Henwood v Henwood and Others (77/2018) [2018] SZHC 32 (27 February 2018);

 

 

IN THE HIGH COURT OF SWAZILAND

JUDGMENT

                                                                                                            CASE NO. 77/2018

HELD AT MBABANE                                                                     

In the matter between:-

PIUS HENWOOOD N.O.

(Executive Dative in the Estate Late

Richard Clarence Henwood)                                                                  APPLICANT

And

EFFIE SONYA HENWOOD N.O.

(Executrix Dative in the Estate Late

Israel Clarence Henwood)                                                                   1st RESPONDENT

THE MASTER OF THE HIGH COURT                                         2nd RESPONDENT

THE REGISTRAR OF DEEDS                                                        3rd RESPONDENT

THE ATTORNEY GENERAL                                                         4th RESPONDENT

Neutral Citation:   Pius Henwood v Sonya Henwood & 3 Others [77/2018] SZHC 32  

                             [2018] [27 February 2018]

 

Coram              :  LANGWENYA J

Heard               :  2 February 2018; 5 February 2018;

Delivered         : 27 February 2018

Summary      : Civil Procedure-administration of estates-urgency- Executor dative                               sells property of the estate with a view to distribute proceeds to all                       beneficiaries-First respondent is executrix dative in the estate of one                               of the beneficiaries and is in possession of the title deed of the property                that has been sold by the executor dative-executrix    dative complains                      that interests of the estate she represents have not been                                               acknowledged nor provided for in the final liquidation and distribution                account-she further complains that the executor dative did not so much                  as follow section 49 of the Administration of Estates Act-The executor                     dative sold property and           purchaser issued a bank guarantee(s) which                            expired on 21 August 2017 and 30 November 2017.  Urgency-third                          guarantee expires on 28 February 2018.      

JUDGMENT

 

INTRODUCTION

[1]     On 2 February 2018, the applicant Pius Henwood in his official capacity as           executor dative in the estate of Richard Clarence Henwood, approached this           Court on an urgent basis for the following relief:

          1.       Dispensing with the requirements of the Rules of Court pertaining to                         service of process and time limits and enrolling the matter as one of                            urgency.

          2.       Condoning the applicant’s non-compliance with the Rules of Court;

          3.       Directing the First respondent to hand over to the applicant the original           Deed of Transfer for Portion 2 of Farm No. 926, situate in the                                     Lubombo (formerly Hlatikulu) District, kingdom of Swaziland that is                          currently in her possession or that of her attorneys.

          4.       Directing the third respondent to uplift and/or set aside and/or remove              any or all caveats and/or encumbrances that the first respondent has                           placed over           portion 2 of farm no. 926, situate in the Lubombo                                    (formerly Hlatikulu) district of Swaziland.

          5.       Setting aside and/or removing the interdict placed by this Honourable                         Court          by Court Order of the 28th November 2001 or any other interdict                    placed by this Honourable Court over portion 2 of farm no. 926 situate             in the Lubombo (formerly Hlatikulu) district of Swaziland.

          6.       Directing the fourth respondent to register and transfer portion 2 of                           farm 926 situate in the Lubombo (formerly Hlatikulu) district of                       Swaziland to the purchaser, Swaziland Water and Agricultural                                    Development Enterprise          Limited (SWADE) after compliance with                       Orders 2, 3, 4 and 5 above.

          7.       Costs of suit against the first respondent at an attorney and own client             scale and against any of the respondents in the event they oppose this              application.

          8.       Any further and/or alternative relief that this Honourable Court may                         deem meet.

 

 

 

 

Background

[2]     The applicant is executive dative authorized to administer the estate of his           deceased father Richard Clarence Henwood (the deceased) who died on 14           February 1975. The first respondent is the executrix dative authorized to           administer the estate of Israel Clarence Henwood who was one of the sons of    the deceased.   Israel Clarence Henwood died on 31 August 1981.

 

[3]     On or around 10 November 1975, Eric Martin Carlston (Carlston) was   appointed executor of the estate of the deceased. As the executor, Carlston     sold and transferred a number of immovable properties on behalf of the estate         of the deceased. In 1987, Carlston is purported to have sold Portion 2 of Farm   926, situate in the Lubombo District (the farm) to the first respondent’s         husband, the late Israel Clarence Henwood.

