Executor Estate: Sorour v Scowby (AR232/08) [2009] ZAKZPHC 58 (4 September 2009)

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[2009] ZAKZPHC 58
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Executor Estate: Sorour v Scowby (AR232/08) [2009] ZAKZPHC 58 (4 September 2009)

NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL,
PIETERMARITZBURG
Case No:
AR232/08
In
the matter between:
EXECUTOR
ESTATE LATE
LEBANON
JACOB SOROUR
Appellant
a
nd
G
W T SCOWBY
Respondent
­­­­­­­­­­­­­­­­­­­
JUDGMENT
SISHI
,
J :
[1] This is an
appeal against the judgment of the Magistrate of Port Shepstone
granting an order in terms of section 72 of the Magistrates’
Court
Act 32 of 1944 (“The Act”) against the Appellant. The Magistrate
made an order in the following terms:
“Whereas
it has been made to appear to the above Honourable Court that a debt
is at present or in future owing or accruing to
the Judgment Debtor
by or from the Garnishee;
It is ordered:
That the said
proceeds in respect of the benefit accruing to the First Respondent,
being a beneficiary in the Estate Late Lebanon
Jacob Sorour, Estate
No. 789/2005 PMB be attached for the amount required as specified in
paragraph 2 hereof.
That the
Garnishee pay the Judgment Debtor’s Attorneys so much of the debt
as may be sufficient to satisfy a judgment obtained
against the
Defendant, by the Judgment Creditor in the Port Shepstone
Magistrate’s Court at Port Shepstone on the 28 January
2004 for
the sum of R49,442.87 and judgment costs which were taxed in the sum
of R18,249.18 as also for payment of the further
costs and interest
incurred in the sum of R19,930.52 i.e. total outstanding at date
hereof R87,622.57, plus further interest
@ 15,5% per annum from 8
th
June 2007 to date of final payment, plus sheriff’s fees and
further costs which may be incurred.
If the Garnishee fails to pay the
Judgment Debtor’s Attorneys as aforesaid, he shall appear before
the court on 29 January 2008
at 9h00, Civil Court Port Shepstone to
show course why they should not pay same”.
The reference in
the order to First Respondent is a reference to one P
.J.
Sorour. The reference to “the Garnishee” is a reference to the
present Appellant. The reference to the “Judgment Creditor”
is a
reference to the present Respondent.
[2] The background
facts leading to the institution of this appeal
are as follows :
The Respondent had
been granted judgment in his favour against P.J. Sorour for the
amount of R49,442.87 together with interest and
costs.
The Applicant
alleged that P.
J.
Sorour would be inheriting an amount of R2,320,887.90 from his late
father’s estate and that the Respondent was the nominee
of the
executor of that deceased estate, and in that capacity was holding
certain funds on behalf of P.J. Sorour.
[3]
Mr
Blomkamp who appeared for the Appellant submitted that although the
application was opposed, the Magistrate granted the application.
In
finding that she should grant the application, the Magistrate
accepted as a fact that “the First Respondent “ i.e. P.J.
Sorour”
will be inheriting an amount of R2,320,887.90 from the State Late
Lebanon Jacob Sorour (hereinafter referred as to “the
Garnishee”)
and that “funds were being held on behalf of the First Respondent
in Trust by attorneys B.W. Dwyer of Matatiele
who were the duly
authorised nominee of the executor/s”
[4]
Mr
Blomkamp submitted that the question that arises in this case is
whether an expectation of an inheritance such as the case herein,

