HIGH COURT OF SWAZILAND MANDLA LUKHELE
THE MASTER OF THE HIGH COURT et al
Case No. 2619/2003
S.B. MAPHALALA – J
the Applicant MR. B. V. ZWANE
the Respondents MR. B. G. MDLULI
court is an application which was brought under a Certificate of
Urgency for an order, inter alia authorising and directing the 3rd
and 4th Respondents to release to Applicant all monies held by them
in or as proceeds from the sale of sugar cane from Certain SF 43
based in Vuvulane Farms; interdicting and restricting the 1st
Respondent from interfering in anyway whatsoever with the Applicant's
occupation and use of the said "Farm" being SF 43 on the
Vuvulane Farm, and costs hereof against the 1st Respondent.
Applicant has filed an affidavit in support of his application
wherein he outlines the substantial facts in support thereto.
Pertinent annexures are also filed of record.
Respondents oppose the granting of the application and the answering
affidavit of the 6th Respondent is filed to that effect. In the said
affidavit various points of law in limine are advanced together with
averments on the merits. This judgment concerns the examination of
the said objections raised in limine.
turn, the Applicant has filed a replying affidavit to the answering
affidavit of the 6th
points of law in limine may be paraphrased as follows:
standi - that the Applicant has no locus standi to launch this
application in as much as the subject matter thereof is property of
the estate/s of their deceased parents.
joinder - that Applicant has deliberately failed and/or omitted to
join the heirs of the estate,
- that Applicant has not complied with the requirements of Rule 6
(25) in as much as he has failed to set forth explicitly the
circumstances he avers render the matter urgent.
of fact — that Applicant knew or ought to have known that a
serious dispute of fact was bound to develop. These disputes of fact
are listed in paragraph (10) (a), (b) and (c) of the 6th
Respondent's answering affidavit.
must state en passant that on point number ii) of non-joinder an
application for joinder of the 5th, 6th, 7th and 8th Respondent was
granted by Annandale ACJ on the 24th October 2003. Therefore no
further mention of this aspect of the matter will be necessary for
purposes of this judgment. So is the issue of urgency advanced as the
third point mentioned above. When the matter came for argument it was
conceded on behalf of the Respondents that this issue has to a large
extent been overtaken by events, regard to the fact that the
application itself was launched in October 2003, and it is only now
that it is being argued. The Respondents expressed the view though
that it was important that this matter be disposed of as soon as
possible as the 1st Respondent's cannot proceed any further in the
winding up of the estate.
the first objection it was contended on behalf of the 5th, 6th, 7th
and 8th Respondents that Applicant has no locus standi to bring this
application. That it is trite law that only an executor in a deceased
estate has the locus standi to litigate on behalf of an estate.
Reliance was placed on the authority in the case of Howood vs Howood
1936 (1) P.H. 724. In this regard it was argued that the subject
matter of the dispute herein is indisputably an asset in the estate
of the late Minah Lukhele.
the remaining point of law in limine, viz, that there is a dispute of
fact, it was contended that Applicant knew or ought to have known
that a serious dispute of fact was bound to develop. It was submitted
in this regard that in his own evidence Applicant knew, firstly, that
the 1st Respondent was unwilling to withdraw the directive contained
in the letter of the 22nd August 2003, addressed to the Chairman of
V.I.F and hence knew that 1st Respondent disputed Applicant's right
to claim such withdrawal. Secondly, Applicant knew that the heirs
and/ or next of kin had been to the Master of the High Court
disputing Applicant's right to collect the proceeds of the sugar cane
sold; and thirdly, that Applicant knew that there was a dispute
pertaining to the ownership of the money he sought to have the Master
of the High Court release.
Applicant on the other hand argued au contraire on the point of law
of locus standi that this point cannot stand as this application is
that his monies have been frozen and as such was suing in his
personal capacity. He has not said that he was acting as an executor
as seems to be the basis of this point of law in limine.
the issue of the disputes of fact it was contended for the Applicant
that the disputes of facts alluded to by the Respondent are issues
that will be disposed of by a decision on whether the monies due and
frozen are estate monies or not. Further on this point that this is a
question of law. The court is to determine whether the 1st Respondent
had the necessary authority to freeze the proceeds of the farm
payable to the successor.
delving on the points raised, I find it important to briefly sketch
the history of the matter for a better understanding of the issues in
this case. The proceeds which are now the subject matter of this
litigation eminate from the sale of sugar cane from
SF 43 based in Vuvulane Farms. This farm is under the Vuvulane
Irrigated Farm Scheme in the Lubombo Region.
farmers engaged in this enterprise were allocated portions called
"Farms" to use for farming but never acquired ownership of
such portions. Farmers then formed groups under which they conduct
their business. Such groups then deal with the 4th Respondent as
representative of the farmers under them. According to the scheme any
farmer allocated use of a portion has to nominate a person that will
be responsible or take over the use in the event of his or her death.
