Is s 54(2) of the Administration of Estates Act constitutional?

Section 54 of the Administration of Estates Act 66 of 1965 (the Act) (Chapter 2: Deceased Estates) provides for the removal from office of an executor by the court and the Master of the High Court. Section 54(1)(b)(i) to (vi) sets out the grounds on which the Master of High Court may remove an executor from office. Section 54(2) reads as follows:

‘Before removing an executor from his office under sub-paragraph (i), (ii), (iii), (iv) or (v) of paragraph (b) of subsection (1), the Master shall forward to him by registered post a notice setting forth the reasons for such removal, and informing him that he may apply to the Court within thirty days from the date of such notice for an order restraining the Master from removing him from his office’. I submit that the words ‘within thirty days from the date of such notice’ in s 54(2) of the Act is unconstitutional because it enables the Master of the High Court to limit or even prevent access of an executor to the court, which is a basic human right protected by s 34 of the Constitution.

I recently had the matter where the Master of the High Court gave notice to an executor in terms of s 54(2) and such notice was dated 3 January, but was only posted 11 days later on 14 January. It was only received by the executor on 22 January, which made it impossible for the executor to approach the court in a normal manner and the executor had to apply for an interim interdict on an urgent basis. The present wording of s 54(2) makes it possible for the Master to post the notice a day before the 30th day of the period allowed for lodging of an application expires, effectively rendering it impossible for an executor to lodge an application as contemplated by s 54(2) to prevent their removal timeously, thus rendering the constitutional protections afforded to executors nugatory. I submit that the wording of the section could easily be rendered constitutionally compliant if the wording were amended to read ‘within thirty days from the date of delivery of such notice’.

Delivery of the notice can easily be proved because the Master is required to send a notice in terms of s 54(2) of the Act by registered mail and the courts have extensively dealt with the manner in which delivery of notices sent by registered mail in the context of other legislation are to be proved.

Henk Venter, legal practitioner, Magaliesburg

De Rebus newsletter – January/February 2019

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This article was first published in De Rebus in 2019 (April) DR 4.