About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2021
>>
[2021] ZAWCHC 75
|
|
Standard Bank of South Limited v Nkhahle and Others (2749/2020) [2021] ZAWCHC 75; 2021 (5) SA 642 (WCC) (26 April 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case number: 2749/2020
Before: The Hon. Mr Justice Binns-Ward
Hearing: 19 March 2021
(Written submissions received in mid-April 2021)
Judgment: 26 April 2021
In the
matter between:
THE
STANDARD BANK OF SOUTH AFRICA LIMITED
Plaintiff
and
NTOMBOXOLO
GLADYS
NKHAHLE
First Defendant
NTOMBOXOLO
GLADYS NKHAHLE
N.O.
Second Defendant
(in her
capacity as executrix of the Estate late M.A. Nkhahle)
THE
MASTER OF THE HIGH COURT, CAPE TOWN
Third Defendant
JUDGMENT
(Delivered by email to the parties’ legal representatives
and by release to SAFLII.
The judgment shall be deemed to have been handed down at 10h00 on
26 April 2021.)
BINNS-WARD J:
[1]
In this matter, which came before me in the
unopposed motion court, the plaintiff bank applied for the following
relief:
1.
Default judgment ... in favour of
the Plaintiff against the First and Second Defendants, jointly and
severally, the one paying,
the other to be absolved, for:
1.1
Payment of the amount of R445 624,99
1.2
Payment of interest on the amount of
R445 624,99 at a rate of10.85% per annum, calculated and
capitalized monthly in arrears
from 7 June 2019 to date of payment,
both dates inclusive.
2.
The immovable property known as
portion 49 of Erf ... (“the property”) is hereby declared
specially executable.
3.
The plaintiff is hereby authorised
to execute against the property, as envisaged in Rule 46(1)(a)(ii) of
the Uniform Rules of Court
and the Registrar of the above Honourable
Court is hereby authorised to issue a Warrant of Attachment.
4.
The Sheriff is hereby authorised to
execute the Writ of Execution.
5.
An order in terms of Section 30(b)
of the Administration of Estates Act directing that the mortgaged
immovable property may be sold.
6.
The First and Second Defendants shall
pay the Plaintiff’s costs of suit, jointly and severally, the
one paying the other to
be absolved, on the attorney and client
scale.
[2]
The second defendant was joined in the
action in her capacity as the executrix of a deceased estate.
Being a joint debtor
with the deceased, to whom she was married in
community of property, she was also cited as the first defendant in
her personal
capacity. The Master was joined as the third
defendant. No relief was sought against the third defendant.
The
particulars of claim indicated that the Master had been joined by
virtue of her possible interest in the order sought by the plaintiff
in terms of
s 30(b)
of the
Administration of Estates Act 66 of
1965
. The Master did not file a report or play any part in the
proceedings.
[3]
Section 29
of the
Administration of Estates
Act provides
that every executor shall, as soon as may be after
letters of executorship have been granted to him, cause a notice to
be published
in the Government Gazette and in at least one newspaper
circulating in the area in which the deceased ordinarily resided at
the
time of his death calling upon all persons having claims against
the deceased’s estate to lodge such claims with the executor
within a stipulated period.
Section 30
of the Act then provides
as follows:
‘
Restriction
on sale in execution of property in deceased estates
No person
charged with the execution of any writ or other process shall –
(a)
before
the expiry of the period specified in the notice referred to in
section
twenty-nine
;
or
(b)
thereafter, unless, in the case of property
of a value not exceeding R5 000, the Master or, in the case of
any other property,
the Court otherwise directs,
sell any
property in the estate of any deceased person which has been attached
whether before or after his death under such writ
or process:
Provided that the foregoing provisions of this section shall not
apply if such first-mentioned person could not have
known of the
death of the deceased person.’
[4]
There was no allegation in the summons or
the supporting affidavit in the application in terms of
Rule 46A
that
notice as prescribed in terms of
s 29
of the
Administration of
Estates Act had
been published by the second defendant. I
raised the omission with the plaintiff’s counsel when he moved
the application
for default judgment as it appeared to me to present
an obstacle to granting the order that was sought by the plaintiff in
terms
of
s 30(b)
of the Act authorising the sheriff to sell the
mortgaged property.
