validity of section 1(1) of the Act, certain of the problems which later arose between the parties in relation to the assets of the intestate estate might well have been avoided. In the light of these circumstances, paragraph 10 of the High Court order must be set aside.
Costs
[60] In terms of paragraph 11 of the High Court order, Mr Kolver was ordered de bonis propriis to pay one half of Mr Gory’s costs, the other half of such costs to be paid by the second and third respondents jointly and severally. In this regard, it is important to note that Mr Kolver did not oppose the declaration of constitutional invalidity of section 1(1) sought. He opposed only the costs order sought against him in his capacity as executor. Contrary to what was said by the High Court in its judgment, Mr Gory did not in his notice of motion ask for costs against Mr Kolver in his personal capacity. Counsel for Mr Gory eventually conceded before us that it was only in argument before Hartzenberg J that reference was made to a de bonis propriis costs order against Mr Kolver and that the notice of motion was not amended in this regard. This being so, and in the light of the circumstances set out in the preceding two paragraphs of this judgment, it was neither just nor equitable for Mr Kolver to have been burdened by the High Court with a costs order in his personal capacity and paragraph 11 of the High Court order must be set aside.
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