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[2022] ZAMPMBHC 57
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Pretorius v Krugel N.O and Others (3326/2022) [2022] ZAMPMBHC 57 (14 July 2022)
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IN
THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION (MIDDELBURG LOCAL SEAT)
CASE
NO:
3326/2022
Reportable:
No
Of
interest to other judges: No
Revised:
No
14/07/2022
In
the matter between:
CINDY
PRETORIUS APPLICANT
APPLICANT
[Identity
Number: [....]]
AND
JOHAN
MOODIE KRÜGEL N.O.
FIRST
RESPONDENT
J
JOACHIM HENDRIK BOTHA N.O.
SECOND
RESPONDENT
THE
MASTER OF THE HIGH COURT,
THIRD RESPONDENT
MIDDELBURG
JUDGMENT
LANGA
J
:
Introduction
[1]
The relief sought in this urgent application is for an order that,
pending the finalisation
of the administration of the estate of the
late Casper Jeramia Pretorius (“the deceased”) and/or the
financial assistance
from Kern Technologies (Pty) Ltd (“Kern”),
the First and/or Second Respondents be directed to make maintenance
payments
towards the Applicants in the amount of R65,000.00 per
month, alternatively, that such payment be made for the month of June
2022
and thereafter as and when additional funds become available in
the deceased’s estate.
[2]
The First and Second Respondents opposed the application which was
heard and argued
on 28 June 2022. Advocate L Louw appeared for the
Applicant whereas Advocate D Prinsloo appeared for the First and
Second Respondents
hereinafter together referred to as the
Respondents, unless otherwise indicated. During the hearing
counsel for the Respondents,
who had not filed any heads of argument,
undertook to file the concise heads of argument in amplification of
the oral submissions
made. Counsel for the Applicant, who had filed
written heads of argument, also undertook to file supplementary heads
of argument
after receipt of the Respondents’ written heads,
which she did.
The
Parties
[3]
The Applicant is the wife of the deceased and she is claiming spousal
maintenance
for herself as well as maintenance for her minor
daughter, Anke Pretorius. The First Respondent, who is cited in his
representative
capacity, is Johan Moodie Krugel N.O., the duly
appointed executor of the estate of the late Casper Jeramia
Pretorius, who passed
away on 9 June 2021. The Second Respondent is
the First Respondent’s duly appointed agent who is also cited
in his representative
capacity. The Third Respondent is the Master of
the High Court, Middelburg. According to the founding affidavit the
Third Respondent
is cited in the application purely for purposes of
noting same and no relief is sought against the Third Respondent.
Applicants
contentions on the merits
[4]
The Applicant is a financial manager at Vital Security, one of the
companies created
by the deceased and of which was a director and
shareholder. She is claiming interim maintenance of R65 000.00
per month from
the deceased’s estate. The Applicant states that
she is currently earning R16 500.00 per month at Vital Security
and
that since the passing of the deceased, his son from a previous
marriage, Louw Jacobus Pretorius, is now the director of the company.
The company is involved in the provisioning of security in the mining
sector. The deceased had also created another company namely,
Kern
Technologies (Pty) Ltd “Kern” which is owned by the CJ
Family Trust as the sole shareholder. The First Respondent
also
happens to be one of the Trustees of CJ Family Trust, albeit in a
different capacity. The Applicant further asserts that she
was
involved in the building and development of these companies with the
deceased.
[5]
The Applicant asserts that
during her marriage with the deceased, the latter was responsible
for
all the household and living expenses and that she was not required
to make any contribution thereto. She states further in
her affidavit
that she is also in the process of lodging a preferent claim against
the deceased’s estate and is awaiting
the actuarial
calculations in that regard.
[6]
Concerning the maintenance claim, the Applicant states that after the
death of the
deceased she took out a loan from Kern since she could
not maintain herself and her minor child from her salary of
R16 500.00
per month. She stated that she therefore paid herself
R65 000.00 per month from Kern’s coffers for their
maintenance
and that this loan was taken with the knowledge and
approval of the Trustees of Kern, including the First Respondent
together with
his partner Mr Frank Heinsen, who both found the
arrangement to be in order until such time that the deceased’s
estate is
in a position to maintain her and the minor child. She
stated further that the arrangement with the First Respondent and his
partner
was that the loan from Kern would be repaid by the estate of
the deceased at a later stage.
[7]
She, however, stated further that despite this understanding, the
loan was subsequently
terminated by the Trustees on 26 May 2022 and
any further financial assistance to her and the minor child from Kern
was stopped.
This decision was apparently followed by the questioning
of the payments by Louw Jacobus Pretorius who did not agree
therewith.
[8]
The Applicant states that immediately after the termination of the
loan payments,
she approached the Second Respondent and informed him
of her predicament and requested maintenance payment to be made from
the
deceased’s estate. After an exchange of correspondences and
telephone calls, the Second Respondent eventually informed her
that
he must first consider certain administrative costs payable such as
insurance premiums etc. before any maintenance can be
considered. To
this end the Second Respondent requested further information which
was furnished to him in order for him to determine
the possibility of
maintenance payment to the Applicant and Anke. She states that
despite having provided the Second Respondent
with the required
information, no favourable response has been received from the
Respondents regarding the request for the payment
of the maintenance
out of the estate.
