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[2022] ZANCHC 3
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Strydom NO v Kruger and Another (872/2005) [2022] ZANCHC 3 (21 January 2022)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No:
872/2005
Heard:
15/10/2021
Delivered:
21/01/2022
Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Magistrates: YES / NO
Circulate
to Regional Magistrates: YES / NO
In
the matter between:
MAGDALEEN
STRYDOM NO
APPLICANT
and
AMANDA
KRUGER
1
ST
RESPONDENT
THE
MASTER OF THE HIGH COURT
2
ND
RESPONDENT
JUDGMENT
NOBANDA
AJ
Introduction
[1]
The applicant is the executrix in the deceased estate of the late
Roberto Nel (the
deceased) applying for the rescission of the Writ of
Execution (the Writ) issued against the deceased estate on 17 April
2021 for
payment of arrear maintenance of the deceased's then minor
child (M[....]). The applicant further seeks an order interdicting
the
first respondent from taking any further steps in relation to the
execution against the deceased estate until such time as the
liquidation and distribution account has been drawn up, completed and
approved by the second respondent. No order is sought against
the
second respondent.
Background
facts
[2]
The deceased and the first respondent were divorced on 29 June 2005.
A divorce incorporating
the settlement agreement between the parties
was granted by the Court. Clause 3 of the settlement agreement dealt
with the maintenance
of M[....]. To that end, clause 3 as translated
provided:
"3.1. The
Defendant undertakes to pay the amount of R500.00 per month to the
Plaintiff for the maintenance of the minor
child and to make/effect
the first payment on or before the first day of every month. The
maintenance amount shall yearly escalate
at a rate equivalent to the
Consumer Price Index with the first escalation on 1 November 2005.
3.2. The
Defendant shall further be responsible for 2/3 of all school
expenses/liabilities of the minor child.
3.3. The
Defendant shall retain the minor child on his hospital plan for major
medical expenses and all other medical
expenses shall, equally, be
paid by the Plaintiff and Defendant."
[3]
The deceased passed away on 7 May 2014. Upon his death, the first
respondent lodged
a claim of arrear maintenance on behalf of M[....]
against the deceased estate. The applicant rejected the claim.
Subsequently,
the applicant applied for a declaratory order
[1]
confirming that decision. In the alternative, the applicant sought
the
quantum
of the claim to be determined. The first respondent opposed the
application and brought a counter-application, seeking an order
compelling the applicant to accept the claim with adjustments,
alternatively, for the court to determine the amount of
the claim.
[4]
After much deliberation on the issues not relevant to this
application, Lever AJ held
that the arrear maintenance of M[....]
must be paid out by the deceased estate on the basis set out in
prayer 3 of the divorce
order and the associated deed of settlement.
To that end,
Lever AJ
granted the order on 4 December 2020 in
the following terms:
“
1)
The first respondent can recover arrear maintenance from the
applicant in her position as executrix of
the estate of the late
Roberto Nel.
2)
That such arrear maintenance is to be calculated in accordance with
prayer 3 of the court order
issued on the 29 June 2005 under case
number 872/05…
3)
That where appropriate such claims for arrear maintenance will be
supported by appropriate documentary
proof relating to such claim/s.
4)
…”
[5]
Subsequent thereto, numerous correspondence was exchanged between the
parties’
attorneys wherein documents and calculations to
support first respondent's claim were submitted. The applicant's
attorney sought
proof in respect of school fees paid by the first
respondent prior to the deceased estate reimbursing her for those
expenses.
[6]
Following extensive negotiations between the parties’ attorneys
and on 16 March
2020 the applicant refused to pay the first
respondent’s claim, reiterating that the estate requires proof
of arrear maintenance
as well as expenses incurred by the first
respondent in the form of vouchers and proof of payment.
