Shiraz Sabdia N.O. and Another v Aniel Kanjee Soma and Another

The late Dr Mahamed Faruk Sabdia instituted review proceedings in the Land Claims Court in 2006 relating to immovable property in Marabastad, Pretoria. Dr Sabdia died on 5 November 2013 before the matter was finalized. His sons, Riaz and Shiraz Sabdia, were appointed as joint executors of his estate and were substituted as litigants. On 13 December 2013, Mr Aniel Kanjee Soma brought an eviction application against the estate and others, which was successfully opposed by the executors who were represented by the attorneys Mothle Jooma Sabdia Incorporated (MJS). The application was dismissed with costs on a punitive scale (as between attorney and client). MJS set down the bill of costs for taxation on 19 September 2019. The Taxing Master disallowed the fee component of the costs (amounting to R465,265), ruling that Mr Shiraz Sabdia, who was an attorney practicing at MJS, was not entitled to remuneration as an attorney notwithstanding his co-executor's approval, finding that the executor's remuneration covered all work done on behalf of the estate. The executors challenged this decision through review proceedings, which were dismissed by the high court. The executors then successfully petitioned the Supreme Court of Appeal for leave to appeal.

• Whether an executor who is also an attorney and acts in his professional capacity on behalf of the deceased estate in a lawsuit is entitled to remuneration as an attorney in addition to executor's remuneration
• Whether the decision to disallow the payment of professional fees falls within the discretion of a Taxing Master
• The proper interpretation of section 51(1)(a) of the Administration of Estates Act 66 of 1965
• Whether a testator can validly fix remuneration for professional services rendered by an executor in terms of a Will
• The proper interpretation of clauses 4 and 5.3 of the Will regarding professional fees

The appeal succeeded with costs, including the costs of two counsel where so employed. The order of the high court was set aside. The decision and ruling of the Taxing Master to disallow the entire fee component of the bill of costs was set aside. The allocator of the Taxing Master was set aside. The taxation of the bill of costs was referred back to the Taxing Master with a direction to re-enrol the taxation after notice to the parties and to proceed to tax the bill of costs on a scale as between attorney and client. The applicant was ordered to pay the fourth and fifth respondents' costs in the high court.

Section 51(1) of the Administration of Estates Act 66 of 1965 permits two distinct legislative frameworks for the payment of an executor's remuneration: (a) such remuneration as may have been fixed by the deceased in the Will, or (b) if no such remuneration has been fixed, remuneration according to a prescribed tariff. Where a testator expressly determines in the Will that executors shall be entitled to charge professional fees for legal services rendered in connection with the administration of the estate, this falls within the ambit of section 51(1)(a) and is valid. The principle in Estate Fawcus v Van Boeschoten and Lorentz, which prohibits executors who are attorneys from charging professional fees, does not apply where the testator has expressly authorized such payment in terms of section 51(1)(a) of the Estates Act. When interpreting a Will, the court must apply the unitary and objective exercise set out in Endumeni, paying due regard to the text, context and purpose of the provisions. A clause authorizing payment of "all usual professional fees and other fees and charges from business transacted, time spent and acts done" by executors or their associates in connection with the administration of the estate is clear and unequivocal in granting the right to charge professional fees, particularly when read with a clause directing the executors to pursue litigation on behalf of the estate.

The Court noted that the question whether the decision to disallow the payment of fees falls within the discretion of the Taxing Master raised a very important issue, which though extensively dealt with in the high court judgment, was not fully ventilated before the Supreme Court of Appeal. Given the conclusion reached regarding the primacy of clause 5.3 of the Will in determining the remuneration of the executors, the Court found it unnecessary to decide this aspect of the appeal. The Court observed that executors do not usually have "associates" although they can exercise their powers through an agent in the administration of the estate, but noted that Dr Sabdia knew one of his sons was an attorney whose associates had already provided litigation services to him. The Court noted the distinction between time-based professional fees and performance-based statutory executor remuneration calculated as a fixed percentage rate. The Court noted it was unfortunate that the high court rigidly applied the principle in Fawcus without proper consideration of section 51(1)(a) of the Estates Act and the express provisions of the Will.

This case establishes important principles regarding the freedom of testation and the ability of a testator to determine executor's remuneration in South Africa. It clarifies the two-tier regime in section 51(1) of the Administration of Estates Act 66 of 1965 and confirms that a testator may validly provide for professional fees to be paid to an executor who provides legal services to the estate. The judgment narrows the application of the longstanding principle in Estate Fawcus v Van Boeschoten and Lorentz (1934), which held that executors who are attorneys cannot charge professional fees for legal work done for the estate. The case reinforces that where a testator expressly authorizes such payment in the Will, this overrides the general prohibition. It demonstrates the importance of applying principles of interpretation from Endumeni to testamentary provisions, considering text, context and purpose. The judgment also emphasizes that statutory provisions must be properly construed in light of testamentary freedom.