[9]
On 31 May 2022 a further request was addressed to the Second
Respondent for a maintenance
contribution subsequent to that on 01
June 2022 the Second Respondent was requested to give the Applicant
information relating
to the urgent administrative costs, the nature
and extent thereof, if any, and also whether they have preference
over her request
for financial assistance. She records that she did
not receive any response to that request and no decision was taken by
the Respondents
regarding her request for maintenance contribution
from the estate. The Applicant then decided to approach court
for assistance.
[10]
The Applicant submitted that she has been forced in these
circumstances to even use the money
from the child and also used her
credit and overdraft facilities in order to get by as some of the
expenses are urgent. She contends
therefore that she has establish
that her expenses and those of the child show that R65 000.00
would constitute a reasonable
maintenance contribution as she
previously received the same as a loan from Kern.
The
First and Second Respondents’ contentions and Defences
[11]
While the Respondents acknowledge the right of the Applicant and the
minor child to claim maintenance
from the deceased’s estate,
they however question the basis of the claim
in
casu.
The
Respondents take issue with the basis upon which the Applicant claims
maintenance prior to the liquidation and distribution
account having
laid open for inspection, and prior to the Applicant having submitted
a formal claim for maintenance against the
deceased’s estate.
[12]
The Respondents further contend neither Section 26(1(A) of the
Administration of Estates Act,
Act 66 of 1965 (“the Estates
Act”) and the common law entitles the Applicant and her child
to enforce their right and
claim for maintenance before the
executor’s account has lain open for inspection. Advocate
Prinsloo for the Respondents submitted
that Section 26(1A) of the
Estates Act is the only provision in this statute that deals with the
payment of maintenance prior to
the executor’s account has lain
open for inspection.
[13]
The Respondents further argue that the Applicant’s right to
maintenance against the estate
as a surviving spouse is derived from
Section 2(1) of the Maintenance of Surviving Spouses Act, Act 27 of
1990 (“the MSS
Act”), which provides that where a
marriage is dissolved by death, the surviving spouse shall have a
claim against the estate
of the deceased spouse for the provision of
his reasonable maintenance needs. They contend that the Applicant, as
surviving spouse,
therefore has no remedy outside what is provided
for in the Estates Act. This argument appears to be based on the
provisions of
Section 2(3) (a) of the MSS Act which provides that the
proof and disposal of a claim for maintenance of the surviving spouse
shall
be dealt with in accordance with the provisions of Estates Act.
[14]
The Respondents further contend that although no claims have been
lodged by creditors yet, it
is however evident from the papers that
the estate has creditors. In respect of the claim alleged by Kern,
the Respondents contend
that it is evident from her affidavit that
the Applicant is also aware of the fact that Kern contends that it is
a creditor of
the deceased’s’ estate and that therefore
the contention by the Applicant that the deceased’s estate has
no creditors
by virtue of the fact that no formal claims were lodged
on or before the expiry of the time provided for in the Section 29
notice
does not reflect the correct state of affairs. It is further
argued in this regard that although she asserts that she is also a
creditor of the deceased’s estate, the Applicant herself has to
date also not yet lodged a claim which she says she still
intends
lodging according to her affidavit.
[15]
The Respondents argue further that the Applicant, however, fails to
inform Court when she commenced
with the preparation of her claim
and/or when the necessary documents were submitted to the actuary in
order to prepare the actuarial
calculations. They argue that the
Applicant does not provide the required information in her replying
affidavit either save to
say that the First Respondent has at all
times been aware that the Applicant is awaiting her actuarial
calculation in order to
submit her claim.
[16]
From the affidavits by Respondents’ defences can be summarised
as follows:
16.1
The citation
of the Second Respondent as a party constitutes a misjoinder.
16.2
They further
contend that the application is not urgent, and that the Applicant
has
failed to demonstrate that she cannot attain substantial redress in
due course.
16.3
They also
argue that the relief sought by the Applicant is not for an interim
interdict
but is final in nature as the Applicant requires a final distribution
to made to herself and the minor child.
16.4
They also
contend that neither
Section 26(1A)
of the
Administration of Estates
Act
66 of 1965
“hereinafter Estates Act” nor the common law
entitle the Applicant to the relief applied for.
16.5
The
Respondents further contend that the Applicant should have joined the
creditors
of the deceased’s estate to the application.
16.6
Lastly, it is
stated that the First Respondent has reason to believe the
deceased’s
estate is, in fact, insolvent and in those circumstances, it is not
possible to make a maintenance payment to the
Applicant and minor
child.
Urgency
[17]
Before the hearing of the submissions on the merits the court dealt
with the issue of urgency
first. The First Respondent essentially
averred that the matter was not urgent and that the Applicant has
failed to demonstrate
that she could not obtain substantial redress
in due course. It is however not clear based on the papers why the
First Respondent
contends that the matter is not urgent.
[18]
On the other hand, it is clear from the uncontested evidence that the
Applicant is not in a position
to maintain herself and the child and
further that they are entitled to claim maintenance from the
deceased’s estate. It
was further conceded by the First
Respondent that it could take a long time before the estate can be
finalized.
[19]
Having regard in particular to the plight of the child and also
considering the fact that it
may take a substantially long time for
the estate to be finalized, I was satisfied that there is a need to
deal with this matter
urgently. The Applicant has persuaded the court
that she cannot obtain substantial redress in due course. I
accordingly ruled that
the holding in abeyance of the issue of
maintenance is potentially detrimental to the Applicant and the
child. I accordingly found
that the issue of maintenance, in
particular the maintenance of the minor child, is inherently urgent
and consequently proceeded
with the matter on the basis that it is
urgent.
