REPORTABLECASE NO: SA 86/2016

IN THE SUPREME COURT OF NAMIBIA

In the matter between:

IRENIA MPASI N.O. IN HER OFFICIAL CAPACITYAS THE EXECUTRIX OF THE ESTATE OF THE LATESITENTU DANIEL MPASI

First Appellant

IRENIA MPASI Second Appellant

and

MASTER OF THE HIGH COURT First RespondentSELMA HAUSIKU Second RespondentMARTHA SITENTU Third RespondentANDREAS SHIKONGO SITENTU Fourth RespondentHELVI MUKWANANKALI SIREMWA SITENTU Fifth RespondentKANDJIMI LEEVI SITENTU Sixth RespondentWILHELM MPASI SITENTU Seventh Respondent

CORAM: SHIVUTE CJ, SMUTS JA and HOFF JA

Heard: 19 June 2018

Delivered: 17 August 2018

Summary: Mrs Selma Hausiku, the second respondent, instituted motion

proceedings in the High Court in which she sought an order reviewing and setting

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aside the appointment of Ms Irene Mpasi, the first appellant, as the executrix of the

estate of the late Sitentu Daniel Mpasi. Mrs Hausiku sought further orders,

amongst others, that the appointment of Ms Mpasi should be declared null and

void; that she should be removed from the office of the executrix; and that one

Martha Sitentu, the third respondent, should be appointed instead as the executrix

of the estate. Both Mrs Hausiku and Ms Mpasi claim to have been each legally

married to the late Chief Sitentu Daniel Mpasi.

The late Chief Sitentu Daniel Mpasi died on 17 December 2014. Following his

passing, Ms Irenia Mpasi launched an application with the Master of the High

Court for her appointment as the executrix of the deceased’s estate. She was

accordingly appointed in that position.

Aggrieved by the decision to appoint Ms Mpasi, Mrs Hausiku brought an

application in the High Court seeking the relief referred to above. Ms Mpasi in her

capacity as the executrix and in her personal capacity opposed the application but

did not file an opposing affidavit. Instead, she filed a notice in terms of rule 66(1)(c)

of the Rules of the High Court raising three issues that she contended were points

of law.

After hearing argument on behalf of the parties, the High Court found that the

three points raised by Ms Mpasi were factual and not legal points. They were

accordingly dismissed. In addition to the dismissal of the three points, the High

Court ordered the removal of Ms Mpasi from office as the executrix of the estate

and appointed Mrs Hausiku instead. Dissatisfied with the findings and decision of

the High Court, Ms Mpasi appealed against the decision to this court.

On appeal, it was argued on behalf of Ms Mpasi that the High Court had no

powers to appoint an executor. It was contended that the court a quo acted

contrary to the doctrine of separation of powers by assuming powers entrusted to

the Master, the first respondent, to appoint executors. Ms Mpasi further argued

that Mrs Hausiku had not put sufficient evidence establishing that she was the

lawful surviving spouse of the late Chief Sitentu Daniel Mpasi.

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On behalf of Mrs Hausiku on the other hand, it was argued that the High Court

was justified in interfering with the decision of the Master and in appointing Mrs

Hausiku the executrix of the estate. It was further argued that the High Court was

correct in finding that she had put up sufficient evidence establishing that she was

the lawful surviving spouse of the deceased.

On appeal this court held that while the High Court had powers to remove an

executor, to review, to set aside or vary appointments made by the Master in

terms of the Administration of Estates Act 66 of 1965, it had no statutory or

common law powers to appoint an executor. In light of this finding, the

appointment of Ms Mpasi was set aside, and the matter referred back to the

Master with the direction to appoint an executor or executrix of the estate of the

late Sitentu Daniel Mpasi in accordance with the law.

The court agreed with the findings of the High Court that the allegations contained

in the founding papers remained uncontroverted. The court also agreed with the

findings of the High Court that Mrs Hausiku had proved the validity and existence

of her marriage to the deceased despite the alleged contradictions in some of her

evidence. As the appellants had not been entirely successful, each party was

ordered to pay her own costs on appeal. The order of costs made in the review

application in the High Court was confirmed.

