Court name
Supreme Court
Case number
SA 44 of 2013
Case name
Kamuhanga N.O v Master of the High Court and Others
Media neutral citation
[1970] NASC 28
Judge
O'Regan AJA










SUPREME
COURT OF NAMIBIA






CASE
NO: SA 44/2013






DATE:
13 NOVEMBER 2015






REPORTABLE






In
the matter between






SELMA
KAMUHANGA
N.O
..................................................................................................Appellant






And






MASTER
OF THE HIGH
COURT
............................................................................First
Respondent






BENGO
INVESTMENTS
CC
.................................................................................Second
Respondent






EMMERENTIA
COETZEE
......................................................................................Third
Respondent






ALEXANDER
KAMUHANGA
...............................................................................Fourth
Respondent






EMMERENTIA
KAMUHANGA
...............................................................................Fifth
Respondent






Coram:
DAMASEB DCJ, STRYDOM AJA and O’REGAN AJA






Heard:
16 June 2015






Delivered:
13 November 2015


APPEAL
JUDGMENT


O’REGAN
AJA (DAMASEB DCJ and STRYDOM AJA concurring):


[1]
On 14 December 2010, the appellant, Ms
Selma Kamuhanga, launched an application in the High Court seeking,
amongst other things, an order reviewing and setting aside a decision
of the Master of the High Court (the Master) dated 15 November 2010. 
In that decision, the Master had dismissed an objection the appellant
had lodged to a liquidation and distribution account in terms of s
35(7) of the Administration of Estates Act 66 of 1965 (the Act).  
The High Court dismissed the application with costs.  This
appeal followed.


Facts


[2]
The facts can be briefly stated as
follows.  The appellant, Ms Selma Kamuhanga, is the executrix of
the estate of her late husband, Mr Simeon Kamuhanga, who died in
November 2008.  Her husband was one of three heirs in the
intestate estate of his late father, Mr David Kamuhanga, who died on
18 July 1997 and whose estate had not been finalised at the time of
the death of Mr Simeon Kamuhanga.  The other two heirs in the
estate of Mr David Kamuhanga are Mr Alexander Kamuhanga (the fourth
respondent in these proceedings) and Ms Emmerentia Kamuhanga (the
fifth respondent).  The executors of Mr David Kamuhanga’s
estate are Bengo Investments CC (the second respondent), represented
by Ms Emmerentia Coetzee (the third respondent), who for ease of
reference shall be referred to in this judgment as 'the executrix'.


[3]
Mr Simeon Kamuhanga and the appellant had
six children, of whom all but two were majors by the time this
litigation was commenced.  In addition, Mr Simeon Kamuhanga had
a seventh child, whose mother was not the appellant. That child was
born in 1995 and was thus also a minor at the time the litigation
commenced.


[4]
According to the liquidation and
distribution account approved by the Master in relation to the estate
of Mr David Kamuhanga, the estate contained two assets: a farm in the
Omaheke region (remaining Portion of the Farm Usagei Number 367)
measuring just over 2000 hectares (the farm), and a 1990 Nissan
bakkie (the vehicle), which was valued in the liquidation and
distribution account at N$18 000.  According to the account,
both the farm and the vehicle were sold to one of the heirs, Mr
Alexander Kamuhanga (the fourth respondent), for N$1,3 million and
N$18 000 respectively.  After subtraction of the liabilities,
N$1 247 865,30 was available for distribution to the three heirs,
being N$415 955,10 each.


[5]
Before
turning to the nature of the appellant’s objection to the
liquidation and distribution account, it will be useful to set out
the events relevant to the sale of the farm.  Initially, on 26
November 2009, the Master wrote a letter to the executrix instructing
her that as the heirs in the estate included minor children, being
the heirs of Mr Simeon Kamuhanga, the proviso to s 47 of the Act was
applicable.  That proviso stipulates amongst other things that
where the heirs to an estate include minors the property of the
estate shall be sold in the manner directed by the Master.[1]
The Master further instructed the executrix to consider the highest
purchase price for any asset, and that should the heirs disagree on
the purchase price, the Master’s office may consider sale by
public tender.


[6]
On 6 April 2010, the executrix applied to
the Master in terms of s 47 of the Act for the Master’s consent
to sell the farm to Mr Alexander Kamuhanga by private treaty rather
than by way of public auction. She indicated in her letter that she
was struggling to obtain the consent of the heirs to the sale of the
property. The Master responded to this letter on 23 April 2010
approving the request to sell the farm by private treaty, on
condition that the purchase price was not less than N$1,3 million,
that the majority of heirs consent to the sale and that preference be
given to beneficiaries.


