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[2023] ZAECQBHC 19
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Rayi and Another v Gxabeka (Application for leave appeal) (3912/2021;444/2022) [2023] ZAECQBHC 19 (9 February 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
CASE
NO. 3912/2021
NOT
REPORTABLE
In
the matter between:
ZUKISWA
VIVIAN RAYI
IDENTITY
NO. 6[...]
First Applicant
SIMO
RAYI
ID
NO. 5[...]
Second Applicant
And
THOZAMA
DORA GXABEKA
(In
her capacity as executrix of
Estate
No.
0[...])
Respondent
CASE
NO. 444/2022
In
the matter between:
ZUKISWA
VIVIAN RAYI
IDENTITY
NO. 6[...]
First Applicant
SIMO
RAYI
ID
NO. 5[...]
Second Applicant
And
THOZAMA
DORA GXABEKA
(In
her capacity as executrix of
Estate
No.
0[...])
Respondent
JUDGMENT IN RESPECT OF
APPLICATION FOR LEAVE
TO APPEAL
HARTLE
J
[1]
The applicants applied for leave to appeal
against the whole of my combined judgment delivered on 16
th
September 2022 under the case numbers 3912/2021 and 444/2022 referred
to above “on facts and points of law”.
[2]
The respondent opposes the application on
the basis that in both matters no reasonable prospects of success
exist in the envisaged
appeals. This is indeed the threshold for an
application such as the present one as provided for in section 17 (1)
(a) of the Superior
Courts Act, No. 10 of 2013 (“SCA”).
It is however also relevant to refer to the provisions of section 16
(2)
(a)(i) of the SCA that provide that when at the hearing of an
appeal the issues are of such a nature that the decision will have
no
practical effect or result, the appeal may be dismissed on this
ground alone. The relevance of this provision to the present
scenario will soon become apparent.
[3]
In respect of the spoliation matter
firstly, the applicants contend that I erred in upholding the
application and in granting costs
and also that I ought to have found
that the non-joinder of the Master was fatally defective to the
application.
[4]
The applicant appears however to have
misunderstood the nature of the spoliation remedy or its utility to
the unique scenario that
pertained.
[5]
The
respondent’s allegation in her founding affidavit in the
spoliation application that she assumed conscious physical control
of
the property after her sister died was not gainsaid by the
applicants. Not only did she take possession but she took steps
both before and after her appointment as executor in both estates,
initially in the nature envisaged by section 11 (1)(b) of the
Administration of Estates Act, No. 66 of 1965 (“the Act”)
with a view to obtaining and retaining possession or custody
of the
property that her late sister (as an executor herself in her late
son’s estate and as a possible intestate heir) had
assumed
control and custody of, and later in terms of section 26 (1) of the
Act to manage the property in the interests of her
sister and
nephew’s estates respectively.
[1]
[6]
The
respondent was both entitled and obliged to take the property under
her protection and control in her official capacity
[2]
and indeed her possession at the relevant time was exactly the sort
protected by the
mandament
van spolie
.
[3]
[7]
Apart from possession having been
established, the respondent also established that she (or her
placeholder, the second applicant)
were unlawfully deprived of their
possession by being forced off the premises by the applicants on 16
December 2021.
[8]
The
respondent had both
detentio
of the property (the physical holding and control over it) and
animus
(the intention of securing an interest in the property in her
appointed capacity as executrix).
[4]
That interest was established
ultimately
(by the time letters of executorship were issued in her favour) by
virtue of the machinery of the Act.
[9]
The
administration of a deceased estate devolves on the executor of the
estate, who does not succeed to the person of the deceased.
In
relation to contracts, the executor’s duty is not simply to
take over where the deceased left off and to carry on indefinitely,
but to reduce the estate into possession, pay the liabilities out of
the assets, pay the legatees and transfer the residue to the
residuary legatee or the administrator or as appropriate. The
question what direction to take, whether to enforce the deed of sale
Mr. Gxabeka had entered into before his death or not, would have been
informed on the basis of what the contract itself provided
together
with the surrounding circumstances. In the absence of any
suggestion that the contract provided for its discharge
upon his
death, the general principle is that the rights and duties arising
from such an obligation are transmitted and enforceable
by or against
the executor.
[5]
[10]
The respondent was mindful of her duty in
this respect and had taken the early step of reducing the property
which had been in the
possession of her sister, and before that her
nephew, into her custody after her sister’s death with a view
to perfecting
the sale by registration especially since it was common
cause that her nephew had paid R160 000,00 of the purchase price
provided
for in the deed of sale and had been occupying the property
in terms of that agreement since 2004, a clear incident arising from
the transaction.
