Smit N.O. v Firstrand Bank Limited and Others

Ms Abrahams was cited as the Defendant in her capacity as Master's Representative of an estate in an action for default judgment. She had submitted a resignation letter to the Master on 19 May 2016. Despite this letter being shown to the court, default judgment was granted on 17 February 2017. The Applicant later sought appointment, at the nomination of the deceased's children, as the new Master's Representative after having entered into a deed of sale, through a trust of his, to purchase the property for less than it fetched at a judicial sale.

• Whether the default judgment granted on 17 February 2017 was erroneously sought or erroneously granted in terms of Rule 42(1)(a) of the Uniform Rules of Court.
• Whether the letter of resignation by a Master's Representative, without a formal letter of removal from the Master, effectively terminated their appointment under section 18(3) of the Administration of Estates Act 66 of 1965.
• Whether the Applicant's clear conflict of interest merited his removal as the appointed Master's Representative in terms of a counter-application.

The application for rescission of judgment was dismissed. The Applicant was removed as Master's Representative, and he was ordered to pay costs de bonis propriis (from his own pocket) for both the rescission and the counter-application. The previously granted interdict was uplifted.

An order can only be rescinded under Rule 42(1)(a) if it was 'erroneously sought or erroneously granted', which requires a demonstrable mistake of fact or law on the record. The resignation of a section 18(3) Master's Representative only becomes effective upon the Master issuing a formal removal letter (similar to the positive act under section 54 for executors); until then, the representative remains in office and can be validly cited.

In dicta, the court noted that bona fides need not be shown for a rescission application under Rule 42(1)(a) (citing Bakoven Ltd v G J Howes (Pty) Ltd 1992 (2) SA 466 (E)), but it is a relevant consideration when the same party faces an application for removal as a fiduciary where their personal interests create a conflict.

This case clarifies the procedure for the resignation and removal of Master's Representatives appointed under section 18(3) of the Administration of Estates Act, holding that, akin to executors under section 54, a positive administrative act (a registered letter of removal) by the Master is required to terminate the appointment. It also illustrates the strict application of Rule 42(1)(a) in procedural law and the consequences of a fiduciary having a conflict of interest.