APPEAL JUDGMENT

SHIVUTE CJ (SMUTS JA and HOFF JA concurring):

[1] This appeal concerns the decision of the High Court that ordered the

removal of the first appellant, Ms Irenia Mpasi in her official capacity, from the

office of executrix of the estate of the late Sitentu Daniel Mpasi and the

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appointment in her stead of Mrs Selma Hausiku, the second respondent. Ms

Mpasi has been cited as the second appellant in her personal capacity.

Background

[2] Ms Irenia Mpasi, née Anton and Mrs Selma Hausiku each claims to have

been lawfully married to the late Chief Sitentu Daniel Mpasi, the Chief of

Ukwangali Traditional Authority, who died on 17 December 2014 aged 80 years.

[3] The first respondent is the Master of the High Court (the Master), appointed

as such in terms of s 2 of the Administration of Estates Act 66 of 1965 (the Act).

The names of the third, fourth, fifth, sixth and seventh respondents appear in the

affidavit of the next of kin filed by Ms Mpasi with the Master under the heading

‘children and dates of birth of the children of the deceased’. I thus accept, as the

High Court did, that these respondents are children of the late Chief Sitentu Daniel

Mpasi (the deceased). The Master, the third, fourth, fifth, sixth and seventh

respondents did not take part in the proceedings in the High Court or in this court.

The parties are essentially Mrs Hausiku and Ms Mpasi.

[4] In his last will and testament the deceased appointed Ms Mpasi as an

executrix of his estate. The will was, however, rejected by the Master for non-

compliance with certain provisions of the Wills Act 7 of 1953. Following the Chief’s

passing, Ms Mpasi successfully applied to the Master for appointment as the

executrix of his estate.

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[5] Obviously unhappy with the appointment, Mrs Hausiku decided to launch

an application in the High Court to remove Ms Mpasi from the office of executor of

the estate and also to have Martha Sitentu, the third respondent, appointed in that

position.

[6] In the founding papers, Mrs Hausiku stated that she was the surviving

spouse of the deceased to whom he got married in accordance with the Ukwangali

customary law and practice. She further said that 10 children were born out of the

marriage. She informed the court that her marriage to the deceased was

converted from a customary marriage to a civil marriage in the Mpungu Parish of

the Evangelical Lutheran Church in Namibia (ELCIN) on 30 May 1978. It was

further alleged that her marriage to the deceased was solemnised by one

Reverend Natanael Sirongo who was a duly registered marriage officer. Upon

conversion of the marriage, a marriage certificate was issued to the couple.

However, Mrs Hausiku stated that she was unable to produce the original

marriage certificate or a copy thereof as the original document got damaged in the

years after the solemnization of the marriage.

[7] Mrs Hausiku produced two letters from Dr S V V Nambala, Bishop of

ELCIN’s Eastern Diocese, and by the Permanent Secretary in the Ministry of

Home Affairs and Immigration dated 23 November 2015 and 26 January 2016

respectively. The letter by the Bishop simply confirms that Rev Natanael Sirongo

had been a marriage officer and that his designation number was C0124. The

letter from the Permanent Secretary likewise confirms that Rev Sirongo had been

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designated as a marriage office and gives the same designation number.

Significantly, however, the Permanent Secretary stated in his letter that Rev

Sirongo had been a marriage officer ‘since 1986/03/01’, which implies that by the

time he purported to solemnise Mrs Hausiku and the late Chief’s marriage on 30

May 1978, he may not have been designated as a marriage officer. This revelation

prompted Ms Mpasi to question the cogency of Mrs Hausiku’s claim that she had

been lawfully married to the deceased. This she did, not by addressing on affidavit

each factual allegation made by Mrs Hausiku, but by filing a notice in terms of rule

66(1)(c) of the Rules of the High Court, in which three grounds characterised as

‘points of law’ were raised.

[8] Mrs Hausiku also alleged that her husband was involved in an extra marital

affair with Ms Mpasi. In support of this allegation, Mrs Hausiku stated that her

husband brought Ms Mpasi into their marital homestead, as his second wife and

that despite the actions of her husband, her marriage to him subsisted until his

death. She contended therefore that she was the lawful surviving spouse of the

deceased.

