aside. In fact, Mr Kauta on behalf of the applicants
made it clear that this application is not brought in terms of
section 35(10) and is not aimed at the Master’s decision.








[10] In the founding affidavit it is
alleged that as the account did not lay open for 21 days and as there
was non-compliance with section 35(4), no further steps were allowed
to be taken. It is specifically alleged that in such a case no
distribution may take place in terms of the liquidation and
distribution account. It is further alleged that any distribution
that has taken place is null and void and that those who have
received any benefits in accordance with the distribution account
must be ordered to return such benefits to the estate. However, the
relief claimed in the notice of motion does not go so far as to claim
a return of the benefits.








[11] The specific instances of
non-compliance on which the applicants rely are set out in paragraph
19 of the founding affidavit as follows:








19.1
The advertisement in the “New Era” appeared only on 03
May 2011;








19.2
There is no indication in the advertisement in the New Era newspaper
that the account laid open for inspection;








19.3
and the period during which and the place where the account may be
inspected as required by section 35(5)(a) of the Act, are not
indicated in the advertisements;








19.4
There was thus non-compliance with the provisions of section 35(4)
and 35(5) of the Act.”













[12] In her answering affidavit the
Master refers to the fact that the objection was filed late and that
any section 35(10) application must be brought in time. She further
states that she is opposing the application because she already on 27
May 2011 gave permission that the assets may be distributed to the
heirs and that the creditors may be paid. She states that, should
there be a re-advertisement of the account, the true state of affairs
would not be reflected. She invites the applicants to object to the
Second Liquidation and Distribution account still to be lodged. I
pause to note here that her counsel conceded during the hearing,
correctly so, that the second and third applicants, being the
deceased’s adopted children, should be included in that account
as beneficiaries. The Master does not respond pertinently to the
allegations of non-compliance with sections 35(4) and 35(5)(a),
except to state that the first and third respondents gave notice in
terms of section 35(5), stating that the First Liquidation and
Distribution Account will lay open for inspection for 21 days at the
Masters’ office. She attaches a copy of the advertisement in
the Government Gazette, but does not refer to the advertisement in
the “New Era” at all. Further she mentions in passing
that the First Liquidation and Distribution Account “duly laid
open for inspection” (see paragraph 5).








[13] In her replying affidavit the
first applicant makes it plain that the basis of her application is
not section 35(10), but rather that there was non-compliance with the
provisions of sections 35(4), 35(5)(a) and, for the first time, she
also mentions section 35(9). She states that, by not dealing with the
allegations regarding the advertisement in the New Era, the Master
must be taken to have conceded that there was non-compliance in
respect of this advertisement as alleged. The second and third
applicants did not file replying papers.








[14] I shall now examine the
advertisements themselves to assess the objections raised against
them. The advertisement in the “New Era” reads as follows
(the underlining and italics are mine):








LIQUIDATION
AND DISTRIBUTION ACCOUNTS IN DECEASED ESTATES LYING FOR INSPECTION








In
terms of section 35(5) of Act 66 of 1965 notice is hereby given that
copies of the Liquidation and Distribution accounts (First and
Final unless wise (
sic) stated) in the estate
specified below will be open for the inspection of all persons
interested therein
for the period of 21 days (or longer if
specifically stated) from the date specified or from the date of
publication hereof, Which ever (sic) may be the later
, and at the
office of Masters (sic) and Magistrates as stated.








Should
no objection thereto be lodged with the Masters (sic)
concerned during the period, the executors will proceed to make
payment in accordance with the accounts.








……………………[reference
is made to another estate]








5.
Registered number of Estate: 1776/09



Master’s
Office:
WINDHOEK



Surname:
Kanguatjivi



Christian
name:
Ewald, Tjoutuku



Date
of death:
10/11/2008



Identity
Number:
380526008 1



Last
Address:
Windhoek



Surviving
spouse:
Mary, C, Kanguatjivi



Identity
number:
451210








………………….[details
of the first respondent]”








[15] The advertisement in the
Government Gazette begins with the same two paragraphs but
without the spelling errors. When the particulars of the estate are
given, the words printed in bold in the “New Era”
advertisement do not appear.








[16] It is convenient to deal with the
objection set out in paragraph 19.2 of the founding affidavit first.
It is that there is no indication in the “New Era”
advertisement that the account lay open for inspection. However, the
words underlined above in the advertisement clearly state that the
account will be open for inspection. The objection has no merit.



