About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2018
>>
[2018] ZANCHC 3
|
|
Oliphant NO v Oliphant and Others (48/2017) [2018] ZANCHC 3 (16 January 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
(NORTHERN CAPE DIVISION, KIMBERLEY)
IN
THE HIGH COURT OF SOUTH AFRICA
Case No: 48/2017
Heard on: 08/12/2017
Delivered
on: 16/01/2018
In
the matter between
CECILIA
KENEWANG OLIPHANT
N.O. Plaintiff/Applicant
(In
her capacity as an intestate heir of the
Deceased's
estate of the late Rosy Oliphant
With
Estate No. 1647/2008
And
LUCAS
OLIPHANT 1st
Defendant/Respondent
DAVID
OLIPHANT 2nd
Defendant/Respondent
THE
MASTER OF THE NORTHERN
CAPE 3rd
Defendant/Respondent
HIGH
COURT, KIMBERLEY
THE
REGISTRAR OF DEEDS,
KIMBERLEY 4th
Defendant/Respondent
JUDGMENT
PAKATI
J
[1] The applicant/plaintiff , Ms Cecilia Kenewang Oliphant, in her
capacity as an intestate heir of the deceased's estate of the
late
Rosy Oliphant (Estate No. 1647/2008), instituted an action against
the first to fourth respondent s/defendants, Lucas Oliphant
("Lucas"), David Oliphant ("David"), The Master
of the High Court, Kimberley ("the Master") and the
Registrar of Deeds in their official capacity, respectively seeking
an order summarised as follows:
1.1 That the registration and
transfer of the property known as Erf […], Galeshewe,
Kimberley ("the property ")
to the name of the first
respondent be set aside;
1.2 That the Registrar of
Deeds be authorised and ordered to cancel the registration and
transfer of the said property;
1.3 That the Registrar of
Deeds be ordered to transfer the property back to the estate of the
late Rosy Oliphant, Estate No.
1647/2008; and
1.4 That Lucas or anyone
wishing to oppose the action is ordered to pay costs. Ms Oliphant's
claim is based on
rei vindicatio.
[2]
On 24 November 200 l the deceased died intestate and her estate
should be administered in terms of the Intestate Succession
Act
[1]
.
The property forms part of her estate.
[3] Only Lucas opposes the application. The Master is cited only in
so far as he may have an interest in the matter. No relief
is sought
against him. It is common cause that Ms
Oliphant,
Lucas and David are the deceased's biological children and therefore
intestate heirs of the deceased.
[4] On 28 February 2017 Ms Oliphant issued summons served on 15 March
2017 upon Ms Charmain Mauza on behalf of Lucas and upon David
personally on 16 March 2017. Initially she instituted action in her
capacity as the representative of the Master of the Northern
Cape
High Court, Kimberley. For this assertion she relied on the letter of
authority issued by the Master on 18 July 2008 (Annexure
"A").
[5] Lucas disputes the appointment of Ms Oliphant by the Master as
representative of the estate of their deceased mother. He claims
that
on 27 March 2002 he was appointed as the representative of the estate
in terms of Regulation 4 (2) of R200 on 06 February
1987 and that Ms
Oliphant was aware of this. He denied unlawfully and fraudulently
transferring the property in his name but did
not explain the
circumstances surrounding the transfer of the property into his name.
[6] Ms Oliphant alleges that on 08 March 2013 Lucas unlawfully and
fraudulently obtained transfer of the property into his name
without
her authority and/or consent. She alleges further that he failed
and/or refused to transfer the property back to the estate
of the
deceased. Ms Oliphant contends that the two affidavits which were
purportedly signed and attested to in favour of the first
defendant
attached to the plea (Annexure "A" and "B") were
fraudulently obtained. She stated that she learned
of this when she
received a letter dated 06 January 20 14 from the Master's Office.
[7]
On 10 April 2017 Lucas filed a notice of intention to defend the
action and a plea on 26 April 2017. On 07 August 2017 Lucas
raised a
special plea of prescription stating that a period of three years had
elapsed since the date upon which the debt became
due calculated from
06 January 2014 when Ms Oliphant received the letter from the
Master's Office. He asserts that a right to claim
and enforce
transfer of immovable property is a debt in terms of the Prescription
Act.
[2]
He states that she became aware of the alleged fraudulent transfer of
the property during January 2014 and did nothing about it.