[20]
Having made that ruling I will now deal with the various defences
raised by the Respondents.
However, before I deal with the
Respondents’ main defence that the application should be
dismissed on the basis that that
neither
Section 26(1A)
of the
Administration of Estates Act 66 of 1965
“hereinafter Estates
Act” nor the common law entitles the Applicant to the relief
sought, I will deal with the following
concomitant defences first.
Misjoinder
of Second Respondent
[21]
Regarding the citation of the Second Respondent as such, the
Respondents argue that this is a
misjoinder as the First Respondent
is the
executor
of the deceased’s estate and the Second
Respondent is only the First Respondent’s duly appointed agent.
The contention
by the Respondents is that as the agent of the First
Respondent the Second Respondent should not have been cited as a
party as
he can only act in accordance with the instructions provided
to him by the First Respondent as his principal. It was argued that
as a result no order can and should be granted against him.
[22]
The Applicant submitted that the citation of the Second Respondent is
not a misjoinder considering
that he is also involved in the
day-to-day administration of the deceased’s estate and that the
Applicant referred to direct
correspondence with the Second
Respondent in her application. The Applicant submitted that the
general rule is that any person
is a necessary party and should be
joined if such person has a direct and substantial interest in any
order the Court might make
or if such an order cannot be sustained or
carried into effect without prejudicing that party. The Applicant
submitted that the
Second Respondent has a substantial interest in
the matter. The Applicant’s counsel argued further that in the
circumstances,
the Applicant was not barred from joining the Second
Respondent and that his joinder does not in any event render the
application
defective, as the Court can still make an order solely
against the First Respondent only if it deems it appropriate.
[23]
I am in agreement with the submission by the Applicant’s
counsel in this regard. The joinder
of the Second Respondent does not
bar the matter from proceeding nor does it bar the Applicant from
obtaining the relief sought.
Given that the Applicant’s case is
based partly on her request made to the Second Respondent, I am of
the view that it was
not incorrect to cite him as a party. Even
though am in agreement that no order should be made against the
Second Respondent, he
however remains an interested party and his
citation as a party does not amount to a misjoinder. Therefore,
nothing turns on this
aspect and this defence ought to be dismissed.
Application
not for an interim interdict
[24]
I must state from the onset that nothing turns on the argument by the
First Respondent that the
application should not be granted as it is
not for an interim interdict but for final relief. This contention
ignores the fact
that the word ‘
interim’
is
capable of more than one meaning and it can mean either that the
relief sought is of a temporary nature or it is sought pending
the
finalisation of something. I see nothing wrong with the application
of the word interim in the context of this matter as it
clearly means
pending the finalization of the administration of the estate and the
concomitant determination by the executor of
the Applicant’s
preferent claim. Interim maintenance sounding in money is not unheard
of in an interim interdict. The mere
fact that the order sought is
for payment of money does not mean it cannot also be for an interim
interdict. The argument
by the Respondents in this regard
therefore also stands to fail.
Non-joinder
of creditors
[25]
Another contention raised by the Respondents is that the application
is defective as the Applicant
failed to join the creditors of the
estate in this application. The Applicant responded to this
contention by saying that she could
not join any creditors as she was
not aware of the identity of the creditors of the deceased’s
estate. It is common
cause that no claims were lodged against
the deceased’s estate by any creditors so far despite Section
29 publications. The
de facto
position is that up to this
point in time there are recorded creditors who can be joined as no
creditor has lodged any claim. In
the written heads of argument, the
Respondents’ counsel suggested that the Applicant was aware
that Kern is a creditor of
the estate and has a claim against the
deceased’s estate to the value of R1,600,000.00.
[26]
In her supplementary heads of argument, counsel for the Applicant
argued that on the facts, and
despite the fact that she had taken a
loan from Kern which was to be repaid by the estate, the fact remains
that up to this stage
Kern is not a creditor of the deceased’s
estate for the amount claimed. The Applicant’s counsel
therefore submitted
that this argument too should be dismissed. I
agree. While the Applicant may be aware that Kern has to repay the
loan she took
out, it is however nowhere stated by the Respondents
that Kern’s alleged indebtedness relates to the loan payments
that were
made to the Applicant. Instead their case is that the
deceased’s estate is allegedly indebted to Kern for expenses
incurred
by Kern in maintaining the assets of the estate and not
based on the loan. The fact that the applicant may have had knowledge
of
the indebtedness of the estate to Kern does not assist the
Respondents in this argument. The fact remains that there are no
creditors
so far. Likewise, the argument that the Applicant herself
is an example of an unregistered creditor does not take their case
any
further. In my judgment this defence of non-joiner of the
creditors also stands to fail and should be rejected. However, even
if
I was wrong on this aspect, I am nevertheless of the view that the
interim claim for maintenance ought not to prevent the Applicant
from
proceeding with her claim.
Solvency
of the Deceased’s estate
[27]
Another defence relied on by the Respondents is found in the
contention that there is great potential
for the deceased’s
estate to be insolvent and that as a result thereof no payment can be
made to the Applicant. In
this regard the First Respondent
contends that he and the Second Respondent must first be satisfied
about the solvency of the deceased’s
estate before an interim
maintenance payment can be considered.
