Executor Estate of the late Pusetso Makotoane v Attorney-General and Another (CIV/APN 497 of 97) [1998] LSCA 21 (3 March 1998)

1 CIV/APN/497/97 IN T HE H I GH C O U RT OF L E S O T HO In the matter between T HE E X E C U T O R, E S T A TE OF T he Late Pusetso M a k o t o a ne A P P L I C A NT and T HE A T T O R N E Y - G E N E R AL T HE D E P U T Y - S H E R I FF ( M r. L e m e n a) 1 ST R E S P O N D E NT 2 ND R E S P O N D E NT J U D G M E NT D e l i v e r ed by the H o n o u r a b le M r. Justice M . M. R a m o d i b e di on the 3rd d ay of M a r c h, 1 9 9 8. T h is is an application for an order c o u c h ed in the f o l l o w i ng t e r m s: " 1- D i s p e n s i ng w i th the R u l es of C o u rt c o n c e r n i ng notices a nd service of p r o c e ss herein on a c c o u nt of the u r g e n cy of this matter. 2- A R u le nisi issue returnable on a date a nd t i me d e t e r m i n a b le by the a b o ve H o n o u r a b le C o u rt calling u p on R e s p o n d e n ts to s h ow c a u s e, if a n y, w hy the following order shall n ot be m a de final: a - S e c o nd R e s p o n d e nt be interdicted forthwith f r om pursuing service, execution, r e m o v al a nd sale in execution of a ny property in the estate of the late P U S E T SO M A K O T O A N E, p e n d i ng the administration of the said estate by the e x e c u t or thereof; b - First R e s p o n d e nt be directed to l o d ge his claim against the estate of the late P U S E T SO M A K O T O A N E, if a n y, w i th the executor of the aforesaid estate. c - R e s p o n d e n ts be interdicted f r om interfering in a ny m a n n er w h a t s o e v er with the d ue administration of the estate of the late P U S E T SO M A K O T O A NE a nd the e x e c u t or thereof, e x c e pt by d ue p r o c e ss of l a w; d - R e s p o n d e n ts be ordered to p ay the costs h e r e of on an A t t o r n ey a nd Client scale. e - Further and/or alternative relief 3 - P r a y e rs 2 (a) & © operate w i th i m m e d i a te effect as interim orders." On the 2 2 nd D e c e m b e r, 1 9 97 my B r o t h er M o f o lo J granted a R u le Nisi as p r a y ed in t e r ms of prayers 1 ,2 (a) a nd (c). After a f ew p o s t p o n e m e n ts the matter w as finally a r g u ed before me on the 24th February, 1 9 9 8. I should mention at the outset that M r. Ntlhoki w ho a p p e a r ed for the Applicant only confined himself to prayer 2 (a) a nd (c). As will be s e en in the course of this j u d g m e nt this w as a wise m o ve i n d e ed in the circumstances of the case. T he story of the litigation in this matter revolves a r o u nd the fact that ( a nd this is c o m m on c a u s e) on the 29th d ay of January 1 9 96 the G o v e r n m e nt of L e s o t ho obtained j u d g m e nt in the s um of M 2 , 2 0 7 , 8 1 0 . 50 ( t wo million, t wo h u n d r ed a nd s e v en thousand, eight h u n d r ed a nd ten Maloti a nd fifty Lisente) against the late Pusetso M a k o t o a ne w ho w as the Applicant's h u s b a n d. F or the a v o i d a n ce of d o u bt I should m e n t i on that the j u d g m e nt w as obtained during the lifetime of the said Pusetso M a k o t o a n e. Although the Applicant has not told the C o u rt the date on w h i ch her h u s b a nd sadly passed a w ay I am satisfied f r om the p a p e rs before me (again this is c o m m on cause) that on the 14th N o v e m b er 1 9 96 the Applicant w as granted letters of administration of the estate in question by the M a s t er of the H i gh C o u rt pursuant to the Administration of Estates Proclamation N o. 19 of 1 9 3 5. P r e s u m a b l y, therefore, the Applicant's h u s b a nd p a s s ed a w ay b e t w e en the 29th January 1 9 96 w h en j u d g m e nt w as granted against h im a nd the 14th N o v e m b er 1 9 96 w h en the Applicant w as granted letters of administration. On the 28th February 1 9 97 the First R e s p o n d e nt s u ed out a writ of execution against the deceased's estate in the aforesaid s um of M 2 , 2 0 7 , 8 1 0 . 5 0. T he D e p u ty Sheriff's charges in the matter as reflected on the writ itself apparently a m o u n t ed to the s um of M 1 1 0 , 4 4 8 . 