[5]
The written argument subsequently submitted
by counsel at my request suggests that he may have misapprehended the
import of my query.
He seems to have to understood that I was
querying the right of the plaintiff to pursue its claim by way of
litigation under the
common law instead of by submitting a claim to
the executrix under the scheme for the liquidation of deceased
estates provided
in the
Administration of Estates Act. He
referred me to the judgment of the appeal court in
Nedbank
Limited v Steyn and Others
[2015] ZASCA
30
(25 March 2015);
[2015] 2 All SA 671
(SCA);
2016 (2) SA 416
(SCA),
in which it was confirmed that the statutory scheme did not oust a
creditor’s right to pursue its claim under the
common law.
[6]
Nedbank v Steyn
did
not, however, in any manner address the point that concerned me,
which was whether, in the absence of an allegation in the particulars
of claim that notice had been given as prescribed in
s 29
of the
Administration of Estates Act, it
would be competent, in terms of
s 30(b)
of the Act, for the court to authorise the sheriff to
sell the mortgaged property in execution. The judgment does not
deal
with that issue directly, but, if anything, it suggests an
appreciation by the court that it would not be competent to do so.
I say that because Brand JA expressly recorded in the last two
sentences of para 4 of the judgment that ‘(t)
he
court a quo found as a fact that there had been compliance with the
requirements of
s 29
regarding the publication of notice to
creditors in the Government Gazette. I have no reason to doubt
the correctness of
this finding.
’
In my view, the only reason that the learned judge of appeal would
have thought it necessary to record that there
had been compliance
with
s 29
was because he was cognisant that the property could
not be sold in execution before that was done. No order in
terms of
s 30(b)
was made in
Nedbank
v Steyn
, however, and it is not
apparent from the judgment that such an order was sought in that
case.
[1]
The order made in
Nedbank
v Steyn
authorising the issue and
execution of a writ of execution did not imply that any property
attached in terms of such writ might
be sold in execution without the
necessary leave being obtained in terms of
s 30(b).
[7]
The deponent to the supporting affidavit in
support of the plaintiff’s application for an order of special
executability averred
that the object of s 30 of the
Administration Act is to avoid the potential of an undue preference
being obtained by judgment
creditors of a deceased debtor. Her
opinion is supported by the authorities; see
De
Faria v Sheriff, High Court, Witbank
2005 (3) SA 372
(T) in para 34 and
Gounder
NO v Absa Bank Ltd and Another
2008 (3)
SA 25
(N) in para 14.
[2]
She stated that there was no room for concern in that regard in the
current case because the plaintiff was a wholly secured
creditor in
respect of the proceeds of the mortgaged property. That may be
correct, but it appears to me, with respect, that
the deponent
misconceived the scope of the court’s powers in terms of s 30
if she believed that it could grant an order
in terms of s 30(b)
without first being satisfied that there has been compliance with
s 29.
[8]
Section 30 makes it plain that a sale
in execution of a deceased’s property cannot occur until after
the deceased estate
has been advertised in terms of
s 29
of the
Administration of Estates Act and
the period stated in such
advertisement within which claims may be lodged with the executor has
expired. The only exception
provided for is when a sale in
execution proceeds in circumstances when the sheriff could not
reasonably have known of the judgment
debtor’s demise. The
effect of the proviso to
s 30
is that such a sale would not be
invalid despite non-compliance with
s 29.
[9]
Subject to the aforementioned sole
exception, the provisions of
s 30(a)
constitute an absolute bar
to the sale in execution of property out of a deceased estate until
s 29 has been complied with,
and
s 30(b)
permits the court
to authorise a sale in execution only after there has been such
compliance. That is the effect of the adverb
‘
thereafter
’
at the beginning of
s 30(b).
Contextually, the word
‘
thereafter
’
denotes any time after the period stipulated in terms of the required
advertisement of the deceased estate in terms of
s 29
has
elapsed. It contrasts with the preposition ‘
before
’
at the beginning of
s 30(a)
, which refers to the time preceding
the completion of the period stipulated in the advertisement in terms
of
s 29.