[28]
In support of the argument of the alleged insolvency, the First
Respondent submitted
inter alia
that the amount of
R10,779.904.38 is due, owing and payable by the deceased’s
estate to Nkosi in terms of a suretyship agreement
signed by the
deceased. It was further submitted that the deceased’s estate
has assets in the total amount of R26,841,000.00
and liabilities in
the amount of R24,222,45.70, which liabilities do not include the
Applicant’s claim for maintenance or
claims which may be
forthcoming from SARS. The First Respondent further pointed out that
there are necessary payments to be made
by the deceased’s
estate which include an administrative fee in the amount of at least
R8,500.00, the executor’s fee
of R939,435.00, VAT in the amount
of R140,915.25 as well as estate agent commission, auctioneer’s
commission, insurance,
rates and taxes etc. The Respondents, however,
do not argue that the estate is insolvent but contend that there is a
possibility
that it may be insolvent.
[29]
The Applicant, however, contends that she is entitled to approach the
Court for the relief sought.
She pointed out that that the First
Respondent’s defence on the merits of the claim is that the
deceased’s estate is
believed to be insolvent and that any
payment would prejudice the creditors. The Applicant stressed that
the First Respondent purely
relies on hypothetical scenarios to
persuade the Court of a possibility of the estate becoming insolvent
and that this is not consistent
with the
de facto
position
that the deceased’s estate is indeed solvent and liquid.
[30]
The Applicant argues further that, in any event, even if the Court
accepts that the other liabilities
in JMK4 are in fact debts payable
by the deceased’s estate, however, upon a proper calculation,
there remains a substantial
surplus in the estate for the payment of
maintenance and there can therefore be no prejudice to any alleged
creditors as the surplus
is arrived at after taking into account the
alleged creditors.
[31]
The Applicant also contends further that from a proper calculation,
the total value of the assets
of the deceased’s estate is a lot
more and the total liabilities are less than what is put out by the
First Respondent. She
asserts therefore that the factual position is
that the deceased’s estate is much more solvent than what the
First Respondent
wants the Court to believe. The Applicant argues
that the First Respondent’s concerns regarding a possible
insolvency are
purely speculative as they are premised on the
supposition that maybe in future, a creditor might lodge a claim
against the estate.
[32]
Regarding the alleged indebtedness of the estate to Nkosi in the
amount of R10,779.904.38, the
Applicant maintains that this cannot be
included as a liability of the deceased’s estate as the
suretyship can only be considered
when same is actually called up by
Nkosi and not before. The Applicant contends that the calling
up of the suretyship is,
however, only one of the contractual
remedies open to Nkosi and, accordingly, it is unlikely that Nkosi
will become a creditor
of the deceased’s estate. Even if the
suretyship is called up by Nkosi, the argument continues, and a claim
is lodged against
the deceased’s estate, the indebted amount in
this respect is for far less than what the First Respondent contends,
and only
amounts to approximately R3,414,259.01.
[33]
The Applicant contends further that the First Respondent’s
contention that the deceased’s
estate has assets in the total
amount of R26,841,000.00 and liabilities in the amount of
R24,222,45.70, which liabilities exclude
the Applicant’s claim
for maintenance or claims forthcoming from SARS in also incorrect.
She argues that this is based on
incorrect calculations. The
Applicant argues that, for instance, in calculating the total value
of the assets of the deceased’s
estate, the First Respondent
states that the Ballito property is worth R9,100,000.00 whereas the
property is in the process of
being sold for R12,000,000.00. She
further contends that the First Respondent also left out the value of
the deceased’s shares
in Vital, the immovable properties
situated at 20 Cormorant Place and 4 Nicol Street and the deceased’s
life policies, which
have been paid, to the value of R13,680,000.00.
She argues therefore that these example demonstrate that the First
Respondent’s
calculations are incorrect and that the contention
that the estate may be insolvent should therefore also be dismissed.
[34]
As already stated in the preceding paragraphs, it is common cause
that to date hereof, the liquidation
and distribution account in
respect of the deceased’s estate has not laid open for
inspection as envisaged in Section 35(4)
of the Estates Act. It is
further common cause that up to the date of the hearing of this
matter no creditors have formally lodged
claims against the
deceased’s estate despite the publication on the notice
envisaged in Section 29(1) of the Estates Act.
It is also evident
form the evidence, as demonstrated by the Applicant, that the alleged
insolvency of the deceased’s estate
is based not only on
suppositions but the calculations of the assets and liabilities are
prima facie inaccurate. In the circumstances
I am therefore not
persuaded that First Respondent’s evidence has established that
the estate is insolvent and therefore
this defence cannot avail the
Respondents.
Common
cause issues and issues in dispute
[35]
I have already dealt with some of the issues which are common cause
and those in paragraph 34
and elsewhere and will therefore not repeat
them here. Regarding the issues in dispute it is, however, necessary
to mention the
issue not yet dealt with which is the Respondent’s
contention that the Applicant’s entitlement to bring the claim
for
maintenance against the estate. The Respondents are essentially
questioning the basis upon which the Applicant is claiming
maintenance
prior to the liquidation and distribution account having
lain open for inspection, and prior to the Applicant having submitted
a formal claim for maintenance against the deceased’s estate.
In this regard the Respondents point out that Section 26(1A)
of the
Estates Act is the only provision in the Estates Act dealing with the
payment of maintenance prior to the executor’s
account having
lain open for inspection and argue that the Applicant is not entitled
to proceed outside of the scope of the Estates
Act, in particular
section 26(1A).
