1

REPORTABLE

CASE NO: SA 86/2016

IN THE SUPREME COURT OF NAMIBIA

In the matter between:

IRENIA MPASI N.O. IN HER OFFICIAL CAPACITY
AS THE EXECUTRIX OF THE ESTATE OF THE LATE
SITENTU DANIEL MPASI / First Appellant
IRENIA MPASI / Second Appellant
and
MASTER OF THE HIGH COURT / First Respondent
SELMA HAUSIKU / Second Respondent
MARTHA SITENTU / Third Respondent
ANDREAS SHIKONGO SITENTU / Fourth Respondent
HELVI MUKWANANKALI SIREMWA SITENTU / Fifth Respondent
KANDJIMI LEEVI SITENTU / Sixth Respondent
WILHELM MPASI SITENTU / Seventh Respondent

CORAM:SHIVUTE CJ, SMUTS JA and HOFF JA

Heard:19 June 2018

Delivered:17 August 2018

Summary: Mrs Selma Hausiku, the second respondent, instituted motion proceedings in the High Court in which she sought an order reviewing and setting aside the appointment of Ms Irene Mpasi, the first appellant, as the executrix of the estate of the late Sitentu Daniel Mpasi. MrsHausiku sought further orders, amongst others, that the appointment of MsMpasi should be declared null and void; that she should be removed from the office of the executrix; and that one Martha Sitentu, the third respondent, should be appointed instead as the executrix of the estate. Both MrsHausiku and MsMpasi claim to have been each legally married to the late Chief Sitentu Daniel Mpasi.

The late Chief Sitentu Daniel Mpasi died on 17 December 2014. Following his passing, MsIreniaMpasi launched an application with the Master of the High Court for her appointment as the executrix of the deceased’s estate. She was accordingly appointed in that position.

Aggrieved by the decision to appoint MsMpasi, MrsHausiku brought an application in the High Court seeking the relief referred to above. MsMpasi in her capacity as the executrix and in her personal capacity opposed the application but did not file an opposing affidavit. Instead, she filed a notice in terms of rule 66(1)(c) of the Rules of the High Court raising three issues that she contended were points of law.

After hearing argument on behalf of the parties, the High Court found that the three points raised by MsMpasiwere factual and not legal points. They were accordingly dismissed. In addition to the dismissal of the three points, the High Court ordered the removal of MsMpasi from office as the executrix of the estate and appointed MrsHausiku instead. Dissatisfied with the findings and decision of the High Court, MsMpasi appealed against the decision to this court.

On appeal,it was argued on behalf of MsMpasithat the High Court had no powers to appoint an executor. It was contended that the court a quoacted contrary to the doctrine of separation of powers by assuming powers entrusted to the Master, the first respondent, to appoint executors. MsMpasi further argued that MrsHausiku had not put sufficient evidence establishing that she was the lawful surviving spouse of the late Chief Sitentu Daniel Mpasi.

On behalf of MrsHausiku on the other hand, it was argued that the High Court was justified in interfering with the decision of the Master and in appointing MrsHausiku the executrix of the estate. It was further argued that the High Court was correct in finding that she had put up sufficient evidence establishing that she was the lawful surviving spouse of the deceased.

On appeal this court heldthat while the High Court had powers to remove an executor, to review, to set aside or vary appointments made by the Master in terms of the Administration of Estates Act 66 of 1965, it had no statutory or common law powers to appoint an executor. In light of this finding, the appointment of MsMpasi was set aside, and the matter referred back to the Master with the direction to appoint an executor or executrix of the estate of the late Sitentu Daniel Mpasi in accordance with the law.

The court agreed with the findings of the High Court that the allegations contained in the founding papers remained uncontroverted. The court also agreed with the findings of the High Court that MrsHausiku had proved the validity and existence of her marriage to the deceased despite the alleged contradictions in some of her evidence. As the appellants had not been entirely successful, each party was ordered to pay her own costs on appeal. The order of costs made in the review application in the High Court was confirmed.

APPEAL JUDGMENT

SHIVUTE CJ (SMUTS JA and HOFF JA concurring):

[1]This appeal concerns the decision of the High Court that ordered the removal of the first appellant, MsIreniaMpasi in her official capacity, from the office of executrix of the estate of the late Sitentu Daniel Mpasi and the appointment in her stead of Mrs Selma Hausiku, the second respondent. MsMpasi has been cited as the second appellant in her personal capacity.

Background

[2]MsIreniaMpasi, née Anton and Mrs SelmaHausiku each claims to have been lawfully married to the late Chief Sitentu Daniel Mpasi, the Chief of Ukwangali Traditional Authority, who died on 17 December 2014 aged 80 years.

