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7 April 2011

The Master cannot represent the Court - Finis

  1. This article is prompted mainly by the question posed in the third paragraph of A final response ("the article"), by Mr Dudley Lee, namely, "….. please explain to me what exactly it is that the Master does in case of liquidations, insolvencies, deceased estates, etc?"

  2. Mr Lee's predicament, is, unfortunately, attributable to his distorted interpretation of the provisions of the relevant statutes, decided cases and my articles - he even claims support for his views from what actually refutes such views. An example of such distortions is Mr Lee's interpretation of the words "…..the Master or the Court…" in section 417 (1) of the Companies Act, 1973 (Act No. 61 of 1973), as amended, - refer to the second paragraph of the article. Although he accepts that the Master supervises, Mr Lee disputes, notwithstanding the use of the word "or", that, equally, "….when petitioned to intervene, the Court …", too, supervises!

  3. Further support for my view, that "under supervision of the Court" does not mean "under supervision of the Master", is to be found in section 3 (3) of the Trust Property Control Act, 1988 (Act No. 57 of 1988), as amended, ("the TPCA"), which provides that: "If more than one Master has ………, that property shall, …………………., be administered or disposed of under the supervision of the Master …………." (my emphasis). Therefore, it can only be on the basis of an extremely strained way of interpretation for Mr Lee to suggest that the words "under the supervision of the court", in section 56 (1) (b) of the Deeds Registries Act, 1937 (Act No. 47 of 1937), as amended, ("the DRA"), are intended to mean "under the supervision of the Master on behalf of the Court".

  4. In paragraph 3 (viii) on page 8 of the, 1992, 4th edition of "Honoré's South African Law of Trusts", ("the Publication") it is stated that: "Trusteeship is an office …, and a trust ………is an institution of public concern, so that the public authority as represented by the Master and the courts has jurisdiction to take the necessary steps to ensure that the trust is properly administered" and, in the footnote 48 thereof, reference is made, amongst other matters, to sections 3, 6, 7, 13, 16, 20 and 23 of the TPCA.(my emphasis). It is significant to note that section 13 of the TPCA provides for supervision by the Court by way of intervention, on application!

  5. In paragraph 3 (viii) on page 8 of the Publication, it is stated, further, that: "The supervision of the courts and Master over trusts is however less close and detailed than in the case of the administration of the estates of deceased persons by executors" (my emphasis) - refer to the second paragraph on page 14, the third paragraph on page 26 and paragraph 111 on pages145 to 146 of the Publication also.

  6. The principles, set out in paragraphs 3-5 above, apply equally, with the positions interchanged, to the original, statutory, supervisory powers and duties of the Master and the High Court in connection with liquidations, insolvencies and deceased estates. As demonstrated above, in particular, and in my previous articles, it is a serious misconception of the fundamental principles of the law to argue that the words, "of the High Court", in the name "Master of the High Court", mean or imply that the Master supervises on behalf of the High Court.

  7. By virtue of the lack of judicial authority, alone, on his/her part, the Master is constitutionally incompetent to act on behalf of the High Court. Section 165 of the Constitution of the Republic of South Africa, 1996, provides that: "The judicial authority of the Republic is vested in the courts."

  8. In conclusion and by way of summary, my response to the question referred to in paragraph 1 above is that, in liquidations, insolvencies, deceased estates and trusts, the Master exercises and performs original statutory powers and duties, respectively. He/she cannot, and does not, represent the High Court.
Thabo Nqhome
05 April 2011


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