5 5. On the 10th D e c e m b er 1 9 97 a nd pursuant to the writ in question the D e p u ty Sheriff ( S e c o nd R e s p o n d e n t) duly took an inventory of certain items of m o v a b le property of the deceased's estate. O n ce m o re this is c o m m on cause. N ow in the light of the foregoing factors it is Applicant's contention, if I understand it correctly, that the First R e s p o n d e nt is precluded f r om pursuing a nd executing the writ in question by virtue of the fact that it w as issued after she h ad already b e en appointed executrix of the estate. It is her contention that the First R e s p o n d e nt is obliged to obtain an order of the Court before he c an execute the j u d g m e nt in question. This is perhaps an appropriate stage therefore to refer to Sections 4 4, 46 a nd 47 of the Administration of Estates Proclamation N o. 19 of 1 9 35 on w h i ch the Applicant so heavily relies for her stance in the matter. It proves convenient to reproduce t h em in full. Section 44 provides as follows : " E v e ry executor shall, as soon as letters of administration h a ve b e en granted to h i m, m a k e, subscribe and transmit to the M a s t e r, an inventory showing the value of all the property belonging to the estate; a nd if he c o m es to k n ow thereafter of any property w h i ch is not contained in any inventory lodged by h im with the M a s t er he shall m a k e, subscribe, and transmit to the M a s t er an additional inventory s h o w i ng the value thereof a nd shall find such further security as the Master m ay direct under Section thirty-nine of this Proclamation." ( my underlining). 5 . Sadly for the Applicant it is c o m m on cause that she h as failed to c o m p ly with the provisions of this section ever since the 14th N o v e m b er 1 9 96 w h en she w as granted letters of administration to date. This is a delay of m o re than a w h o le year a nd I h a ve no hesitation in holding that the delay w as grossly unreasonable a nd contrary to the letter a nd spirit of the Administration of Estates Proclamation 19 of 1 9 35 wherein time is of the essence in order to safeguard the interests of creditors. U n d ue delay in m a k i ng the necessary inventory a nd administering the estate will no doubt often result in the dissipation of the estate itself to the prejudice of creditors. That m u st be discouraged at all costs. N o w, section 46 of the Administration of Estates Proclamation N o. 19 of 1 9 35 reads as follows: "Every executor shall, so s o on as he h as entered on the administration of the estate cause a notice to be published in the Gazette a nd in a n e w s p a p er circulating in the district in w h i ch the d e c e a s ed ordinarily resided or if not resident in the Territory at the time of his death in a n e w s p a p er circulating in a district w h e re the deceased o w n ed property, calling u p on all persons having claims against the d e c e a s ed or his estate to lodge the s a me with m at executor within such period f r om the date of the latest publication of the notice as is therein specified, not being less (save as in section sixty-six of this proclamation is provided) than thirty d a ys or m o re than three m o n t h s, as is d e e m ed by the executor proper in the particular circumstances of e a ch case. All claims w h i ch w o u ld be capable of proof in case of the insolvency of the estate shall be d e e m ed to be claims of creditors for the purposes of this Proclamation." ( my underlining). O n ce m o re the Applicant defaulted a nd failed to c a u se a t i m e o us notice to be published in the Gazette a nd in a n e w s p a p er as stipulated in the section. It is c o m m on c a u se that the first publication in a n e w s p a p er w as only m a de in the M o A f r i ca N e w s p a p er on the 21st a nd 28th N o v e m b er 1 9 97 w h i ch w a s, o n ce m o r e, m o re than a w h o le year after the Applicant h ad b e en granted letters of administration. R e g a r d i ng publication in the G a z e t te it is again c o m m on c a u se that s u ch publication w as only m a de on the 19th D e c e m b er 1 9 9 7. T he Applicant claims that she h ad no control or final say over the publishers a nd that the delay w as not of her o wn m a k i n g. T he C o u rt is not impressed. T he A p p l i c a nt h as n ot told the C o u rt w h at steps she took, if a n