[3]The first respondent is the Master of the High Court (the Master), appointed as such in terms of s 2 of the Administration of Estates Act 66 of 1965 (the Act). The names of the third, fourth, fifth, sixth and seventh respondents appear in the affidavit of the next ofkin filed by MsMpasi with the Master under the heading ‘children and dates of birth of the children of the deceased’. I thus accept, as the High Court did, that these respondents are children of the late Chief Sitentu Daniel Mpasi (the deceased). The Master, the third, fourth, fifth, sixth and seventh respondents did not take part in the proceedings in the High Court or in this court. The parties are essentially MrsHausiku and MsMpasi.

[4]In his last will and testament the deceased appointed MsMpasi as an executrix of his estate. The will was, however, rejected by the Master for non-compliance with certain provisions of the Wills Act 7 of 1953. Following the Chief’s passing, MsMpasi successfully applied to the Master for appointment as the executrix of his estate.

[5]Obviously unhappy with the appointment, MrsHausiku decided to launch an application in the High Court to remove MsMpasi from the office of executor of the estate and also to have Martha Sitentu, the third respondent, appointed in that position.

[6]In the founding papers,MrsHausiku stated that she was the surviving spouse of the deceased to whom he got married in accordance with the Ukwangali customary law and practice. She further said that 10 children were born out of the marriage. She informed the court that her marriage to the deceased was converted from a customary marriage to a civil marriage in the Mpungu Parish of the Evangelical Lutheran Church in Namibia (ELCIN) on 30 May 1978. It was further alleged that her marriage to the deceased was solemnised by one Reverend NatanaelSirongo who was a duly registered marriage officer. Upon conversion of the marriage, a marriage certificate was issued to the couple. However, MrsHausiku stated that she was unable to produce the original marriage certificate or a copy thereof as the original document got damaged in the years after the solemnization of the marriage.

[7]MrsHausiku produced two letters from Dr SVVNambala, Bishop of ELCIN’s Eastern Diocese, and by the Permanent Secretary in the Ministry of Home Affairs and Immigration dated 23 November 2015 and 26 January 2016 respectively. The letter by the Bishop simply confirms that Rev NatanaelSirongo had been a marriage officer and that his designation number was C0124. The letter from the Permanent Secretary likewise confirms that Rev Sirongo had been designated as a marriage office and gives the same designation number. Significantly, however, the Permanent Secretary stated in his letter that Rev Sirongohad been a marriage officer ‘since 1986/03/01’, which implies that by the time he purported to solemniseMrsHausiku and the late Chief’s marriage on 30 May 1978, he may not have been designated as a marriage officer. This revelation prompted MsMpasi to question the cogency of MrsHausiku’s claim that she had been lawfully married to the deceased. This she did, not by addressing on affidavit each factual allegation made by MrsHausiku, but by filing a notice in terms of rule 66(1)(c) of the Rules of the High Court, in which three grounds characterised as ‘points of law’ were raised.

[8]MrsHausiku also alleged that her husband was involved in an extra marital affair with MsMpasi. In support of this allegation, MrsHausiku stated that her husband brought MsMpasi into their marital homestead, as his second wife and that despite the actions of her husband, her marriage to him subsisted until his death. She contended therefore that she was the lawful surviving spouse of the deceased.

[9]MrsHausiku also made allegations of improper and wrongful conduct on the part of MsMpasi in the course of her application for appointment as executor. In support of her contentions, MrsHausiku stated that MsMpasi had failed to disclose pertinent information to the Master. For example, she omitted to place MrsHausiku’s name on the list of the deceased’s next ofkin. This she did deliberately, so MrsHausiku argues, to avoid scrutiny by the Master. She further claimed in addition that MsMpasi was not a fit and proper person to fulfill the duties of an executrix, because she had allegedly acted in bad faith prior to her appointment as the executrix by withdrawing an amount of N$248 280,49 belonging to the estate. According to MrsHausiku, based on the abovementioned conduct, MsMpasi was not a fit and proper person to be appointed in such a trusted position.

[10]The Master filed a report in the High Court confirming that MsMpasi’s appointment was made on the basis of her marriage to the deceased as evidenced by a marriage certificate submitted to her office by MsMpasi. The Master further stated that in addition to the marriage certificate, MsMpasi also submitted the last will and testament of the deceased dated 2 October 2014 which, as noted above, was rejected for non-compliance with the Wills Act, 1953.

[11]As previously mentioned, in response to MrsHausiku’s application for review, MsMpasi opposed the application but did not file any answering affidavit. Instead, she raised three ‘points of law’ in opposition to the application. The first ground was that MrsHausiku’s founding affidavit contained inadequate allegations for the relief sought. The second was that she failed to pray for an order impugning MsMpasi’s marriage to the deceased. The third ground was that the ‘marriage officer’ who solemnised the marriage between MrsHausiku and the deceased was not a designated marriage officer at the time.