[7]
As a result, on 7 April 2021, the first respondent applied for a Writ
of Execution
(the Writ) in the amount of R183,950.79 against the
deceased estate for M[....]'s general arrear maintenance and school
fees. The
Writ was served on the applicant's attorneys on 28 April
2021. The Writ amount was subsequently amended to R172, 517.08 on 11
May
2021 after the first respondent filed an affidavit reducing the
general arrear maintenance calculations after M[....] attained the
age of majority in 2020. The Writ led to the present application.
Applicable
legal principles
[8]
The general principle is that a court will set aside a Writ of
Execution if:
(i)
the writ does not conform with the
judgement which warrants its issue;
(ii)
the judgement is not definite and certain;
(iii)
the
causa
for the judgement has fallen away.
[2]
[9]
The applicant's grounds for the setting aside of the Writ can be
summarised as follows:
9.1
there is no proper quantification and proof provided by the first
respondent for the claim;
9.2
there is a dispute as to the calculation or quantification of the
amounts claimed;
9.3 the
liquidation and distribution account has not been duly considered and
approved by the second respondent.
9.4 the
actuary has not been appointed for a proper quantification of the
claim by the first respondent.
[10]
During argument, Counsel for the applicant Mr Olivier abandoned the
applicant's heads of argument.
Mr Olivier conceded that the ground
raised by the applicant that she is unable to pay arrear maintenance
until the liquidation
and distribution account has been approved by
the second respondent is unfounded in law. Similarly, Mr Olivier
conceded that the
general arrear maintenance claimed in the Writ as
amended was payable and was actually paid by the applicant. What the
applicant
is disputing is the claim for school expenses claimed by
the first respondent.
[11]
Mr Olivier contended that in terms of Lever AJ’s Order, not
only should the first respondent
provide documentary proof of those
expenses but also, proof that she ‘
personally’
paid the amounts claimed in order to be ‘
reimbursed’
for
those
"out
of pocket"
expenses.
Mr Olivier relied on the cases of
Africa
[3]
and
Butchart
[4]
for his contention. He argued that it is not disputed that M[....]
attended those schools for which the documentary proof was submitted
by the first respondent. However the documentary proof was not
sufficient evidence. The first respondent has to first prove that
she
‘
personally’
paid those amounts to be reimbursed the 66.6% of the amounts paid in
accordance with the divorce court order.
[12]
Mr Van Niekerk SC on behalf of the first respondent disputed the
applicant's contention on the
basis that nowhere in Lever AJ’s
judgment is it stated that the first respondent has to prove that she
personally paid the
school expenses neither do any of the two cases
relied upon by the applicant's counsel require such.
[13]
Mr Van Niekerk argued that Order 3 of Lever AJ’s judgment only
requires documentary proof
relating to such claims to be provided and
the first respondent has provided such proof when obtaining the Writ.
That, in any event,
the first respondent had indicated in a letter to
the applicant’s attorneys attached to her answering affidavit
that the
payment was made by her erstwhile husband, as a loan to her.
Furthermore, that although initially the applicant was disputing the
first respondent’s claim as a whole, the applicant subsequently
relented and eventually paid part of the amount claimed in
the Writ,
to wit, general arrear maintenance. Accordingly, Mr Van Niekerk
submitted, there is no legal basis provided by the applicant
for the
Writ to be rescinded. He contended that for the Writ to be rescinded,
the applicant must show that the issuing of the Writ
was not
competent in law.
[14]
Mr Van Niekerk submitted that the Writ was validly obtained in that
the first respondent sets
out the basis for the amount claimed in the
affidavit for the Writ. That in terms of paragraph 3.2 of the divorce
court order,
the deceased was liable for 66.6% of M[....]'s
scholastic expenses. The first respondent attached proof of those
expenses for the
2010 to 2017 and 2018 to 2020 periods. In addition,
the first respondent provided the basis and calculations for the
general arrears
maintenance. The Writ was issued on that basis.
[15]
With regard to the interdict, Mr Van Niekerk submitted that the
applicant has failed to show
any basis for the relief sought. He
argued that the applicant came to Court contending that the Writ was
not competent in law.
However, the applicant now concedes that she
has a duty to pay part of the amount claimed in the Writ which amount
the applicant
has subsequently paid.