 

[4]     In the year 2000, after he had compiled and issued a first liquidation and           distribution account of the estate of the deceased, Carlston left Swaziland           resulting in the office of the executor in the estate of the deceased becoming           vacant. The first liquidation and distribution account reflects that the farm was           sold to John M Sikhondze and Israel Clarence Henwood for E46 000.00 (forty-six thousand Emalangeni only).

 

[5]     The applicant and his sister Monica Mathews replaced Carlston as co-    executors. When Monica Mathews died, the applicant became the sole   executor dative of the estate of the deceased.

 

[6]     Acting in their capacities as co-executors of the estate of the deceased, the           applicant and Monica Mathews obtained an interim interdict against the first           respondent stopping her from transferring the farm from the estate of the           deceased to the estate of the late Israel Clarence Henwood. The interim    interdict issued pending the finalization of an application to set aside the      purported sale of the farm from the estate of the deceased to the estate of Israel      Clarence Henwood. The interim order was placed at the Registrar of Deeds       office to prevent the transfer of the property pending the finalization of the     application. Despite the finalization of the application and the setting aside of   the purported sale, the interim order has never been uplifted[1]. The effect of   the Supreme Court decision is that the farm remained in the custody of the      applicant as executor of the estate of the deceased.

 

[7]     The first respondent has in her possession the original title deed of the farm      and refuses to hand over same to the applicant. The first respondent’s refusal         to uplift the interdict and hand over the title deed of the farm to the applicant        (in her words) is aimed at protecting the estate of the late Israel Clarence         Henwood…in the face of the applicant’s refusal to acknowledge the first         respondent’s claim[2].  It was argued on the first respondent’s behalf that she is not in wrongful possession of the title deed; that she is holding on to the title           deed because the executor dative has failed to address the first respondent’s          claim in a lawful manner.

 

[8]     In my view, the first respondent’s conduct amounts to obstruction of the           executor from discharging his statutory duties. Any form of self-help as evinced by the first respondent in this regard cannot be countenanced as it is   a recipe for chaos and lawlessness. It is contrary to the rule of law. The first   respondent’s contention that she is not in unlawful possession of the title deed         of the farm flies in the face of the well-established principle that custody of          the estate-its assets, both movable and immovable property- vest in the       executor until he has discharged his obligations by filing a liquidation and   distribution account with the Master. For this reason, the first respondent’s        contention cannot, therefore be countenanced.

 

[9]     The distribution of the assets of a deceased estate is an important element of     the winding-up of the estate and this involves the need to liquidate the assets.         The attitude of the first respondent frustrates the very object of the       administration and winding up of the estate. The farm needs to be liquidated       in order to administer and wind-up the estate; and this cannot happen for so        long as the first respondent refuses to hand the original title deed to the applicant; uplift the interdict and other caveats at the Deeds Registry as well   as at the Master of the High Court office.

 

[10]   In any event section 37 (1) of the Administration of Estates Act[3] (the Act)           makes it obligatory for the applicant to take possession of the farm in order to           liquidate it, since the first respondent cannot claim that she is entitled to retain it following the setting aside of the purported sale of the farm to the first    respondent by the Supreme Court. Since the sale agreement was declared void       ab initio by the Supreme Court the first respondent has no right of retention           of the title deed of the farm. Section 37 (1) of the Act is peremptory and the   applicant has no discretion in this regard[4].

 

[11]   The first respondent’s claim is based on monies paid to Carlston for the purchase price of the farm and for costs of suit before the Supreme Court.    Through the letter of 15 December 2017, the applicant’s attorneys undertake        to hold and not distribute the amounts claimed by the first respondent ‘pending        the vetting and/or proof and/or full consideration of [the applicant’s] claim in terms of law[5]’ In the same letter, the applicant confirms that an amount of     E1.100million  will be set aside as security for the first respondent’s claim        provided that first respondent hands over the title deed, uplifts the interdict,         caveat and or any encumberances at the Master’s office and at the Deeds           Registry office over the farm.