Legal
principles and analysis
[36]
Section 2(1) of the MSS Act creates a right of the surviving spouse
to claim maintenance and
provides as follows:
(1)
If a marriage is dissolved by death after the commencement of this
Act the survivor shall have a claim against the estate of
the
deceased spouse for the provision of his reasonable maintenance needs
until his death or remarriage in so far as he is not
able to provide
therefor from his own means and earnings.”
On
the other hand, Section 2(3) of the MSS Act deal with the exercise of
this right provides as follows:
“
(3)
(a) The proof and disposal of a claim for maintenance of the survivor
shall, subject to paragraphs (b), (c) and (d), be dealt
with in
accordance with the provisions of the Administration of Estates Act,
1965 (Act No. 66 of 1965).”
Section
26(1A) of the Estates Act reads as follows:
“
(1A)
The executor may before the account has lain open for inspection in
terms of section 35 (4), with the consent of the Master
release such
amount of money and such property out of the estate as in the
executor's opinion are sufficient to provide for the
subsistence of
the deceased's family or household.”
[37]
The Respondents contend that from a plain reading of the provisions
of Section 26(1A) of the
Estates Act the executor has the discretion
to pay maintenance sufficient to provide for the subsistence of the
deceased’s
family or household prior to the account having lain
open for inspection. They point out further that any such payment can
only
be made with the consent of the Master who also has a
discretion. The Respondents’ argument, as I understand it, is
that
the Court cannot direct the First Respondent to make payment of
maintenance to the Applicant as that will be outside the ambit of
what is expressly provided for in the provisions of Section 26(1A) of
the Estates Act.
[38]
The Respondents further challenge the Applicant’s assertion
that the procedure provided
for in Sections 29, 32, 33 and 35 of the
Estates Act does not preclude a creditor from his common rights to
enforce his claim against
the deceased’s estate. The
Respondents’ assertion that the Applicant, as the surviving
spouse, has no remedy outside
what is provided for in the Estates Act
also appears to be based on the provisions of Sections 2(1) 7of the
MSS Act, and in particular
Section 2 (3) (a) which provides that “
The
proof and disposal of a claim for maintenance of the
survivor shall, subject to paragraphs (b), (c) and (d), be
dealt with
in accordance with the provisions of the Administration of Estates
Act, 1965 (Act No. 66 of 1965)
.”
[39]
The Respondents argue further that the right to be paid maintenance
prior to the account having
lain open for inspection is a specific
statutory remedy provided for in Section 26(1A) of the Estates Act
and rely in this contention
on the decision in
Nedbank Ltd v Steyn
and others
2016 (2) SA 416
(SCA) (
Steyn
) which they
contend also finds application in respect of the maintenance claim on
behalf of the minor child.
[40]
The Respondents are further asserting that insofar as the First
Respondent and the Master allegedly
failed to exercise their
discretions in favour of the Applicant, their alleged failures
constitute administrative actions for purposes
of the Promotion of
Administrative Justice Act, Act 3 of 2000 (“PAJA”) and
may be subjected to review in terms of the
provisions of PAJA. The
Respondents argue that for this reason the Applicant’s
criticism of the First Respondent’s
assessment of the
deceased’s estate and whether or not the deceased’s
estate may in fact, be insolvent, is immaterial.
[41]
The Applicant’s counsel however holds a different view on the
interpretation and understanding
of the principles laid down by the
courts, particularly in
Steyn.
She submitted that based on case
law, Section 26(1A) does not confer upon the First Respondent a
discretion as contended by the
First and Second Respondents. She
further argued that the requirement of consent from the Master does
not detract from the First
Respondent’s duty to alleviate
family hardship before his account has lain open for inspection and
that the Master’s
functions includes protecting the rights of
minor children.
[42]
In the absence of any prejudice to creditors, she argued further, the
Master would be constrained
to protect the interests of dependent
children. Counsel argued further that it is not exceptional for a
Court to exercise jurisdiction
over an executor and an estate in
order to compel an executor to provide maintenance as contemplated in
Section 26(1A) and that
this Court, as the upper guardian of minor
children, should view the First Respondent’s dereliction of
duty, in refusing
to come to the assistance of the minor child, in a
serious light and come to the assistance of the minor child.
[43]
The Applicant’s counsel referred
to
the matter of
Du
Toit NO v Thomas and Others
(22649/2014)
[2015] ZAWCHC 80
;
2016 (4) SA 571
(WCC) dealing with the review of a
maintenance order granted against the executor of the deceased’s
estate by a maintenance
Court following an application by the wife of
the deceased. The executor sought to review and set aside the
proceedings in the
maintenance court on the ground that the
maintenance court lacked the jurisdiction to make an order against
the deceased’s
estate. The Master was not joined to the
proceedings, nor was there any indication that he objected to the
orders made by
the maintenance court or the payments due in terms
thereof.
[44]
As is the case in the current matter, when the matter was argued, the
executor had not yet lodged
a liquidation and distribution account
with the Master. The executor’s contention was that an
interpretation of the Maintenance
Act which makes an executor liable
to maintain another person is inconsistent with the provisions of the
Estates Act and contrary
to the processes set out in the Estates Act
for establishing rejected claims, and the normal process of paying
out claims, only
after the account has lain open for inspection and
objections thereto have been dealt with and the consent of the Master
obtained
in terms of Section 26(1A) of the Act.
