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[2022] ZAECMKHC 92
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Dyibishe N.O. v Shenxane and Others (3443/2021) [2022] ZAECMKHC 92 (1 November 2022)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO. 3443/2021
In
the matter between:
NTOMBOXOLO
DYIBISHE N.O.
Plaintiff
and
NONKULELEKO
SHENXANE
First Defendant
MAKHAYA
XHALABILE
Second Defendant
NOMATHAMSANQA
DYIBISHE
Third Defendant
JUDGMENT
RUGUNANAN
J
[1]
These are exception
proceedings at the instance of the first defendant.
[2]
The parties are
conveniently referred to as in the main action in which the
plaintiff, in her capacity as executrix of the estate
of the late
Mxolisi Joseph Dyibishe, has suited the aforenamed defendants.
[3]
The particulars of
claim contain the following material facts:
‘
5.
The deceased is the owner of the immovable property situated at
[....] R[....] Road, Grahamstown,
also known as Erf [....], Rhini,
Makana Municipality, which he held through the third defendant, his
nominee.
6.
The property exists, is clearly identifiable and has not been
destroyed or consumed.
7.
The first and second defendants are in unlawful possession
alternatively detention of the
property.’
[4]
The plaintiff’s
claim, essentially against the first and second defendants, is for
relief formulated as follows:
‘
1.
It is declared that the deceased . . . is the owner of the immovable
property… which he
held through the third defendant, his
nominee;
2.
The first and second defendants are evicted from the property;
3.
The first and second defendants are ordered to have the property
transferred to the name
of the plaintiff within 60 days from the date
of this order.’
[5]
The claims derive from two causes of
action, namely: (i) a declaration of ownership, and (ii) an order for
eviction.
The issues
[6]
The
grounds of excipiability are that the particulars of claim do not
sustain these causes of action and are vague and embarrassing.
A
pleading may be vague and embarrassing due to lack of intelligibility
in the formulation of the cause of action. Where the formulation
of a
cause of action raises an issue with its legal validity, a court is
duty bound to dispose of the matter if there is a point
of law to be
decided.
[1]
[7]
An
exception is a legal objection to an opponent’s pleading and
complains of a defect inherent in the pleading. A convenient
starting
point commences with an acceptance that the facts stated in the
pleading are correct.
[2]
Put
another way, no facts stated outside those mentioned in the pleading
may be adduced by either party nor can reference be made
to any other
document.
[3]
The exception may
thus only be taken if the defect against which objection is taken
appears
ex
facie
the pleading itself.
[8]
The relief directed at declaring the
deceased’s ownership of the property and for securing its
transfer into the name of the
plaintiff requires comment on what a
deceased estate is, and exactly who it is that is vested with the
power of administration.
[9]
Appositely,
this is dealt with in
Clarkson
NO v Gelb and others
[4]
where it is stated that:
‘
A
deceased estate is an aggregate of assets and liabilities. It has no
legal personality and, when referring to it as an entity,
one must be
careful not to imply or understand thereby that one is dealing with
anything like a
persona
.
The executor is vested with its administration and he alone has the
power to deal with this totality of rights and obligations.
He is not
merely a procurator or agent. His primary duty is to obtain
possession
of the assets of the deceased, to realise them as far as may be
necessary, to make payment of debts and expenses, to frame a
liquidation
and distribution account, and thereafter to make a
distribution to the heirs and legatees.
Heirs and legatees can
claim whatever is due to them only after confirmation of the
liquidation and distribution account . . . .’
(emphasis added)
[10]
In
clarification, the executor and the deceased are separate and
distinct
personae
.
The executor does not step into the shoes of the deceased on the
latter’s death – he does not succeed to the person
of the
deceased but is simply required to administer and distribute the
estate under the provisions of the Administration of Estates
Act (the
Act)
[5]
(see
Van
den Bergh v Coetzee
NO
[6]
).
[11]
The
Act precludes the exercise of executorial powers by anyone other than
the executor who acts under the authority of the Master
in terms of
the Act.
[7]
It is therefore the
executor that has
locus
standi
to liquidate and distribute the estate; and where an estate has been
dispossessed of a right in property it is the executor who
is
entitled to prosecute the restitution (see
Kara
v The Properties formerly known as the Farm Cato Manor No 812
[8]
).
But in doing so the executor does not acquire full
dominium
.
While the estate is being administered, the underlying
dominium
is a bare
dominium
bereft of absolute control and the unqualified right to use and enjoy
that which is in a deceased estate. How much of the bare
dominium
ultimately translates into full
dominium
depends on the requirements of administration (whether testate or
intestate) leading to the confirmation of a liquidation and
distribution account (see
Keyes
NO v Ellinas and Others
[9]
).
Declaration of
ownership and transfer
[12]
In
argument it was submitted for the plaintiff that the property is
claimed under the
rei
vindicatio.
[10]
A vindicatory action is available to an owner who has been deprived
of their property without consent and who seeks its recovery
from
someone else who retains possession.
[11]
A claimant invoking a vindicatory claim must allege ownership of the
property
[12]
(i.e. full
dominium
).
The plaintiff has not made this allegation. Instead it was submitted
that the issue of ownership can be dealt with during the
trial in due
course. This proposition is unsound since an exception must be dealt
with in the pleading as it stands. Consequently,
the relief for
transfer of the fixed property into the name of the plaintiff is –
on the authority referred to in the preceding
paragraphs –
plainly bad in law and renders the particulars of claim excipiable.
