Tlou v Mtsweni and Others (2025/182777) [2025] ZALMPPHC 198 (20 October
2025)
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The applicant (TDN), is the sister of the deceased. She applied for an order to restore
possession of tavern furniture and refrigerators whose possession was unlawfully
spoliated by the 1 st respondent (executor).
She also applied for an interdict restraining the executor from interfering with her
peaceful and undisturbed possession of the tavern furniture and equipment pending the
finalization of a challenge of the will of the deceased and the subsequent appointment
of the executor. This case is pending in the same Court.
Shortly after the passing away of the deceased on 13 June 2025, the executor
presented the applicant with a handwritten note commissioned by the SAPS Station
Commander, Dennilton (fourth respondent) purporting to be the last will
of the deceased. In terms of the said document, the 1 st respondent (executor) was
supposed to inherit the tavern of the deceased, as well as all the furniture in the said
tavern. The Master of the High Court, Polokwane (third respondent) accepted the will
and also appointed the 1 st respondent as the executor of the estate. On 19 August 2025
this information came to the knowledge of the Applicant.
The applicant did not accept the fact that the will was valid and brought an application
to declare the will invalid and for the third respondent to revoke the Letters of
Executorship. This application for the abovementioned relief is still pending.
The refrigerators which were utilized by the tavern were kept at the premises of the
deceased. Sometime after his passing away, these refrigerators were removed to the
parental home of the Applicant without the knowledge and consent of the executor.
Following the attainment of the Letters of Executorship, the executor started to initiate
processes to take ownership of the deceased’s tavern and the movable assets and
furniture contained therein.
On 2 October 2025, the executor, accompanied by members of the 4th respondent,
went to the house of the deceased and to the parental home of the applicant to remove
the moveable assets of the tavern, without obtaining permission from the family and
also without a court order entitling them to do so.
The application is opposed by the executor. He made the averment that since he is the
executor, he is entitled to collect the assets of the estate and he is storing the
refrigerators at his place of residence for safekeeping.
He further says that since the refrigerators were under the control of the deceased and
held at the tavern premises, nobody had the right to simply remove these refrigerators
without the knowledge and consent of the executor. The executor also provided proof
that the refrigerators were not part of the assets of the estate as they belong to the
South African Breweries (SAB).
The Court (Bresler AJ, acting) referred to section 26(1) of the Administration of Estates
Act, 66 of 1965 and found that the said section is not only mandatory, but that it
encompasses the crux of what the duties of an executor entail.
The Court further found that section 26 pertinently refers to the “property, books and
documents in the estate”. Since the refrigerators belong to SAB, it is clear that they are
not property in the estate.
The Court then found that section 11 of the Administration of Estates Act, supra, caters
for a situation where a person, who immediately after the death of the deceased has
possession or custody of any property, book or document which belonged to, or was in
the possession or custody of the deceased at the time of his death, such person must,
immediately after the death, report such property to the Master. He/she must also, upon
written demand, surrender the property to the Executor unless he/she has some right to
remain in retention thereof.
The Court thus found that it is evident that the Executor must take possession and
control of property forming part of the deceased estate and property that was in
possession or under the control of the deceased. There is no need for an executor to
first obtain the approval of the Master or the Court, since he is entitled to do so ex lege.
The last aspect which the Court considered, was whether the applicant was in
possession of the property for purposes of a mandament van spolie? Two elements are
essential for protection against spoliation, namely detentio (the physical holding of and
control of the thing) and animus (the intention of securing some benefit for oneself).
The refrigerators were moved to the house of the Applicant’s parents and are therefore
not under her control. Furthermore, the Applicant testified that the refrigerators were
removed from the tavern to safekeep them for benefit of the estate. Therefore, the
applicant also did not have the necessary animus.
The Court dismissed the application and the Applicant was ordered to pay the costs.
This case confirms the rights of executors to take under his/her control the property of
the estate, as well as property which was under the control of the deceased.
Summarised by Jan du Plessis, FISA CEO