[9] Mrs Hausiku also made allegations of improper and wrongful conduct on

the part of Ms Mpasi in the course of her application for appointment as executor.

In support of her contentions, Mrs Hausiku stated that Ms Mpasi had failed to

disclose pertinent information to the Master. For example, she omitted to place

Mrs Hausiku’s name on the list of the deceased’s next of kin. This she did

deliberately, so Mrs Hausiku argues, to avoid scrutiny by the Master. She further

claimed in addition that Ms Mpasi was not a fit and proper person to fulfill the

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duties of an executrix, because she had allegedly acted in bad faith prior to her

appointment as the executrix by withdrawing an amount of N$248 280,49

belonging to the estate. According to Mrs Hausiku, based on the abovementioned

conduct, Ms Mpasi was not a fit and proper person to be appointed in such a

trusted position.

[10] The Master filed a report in the High Court confirming that Ms Mpasi’s

appointment was made on the basis of her marriage to the deceased as

evidenced by a marriage certificate submitted to her office by Ms Mpasi. The

Master further stated that in addition to the marriage certificate, Ms Mpasi also

submitted the last will and testament of the deceased dated 2 October 2014 which,

as noted above, was rejected for non-compliance with the Wills Act, 1953.

[11] As previously mentioned, in response to Mrs Hausiku’s application for

review, Ms Mpasi opposed the application but did not file any answering affidavit.

Instead, she raised three ‘points of law’ in opposition to the application. The first

ground was that Mrs Hausiku’s founding affidavit contained inadequate allegations

for the relief sought. The second was that she failed to pray for an order impugning

Ms Mpasi’s marriage to the deceased. The third ground was that the ‘marriage

officer’ who solemnised the marriage between Mrs Hausiku and the deceased was

not a designated marriage officer at the time.

Findings of the High Court

[12] As a general proposition, the court a quo observed that a party had an

absolute right to invoke rule 66(1)(c) of the Rules of the High Court and raise a

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question of law instead of filing an answering affidavit in opposition to a matter.

The court, however, cautioned that a party that elects to invoke the rule must bear

in mind that the overriding objective of the Rules of the High Court was to facilitate

the resolution of real issues and not meant to raise what it referred to as ‘spurious’

points under the guise of legal questions. The court on an analysis of the three

grounds raised by the appellants found that those issues were factual and not

legal and ought to have been dealt with in the answering affidavit.

[13] In dealing with the first point, the court found that the issue of inadequacy of

the evidence was not a point of law but a factual issue which concerned the

cogency of the evidence produced by Mrs Hausiku in proving her marriage to the

deceased. The court also opined that the discrepancies (relating to the date from

which the marriage officer was authorised to solemnise marriages) did not affect

the cumulative effect of the evidence tendered by Mrs Hausiku establishing her

marriage to the deceased. It then held that she had submitted conclusive evidence

that she was lawfully married to the deceased.

[14] As to the second ground that Mrs Hausiku did not seek an order impugning

Ms Mpasi’s marriage to the deceased, the court was of the view that this issue

was not only factual but also misplaced. The court reasoned that Mrs Hausiku had

not sought to be appointed as the executrix of the estate, but rather her attack was

directed at the appointment of Ms Mpasi on the strength of an invalid marriage. In

that context, the court found that the so-called marriage between Ms Mpasi and

the deceased was void ab initio and as such there was no need in law to declare it

null and void as it was invalid by operation of law.

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[15] Regarding the third ground, the court found that the point was similar to the

first ground and that it also related to the cogency of the evidence produced by

Mrs Hausiku in proving her marriage to the deceased. The court was of the view

that this ground related to the alleged contradictions concerning the date of

designation of Rev Sirongo as a marriage officer and the date the marriage

between Mrs Hausiku and the deceased was solemnised. As such, it too had to be

dismissed. In view of the foregoing findings, the court set aside the appointment of

Ms Mpasi as the executrix of the estate.

[16] As part of the review application, Mrs Hausiku sought an order appointing

the third respondent, Martha Sitentu, as the executrix of the estate. After noting

that not much information about her was provided on the papers, the judge below

appointed Mrs Hausiku instead as the executrix of the deceased estate, with the

power of assumption to appoint an agent to act on her behalf in the administration

and liquidation of the estate.

