Justice Zein Kebonang came down heavily against The Master of the High Court (name unknown) and former acting Judge Rahim Khan last week, for attempting to sell a deceased estate behind the back of beneficiaries.
Justice Kebonang said the Master’s conduct offended against principles of “transparency” and “procedural fairness.” The judge said there was no justification for the Master’s actions.
Khan did not escape the judge’s wrath. Justice Kebonang censored the former acting judge for acting to the “ prejudice and detriment” of the deceased estate’s beneficiaries.
Khan was hauled before the High Court in Gaborone by Camaldin Kamal Jacobs one of the beneficiaries of the late Oswald Jacobs’ estate.
Kamal Jacobs sought to interdict the former acting judge from concluding a sale agreement for a part of the estate by way of a private treaty.
Court records show that Khan and Camaldin Kamal Jacobs were appointed joint executors and administrators of the estate of the late Oswald Jacobs by the Master on the 27th August 2009.
In addition to being an executor and administrator of the estate, Kamal Jacobs is also a beneficiary of the estate.
Kamal approached the High Court challenging the decision of the Master, authorizing Khan to sell certain properties belonging to the deceased estate by private treaty. He argued that this was was illegal and unlawful as it was done without his knowledge or consent despite him being a joint executor and administrator of the estate.
Ordering Khan to “immediately” transfer the plots at the centre of the dispute in Lobatse to Kamal Jacobs, Justice Kebonang censured the former acting judge for disadvantaging beneficiaries of the deceased estate.
In terms of the distribution account signed by Kamal Jacobs and Khan which were presented in court, Kamal Jacobs was to acquire certain properties belonging to the estate upon him paying the other beneficiaries their share of the inheritance.
In his court papers, Kamal said Khan was “hell bent on disinheriting him.” He accused Khan of frustrating the final distribution of the estate by withholding the necessary security documents that would enable him to obtain funding from financial institutions.
Khan denied acting to the detriment of the estate and insisted that his actions were geared at protecting the interests of all beneficiaries.
Handing down judgement, Justice Zein Kebonang noted that from reading of section 48 of the Administration of Estate Act, it is clear that there is a general prohibition against the sale of property of the Estate but where such a sale is authorized; it must be to the advantage of the persons interested or by their consent.
“It appears to me that while the Master can, in appropriate circumstances, consent to the sale of property, where there are two or more executors and administrators of the estate, as in this case, such authorization cannot in my view be issued at the instance of only executor to the exclusion of the other,” said Kebonang.
He said “it could be inferred that in the current application”, Kamal had not consented to the sale of the property by the former acting judge.
“The Master has not, despite being served with the present application, provided any explanation of her authorization. Whilst nothing turns on this failure, Order 61 of the rules of court anticipates a decision maker providing an explanation where necessary.”
Justice Kebonang explained that tendering reasons serves many purposes and it allows parties to establish whether issues of concern were carefully considered and evaluated.
He said while in the absence of reason, one can draw several inferences as to the conduct of the decision-maker, “In the present case it is difficult to draw specific inferences as to the Master’s state of mind and whether she understood the implications of leaving out the applicant (Kamal) in her correspondence with the 4th Respondent (Khan), when he was a co-executor and administrator of the estate.”
The judge wondered if there was any justification or reason why the Master could not copy her response (regarding letter by Khan that he wanted to sell the property) to Kamal when her decision impacted on the property under administration.
“There seems to be none,” the judge said.
Justice Kebonang found: “In the absence of any explanation from the Master, the only conclusion that one can arrive at is that the Master’s decision to authorize the sale of Lot 441/442 by private treaty is against the dictates of procedural fairness and indeed section 48 of the Administration of Estates Act.”
He said in the present case, the Master granted her authorization in a process that deliberately excluded Kamal even though he was a co-executor and administrator of the estate.
Justice Kebonang found that the conduct of the Master also offended against the principle of transparency as the authorization from her was obtained behind Kamal’s back.
The Judge also found that the estate has been under management for the past 13 years with no end in sight. The potential detriment to both creditors and heirs is not difficult to imagine if the status quo is not resolved.
“Imagine managing the estate, one recognizes that it is not the interests of a particular beneficiary that are to be paramount but rather the interests of all the beneficiaries collectively,” said Kebonang.
Therefore, he said, there was no reason for withholding the title to the plots in question. “Without such security documents being given to the Applicant to raise the necessary capital, it is clear that the other beneficiaries will never enjoy their inheritance rights,” said the judge.
The judge said by holding on to the security documents, Khan has done so to the prejudice and detriment of the beneficiaries. He is also scuttling the finalisation of the distribution account.
“In fact, he has succeeded in doing so. Although he alleges that he is or was acting in the interests of other beneficiaries, he has not filed any confirmatory and/or supporting affidavits from them,” said Kebonang. He has also not identified the interests that he is/was and how he is/was protecting it.
Kebonang said Khan’s decision to require that Jacobs must simultaneously pay on transfer of the security documents to him, is to unduly impede the ability of Jacobs to raise the necessary capital of all the beneficiaries.
