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[2018] ZAGPPHC 280
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PQR 82 Properties (Pty) Ltd v Erasmus NO (2014/49407) [2018] ZAGPPHC 280 (18 January 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO. 2014/49407
In
the matter between:
PQR
82 PROPERTIES (PTY)
LTD Applicant
and
GERALDEAN
JAYDE
ERASMUS
N.O. Respondent
JUDGMENT
DU
PLESSIS AJ:
1.
The applicant is being represented by its director , Maria Madalena
Consalves Erasmus, who was married to the deceased, Garth
Joseph
Erasmus, at the time of his death on 4 October 2013. The respondent
is Geraldean Jayde Erasmus, in her capacity as the appointed
executrix in the estate of the deceased and who is the deceased's
daughter from a previous marriage.
2.
The applicant claims a statement and debatement of account from the
respondent reflecting all amounts received from the tenant
in respect
of an agreement of lease relating to an immovable property situated
at 7 Les Jardins, 43 Berkeley Avenue, Bryanston
("the immovable
property"). It also claims the repayment of an amount of R250
000.00 with interest on the basis that
such payment was made
unlawfully and irregularly from the account of the applicant.
3.
The respondent did not oppose the relief in respect of the statement
and debatement, but instituted a counterclaim for the same
relief
against the applicant. She opposed the claim for the repayment of the
sum of R250 000.00.
4.
I intend to deal with the applicant's claim for a statement and
debatement, the respondent's counterclaim for a statement and
debatement and the applicant's claim for repayment of the sum of R250
000.00, in that order.
5.
It should immediately be made clear that the applicant's claim for a
statement and debatement is very limited. As set out above,
in the
notice of motion such relief is limited to all amounts received from
the tenant in respect of an agreement of lease
relating
to the immovable property. In argument Adv Steenekamp, who
appeared for the applicant, confirmed that this
was the relief sought
by the applicant. This also appears from the applicant's heads of
argument.
6.
The reason I emphasise this point is that in the papers both the
applicant and the respondent seemed to assume that much more
would be
debated.
7.
The facts regarding this claim are as follows:
7.1
The applicant is the owner of the immovable property;
7.2
The immovable property is the subject of a lease agreement and, from
about August 2013 to April 2014, the tenant made the monthly
rental
payments into the deceased's personal banking account;
7.3
The respondent made payment of an amount of R180 118.45 to the
applicant on about 4 June 2014 in respect of 50% of the funds
alleged
to have been received by the deceased from the tenant until April
2014;
7.4
From May 2014 the tenant has paid the rental and utility charges into
the trust account of the applicant's attorneys of record.
8.
As stated above, the respondent did not dispute her liability to
render an account to the applicant for the rentals received.
In a
replying affidavit to the counter application, she referred to a
forensic audit that was conducted on her instructions regarding
the
indebtedness of the applicant to the estate. A copy of the audit
report was annexed to the affidavit. She alleged, and it was
argued
on her behalf by Adv Grobler, that this audit complied with the
requirement to provide an account.
9.
I do not agree. The report does not contain any documentary proof of
payments received and does not comply with the minimum requirements
for a statement of account. It is not something that is capable of
being debated. The statement should be limited to the purpose
for
which the applicant requires it, namely to prove the amounts received
by the deceased in respect of rentals for the period
stated.
10.
The period of the statement to which the applicant is entitled, is
also limited. On its own version it has received the rental
and
utility payments from May 2014 and it is not entitled to a statement
for the period thereafter. The respondent would simply
not be in a
position to provide such a statement and any order to that effect
will be incapable of being enforced. Counsel for
the applicant could
also not provide adequate reasons why the applicant would be entitled
to a statement for the period thereafter.
11.
In the premises the applicant is entitled to a statement and
debatement of an account from the respondent reflecting all amounts
received from the tenant in respect of the agreement of lease
relating to the immovable property for the period August 2013 to
May
2014. As far as the procedure to be adopted is concerned, I am of the
view that a simple procedure should be adequate as the
statement is
of such a limited nature. There should not be major disputes as far
as the receipt of rentals is concerned.
12.
In
Doyle
and another v Fleet Motors PE (Pty) Ltd
[1]
Holmes
JA accepted that in South Africa there is no prescribed procedure for
a statement and debatement of an account. He made general
observations about the procedure to be adopted when a party sought a
statement of account, debatement and payment of moneys due.