[17] The second objection raised
against the advertisement in the “New Era”, read in
context with paragraph 20 of the applicants’ founding affidavit
is really that, as the Master had stated in her reply on 21 June 2011
that the account had laid open for inspection during the period 3 May
2011 until 23 May 2011, and as the “New Era” was only
published on 3 May 2011, the account in fact lay open for inspection
fewer than 21 days. My view is as follows. Although the Master
regarded the 21 day period to have run from 3 May to 23 May, the
advertisement does not give these dates as the starting point and
ending point of this period. The italicized words clearly indicate
that if no date is specified for the starting point of the 21 day
period, the period will run from the date of publication, whichever
is the later. As there is no specific date mentioned in the
advertisement from which the 21 day period begins to run, the period
begins to run from the date of publication. In Meyerowitz, The
Law and Practice of Administration of Estates and their Taxation

(2010 Edition) §12.12, page 12 – 13 the learned author
states that ‘care should be taken where the period is
advertised to run from the date of publication that the notices are
published the same day, otherwise the period of inspection will only
end on the last day allowed in the latest notice.’








[18] Act 66 of 1965 does not specify
how any number of days should be computed. Therefore it should be
done in accordance with section 4 of the Interpretation of Laws
Proclamation, 1920 (Proclamation 37 of 1920), i.e. ‘exclusively
of the first and inclusively of the last day, unless the last day
shall happen to fall on a Sunday or on any other day appointed by or
under the authority of a law as a public holiday, in which case the
time shall be reckoned exclusively of the first day and exclusively
also of every such Sunday or public holiday’. (See Meyerowitz
op. cit.
). Applying this method of computation, it means that the
21 day period ended on Tuesday, 24 May 2011. I think I must accept in
favour of the applicants that, as the Master states that the account
lay open for the period 3 May to 23 May 2011, it did not lay open for
such inspection on 24 May 2011. I shall deal with the legal effect,
if any, of this fact at a later stage.








[19] The third objection raised by the
applicants is that the period during which and the place where the
account may be inspected are not indicated in the advertisements.
Both advertisements state that the account will be open for
inspection for a period of 21 days or longer, depending on the
circumstances as set out in the advertisements. This part of the
applicants’ complaint clearly has no basis.








[20] As far as the place is concerned,
both advertisements state that the account will be open for
inspection at the office of the Master and the magistrate “as
stated”. In the case of the “New Era” the Master’s
office in Windhoek is clearly mentioned. In the Government Gazette
the Master’s office is not expressly mentioned. In my view
it could be said that the advertisement should be expressed in
clearer terms, but all references to any place in the advertisement
are always to “Windhoek”. I do not think that any person
could reasonably come to any conclusion other than that the Master’s
office meant in the advertisement is the Master’s office in
Windhoek.








[21] The only question that arises
from the above analysis is whether the fact that the account did not
lie open for inspection on 24 May 2011 means that all steps that took
place afterwards as regards the estate are nullities, as counsel for
the applicants submitted. Mr Kauta referred to the use of the
word “shall” in section 35(4) and submitted that this is
a clear indication that the provision is mandatory, which requires
that there must be absolute compliance with the time period specified
in the subsection and that there can be no question of substantial
compliance being sufficient or of the condonation of any
non-compliance.








[22] In Rally for Democracy and
Progress and Others v Electoral Commission of Namibia and Others

2010 (2) NR 487 (SC) at 513F-514A the Supreme Court contrasted (and
disapproved of) the earlier inflexible approach on statutory time
limits as expressed in Hercules Town Council v Dalla 1936 TPD
229 at 240 (‘…..the provisions with respect to time are
always obligatory, unless a power of extending the time is given to
the Court’) with ‘….later, more moderated
approaches adopted or endorsed by the courts (including the High
Court which held that the modern approach manifests a tendency to
incline towards flexibility)’ (DTA of Namibia and Another v
Swapo Party of Namibia and Others
2005 NR 1 (HC) at 11C). In this
regard the Supreme Court approved of the following extract from
Volschenk v Volschenk 1946 TPD 486 at 490:



'I
am not aware of any decision laying down a general rule that all
provisions with respect to time are necessarily obligatory and that
failure to comply strictly therewith results in nullifying all acts
done pursuant thereto. The real intention of the Legislature should
in all cases be enquired into and the reasons ascertained why the
Legislature should have wished to create a nullity.'








See also: Suidwes-Afrikaanse
Munisipale Personeelvereniging v Minister of Labour and Another

1978 (1) SA 1027 (SWA) at 1038A – B.








