IN THE HIGH COURT OF SWAZILAND HELD AT ... - SwaziLII

IN THE HIGH COURT OF SWAZILANDHELD AT MBABANECASE NO. 2646/06In the matter betweenMANQOBA DLAMINIAPPLICANTandBUSISIWE GRACE DLAMINI 1 st RESPONDENTTHE MASTER OF THE HIGH COURT 2 nd RESPONDENTTHE ATTORNEY GENERAL 3 rd RESPONDENTCORAM: Q.M. MABUZA - JUDGEFOR THE APPLICANT: MR. S. MAGONGOFOR THE 1ST RESPONDENT : MR. M. SIMELANEFOR THE 2 ND & 3 r d RESPONDENTS : NO APPEARANCERULING ON POINTS IN LIMINE 6/6/07l

[1] The applicant herein seeks the following prayers:a. Pending finalization of this application, the firstrespondent be restrained and or interdicted fromexecuting her duties as an Executrix Dative ofthe Estate Late of Silas Magombeni DlaminiEstate file number EH 11/05.b. The decision by the second respondent to appointthe first respondent as an Executrix Dative of theEstate Late of Silas Magombeni Dlamini - Estatefile number EH 144/05.c. An independent Executor or Executrix beappointed to continue with the winding up of theEstate Late of Silas Magombeni Dlamini - Estatefile number EH 144/05.d. The first respondent be ordered to account for allwhat she had done and the monies paid out sinceher inception of the position of being anExecutrix Dative.e. Costs of this application.2

[2] The 1 st Respondent has raised points in limine herein and they appear on page 18(a)The Applicant has no locus standii to institute the Application bein(b)The Application lacks sufficient averments tosustain a review application.(c)Alternatively the Application does not meet therequirements of Section 84 of the Administration of Estates Act 28/1(d)The Application is defective for NON JOINDERof the following children who have a direct andsubstantial interest in the estate namely;1. Bawelile Dlamini2. Norncebo Dlamini3. Nontsikelelo Dlamini4. Mlandvo Dlamini5. Sandzisiwe Dlamini6. Wendy Dlamini3

common law upon which the proceedings ofadministrative bodies may be subject to review namely:(a)Where the proceedings are ultra vires andthis will include bad faith or fraud by thetribunal or official exercising his power.(b)Violation of the principles of naturaljustice.(c) Failure to give reasons for a decision were there is a duty uposo.(d)Mistake of law or fact in certain circumstances (our emphasi(e)Unreasonableness of decisions in certaincircumstances (our emphasis).(f) Non-compliance with where the rules of evidence in limited c(g) Where the power exercised wasunlawfully delegated.

(See Judicial Review of Administrative Tribunals in South Africa (1963) by Rofail on this point.[9] The Applicant does not meet the requirements of Section 84 of the Administration"Removal and suspension of executors, tutorsand curators.84. Every executor, tutor or curator shall be liableto be suspended or removed from his office byorder of the High Court, if such court issatisfied on motion, that by reason of absencefrom Swaziland, other avocations, failinghealth, or other sufficient cause, the interestsof the estate under his care would be furtheredby such suspension or removal:Provided that in every case of suspension thecourt may substitute some fit and properperson to act during such suspension, in hisplace subject to such conditions as to thegiving of security and the conduct and administration of the estate amay deem just."7

The application fails on this point.[10] I have been advised that the children Bawelile, Nomcebo, Nontsikelelo Mlandillegitimate children that the deceased sired from otherwomen or another woman and not with the 1 stRespondent. I was advised that they are minors and ifthat is true then they should have been joined as theyhave a direct and substantial interest in the estate in sofar as maintenance is concerned.[11] Paragraphs 12, 12.1, 12.2, 13, 14, 15, 16, 17, 18 and 19of the applicant's founding affidavit have set out Sectionsof the Administration of Estates Act 1902 withoutadducing any facts to support the Applicant's claim.There is no need for me to set out their contents as thisis merely a ruling. Pleadings should not contain law but facts to enable the op[12] The application is dismissed with costs.8