Abstract

Shortly after the demise of the deceased on 13 June 2025 the first respondent in Tlou v Mtsweni (2025/182777) 2025 ZALMPPHC 198 (20 October 2025) as designated executor presented the applicant T, a sister of the deceased, with a handwritten note commissioned by the fourth respondent as police officer purporting to be the last will and testament of the deceased. In terms of the said document, the first respondent stood to inherit the tavern of the deceased as well as all the furniture in the said tavern. Part of the furniture that was used in the tavern included fridges that belonged to SA Breweries. Against the will of the applicant and notwithstanding her protest, the first respondent removed such furniture from the possession of the applicant. She had kept the belongings of her deceased brother in safekeeping at her (their) parents’ premises until significant uncertainties regarding the validity of the handwritten note as the alleged last will of the deceased could be clarified in court.
The court dismissed the application by T for the spoliation order against M with costs because, according to the court, an executor is entitled to remove any property that forms part of the estate of the deceased on authority of the Administration of Estates Act 66 of 1965. The court held that of relevance to these proceedings, is the averment by the first respondent that he is empowered to collect the assets of the estate by virtue of his appointment as executor. According to the first respondent it is therefore his duty to collect assets belonging to the deceased estate and any alleged dispossession is thus lawful and justified. The acting judge submitted that, insofar as the refrigerators were in the control of the deceased and held at the tavern premises, nobody had the right to simply remove these refrigerators without the knowledge and consent of the executor – notwithstanding the fact that they never belonged to the deceased. The court held that the applicant removed the furniture from the tavern unlawfully and without the executor’s consent and retained the refrigerators at her or her parents’ premises.
The judgment does not disclose whether the said removal by the applicant took place before or after the respondent was issued with the letters of executorship by the master of the high court. It would seem to be problematic to await the issuing of the letters of executorship to acquire the executor’s consent if in the meantime the property may be prone to pilfering by thieves from the abandoned tavern. T acted exemplarily, as a negotiorum gestor may be expected to act in preservation of the assets of the deceased. An agent of necessity holds the things as possessor and not as a mere detentor, because per definition she was not mandated by another as principal to act as the latter’s detentor.
The court held that the applicant was incorrect in her submission that the executor must have some form of court order or authority before assets can be forcefully removed or collected by him. The authority of the executor is according to the court “cemented” in the provisions of section 26. That section, however, does not empower the executor to spoliate anything covered by the emphasised qualification governing the executor’s powers: “Immediately after letters of executorship have been granted to him an executor shall take into his custody or under his control all the property, books and documents in the estate and not in the possession of any person who claims to be entitled to retain it under any contract, right of retention or attachment” (s 26(1) – emphasis added).
The applicant’s contention is that the first respondent’s appointment as executor does not empower him to take the law into his own hands without recourse to the court or the master. Not even an owner can hide behind his ownership as justification for an act of spoliation, and an executor is at most acting as the personal representative of the deceased and is not clothed with more powers than the deceased as owner had. The court held that this contention is rebutted by the purported trite provisions of the Administration of Estates Act, which direct that the executor must take immediate possession of such property belonging to the deceased estate or in the possession or under the control of the deceased [sic].
It is submitted that, because the refrigerators belonged to SA Breweries, the executor had no entitlement to lay claim to the possession of such assets, as they had never formed part of the estate of the deceased. It is further submitted that no executor is clothed with the power to spoliate assets from the peaceful possession of a third party as possessor. Notwithstanding the conviction of the acting judge in this case, the Administration of Estates Act does not entitle the executor to self-righteously dispossess anybody. This judgment should not be elevated as a unique precedent on the perceived newfound limitations to a spoliation order under the principle of stare decisis.
It is doubtful whether it was justified to award a cost order against the applicant considering that she was relying on the judicial order to protect her against a spoliator after she took the assets of her deceased brother into her safekeeping as agent of necessity to prevent his estate being pilfered until the clarification of the validity of the will and the appointment of the executor. Not protecting the negotiorum gestor in this instance and burdening her with a cost order including the costs of counsel on scale B does not strengthen reliance on the rule of law.