 

[12]   The first respondent lodged a claim against the estate of the deceased on 20           October 2015[6].  On 31 October 2017 the first respondent requested the             appellant to furnish her with a copy of the liquidation and distribution account           in the estate of the deceased[7]. Through the letter of 31 October 2017 the first           respondent objected to any distribution of the assets unless her claim is   properly dealt with. The letter was copied to the Master of the High Court.   The applicant’s attorneys wrote to say the objection was premature as it came        before the publication of the liquidation and distribution account[8]. On 22       November 2017 the first respondent’s attorneys wrote to the applicant’s attorneys and lodged an objection to the second liquidation and distribution   account of 31 October 2017. The reason for the first respondent’s objection was that no provision had been made for the amount of her claim of E863,      604.77; no provision for the estimated sum of E200,000.00 was made for her           costs as ordered by the Supreme Court in Case No. 17/2005. Through the letter           of 22 November 2017, the first respondent requested the Master of the High           Court not to grant the applicant authority to distribute the assets in the estate   of the deceased[9]. The Registrar of Deeds was also advised to register a caveat        on the estate’s property.

          It was submitted on behalf of the applicant that the first respondent’s claim      does not appear on the second and final liquidation and distribution account   because it was refused by the applicant.

 

Disputed Claim

[13]   If the executor disputes any claim against the estate of the deceased, he may           request the claimant to substantiate his/her claim by affidavit. Section 46 of      the Act is apposite in this regard and it reads as follows:-

                             ‘(46) (1) Any executor may, if he thinks fit, require any person                                                          preferring any claim as a creditor against the estate of which he                                                       is the executor, to substantiate such claim by an affidavit setting                                                        forth the details of such claim, with such particularity as the                                                          executor may reasonably require, and may refuse to recognise                                                        such claim until such affidavit has been delivered to him’

 

[14]   The above section is not couched in peremptory language. In other words, it     is not mandatory for the executor to require that the claimant substantiate his/her claim against the estate of the deceased through an affidavit. Accordingly, the applicant was at large not to avail himself of the machinery          provided for in section 46 of the Act if he so chose.

 

[15]   If the executor does not avail himself of the machinery provided and also does not admit the claim, the first respondent, on successfully establishing her       claim by action, will be awarded costs against the estate of the deceased[10], or if the executor unjustifiably or unreasonably rejects the claim, costs may be   awarded against the executor de bonis propriis (that is, payable personally by      the executor)[11].

 

[16]   It suffices to note that the applicant has, in the papers before this Court   agreed to make provision of the total amount of E1, 063,664 (one million and        sixty three thousand six hundred and sixty four Emalangeni) on behalf of the first respondent’s claim. I am satisfied that the provision of the said amount     will go a long way to ensure that the first respondent’s claim is taken care of while the interests of all the heirs of the deceased’s estate are also catered for         if the sale of the farm is allowed to go through. I am of the view that to find    in favour of the first respondent would enable her to hold the applicant and all      the beneficiaries of the deceased’s estate to ransom until they treat the first       respondent’s claim as preferent. This would fly in the face of the Act.

 

[17]   In his submissions on behalf of the first respondent, Mr. Lukhele was not           averse to the submission by Mr. Howe-namely that provision for the first           respondent’s claim will be made. Mr. Lukhele pointed out that the issue of           setting aside the stated amount for the first respondent’s claim is one that           could have been amicably discussed without resort to litigation. I couldn’t           agree more.  In her answering affidavit, the first respondent states that she is    not averse to suggestions that would result in the speedy resolution of the     matter. I cannot think of a better way to have the matter resolved.

 

[18]   As the executor of the deceased’s estate, the applicant is obliged to comply       with the provisions of the Act and in particular to gather the assets, liquidate them where necessary, pay the liabilities and distribute the estate according to law.  The distribution of the assets of a deceased estate is a crucial element of          the winding-up and this often involves, as in the present matter, the need to     liquidate assets. The attitude of the first respondent frustrates the very object         of the administration and winding-up of the estate: the farm needs to be     liquidated in order to administer and wind up the estate; and this cannot happen for so long as the first respondent refuses to hand in the title deed of           the farm, uplift the interdict issued by the High Court in November 2001 as      well as remove the caveat on the deceased’s estate property.

