Bester N.O v Master of the High Court and Another [2023] ZAWCHC 208
The applicant (B), the executor in the deceased estate of the late H brought an application for an order authorising him to sell an immovable property on specified terms and conditions in order to realise sufficient funds to finalise the estate. The application was opposed by the second respondent, F, the surviving spouse of H. B was appointed as executor in the estate in 2018. Apart from the immovable property, the residence in which H and F lived, the estate consisted of motor vehicles, furniture and some cash. There was also a claim in favour of the estate relating money that one L owed the deceased. Initially L undertook to pay the money back at a rate of R15,000 per month, but since mid-2020 the payments ceased. L still owed the estate around R120,000. At the time of launching the application the estate was illiquid for some time, presumably due to the payment of maintenance to F pending the finalisation of the estate. Around R200,000 would be needed to finalise the estate. B decided to sell the immovable property as sequestration of L’s estate was not considered a viable option due to the uncertainty of any dividend from his insolvent estate and the costs involved. In September 2020 B notified the Master of the High Court that he intends selling the immovable property to generate cash to finalise the estate and asked for the Master’s determination of the manner and conditions of such a sale of the property under the provisions of section 47 of the Administration of Estates Act, 66 of 1965. The Master did not respond to B’s written communications, despite written reminders, and by June 2021 B wrote to the Minister of Justice who also did not respond. B then approached the court for the order authorising him to sell the property and asked the court to substitute itself for the Master in taking the decision on the manner and conditions of sale.
The court (Hofmeyr AJ) refused to substitute itself for the Master in taking the decision on the basis that, although B made out a strong case based on the further delays that would be caused by referring the matter back to the Master and the general state of dysfunction in the Master’s Office, B did not address the other requirements that a decision would be a foregone conclusion and that the court is in as good a position to determine the manner and conditions of sale as the Master. The court, however, ordered the Master to exercise the discretion about the manner and conditions of sale within two months of the order and warned that failure to do so would amount to contempt of court. The court also accepted that the decision to sell is that of the executor in a deceased estate and that section 47 only extends a discretion to the Master to determine the manner and conditions for sale.