[7]
As indicated above, the executrix then sold
the farm to Mr Alexander Kamuhanga for N$1,3 million.  Mr
Kamuhanga signed the deed of sale on 26 April 2010 and the executrix
signed on 3 May 2010.   The sale in April 2010 followed a
long chain of events in which various offers had been made to
purchase the farm.


[8]
In June 2009, the executrix obtained a
valuation of the farm from an independent appraiser valuing the farm
at N$1 249 320 and Mr Alexander Kamuhanga then agreed to purchase the
farm for that price.  At about the same time, according to the
third respondent, a Mr Hoveka, who apparently also goes under the
name Mr Tjakazenga Kamuhanga Kamuhanga, made an offer to purchase the
farm for N$900 000.  It is common cause that Mr Hoveka is not an
heir in Mr David Kamuhanga’s estate. When his offer was
refused, Mr Hoveka then made a second offer on 9 July 2009 in the
amount of N$1 000 000.  On 13 July 2009, he amended the offer to
N$1 100 000.  The executrix explained to Mr Hoveka that the farm
had been sold to Mr Alexander Kamuhanga.  On 28 July 2009, Mr
Hoveka made another offer of N$1,3 million for the farm.  Mr
Alexander Kamuhanga then agreed that he would match the selling price
of N$1,3 million notwithstanding that he had already signed a deed of
sale on the basis of a purchase price of N$ 1 249 000. 


[9]
Although there is some confusion on the
record as to what happened next, it appears that Mr Hoveka offered,
at least orally, to pay N$1,4 million for the farm. It is not clear
when this offer was made, but it seems certain that it was made
before 6 April 2010, because as set out above, on that date the
executrix wrote to the Master setting out what had happened with
regard to the sale of the farm, and applying, in terms of s 47 of the
Act, for the Master to consent to her selling the farm.  In her
letter, the executrix set out the facts many of which have been set
out in the previous paragraphs, including the valuation of the farm,
and mentioning that Mr Hoveka had made an offer of N$1,4 million for
the farm.


[10]
The executrix also noted that she was being
pressured to sell the farm on public auction, which, the executrix
pointed out would not be 'cost-effective' because it was not certain
that the farm would attain a purchase price at auction equal to the
current valuation, given the state of repair of the farm as reflected
in the valuation report.  The executrix pointed out that
according to the valuation report 'a large amount of money' would be
necessary to make the farm 'a viable farming operation'.  The
executrix also noted that if the farm were to be sold to a person
other than an heir, it would be necessary to apply for a waiver from
the government in terms of s 17(1) of Act 6 of 1995.  The letter
concluded with the executors requesting the Master 'to assist us in
this very urgent and long overdue matter and give us permission and
consent to sell to Mr Alexander Kamuhanga.'


[11]
As mentioned above, the appellant’s
legal representatives lodged an objection to the account in terms of
s 35(7) of the Act on her behalf. It is the dismissal of that
objection by the Master that the appellant seeks to have set aside in
these proceedings. The objection referred to five aspects of the
account.  It is reproduced here in full:


'Ad
item 1 thereof:


(i)
What happened to the offer of Mr Tjakazenga
Kamuhanga Kamuhanga in the amount of N$1,4 million which appears to
be N$100 000 more than the offer "accepted" by the
executrix?


 


(ii)
if the executrix decided to sell to the beneficiaries, why was the
agent of the executrix in the estate of late Simeon Kamuhanga not
informed of this new development to enable her to share this
information with her principal?


Ad
item 2 thereof:


Since
the said vehicle was under the direct control of Alexander Kamuhanga
since July 1997, kindly reflect its book value as at the date of
death, which surely will be more than the reflected amount. 
When was it decided that the said vehicle should be sold to Mr
Alexander Kamuhanga?  Again this aspect was not communicated to
us.  It appears that Alexander Kamuhanga is getting preferential
treatment with respect to the assets in this estate.


Ad
item 11 thereof:


What
was the bond of security taken out for, as the executrix was only
appointed in 2009?


Ad
Income and Expenditure account:


Will
the executrix kindly request Alexander Kamuhanga to pay in rentals
since date of death of David Kamuhanga (July 1997) as he has been
farming there since July 1997.  Our instructions are that at all
material times Alexander Kamuhanga had in excess of 200 cattle and
hence he is indebted to the estate in the amount of approximately
N$360 000.  That is a conservative rental amount of N$20 per
head of cattle.


Ad
Certificate:


It
is as such incorrect and misleading that the executrix declare that
to best of her knowledge and belief that income collected subsequent
to the death of the deceased to date have been disclosed when made no
effort to collect from certain debtors of the estate, ie tenant at
Farm Usagei.'