Issues on appeal

Does the High Court have powers to appoint an executor?

[17] On behalf of Ms Mpasi, counsel submitted that the court a quo erred in

appointing Mrs Hausiku as the executrix. Counsel argued that Mrs Hausiku’s

appointment was not done in accordance with the law as the power to appoint an

executor was exclusively reserved for the Master. Counsel argued that although

the court was empowered by the governing legislation to remove an executor, it

did not have the power to appoint one.

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[18] Counsel further submitted that in appointing Mrs Hausiku, the High Court

had acted contrary to the doctrine of separation of powers by usurping powers

entrusted to other repositories, in the present case, the Master. Counsel also

submitted that it was evident from s 15 and other sections of the Act that the

repository of power to appoint an executor upon application is the Master and not

the court.

[19] Counsel for Mrs Hausiku in support of the order a quo, contended that

although it is a general principle of administrative law that courts will be reluctant

to substitute their decisions for those of decision makers, this approach is not cast

in stone. According to counsel, our courts have recognised that in some instances

it is appropriate for a court to substitute its decision for that of a decision maker.

Counsel submitted that our courts have shown this inclination where the result is in

any event a foregone conclusion or where it would be a waste of time to refer back

the matter to the decision maker. Counsel further submitted that this had

happened in instances where time is of essence and referring the matter back to a

decision maker may result in an injustice.

[20] In support of this submission, counsel for Mrs Hausiku referred to the

decision of the Supreme Court of Appeal of South Africa in Commissioner of the

Competition Commission v General Council of the Bar South Africa1 wherein the

court expressed the view at para 14 that although courts would be slow to assume

a discretion entrusted to another tribunal or functionary, considerations of fairness

may require that there should be no remittal in cases where the referral would be

1 (350/2001) [2002] ZASCA 101. Also reported as [2002] 4 All SA 145 (SCA) (6 September 2002).

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procedurally unfair to the parties. Counsel therefore submitted that the court a quo

was correct in not referring the matter back to the Master as it had already found

that Ms Mpasi was not a fit and proper person to occupy the position of an

executrix. Counsel also submitted that time and fairness were important

considerations in the present matter; that the court a quo did not deem it

necessary to remit the matter to the Master as doing so would have further

delayed the liquidation and distribution process.

[21] In support of the order of the High Court, counsel further argued that s 95 of

the Act empowered the court to both remove and appoint an executor. The

provision stipulates that the court may review the appointments by the Master and

on appeal or review, confirm, set aside or vary the appointment. According to

counsel, the words ‘the court may . . . vary the appointment’ as used in this

provision included the power to appoint an executor.

[22] During oral submissions in this court, counsel’s attention was drawn to

decisions of South African courts on the question of whether or not the High Court

has the power to point an executor.

[23] The first of such cases is Port Elizabeth Assurance Agency & Trust Co Ltd

v Estate Richardson2, a case on appeal to the Full Bench of the Cape of Good

Hope Provincial Division from a single judge. In the headnote, it was stated that:

‘The source of the courts’ power in regard to appointment, control and removal of

an administrator derives not from the terms of the will but from common law.’

2 1965 (2) SA 936 (C).

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At page 938F-G the Court observed as follows:

‘None of the Roman-Dutch authorities, however distinguishes between the powers

of the court in regard to appointment and removal of executors and administrators,

and appear to treat the Court’s powers in this regard on the same basis as its

powers relating to guardians.’

[24] The position established in Estate Richardson that the court has common

law powers to appoint an executor was followed in Ex Parte Klopper, NO3. The

court in that case also held that the court’s power to appoint an administrator in an

estate is derived not from the terms of the will but from common law.

[25] The Estate Richardson case was, however, overruled by the Appellate

Division in Bankorp Trust Bpk v Pienaar en 'n ander.4 After a careful analysis of

the common law and the Act, the court held that a Division of the South African

High Court was competent to suspend or remove an executor where it would

adversely affect the deceased’s estate. The court further held that in terms of s 14

of the Act, the Master was authorised to issue letters of executorship but no

jurisdiction was granted to the court to appoint an executor. The court was of the

view that a passage by one of the old writers5 relied upon in Estate Richardson for

the proposition that the common law was the source of authority for the court to

appoint executors in effect was read out of context and was thus no authority for

such a proposition. The court thus concluded that neither the common law nor the

Act conferred on the High Court the power to appoint an executor.