At the heart of the matter, it cannot
be established if the plaintiff
seeks full dominium of the property by its transfer into her name in
her personal capacity (as
consequence of the testate or intestate
administration of the estate
supra
)
or whether she requires possession of the property to fulfil her
administrative role as executrix for the benefit of heirs and/or
legatees. In these circumstances the prevailing uncertainty renders
the contention that she relies on a vindicatory claim, legally
unsustainable.
[13]
A further issue arises from non-compliance
with Rule 18(4) of the uniform rules of court. The rule requires
every pleading to contain
a clear and concise statement of the
material facts on which the pleader relies with sufficient
particularity to enable the opposite
party to plead to it.
[14]
Exactly what it is that the plaintiff
contemplates by use of the word ‘transfer’, is vague.
[15]
Whether formal transfer or mere restoration
of possession is contemplated is not pertinently pleaded with
sufficient particularity.
For this reason, it cannot be expected of
the first and second defendants to speculate on what the plaintiff’s
case is. The
omission results in embarrassment that cannot be cured
other than by raising an exception to eliminate the prejudicial
effect of
the inherent uncertainty as regards the pleader’s
intention. It is furthermore unclear how the first and second
defendants,
who are alleged by the plaintiff to be in unlawful
possession of the property, are competent to effect any form of
transfer.
[16]
Concurrent with the claim for transfer of
the property into her name, the plaintiff seeks a declaration that
the deceased is the
owner thereof. On a plain construction of the
particulars of claim the relief sought is mutually conflicting and
once again creates
uncertainty as regards the pleader’s
intention. The uncertainty renders it unclear at whose instance is
the
rei vindicatio
being invoked. The remedy is clearly not available to a deceased
person (assuming that is the objective of the declaratory relief)
as
such a person lacks legal standing to exercise rights in relation to
property – nor for reasons already dealt with is
the remedy
available to the plaintiff.
[17]
In the circumstances the submission for the
first defendant that the abovementioned issues undermine the cause of
action, as pleaded,
is not without merit.
Eviction
[18]
In
argument for the first defendant it was submitted that the provisions
of The Prevention of Illegal Eviction from and Unlawful
Occupation of
Land Act
[13]
have not been
complied with. For the plaintiff it was contended that an eviction
order is consequential relief in respect of actions
rei
vindicatio
of fixed property.
[14]
While
the correctness of this proposition is not doubted, it is trite that
provided the procedural requirements of the legislation
have been
met, a landowner is entitled to approach the court on the basis of
ownership and the other party’s unlawful occupation
(
Ndlovu
v Ngcobo; Bekker v Jika
[15]
).
However, elsewhere in this judgment it has been shown why the
vindicatory claim on the pleaded facts is not competent. That being
the case, the exception is upheld on a point of law and the
consequential relief is deemed insupportable.
[19]
Accordingly, I make
the following order:
1.
The first defendant’s exception is upheld to the extent set out
in this judgment.
2.
The plaintiff is granted leave to amend the particulars of claim to
remedy the defect/s,
if so advised; such amendment shall be effected
within twenty (20) days from the date hereof.
3.
The plaintiff is ordered to pay the first defendant’s costs,
either as taxed or agreed.
M. S. RUGUNANAN
JUDGE OF THE HIGH
COURT
APPEARANCES:
For
the Plaintiff:
A. F. Basson
Instructed
by
Mgangatho
Attorneys
100
High Street
Makhanda
(Ref:
A. F. Basson)
Tel:
046-622 2206
For
the First and
Second
Defendants: C.
G. T. Cordell
Instructed
by
Wheeldon
Rushmere & Cole Inc.
119
High Street
Makhanda
(Ref:
M. v.d. Veen)
Tel:
046-622 7005
Date
heard:
4 August 2022
Date
Delivered:
1 November 2022
[1]
Herbstein & Van Winsen, The Civil Practice of the High Courts of
South Africa, Juta, 5
th
ed, Volume 1 generally at page 632 and 635
[2]
Erasmus, Superior Court Practice, Volume 2 at D1-293 [Service 9,
2019]
[3]
Gallagher
Group v IO Tech
2014 (2) SA 157
(GNP) at 161D
[4]
1981 (1) SA 288
(W) at
[5]
Act 55 of 1965
[6]
[2001] JOL 8365
(T) at pages 5-6
[7]
See section 13
[8]
[2002] JOL 9306
(LCC) at paragraph [8]
[9]
(2013/62385) [2016] ZAGPPHC 1187 (27 October 2016) at paragraph [31]
[10]
Heads of argument paragraphs 13-14
[11]
Unimark
Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd
1999
(2) SA 986
(T) at 995I;
Vulcan
Rubber Works (Pty) Ltd v South African Railways and Harbours
1958
(3) SA 285
(A) at 297E;
Sorvaag
v Pettersen and Others
1954
(3) SA 636
(C) at 639G
[12]
Unimark
Distributors supra
at 996B-D; also
Chetty
v Naidoo supra
at 20B;
Vulcan
Rubber Works supra
at
297E;
Sorvaag
v Pettersen and Others supra
at
639G
[13]
Act 19 of 1998
[14]
Paragraph 14.5
[15]
2003 (1) SA 113
(SCA) at paragraph [19]