SWAZILAND
HIGH COURT
MUIR
WINNIE
Applicant
Vs
MASTER
OF THE HIGH COURT OF SWAZILAND
1st
Respondent
DLAMINI
S.C. NO
in
his capacity as executor dative
in
the estate of the late Robert Martin Muir
2nd
Respondent
MUIR
Gary
3rd
Respondent
MUIR
Diana 4th Respondent
MUIR
Richard 5th Respondent
MUIR
Melanie 6th Respondent
Civ.
Case No. 3031/2000
Coram Sapire,
CJ
For
Applicant MR. SHILUBANE
For
Respondents S.C. DLAMINI
2
JUDGMENT
My
judgment in this matter was delivered in open court. Unfortunately
the recording machine was unbeknown to me and to the operator not
functioning properly at the time. No transcription of the judgment is
accordingly available.
At
the request of parties I am now repeating my reasons for the order
which I made.
The
applicant seeks the setting aside, reviewing and correcting of the
Master's ruling dated 8th August 2000 in which the applicant's
objection to 2nd respondent's first liquidation account in the estate
of the late Robert Martin Muir was dismissed. The application is made
in terms of Rule 53 and accordingly the notice of motion called upon
the Master as 1st respondent to dispatch within 14 days of receipt of
the notice of motion, the record of such proceedings sought to be
corrected reviewed and or set aside with reasons as he may by law be
required to make and to notify the applicant that he has done so. The
applicant also asks for the costs of the application.
In
the founding affidavit the applicant after describing the parties has
recited that the 2nd respondent in his capacity as executor dative in
the estate of the late Robert Martin Muir prepared a first
liquidation and distribution account in the estate and filed it with
the 1st Respondent on the 2nd August 1999. A copy of the account is
annexed to the founding affidavit.
The
applicant objected to the account and her objection is annexure "WM3"
to the founding affidavit. In it a number of matters are raised. I
will not at this stage deal with them as the grounds for review. A
number of issues that, although mentioned in the letter of objection,
are not persisted in as grounds for review.
The
Master called on the 2nd respondent to comment on the objection and
the respondent in due course filed his comments. This exchange
comprises annexures "WM4" and "WM5". The Master
thereafter invited the applicant to reply to the 2nd respondent's
comments, which she did in annexure "WM6".
The
1st respondent did not immediately make a ruling on the objections
and it required an order of this court to obtain satisfaction from
him in this regard. The 1st respondent filed his ruling on the 8th of
August 2000 only after a third application had been made requesting
the court to make a ruling on his behalf.
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The
first ground, on which review is sought, is that the respondent was
biased against the applicant in dismissing her objection in that he
considered irrelevant considerations by claiming that the applicant
was seeking maintenance from the estate for her children Ryan and
Natasha when in fact they were not staying with her.
This
ground is not a ground for review. It is for the applicant herself to
make the claim on the estate if necessary going to court so to do. It
is up to the executor to admit the claim or to oppose it and if he
chooses the latter course the matter will have to go to court. The
question of whether or not the Applicant is, or her children are
entitled to payments in respect of maintenance is not one which the
Master can determine.
The
second point on which review is sought is that the decision by the
2nd respondent to sell the Mercedes Benz and Nissan LDV was grossly
unreasonable. Whatever the case may be the fact is that the sales
were concluded and as far as the account is concerned it reflects
what was in fact done, whether done properly or not. It is not
possible at this stage as far as I am aware to set aside the sale or
to require the account to be redrawn to reflect anything other than
what had happened. If the executor has acted unlawfully, negligently
or otherwise improperly a claim will lie against him for
misadministration. This however is not a matter concerning the
propriety of the account.
The
third matter stands on a different footing. The 1st respondent's
decision in allowing the 2nd respondent's fees of E35 000.00 is said
to be grossly unreasonable. The applicant states that this is
contrary to the tariffs set out in the schedule A of Act No. 28 of
1902 a copy of which was annexed to the papers marked WM9 for
convenience. Under this heading the applicant also objects to the
respondent's decision in allowing the 2nd respondent to claim the sum
of E40 000.00 as legal fees. It is not clear as to the basis this
amount is claimed upon. Bear in mind that the executor is himself an
attorney he is not in law entitled to claim professional fees for
legal services. This principle has been stated many times. It is not
clear however in this case how the amount is arrived at or what it
represents. To allow such an amount as a debit the amount should be
specified and its legality demonstrated in the account. In this
respect the Master's decision to dismiss the objection is to be set
aside and he is to require the executor to specify all amounts
claimed in this regard. This is to some extent foreseen in the
Master's reasons but he did not follow through what he had stated and
there is no suggestion that the executor had given any details as to
the amount claimed in this regard. The application for review is
accordingly allowed with costs, which are to come from the estate.
The
4
Master
is to require the Executor to redraw his account so as to demonstrate
his entitlement to all fees claimed.
SAPIRE,
CJ