[12]
Upon
receipt of the objection, the Master forwarded the objection to the
executrix as the legislation requires her to do.[2] 
The executrix provided her with a response to each of the grounds of
objection on 13 September 2010 and the Master then responded to
appellant’s legal representatives on 15 November 2010 as
follows.


'Ad
para 1 thereof:


I
refer you to our letter addressed to you dated 25 August 2010.


Ad
para 2 thereof:


Having
taken cognizance of the fact that the 2.5 Nissan motor vehicle is a
1990 model and that certain efforts were made by Bengo Investments to
value same we hereby accept that the value per the liquidation and
distribution account until concrete proof is presented to our office
to the contrary.


Ad
para 3 thereof:


We
refer you to our letter addressed to you dated 25 August 2010.


Ad
para 4 thereof (Income and Expenditure account)


The
allegations contained herein were refuted and it has come to light
that your client the late Simeon Kamuhanga resided on the farm till
death without paying rent, that Alexander Kamuhanga acted [as]
caretaker of [the] farm without remuneration and also maintained
[the] farm at [his] own cost.


After
due consideration of your objection and having systematically dealt
with same, we hereby reject your objection and instruct Bengo
Investments to finalise the administration process.'


[13]
The Master’s letter of 25 August
2010, referred to in the letter of 15 November 2010 set out above,
was sent to the appellant’s legal representatives, Dr Weder,
Kauta and Hoveka. It read, in relevant part, as follows:


'Kindly
take notice that Emmerencia Coetzee of Bengo Investments CC was
appointed executrix by our office after same provided security in
terms of s 23 of Act 66 of 1965.  The bond of security is dated
12 March 2009 and the letter of executorship was issued on 31 March
2009.


Emmerencia
Coetzee approached our office for approval i t o s 47 of Act 66 of
1965 regarding the sale of the immovable property.  The Master
gave approval to the sale by private treaty provided the purchase
price is not less than N$1 300 000.00 and the beneficiaries are given
first option to purchase.


Hope
this clarifies certain issues raised in your objection.  We
forwarded your objection to the executrix and hope for a prompt
response.'


Proceedings
in the High Court


[14]
The High Court emphasised that the
application sought to review and set aside the decision of the Master
to dismiss the objection raised by the appellant.  It observed
that the Master’s decision was based on a discretion conferred
upon the Master by the Act.  The High Court also noted that the
legal basis for the review application was Art 18 of the Namibian
Constitution and that the applicant bore the burden of satisfying the
court that grounds exist to review the decision of the Master.


[15]
The High Court held that the Master’s
letter of 25 August 2010 must be read together with her letter of 15
November 2010 in which it was stated that she gave due consideration
to the objections lodged on behalf of the appellant. The High Court
also noted that the Master had given consent to the sale of the
property in her decision in terms of s 47 of the Act, and that
decision was neither unfair nor unreasonable.  The High Court
concluded that the appellant had failed to show that the Master acted
in bad faith, or from improper motives, or on the basis of extraneous
considerations, or under an incorrect view of the law of facts.
Accordingly the High Court dismissed the application with costs.


Appellants’
submissions


[16]
As to the preliminary objections raised by
the respondent relating to the standing of the appellant and the
service of the notice of motion on the Master, counsel for the
appellant argued that there had been proper service on the Master and
the fifth respondent; and that the
locus
standi
of the appellant to object to
launch these proceedings was established in the founding affidavit,
and was based on the fact that the appellant is the executrix in the
estate of Mr Simeon Kamuhanga, one of the heirs of Mr David
Kamuhanga.


[17]
Counsel
for the appellant also submitted that the Master had acted
unlawfully, unfairly and unreasonably and contrary to the provisions
of Art 18 of the Namibian Constitution[3]
in failing properly to take into account:


(a)  
the fact that the fourth respondent had had
possession of the farm since 1997, and benefited from that
possession, yet that benefit was not reflected in the liquidation and
distribution account;


(b)  
the offer to purchase the farm made by Mr
Hoveka in the amount of N$1,4 million when stipulating as a condition
for sale that the farm should be sold for an amount of not less than
N$1,3 million;


(c)  
the fact that the fourth respondent had
benefited from the use of the vehicle since 1997;


(d) 
that no written consent was received from the appellant for the sale
of the farm;


(e) 
that the appellant was not informed of the preferent right to
purchase the farm;


(f)
the interests of the minor children of Simeon Kamuhanga.


[18]
Counsel for the appellant also submitted
that the Master’s decision was unfair because the Master had
initially instructed the executrix to sell the farm to the highest
bidder, and then had changed her mind and said that the farm should
be sold for a minimum price of N$1,3 million, without affording the
appellant a hearing.