Findings of the High Court

[12]As a general proposition, the court a quo observed that a party had an absolute right to invoke rule 66(1)(c) of the Rules of the High Court and raise a question of law instead of filing an answering affidavit in opposition to a matter. The court, however, cautioned that a party that elects to invoke the rule must bear in mind that the overriding objective of the Rules of the High Court was to facilitate the resolution of real issues and not meant to raise what it referred to as ‘spurious’ points under the guise of legal questions. The court on an analysis of the three grounds raised by the appellants found that those issues were factual and not legal and ought to have been dealt with in the answering affidavit.

[13]In dealing with the first point, the court found that the issue of inadequacy of the evidence was not a point of law but a factual issue which concerned the cogency of the evidence produced by MrsHausiku in proving her marriage to the deceased. The court also opined that the discrepancies (relating to the date from which the marriage officer was authorised to solemnise marriages) did not affect the cumulative effect of the evidence tendered by MrsHausiku establishing her marriage to the deceased. It then held that she had submitted conclusive evidence that she was lawfully married to the deceased.

[14]As to the second ground that MrsHausiku did not seek an order impugning MsMpasi’s marriage to the deceased, the court was of the view that this issue was not only factual but also misplaced. The court reasoned that MrsHausiku had not sought to be appointed as the executrix of the estate, but rather her attack was directed at the appointment of MsMpasi on the strength of an invalid marriage. In that context, the court found that the so-called marriage between MsMpasi and the deceased was void ab initio and as such there was no need in law to declare it null and void as it was invalid by operation of law.

[15]Regarding the third ground, the court found that the point was similar to the first ground and that it also related to the cogency of the evidence produced by MrsHausiku in proving her marriage to the deceased. The court was of the view that this ground related to the alleged contradictions concerning the date of designation of RevSirongo as a marriage officer and the date the marriage between MrsHausiku and the deceased was solemnised. As such, it too had to be dismissed. In view of the foregoing findings, the court set aside the appointment of MsMpasi as the executrix of the estate.

[16]As part of the review application, MrsHausiku sought an order appointing the third respondent, Martha Sitentu, as the executrix of the estate. After noting that not much information about her was provided on the papers, the judge below appointed MrsHausiku instead as the executrix of the deceased estate, with the power of assumption to appoint an agent to act on her behalf in the administration and liquidation of the estate.

Issues on appeal

Does the High Court have powers to appoint an executor?

[17]On behalf of MsMpasi, counsel submitted that the court a quo erred in appointing MrsHausiku as the executrix. Counsel argued that MrsHausiku’s appointment was not done in accordance with the law as the power to appoint an executor was exclusively reserved for the Master. Counsel argued that although the court was empowered by the governing legislation to remove an executor, it did not have the power to appoint one.

[18]Counsel further submitted that in appointing MrsHausiku, the High Court had acted contrary to the doctrine of separation of powers by usurping powers entrusted to other repositories, in the present case, the Master. Counsel also submitted that it was evident from s 15 and other sections of the Act that the repository of power to appoint an executor upon application is the Master and not the court.

[19]Counsel for MrsHausiku in support of the order a quo, contended that although it is a general principle of administrative law that courts will be reluctant to substitute their decisions for those of decision makers, this approach is not cast in stone. According to counsel, our courts have recognised that in some instances it is appropriate for a court to substitute its decision for that of a decision maker. Counsel submitted that our courts have shown this inclination where the result is in any event a foregone conclusion or where it would be a waste of time to refer back the matter to the decision maker. Counsel further submitted that this had happened in instances where time is of essence and referring the matter back to a decision maker may result in an injustice.

[20]In support of this submission, counsel for MrsHausiku referred to the decision of the Supreme Court of Appeal of South Africa in Commissioner of the Competition Commission v General Council of the Bar South Africa[1] wherein the court expressed the view at para 14 that although courts would be slow to assume a discretion entrusted to another tribunal or functionary, considerations of fairness may require that there should be no remittal in cases where the referral would be procedurally unfair to the parties. Counsel therefore submitted that the court a quo was correct in not referring the matter back to the Master as it had already found that MsMpasi was not a fit and proper person to occupy the position of an executrix. Counsel also submitted that time and fairness were important considerations in the present matter; that the court a quo did not deem it necessary to remit the matter to the Master as doing so would have further delayed the liquidation and distribution process.

[21]In support of the order of the High Court, counsel further argued that s 95 of the Act empowered the court to both remove and appoint an executor. The provision stipulates that the court may review the appointments by the Master and on appeal or review, confirm, set aside or vary the appointment. According to counsel, the words ‘the court may . . . vary the appointment’ as used in this provision included the power to appoint an executor.

[22]During oral submissions in this court, counsel’s attention was drawn to decisions of South African courts on the question of whether or not the High Court has the power to point an executor.