y, to c a u se the necessary publications to be m a de a nd if so w h e n. In the circumstances I am left with the u n c o m f o r t a b le feeling that the Applicant w as playing for time. At a ny rate I am satisfied that the delay in effecting the necessary publications w as grossly unreasonable. This leads me to section 47 of the Administration of Estates Proclamation N o. 19 of 1 9 3 5. T h at section provides as follows: " No p e r s on w ho h as obtained the j u d g m e nt of a ny C o u rt against a ny deceased person in his lifetime or against his executor shall s ue out or obtain a ny process in execution of that j u d g m e nt before the expiration of the period notified in the G a z e t te in m a n n er p r o v i d ed in section forty-six of this proclamation, a nd no person shall thereafter within six m o n t hs after the grant of letters of administration obtain a ny p r o c e ss in execution of a ny such j u d g m e nt without first obtaining an order of the C o u r t ." ( my underlining). In my v i ew the underlined w o r ds in this section are v e ry crucial a nd i n d e ed decisive. W h at this then m e a ns is that before this section c an avail the e x e c u t or of an estate the requirements of Section 46 m u st first be fulfilled n a m e l y, the e x e c u t or m u st c a u se a notice to be published in the G a z e t te a nd in a n e w s p a p er circulating in the district in w h i ch the d e c e a s ed ordinarily resided or w h e re he o w n ed property as the case m ay be calling u p on all p e r s o ns h a v i ng c l a i ms against the d e c e a s ed or his estate to l o d ge s u ch claims with the e x e c u t or within the t i me specified in the publication (provided that s u ch time shall not be less t h an thirty d a ys or m o re t h an three m o n t hs f r om the date of the publication). Y et the facts in the instant c a se h a ve s h o wn b e y o nd d o u b t, a nd again this is c o m m on cause, that on the 28th February 1 9 97 w h en the First R e s p o n d e nt s u ed out a writ in the matter the Applicant h ad not yet c o m p l i ed w i th the provisions of Section 46 by causing a notice to be published in the G a z e t te a nd in a n e w s p a p er inviting creditors to c o me f o r w a rd a nd l o d ge their c l a i ms w i th her. A c c o r d i n g ly I hold that there is nothing in Section 47 that prohibits a creditor f r om suing out a writ before the publication in question is m a d e. It is only after s u ch publication h as b e en m a de that a creditor is obliged to await the expiration of the period notified in the Gazette. C o n v e r s e ly I hold that the granting of letters of administration a l o ne is not sufficient to prohibit a creditor f r om suing out a writ in execution of j u d g m e nt against the d e c e a s ed or his executor. I am fortified in the v i ew that I take in this m a t t er by the fact that at c o m m on l aw a creditor h as the right to institute an action against an executor of a solvent estate. By the s a me token a creditor u n d er c o m m on l aw h as the right to p u r s ue a nd e x e c u te a writ in respect of a j u d g m e nt he h as obtained against a d e c e a s ed or his executor. S ee D a v i ds v Estate Hall 1 9 5 6 ( 1) SA 7 7 4. M a c d o n a l d, F o r m an & C o. L td V V an A s w e g en a nd A n o t h er 1 9 63 ( 3) SA 1 7 3. H a v i ng considered the Administration of Estates P r o c l a m a t i on N o. 19 of 1 9 35 as a w h o le I am satisfied that there is n o t h i ng to indicate that the Legislature intended to deprive a creditor of his c o m m on l aw right to p u r s ue a nd e x e c u te a writ in r e s p e ct of a j u d g m e nt he h as lawfully o b t a i n ed against the d e c e a s ed or his executor before the requisite notice a nd publication referred to in S e c t i on 46 of the p r o c l a m a t i o n. T he executrix (the A p p l i c a n t) in the instant c a se is in no better position. In fairness to M r. N t l h o ki he h as c o n c e d e d, a nd rightly so in my v i e w, that the first p a rt of S e c t i on 47 c a n n ot assist his client. It is t he s e c o nd part of the section that gives h im s o me m e a s u re of h o pe a nd he s u b m i ts therefore that t he First R e s p