Respondents’
submissions


[19]
Counsel for the respondents raised several
preliminary challenges to the appeal. They first raised the question
whether there had been proper service on the first and fifth
respondents.  Counsel pointed out that in the court below
respondents had objected to the absence of proper service on the
Master, but that the High Court had noted that the original notice of
motion bore the stamp of the Office of the Master, as well as a date
stamp which led the court to conclude that there had been proper
service on the Master, even if a return of service was not filed by
the Deputy Sheriff.  Counsel for respondents persisted with
their argument that there had not been proper service on the first
respondent and also argued that there had not been proper service on
the fifth respondent, who had, nevertheless, filed a notice of
intention to defend.


[20]
The second preliminary argument raised on
behalf of the respondents related to the
locus
standi
of appellant. Respondents argued
that the basis of appellant’s
locus
standi
was not clearly set out in the
founding affidavit.


[21]
In response to the grounds of review raised
on behalf of the appellant, counsel for the respondents argued,
amongst other things, that –


(a)
there were no minor beneficiaries of the
estate of the late Mr David Kamuhanga, and the appellants’
assertion that the minor beneficiaries of the estate of his son, the
late Mr Simeon Kamuhanga, should be taken into account in finalising
the estate of his father was incorrect;


(b)
that it was not unreasonable or unfair of
the Master to stipulate a minimum price of N$1,3 million for the
farm, even given the offer of Mr Hoveka for N$1,4 million, given that
Mr Hoveka was not a beneficiary of the estate;


(c)
that the conduct of the executrix cannot be
attributed to the Master, and therefore complaints about the conduct
of the executrix cannot form the basis of a review of a decision of
the Master; and


(d)
that it appeared from the record that the
Master had properly applied her mind to each aspect of the objection
raised by the appellant and responded thereto and that it could not
be said that the content of her responses was unfair or unreasonable.


[22]
Before turning to the issues to be
considered in this appeal, there are several preliminary issues that
need to be addressed.


First
preliminary issue: Service on the Master and her failure to lodge an
affidavit


[23]
The first respondent, the Master of the
High Court, did not lodge a notice of intention to oppose, nor file
an affidavit setting out her response to the issues raised in these
proceedings. The High Court found that the record disclosed that
there had been proper service on the Master.  Nevertheless, it
is a matter of concern to this court that it should have to determine
this appeal on the basis of a record that does not include an
affidavit from the Master.  As it happens, the record in this
case contains a range of documents which clarify the Master’s
position, but in cases where questions remain as to the reasons for
the conduct of the Master, it may well be appropriate given the
important public mandate of the Master for a court pertinently to
call for an affidavit to be lodged by the Master.


Second
preliminary issue: locus standi of appellant


[24]
Respondents persist on appeal with their
assertion that the appellant has not clearly established the basis
upon which she has
locus standi to
prosecute these proceedings.  The respondents argue that it is
not clear whether appellant is acting in her personal capacity, or in
a representative capacity.  Respondents further argue that the
appellant does not say explicitly that she launched the application
in her capacity as executrix of the estate of Mr Simeon Kamuhanga.
The High Court dismissed their objection.  It is clear that as
executrix of that estate appellant would have
locus
standi
to lodge an objection to the
liquidation and distribution account relating to Mr David Kamuhanga’s
estate given that Mr Simeon Kamuhanga was one of the heirs in that
estate.  The appellant pertinently described herself in the
founding affidavit as acting in a
nomine
officii
capacity, and avers that she is
the executrix of Mr Simeon Kamuhanga’s estate, as well as one
of his heirs. Given the express reference by appellant in the
founding affidavit to the fact that she is acting
nomine
officii
and her statement that she is
executrix of Mr Simeon Kamuhanga’s estate, there is little room
for doubt that the appellant has
locus
standi
and that she asserts it in her
capacity as executrix of Mr Kamuhanga’s estate. Respondents’
arguments to the contrary cannot therefore be accepted.


Third
Preliminary issue: Application for condonation to supplement the
appeal record with missing affidavit


[25]
The respondents brought an application to
supplement the appeal record by including within it a confirmatory
affidavit made by the executrix on 30 July 2012, which apparently was
omitted from the answering affidavits lodged in the High Court in
error.  The appellant did not oppose the inclusion of the
confirmatory affidavit and no material prejudice will be occasioned
by its inclusion at this late stage.  Accordingly at the hearing
the court granted the application but reserved the question of any
costs relating to it for later decision.  This is matter to
which I will return at the end of this judgment.