 

Interdict of 28 November 2001

[19]   The High Court issued the interdict of 28 November 2001 ‘pending           finalization of the application’ stopping the first respondent in these           proceedings from transferring the farm to the estate of her late husband Israel           Clarence Henwood. The application was finalized in the Supreme Court in           2015 where the Supreme Court found against the first respondent. This, in my           considered view is good cause for setting aside the interdict of 28 November           2001 issued by this Court as well as to order the de-registration of the interdict           against the Title Deed of the farm-being Portion 2 Farm 926 Lubombo     District.

Urgency

[20]   As stated earlier, the matter was brought on a certificate of urgency. The applicant averred that he had, in his capacity as executor dative sold    immovable property, a certain Portion 2 of Farm 926, situate in the Lubombo           District, Kingdom of Swaziland to the Swaziland Water and Agricultural      Development Enterprise Limited (SWADE) (‘the Purchaser’) on 12 January          2017.  A deed of sale was signed. By law, the deed of sale is only valid for six months and must be renewed accordingly if the sale is not finalized at the         expiry of the six months’ period. The same is true of a bank guarantee-it lapses         after three months of issue if the sale fails to go through. When the deed of sale falls to be renewed, the seller is charged a percentage of the amount           guaranteed on the purchase price. The executor dative in the estate of the           deceased has, to date been charged substantial amounts of money as he has      had to renew the deed of sale three times since the sale of the farm in January          2017.

 

[21]   The applicant avers further that the last bank guarantee expires on 28 February           2018 and that it is no longer economically viable to renew and extend it for       the fourth time. The matter is urgent, so the applicant submits, because there          needs to be resolution of the dispute between the applicant and the first       respondent before the last bank guarantee expires on 28 February 2018.        According to the applicant, it is not in the interest of the deceased’s estate nor of the purchaser that the sale of the farm should collapse and any further delay          in prosecuting the dispute adhering to the normal rules of court service will        result in the sale falling through because the seller will not renew the bank     guarantee.

 

[22]   The first respondent avers that the matter is not urgent as the applicant has not           set out the necessary facts that render the matter urgent. It is first respondent’s           argument that the application was brought to Court prematurely. The           application ought not to have been brought on a certificate of urgency as early as 2 February 2018 when the bank guarantee only expires on 28 February      2018.

 

[23]   The issue of whether a matter should be enrolled and heard as an urgent           application is governed by the provisions of Rule 6 (25) (a) of the High Court           Rules. The aforesaid sub-rule allows the Court in urgent applications to dispense with the forms and service provided for in the rules and dispose of          the matter at such time and place in such manner and in accordance with such    procedure as it seems appropriate. It further provides that in the affidavit in support of an urgent application the applicant’…shall set forth explicitly the        circumstances which he avers render the matter urgent and the reasons why   he claims that he could not be afforded substantial redress at a hearing in due       course[12].’

 

[24]   In my view, the effect of Rule 6(25) is that the procedure for urgent matters is   not for taking. An applicant has to set out in clear if explicit terms the circumstances which he argues render the matter urgent. The applicant must          give reasons why he claims that he cannot be afforded substantial redress at a        hearing in due course. The question of whether a matter is sufficiently urgent   to be enrolled and heard as an urgent application is undergirded by the issue      of absence of substantial redress in an application in due course. The rules allow the Court to come to the assistance of a litigant because if the latter were         to wait for the normal course laid down by the rules it will not obtain   substantial redress.

[25]   Notably, the rules on urgent applications require absence of substantial   redress. This is not synonymous with the irreparable harm that is required before the granting of an interim relief. It is something a tad less. He may still         obtain redress in an application in due course but it may not be substantial.         Whether an applicant will not be able to obtain substantial redress in an     application in due course will be determined by the facts of each case. An    applicant must make out his case in that regard.

 

[26]   In my view, the early or ‘premature’ institution of a matter under a certificate   of urgency is not, on its own a ground for refusing to regard the matter as    urgent. A Court is obliged to consider the circumstances of the case and the    explanation given. The important issue is whether, as a result of fast-tracking the matter, the applicant can or cannot be afforded substantial redress at a          hearing in due course.