Issues
to be determined
[16]
The issue to be determined is whether the Writ issued is competent in
law. One of the grounds
averred by the applicant implies that the
amount claimed by the first respondent for arrear school fees cannot
be easily ascertained.
[18]
Lever AJ’s Order required the first respondent to provide
documentary proof in the form
of vouchers for
inter
alia
school expenses and related payments
[5]
.
As submitted by Mr Van Niekerk, the first respondent submitted the
documentary proof required. The documents confirmed that those
fees
were paid in full. The Writ for those expenses was issued on that
basis.
[19]
In
Butchart,
the Court held that “
a
writ may be validly issued based on an ‘expenses clause’
contained in a maintenance order on condition that the amount
is
easily ascertainable and is ascertained in an affidavit filed on
behalf of the judgment creditor.
[6]
”
[20]
Essentially following
Butchart (supra)
, the requirements to
issue a writ for these types of expenses are:
20.1 is the amount
claimed by the judgment creditor an ‘
expense contained in a
maintenance order
;
20.2 is the amount
easily ascertainable;
20.3 is the amount
ascertained in an affidavit filed to obtain the writ.
[21]
Unquestionably school fees are ‘expenses’ contained in
clause 3.2 of the settlement
agreement relating to the maintenance of
M[....] which were made an order of court. The amount claimed by the
first respondent
is easily ascertainable viz 66.6% of all school fees
contained in the attached documentary proof from the various schools
and that
amount was ascertained in the affidavit filed by the first
respondent to obtain the Writ. Accordingly, the applicant’s
reliance
on this ground is unsustainable.
[22]
The ground that the claim has not been properly quantified and
verified by an actuary was not
pursued by Mr Olivier and correctly
so, as it has no basis in law. Similarly and correctly so, Mr Olivier
also abandoned the ground
that the claim could not be paid until the
liquidation and distribution account has been approved by the second
respondent as having
no basis in law.
[23]
As indicated above, Mr Olivier submitted that it is not disputed that
M[....] attended those
schools. The contention is that the first
respondent has to prove that she personally paid the school fees for
her to be reimbursed
for that amount. I agree with Mr Olivier that
what the first respondent is claiming is ‘
reimbursement’
as the fees were paid in full, according to the documentary proof
submitted by the first respondent for issuing the Writ. The deceased
was liable for 66.6% of those expenses. Accordingly,
Butchart
[7]
(supra) and Africa
[8]
(supra)
support Mr Olivier’s contention. The
Oxford
English Dictionary
states that “
reimburse”
means ‘
repay
money to a person who has spent or lost it’
and ‘
reimbursement’
has a similar meaning
.
[23]
The issue then is whether the Writ is not competent in law if it was
issued for ‘
reimbursement’
of those expenses
incurred by the judgment creditor? On the contrary,
Butchart
relied upon by the applicant support first respondent’s
claim that a writ can issue by a judgment creditor for reimbursement
of the expenses incurred under the maintenance order.
[24]
In
Butchart
, the respondent had applied for a writ to recover
medical expenses incurred for her and one of the minor children for
which the
appellant was liable in terms of a divorce maintenance
order. Although the argument raised therein by the appellant that the
order
implied that the appellant make payment to third parties and
not the respondent herself, which is not the applicant’s
contention
in
casu
, the principle enunciated there is that the
judgment creditor may issue a writ to recover amounts expended by her
or him from the
judgment debtor in terms of an ‘
expenses
clause’
contained in a maintenance order provided the
amount is easily ascertainable.
[25]
In my view, what could defeat the first respondent’s claim, and
accordingly the Writ issued,
would be allegations and proof by the
applicant that the amount claimed by the first respondent was either
not payable or the amount
was already paid by the
deceased/applicant
[9]
. In such
circumstances, the Writ would not be competent in law in that the
‘
causa’
for the Writ would have fallen away
[10]
.
That however, is not the applicant’s case. All that the
applicant is alleging is that the first respondent should prove
that
she personally paid the school fees.