[45]
When the proceedings commenced the estate had R1,182,260.00 available
for distribution to the
heirs and this amount did not take into
account any maintenance claim by the minor child. However, the
capacity of the deceased’s
estate to pay maintenance at all was
in question because of a large potential claim by ABSA Bank.
[46]
In
Du Toit and Others, supra
, the Court, with reference to the
provisions of Section 26(1A), made the following relevant remarks at
paragraphs [21] and [22]:
Para
[21] “
I respectfully agree with the remark of Stretch J in
NB v Maintenance Officer, Butterworth and Others 2014 (6) SA
(116) ECM
, to the effect that section 26(1A) was specifically
designed to alleviate family hardship pending the winding up of the
estate”.
Para
[22] “
The use of the word ‘may’ in section
26(1A) is not intended to confer the executor with a discretion.
Instead, it suggests
that the section is intended to enable an
executor to do what he would not otherwise be authorised to do.”
[47]
The Court recognized that in terms of the Estates Act, maintenance
may be claimed from the executor,
first, before the executor’s
account lies open for inspection and that this power to release money
or property for the subsistence
of the deceased’s family is
expressed in the Estate Act anterior to and independent of the
sections which regulate the separate
and second process of winding up
the estate. It stated further that the executor may release money if
he is of the opinion that
there are sufficient funds for the
subsistence of the deceased’s family and household.
[48]
The court further stated that at the first stage, the executor
carries a responsibility to alleviate
hardship on the family for the
period before his account lies open for inspection and the
requirement of consent by the Master
does not detract from the above
conclusion as that such consent is meant to protect the executor from
personal liability should
he make a wrong distribution. It stated
further that the consent by the Master could only legitimately be
refused where the release
of estate money or property for maintenance
would prejudice creditors and that in the absence of such prejudice
the Master would
be constrained to protect the interests of the
dependent children and consent to the payment of maintenance. The
Court further
pointed out that the Master’s responsibility in
terms of the Estates Act came before the Maintenance Act and that the
framers
of the Estates Act therefore took this into account when the
Maintenance Act was enacted. It stated in this respect that “
It
follows that the Legislature must have intended the Maintenance Act
to provide a remedy against an executor who fails to carry
out
responsibility in terms of Section 26(1A).”
[49]
Regarding the question whether the executor could be prosecuted if
the Maintenance Court was
allowed to exercise jurisdiction over the
executor and the estate, the court stated the following:
“
The
Master can consent to the release of estate money and property for
maintenance purposes anterior to the winding up stage in
the
administration of an estate. The employment of prosecution of the
executor and execution over released money and property in
order to
compel an executor to provide maintenance, as contemplated in section
26(1A), is therefore not exceptional.”
[50]
The Court dismissed the review application with costs. The appeal to
the Supreme Court of Appeal
was dismissed with costs
de bonis
propriis
on the attorney client scale against the executor.
[51]
The
Butterworth
matter,
supra
, also involved the
provision of maintenance and the facts are briefly as follows: The
applicant, the mother of four minor children,
unsuccessfully
requested the executor to pay maintenance for the children from the
estate. After the maintenance officer refused
to investigate the
maintenance claim that she lodged with the maintenance officer in
terms of Section 6(1)(a) of the Maintenance
Act, the applicant
approached the high court to review and set aside the decision.
The Court
per Stretch J stated
inter alia
that “
I have no doubt that if she [the
Applicant] had made her best endeavours in terms of the Act to secure
maintenance for the children
and the executor did not come to her
assistance, this Court as the upper guardian of minor children would
have viewed such a dereliction
of duties in a very serious light
indeed, and would have come to the assistance of these children much
quicker…”
[52]
The Applicant’s counsel argued that although these matters
referred to above dealt with
the provisions of the Maintenance Act
and proceedings in the Maintenance Court, the decisions, however,
demonstrates that it is
open for the Applicant to approach the Court
for assistance in circumstances where the Executor (First Respondent)
fails to come
to the claimant’s and the minor child’s
assistance through the provisions of Section 26(1A).
[53]
I agree with the submission by the Applicant’s counsel. As
stated in the
Butterworth
,
supra
, an applicant is
entitled to approach the High Court as the upper guardian of minor
children where the executor fails to exercise
his/her discretion. As
in the
Butterworth
case above, the Applicant
in casu
attempted to secure maintenance for her and the minor child in terms
of the Estates Act when she approached the Second Respondent
who
unfortunately did not come to her assistance. In such instances this
court cannot as the upper guardian of minor children fold
its arms.
It is obliged to intervene and come to the assistance of the minor
child as the upper guardian of all minor children.
[54]
The Respondents specifically relied on the
Steyn
matter,
supra,
in support of their contention that the Applicant is
precluded from bringing her action based on common law. It is
therefore necessary
to analyse this decision and to also consider the
matter of
Nedbank Ltd v Samsodien NO
2012 (5) SA 642
(GSJ)
(
Samsodien NO
), which is not only relevant, but was also
referred to by the SCA in
Steyn’s
matter
.