3 1974 (1) SA 289 (O).4 1993 (4) SA 98 (A).5 Lybrechts Redenered Vertoog over ‘t Notarisambt, First portion, Chapter 30, No 13.

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[26] After counsel’s attention was drawn to the Bankorp Trust Bpk matter,

counsel for Mrs Hausiku abandoned his argument that the court had the power to

appoint an executor. Having closely examined Bankorp Trust Bpk v Pienaar after a

translated version of the judgment that is in the Afrikaans language had been

availed to me, it seems that the ratio for the adoption of the position taken by the

court in that case is that the previous cases (ie Estate Richardson and Ex Parte

Klopper, NO) were decided on a wrong assumption that the court’s power to

appoint administrators and guardians equally applied to the appointment of

executors. Joubert JA who wrote the unanimous judgment of the court also

pointed out, correctly, with respect that in Estate Richardson the court was

concerned with the question of authority for the appointment of an administrator by

a court in addition to those named in a will and not with the different issue of the

authority for the appointment of an executor.

[27] The position adopted in the Bankorp Trust Bpk matter appears to have laid

down authoritative precedent in South African law. Given the similarities in the

common law of the two countries and the almost identical legislative scheme of the

administration of estates, I find the case persuasive authority that should be

followed by our courts. Undoubtedly, our High Court which is the court with the

requisite jurisdiction in terms of the Act, has the power to remove an executor from

office pursuant to s 54(1)(a) of the Act. Similarly, s 95 of the Act empowers the

court on appeal or review to confirm, set aside or vary the appointment by the

Master. There is, however, no provision in the Act for the appointment of an

executor by the court. As no such authority can be derived from the common law

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either, it follows that the High Court has no such power. The power in question is

vested in the Master6. In light of this conclusion, I agree with counsel for Ms Mpasi

that the court a quo erred in appointing Mrs Hausiku. Consequently, the

appointment of Mrs Hausiku ought to be set aside and the matter remitted to the

Master with the direction to appoint an executor/executrix in accordance with the

law.

The validity of the marriage

[28] The second argument advanced on behalf of Ms Mpasi was that the court a

quo erred by relying on inadmissible hearsay evidence regarding the validity of the

marriage between Mrs Hausiku and the deceased. Counsel submitted in this

regard that the High Court should not have admitted the extract from the church’s

marriage register in the absence of a marriage certificate. Counsel further argued

that the letter from the Bishop confirming that Rev Sirongo was a marriage officer

constituted hearsay evidence as the Bishop did not depose to an affidavit

confirming the content of his letter. Similarly, counsel submitted that the letter from

the Ministry of Home Affairs and Immigration confirming that Rev Sirongo was a

marriage officer from March 1986 was also hearsay evidence in the absence of a

confirmatory affidavit by the author of the letter.

[29] On the contrary, counsel for Mrs Hausiku contended that the absence of the

marriage certificate or confirmatory affidavit from the Permanent Secretary or the

Bishop did not affect the cumulative effect of the uncontested evidence adduced

before the High Court. Counsel complained that Ms Mpasi had adopted a technical

6 See ss 15(1)(a) and 18(1)(a) of the Act.

15

tactic to avoid dealing with factual allegations on affidavit. In the submission of

counsel, the evidence adduced established that Mrs Hausiku was the lawful

surviving spouse of the deceased despite the fact that no marriage certificate was

produced.

[30] As the proceedings in the High Court were brought on motion, any factual

dispute in the application must be resolved in accordance with principles

applicable to disputes of fact in motion proceedings. The approach to evidence in

the matter should be the one set out by the South African Appellate Division in the

well-known Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd7 case and

as endorsed in numerous judgments of our courts. In line with this approach, the

facts which the court should accept for purposes of arriving at a conclusion in this

matter are those stated by the respondent and those presented by the applicant

which the respondent cannot deny, excluding such facts stated by the respondent

which the court is justified in rejecting merely on the papers.

