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[2014] ZAFSHC 69
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Leshoro v Nedbank Limited and Another (5131/2011) [2014] ZAFSHC 69 (20 March 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No: 5131/2011
In the matter
between:
REALOBOHA
INNOCENTIA LESHORO
…...............................................................................
Applicant
and
NEDBANK
LIMITED
…........................................................................................................
First
respondent
BALIBALI
TAKALANI
…...............................................................................................
Second
Respondent
CORAM:
MONALEDI,
AJ
HEARD
ON:
28
NOVEMBER 2013
DELIVERED
ON:
20
MARCH 2014
MONALEDI. AJ:
[1]
On 23 November 2011 the Applicant herein filed an application wherein
the following orders are sought:
“
1.
That the judgment granted in default against the defendant in the
main action and in terms of which, the immovable property belonging
to the Applicant herein is to be sold on auction, be rescinded and
set aside;
2. That the
transactions in terms of which the immovable property was;
2.1 firstly, sold to
a Mr. Eric Herbert Muniz by the late Ntshilane Lydia Leshoro and
financed by Brusson Finance CC; and,
2.2 secondly, sold
to the Defendant, in the main action and the Second Respondent
herein, by the said Mr Eric Herbert Muniz and
or Brusson Finance CC;
be and are hereby declared unlawful , thus, null and void ab initio
and of no force and effect;
3. That any warrant
and or post judgment execution steps, aimed at carrying the said
judgment into execution, be stayed pending
the outcome of this
application;
4. That the
Respondents jointly and severally, the one paying the other one to be
absolved, be ordered to pay costs hereof;
5. Further and or
alternative relief."
[2] The history of
the matter as set out in the founding affidavit is that the applicant
is the daughter of the deceased, Ntshilane
Lydia Leshoro (the
“Deceased”) and executrix in the deceased estate of her
mother. She also claims to be the only surviving
heir of the estate
of her mother and pre-deceased father.
[3] She alleges that
her mother apparently entered into a number of written agreements in
respect of the immovable property situated
at 1[...] C[...] Road,
D[...] W[...], which resulted in the property being transferred into
the name of Eric Herbert Muniz. It
was subsequently sold to the
second respondent who secured a loan from the first respondent and a
bond was registered over the
property in favour of the first
respondent.
[4] The second
respondent failed to make timeous payments in terms of the bond
agreement which led to a summons being issued and
judgment by default
entered against her in favour of the first respondent. The property
in question is occupied by the applicant,
hence her interest in the
rescission of the judgment by default.
[5] The first
respondent opposed the application. No notice to oppose was delivered
by the second respondent. The essential points
of contention raised
by the first respondent are as follows:
The
question of the
locus
standi
of
the applicant;
Whether she is
entitled to rescission;
If rescission is
refused, whether the court may grant the remaining relief, regarding
the declaration of invalidity and the wording
of such an order, if it
is to be granted.
The
success of the application hinges on the point of the
locus
standi
of
the applicant.
[6]
The court will consider the matter regarding the
locus
standi
herein
of the applicant. It is noteworthy that the Applicant dealt with this
matter in the replying affidavit but failed to fully
address the
issue in the heads of argument.
[7]
In
Mars
Incorporated v Candy World (Pty) Ltd
[1990] ZASCA 149
;
1991
(1) SA 567
(A) it was held that the general rule is for the party
instituting proceedings to allege and prove that he or she has
locus
standi,
the
onus of establishing that issue rests upon the applicant.
[8]
A person intending to institute or defend legal proceedings must have
a direct and substantial interest in the right which is
the subject
matter of the litigation
(
Jacobs
& ‘n Ander v Waks &
Andere
[1991] ZASCA 152
;
1992
(1) SA 521
(A) at 534A-E).
Locus
standi
concerns
the “sufficiency and directness of a litigant’s interest
in proceedings which warrants his or her title to
prosecute the claim
asserted” (Held in
Sandton
Civic Precinct (Pty) Ltd v
CityofJHB
& Another
[2008] ZASCA 104
;
2009
(1) SA 317
(SCA)).
[9] That is in
totality the nature of the interest the applicant was required to
show in order to show her right to come to court
seeking the relief
she sought in this case.
[10] The applicant
apparently lodged the application in her personal capacity. This is
evident from the application and the fact
that she does not state
that she is acting herein in her capacity as executrix. She then
states in paragraph 1.2 of the founding
affidavit that she founds her
“authority” on the assertion that she is the executrix of
the deceased’s estate,
the only heir of the estate and the
occupant of the property in question.
[11 ] The court will
deliberate each of these aspects.
[12] In respect of
the interest of the applicant as an occupant in the outcome of an
application for rescission, the court cannot
find any direct and
substantial interest. It is a possibility that once the property is
sold in execution, the applicant may have
to contend with an
application for eviction. An occupant have protection against an
unlawful eviction, but does not enjoy an unfettered
right to occupy
the property.
[13] The question
regarding the position of the applicant as an heir to the estate of
the deceased and thus having in interest in
the matter may be
addressed as follows.
[14] The applicant
was “duly authorised to take control of the assets of the
Estate of the late Ntshilane Lydia Leshoro...as
reflected in the
inventory filed with me...” according to the Letters of
Authority (Annexure “RIL1” of the founding
affidavit).