[55]
The issue before court in the
Steyn
matter was whether the institution of a common law action against a
deceased estate is ousted by the provisions of the Estates
Act which
provides a procedure for the recovery of a claim from a deceased
estate. Nedbank was one of the applicants in the case
of
Standard
Bank of South Africa Ltd and Others v Ndlovu and Others
(GP)
(unreported case no 33265/13, 24-10-2013). The Gauteng Division of
the High Court in Pretoria, dismissed the 17 default
judgment
applications, some of which were against the executors of estates, on
the basis of non-compliance with the provisions
of Sections 29, 32,
33 and 35 of the Estates Act. The refusal to grant the judgments
meant that the plaintiffs could not claim
through the action
procedure and their only remedy according to the Court
a
quo
was to lodge a claim with the executors in accordance with the
Estates Act. The creditors therefore had to institute proceedings
afresh. However, Nedbank, the appellant in
Steyn
,
aggrieved by this decision, lodged an appeal to the SCA with the
leave of court
a
quo.
[56]
The SCA remarked that the issue before the court was in fact not
novel, having been considered
by other courts before, albeit under
the provisions of the previous Administration of Estates Act 24 of
1913 (the 1913 Act), which
the Court noted, contains substantially
similar provisions as the current Estates Act. One of these decisions
under the 1913 Act
referred to was
Estate Stanford v Kruger
1942
TPD 243
, which held that there was nothing under the old Act to
indicate that the legislature intended to deprive a creditor of their
common
law right to sue the deceased estate.
[57]
In making two fundamental rulings, the SCA in
Steyn
cited
the judgment of Watermeyer AJ in
Davids v Estate Hall
1956
(1) SA 774
(C) in which it was decided that the 1913 Act had not
created the right which it sought to enforce and therefore the remedy
supplied
by it could not be applied to the exclusion of all other
legal remedies. The executors in
Davids
, had sought to
rely on an established legal principle referred to in
Madrassa
Anjuman Islamia v Johannesburg Municipality
1917 AD 718
,
providing that ‘
where a statute creates a right or an
obligation and gives a special and particular remedy for enforcing
it, the remedy provided
by the statute must be followed and it is not
competent to proceed by action at common law.’
The
Court,
(
Watermeyer AJ), found that the right in question in
that matter emanated from a contract and that therefore, under the
common law,
Davids as the creditor, was entitled to enforce it by way
of action.
[58]
The Supreme Court of Appeal in
Steyn
concluded that the principle in the
Madrassa
Anjuman Islamia
,
supra,
found no
application in the matter and
accordingly held that
the Estates Act does not preclude a creditor from instituting an
action against the deceased estate based
on common law. It further
held that even if the application of the principle in
Madrassa
Anjuman Islamia
were
to be extended to cases where the statute does not itself create the
right/obligation, then it must be clear that the legislature
intended
that the remedy provided by the Act must be the only remedy
available, to the exclusion of all others. In this regard
the court
cited Tindall J in
Mhlongo
v McDonald
1940
AD 299
at 310, which articulated this principle as follows: ‘
If
the legislature’s intention be to encroach on existing rights
of persons it is expected that it will manifest it plainly,
if not in
express words, at least by clear implication and beyond reasonable
doubt.’
[59]
The Supreme Court of Appeal in
Steyn
went on to
state that the decision
a
quo
was in
conflict with the ratio decidendi in
Samsodien
NO.
to the
effect that that the procedure laid down in the Act does not preclude
the plaintiff from instituting an action in common
law against the
estate. In
Samsodien
NO
the
plaintiff had instituted action against a deceased estate represented
by the defendant as the executor. The bank averred that
it was
entitled, at common law, to enforce its claim prior to the
confirmation of the executor’s account. The question for
determination by the Court was also whether the claim procedure
provided for in Sections 29, 32, 33 and 35 of the Estates Act
precludes the creditor from its common law rights to enforce its
claim against the deceased estate. The Court referred to the findings
in,
inter
alia,
Estate
Stanford, and Estate Hall,
and
Benade,
supra,
and
noted that they are all in favour of allowing the creditor to avail
itself of the common law enforcement procedures.
[60]
Lastly, the Benade matter incidentally also involved the Executor of
an estate where the applicant,
Benade, did not lodge a claim in
response to the executor’s notice in the Government Gazette but
instituted action for the
recovery of his claim and obtained judgment
in the Magistrate’s Court on the basis of which he then sought
to sequestrate
the deceased estate. The executor contended that the
Magistrate’s Court judgment was invalid since Benade did follow
the
claims procedure laid down in the old Act which he was bound to.
The court followed
Stanford Estate
and
Davids
cases,
supra,
and rejected the contention by the executor as
unsustainable.
Conclusion
[61]
Based on the discussed above I find that Section 26(1A) does not
confer discretion on the executor
but enables an executor to do what
he would not otherwise be authorised to do. Furthermore,
notwithstanding the requirement of
consent by the master, the
executor is still responsible for alleviating the family hardship
even before estate account has lain
for inspection. I therefore find
that the Applicant is entitled to bring this claim of maintenance
against the estate. The claim
is not conflict with Section 26(1A) of
the Estates Act and the court can therefore compel the executor to
provide the maintenance.
[62]
Lastly, in the light of the above, the Respondents’ assertion
that the alleged failure
by the executor and the Master exercise
their discretions in favour of the Applicant constitute
administrative actions for purposes
of the Promotion of
Administrative Justice Act, Act 3 of 2000 (“PAJA”) and
should therefore be subjected to review
in terms of the provisions of
PAJA, cannot stand. The Applicant does not have to take that route as
it is clear from case law that
she can enforce her claims against the
estate based on her common law rights.
