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[2019] ZAECPEHC 17
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Britz NO v Strydom and Another (2849/2018) [2019] ZAECPEHC 17 (29 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case No.: 2849/2018
Date Heard: 28
March 2019
Date
Delivered: 29 March 2019
In
the matter between:
MALENDA
BRITZ NO
Applicant
and
JACOBUS
STEPHANUS STRYDOM
First
Respondent
MASTER
OF THE HIGH COURT
(ESTATE NO:
5872/15)
Second
Respondent
JUDGMENT
BEYLEVELD
AJ:
[1]
In this
application the applicant, who is the appointed executrix of the
estate of her late husband, the late Lawrence Daniel Britz
(“the
deceased”) seeks an order of ejectment of the first
respondent
[1]
from premises
described as Erf 142 Algoa Park situated in the Nelson Mandela Bay
Metropolitan Municipality, Division of Port Elizabeth,
Province of
the Eastern Cape with physical address at 24 Rodean Street, Algoa
Park, Port Elizabeth (“property”).
[2]
The first respondent is the nephew of the deceased who, for all
practical
purposes, raised the first respondent who resided with him
at the property.
[3]
The second respondent is the Master of the High Court.
[4]
As at the date of death of the deceased, the first respondent was
still
residing at the property and has continued to do so since
then. Until the death of the deceased, the applicant also
resided
at the property, but left thereafter for reasons which do not
contribute to a determination of the essential issues in dispute in
this application.
[5]
In terms of a testamentary disposition the deceased bequeathed the
property
to the first respondent.
[6]
The property is the only asset in the estate of the deceased.
[7]
Prior to the appointment of the applicant as executrix in May 2017
(the
deceased died on 13 July 2015) attorney Teresa Heasley was
appointed the executrix, but she, apparently as a result of
acrimonious
discord between the applicant and the first respondent,
declined to act further as executrix and resigned. As indicated
previously,
the applicant, as the surviving spouse, was then
appointed executrix.
[8]
The
applicant submitted a claim against the estate for maintenance in
terms of the Maintenance of Surviving Spouses Act
[2]
.
[9]
Such claim was accepted on 25 November 2016 by the then executrix
Heasley,
based on an affidavit furnished by the applicant in support
of her claim for maintenance.
[10]
On 25 November 2016 executrix Heasley advised applicant and the first
respondent that the
claim for maintenance was accepted and further
advised that as the claim was in excess of the value of the assets in
the estate,
and
sans
agreement to the contrary , the property
would have to be sold.
[11]
On 29
January 2018 the Master was advised by the applicant
[3]
and now acting as executrix, that the estate is insolvent and that
the applicant intended proceeding in terms of section 34(2)
of the
Administration of Estate’s Act
[4]
.
[12]
The aforesaid communication was also addressed to the first
respondent in a separate letter.
In such communication the
first respondent was also alerted to the fact that failing an
agreement between her and the first respondent
relating to a lease in
respect of the property, the first respondent was to vacate the
property on or before 1 March 2018.
[13]
The first respondent declined to vacate and continues to do so based
on his contention
that he is the only heir in the estate and that in
terms of the will of the deceased he is entitled to reside at the
property.
He in fact contends that he had ownership rights.
[14]
The first respondent disputes the applicant’s claim for
maintenance and asserts that
no claim as such has been lodged with
the Master. The applicant’s retort is that she has lodged
a claim with the executrix
which has been accepted.
[15]
Whether or not the applicant’s claim as admitted by the
executrix will ultimately
be approved by the Master, and whatever the
quantum thereof may be, is not the central issue in the dispute in
determining whether
or not the first respondent is entitled to
continue occupying the property.
[16]
A notice in
terms of section 34 of the Administration of Estates Act to
creditors
[5]
has the effect of a
sequestration order, although no order of court is in fact
granted.
[6]
[17]
On the face
of it, the applicant is required to perform her functions as
executrix pursuant to the provisions of section 34 of the
aforesaid
Act. The deemed date of sequestration has long since passed.
[7]
[18]
The applicant was not instructed in writing by any creditor to
formally surrender the estate.
[19]
It is, for the purposes of this matter, also necessary to analyse the
functions of an appointed
executor.
[20]
A deceased
estate is comprised of the aggregate of assets and liabilities.