[15] Section 18(3)
of the Administration of Estates Act, 1965 (Act No. 66 of 1965)
provides that:
“
If
the value of any estate does not exceed the amount determined by the
Minister by notice in the Gazette, the Master may dispense
with the
appointment of an executor and give directions as to the manner in
which any such estate shall be liquidated and distributed.”
[16] The amount
determined under Government Notice R.1318 in Government Gazette 25456
of 19 September 2003 was R125 000,00.
[17] The inventory
provided to the Master included furniture, a motor vehicle, cash and
a policy all to the value of R37 034,97.
This amount is significantly
lower than the amount determined and as a result the authority to
take control, liquidate and distribute
the assets.
[18]
It is not in contention that the agreements leading to the alienation
of the property may be suspect and that the offending
agreements were
entered into and concluded in 2006. It is further not in dispute that
the deceased passed away on 17 April 2008
where-after the
authorisation was issued. It is significant that the immovable
property was not listed. The only inference was
that the property did
not form part of the estate of the deceased as the transactions were
already concluded and the property transferred.
Only after the
decision of this court in
Ditshego
and Others v Brusson Finance (PTY) Ltd and
Others
under
Case number 5144/2009 was delivered on 22 July 2010, did the
applicant institute proceedings herein.
[19] In Wille’s
Principles of South African Law 9th ed, at p 673, under the heading
“Title of Beneficiaries”,
the following is said:
“
However,
in the light of the modern system of administration of estates that
replaced the common law system of universal succession,
the right of
the beneficiaries to inherit is no longer absolute nor an assured
one: If the deceased estate, after confirmation
of the liquidation
and distribution account, is found to be insolvent, none of the
beneficiaries will obtain any property or assets
at all... In any
event, an heir cannot vindicate from a third person property which
the heir alleges forms part of the deceased
estate; only the executor
has that power... The modern position is therefore that a beneficiary
has merely a personal right,
jus
in personam ad rem acquirendam,
against
the executor and does not acquire ownership by virtue of a will.”
[20]
In
Booysen and
Others v Boovsen and Others
(29558-10)
2012 (2) SA 38
(GSJ) (25 March 2011) it was held as follows:
“
In
regard to the legal status of both the deceased estate and the
executor, the deceased estate is not a separate persona, but the
executor is such person for the purposes of the estate and in whom
the assets and the liabilities temporarily reside in a representative
capacity. The executor only, has locus standi to sue or to be sued.”
[21]
The effect of this was stated in
Parkies
and Others v Parkies
and
Others
(1650-07)
[2010] ZAECMHC 3 (14 January 2010) that heirs at no stage become the
owners of the estate property but acquire a right
to inherit from the
estate after being declared as heirs. What they have is merely a hope
that they may inherit.
[22] It was stated
by the first respondent that to grant the application would mean that
the property would form part of the deceased
estate. The value being,
in excess of R125 000,00, would mean that the Master of the High
Court, was not entitled to make an appointment
in terms of
section
18(3)
of the
Administration of Estates Act of 1965
, Act 66 of 1965.
[23] Although the
applicant may under different circumstances have had a real interest
in the matter as potential heir in the deceased’s
estate, the
court finds that is not the case here.
[24] Lastly the
Applicant asserted that she is the executrix of the deceased estate.
In view of what was said herein, this is inaccurate
as she was only
appointed as the representative of the Master of the High Court.
[25]
In
Jacobs v
Baumann N.O.
2009
(5) SA 432
(SCA) it was held that:
"The
rule in our law is that the only proper person to litigate on behalf
of a deceased's estate, in the vindication of its
assets,
is
its
executor
(my
emphasis) even to the exclusion of the beneficiaries in the estate."
[26] Having regards
to the terms of section 18(3) and the letter of authority issued by
the Master, there is no doubt that the applicant
does not have the
authority to institute the present action even if she acted in a
representative capacity for and on behalf of
the estate.
[27] The court finds
that the applicant does not have locus standi to institute the
application herein.
[28]
Although it may not be necessary to consider the aspect if she is
entitled to make an application for rescission in view of
her lack of
locus standi,
the
court finds further that she is not entitled to bring an application
for rescission as she is not a party to the initial proceedings
as
envisaged in Rule 42 or under the common law.
[29] Lastly the
court considered the submissions by the first respondent in relation
to declaration of the transfer to be void.
The court will not
consider the notion as other parties affected thereby is not before
the court as was the case in the Ditshego
matter. The court therefore
cannot grant the relief, even if the court can make the orders
suggested by the first respondent to
safeguard its interests.
[30] As a result the
following order is made:
1. The application
is dismissed in respect of prayers 1, 2 and 3;
2. The Applicant is
ordered to pay the costs of the first respondent.
S. MONALEDI, AJ
On behalf of
applicant: Grimbeek Attorneys
c/o Grimbeek
Attorneys 61 Keilner Street Westdene BLOEMFONTEIN
On behalf of first
respondent: Cliff Dekker Hofmeyer
c/o Webbers
Attorneys 96 Charles Street BLOEMFONTEIN