Nyamukamadi Mukumela Denga (Mabirimisa) & Others v Mabirimisa Tshililo Arnold N N O & Others

The deceased, Mudzielwana Josiah Denga Mabirimisa, died intestate on 19 April 1998. He had concluded three customary marriages constituting three houses. The first appellant was the deceased's second wife, with seven children. The first respondent was the deceased's first-born son from the first house. The deceased owned a 50% shareholding in Mabirimisa Bus Services (Pty) Ltd. On 29 April 1998, the estate was reported to the Magistrate's Court of Dzanani and registered as estate number 44/98. On 30 April 1998, the Magistrate appointed the first respondent as the representative of the deceased estate in terms of section 23(10) of the Black Administration Act 38 of 1927, applying the principle of male primogeniture. The first respondent compiled an inventory including cattle, goats, an orchard, vehicles, transport certificates, household furniture, a bank account, and the 50% share in the bus company. In October 2019, the appellants launched an application seeking an order declaring that the deceased estate be administered in terms of the Administration of Estates Act 66 of 1965 and that they be declared the heirs. The first appellant alleged she received no benefit from the estate despite being a pensioner. The respondents opposed the application, asserting that the estate had been finalized in terms of the Black Administration Act through a settlement agreement made an order of court by the Magistrate on 7 March 2006. This settlement agreement provided for payment of R1.4 million to the Madzielwana Trust created by the appellants, payable in instalments. The first respondent provided proof of payments and testified that he had fully complied with the settlement agreement. The appellants disputed this, claiming only R240,000 was paid.

• Whether the estate of the deceased had been finalized under the Black Administration Act 38 of 1927
• Whether the estate could be re-opened and administered under the Administration of Estates Act 66 of 1965 after the repeal of the Black Administration Act
• Whether a settlement agreement entered into between parties in a deceased estate could constitute finalization of the estate under the Black Administration Act
• How to resolve the factual dispute on the papers regarding whether the estate had been finalized

The appeal was dismissed with no order as to costs.

An estate reported and registered under the Black Administration Act 38 of 1927 before its repeal and constitutional invalidation may be lawfully finalized under that Act where the process of administration commenced before the Bhe judgment, even if finalization occurs after the judgment. A settlement agreement between all interested parties in a deceased estate, made an order of court by the magistrate supervising the estate under section 23(10) of the Black Administration Act, constitutes valid finalization of the estate administration under that Act, notwithstanding the absence of formal liquidation and distribution accounts. The regulations promulgated under the Black Administration Act did not require the same formal procedures as the Administration of Estates Act 66 of 1965, and estates finalized under the former Act cannot be reopened for administration under the latter Act merely because of differences in procedural requirements or the subsequent repeal of the Black Administration Act. Where there is a factual dispute on motion proceedings about whether an estate has been finalized, the court must apply the Plascon-Evans principle and accept the respondent's version unless it is far-fetched, clearly untenable, or does not raise a genuine dispute of fact.

The Court made an important observation regarding remedies available to disappointed beneficiaries: to the extent that the appellants believed the first respondent breached his fiduciary duties while administering the estate, it was open to them to institute the relevant action against the first respondent for such breach, rather than seeking to reopen the estate administration. The Court also observed, citing Bhe, that special care must be taken to ensure that settlement agreements in deceased estates are genuine and not the result of exploitation of weaker family members by stronger ones, and that a special duty rests on the Master of the High Court, magistrates and other officials to ensure no one is prejudiced in discussions leading to such agreements. Regarding costs, the Court noted that while the general rule is that costs follow the result, in all the circumstances of this case it would not be in the interests of justice to make an adverse order of costs on appeal. This suggests the Court had sympathy for the appellants' position despite dismissing their appeal.

This case clarifies important principles regarding the finalization of deceased estates under the now-repealed Black Administration Act 38 of 1927. It confirms that: 1. Estates that were in the process of being wound up under the Black Administration Act at the time of its declaration of unconstitutionality in Bhe (2005) could continue to be finalized under that Act, rather than being reopened under the Administration of Estates Act. 2. Settlement agreements between interested parties in a deceased estate can constitute valid finalization of the estate under the Black Administration Act, even without formal liquidation and distribution accounts, provided the magistrate supervised the process. 3. The procedural requirements for finalizing estates under the Black Administration Act (which applied to estates of black persons) were less formal than those under the Administration of Estates Act, and did not necessarily require the drawing of liquidation and distribution accounts. 4. The application of the Plascon-Evans principle in resolving factual disputes on motion proceedings in the context of deceased estate disputes. The case also highlights the continued legal consequences of estates administered under apartheid-era legislation and the transitional issues arising from the constitutional invalidation of discriminatory succession laws.