[23] In considering the question
raised it is not helpful to focus merely on whether the requirements
of section 35 are peremptory or directory. Although these are useful
labels to use as part of the discussion (Nkisimane and Others v
Santam Insurance Co Ltd
1978 (2) SA 430 (A) at 433H), the true
enquiry is whether the Legislature intended the distribution of any
assets in terms of the liquidation and distribution account to be
valid or invalid where the period for inspection is shorter than 21
days. (Cf. Ex parte Oosthuysen 1995 (2) SA 694 (T) at
695I). It should be remembered that -








It
is well established that the Legislature's intention in this regard
is to be ascertained from the language, scope and purpose of the
enactment as a whole and the statutory requirement in particular
(
Nkisimane
(
supra
at 434A);
Maharaj
and Others v Rampersad

1964 (4) SA 638 (A)).’








(Oosthuysen
(supra at 696A)).








[24] This principle was expanded in
Swart v Smuts 1971 (1) SA 819 (A), when Corbett AJA (as he
then was) said the following at 829E-F:








In
general an act which is performed contrary to a statutory provision
is regarded as a nullity, but this is not a fixed or inflexible rule.
Thorough consideration of the wording of the statute and of its
purpose and meaning can lead to the conclusion that the Legislature
had no intention of nullity.’ [my translation from the
Afrikaans]








[25] In JEM Motors Ltd v Boutle and
Another
1961(2) SA 320 (NPD) at 328A-B the court expressed the
issue in this helpful way:








‘ …..what
must first be ascertained are the objects of the relative provisions.
Imperative provisions, merely because they are imperative will not,
by implication, be held to require exact compliance with them where
substantial compliance with them will achieve all the objects aimed
at.’













[26] In Johannesburg City Council v
Arumugan & Others
1961 (3) SA 748 WLD the court considered
several authorities on the issue of non-compliance with statutory
time limits and concluded that in each of the cases cited the basis
upon which the decision in the case was founded was ‘the
determination of the intention of the Legislature coupled with the
possibility of prejudice’ (at 757E-F).








[27] In DTA of Namibia and Another
v Swapo Party of Namibia and Others, supra,
at 9H-10D the Full
Bench noted with approval the following stated in Pio v Franklin,
NO and Another
1949 (3) SA 442 (C) when Herbstein J summarised
what the Full Bench considered “certain useful, though not
exhaustive, guidelines” when he said at 451:



In
Sutter
v Scheepers

(1932 AD 165 at 173-4), Wessels JA suggested ''certain tests, not as
comprehensive but as useful guides'' to enable a Court to arrive at
that ''real intention''. I would summarise them as follows:



(1)
The word ''shall'' when used in a statute is rather to be considered
as peremptory, unless there are other circumstances which negative
this construction.



(2)
If a provision is couched in a negative form, it is to be regarded as
a peremptory rather than a directory mandate.



(3)
If a provision is couched in positive language and there is no
sanction added in case the requisites are not carried out, then the
presumption is in favour of an intention to make the provision only
directory.



(4)
If when we consider the scope and objects of a provision, we find
that its terms would, if strictly carried out, lead to injustice and
even fraud, and if there is no explicit statement that the act is to
be void if the conditions are not complied with, or if no sanction is
added, then the presumption is rather in favour of the provision
being directory.



(5)
The history of the legislation also will afford a clue in some
cases.'








[28] In Sayers v Khan 2002 (5)
SA 688(C) the following was stated at 692A-G (the passage at 6792A-D
was recently applied in Rally for Democracy and Progress and
Others v Electoral Commission of Namibia and Others supra
at
516I):



The
jurisprudential guidelines relevant to the present case as
articulated by the South African Courts (particularly in cases such
as
Pio
v Franklin NO and Another

1949 (3) SA 442 (C) and
Sutter
v Scheepers

1932 AD 165 at 173 and 174) are usefully summarised by
Devenish
(
op
cit

at 231 - 4) as follows:



'(i)
If, on weighing up the ambit and aims of a provision, nullity would
lead to injustice, fraud, inconvenience, ineffectiveness or
immorality and provided there is no express statement that the act
would be void if the relevant prohibition or prescription is not
complied with, there is a presumption in favour of validity. . . .
Also where ''greater inconvenience would result from the invalidation
of the illegal act than would flow from the doing of the act which
the law forbids'', the courts will invariably be reluctant - unless
there is some other more compelling argument - to invalidate the act.
Effectiveness and morality are inter alia also considerations that
the courts could use in the process of evaluation, in order to decide
whether to invalidate an act in conflict with statutory prescription.



