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By Eswatini Observer Reporter | 2020-06-01
The Master of the High Court has removed Siphephiso Dlamini as an executor in the estate of his late father, Richard Phakama.
The late senator and businessman Phakama died almost seven years ago, in December 20th, 2013.
The Assistant Master of the High Court Makhosazana Mdluli in her ruling of May 19, 2020 stated that her office and other executors were being taken for granted by Dlamini (executor) who had a duty to legally administer an estate with the interest of all the other beneficiaries.
She stated in her ruling that Dlamini’s removal was not personal but is for progress in the estate.
“He had many options to sign the liquidation account, to make an application to court for the interpretation of the judgment or to resign. It was communicated in a meeting that if he makes the application the Master will stay everything in the file and they will resume as executors after the order. He failed to act but he decided to hold the estate ransom by using the fact that he was an executor,” the Assistant Master stated.
In her scathing ruling, the Master of the High Court was dealing with the issues that were responsible for the delay of the wounding up of the estate of late Richard Themba Dlamini in terms of Section 51 bis (7) of the Administration of Estate Act No.28/1902.
She quoted Justice Ota J in Banjwayini Shongwe vs Abraham Shongwe and 11 others (556/12) 2012 SZHC 170 where the judge stated: “This is a family feud, an unfortunate one for that matter. I say unfortunate because it is a feud that has the potential of tearing the Shongwe family apart. As so often happens when a man dies intestate leaving wives and assets, such as we have seen it in courts from time to immemorial, more than not become the subject of litigation between wives and their respective families.”
Mdluli stated that although in this matter unlike the above referred case, the deceased left a Will, there are other properties that he did not include in his Last Will and Testament, which have to be distributed intestate.
She stated that her office has a duty to ensure that the estate of the deceased is winded up in terms of the Administration of Estates law and as part of the Judiciary have the duty to do so without fear or favour.
Biased
Mdluli stated that it was for this reason that in most cases they are labelled biased as they are forced to make decisions that do not favour certain individuals, theirs is to apply the law.
The Assistant Master states that when Richard Themba Dlamini, popularly known as Phakama died in 2013 he left behind four wives, 22 children and some assets which include 50 per cent shares in Phakama Investment, 50 per cent in Sigwaca Holdings and about E360 000 cash at the bank.
The Master states that the shares in Phakama Investments were distributed through his Last Will and Testament (50 per cent held by him, 30 per cent by Muzi in trust of his (Phakama’s) children and 20 per cent for his four wives), as such will be distributed testate.
She states in her ruling that most significant part of all this, is that no one has objected to the Last Will and Testament of the deceased yet it gives equal shares to all spouses.
Mdluli said it was now common cause that the first wife, Sarah Dlamini (nee Kunene) challenged the marriages of Phakama’s three wives, declaring them null and void as she had been married to Dlamini in civil rites and community of property.
Whilst she initially won the case at the High Court, the judgment was reversed by the Supreme Court which declared all four wives as spouses to the deceased.
Information
Sarah died two years later (2016).
Mdluli said the executors (Nkosinathi and Ntombi Dlamini) have failed to get concrete information on the two companies.
“The directors and shareholders have refused to submit certificates and dividends to the Master regardless several correspondences by the executors and the Master. It was after that that our offices advised the executors to draw the first liquidation and distribution account for the money that was at the bank.
The Assistant Master revealed that the executors submitted two different accounts.
“Siphephiso Dlamini submitted an account in which his mother, the first wife of the deceased, was given a half a share plus child’s share. The other executors submitted an account where all the spouses were given equal shares,” she sated.
The Master said given the different interpretations of the Supreme Court judgment, she had to ask for a legal opinion from the attorney general, who agreed with the two executors’ interpretation.
Opinion
After the legal opinion the executors were advised to submit an account where all spouses get equal shares and that if Siphephiso was not satisfied, he must approach the court.
“We further informed him that the office will wait until the matter is concluded and all the executors will then proceed in terms of the order of the court. Siphephiso refused to go to court and also refused to sign the liquidation, stating that he believed the first wife should be entitled to get half share,” she states in her ruling.
The Assistant Master states that Siphephiso was further given time in October 2019 to go and make consultations, which he did and came back in December and requested to see the Master Phumzile Thomo.
She states that that opportunity was granted. Another meeting was called in February, where again he requested for an extension, this time asking for an opportunity to consult the late Phakama’s spouses.
“Since the matter has been dragging for a long time, we agreed on a timeframe. Yet again his time lapsed. He did not come to the offices or even write anything. We also did not get any court papers for the interpretation of the judgment. It was clear we were being taken for granted by an executor who had a duty to legally administer an estate with the interest of all the other beneficiaries. It was after this that I wrote a letter to remove him as an executor,” the Assistant Master Mdluli stated.
The Assistant Master says the Supreme Court judgment is one of the main issues in the matter before her. The issues which she had to make a ruling on were as follows;
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