Issues
for decision


[26]
The following issue arises for decision: 
Should this court review and set aside, in terms of s 35(10) of the
Act, the Master’s dismissal of the objection lodged on behalf
of the appellant in terms of s 35(7) of the Act?
  This
will require a consideration of –


(a) 
the proper approach to reviews brought in terms of s 35(10) of the
Act;


(b) 
whether the Master’s determination of the objection should be
set aside; and


(c)
What relief should be ordered, if any.


Each
of these will be considered in turn.


The
proper approach to reviews of decisions taken by the Master in terms
of s 35(10) of the Act


[27]
Section
35(1) of the Act provides that the executor of a deceased estate
shall lodge a liquidation and distribution account with the Master. 
The account will then lie for inspection at the Master’s
office[4] and the executor shall
publish a notice stating that the account is open for inspection.[5] 
Any person interested in the estate may lodge an objection, giving
reasons, with the Master to the liquidation and distribution
account.[6]  The Master
will provide the executor with copies of the objection[7]
and the executor must respond to the objection within fourteen
days.[8]  Having received
the response from the executor, the Master then determines whether
the objection is well-founded or not, and may direct the executor to
amend the account or make such other direction as she deems fit.[9]


[28]
Section 35(10) then provides that –


'Any
person aggrieved by any such direction of the Master or by a refusal
of the Master to sustain an objection so lodged may apply by motion
to the Court within thirty days after the date of such direction or
refusal or within such further period as the Court may allow, for an
order to set aside the Master’s decision and the Court may make
such order as it may think fit.'


[29]
It was argued on behalf of the appellant
that the review jurisdiction conferred on a court by s 35(10) should
be construed consistently with Art 18 of the Constitution, which
would require a court reviewing a decision of the Master to determine
whether the Master had acted reasonably, fairly and in compliance
with legal requirements in her determination of the objection to the
liquidation and distribution account.  The respondents did not
suggest that this approach was incorrect.  Is this the correct
approach to be followed?


[30]
The
provisions of s 35 are almost identical to the provisions of s 35 of
the South African Administration of Estates Act and, accordingly,
South African jurisprudence is of some assistance in interpreting the
provisions of s 35.  The generally accepted approach in South
Africa is that the Master cannot be expected to determine factual
disputes that exist between creditors, interested parties and the
estate as the section does not provide any procedures or structures
to enable the determination of factual disputes.[10]


[31]
Section
35(10) is drafted in almost identical terms to s 407(4) of the
Companies Act 61 of 1973, as well as s 111(2) of the Insolvency Act
24 of 1936, although these other provisions relate to the accounts
drawn in relation to liquidated companies, in the case of the
Companies Act provision, and insolvent estates, in the case of the
Insolvency Act provision.  In interpreting these provisions,
South African courts have taken the view that the power of the court
is to adjudicate a matter
de
novo,
rather
than as a matter of review, partly because of the language of the
section that provides that a court 'may make such order as it may
think fit'.[11] 
Nevertheless, it has also been held that where the court is
considering the question on the same record as the Master in that no
new facts have been placed before the court –


'the
Court should hesitate to substitute its own opinion for that of the
Master . . . unless it is clear that any particular ruling by the
Master is tainted by irregularity or error.'[12]



[32]
It
is clear therefore that although the South African courts have
interpreted their jurisdiction under these provisions in a broad
manner, they have also acknowledged that the Master’s rulings,
particularly on the facts, 'ordinarily deserve deference'.[13] 
There are good reasons for courts to be respectful of rulings made by
the Master given that she is the official entrusted with the
administration of deceased estates and is therefore an expert in the
field.  There are limits of course to this principle.  The
Master must act fairly and reasonably, and in compliance with law. 
These are the requirements that Art 18 of the Namibian Constitution
imposes upon administrative bodies and administrative officials.


[33]
Having considered the approach in South
Africa, it seems to me that the correct approach in Namibia to a
court’s powers under s 35(10) is to adopt the approach proposed
by the appellant and followed by the court
a
quo
which is to determine whether when
the Master determined the objection brought on behalf of the
appellant, she acted fairly, reasonably and in compliance with the
law when it dismissed the objections brought on behalf of the
appellant.  I turn now to consider that question on the facts of
this case.


Did
the Master act fairly, reasonably and in compliance with the law?


[34]
It will be helpful to consider each of the
three remaining objections separately.


(a)
The sale of the farm


[35]
The first objection had two parts, both
relating to the sale of the farm.  The first issue raised the
question whether in determining that the farm should be sold for
N$1,3 million proper attention had been paid to the offer of Mr
Hoveka in the amount of N$1,4 million.  The second raised the
question why the appellant had not been informed of the Master’s
decision to sell the farm to beneficiaries.