Although there were serious academic contentions
that an estate of a
deceased person is a legal person until an executor has been
appointed
[8]
the Appellate
Division (as it was then known) has rejected this theory
[9]
.
Van Zyl
supra
suggests that a deceased estate is comprised of a management body.
In this regard he states:
“
(iii)
Hierdie regspersoon wat
ipso jure
by die dood van die erflater
ontstaan en voortbestaan totdat die boedelbereddering voltooi is,
bestaaan uit ‘n bestuursliggaam.
(iv) Die gemelde
bestuursliggaam is deur die wetgewer geskep. Sy
regspersoonlikheid het dit egter deur die ontstaan
van gewoontereg
verwerf.”
[10]
[21]
What is
however uncontentious, is the fact that a beneficiary never becomes
the owner of any inherited asset upon the death of the
deceased.
[11]
The executor of a deceased estate is the owner of the assets during
the period of the administration of such estate.
[12]
An executor takes into custody and control all the property in the
estate.
[13]
[22]
It is for
this reason that an executor is the only person who may for instance
bring a vindicatory claim in respect of the State
assets.
[14]
In
Segal
and Segal and Others
[15]
the court stated as follows:
“
It seems to be a
necessary corollary of the vesting in the executor of the property
belonging to the deceased that he should be
and is burdened with the
obligation of assuming possession and control of such property and
distributing it in accordance with
the wishes of the testator or
according to the dictates of law.”
[23]
The administration of an estate can broadly speaking be divided into
three categories.
Namely:
(i)
the third phase which starts on the death of the deceased and
involves the steps
which have to be taken until an executor is
appointed; and
(ii)
the second phase which is the actual process of administration that
culminates in
the submission of a liquidation and distribution
account to the master; and
(iii)
the third phase which commences when the account has been approved
and certain final requirements
are met.
[16]
[24]
In as much therefore as an executor is the owner of all assets in his
official capacity,
the applicant is entitled to take possession of
the immovable property which is occupied by the first respondent.
The first
respondent has no entitlement (at least at this stage) to
the property and is in unlawful possession thereof.
[25]
An executor
is not the agent of an heir, but is legally vested with the
administration of the estate. Accordingly, it is incumbent
upon
the applicant to take possession of the estate property (in casu the
property) and to liquidate the estate by paying all debts,
and if
there is a free residue, such to be distributed for the benefit of
the heir.
[17]
[26]
The first respondent’s suggestion in paragraph 8.6 of his
answering affidavit that
he is the rightful owner of the property
lacks merit and stands to be rejected.
[27]
In addition, there exists no justifiable reason for contending that
the applicant in her
capacity as former spouse is not entitled to
maintenance, whatever the quantum of such claim may be.
[28]
The applicant is 53 years old; was married to the deceased for nearly
20 years; never worked
during the subsistence of the marriage and was
financially dependent on the deceased as she was a housewife.
[29]
Prior to the marriage in 1997 the only work she performed by virtue
of her lack of qualifications
was as a cashier on odd occasion when
she was helping out.
[30]
That the
deceased had a duty of support
stante
matrimonio
towards the applicant is self-evident.
[18]
[31]
Ineluctably
such duty of support in terms of Act 27 of 1990 is passed onto the
estate with a lump sum payment the only practical
way in which this
particular estate is able to comply with the maintenance obligation
towards the applicant.
[19]
[32]
Should the
first respondent ultimately not be satisfied with the quantum of the
maintenance claim
[20]
he may
of course object to the liquidation and distribution account in due
course.
[33]
As the property, as previously indicated, is the only asset in the
estate, such property
would have to be sold, whatever the quantum of
the maintenance claim may be.
[34]
All that remains is to determine what a just and equitable date
should be for the first
respondent to vacate the property.
[35]
In determining such just and equitable date, I must have regard to
the interest and circumstances
of the first respondent and take into
account the broader considerations of fairness and constitutional
values.
[36]
As stated
by Koen J in
Botha
NO v Dee
tlefs.
[21]
“
I am required to
infuse elements of grace and compassion into the formal structures of
the law.”
[37]
The
discretion to be exercised is a wide discretion and not a discretion
in the narrow sense.