(ii)
The history and background of the legislation may provide some
indication of legislative intent in this regard.



(iii)
The presence of a penal sanction may, under certain circumstances, be
supportive of a peremptory interpretation, since it can be reasoned
that the penalty indicates the importance attached by the legislature
to compliance. However, the courts act with circumspection in these
circumstances. Therefore, in Eland Boerdery (Edms) Bpk v Anderson
1966 (4) SA 400 (T) at 405D - E, the Court made the observation that
''(t)rouens, die toevoeging van so 'n sanksie is dikwels 'n
aanduiding dat die wetgewer die straf, waarvoor voorsiening gemaak
word in die Wet, as genoegsame sanksie beskou en dat hy nie bedoel
het, as 'n bykomende sanksie, dat die handeling self nietig sou wees
nie''. . . .



(iv)
Where the validity of the act, despite disregard of the prescription,
would frustrate or seriously inhibit the object of the legislation,
there is obviously a presumption in favour of nullity. This is a
fundamental jurisprudential consideration and therefore it outweighs
contrary semantic indications.'



(My
emphasis.)’



[28] I shall now proceed to an
application of the approach and guidelines as set out in the various
cases above. The use of the word ‘shall’ in section 35(4)
is an indication that the provision is peremptory rather than
directory. The fact that it is couched in positive terms and that no
sanction is provided for non-compliance tend to show that the
provision is directory. There is no provision expressly prohibiting,
or visiting nullity upon, a distribution of the estate made after any
failure to let the account lie open for inspection for the period
required by section 35(4). This, again, is an indication that the
provision is directory. The only relevant provision is that contained
in section 50, which reads as follows:








50
Executor making wrong distribution



Any
executor who makes a distribution otherwise than in accordance with
the provisions of section thirty-four or thirty five, as the case may
be, shall-



(a)
be personally liable to make good to any heir and to any claimant
whose claim was lodged within the period specified in the notice
referred to in section twenty-nine, any loss sustained by such heir
in respect of the benefit to which he is entitled or by such claimant
in respect of his claim, as a result of his failure to make a
distribution in accordance with the said provisions; and



(b)
be entitled to recover from any person any amount paid or any
property delivered or transferred to him in the course of the
distribution which would not have been paid, delivered or transferred
to him if a distribution in accordance with the said provisions had
been made: Provided that no costs incurred under this paragraph shall
be paid out of the estate.’








[29] To my mind the fact that section
50 exists is rather an indication that the Legislature did not intend
that anything less than exact compliance would lead to a nullity.








[30] The Court should enquire whether
in the circumstances of this case the objects of the Legislature in
enacting the relevant provisions have been stultified by reason of
the fact that the account did not lay open for inspection on 24 May.
(Cf. Ex Parte Bosch and Another 1959 (2) SA 163 (C) at 165).
‘[I]f a substantial compliance as distinct from a strict
compliance with the provision of an enactment will achieve the
objects aimed at by the Legislature, without at the same time
resulting in any or any possible prejudice or injustice to persons
affected by such enactment, a strict compliance with the provisions
of such enactment is not required and ….. substantial
compliance therewith will not result in the invalidity of what
follows upon such substantial compliance.’ (Johannesburg
City Council v Arumugan and Others, supra,
757H).








[31] The purpose of the provisions of
section 35(4) is ‘to afford an opportunity to any person having
an interest in the estate, whether as creditor or beneficiary, to
object to the account if he considers that it is not correct’
(Meyerowitz supra § 12.12, page 12 – 13). In Götz
v The Master of the High Court and Others NNO
1986 (1) SA 499 (N)
at 502J-503C the court said in regard to the purpose of section 35:








The provisions clearly have a
two-fold purpose, viz to achieve finalisation of the winding up of
the estates of deceased persons, but subject to interested persons
being afforded an opportunity of contesting the proposed distribution
of the estate assets as set out in the accounts framed. The first
purpose is achieved by the provision of a closing date for the
lodging of objections, a deadline as it were, viz the last day on
which the account lies open for inspection, whereafter objections
cannot be entertained.
Grunberg's
case
supra.
The second purpose is achieved by the provisions for the publication
of the account and for the lodging of objections thereto. The
intention of the Legislature in requiring that the account be
advertised and lie open for inspection was, in my judgment, primarily
to provide a means whereby interested persons could acquaint
themselves with the contents of the account framed by the executors
to enable them, if so advised, to object thereto …..’








