J J Lazenby t/a Lazenby Transport v Saayman NO (1246/06) [2009] ZAFSHC 6 (29 January 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2009
>>
[2009] ZAFSHC 6
|

|

J J Lazenby t/a Lazenby Transport v Saayman NO (1246/06) [2009] ZAFSHC 6 (29 January 2009)

IN
THE HIGH COURT OF SOUTH AFRICA
(FREE
STATE PROVINCIAL DIVISION)
Case No. : 1246/06
In
the
matter
between:-
J
J LAZENBY t/a LAZENBY TRANSPORT
Plaintiff
versus
M
SAAYMAN N.O.
Defendant
_____________________________________________________
CORAM:
H.M.
MUSI, JP
_____________________________________________________
HEARD
ON:
20
JANUARY 2009
_____________________________________________________
DELIVERED
ON:
29
JANUARY 2009
_____________________________________________________
JUDGMENT
_____________________________________________________
H.M.
MUSI, JP
[1]
The
plaintiff has instituted action against the defendant for damages
arising out of a collision that took place between the plaintiff’s

motor vehicle and a motor vehicle driven by the defendant’s
deceased husband. The defendant is being sued in her capacity as

executrix of the estate of her late husband (the deceased).
[2] In
addition to her plea on the merits, the defendant filed a special
plea. When the matter came up for hearing, the parties
reverted to
an agreement they had earlier reached during the course of the
pre-trial conference held in this matter and which is
set out in
paragraph 7.2 of the pre-trial minutes as follows:
“
The parties have
agreed that the matter will only proceed on the 20
th
January 2009 on the issue of the special plea to be decided. The
balance of the issues between the parties will be postponed,
with the
consent of the Honourable Court to a later date for determination if
necessary. The parties will also consider whether
this is an
appropriate matter for a stated case to be referred to the Court on
the special plea, alternatively whether a list of
admissions will be
submitted to the presiding Judge. The parties will revert to one
another in this regard.”
[3]
No
stated case was put before the court nor were any formal admissions
submitted. What was submitted was an affidavit by Mr. Willem

Francois Bouwer, the attorney who administered the deceased estate on
behalf of the executrix. A letter written by the plaintiff’s

attorneys was also submitted which briefly stated that the plaintiff
will admit contents of Bouwer’s affidavit save that plaintiff

denies that he did not lodge a claim with the estate and indicating
that attempts were unsuccessfully made to obtain information
from the
executrix (apparently relating to the administration of the estate).
[4] The parties requested
that I should adjudicate the validity of the special plea on the
basis of the common cause facts set out
in the pleadings together
with Bouwer’s affidavits, without hearing evidence. Counsel for
the plaintiff indicated that he would
accept the correctness of
Bouwer’s affidavit for present purposes.
[5] There
are two legs to the special plea. The essence of the first leg is
that the plaintiff has failed to lodge his claim with
the executrix
of the estate, nor does his Particulars of Claim contain an averment
to the effect that he lodged his claim with
the executrix. It is
contended that the defendant administered the estate by complying
fully with the requirements of the Administration
of Estate Act, 66
of 1965, (the Act), prepared a proper liquidation and distribution
account and caused same to be published and
to lie for inspection as
required by the Act. There having been no objection filed with the
executrix, the defendant proceeded
to distribute the assets to the
heirs (the defendant was the only heiress) in accordance with the
account and that there are no
further assets in the estate. It is
contended that, in the premises, the plaintiff is not entitled to sue
the defendant. In argument,
it was disclosed that the defendant
relies on the defence of
plene
administravit
in
this regard.
In
the second instance, the defendant contends that the particulars of
claim do not contain an averment to the effect that the
heirs had
been unduly enriched at the expense of the plaintiff, the absence of
which averment means that the particulars of claim
do not disclose a
cause of action.
[6] Based
on Bouwer’s affidavit, it can be accepted that the deceased’s
estate was fully and duly administered in terms of the
provisions of
the Act and the assets duly distributed and transferred to the heirs.
It can further be accepted that the plaintiff
did not lodge his
claim with the executrix as required by the Act or at all. The
question of his claim being considered and rejected
does not
therefore arise nor does the question of the Master having made any
decision in regard thereto. As a matter of fact,
by his own
admission, the plaintiff first became aware of the identity of the
person charged with the administration of the estate,
Bouwer, when a
notice of intention to defend was served.
[7] It
can also be accepted on the basis of Bouwer’s affidavit that there
are no further assets in the estate. And it is common
cause that
though the executrix has complied fully with the requirements of the
Act and completely finalised the estate, she has
not been discharged
in terms of section 56(1) of the Act.
[8] The
question to be decided in relation to the first part of the special
plea is whether the plaintiff is debarred by virtue
of the expression
plene
administravit
from
suing the executrix in the circumstances outlined above. Mr.
Woodrow, for the defendant, relied entirely on the matter of
FAURE
v BRITZ NO
1981 (4) SA 346
(OPD), especially the passage at p. 351G – H where
Malherbe AJ (as he then was) implied that such defence could operate
if the
estate has not only been finalised and that there are no
further assets, but also that the administration thereof was fully
and
duly executed. Mr. Woodrow submitted that the facts of this case
meet all such requirements and that the defence should therefore

