Sabdia N O and Another v Soma and Another

Dr Mahamed Faruk Sabdia instituted review proceedings in the Land Claims Court concerning immovable property. He died before finalisation of the litigation, and his sons, Riaz and Shiraz Sabdia, were appointed as joint executors and substituted as litigants. An eviction application brought against the estate was successfully opposed, with costs awarded on an attorney-and-client scale. Shiraz Sabdia, an attorney and executor, acted through his firm in the litigation. When the bill of costs was taxed, the Taxing Master disallowed the professional fee component, allowing only out-of-pocket expenses, on the basis that an executor-attorney may not recover professional fees. The High Court dismissed a review of the Taxing Master’s decision. The executors appealed to the Supreme Court of Appeal, relying on provisions of the deceased’s will that expressly authorised payment of professional fees.

The appeal succeeded with costs. The High Court order was set aside. The Taxing Master’s decision disallowing the entire fee component and the allocator were set aside, and the taxation of the bill of costs was referred back to the Taxing Master to be taxed on an attorney-and-client scale.

The case clarifies that South African law recognises an exception to the general prohibition on executor-attorneys charging professional fees where the deceased’s will expressly authorises such remuneration. It affirms the primacy of freedom of testation under section 51(1)(a) of the Administration of Estates Act and limits the rigid application of earlier authority such as Estate Fawcus. The judgment is important for estate administration, costs taxation, and the role of executor-attorneys.