 

[27]   It must be said that the fact that the applicant wants to have the matter resolved           urgently does not make the matter urgent. The correct and crucial test is whether, if the matter were to follow its normal course as provided for in the   rules, an applicant will be afforded substantial redress. If he cannot be   afforded substantial redress at a hearing in due course then the matter qualifies       to be enrolled and heard as an urgent application. If however, despite the anxiety of an applicant he can be afforded a substantial redress in an          application in due course the application does not qualify to be enrolled and          heard as an urgent application.

 

[28]   In this matter, the applicant has submitted that the estate of the deceased has    had to pay substantial amounts of money on renewal of both the deed of sale          and the bank guarantee as the applicant could not conclude the sale of the farm   in the absence of the title deed which is in the possession of the first       respondent. The applicant avers that the last bank guarantee expires on 28 February 2018 and the purchaser is no longer willing to have it renewed. The         effect of this position is that the sale of the farm will fail and the beneficiaries          of the deceased’s estate (of which the first respondent is part) will be unable        to share in the proceeds of the farm.

 

[29]   In addition thereto, the first respondent has no legal right to hold on to the title           deed of the farm since the purported sale between the first executor of the           deceased’s estate and the estate that the first respondent represents was declared a nullity by the Supreme Court in 2015. In my view, the matter is     urgent because the purchaser is unwilling to have the bank guarantee renewed    after 28 February 2018 when it expires. If the applicant waited and brought     the matter in the normal course he would not be able to be afforded substantial         redress at a hearing in due course as the sale of the property will be cancelled for failure by the applicant to pass transfer of the farm to the purchaser in the       absence of the title deed.

          For these reasons, I am satisfied that the matter is sufficiently urgent to be           enrolled and heard as an urgent application.

 

Costs

[30]   The applicant asked for an order of costs against the first respondent at an           attorney and own client scale if they oppose the application.  Mr. Howe, correctly in my view conceded that the first respondent cannot be required to         pay costs and punitive costs at that since she is cited and is acting in her     nominal capacity as executrix of the estate late Israel Clarence Henwood.

          In the result, I make the following order:-

1.              The requirements of the Rules of Court pertaining to service of process   and time limits are dispensed with and the matter is considered urgent.

 

2.              Applicant’s non-compliance with the Rules of Court is condoned.

 

3.              The first Respondent is directed to hand over to the Applicant the original Title Deed for Portion 2 of Farm No. 926, situate in the         Lubombo (formerly Hlatikulu) District, Kingdom of Swaziland that is         currently in her possession or in the possession of that of her attorneys.

 

4.                    The third Respondent is directed to uplift and or set aside and or remove           any or all caveats and or encumberances that the first Respondent has           placed over Portion 2 of Farm No. 926, situate in the Lubombo      (formerly Hlatikulu) district of Swaziland.

 

5.                    The applicant is directed to preserve an amount of E1,100, 000.00 (One           Million One Hundred Thousand Emalangeni) as security for the claim      of the first Respondent subject to first Respondent proving the amounts      claimed.

6.                       The costs of this application are to be borne by the estate late Richard           Clarence Henwood.

 

 

______________________

M. LANGWENYA

JUDGE OF THE HIGH COURT

 

For Applicant                     :     Mr. L. Howe

For 1st Respondent             :      Mr. A. Lukhele

 

[1] The purported sale was declared void ab initio by the High Court; an order that was confirmed by the Supreme Court in the year 2015 through Appeal Case No. 17/2015 neutral citation Effie Sonya Henwood N.O. Estate Late Israel Clarence Henwood v Monica Mathews N.O and Pius Henwood N.O (17/2015) [2015] SZSC 05 (29 July 2015).

[2] See the first respondent’s answering affidavit paragraph 18, Ad Paragraph 33.

[3] 1902

[4] See Corbett et al ‘The Law of Succession in South Africa’ 2nd ed at p589.

[5] Paragraph 3 of letter marked “PH11”.

[6] See Annexture “A” being a letter from first respondent’s attorneys to the applicant’s attorneys. In this letter the first respondent lodged a claim for a sum of E863,604.77 being for the monies paid to Carlston for the purchase of the farm.

[7] “PH7”

[8] “PH8” letter dated 15 November 2017

[9] ‘PH9’

[10] Giddy v Giddy and White’s Estate v Estate Malcomess 1937 EDL 269.

[11] Goelhals v Neser 1913 EDL 176.

[12] Rule 6(25)(b).