apply. Mr. Woodrow was fully aware of more recent judgments that
clearly disagreed with the view expressed in
FAURE
v BRITZ
.
He nonetheless submitted that I am not bound by those decisions and
that I should follow
FAURE
v BRITZ
,
being a judgment of this Division.
[9] In
the matter of
VISSER
v SCHMIDT NO
2001 (3) SA 810
(T), a full bench judgment, the court rejected the
view that a creditor of an estate is precluded from suing the
executor of the
estate where the estate has been completely finalised
and he has not lodged his claim. The court remarked as follows at p.
820H
– I:
“
With the
qualifications presently to be noted, the
Stanford
judgment has consistently been followed regarding the availability of
a common-law action against the executor despite not having
complied
with formalities relating to the lodging of a claim and disputing the
rejection thereof. See,
inter
alia
,
Davids
v Estate Hall
1956 (1) SA 774
(C);
Kamatchee
v Kunniamma
1961 (3) SA 100
(D);
MacDonald,
Forman & Co Ltd v Van Aswegen en 'n Ander
1963 (3) SA 173
(O) and
Grobler
en 'n Ander v Jacobs NO
1965 (4) SA 724
(O).”
About
the so-called defence of
plene
administravit
the court had this to say:
“
The term
plene
administravit
,
as a matter of linguistics, may be an adequate description of a
factual situation where an executor has fully and duly administered

an estate. The preceding overview, however, leads us to differ
respectfully from the Court a quo. As a substantive defence available

to an executor, it is not well established in our law and it is
certainly not well defined. Reference to the phrase seems to be
an
echo of what is known in the English law but, if so, it is an
imperfect and imprecise echo.”
[10] Mr.
Reinders, for the plaintiff, cited other judgments of this Division
that fully accord with the views expressed in
VISSER
v SCHMIDT
,
supra
.
See
McDONALD,
FORMAN AND CO. LTD v VAN ASWEGEN
1963 (3) SA 173
(O);
BENADE
v BOEDEL ALEXANDER
1967 (1) SA 648
(O);
ELS
NO v JACOBS
1989 (4) SA 622
(SWA). Compare also
TOLSTRUP
NO v KWAPA NO
2002 (5) SA 73
(W).
[11] It
should be noted, as was pointed out in
VISSER
v SCHMIDT
,
supra
,
that the remarks in
FAURE
v BRITZ
,
supra
,
about the applicability of the defence of
plene
administrativ
do not constitute the
ratio
decidendi
of the judgment and, being
obiter
,
are not binding. In my view, as long as long as the executor in an
estate has not been discharged in terms of the provisions
of section
56 of the Act, a creditor whose claim was not dealt with in the
administration of the estate in terms of the Act, is
not precluded
from instituting action against the executor as representative of the
estate. Nor can the fact that there are no
further assets in the
finalised estate be an obstacle. In the latter regard, it was
pointed out in
VISSER
v SCHMIDT
,
supra
,
that when a judgment is sought against an individual the question
whether he has assets with which to satisfy the judgment is

irrelevant.
[12] The
second part of the special plea can readily be disposed of. As Mr.
Reinders correctly submitted, the plaintiff did not
seek to recover
damages from the heirs. His claim was not based on the
condictio
indebiti
and there was therefore no need to make any averments regarding
enrichment in the particulars of claim. This part of the special

plea simply has no merit. Moreover, it is the type of objection that
should have been raised by way of an exception.
[13] Mr.
Woodrow submitted that if I should dismiss the special plea, I should
make an order similar to the one made in
VISSER
v SCHMIDT
,
supra
.
I see no point in making such an order. It is settled that a
creditor in the position of the plaintiff cannot lay claim to the

assets that have been duly distributed in terms of the liquidation
and distribution account of the estate. If there are no reasonable

prospects of uncovering further assets belonging to the estate, it
will be up to the plaintiff to consider the advisability of

proceeding further with his action.
[14] The
special plea is dismissed costs. The case is postponed
sine
die
.
___________
_
H.M.
MUSI, J
P
On
behalf of
plaintiff: Adv.
S.J. Reinders
Instructed by:
Honey Attorneys
BLOEMFONTEIN
On
behalf of
defendant: Adv. C. Woodrow
Instructed by:
Wessels & Smith
BLOEMFONTEIN
/sp