IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE
HIGH COURT, CAPE TOWN)
CASE NUMBER: 22380/2009
DATE: 12 MAY 2010
In the matter between:
MS W A PALVIE 1st Applicant
MS E W SNYMAN 2nd Applicant
MS L M SNYMAN 3rd Applicant
MR G J H PALVIE 4th Applicant
MASTER OF THE HIGH COURT 1st Respondent
REGISTRAR OF COMPANIES 2nd Respondent
MR S A D DU TOIT N.O.
(EXECUTOR OF THE ESTATE OF
LATE G J ENGELBRECHT) 3rd Respondent
MR C A WHITE 4th Respondent
CENTRAL BRIDE TRADING 63 CC 5th Respondent
DISTINCLE CHOICE 1432 CC 6th Respondent
I do not intend to give full reasons for my order and will do so, if requested, in terms
of the rules. I will give a short ex tempore ruling in order not to delay this matter.
The case involves a dispute about the distribution of a deceased estate. The third
respondent, being the executor, was duly appointed and had to deal with the matter
in terms of the law. The applicants are all beneficiaries of the estate. The fourth
respondent was the life partner of the deceased and inherited some of the assets.
The main claim of the applicants in the estate was that the valuations were not done
properly. Secondly, that the executor did not perform his functions as he should
have, which would include managing the businesses that were left and ultimately
the distribution of the estate.
This matter has a long history of lots of litigation since 2006 between applicants and
more particularly the executor. The Executor drove this matter to finality. The
applicants were dissatisfied and, again more particularly, to the issues that I have
raised before. He made a ruling, they objected within time. He then rejected the
objection. Between the Master and the executor, they became functus officio.
What the applicants could do, in terms of the law, was to bring an application to
court to set that ruling aside and for the Court to give directions as to what should
happen. It seems, after thorough reading of the notice of motion, that this review is
hidden somewhere in the relief sought. That is not my concern for now.
This matter was brought on an extremely urgent basis, not complying with the court
rules. Therefore, the applicants were enjoined to make out a case as to why the
Court should allow the non-compliance of the rules. To put it bluntly, they have not
even made out a case to comply with the rule for noncompliance itself. Not only had
they shortened timeframes, but they simply failed to set out why they did not
There were correspondence between these parties, papers got served late on the
Friday afternoon for the respondents, which include a corporation to appear on the
next Friday after close of business. It is conceded that they would most probably
have received the papers only on the Monday. The fifth respondent only receives
the papers on the Tuesday to be in court on a Friday, asking for urgent relief.
Knowing the facts, the applicants still had gone and cited the wrong respondents in
the case of the third respondent.
It didn't stop there. The Court made an order on the first appearance. They simply
ignored that order as well complying with timeframes and complying with the rules.
It becomes even worse. Representatives of the applicants go and misrepresent the
order of the Court to individuals, including the accountants of respondents and so
on, behind the backs of those attorneys. I am of the view that, in itself, would be
sufficient to dismiss the application, as the applicants cannot stand before me with
clean hands under these circumstances.
It did not end there. Affidavits are filed up to 73 days late with, to say the least of it,
flimsy excuses. This noncompliance with the practice notes, which include the
heads of argument is apparent. This case is simply so badly prepared.
The applicants have failed to comply with the court rules, and deliberately so, as
pointed out to counsel in argument, that this Court will not condone that. I will,
therefore, dismiss the application on the basis of the non-compliance with the rules,
and I am not dealing with the merits at this stage. The applicants are to pay all the
wasted costs of Absa Trust, who was the original third respondent and of the other
respondents on an attorney-and-client scale.
That is the order of the Court.
NC ERASMUS, J