She
therefore failed to demand transfer. He therefore prays for the
dismissal of the claim with costs.
[8]
A notice of set down was filed on 07 August 2017 for the hearing of
the special plea on 15 September 2017 on the opposed roll.
In the
meantime Ms Oliphant filed a notice to amend her Particulars of Claim
also on 07 August 2017. In her amended Particulars
of Claim her
status changed and acted in her capacity as the intestate heir of the
deceased estate and not the representative of
the Master of the High
Court. The matter could not be heard on 15 September 2015.
Consequently, on 17 October 2017 Mr Coetzee,
for the first
respondent, relied on paras 11 to 14 of
ARMIEN
&
OTHERS
v ARMIEN & OTHERS
[3]
while Mr Olivier relied
on para 13 where Cloete AJ held:
"[11] Before turning to evaluate the evidence, it is necessary
to consider whether the plaintiffs ' claim is 'a debt 'for
purposes
of extinctive prescription within the meaning of the Prescription
Act, whether the plaintiffs' claim is vindicatory in
nature (i.e. the
rei vindicatio), and the incidence of the burden of proof in the
determination of this matter.
[12]
In Staegemann v Langenhoven
2011 (5) SA 648
(WCC) the court was faced
with a similar issue, albeit relating to the return of a motor
vehicle and thus movable property. In
that case the applicant sought
to recover his motor vehicle which had been misappropriated and
ultimately sold to the first respondent,
who was an innocent
purchaser. The first respondent resisted the claim, contending that
the applicant 's rei vindicatio was a debt
within the meaning of s 10
of the Prescription Act and, because three years had since elapsed,
the debt had prescribed in terms
of s I 1 (d) thereof At 650J-655B
Blignault J analysed the relevant authorities. I propose to summarise
the findings made by him
as follows:
1.
The answer lies in the
fundamental distinction between a real right and a personal right (at
651E);
2.
The object of a real right
is a thing. Ownership, being a real right, avails the owner of the
rei vindicatio, i.e. the right to
recover the thing in question from
anyone in possession thereof (at 652A-F; see also the authorities
cited therein);
3.
On the other hand, the
object of a personal right is some sort of performance by another,
often coupled with a duty to counter-perform
(at 652A- and F-H). Put
differently, an obligation is equivalent to a personal right and not
a real right;
4.
The Prescription Act
recognises this distinction. Real right. are subject to acquisitive
prescription (see Chapters 1 and 2 thereof)
and personal rights to
extinctive prescription (in Chapters 3 thereof which incorporates ss
10 and 11 referred to above) (at 6521-J
and 653F);
5.
Since the rei vindicatio
is a claim to ownership in a thing, it is a real right which is
subject to acquisitive prescription; it
cannot be considered a debt
subject to extinctive prescription.
[13]
In my view, and by parity of reasoning, the same principles must
apply in respect of a claim based on ownership of immovable
property
or, as is the case in the present mailer, undivided shares in an
immovable property. The plaintiff's claim is clearly
founded on the
rei vindicatio
-
they became
owners of undivided shares in the property under the laws of
intestate succession upon the death of the deceased. Accordingly,
the
plaintiffs' claim against the 1st defendant is subject only to the
provisions of Chapter I of the Prescription Act. Section
I (contained
in Chapter 1 provides as follows:
'1 Acquisition of Ownership by Prescription,
-
Subject to the provisions of this Chapter and of Chapter IV, a
person shall by prescription become the owner of a thing which is
possessed openly and as if he were the owner thereof for an
uninterrupted period of thirty years or for a period which, together
with any periods for which such thing was so possessed by his
predecessors in title, constitutes an uninterrupted period of thirty
years.
"
[9] Mr Olivier persisted that Ms Oliphant's position does not change
despite her change of citation and capacity with which she
claims. He
insisted that the claim has not prescribed. He urged me to dismiss
both special pleas raised by the first respondent.
[10]
Mr Coetzee on the other hand argued that because of Ms Oliphant 's
amended Particulars of Claim the special plea of prescription
raised
initially in the plea has become moot. He then raised lack of
locus
standi
by the plaintiff.
LOCUS STANDI
[11]
Mr Olivier, on behalf of Ms Oliphant, submitted that Ms Oliphant's
claim is based on
rei vindicatio.
