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 56
|
|
Oliphant N.O v Oliphant and Others (448/2017) [2018] ZANCHC 56 (18 May 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: 448/2017
Heard
On: 27/03/2018
Delivered
on: 18/05/2018
In
the matter between
CECILIA
KENEWANG OLIPHANT N.O.
(In
her capacity as an estate heir of the
Deceased
estate of the late Rosy Oliphant
With
Estate No.
1647/2008
Applicant/Plaintiff
And
LUCAS
OLIPHANT
First Respondent/Defendant
DAVID
OLIPHANT
Second Respondent/Defendant
THE
MASTER OF THE NORTHERN
CAPE
HIGH COURT, KIMBERLEY
Third Respondent/Defendant
THE
REGISTRAR OF DEEDS, KIMBERLEY Fourth
Respondent/Defendant
JUDGMEMT
ON APPLICATION FOR LEAVE TO APPEAL
PAKATI
ADJP
[1]
The applicant/plaintiff, Ms Cecilia Oliphant, applies for leave to
appeal against the whole judgment
and the order I granted on 16
January 2018 upholding the special pleas of prescription and
locus
standi
with costs. She filed her notice dated 06 February 2018
the same day. The first respondent/defendant, Mr Lucas Oliphant,
opposes
the application. For convenience, I will refer to the parties
as the plaintiff and the first defendant.
Page
12
[2]
The plaintiff, in his notice listed three grounds that can be
summarised as follows:
2.1
That I erred in upholding the special plea raised by the first
defendant against her claim thereby
holding that the claim was a debt
in terms of s 11 (d) of the Prescription Act, 68 of 1969 ("the
Prescription Act"
;), and also finding that her claim had
prescribed;
2.2
That because I found that there was no indication that the winding up
of the estate had finalised
I should have concluded that the claim of
the heirs remained suspended and prescription did not run. Due to the
fact that property
in question constituted immovable property the
claim of the heirs would be extinguished by prescription after a
period of 30 years
had lapsed in terms of s 1 of the Act; and
2.3
That I erred in finding that the plaintiff's claim was based on
liquidation of the deceased
estate and not holding that the
plaintiff, like the first and second defendants, were entitled to the
equal distribution of the
deceased estate as heirs having
locus
standi
to challenge the registration of the immovable property by
the first defendant into his own name.
[3]
Mr
Bokaba's argument is
inter
alia
based
on s 39 of the Administration of Estates Act, 66 of 1965 ("the
Act"), and two SCA cases, namely
LEGATOR
McKENNA v SHEA
[1]
and
BESTERAND
&
OTHERS
NNO v SCHMIDT BOU ONTWIKKELINGS CC
[2]
.
S
39 (1) of the Act provides that:
"An
executor shall, subject to the provisions of subsections (2) and (3),
the Deeds Registries Act, 1937 (Act 47 of 1937),
cause immovable
property (including, in the case of a massed estate, any such
property forming part of the share of the survivor
or survivors of
that estate) to which an heir is entitled according to a distribution
account, to be registered in the name of
the heir, subject to any
rights and conditions affecting such property.
"
[4]
The first defendant claimed that on 27 March 2002 he was appointed as
the representative
of the deceased estate and that the plaintiff was
aware of this. He did not explain the circumstances surrounding the
transfer
of the immovable property into his own name.
[5]
Regarding
locus standi
the parties are
ad idem
that
only the executor has
locus standi
to liquidate and distribute
the deceased estate. Mr Bokaba argues that the first respondent went
further and distributed the estate
thereby registering the property
into his own name. This stands against the background that he
represented the estate and was not
the owner.
[6]
I reiterate what I said in my judgment that when the first respondent
registered the property
into his name there was no indication that at
the time the estate had already been wound up or that the liquidation
and distribution
account had been confirmed. Mr Bokaba asserts that
the executor was expected to comply with sections 29 (1) and 35 (1)
of the Act
which he failed to do in terms of s 36 (1). For easy
reference I will quote these sections in full. S 29 provides:
"29
Notice by executors to lodge claims
(1)
Every executor shall
, as soon as may be after
letters of executorship have been granted to him, cause a notice to
be published in the Gazette and in
one or more newspapers circulating
in the district in which the deceased ordinarily resided at the time
of his death and, if at
any time within the period of twelve months
immediately preceding the date of his death he so resided in any
other district, also
in one or more newspapers circulating in that
other district, or if he was not ordinarily so resident in any
district in the Republic,
in one or more newspapers circulating in a
district where the deceased owned property, calling upon all persons
having claims against
his estate to lodge such claims with the
executor within such period (not being less than thirty days or more
than three months)
from the date of the latest publication of the
notice as may be specified therein.