[63]
I therefore find that the common law rights of the Applicant to
enforce the claims against deceased
estate have not been ousted by
the provisions of the Estate Act and consequently the Applicant is
entitled to approach Court for
relief in the circumstances. The
Respondents’ defence in this regard therefore also must fail. I
am accordingly satisfied
that a proper case has been made out and the
Applicant is entitled to interim relief sought, albeit with slightly
different orders
form the orders sought in the notice of motion.
Amount
to be paid
[64]
The outstanding issue is theferefore the determination of the
contribution to be paid as maintenance
for the Applicant and the
minor child. The Applicant stated that taking into account their
comfortable standard of living she and
Anke were accustomed to before
the death of her husband, which was maintained even after his death
through the contributions by
Kern, their monthly living expenses
amount to R85 000.00. She records that after deducting her
salary of R16 500.00,
this leaves her with a shortfall of
R69 000.00 per month. She recorded their living monthly expenses
as follows:
Item
Expenditure
Groceries
and dining
R20 000.00
(R15 000.00)
Cleaning
services R3 000.00
Toiletries R1 500.00
Clothing
(Winter and
summer)
R6 500.00 (R4 500.00)
School
Uniforms and Related
clothing R1 500.00
Personal
Care
R5 000.00
(R4000.00)
School
Fess and Educational
Expenses R10 000.00
Archery
and Other Extra Mural
Activities R10 000.00
Medical
Aid and Additional Medical Aid
Expenses
R9 000.00
Insurance
Policies and
Annuities
R12 500.00
Entertainment
and
Recreational R250.00
Pocket
Money R2 500.00
Religious
Contributions R700.00
Reading
Material
R700.00
Pets R3
000.00
Bank
Charges
R200.00
TOTAL
R85 850.00
MINUS
INCOME
R16 500.00
SHORTFALL
R69 350.00
[65]
In determining the amount of maintenance it has to be remembered that
the interim maintenance
in casu
is sought against a deceased
estate comprising of assets and liabilities and no income. Although
the Applicant states that she
was receiving R65 000.00 per month
from Kern as a loan with the knowledge of the Trustees and the First
Respondent, this is
disputed by the First Respondent. She, however,
also states that she paid herself this amount. There is no evidence
as to how the
R65 000.00 was arrived at. Although it has to be
considered, this amount is, however, not a reliable yardstick in the
determination
of the maintenance contribution to be made.
[66]
In addition, it needs to be mentioned that apart from the groceries
and the monthly maintenance
for the pets, the Respondents did not
raise major issues with the Applicant’s listed expenses and
merely noted her averments.
Their defences were in the main based on
what is discussed in the preceding paragraphs. However, during the
course of the hearing
the Applicant’s counsel correctly
conceded that some of the above expenses could be reduced to the
amounts indicated in the
brackets above, which reductions bring the
total expenses to R77 850.00. Therefore, based on this figure,
the total shortfall
should be approximately R61 350.00.
[67]
However, after considering these expenses, I have, nevertheless found
justification for the reduction
of some of the expenses. I am not
persuaded that the suggested reduction of the groceries expense to
R15 000 is reasonable
for a mother and the minor child only.
Even if it is accepted that their standard of living was very high,
it is also necessary
that, given their changed circumstances, some
lifestyle adjustments have to be made pending the finalization of the
estate. I am
therefore of the view that R12 000.00 per month
would be a reasonable amount for groceries and dining. The amount of
R3 000.00
per month for the care of the pets can also be trimmed
and it is therefore reduced to R1 500.00 per month. Taking into
account
these further reductions the total shortfall is brought down
to R56 850.00 per month and I consider this amount to be a
reasonable
interim maintenance and intend awarding same as
maintenance contribution by the estate in favour of the Applicant and
minor child.
[68]
Finally, as already mentioned above, although the Applicant sought an
order against both the
First and Second Respondent, I conclude that
an order against only the First Respondent will suffice.
Consequently, the order below
is made only against the First
Respondent as the executor of the estate.
Order
[69]
In the result it is ordered that:
1.
Pending the finalization of the administration of the estate of the
late Casper
Jeremiah Pretorius (Identity Number 700402 5013 082)
and/or financial assistance from Kern Technologies (Pty) Ltd towards
the Applicant
in terms of Section 45 of the Companies Act 71 of 2008
(whichever occurs first), the First Respondent is ordered to make
maintenance
payments in the amount of R56 850.00 per month from
the deceased’s estate, (Estate number 006238/2021), towards the
Applicant and the minor child Anke Pretorius, effective from the date
of this order;
2.
The first payment to be made within 14 days of the date of this order
and the
subsequent payments thereafter to be made on or before the
7
th
day of each succeeding month;
3.
The Applicant is ordered
to file her claim against the estate within three (3) months
of the
date of this order;
4.
The costs of the
application to be paid out of the estate.
MBG
LANGA
JUDGE
OF THE HIGH COURT
MIDDELBURG
LOCAL SEAT
Appearances
:
For
the Applicant:
Advocate L. Louw, Circle Chambers Advocates,
Pretoria.
Instructed
by:
Bezuidenhout
Incorporated, Pretoria.
For
the Respondent:
Advocate D Prinsloo, Pretoria
Instructed:
Krugel
Heinsen Incorporated, Pretoria.
This
judgment was handed down electronically by circulation to the
parties’ representatives by email. The date for hand-down
is
deemed to be the 14 July 2022 at 10h00.