Miriam Sarai v Timothy Chatikobo and Master of the High Court N.O

The late Garirayi Chatikobo died intestate on 20 August 2002. On 17 October 2024, the first respondent was appointed executor dative by the Master of the High Court with the agreement of family members, including the applicant. The deceased's estate consisted of one property, farm 1335 Wilshire registered under Grant No. 4984/92. The first respondent failed to finalize the estate despite a letter from the Master's Office calling upon him to file the First and Final Liquidation and Distribution Account. The first respondent claimed the estate had already been distributed through an oral will and that boundary disputes needed to be resolved. The applicant, a female beneficiary, then applied for the removal of the first respondent as executor, alleging he had a conflict of interest in wanting to exclude her from distribution in favor of male beneficiaries.

• Whether the first respondent should be removed as executor of the estate at common law
• Whether the executor's failure to file the Distribution Account within 6 months constituted grounds for removal
• Whether the executor's claimed reasons (oral will and boundary disputes) justified his failure to discharge his statutory duties
• Whether the executor had a conflict of interest that warranted his removal

1. The first respondent was removed as executor of the estate of the late Garirayi Chatikobo (2593/24). 2. The second respondent (Master of the High Court) was directed to take necessary steps as soon as practically possible to have an independent/neutral executor appointed. 3. The first respondent was ordered to pay costs of the application.

An executor may be removed at common law where he lamentably fails to perform his duties according to the mandate given. Specifically, failure to comply with the section 52 obligation under the Administration of Estates Act to finalize the estate and compile a Distribution Account within 6 months, despite directives from the Master's Office, constitutes grounds for removal. The court possesses inherent power under Roman-Dutch Law to remove an executor on the ground that his continuance in office will prejudicially affect the future welfare of the estate entrusted to him. An executor's invocation of extraneous issues (such as boundary disputes) does not excuse failure to discharge core statutory duties relating to estate finalization.

The court noted that the issue of farm boundaries raised by the executor was irrelevant to the performance of his duties as executor and would be a matter for the Surveyor General if necessary. The court also observed that unsubstantiated evidence led from the bar by the executor's legal practitioner regarding resolution of boundary issues was not persuasive. The court expressed the view that any minute the executor remains in office may be used for self-aggrandizement at the expense of beneficiaries, though this was not directly determinative of the case.

This case reaffirms the common law power of the court to remove an executor who fails to discharge statutory duties under the Administration of Estates Act. It establishes that failure to comply with the section 52 obligation to finalize an estate within 6 months, particularly after directives from the Master's Office, constitutes sufficient grounds for removal at common law. The case demonstrates that executors cannot use extraneous issues (such as boundary disputes) to justify non-performance of their core statutory duties. It also reinforces the principle that the court will remove an executor where continuance in office prejudicially affects the estate and beneficiaries, particularly where an estate has remained idle for an extended period.