" My underlining
[7]
S 35 dealing with the liquidation and distribution account provides:
"35
Liquidation and distribution accounts
(1).
An executor shall, as soon as may be after the last day of the period
specified in the notice referred to in section 29 (1),
but within
-
(a)
six months after letters of executorship have been granted to
him; or
(b)
such further period as the Master may in any case allow,
submit to the Master an account in the prescribed form of the
liquidation
and distribution of the estate.
"
My
underlining
[8]
It is important to note that both sections are peremptory. S 36 (1)
deals with the executor's
failure to perform his/her duties. It
provides:
"36
failure by executor to lodge account or to perform duties
(1)
If any executor fails to lodge any account with the Master as and
when required by this Act, or lodge any voucher or vouchers
in
support of such account or any entry therein in accordance with a
provision of or a requirement imposed under this Act or to
perform
any other duty imposed upon him by this Act or to comply with any
reasonable demand of the Master for information of proof
required by
him in connection with the liquidation and distribution of the estate
may, after giving the executor not less than
one month's notice,
apply to the Court for an order directing the executor to lodge such
account or voucher or vouchers in support
thereof or of any entry
therein or to perform such duty or to comply with such demand.
"
In
casu
there is no indication that the first defendant complied
with the said provisions prior to registering the immovable property
in
his own name.
[9]
In Besterand
supra
the Supreme Court of Appeal held:
"{8}
Despite the liquidators' argument to the contrary on the papers the
court a quo held that, according to the undisputed
facts, there was
no real agreement to transfer the remainder and therefore that, on
the authority of Legator, Innova never became
owner of the property.
On appeal, the liquidators did not challenge the correctness of these
conclusions and find them incontrovertible.
From the finding that
Schmidt Bou remained the owner of the remainder, it should also
follow, as a matter of course, that Schmidt
Bou was entitled to
rectification of the deed of transfer in the records in the deeds
registry so as to reflect the true ownership
of that property.
"The
Roman law did not know of the transfer by registration: that is an
innovation of the Roman Dutch Law...The policy of our
registration
law with regard to fixed property requires the true contract under
which the land is held to be reflected on the register.
""
[10]
In Legator above Brand JA stated:
"[22]
In accordance with the abstract theory the requirement for the
passing of ownership are two fold, namely delivery
-
which in
the case of immovable property is effected by registration of
transfer in the deeds office
-
coupled with a so-called real
agreement or 'saaklike ooreenkoms
'.
The essential elements of
the real agreement are an intention on the part of the transferor to
transfer ownership and the intention
of the transferee to become the
owner of the property ...ownership will not pass despite registration
of transfer-if there is a
defect in the real right ..."
[11]
I
reiterate what I stated in para 12 of my judgment that the deceased
estate cannot be liquidated or distributed without letters
of
executorship or by the Master's direction.
[3]
This provision is peremptory.
[12]
Mr De Bruin, on behalf of the first defendant, argued that not all
deceased estates are
dealt with in terms of s 35 of the Act. In a
case where the deceased died after 27 April 1994 but prior to 15
October 2004 and
the estate was reported in the Magistrates' Court
the Magistrate had to finalise the estate in terms of the intestate
succession.
He contends that the estate had already been wound up on
27 March 2002 when the first defendant was nominated as the sole
beneficiary.
According to the first defendant no objection was raised
by the plaintiff from 27 March 2002 until 08 March 2013 when the
property
was transferred. He maintained that the plaintiff never
became the owner of the immovable property thereby acquiring a real
right
subject to acquisitive prescription but a personal right which
is subject to extinctive prescription.
[13]
Taking into account the two judgments of the SCA herein I am of the
view that another court may arrive
at a different decision.
In
the circumstances
I
grant the following order:
The
application for leave to appeal is granted to the Full Bench of this
Division.
BM
PAKATI
ADJP
On
Behalf of the Applicant:
ADV.BOKABA
Instructed
by:
Thomas Kouter Attorneys
On
Behalf of the Respondent: ADV.D E
BRUIN -1
st
Respondent
instructed
by:
Van de Wall & Partners
[1]
2010 91) SA 35
(SCA) para 22
[2]
2013 (1) SA 125
(SCA) para 8
[3]
S 13
of the
Administration of Estates Act, 66 of 1965