The
learned Judge noted:
"The
degree or amplitude of the account to be rendered would depend on the
circumstances of each case. In
some
cases it might be
appropriate that vouchers or explanations be included…[Where]
the plaintiff has [already] received an account
which he avers is
insufficient, the court may enquire into and determine the issue of
sufficiency in order to decide whether to
order the rendering of
a
proper account…In general the court should not be bound to
a
rigid procedure, but should enjoy
some
measure of
flexibility as practical justice may require."
13.
I
am of the view that the parties should first debate the account
amongst themselves with the help of their attorneys. If they are
then
still unable to agree, they can follow the procedures suggested in
the Doyle- case supra.
[2]
14.
The
respondent's counter application was much wider and sought an account
"reflecting all amounts received by the Applicant
for the period
from 29 March 2011 to date hereof', as well as one reflecting all
amounts paid during the same period. The basis
for the claim was not
in the respondent's capacity as a shareholder of the applicant
[3]
,
but on the basis of the fiduciary relationship that existed between
the deceased (in his capacity as a director) and the applicant.
15.
The
respondent relied on the Doyle-case supra for her entitlement to the
statement. In that matter the court held that a plaintiff
should aver
its right to receive an account, and the basis of such right, whether
by contract or by fiduciary relationship or otherwise.
[4]
In
Absa
Bank Bpk v Janse van Rensburg
[5]
the
SCA subsequently held that a party would have to prove either (a) the
existence of a fiduciary relationship between him and
the other
party, or (b) that the other party had contractually bound himself
thereto, or (c) the existence of a statutory duty
obliging the other
party to deliver and debate an account.
[6]
16.
In this matter there is no contractual or statutory duty on the
applicant to deliver an account to the respondent, nor has the
respondent referred to or relied on any such duty. The only question
remaining is whether the respondent, in her capacity as the
executrix
in the deceased's estate, is in a fiduciary relationship with the
applicant.
17.
In my view the argument that the deceased was in such a relationship
and that the respondent can rely thereo n, cannot prevail.
She
represents the deceased's estate, not the deceased. She does
therefore not climb into the shoes of the deceased and cannot
rely on
the rights that he may have had during his lifetime. To argue
otherwise would mean that the executrix would also be able
to enforce
other rights that the deceased would have had as a director of the
applicant. That can never be so.
18.
In the absence of a fiduciary relationship between the respondent and
the applicant, the respondent is not entitled to claim
delivery and
debatement of an account from the applicant. The counter application
therefore falls to be dismissed.
19.
The relevant facts relating to the applicant's claim for repayment of
the sum of R250 000.00, are the following:
19.1
An immovable property owned by the deceased was sold by him for an
amount of R1 381 037.07, which amount was paid into his
bank account
on or about 4 September 2013;
19.2
The deceased transferred an amount of R1 000 000.00 into the bank
account of the applicant on 9 September 2013;
19.3
The deceased advised Winifred Erasmus ("Winifred"), his
ex-wife and the respondent's mother, that he intended paying
her half
of the net proceeds of the sale;
19.4
On 4 October 2013 the deceased sent a text message to Winifred,
advising her that he had transferred an amount of R500 000.00
to her.
Because the payment limit on the applicant's bank account was only
R250 000.00, only an amount of R250 000.00 was in fact
transferred to
her.
20.
Based on these facts, the applicant alleges that the payment was one
for the deceased's personal debts which was made with the
applicant's
funds. The payment was without the knowledge or consent of the
deceased's wife, who was a co-director at the time,
and was therefore
unlawful and irregular. The applicant claims repayment of the amount
from the estate.
21.
It is not clear what the reason was for the payment of R1 000 000.00
from the deceased's personal account to the applicant.
The
applicant's version is that the deceased was indebted to the
applicant in the sum of R2 000 000.00 for monies lent and advanced
and that the payment of the R1 000 000.00 was for part-payment
thereof. On its version the deceased's estate is still indebted
to
the applicant for the balance of R1 000 000.00. When the payment was
therefore made to Winifred out of the applicant's account,
it was
made from funds belonging to the applicant.
22.
The respondent's version is just that the deceased intended to pay
R500 000.00 to Winifred. Although it was argued before me
that the
deceased did not owe the applicant any money and that the payment of
the R1 000 000.00 was only for that purpose, no such
allegations are
contained in the respondent's affidavits. In fact, there does not
seem to be any explanation for the payment of
the R1 000 000.00 into
the applicant's account as the deceased could have paid the RSOO
000.00 to Winifred from his personal account.