o n d e nt w as prohibited f r om p u r s u i ng the writ in q u e s t i on by virtue of the fact that t h e re is n ow publication in the G a z e t te albeit belatedly. As earlier stated it should be r e m e m b e r ed that the publication in the G a z e t te w as o n ly m a de on the 1 9 th D e c e m b er 1 9 97 l o ng after the writ in q u e s t i on h ad a l r e a dy b e en set in m o t i o n. In my v i e w, the w o rd thereafter a p p e a r i ng in the s e c o nd part of S e c t i on 47 relates to the situation d e s c r i b ed in S e c t i on 46 n a m e ly that the e x e c u t or m u st first c a u se a notice to be p u b l i s h ed in the G a z e t te a nd in a n e w s p a p er circulating in the district in w h i ch the d e c e a s ed ordinarily resided or the district w h e re the latter o w n ed property as the c a se m ay be before the creditor c an be p r e c l u d ed f r om s u i ng o ut a writ. B ut e v en t h en the p e r i od within w h i ch he is so p r e c l u d ed is n ot unlimited. It is a p e r i od of n ot less t h an thirty d a ys or m o re t h an three m o n t hs (as is d e e m ed by the executor) f r om the date of the publication. A c c o r d i n g ly I h o ld that w h e re m e re is no s u ch publication w i t h in the statutory p e r i od stipulated in S e c t i on 46 as is the c a se h e r e, there is no n e ed for the creditor to o b t a in an o r d er of court first before pursuing a writ in his favour. I reiterate that the grant of letters of administration alone is not a bar to a creditor suing out a writ in execution of judgment. To hold otherwise w o u ld not only be contrary to the letter a nd spirit of the Proclamation but w o u ld also lead to an a n o m a l o us situation w h e r e by executors w o u ld simply sit back and play for time while holding letters of administration as a w e a p on of terror so to speak to the prejudice of creditors. As I see it therefore it w as i n c u m b e nt u p on the Applicant as executrix of the deceased's estate to have caused the necessary publications to be m a de "as s o on a s" she h ad been granted letters of administration on 14th N o v e m b er 1996. If she h ad d o ne that the First R e s p o n d e nt w o u ld h a ve b e en precluded f r om pursuing the writ in question within six m o n t hs after the grant of letters of administration. As it is she failed dismally to c o m p ly with the relevant requirements of the proclamation a nd h as got only herself to b l a m e. Regrettably this C o u rt cannot c o me to her assistance. W h i ch brings me to the question of conflict of interests. M r. Ntlhoki h as rightly conceded, in my v i e w, that there is obviously a conflict of interest in this matter b e t w e en the Applicant's duty as executrix of the estate a nd her personal interest in the estate as the wife of the deceased. I h a ve no d o u bt in my m i nd that this explains the inordinate delay by the Applicant in c o m p l y i ng with the provisions of the Administration of Estates Proclamation N o. 19 of 1 9 35 as s h o wn a b o v e. S he naturally finds herself in a d i l e m ma that if she m a k es an inventory a nd advertises for creditors in the Gazette and in a n e w s p a p er she m ay well lose property in w h i ch she has clear interest. T he a n o m a ly is that the l aw as it stands presently permits her to act as executrix of her late husband's estate nonetheless. It is for that reason that legislation is necessary to grant p o w er to the M a s t er of the H i gh Court to exercise his/her discretion in fitting cases of conflict of interests to appoint a neutral p e r s on as executor/executrix. Until that h as h a p p e n ed h o w e v er all executors including those with vested interest m u st realise that they are e x p e c t ed to display u t m o st g o od faith a nd h o n e s ty in their discharge of their duties as administrators of t he d e c e a s e d 's estate. In all the circumstances of this case I am satisfied that there is no m e r it in this application. A c c o r d i n g ly the R u le is discharged a nd the application d i s m i s s ed w i th costs. M . M. R a m o d i b e di J U D GE 3rd M a r ch 1998 F or Applicant : M r. Ntlhoki F or First R e s p o n d e n t: M r. Putsoane