[22]
[38]
I have taken into account,
inter alia
, the following factors,
namely that the first respondent is the appointed heir; that he was
requested to vacate the property;
that he refused to do so and
refused to remain in occupation against payment of an agreed rental;
that he is gainfully employed
and capable of securing alternative
accommodation; that the estate is possessed of only one asset
and the fact that the property
has to be sold in order to satisfy any
claim for maintenance by the applicant in her capacity as former
surviving spouse.
[39]
I therefore conclude that the first respondent should be ordered to
vacate the property
within two months after service of this order.
[40]
The first respondent has consistently denied any obligation to vacate
(in fact lays claim
to ownership) and there exists no reason to
deprive the applicant, who has been successful in this application,
of her costs.
[41]
I grant an order in terms of paragraphs 1, 2, 3 and 4 of the Notice
of Motion save for
the following:
(i)
the words “within one month of the service of this order”
in paragraph
1 is substituted with “within two months of the
service of this order”.
(ii)
The words “alternatively within such period as this Honourable
Court may deem
appropriate” in paragraph 1 is deleted.
(iii)
The words “on an attorney/client scale” in paragraph 3 is
deleted.
(iv)
The words “in a manner which this Honourable Court may deem
fit” in paragraph
4 is substituted with the following:
“
by service on the
first respondent in terms of the Rules of Court.”
A
BEYLEVELD
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
Applicant: Adv
A
Desi instructed by Besters Attorneys, Port
Elizabeth
For
First Respondent: Adv V
Naidu instructed by Legal Aid South Africa,
Port Elizabeth
[1]
And all those occupying through him. The first respondent
denies that there are any other persons who occupy through him
as
tenants.
[2]
27 of 1990
[3]
Acting through her attorney
[4]
66 of 1951 as amended
[5]
In the present instance there appears only to be one creditor namely
the applicant
[6]
Fairleigh
NO v Whitehead and Another
2001 (2) SA 1197 (SCA)
[7]
Section 34(5)
[8]
Ian Murray 1961
Annual
Survey
259 and (1962) 79 SAJ 37; FJ Van Zyl “
Universele
Opvolging in Suid-Afrikaanse Erfre
g”
(
Annale
Universiteit van Stellenbosch
Volume 5, Reeks B, No. 1, 1983)
[9]
CIR v
Emary NO
1961 (2) SA 621
(A) at 624-625 and C
IR
v MacNellie’s Estate
1961 (3) SA 833
(A). See also M J de Waal and MC
Schoeman-Malan
Law
of Succession
5
th
ed at 10 at 11
[10]
“(iii) The legal person, which originates
ipso
jure
at the death of the testator and continues to exist until the
administration of the estate is completed, comprises of a management
body.
(iv)
This management body was created by the Legislature. Its legal
personality however evolved through customary
law.” (My
translation)
[11]
Greenberg
v Estate Greenberg
1955 (3) SA 361
(A);
Commissioner
SARS v Executor Frith’s Estate
2001 (2) SA 261
(SCA) at 270;
Dique
v Van der Merwe
2001 (2) SA 1006
(T) at 1012F
[12]
De Waal and Schoeman-Malan
Law
of Succession
supra at 11
[13]
Section 26(1) of the
Administration
of Estate’s Act
.
See also Corbett, Hofmeyr and Kahn
The
Law of Succession in South Africa
2
nd
ed at 589. See also De Waal and Schoeman-Malan supra at 241
[14]
Du Toit
v Vermeulen
1972 (3) SA 848
(A) at 856
[15]
1976 (2) SA 531
(CPD) at 535C
[16]
Juanita Yamneck (Ed) et al
The
Law of Succession in South Africa
2
nd
ed at 267-274; see also De Waal Shoeman-Malan supra at 241-246
[17]
Botha
NO v Deetlefs and Another
2008 (3) SA 419
(NPD) at para 9
[18]
See for example B van Heerden et al Boberg’s
Law
of Persons and the Family
2
nd
ed at 235
[19]
Oshry v
Veldman
2010 (6) SA 19 (SCA)
[20]
The determination of reasonable maintenance needs
[21]
Supra at para 23
[22]
Ndlovu
v Ngcobo; Bekker and Another v Jika
2003 (1) SA 113
(SCA) at para 18