[26]
The issue of who paid the fees is irrelevant, so long as it is not
alleged that the deceased
(or his representative), who had an
obligation in terms of the divorce court order to pay those expenses,
paid them. Only under
the circumstances alluded to above would the
Writ not have been competent in law to issue, and accordingly liable
to be set aside.
The applicant’s contention for the setting
aside of the writ on this ground is therefore misconceived. In any
event, as submitted
by Mr Van Niekerk, first respondent avers that
she paid some of the school fees while other fees/expenses were paid
by her erstwhile
husband as a loan to her.
[27]
The applicant conceded that what she seeks is a final relief in
motion proceedings. To that end,
the words of Corbett JA, in
Plascon
Evans
[11]
find application where he stated:
‘…
,
the affidavits reveal certain disputes of fact. The appellant
nevertheless sought a final interdict, together with ancillary
relief, on the papers and without resort to oral evidence. In such a
case the general rule was stated by Van Wyk J (with whom De
Villiers
JP and Rosenow J concurred) in Stellenbosch Farmers’ Winery Ltd
v Stellenvale Winery (Pty) Ltd
1957 (4) SA 234
(C) at 235E-G, to be:
“…
where
there is a dispute as to the facts a final interdict should only be
granted in notice of motion proceedings if the facts as
stated by the
respondents together with the admitted facts in the applicant's
affidavits justify such an order…
Where
it is clear that facts, though not formally admitted, cannot be
denied, they must be regarded as admitted
.”’
(emphasis provided)
[28]
As indicated above, there is no real or material dispute of facts
between the parties. The applicant
does not dispute that the school
fees were paid. The only issue, not even a dispute, raised by the
applicant is that the first
respondent must first prove that she
personally paid the schools expenses claimed. The first respondent
alleges that she paid them.
As such, the first respondent’s
version has to be accepted.
[29]
In any event, on the applicant’s own version, she has conceded
that part of the amount
claimed in the Writ, relating to arrear
general maintenance has been paid. As such, the first respondent was
entitled to issue
the Writ, as submitted by Mr Van Niekerk. The Court
in
Du
Preez v Du Preez,
[12]
cited with approval the decision in
Perelson
v Druain,
1910 TPD 458
that ‘
a
writ of execution is not bad merely because it includes an amount in
respect of which it is not competent to issue a writ, and
provided
that the writ is competent for part of the amount in respect of which
it is issued it cannot be set aside
.
Accordingly, the applicant’s claim ought to fail.
[30]
With regard to an order interdicting the first respondent from taking
any further steps in executing
against the deceased estate until the
liquidation and distribution account has been finalised and approved
by the second respondent,
Mr Olivier has already conceded that the
ground has no basis in law. As such, the applicant has failed to make
out a case for the
order sought. Similarly, this claim too ought to
fail.
Costs
[31]
Counsel for the first respondent Mr Van Niekerk argued that
applicant’s attorney, Mr Cilliers,
should be put on terms on
why he should not be ordered to pay costs
de bonis propiis
on
the basis that huge amounts of costs could have been avoided had the
applicant complied with the provisions of Rule 41A (2)
(a) of the
Uniform Rules (the Rule).
[32]
I raised this issue with the applicant’s Counsel, Mr Olivier,
on the reason why the Rule
was not complied with, particularly on the
facts of this case. As indicated above, there was no real dispute
raised by the applicant
in the papers. This matter could have been
dealt with in mediation and could have saved not only costs but the
Court’s time.
As indicated to both Counsel, the Rule was meant
to deal with cases such as the one before Court. In my view, had the
applicant
complied with the provisions of this Rule, the matter would
have been long resolved.
[33]
This Rule is made not only to save parties from paying exorbitant
costs usually associated with
litigation but more so, in my view, to
relieve the court to deal with matters that cannot be easily resolved
by any other means
other than the court. For these reasons, in my
opinion, the courts should be more proactive in ensuring strict
compliance with
this Rule.
