“ 53(1)
Save where any law otherwise provides, all proceedings to bring under review the decision or proceedings of any
inferior court and of any tribunal, board or officer performing judicial, quasi judicial or administrative functions shall be by
way of Notice of Motion directed and delivered by the party seeking to review such decision or proceedings to the Magistrate, presiding
officer or chairman of the court, tribunal or board or to the officer, as the case may be, and to all other parties affected -
a)
Calling upon such persons to show cause why such decisions or proceedings should not be reviewed and corrected or set aside, and
b)
Calling upon the Magistrate, presiding officer, chairman or officer as the case may be, to dispatch, within fourteen days of the receipt
of the Notice of Motion, to the Registrar the record of such proceedings sought to be corrected or set aside together with such reasons
as he is by law required or desires to give or make, and to notify the applicant that he has done so.
(2)
The Notice of Motion shall set out the decision or proceedings sought to be reviewed and shall be supported
by affidavits setting out the grounds and the facts and circumstances upon which applicant relies to have the decision or proceedings
set aside or corrected.”
[9]
The rule clearly sets out what is required in the application for review. The tribunal whose decision
is to be reviewed must have been performing a judicial, quasi judicial or administrative function. There can be no doubt that when
the Master appointed the first respondent to be the Executrix Dative he exercised a judicial function in that he exercised that function
after hearing what the next of kin had said. The application must further show, by affidavit, the grounds and circumstances upon
which the applicant relies to have the decision set aside or corrected. The provisions of Section 25 also provide that good reason
should exist against the appointment before it can be reviewed.
[10]
Mr. Magongo has urged the Court to give a “ simple and literal meaning” to the last proviso
of Section 25 and has submitted that once an application has been made by a person having an interest in the estate, the Court is
bound to review the appointment. He has further submitted that the principles of review which the learned judge in the Court a quo gives at page 74 of the record is not applicable to this application, and contends that the application met the requirements of review
which should be construed in the widest sense possible.
[11]
We have difficulty in accepting Mr. Magongo’s submission when he appears to suggest that once a
person, who has interest in the estate simply makes an application, the court is bound to review the appointment . Both the provisions
of Section 25 of the Administration of Estates Act and Rule 53 make it clear beyond doubt that the application must give grounds
for attacking the decision to appoint before it can be reviewed. In the case of Johannesburg Consolidated Investments vs Johannesburg Town Council (1903) TS111 Innes CJ stated the position as follows:
“ But there is a second specie of review analogous to the one with which I have dealt, but differing from it in certain well defined
respects. Whenever a public body has a duty imposed upon it by statute, and disregards important provisions of a statute or is guilty
of gross irregularity or clear illegality in the performance of the duty, this court may be asked to review the proceedings complained
of and set aside or correct them.”
[12]
The remedy of review is directed at correcting any irregularity or illegality in the process of making
that decision. As LA. Rose Innes states in his Book, Judicial Review of Admiistrative Tribunals in South Africa at page 201
“ Review is a remedy directed at correcting any
irregularity of a procedural nature or any illegality in
the proceedings of a tribunal, the Court of review is
not concerned with the merits of the decision arrived
at by the administrative body, provided that the
procedures and method adopted by that body are
regular, the review Court does not enter into the
correctness in substance of the decision that was
made. It has repeatedly been held that where a
statute confers authority upon an administrative
body to decide a matter left to its discretion the
Courts have no power to substitute their own
decision for that of the administrative body,
especially authorised to make that decision.”
[13]
This application has not shown what the irregularity or illegality is that the applicant seeks the Court
to correct or set aside. The applicant does not attack the method or procedure which the second respondent followed in making the
appointment. The applicant has suggested that there was competition for the appointment of Executrix Dative but he has failed to
indicate which person was in competition for the appointment. The first respondent has admitted that her marriage to the deceased
was not all bliss as evidenced by the divorce proceedings which had been contemplated but she has stated that these proceedings were
not proceeded with and that they had reconciled although they continued to live in separate homes. The first respondent is gainfully
employed by the Government of Swaziland as a teacher and she has, therefore, an independent income of her own.
[14]
We have carefully considered the submissions by both counsel in this application together with the authorities
which they cited to us. We are satisfied and find that this application did not set out, as required by the law of review, the grounds
which would entitle the Court below to invoke its power to review the decision of the second respondent in appointing the first respondent.
[15]
The applicant is by common cause an illegitimate child of the deceased. We do not think he can be regarded
as a member of the next of kin. We agree with the learned judge in the Court a quo that Section 31 of the Constitution has no retrospective application. The applicant cannot, therefore, derive any advantage from it.
It is noted that apart from the applicant there are other children of the deceased and who would have the same interest in the Estate
as the applicant would have. If the appellant as an illegitimate child has locus standi then these children ought to have been joined as parties to the application. The application would also fail on this point
of non-joinder.
[16]
We can find no fault, and none has been proved, which could have entitled the Court below to review the
decision of the second respondent in appointing the first respondent as the Executrix Dative to the Estate of the late Silas Magombeni
Dlamini. No evidence has been adduced to show that the first respondent cannot administer the Estate in the best interest of all
interested persons. This appeal has no merit.
[17]
We must, therefore, dismiss this appeal with costs, such costs to include the certified costs of counsel.
Delivered in open court at Mbabane this 15th day of November, 2007
__________________________
R.A. BANDA, CJ
I agree
__________________________
J.H. STEYN, JA
I agree
___________________________
N.W. ZIETSMAN, JA
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