It is also not clear
why R1 000 000.00 was transferred if his intention was to only pay
R500 000.00 to Winifred.
23.
In the absence of an explanation from the respondent, and also on
probabilities, I must find that the deceased paid the R1 000
000.00
into the applicant's account as repayment of a debt. If there was no
underlying reason for the payment, the respondent would
have had a
claim against the applicant for repayment thereof. No such claim has
been instituted.
24.
I am of the view that no factual dispute exists in this regard and
that, whatever the reason for the payment into the applicant's
account may have been, such fact is irrelevant in the determination
of the applicant's right to reclaim the payment of the R250
000.00.
Once the R1 000 000.00 was paid into the applicant's account, it was
no longer separate from the applicant's funds and
could only be dealt
with by the applicant in terms of the company laws and good corporate
governance. Even if it constituted a
loan account in favour of the
deceased, he would not have had the right to pay his personal debts
without the knowledge and consent
of his co-director.
25.
The fact remains that the deceased paid a debt, which it is common
cause was a personal debt and not one owed by the applicant,
from the
applicant's account without the knowledge and consent of his
co-director. The applicant is entitled to reclaim the amount
from
him, which in this case is from the respondent in her capacity as the
executrix in his estate.
26.
Although
the competency of the applicant's claim for repayment was not argued
before me, I pause to state that a creditor is not
precluded by the
provisions of the
Administration of Estates Act, 66 of 1965
, from
instituting action in terms of its common-law right against the
deceased estate for the recovery of a debt owed by the deceased
[7]
.
The claim is therefore competent.
27.
In the premises I make the following order:
27.1
The respondent is ordered, within 14 calendar days of the granting of
this order, to provide the applicant with an account
reflecting all
amounts received by the deceased estate of Garth Joseph Erasmus ("the
deceased estate") from the tenant
of the immovable property
situated at 7 Les Jardins, 43 Berkeley Avenue, Bryanston ("the
immovable property") in terms
of the lease agreement entered
into on 17 July 2012 at Sandton, for the period 1 August 2013 to 31
May 2014;
27.2
The account shall include:
27.2.1
A list of all amounts received by the deceased estate from the tenant
and the date on which each amount was received , duly
separated to
reflect the amounts received in respect of rental and utilities;
27.2.2
Attached copies of each payment receipt corresponding with each
amount listed in the account, alternatively shall include
attached
copies of the deceased's bank account statements for the bank account
into which each payment was received;
27.2.3
The respondent shall debate with the applicant's duly appointed
representative the account so delivered, which debate shall
be
concluded within 14 calendar days from the date of the delivery of
the account;
27.4The
parties are entitled to legal representation at the debate of the
account;
27.5The
respondent shall pay within 5 days of the conclusion of the debate
referred to above, all amounts found to be due to the
applicant plus
interest a
tempore morae
at a rate of 10,25% per annum to date
of payment, to the applicant;
27.6Any
party is entitled to approach this court on the same papers, duly
supplemented where necessary, for the appropriate relief
in the event
that no agreement can be reached on either the adequacy or accuracy
of the account or the amount of the respondent's
indebtedness to the
applicant, if any;
27.7The
respondent is ordered to pay to the applicant the sum of R250 000.00,
together with interest thereon at a rate of 10,25%
per annum from 4
July 2014 to date of payment;
27.8The
respondent 's counter-application is dismissed;
27.9The
respondent is ordered to pay the applicant's costs of the application
and the counter-application.
D T
v R DU PLESSIS
ACTING
JUDGE OF THE HIGH COURT
JOHANNESBURG
DATE
OF HEARING: 30 November 2017
DATE
OF JUDGMENT: 18 January 2018
COUNSEL
FOR APPLICANT: Adv A Steenekamp
INSTRUCTED
BY: Van Wyk Van Deventer Inc.
COUNSEL
FOR RESPONDENT: Adv J F Grabler
INSTRUCTED
BY: Van der Hoff Inc.
[1]
1971 (3) SA 760
(A). See also Graney Property Ltd and another v
Seena Marena Investment (Pty) Ltd and others
[2014]
3 All SA 123 (SCA)
[2]
Nusca
v Nusca and another
1995
(4) SA 813
(T) at 820
[3]
Clutchco
(Pty) Ltd v Davis
2005
(3) SA 486
(SCA) at para [14]
[4]
At 762F
[5]
2002 (3) SA 701 (SCA)
[6]
At para [15]
[7]
Nedbank
Ltd v Steyn and others
2016
(2) SA 416
(SCA)