[36]
The executrix sold the farm to the fourth
respondent after seeking permission from the Master in terms of s 47
of the Act.  In seeking that permission, the executrix informed
the Master of the offer of N$1,4 million by Mr Hoveka, who was not an
heir, but also informed the Master that if the farm was sold to a
person other than an heir, it would be necessary to apply for a
waiver from the government in terms of s 17(1) of Act 6 of 1995. 
The request by the executrix, contained all the relevant facts
including the fact that there had been an offer of N$1,4 million by a
non-heir. After considering the request, the Master granted the
executrix’ application in terms of s 47, on condition that the
purchase price was not less than N$1,3 million, that the majority of
the heirs consent to the sale, that the sale was by private treaty
and that preference must be given to beneficiaries.


[37]
The appellant has never sought to review
the Master’s decision in terms of s 47 and it is arguably not
open to the appellant now to seek to challenge the Master’s
decision made in terms of s 47 by way of s 35(10) of the Act. 
She seeks to challenge that decision indirectly by challenging,
amongst other things, the price for which the farm was sold. Assuming
that the appellant may challenge the price stipulated by the Master
for the sale of the farm in these proceedings, something we do not
decide, it cannot be said that the price set by the Master was in the
circumstances unfair, unreasonable or unlawful.


[38]
In stipulating the price as well as the
other conditions for the sale, the Master clearly took into account
the interests of heirs. She set the price higher than the independent
valuation of the farm (N$1 249 320), and expressly recognised the
desirability of giving preference in relation to the sale of the farm
to heirs over third parties, given that the farm was a family asset. 
She also required that a majority of the heirs consent to the sale. 
It is correct that in so doing the Master permitted the sale of the
farm at N$100 000 less than had been offered by a third party, but
that decision recognised, as pointed out by the executrix, that the
sale to a third party would require a waiver from the government in
terms of s 17(1) of Act 6 of 1995 which would, at the least, occasion
delays and would mean that the farm would no longer be held by a
member of the family of the deceased but would be acquired by a third
party.


[39]
In assessing the Master’s decision,
it is important to recognise that there were a range of reasonable
decisions that the Master could have made in this regard, both in
relation to the determination of the minimum price and the conditions
set. It would not be appropriate for this court to seek to
'second-guess' the Master’s decision given the special role
conferred upon the Master in relation to the administration of
deceased estates, unless there is a sense that the decision made by
the Master is unfair or unreasonable in relation to the relevant
facts and interests. It cannot be said that the Master’s
decision in terms of s 47 of the Act to permit the executrix on
stipulated conditions was unfair or unreasonable.


[40]
Appellant argued that because the Master
did not explicitly refer to the offer by Mr Hoveka to pay $1,4
million for the farm in her letter of 25 August 2010, she did not
apply her mind to the fact of the offer.  But it cannot be
inferred that simply because the Master did not refer to the offer in
her letter of 25 August 2010 that she did not apply her mind to that
offer. Indeed, the circumstances would suggest otherwise.  The
executrix pertinently drew the attention of the Master to the fact
that as Mr Hoveka was not an heir in the estate, selling the farm to
him would require seeking permission for the sale, something that
would not necessarily be granted.  Indeed, the Master’s
express condition that the sale should be to a beneficiary of the
estate is an implicit acknowledgement of this risk.  Appellant’s
argument on this score therefore must be rejected.


[41]
The appellant also argued that the Master
did not adequately take the interests of Mr Simeon Kamuhanga’s
minor children into account in reaching her decision. The record
suggests the contrary, however. That the Master was aware of the
minor children is evident as she had referred to that fact in her
letter of 26 November 2009. There is accordingly nothing on the
record to suggest that the Master did not consider their interests in
reaching the decision she did and appellant’s arguments in this
respect cannot succeed.


[42]
Appellant also argued that the Master
should not have amended the conditions for the sale of the farm
initially set in her letter of 26 November 2009 without affording the
heirs an opportunity to be heard in that respect.  Here the
appellant seeks to challenge the process by which the decision under
which s 47 was reached. In our view, that is not something the
appellant can do as part of an objection to the liquidation and
distribution account.  The appellant could have sought to renew
and set aside the Master's decision in terms of s 47 but chose not to
do so.  It is not permissible to the appellant to seek to do so
indirectly through the mechanism afforded by s 35(10).