[32] Any interested person would
therefore be entitled during the 21 day period to attend upon the
Master’s office to inspect the account. It is reasonable to
assume that any person reading the advertisement and wanting to
inspect the account would bear in mind when the 21 day period would
expire in order to make inspection in time. Should such a person
arrive at the Master’s office and find that the account is no
longer open for inspection on any day on which it ought to be so
open, such a person would presumably in the ordinary course indicate
by reference to the advertisement and its date of publication that he
or she is entitled to inspect the account, whereupon it would become
quite clear to the staff at the Master’s office that the period
for inspection has not yet passed. It seems to me that prejudice to
any interested person is at most potential. It is difficult to see
how any actual prejudice could arise.



[33] In casu the first
applicant deals with the issue of prejudice by stating in her
founding affidavit that because the account did not lie open for
inspection for 21 days and because the month of May has the most
holidays in Namibia she did not have adequate opportunity to object
to the account. Significantly the first applicant does not state how
or when it first came to her notice that the account was lying open
for inspection. She does not state when she inspected the account or,
for that matter, that she indeed inspected the account. Most
significantly, she does not state that she wanted to inspect the
account on 24 May but that it was not open for inspection.
Furthermore, in her objection to the Master she did not complain that
she did not have enough time to lodge an objection as she alleges. In
any event, the objection was lodged on 30 May when the period for
inspection and objection had already expired several days before. She
would only have had a valid complaint if the Master had refused to
entertain an objection received on 24 May. The second and third
applicant do not allege any facts to explain in what way they were
prejudiced by the failure to comply with section 35(4)and 35(5)(a) of
the Act. They merely state that they intend lodging an objection to
the account once there has been compliance with section 35. In my
view there clearly was no prejudice caused by any failure to let the
account lie open on 24 May. In fact, my impression of the applicants’
case is that, rather than being prejudiced by any non-compliance with
section 35, they are seeking a way to get around the fact that the
objection to the account was lodged too late and the fact that
distribution has already taken place in accordance with the account.








[34] On the above analysis it seems to
me that the provision is such that the objects of the Legislature
would not be defeated if there is substantial compliance therewith. I
hold that in this case there was indeed substantial compliance with
section 35(4).



[35] The first applicant in reply
mentioned for the first time that there was non-compliance with
section 35(9) of the Act. In oral argument before me counsel for the
applicants added yet another instance of non-compliance which is that
the advertisements did not state that the first liquidation and
distribution account would lie open at the magistrate’s office
of the district in which the deceased was ordinarily resident, namely
Gobabis. If I understood him correctly, he also stated that in fact
the account did not lie open for inspection at the Gobabis
magistrate’s office. It was pointed out to counsel that this
aspect was not squarely raised on the papers, which he appeared to
concede. However, he did attempt to make out an argument that this
aspect is covered by the allegations in paragraphs 19.3 and 19.4 of
the founding affidavit. However, this is clearly not the case. Mr
Asino on behalf of the Master also objected to this point
being taken.








[36] It is trite that the applicants
are required to make their case in the founding papers so that the
respondents may know what case they are required to meet. (Matador
Enterprises (Pty) Ltd t/a National Cold Storage v Chairman of the
Namibian Agronomic Board
2010 (1) NR 212 (HC) 221C-222A; 223H-J;
Stipp and Another v Shade Centre and Others 2007 (2) NR 627
(SC)). This was not done in regard to the two points mentioned in
paragraph [ ] supra. I therefore hold that the applicants may
not rely on these points and I shall consider them no further.








[37] In conclusion, for the above
reasons the application was dismissed with costs.








[38] As the Master is an officer of
the Court and, in cases like this, a party in her official capacity,
I do not think it inappropriate to make a few remarks about the
manner that the answering affidavit is drawn up so that same may be
avoided in future cases. The answering affidavit in this case does
not answer to the individual paragraphs of the founding affidavit.
This method may in certain cases be adequate, but usually it is not,
as the detail of allegations made in the founding affidavit is
invariably overlooked. Whilst an answering affidavit may, as is often
the case, commence with background information or an overview of the
respondent’s case, it is wise to later respond to the specific
allegations in the founding affidavit paragraph by paragraph as this
focuses the deponent’s attention on the specific details of the
allegations so that a proper response may be given. After all, it is
a general requirement of pleading that the point of substance of
allegations be answered.

































----------------------------------



K van Niekerk



Judge















































































































































APPEARANCE








For the applicants: Mr P Kauta,



of Dr Weder, Kauta & Hoveka








For the ninth respondent: Mr M Asino,



Office of the Government-Attorney