[11]
It
was not open to her to have ignored the terms of the deed of sale to
which her late nephew had personally bound himself especially
since
he had paid a substantial amount in respect of the agreed upon
purchase price, indeed had prepaid this sum of monies even
before the
deed of sale had been reduced to writing.
[6]
As
was
stated in
Colly
v Colly’s Estate
,
[7]
adopting the words of the Privy Council in
Agullia
v Estate Trust Agencies (1927 Ltd:
[8]
“
Prima
facie
it is the duty of the legal
personal representative to perform all contacts of his testator or
intestate that can be enforced against
him whether by way of specific
performance or otherwise. In the case of an onerous contract he ought
to not neglect an opportunity
of coming to terms. But it can never be
his duty to break an enforceable contract.”
[12]
For
purposes of determining the spoliation application it was unnecessary
for me to have reflected upon the applicants’ claimed
title to
of the property. The purpose of a spoliation application is
(and was in the circumstances which pertained) to prevent
the
applicants from taking the law into their own hands and to ensure the
restoration
ante
omnia
of the property involuntarily taken from the respondent’s
possession. For one the respondent was in possession of the property
and was retaining it for a statutory purpose. Additionally, she had
been forcibly dispossessed of it by the applicants opportunistically
asserting their registered ownership of it whereas their legal remedy
lay under the auspices of the Act (by proving a claim, on
their
version that the deed of sale had been cancelled and that they were
thus entitled to take repossession), alternatively
through the
court (by seeking an appropriate declarator),
[9]
rather than their obvious resort to self-help.
[13]
There is in my view no prospect that
another court will find that the respondent was not entitled to have
had the possessory claim
decided in her favour.
[14]
Although
not a ground raised before me in the present application, I accept
that by the time I issued the order restoring possession
of the
property to the respondent, that the applicants had committed a
further act of spoliation that possibly rendered my order
(relative
to the spoliation on 16 December 2021) moot as at the latter
date.
[10]
I am mindful
that another court might find that in these circumstances I should
not have issued the order which I did in
prayer 1, since a lot of
water had passed under the bridge so to speak, since then. For
this reason, I am not inclined to
grant the applicants leave to
appeal in respect of this narrow issue as it will have no practical
effect or result.
[11]
Academic appeals should not be encouraged.
[15]
As for the costs order granted in favour of
the respondent in her representative capacity, no grounds were stated
why I should grant
leave to challenge that order
per
se
. For the reasons I have
outlined above and in my judgment why the notional order of
restoration was justified on the facts
set out in the papers, the
costs order which I granted naturally followed that result. Even if I
had reflected at the time that
my order restoring possession of the
property to the respondent had become academic and had been overtaken
by events, given the
lengthy interval that interposed itself before
the spoliation application could be argued, I would in my opinion
still have been
justified in awarding those costs in favour of the
estate even without the main prayer.
[16]
As
for the technical point raised (surprisingly only in the spoliation
application), the
mandament
van spolie
remedy is an urgent possessory one and should not have concerned the
Master at all. The respondent had been entitled by virtue
of the
provisions of section 26 (1) of the Act to take control of the
property and to assert the statutory rights bestowed upon
her
pursuant to the issue of his letters of authority to her including
obtaining and maintaining possession of the property that
the
deceased had purchased. The effort by her to vindicate the
involuntary lost possession of the property would not in my view
have
required the Master’s consent (already given) to take the steps
deemed necessary by section 26 of the Act to jealously
protect her
control over the property. The consent of this court would not even
have been a requirement. In deciding whether
to bring or defend
an action on the contract of a deceased to which he was a party
(including by necessary implication the bringing
of a related
spoliation application), the executor is merely expected to exercise
his or her discretion
boni
viri
.
[12]
It is not understood what input the Master would have been expected
to make in the relevant circumstances that would have assisted
the
court. Neither do the provisions of Uniform Rule 6 (9) impose
any obligation on the Master to furnish a report in such
urgent
proceedings. Even if the spoliation application was in the wide
sense of the word “in connection with the estate”,
I
cannot imagine that another court will agree with the applicants that
the failure to have joined the Master was fatal to the
spoliation
application.
[13]
[17]
Regarding the second application, I am not
convinced that another court could find that the respondent was
obliged to regard the
agreement of sale as no longer having any force
on the basis of any of the reasons suggested by the applicants. I
dealt with all
of these in my judgment and reasoned why I thought
that the applicants’ opposition to the premise that the
executor was expected
to enforce the contract and perfect the sale by
taking transfer was quite patently absurd and did not raise a genuine
dispute of
fact.
[18]
Upon
a consideration of the papers that were before me, it is common cause
that the late Mr. Gxabeka was given possession of the
property in
2004 already despite the agreement providing that vacant occupation
would only be given to him on registration and
that his late mother
(similarly to the respondent acting in a representative capacity in
the interests of his estate) continued
to occupy the property for
several more years after his death until her demise as well.
