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[2016] ZASCA 94
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Du Toit NO v Thomas NO and Others (635/15) [2016] ZASCA 94 (1 June 2016)
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case no: 635/15
In
the matter between:
BAREND
JACOBUS DU TOIT NO
APPELLANT
and
ERROL
THOMAS NO
FIRST
RESPONDENT
ELSABE
VERMEULEN
SECOND
RESPONDENT
JEROME
JOSEPHS NO
THIRD RESPONDENT
Neutral
citation:
Du Toit NO v Errol
Thomas NO
(635/15)
[2016] ZASCA 94
(1
June 2016)
Coram:
Ponnan, Majiedt and Mathopo JJA and
Fourie and Victor AJJA
Heard:
20 May 2016
Delivered:
1 June 2016
Summary:
Maintenance Court jurisdiction - claim
for maintenance on behalf of minor child against an executor of her
deceased father’s
estate – executor participating in the
proceedings and not objecting to the jurisdiction of the maintenance
court –
thereafter challenging jurisdiction on review to the
high court – refusing to pay maintenance for child on an unduly
technical
basis – executor’s conduct unconscionable -
ordered to pay costs
de
bonis propriis
on attorney and client scale.
ORDER
On
appeal from:
Western Cape
Division of the High Court, Cape Town (Donen AJ sitting as court of
first instance):
1.
The appeal is dismissed.
2.
The appellant is ordered to pay the second
respondent’s costs of the appeal
de
bonis propriis
on the attorney and
client scale and failing payment by the appellant such costs shall be
borne by the estate of the deceased on
the party and party scale.
JUDGMENT
Victor
AJA (Ponnan, Majiedt, Mathopo JJA and Fourie AJA concurring)
[1]
The primary question for determination in this appeal is
whether, having acquiesced, participated in and partly complied
with
an order of the maintenance court, it is open to the appellant,
the executor of a deceased’s estate (the
executor),
to thereafter challenge the jurisdiction of that court.
Background
facts
[2]
The appellant is the testamentary executor of the
estate of Sebastian Jacobus Wessels. The deceased died on 24 April
2008. The second
respondent, the surviving spouse of the deceased,
successfully instituted maintenance proceedings on behalf of their
minor child
(the minor child) in the Riversdale Magistrate’s
Court (the maintenance court) against the appellant in his
representative
capacity as the executor of the deceased’s
estate.
[3]
After having partially complied with the order of the maintenance
court, the executor sought to review the decision
of the
maintenance court before the Western Cape High Court, Cape Town on
the sole basis that the maintenance court did not have
jurisdiction
to hear the matter. The review application was dismissed with costs,
but leave was granted to the appellant to appeal
to this court.
[4]
The executor had been a family friend of the deceased and was the
auditor to the deceased’s various business enterprises
and also
served as a trustee of a family trust. Upon the death of the deceased
he promised the second respondent that he would
ensure that the minor
child received maintenance. By mid-2008 when no maintenance was
forthcoming the second respondent made her
first request to the
executor for maintenance for the minor child. He asked her to produce
a list of expenses. She did so by 23
July 2008. A year later there
was still no payment. The executor kept promising to look into the
matter. Some three years later
the second respondent made a formal
written request for maintenance for the child, which he simply
ignored.
[5]
The executor contended that the minor child
was a
beneficiary in a family trust which was obliged to pay maintenance.
He also contended that the second respondent had received
the
proceeds of the deceased’s life policy and retirement annuity
and therefore the estate did not have to pay maintenance.
In addition
he asserted that the child was an heir in the deceased estate and her
inheritance had to cover her maintenance. He
effected payment of R160
000 but only as an advance payment on her inheritance.
[6]
In terms of the
Maintenance Act No 99 of 1998
, the maintenance court
ordered monthly maintenance in the amount of R10 000 for the child in
terms of
s 16(1)
(a)
(i),
a once off payment of R720 000 in terms of
s 16(1)
(a)
(ii)
in respect of arrear maintenance and an amount of R7 500 for an
expert report which was used to quantify the claim at
the hearing in
accordance with
s 16(1)
(a)
(ii).
The executor effected payment for the months of September and October
2014 and then ceased paying.
Legislative
framework
[7]
The executor contended that the maintenance court did not have the
necessary jurisdiction to make an order against a deceased
estate in
terms of
s 16
(1)
(a)
of the
Maintenance Act.
[1
]
The
executor asserted that the office of executor cannot be a ‘person’
as defined in
s 2(1)
of the
Maintenance Act
[2]
and therefore the
Maintenance Act did
not apply to maintenance claims
against a deceased estate.
[8]
In this case the cause of action is a claim for maintenance – a
cause of action over which the maintenance court has jurisdiction.
It likewise has jurisdiction over the person of the second respondent
who claims maintenance on behalf of the minor child. The
only issue
therefore is whether it had jurisdiction over the executor. A
decisive consideration is the fact that the executor participated
fully at the maintenance hearing and did not raise an objection to
jurisdiction at the hearing.