He
submitted further that the plaintiff has a direct interest in the
relief sought as the intestate heir and therefore she has
locus
standi
in the matter. He submitted
further that the plaintiff s claim is vindicatory in nature and
therefore not extinguished by prescription
after the expiry of a
period of three years. For this assertion he relied on
CABINET
OF THE TRANSITIONAL GOVERNMENT FOR THE TERRITORY OF SOUTH WEST AFRICA
v EINS
[4]
where Rabie ACJ had this
to say:
"A person who claims relief from a Court in respect of any
matter must, as a general rule, establish that he has a direct
interest in that matter in order to acquire the necessary locus
standi to seek relief
...In Dabymple and Others v Colonial Treasurer
1910 TS 372
at 390
Wessels J stated that:
"The person who sues must have an interest in the subject-matter
of the suit, and that interest must be a direct interest.
"
And that-
"Courts of law ...are not constituted for the discussion of
academic questions, and they require the litigant to have not
only an
interest, but also an interest that is not too remote."
"...the action popularis has disappeared,
"Courts of law have required the applicant to show some direct
interest in the subject-matter of the litigation or some grievance
special to himself.
1933 AD 87
at 101 Wessels CJ referred to the requirement that a
plaintiff has to show a direct interest in the matter in issue in the
following
terms:
"...by our law any person can bring an action to vindicate a
right which he possesses (interesse) whatever that right may
be and
whether he suffers special damage or not, provided he can show that
he has a direct interest in the matter and not merely
the interest
which all citizens have.
"
[12]
S 13 of the Administration of Estates Act ("the Act")
[5]
provides:
"
13 Deceased estates not to be Liquidated or distributed
without letters of executorship or direction by Master
(1) No person shall liquidate or distribute the estate of any
deceased person, except under letters of executorship granted or
signed and sealed under this Act, or under an endorsement made under
section fifteen, or in pursuance of a direction by a Master.
"
Emphasis added
[13]
For a claim of
rei vindicatio
to
succeed a plaintiff must allege and prove ownership of the thing
whether movable or immovable and that the defendant was in possession
of the property when the action was instituted.
[6]
[14]
In KARA v THE PROPERTIES FORMERLY KNOWN AS THE FARM CATO MANOR NO
812
[7]
Meer AJ stated:
"[8] It is trite law that it is the executor of a deceased
estate, and not any heir thereto, that has locus standi to liquidate
and distribute the estate. It follow s that where a deceased estate
has been dispossessed of a right in land, it is the executor
who is
entitled to prose cute the restitution claim and not the heirs. That
principle has been acknowledged in several decisions
of this Court.
Ebrahim Kara in his capacity as heir, acting for him and the other
heirs, accordingly has no locus standi to prosecute
a claim for the
restitution of rights in land in respect of the subject property.
"
Emphasis
added
[15]
In CLARKSON NO v GELB AND OTHERS
[8]
Coetzee J described a deceased estate as follows:
"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 effect 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 (in terms of
section 35 (12) of the [Administration of Estates] Act) according to
its tenor."
Emphasis added
[16]
Zondi JA (Maya, Bosielo, Wallis JJA and Meyer AJA concurring)
[9]
held :
"[20] In my view, there is merit in the argument that a
vindicatory claim, because it is a claim based on ownership of a
thing, cannot be described as a debt as envisaged by the Prescription
Act. The High Court in Staegmann (paragraph 16) was correct
to say
that the solution to the problem of the prescription is to be found
in the basic distinction in our law between a real right
jus in re)
and a personal right jus in personam). Real rights are primarily
concerned with a relationship between two per sons.
The person who is
entitled to a real right over a thing can, by way of vindicatory
action, claim that thing from any individual
who interferes with his
right. Such a right is the right of ownership. If, however, the right
is not an absolute, but a relative
right, so that it can only be
enforced against a determined individual or a class of individuals,
then it is a personal right.
"
[17]
The authorities
supra
clearly
state that only the executor of a deceased estate and not an heir has
locus standi
to liquidate and
distribute the estate. This is the case when the deceased estate has
been dispossessed of a right in land. The
executor is entitled to
prosecute restitution. Nowhere in the papers does she allege or claim
to be the owner of the property which
means that her claim is not
vindicatory.