[31] As to the proof of a marriage under common law, it was stated as early as

1911, by the Eastern Districts Local Division of the Supreme Court of South Africa

in Fitzgerald v Green8 that:

‘The ordinary mode of proving a marriage is no doubt by production of the register

or a certified extract from it, but that is not essential, however desirable it may be,

for it is not the only way in which a marriage can be legally established. It can be

proved in different ways, for instance, by the evidence of witnesses, who were

7 1984 (3) SA 623 (A).8 1911 EDL 425 at 449.

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present at the marriage ceremony, or by satisfactory evidence of cohabitation and

repute.’

[32] Moreover, Roman-Dutch law like the English law has always recognised ‘a

presumption in favour of marriage rather than of concubinage’. This much was

made clear, amongst others, in Ochberg v Ochberg’s Estate9 a decision of the

Cape of Good Hope Provincial Division of the Supreme Court of South Africa (as it

was then known). According to this presumption, where a man and woman are

proved to have lived together as man and wife the law will presume, unless the

contrary is clearly proved, that they were living together as a consequence of a

valid marriage, and not in a state of concubinage.10 Sutton J in Ochberg case

stated at page 33 that:

‘Where it is proved that they have gone through a form of marriage and thereby

shown an intention to be married those who claim by virtue of the marriage are not

bound to prove that all necessary ceremonies have been performed.’

[33] To buttress the point about the presumption of marriage, Sutton J referred

to the remarks made by Lord Merrivale in Spirack v Spirack11 about submissions of

law made by counsel in another case which Lord Merrivale considered to be

correct statements of the law. Those contentions of law are relevant to this appeal

and I find it necessary to restate them here. I also endorse them. They include the

following statements:

‘[E]very intendment shall be made in favour of a marriage de facto, so that if any

clergyman was present performing the ceremony, the law would presume that he 9 1941 CPD 15.10 Id. at 33.11 142 L.T. R. 492 at 493.

17

was a clergyman properly authorized. Where an act appears to have been

performed by proper persons the law will intend that everything is done in a proper

manner. The burden of impeaching this marriage lies therefore on the respondent.’

[34] It is in this legal context that the evidence led by Mrs Hausiku should be

analysed and the submissions made by counsel for Ms Mpasi be considered. To

recapitulate, the allegations made in the founding papers were that Mrs Hausiku,

now aged 88, was married to the deceased in terms of customary law in 1949.

She was then aged 19. On 30 May 1978, they went through a civil marriage that

was conducted in church by Rev Sirongo. Their marriage was registered in the

church marriage register and she produced a copy of the register that bears their

names as a married couple. The two lived together as husband and wife until the

husband’s passing in 2014.

[35] Again, it will be recalled that Mrs Hausiku related that in the following years

of marriage, her husband brought Ms Mpasi to their home and lived with her as if

she was his wife. She too lived with them until her husband’s passing. According

to a marriage certificate attached to Mrs Hausiku’s affidavit, it would appear that

the deceased and Ms Mpasi purported to go through a marriage ceremony before

a magistrate at Kahenge, Rundu district, on 23 September 2004. Mrs Hausiku

contended that at the time Ms Mpasi purported to enter into a marriage with the

deceased, she knew that the deceased was already legally married to Mrs

Hausiku. Apart from questioning Rev Sirongo’s authority to solemnise marriages at

the time through the submissions of her counsel, Ms Mpasi did not contradict this

evidence at all.

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[36] It is, of course, an elementary principle of the law of evidence that to

produce a document without deposing to an affidavit confirming its content makes

such document hearsay evidence and thus inadmissible. Counsel for Ms Mpasi

was thus correct in submitting that in the absence of confirmatory affidavits, the

contents of the letters by the Bishop and the Permanent Secretary constituted

hearsay evidence. However, on the facts of this case even if those letters are to be

discounted as it should be, the common law presumption of marriage between Mrs

Hausiku and the deceased that appears to have been so firmly established

through uncontested evidence at the very least of cohabitation and repute has not

been displaced. Ms Mpasi utterly failed to lead any evidence dislodging the factual

allegations made by Mrs Hausiku. The High Court was thus correct to reject the

argument based on the validity of the marriage between Mrs Hausiku and the

deceased. This disposes this aspect of the appeal. I turn next to consider and

decide Mrs Hausiku’s allegation that Ms Mpasi was not a fit a proper person to

hold the office of executor of the deceased’s estate.