[34]
Mr Olivier was not able to address me on this issue save to argue
that the first respondent should
have filed an ‘irregular step
application’. That, however, does not assist the applicant, as
the Rule clearly requires
every applicant/plaintiff to comply with it
when instituting any action/application proceedings.
[35]
On the facts of this case, I agree with Mr Van Niekerk that a huge
amount of costs (including
the Court’s time), would have been
saved, had the applicant, through her attorney, complied with the
Rule.
[36]
In the alternative to costs
de bonis propiis,
Mr Van Niekerk
argued that costs on attorney and client scale be awarded
against the applicant because of her
mala fides
. Mr Van
Niekerk submitted that there was no
mala fides
on the part of
the first respondent as averred by the applicant. He argued that all
that the first respondent did was to give effect
to Lever AJ’s
judgment. On the other hand, the applicant was the one with
mala
fides
as this matter could have been long resolved had she
co-operated, as evidenced by the correspondence sent to her attorney.
The
first respondent, through her attorneys, has been trying to
resolve the matter after Lever AJ’s judgment from mid-February
2021 to no avail. Some of the first respondent’s letters were
not even responded to at all until 16 March 2021. As evidenced
by
that letter, the letter addresses issues raised in the first
respondent’s letters of 17 February, 4 March, 8 March and
11
March 2021.
[37]
Furthermore, as alluded to hereinbefore, the applicant does
not
raise any real or
material dispute in her papers, notwithstanding that she brought the
application. The issues raised by the applicant
on the reasons why
she refused to entertain and pay the first respondent’s claim
were mostly abandoned. In addition, it should
also be borne in mind
that by the time the matter was heard, the applicant had also paid
part of the amount claimed in the Writ,
which she was initially still
reluctant to pay, despite Lever AJ’s judgment that the deceased
estate was liable to pay. I
can go on and on but it is not necessary
as the facts speak for themselves.
[38]
Without making any findings on the
mala fides
or otherwise of
the applicant’s conduct, the conduct of the applicant and her
attorney as indicated above, leaves much to
be desired. For the sake
of bringing this matter to finality, I am reluctant to grant the
initial order suggested by Mr Van Niekerk,
lest it causes unnecessary
delay in finalising the matter to the prejudice of the first
respondent.
[39]
In the light thereof, I make the following order:
a.
The application is dismissed;
b.
The applicant is ordered to pay the first
respondent’s costs on an attorney and client scale.
P.L
NOBANDA
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the applicant
:
Adv J Olivier
Applicant’s
Attorneys
:
Cilliers
& Associates Attorneys
Suite 11, Diaz Office
Park
Beach Boulevard West,
Diaz Beach
Mossel Bay
6500
Tel: (044) 072-0020
Fax: (044) 692-0594
Email:
johan@c-law.co.za
;
admin@c-law.co.za
Ref: J CILLIERS/MAT157
Counsel
for the 1
st
respondent
:
Adv J G Van Niekerk SC
1
st
Respondent’s Attorneys
:
Engelsman, Magabane Inc
9 Bishops Avenue, Labram
Kimberley
8301
Tel: (063) 832-8134
Fax: (063) 832-2362
Email:
annelouise@engelsman.co.za
Ref:
KRU101/0001/F.ENGELBRECHT/ms
[1]
Case
No.68/2019
[2]
LAWSA
3 (1) 351
[3]
Africa
v Africa 1985 (1) SA 792 (SWA)
[4]
Butchart
v Butchart 1997 (4) SA 108 (W)
[5]
Ibid
[6]
At
p. 115G
[7]
At
p. 114F-G and p.115F
[8]
At
p. 794D
[9]
Africa
(supra) at p.794E-F
[10]
Bekker
NO v Total SA (Pty) Ltd
1990 (3) SA 159
(T) at 174I; Ras v Sand
River Citrus Estates (Pty) Ltd
1972 SA 504
(T)
[11]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at
634E-F
[12]
1977
(2) SA 400
(C) at 403E-G