(Mr. Gxabeka’s right of occupation
would have included the
right to recover any fruits thereby.) It also appears to be the
case that he assumed the risk in
respect of the property from the
date of occupation. (There is a dispute concerning what, if any
agreement was reached in
respect of the payment of occupational
rental and whether he was “in default” of paying such
monies, but that is neither
here nor there for present purposes.)
The suggestion that Mr. Gxabeka had been in default of paying a
different purchase
price than indicated in the deed of sale simply
had no substance. The applicants averred that the purchase
price had been
increased but even on their version that payment would
have related to “additional items” that Mr. Gxabeka
purportedly
acquired from them. If true, such a sale is
suggestive of movable assets disposed of to him that would not have
impacted
on his strict obligations arising from the deed of sale to
pay the agreed upon price to acquire and ultimately to take transfer
of the immovable property. The applicants made no averment in
their papers that the purchase price in respect of the deceased’s
acquisition of the property had been formally varied and indeed put
up no proof of this. Any sale of immovable property is
required
to be recorded in writing in terms of the Alienation of Land
Act.
[14]
This likewise
applies to any variation to the formal agreement in respect of
price.
[15]
There was no
suspensive condition in place (presumably because the bulk of the
purchase price was prepaid by the deceased),
neither did the
applicants suggest that the deed of sale had been extinguished on
such a natural basis. Their argument, even
that an increased
purchase price (
sic
)
had not been paid similarly had no merit on the simple basis that
whatever was owing beyond the prepaid amount of R160 000,00
(which
self-evidently extinguished the bond over the property that existed
at that point), the balance was only payable on demand
by the
conveyancer and upon registration.
[16]
This ball was in the applicants’ court in this respect but it
appears from Annexure B relied upon by them in their answering
affidavits that it was not a ball they intended playing as they
evidently no longer wanted to proceed with the transfer. That choice
was however not open to them as a unilateral one to make and all the
indications are that deceased did not give in to them in this
respect. (Indeed why would he/his estate have continued to occupy the
property for another 17 years thereafter if there had been
a formal
cancellation of the deed of sale?) The applicants claim that Annexure
B (which by no stretch of the imagination
placed the deceased
regarding a clearly delineated default arising from the deed of sale
on terms) preceded a formal cancellation
of the agreement that
on their own admission was not even communicated to the deceased was
simply untenable and provided no realistic
basis to depart from the
clear indication that surrender of the control of the property
to the respondent was certainly required
(and in this respect I do
not believe that another court will find differently that a basis
existed for the estate to have yielded
possession of the property to
the respondents even against their title) on the premise that a valid
and enforceable agreement existed
that was not in the purview of the
respondent’s statutory duties to simply ignore or forgo
compliance with.
[19]
The order which I granted ultimately
assumed a valid and binding sale agreement that had not been
cancelled that the respondent
in her official capacity was entitled
to enforce going forward. The applicants chose to prove their
“claim” (to
cancellation) by opposing the relief sought
in the interdict application on the limited assertions on which they
relied, rather
than filing a counter application or asserting their
right to first follow the administrative processes under the Act.
That was
their election, though I doubt that they would be precluded
from proving a claim in due course in the administration of the
estate(s),
in the process perhaps having another bite at the cherry.
[20]
Having made that concession I expect that
another court might find that it was premature to have made the order
which I did before
the antecedent steps necessary to get to that
point had unfurled or had been allowed to unfurl under the mantle of
the Act.
It is a process and the circumstances under which
transfer ultimately happens (if it does) follows the Master’s
approval
of the liquidation and distribution account and specific
directions resolved upon. The transfer itself would have
followed
as a final act and would then of necessity require the
applicants to sign off on the Power of Attorney to pass transfer
unless
they succeed in the endeavours to have the sale agreement
declared cancelled.
[21]
The supposed objection raised at that
hearing that the respondent had no
locus
standi
to bring the application in her
personal capacity was self-evidently premised on a mistake made plain
in the papers. Despite
how prayer 1 of the notice of motion
read, it was clear that the respondent asked for the relief which she
did in her official
capacity and not for the property to be
transferred to her as a final resort in her personal capacity as
heir. I can think
of no reason why the obvious mistake in the
notice of motion did not warrant a correction from the bar when the
matter was argued
before me, but as indicated in the preceding
paragraph this relief (mandating the signing off on the transfer) may
have been prematurely
granted.
[22]
Still the executrix would have been
expected and statutorily obliged to take the steps she took at the
outset to reduce the estate
into her possession as a start and
ultimately to take the formal steps necessary to galvanize the
process along. Perhaps
that is the relief I should have granted
with a direction that the applicants prove their claim to
cancellation in the ordinary
course, failing which that they be
prevailed upon at that juncture to sign off on the necessary transfer
documentation.