[18]
It is unclear why Ms Oliphant amended her status and approached the
Court in her capacity as an heir. If it were proved that
Lucas
unlawfully and fraudulently transferred the property in his name, it
then belongs to the estate of the deceased. She is therefore
not in a
position to liquidate and distribute the estate as an heir in terms
of s 13 of the Act and as required by a claim of
rei
vindicatio.
The implication is that
the estate is unrepresented. In my view, the amendment to her
particulars of claim was to her peril. Moreover
a close reading of
section 13 clearly shows that she lacks
locus standi.
PRESCRIPTION
[19]
Sections l 0 and 11 of the
Prescription Act, 68 of 1969
provide:
"
10
Extinction of debts by prescription
(1)
Subject to the provisions of this Chapter and of Chapter
IV, a debt shall be extinguished by prescription after the lapse of
the
period which in terms of the relevant law applies in respect of
the prescription of such debt.
(2)
By the prescription of a principal debt a subsidiary debt
which arose from such principal debt shall also be extinguished by
prescription.
(3)
Notwithstanding the provisions of subsections (1) and (2),
payment by the debtor of a debt after it has been extinguished by
prescription
in terms of either of the said subsections, shall be
regarded as payment of a debt.
11
Periods of prescription of debts
The periods of prescription of debts shall be the following:
(a) thirty years in respect of-
(i) any debt secured by mortgage bond;
(ii) any judgment debt;
(iii) any debt in respect of any taxation imposed or levied by or
under any law;
(iv) any debt owed to the State in respect of any share of the
profits , royalties or any similar consideration payable in respect
of the right to mine minerals or other substances;
(b) fifteen years in respect of any debt owed to the State and
arising out of an advance or loan of money or a sale or lease of
land
by the State to the debtor, unless a longer period applies in respect
of the debt in question in terms of paragraph (a);
(c) six years in respect of a debt arising from a bill of exchange or
other negotiable instrument or from a notarial contract,
unless a
longer period applies in respect of the debt in question in terms of
paragraph (a) or (b);
(d) save where an Act of Parliament provides otherwise, three years
in respect of any other debt.
"
[20]
I do not agree with Cloete AJ in Armien's case that the plaintiff s
claim was founded on the
rei vindicatio
and
that the heir became owners of undivided shares in the property under
the laws of intestate succession upon the death of the
deceased. I
say so for the reasons advanced earlier in this judgment. In my view,
in the instant case, the plaintiff s claim would
have been different
if she had not amended her Particulars of Claim. Mr Coetzee submitted
that her claim is for the enforcement
of a personal right, I agree.
There is no indication that at the time of the alleged dispossession
of the property by the first
defendant the estate had already been
wound up or that the liquidation and distribution account had been
confirmed in order to
conclude that what was left was for the heirs
to claim their shares. Ownership of property only passes by
registration of transfer
into the name of the owner.
I
accordingly make the following order:
The
special pleas (prescription and
locus standi)
are
upheld with costs.
________________
BM
PAKATI
JUDGE
On Behalf of the
Plaintiff: AD V COEJZEE SC
Instructed by:
Van De Wall Inc
On Behalf of the
Defendant: ADV OLIVIER
Instructed by:
Thomas Kouter Attorneys
[1]
81 of 1987
[2]
Act 68 of 1969
[3]
(6943/2008) [2012) ZAWCHC 98 delivered on 25 January 2012
[4]
[1988] ZASCA 32
;
[1988] 2 All SA 379
(A) at 384-385; see also Kolbatschenko v King NO
and Another
[2001] 4 All SA 107
(C) at 1 14 where Thring and Van
Heerden JJ said:
"What is
required, then is that-
(a) The applicant
for relief must have an adequate interest ("voldoende belang ")
in the subject -matter of the litigation,
which is not a technical
concept; it is usually described as a direct interest in the relief
sought;
(b) It must not be
too far removed;
(c) It must be
actual, not abstract or academic;
(d) It must be a
current interest, and not a hypothetical one.
Whether these
requirements are met in any particular case will depend on the
facts, and no hard and-fast or generally binding
rules can be
laid down. "
[5]
Act 66 of 1965
[6]
Concur Construction (Cape) Pty Ltd v Santambank Ltd [1993] 2 All SA
496 (A), 1993 (3) SA 930 (A)
[7]
[2002] JOL 9306
(LCC) at para 8
[8]
1981 (1) SA 288
(W) at ...
[9]
Absa Bank Limited v Keet (2015] 4 All SA I (SCA) at para [20]