[10]
Section 30(b)
does not, as the deponent to
the supporting affidavit would appear to apprehend, permit a court to
authorise a sale in execution
of a deceased judgment debtor’s
property without there having been compliance with
s 29.
On the contrary, a sale in execution of a deceased’s property
valued at more than R5 000 can take place only after
the expiry
of the period of notice referred to in
s 29
, and then, only with
the court’s leave; see
Gounder
supra, at para 17-26.
[11]
In
Gounder
,
Koen J expressed the opinion that it would be only in
exceptional cases that leave to sell an estate asset through a
process
of execution would be granted before at least the first
liquidation and distribution account had been approved and lain for
inspection
without objection. In
Nedbank
Ltd v Samsodien NO
[2012] ZAGPJHC 95
(14 May
2012); 2012 (5) SA 642
(GSJ), which was referred to with
approval in
Nedbank v Steyn
,
the learned judge (Van Oosten J) did not set out the basis made
out in the papers for an order in terms of
s 30(b)
, merely
recording (in para 4) that he was ‘
satisfied
that a proper case for the granting of such leave has been made
out
’. It is not necessary
in the current matter for me to make any finding as to what might
make out a proper case because
the threshold requirement for an
application for an order in terms of
s 30(b)
has not been
satisfied. It has not been established that there has been
compliance with
s 29
of the Act.
[12]
In the result, the application for default
judgment will be granted, but an order will not be made authorising
the sale in execution
of the mortgaged property. The property
may be attached in execution, but any sale thereof must be deferred
until after there
has been compliance with
s 29
of the
Administration of Estates Act and
fresh application made on proper
grounds for leave from the court in terms of
s 30(b).
The
order that will be made will be suitably framed to make that clear.
I consider that it would be more appropriate
to consider fixing a
reserve price for the property in terms of
Rule 46A
at the time that
an order is made in terms of
s 30(b).
[13]
If, as appears to be the case, the
appointed executrix is not discharging her duties in terms of the
Act, the plaintiff will have
to prevail on the Master to discharge
her from office (see
s 54(1)(b)(v)
of the
Administration of
Estates Act) and
replace her with a person who will effectively
attend to the administration of the estate.
[14]
Default judgment is granted against the
first and second defendants, jointly and severally, the one paying
the other being absolved,
for-
1.
Payment of the sum of R445 624.99
2.
Interest thereon calculated daily and
compounded monthly in arrears from 7 June 2019 to date of payment at
2.1% above the plaintiff’s
base rate (being the plaintiff’s
published annual variable Home Loans interest rate).
3.
The judgment debt is hereby declared to be
specially executable against
Portion [….]
Registration Division JR
Province of Gauteng
Measuring 430 (Four Hundred and Thirty) square metres in extent
Held by Deed of Transfer Number [….]
Subject to the conditions therein contained.
4.
The plaintiff is accordingly authorised to
obtain the issue of a writ of execution against the aforementioned
immovable property
as envisaged in Rule 46(1)(a)(ii) of the Uniform
Rules of Court.
5.
The Sheriff is authorised to execute the
writ of execution; save, however, that the Sheriff may not sell the
property in execution
before leave thereto has first been granted by
the Court in terms of
section 30(b)
of the
Administration of Estates
Act 66 of 1965
.
6.
Costs of suit on the scale as between
attorney and client.
A.G. BINNS-WARD
Judge of the High Court
APPEARANCES
Plaintiff’s
counsel:
M. Holland
Plaintiff’s
attorneys:
Vezi & De Beer Incorporated
Cape Town
[1]
Nedbank v Steyn
in fact involved six separate matters and in all but one of them the
applications for default judgment were remitted to the court
of
first instance to be disposed of there in the light of the appeal
court’s judgment. In the single case that the
appeal
court determined, no order was made in terms of
s 30
of the
Administration of Estates Act. Any
property attached in terms
of the writ of execution authorised in that case could therefore not
be sold until leave was obtained
in terms of
s 30(b).
[2]
The plaintiff’s counsel submitted that the
judgment in
Nedbank v Steyn
had by necessary implication overruled the judgment in
De
Faria
. For the reasons provided
in para [6]
above, I do not consider there
is any merit in that contention.