[43]
The
second leg of this objection relates to the alleged failure of the
executrix to draw the attention of the appellant to the conditions
set by the Master for the sale of the farm.  In written and oral
argument, counsel for the appellant sought to extend this aspect of
the objection to include the alleged failure by the executrix to
obtain the appellant’s written consent to the sale of the farm,
which it was argued, was required in terms of s 47 of the Act, as
well as the failure of the executrix to offer the farm for sale to
the appellant, and to inform the appellant that beneficiaries of the
estate had a preferent right to purchase the farm in light of the
conditions set by the Master.  The first thing that should be
noted in this regard is because the Master had issued a special
instruction in relation to the sale of the farm under s 47, the
ordinary requirement of s 47 that requires the heirs to consent to
the manner of the sale of estate property has no application to the
sale of the farm.[14] 
The appellant’s argument in this respect falls to be rejected.


[44]
There
is a dispute of facts on the papers as to whether the executrix
informed the appellant of the preferent right of the heirs to
purchase the farm, and whether she asked her to consent to the sale.
The executrix asserts that the appellant was informed of the
conditions for the sale of the farm stipulated by the Master and
given an opportunity to purchase the farm.  The appellant denies
this.  On the ordinary rules governing motion procedure, the
applicant’s case (here, the appellant) must be determined on
the facts alleged by the appellant that are not disputed by the
respondent, together with the facts asserted by the respondent, as
long as any denial by a respondent raises a real or bona fide dispute
of fact, as it does here. [15] 
Accordingly the appellant’s case cannot succeed.


[45]
Moreover, it is clear that this is an
objection that does not relate to the liquidation and distribution
account, nor does it relate to the conduct of the Master.  It
relates to the conduct of the executrix.  It is not a matter,
therefore, that can be raised by way of the procedure stipulated in s
35 (10), which is a procedure to determine whether objections to the
liquidation and distribution account should be sustained.  Section
35(10) does not create a general mechanism for relief in relation to
heirs’ complaints about the conduct of an executor in
finalising an estate.  On this basis too, appellant’s
claim cannot succeed.


[46]
We
note finally that the fact that s 35(10) does not provide a remedy to
the appellant here does not mean that a dissatisfied heir has no
remedy for maladministration by an executor.  On the contrary,
dissatisfied heirs have a common-law cause of action against an
executor to recover loss they have suffered as a result of the
executor’s maladministration of the estate.[16]
To succeed in such a case an heir will have to establish loss caused
as a result of maladministration by the executor.  This is not a
matter we need to consider further here. What is clear is that the
second aspect of the objection relating to the sale of the farm, and
the ancillary issues that appellant sought to raise in these
proceedings, do not relate to the liquidation and distribution
account and cannot therefore be raised under s 35(10) of the Act.


(b)
The valuation of the vehicle


[47]
The appellant complained that the vehicle
had been sold to Alexander Kamuhanga for N$18 000, the amount
reflected in the liquidation and distribution account.  The
objection noted that the vehicle had been under the control of
Alexander Kamuhanga since July 1997 and that the vehicle should
therefore have been valued at a higher value, namely the book value
of the vehicle in 1997, although the objection did not indicate what
the book value of the vehicle was in 1997.


[48]
The executrix informed the Master in
response to this objection that she had approached several motor
dealers for quotations in respect of the vehicle, and that they
confirmed the current value of the vehicle to be N$18 000, although
they told her that the vehicle was no longer in their systems,
apparently because of its age.  The executrix also asserted that
she had asked Ms Emmerentia Kamuhanga whether she wished to purchase
the vehicle, but she had declined and indicated that the executrix
could sell the vehicle for Mr Alexander Kamuhanga for N$18 000. 
The executrix also stated that she offered the vehicle to the
appellant who also declined to purchase the vehicle and stated that
the vehicle could be sold at book value.  The appellant denies
that she received this offer, but again as the approach referred to
in para [44] above, the respondent's version in this regard must be
accepted.


[49]
In the light of the executrix’
response, the Master dismissed the objection on this ground by saying
that the vehicle was a 1990 vehicle, that the executrix had taken
steps to value the vehicle, and that the Master was satisfied until a
contrary valuation was received by the Master that the valuation
proposed by the executrix should stand.


[50]
The vehicle in question was twenty years
old at the time that the liquidation and distribution account was
finalised.  It is not denied that the vehicle has been utilised
by Mr Alexander Kamuhanga in the period since the death of Mr David
Kamuhanga, although no details of the nature or extent of that use
appear from the record. Moreover, as the Master’s letter makes
plain the appellant in her objection proposed no alternative
valuation for the vehicle. In the circumstances, it cannot be said
that the Master’s rejection of the objection on this basis was
unfair, unreasonable or unlawful.