[23]
Whilst I maintain that there is no prospect
of another court determining that I erred in finding that the
agreement of sale was
and continues to remain valid and enforceable
at least as a premise for the respondent to have taken the property
into her custody,
I am yet of the view that another court may find
that the order granted by me, though seemingly inevitable, was not
competent to
be made at that juncture and that it would be
appropriate to grant the applicants’ leave to appeal in this
respect.
[24]
Since we are here dealing with the
administration of two consecutive deceased estates, I would however
urge upon the parties to
try and resolve the matter within the
machinery of the Act rather than in pursuit of the anticipated appeal
that will at the end
of the day simply run up unnecessary costs for
the two estates.
[25]
In the result I issue the following order:
1.
The appeal in case number 3912/2021 is
dismissed, with costs.
2.
The applicants are given leave in case
number 444/2022 to appeal to the full bench of this division against
my order that they be
compelled at this juncture to sign the
necessary transfer documents and to cause the transfer to the estate
of the late Mr. M M
Gqabeka (Estate No. 1[...]) of the property known
as Erf 7[...] P[...] V[...] before being afforded an opportunity to
prove their
claim against the estate.
3.
The costs of the application in case number
444/2021 will be in the appeal.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
17
January 2023
DATE
OF JUDGMENT:
9 February 2023
APPEARANCES
:
For
the applicants: Mr. MPG Notyawa instructed by Simpiwe
Jacobs & Associates, Gqeberha (ref. S Jacobs).
For
the respondents : Mr. ME Menti instructed by N E Mbewana Attorneys
Inc., Gqeberha (ref. Rayi/000586/IM).
[1]
This is, for example, evident from Annexure “F” to the
founding affidavit in which the respondent’s attorneys
invited
the applicant (among other family members) to note that she had
taken occupation, that they were to refrain from taking
the law into
their own hands and, if they thought that any of them had “a
legal claim to the property”, to approach
the courts and to
serve her with the necessary court papers.
[2]
See sections 11 (1)(b) and 26 (1) of the Act. See also
Meyerowitz on Administration of Estates and Estate Duty, 2004 Ed,
at
12.24 and 12.26
;
Lockhat’s Estate v North British and Mercantile Insurance
Company Ltd
1959 (3) SA 295
(A) at 302 F – G.
[3]
Agha
v Sukan
[2004]
3 All SA 421
(D).
[4]
Agha
v Sukan,
Supra
,
at
page 433. The respondent qualified as a possessor with
sufficient interest in the property to claim spoliation.
[5]
Christie’s Law of Contract in SA, 7
th
Ed, at 12.3.6 (page 583 – 4).
[6]
Christie’s Law of Contract
Supra
at 584. See also Kernick’s Administration of Estates and
Drafting of Wills, 4
th
Ed, at 56.1.2 (page 63); Norman’s Law of Purchase and Sale in
SA, 5th Ed, at 8.11 (page 71).
[7]
1946 WLD 83.
[8]
AC 624 (PC) 634-5.
[9]
A creditor is not precluded by the Act from instituting action in
terms of his/her common law rights against the deceased estate
for
the recovery of a debt owed by the estate. See
Nedbank
Ltd v Steyn
2016 (2) SA 416 (SCA).
[10]
Pursuant
to the despoiling of 15 December 2021 and the launch of the
spoliation application, the applicants opportunistically
entrenched
themselves in their occupation of the property and remained in
unlawful occupation thereafter. I was further
advised from the
bar (by counsel when arguing the present application) that despite
my order restoring possession of the property
to the respondent and
even after having been “ejected” by the sheriff, that
the applicants had again moved back onto
the premises.
[11]
The estate has other avenues open to it in terms of the provisions
of the Act. For example, it may invoke the provisions
of
section 26 (3) or seek a declarator that the executor is entitled to
maintain control of the property in her official capacity
until the
applicants have pursued their claim against the estate.
[12]
Christie’s Law of Contract
Supra
at page 583.
[13]
Rule
6 (9) does not operate where the Master’s involvement is
neither legally necessary or of assistance to the court.
Manton
v Croucamp N.O. & Others
2001 (4) SA 374
(W) at 379.
[14]
No. 68 of 1981. See section 2 (1).
[15]
The price is a material term of a deed of alienation and a variation
of such a term must comply with the prescribed formalities
to be
valid.
Sidlali
v Mpolongwana
1990 (4) SA 212
(C),
Bailes
v Highveld 7 Properties (Pty) Ltd
1998 (4) SA 42 (N).
[16]
“Registered” has its own unique meaning in terms of the
Deeds Registries Act, No. 47 of 1937
. See
section 102
(1).
See also
section 13
which provides when registration takes place.