Suitability of the appellant to hold office of executrix

[37] On behalf of Mrs Hausiku, counsel submitted that the application for review

had been premised on two grounds. The first was that Ms Mpasi was not fit and

proper person to administer the estate because she had prejudiced the estate by

appropriating large sums of money belonging to the estate. The second was that

Ms Mpasi had not disclosed the existence of Mrs Hausiku to the Master as a next

of kin despite her knowledge of Mrs Hausiku’s marriage to the deceased.

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[38] On behalf of Ms Mpasi, counsel essentially questioned the validity of Mrs

Hausiku’s marriage to the deceased, an aspect that has already been dealt with

above.

[39] As previously noted, the High Court agreed that Ms Mpasi was not a fit and

proper person to execute the functions of an executor. I agree with the High

Court’s findings in this respect. In fact, Mrs Hausiku made some serious

allegations against Ms Mpasi relating to her conduct of the estate, including the

allegations as earlier noted that Ms Mpasi had withdrawn a large amount of money

from the account held in the name of the deceased after the deceased had passed

away but before Ms Mpasi could be appointed as executrix of his estate and the

neglect to put Mrs Hausiku on the list of the next of kin. The allegations made

against Ms Mpasi are so serious in my view that they called for an answer. Instead

of dealing with the allegations under oath, Ms Mpasi chose to raise factual matters

under the guise of points of law. I agree with the High Court that the points in

question were factual and not legal at all.

[40] I am, therefore, persuaded that the court a quo was justified in concluding

that Ms Mpasi was not a fit and proper person to appoint as an executrix of the

estate. On the basis that the High Court does not have the power to appoint an

executor, however, the result is that the appeal must partially succeed. What

remains to decide is the issue of costs.

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Costs

[41] Counsel for Ms Mpasi submitted that in the event that the appeal succeeds,

the appellants were entitled to costs. In the alternative, counsel submitted that

should the appeal succeed only in part - on the ground that the court a quo had no

power to appoint an executor - then no order as to costs should be made on

appeal.

[42] On behalf of Mrs Hausiku, it was submitted that should the appeal be

dismissed, Ms Mpasi should be ordered to pay the costs of the appeal in her

personal capacity and that should it be upheld the costs should be borne by the

estate.

[43] In my respectful view, Mrs Hausiku had asked for an order appointing an

executor and has supported the High Court’s judgment in this court. Moreover, the

estate is not a party to the proceedings and as things now stand, there is no

executor of the estate validly appointed therefor. It would thus not be just in the

circumstances to mulct the estate in costs. As to the order of costs in the High

Court, it is trite that the order of costs is an issue left to the discretion of that court.

There is no basis to question, let alone disturb, the exercise of such discretion. I

also take into account that the point that the court did not have the power to

appoint an executor was not raised in the High Court and only on appeal. As both

parties are partially successful on appeal, it is only fair and just that each party

should pay her own costs of the appeal.

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Order

[44] In light of the findings made above, the following order is made:

(a) The appeal succeeds in part.

(b) The order of the High Court appointing Mrs Hausiku as the executrix of

the estate of the late Daniel Sitentu Mpasi is set aside and replaced

with the following order:

‘The matter is referred to the Master of the High Court for the

Master to appoint an executor/executrix in accordance with the

law.’

(c) The order as to costs made in the review application in the High Court

is confirmed.

(d) Each party is directed to pay her own costs of the appeal.

___________________

SHIVUTE CJ

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___________________

SMUTS JA

___________________

HOFF JA

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APPEARANCES

FIRST AND SECOND APPELLANTS: S Namandje (with him T Iileka)

of Sisa Namandje & Co Inc.

Windhoek.

SECOND RESPONDENT: T C Phatela

instructed by FB Law Chambers,

Windhoek