In that token, the Applicant's mother who is now late appointed the
Applicant to be the person to take over the farming on her Farm No.
the 19th May 2000, the Applicant was nominated at a next of kin
meeting held before the Siteki Regional Administrator as a successor
to the late Minah Lukhele (mother) of Farm SF 43.
to the Applicant the "Farm" he was farming never belonged
to his mother and therefore can never be part of her Estate. The farm
devolved into his possession by operation of the Rules and
Regulations of the owners and/or Managers of the Vuvulane Farms being
Vuvulane Irrigation Farms (Pty) Ltd. According to him the proceed
from the farm are from his own inputs. Therefore the 1st Respondent
has no authority whatsoever to stop 3rd and 4th Respondent from
making payments to him of the monies due to him.
6th Respondent, who filed the Respondents' answering affidavit, is a
blood sister of the Applicant and one of the heirs in the joint
estates of their deceased parents, namely the late Abel Madevu
Lukhele and the late Minah Lukhele. The version of the Respondents is
that the family made a report of Applicant's mishandling of the
Estate assets viz, the farm earning and as a consequence the Master
of the High Court called a meeting of the family members including
the Applicant. In this meeting it was made clear to the Applicant
that he was neither the duly appointed executor nor the legal
administrator of the Estate and had been doing so purely for
convenience by the leave and licence of the family. It was further
indicated to him that pending the resolution of the dispute that had
arisen and the regularization of the estate by a
and legal appointment of an executor and administrator, or proper
representative of the estate, the funds would be frozen in the hand
of the paying agent, V.I.F.
outlined the essential facts in this case I now proceed to consider
the remaining points of law in limine, viz i) the issue of loci
standi and iv) the disputes of fact. I shall consider these
objections ad seriatim:
this point Mr. Zwane who appeared for the Applicant relied on what is
said by the author T W Bennett in his work entitled "Application
of Customary Law in Southern Africa" at page 226 to support his
argument that since the Applicant's mother died interstate her estate
therefore stands to be determined by customary law. Further as a
consequence the Master of the High Court has no legal authority to
apply the Adminstration of Estate Act, 28 of 1902. The learned author
puts it this way at page 226 in fin 227:
Swaziland the Administration of Estates Act lays down, in s68:
any African who during his lifetime has not contracted a lawful
marriage, or who, being unmarried is not the offspring of parents
lawfully married, dies interstate, his estate shall be administered
and distributed according to the customs and usages of the tribe or
people to which he belonged".
choice of the term "lawful" marriage is unfortunate:
presumably it means a civil/Christian marriage and, as such, is a
legacy of the early Transvaal prejudice against customary unions. In
Lesotho the form of the marriage (at the time of the deceased's
death) was one of two factors to be taken into account in deciding
what law to apply to the administration of estates. In Swaziland (and
in Zimbabwe, which follow below) marriage is the sole criterion for
deciding the law to be applied. Both here and in Zimbabwe there is
every likelihood that on intestacy the estate of the spouses will
devolve according to customary law, whatever the form of their
marriage happened to be. In these circumstances, the application of
the common law of administration seems incongruous. Conversely, of
course, the common law will not necessarily apply even if the
deceased left a will.
argument taken further in this regard is that the nomination of the
Applicant in a next of kin meeting held before the Siteki Regional
Administrator on the 19th May 2000, clothed him with the necessary
loci standi to institute these proceedings.
appears to me though that the Applicant on his own papers is confused
as to what gives him the necessary loci standi to make this
application. On one hand he is acting on his own personal capacity,
and in the other hand he is relying on his nomination by his mother
to administer the "farm" upon her death. Further still the
confusion continues in that he relies also on his nomination by the
next of kin before the Siteki Regional Administrator on the 19th May
considered all the facts of this matter and the arguments advanced
for and against the objection of loci standi I have come to the
conclusion that Applicant has no loci standi to institute these
proceedings. The Applicant was nominated for the benefit of the
estate and therefore he cannot claim any personal benefits before the
estate is wound up. It follows therefore from this that the Master of
the High Court is perfectly entitled to invoke the provisions of the
Administration of Estate Act, as he did. The issue, in my view of
whether the deceased died testate or interstate will fall to be
determined by the Master of the High Court following the procedure
laid out by the Act. It would appear to me further that the actions
of the Master of the High Court are proper to secure the status quo
ante pending the winding up of the estate in whatever regime i.e, the
common law or the customary law.
the afore-going reasons I have come to the considered view that the
Applicant has no loci standi and I therefore uphold the point of law
in limine raised in this regard.
the result, the application is dismissed and costs to follow the