The Western Cape High Court ruled earlier this year that Regulation 910 is still in force.
Koch v Weiland N.O. and Another  ZAWCHC 96
The plaintiff (K) sued the first defendant (W) in the Western Cape High Court for an amount of R1,296,622.96 based on 90% of the maximum regulated executor’s fee in the deceased estate of W’s mother, P. W is the appointed executor in the deceased estate of P. The second defendant is the Master of the High Court in Cape Town, who abided by the decision of the court.
W appointed K as her agent to see to the administration of the estate on the basis that K would do all the work and would be entitled to the executor’s fee. The claim for 90% of the fee was based on the fact that W terminated the agreement to appoint K prematurely, but according to K’s pleadings at a time when 90% of the work had been done already.
W excepted to K’s claim on the basis that the particulars of claim failed to disclose a cause of action. The basis of the exception is that K is prohibited from administering deceased estates under the provisions of the Regulations prohibiting the liquidation or distribution of the estates of deceased persons by any person other than an attorney, notary, conveyancer or law agent (“the regulations”), unless he falls within one of the categories of persons who are allowed to under or are exempted from the provisions of the regulations. W averred that there was no mention of such qualification or exemption in K’s particulars of claim.
The regulations are those which became known as Regulation 910, as promulgated in Government Gazette 2080 of 22 May 1968, and later amended.
After dealing with the requirements for an exception and finding that W satisfied those requirements, the court (Van Zyl AJ) dealt with the question of whether the regulations were still in existence. The court held that:
- The regulations were perpetuated by section 86(3) of the Attorneys Act, 53 of 1979 (the 1979 act), because it provided that anything done or deemed to have been done under the original act under which the regulations were promulgated (the Attorneys, Notaries and Conveyancers Admission Act, 23 of 1934 (the 1934 act)) remained in force as if done under the 1979 act;
- Section 119(2) of the Legal Practice Act, 28 of 2014 (the LPA, which repealed the 1979 act), provides that any regulation made under any act repealed by the LPA remains in force unless inconsistent with the provisions of the LPA. Therefore, the court held, the regulations are still in force as it is not inconsistent with the provisions of the LPA.
The court also dealt with the question of whether the regulations apply to K as K is not the appointed executor, but the agent of the appointed executor, W. The court held that the regulations are about who are permitted to administer a deceased estate, not who are permitted to be the appointed executor. To allow agents who do not qualify under the regulations or who are not exempted from them to administer deceased estates would defeat the purpose of the regulations.
The court therefore upheld the exception and gave the plaintiff ten days to amend his particulars of claim, failing which the first defendant could apply for dismissal of the claim.
There is possibly room for criticism of the court’s decision about the remaining in existence of the regulations after the 1979 act was repealed by the LPA. The wording of section 119(2) of the LPA refers to regulations that “made under any law” repealed by the LPA. The regulations were not made under the 1979 act, but under the 1934 act. The 1934 act was not repealed by the LPA, but by the 1979 act. Therefore, a view exists that the wording of section 119(2) of the LPA is not wide enough to have saved the regulations. However, at least as far as the Western Cape is concerned, the judgement is now the definitive expression of the status of the regulations.