[9]
The executor contends that in this case any claim for maintenance
must be advanced by the second respondent in terms of the
provisions
of the Administration of Estates Act No 66 of 1965 (the
Administration of Estates Act) and
not the
Maintenance Act.
>
[10]
In
Purser v Sales
;
Purser & another v Sales &
another
[2000] ZASCA 46; 2001 (3) SA
445 (SCA) Mpati AJA referred with approval to
Lubbe
v Bosman
1948 (3) SA 909 (O) and
William Spilhaus & Co (MB) (Pty) Ltd
v Marx
1963 (4) SA 994 (C). In
Lubbe
at 914 Van der Heever JP referred to
Voet
and several other authorities that:
'It
was a general principle of the common law that where a defendant
without having excepted to the jurisdiction, joins issue with
a
plaintiff in a Court which has material jurisdiction, but has no
jurisdiction over defendant because he resides outside the
jurisdiction of that Court, the defendant is deemed to have waived
his objection and so as it were conferred jurisdiction upon the
Court.'
[11]
In
Purser
, Mpati AJA (para 17) referred to:
‘
Voet
at 2.1.18, once
litis
contestatio
has taken place the
jurisdiction of him before whom the proceeding was in this way
started can no longer be declined by one of
the litigants.’…
And further that an objection to jurisdiction “must be put
forward before
litis contestatio
at the origin and among the very preliminaries of the suit”.
(
Gane's
translation.) It does not matter, says
Voet
at 2.1.19 (
Gane's
translation), whether or not
litis
contestatio
took place in error (of
either party) the result is the same.’
Mpati
AJA (para 18) also approved the reasoning of Theron J in
William
Spilhaus
(above) who stated at
1001H:
'.
. . I can see no reason for thinking that our courts in general would
fail to give effect to the rule of the common law as it
is to be
gathered from
Voet
2.1.20, as read with 2.1.18, 26 and 27,
that a defendant who has pleaded to the plaintiff's main claim
without objecting to the
jurisdiction must, at any rate after the
stage of
litis contestatio
has been reached, be considered to
have bound himself irrevocably to accept the jurisdiction of the
court - and this even in a
case where his failure to raise the
question of the jurisdiction might have been due to some mistake on
his part.'
Here
not only did the appellant acquiesce in the jurisdiction of the
maintenance court, he fully participated in its proceedings.
Moreover
he thereafter complied in part with the order of that court. It
follows that his subsequent challenge to the jurisdiction
of that
court had to fail.
The
executor’s conduct relevant to the question of costs
.
[12]
The appellant accepted that the minor child was entitled to
maintenance and that in law the estate had an obligation to maintain
her. That notwithstanding, he contended that the second respondent
had to proceed in terms of the
Administration of Estates Act and
not
the
Maintenance Act. Thus
although not disputing the validity of the
claim, the attitude of the appellant was that the second respondent
had to be burdened
with a high court application instead of the more
expeditious remedy provided by the
Maintenance Act. In
adopting such
an unduly technical stance the appellant has put both the second
respondent and the estate to the cost of this litigation.
In this
court a concession was made on behalf of the executor that if the
High Court had ordered the same amount of maintenance
as the
maintenance court he would have paid it.
[13]
Given the unconscionable stance adopted by the appellant, there can
be no justification for the deceased estate to bear the
costs of this
appeal. The appeal was pursued with no regard to the child’s
best interests or its prospects of success.
[14]
The following order is made:
1
The appeal is dismissed.
2
The appellant is ordered to pay the second respondent’s costs
of the appeal
de bonis propriis
on
the attorney and client scale and failing payment by the appellant
such costs shall be borne by the estate of the deceased on
the party
and party scale.
___________________
M
Victor
Acting
Judge of Appeal
Appearances:
For the Applicant:
H F Oosthuizen SC
Instructed
by:
Froneman Roux &
Streicher c/o Tim Du Toit & Co Inc, Cape Town
Honey
& Partners Inc, Bloemfontein
For the Respondent:
T D Potgieter SC (with him R J Steyn)
Instructed
by:
Saunders
Venter Van Der Watt c/o Fairbridges Wertheim
Becker,
Cape Town
Hill
McHardy & Herbst, Bloemfontein
[1]
Section
16
of the
Maintenance Act defines
the powers a maintenance court has
in relation to maintenance and ancillary orders :
‘
(1)
After consideration of the evidence adduced at the enquiry, the
maintenance court may-
(a)
in the case where no maintenance order is in
force-
(i)
make a maintenance order against any person proved to be legally
liable to maintain any other person for the payment during
such
period and at such times…’
[2]
Application
of Act
– (1) the provisions of this Act shall apply in respect of the
legal duty of any
person
to maintain any other
person
,
irrespective of the nature of the relationship between those persons
giving rise to the duty.
(2)
This Act shall not be interpreted so as to derogate from the law
relating to the liability of
persons
to maintain other
persons
.(my emphasis)