(c)
Occupation and use of the farm by Mr Alexander Kamuhanga not valued
and reflected in liquidation and distribution account


[51]
The appellant also complained that the fact
that Mr Alexander Kamuhanga had been farming on the farm since July
1997 should have been reflected in the liquidation and distribution
account.  The Master responded to this objection by stating that
it appeared that the appellant’s husband, Mr Simeon Kamuhanga,
had also resided on the farm until his death without paying rent and
that Mr Alexander Kamuhanga had served as a caretaker on the farm
without remuneration, and had maintained the farm at his own cost.


[52]
Again, the Master’s response seems to
be fair and reasonable in the circumstances.  The farm appears
to have been a family farm on which several of Mr David Kamuhanga’s
heirs resided after his death without paying rental. It does not seem
to have been unreasonable for the Master to take the view that it was
not necessary for the liquidation and distribution account to reflect
in cash terms the benefits received by the heirs who resided on the
farm after the death of their father.  Nor does it seem
unreasonable for the Master to have taken the view, on the advice of
the executrix, that Mr Alexander Kamuhanga had performed a service to
the estate by acting as caretaker of the farm without charge to the
estate.


[53]
The Master’s response to this
objection can also therefore not be faulted.



Conclusion


[54]
In the circumstances, it cannot be said
that the Master’s dismissal of the objection was unfair,
unreasonable or unlawful.  Accordingly, appellant’s appeal
must fail.



Costs


[55]
The appellant has failed in her appeal and
there is no reason why costs should not follow the result.  The
only exception to this is that the appellant should not be required
to pay the costs incurred by respondent relating to the application
for condonation for the supplementation of the appeal record with the
confirmatory affidavit made by the executrix, discussed above at para
[25].  There is no reason why the appellant should carry the
costs of the oversight by the respondents in this regard.



Order


[56]
The following order is made:


1.
The appeal is dismissed.


2.
The appellant is ordered to pay the costs
of the appeal, such costs to include the costs of one instructing and
one instructed counsel, but not to include the costs incurred by the
respondent in relation to the application to supplement the appeal
record.


O’REGAN
AJ






DAMASEB
DCJ






STRYDOM
AJA






APPEARANCES


APPELLANT:


2nd,
3rd and 4th RESPONDENT:


G.
Narib


Instructed
by Dr Weder, Kauta & Hoveka Inc.


B
de Jager


Instructed
by Du Pisani Legal Practitioners.



[1]Section
47 provides as follows: 'Unless it is contrary to the will of the
deceased, an executor shall sell property . . . in the manner and
subject to the conditions which the heirs who have an interest
therein approve in writing: provided that – (a) in the case
where an absentee, a minor or a person under curatorship is heir to
the property; or (b) if the said heirs are unable to agree on the
manner and conditions of the sale, the executor shall sell the
property in such manner and subject to such conditions as the Master
may approve.'




[2]
See s 35(7) of the Act.




[3]
Article 18 provides that: 'Administrative bodies and administrative
officials shall act fairly and reasonably and comply with the
requirements imposed upon such bodies and officials by common law
and any relevant legislation, and persons aggrieved by the exercise
of such acts and decisions shall have the right to seek redress
before a competent Court or Tribunal.'




[4]
Section 35(4) of the Act.




[5]
Section 35(5) of the Act.




[6]
Section 35(7) of the Act.




[7]
Id.




[8]
Section 35(8) of the Act.




[9]
Section 35(9) of the Act.




[10]
See, for example,
Broodryk
v Die Meester en ‘n ander
1991
(4) SA 825 (C) at 830H–I;
CP
Smaller (Pty) Ltd v The Master and others
1977
(3) SA 159 (T) at 163D–E; and
Ferreira
v Die Meester
2001
(3) SA 365 (O) at 370F–H.




[11]
See, for example,
South
African Bank of Athens Ltd v Sfier (aka Joseph) and others

1991 (3) SA 534 (T) at 536F–537A;
Fourie’s
Poultry Farm (Pty) Ltd v Kwanatal Food Distributors (Pty) Ltd (in
liquidation) and others
1991
(4) SA 514 (N) at 523H–525G.




[12]
See
Van
Zyl NO v The Master
2000
(3) SA 602 (C) at 607H.




[13]
Id. At 607G.




[14]
See
text of s 47 at n 1 above.




[15]
See
Mostert
v Minister of Justice

2003 NR 11 (SC) at 21G-H and
Hepute
v Minister of Mines & Energy

2008(2) NR 399 (SC) at 405E-F. This rule is often referred to as the
"Plascon-Evans" rule, after the leading South African case
Plascon-Evans
Paints v Van Riebeeck Paints
1984
(3) SA 623 (A) at 634H–635C.




[16]
See
Clarkson
v Gelb and others
1981
(1) SA 288 (W) at 295C–D.