falls within the ambit of Section 72 of the Magistrate’s Court Act,
whether it is any debt that is in future owing or accruing
to a
Judgment Debtor by or from any other person, where the potential heir
is the debtor and the other person is the executor of
the deceased
estate. It is common cause that the definition of debt in section 61
of the Magistrate’s Court Act is not helpful
either.
[5]
Section
72 of the Magistrate’s Court Act 32 of 1944 reads as follows:
“
72
Attachment
of debts
The court may,
on ex parte application by the judgment debtor … order the
attachment of any debt at present or in future owing
or accruing to
a judgment debtor by or from any other person (excluding the State),
residing, carrying on business or employed
in the district, to an
amount sufficient to satisfy the judgment and the costs of the
proceedings for attachment, whether such
judgment has been obtained
in such court or in any other magistrate’s court, and make an
order (hereinafter called a “garnishee
order”) against such
person (hereinafter called the “garnishee”) to pay to the
judgment creditor or his attorney at the
address of the judgment
creditor or his attorney, so much of the debt as may be sufficient
to satisfy the judgment and costs,
and may enforce such garnishee
order as if it were a judgment of the court”.
Mr Blomkamp
submitted that the question posed above has to be answered in the
negative because an accruing debt, for a start, section
72 in the way
it is worded, in the way it is framed, postulates four situations,
being a debt owing at present or a debt owing
in the future or a debt
accruing in the future but that is not what the legislature could
have meant, because a debt accruing at
the present does not really
make sense. What was intended was that that expression is to be read
as: any debt at present or in
future, respectively owing or accruing
to a judgment debt. The words “in the future” were intended to
be relative to “accruing”
and the words “at present” were
intended to be relative to the words “owing”.
[6]
The
question then is whether the hope of receiving an inheritance once
the executor has wound up the Estate, and the final account
has lain
for inspection and then confirmed by the Master, the hope or
expectation of receiving an inheritance at that stage falls
in the
ambit, can be described as a debt accruing in the future.
[7]
Mr
Blomkamp submitted, correctly in my view, that if one were to inherit
property as opposed to money that could not be the subject
of a
“garnishee order”. In terms of section 72 the Act a debt for the
purposes of section 72 of the Act must be understood
as a debt
sounding in money and Mr Blomkamp submits that, that is the only way
the section can work.
[8] In the present
matter if one looks at how the prospective inheritances of
R2,320,887.99 are made up, it appears to be made up,
of the bulk of
the estate that give rise to the inheritance seems to be shares or
undivided shares in a great variety of immovable
properties, mostly
one-fifth shares. From the
aliunde
account, it is not clear whether those properties were all going to
be sold and the money forming the inheritance passed on, or
whether
they would simply be valued and the proportionate share of the
immovable property would be passed to the heirs at a valuation
making
up of R2,32,887.99. Either of the two could happen in this case.
[9
] If
one looks at the
aliunde
account under the immovable property, the deceased had a one-fifth
share in various properties. The deceased was himself one of
the 5
children and he received a one-fifth undivided share in a number of
properties. Those would in turn be passed on to his
heir or each of
those shares would have to be sold and turned into money. The other
possibility is that for the purposes of the
aliunde
account, a value is attached to the piece of property or that
sub-division that is passed on, or share that is passed on. In the

end what the heirs gets is property valued at R2,320,887,99.
[10
] It
is clear from the record that everybody at the garnishee proceedings
thought in terms of inheritance in the form of cash money
accruing to
the Respondent. Yet, that might not be a situation.
[1
1] Mr
Blomkamp submits that even in the situation where all the assets in
the estate will have to be reduced to money and what will
be
transferred to heirs, will be amounts of money, even in that
situation the expectation of being made a money payment by an
Executor cannot fall within the ambit of a debt accruing in the
future, as contemplated by Section 72 of the Act. Mr Blomkamp
submitted that an accruing debt as pointed out in the case of
Honey
& Blanckenberg v Law
1966 (2) SA 43
(R) is a debt which is not yet actually payable but
which is represented by an existing obligation. It is not yet due.
The Executor’s
obligation to the heir or legatee is merely to
deliver or transfer to the heir or legatee his legacy “if such
remains” or his
share of the residue of the estate that may remain
once all the debts of the estate have been settled. If nothing
remains after
paying the debts, there will be no claim that can be
enforced against the Executor. If something does remain after paying
the
debts, an obligation will then come into being requiring the
Executor to pay the heir or the legatee. This obligation can only
be
enforced once the liquidation and distribution account has been
confirmed, that is, once the estate has become distributable
under
Section 35 (12) of the Administration Act 66 of 1965 when the account
has lain for inspection (and been advertised as so
lying) and no
objection has been lodged or one has been lodged and has fallen away.
[12
] Mr
Blomkamp submitted that the position is set out in the judgment of
Centlivres
CJ and Greenberg & Others v Estate Greenberg
1955(3) SA 361 (A) at 364:
“
The position
under modern system of administering
deceased
estates is that when a testator bequeaths property to a legatee, the
latter does not acquire the dominium in the property
immediately on
the death of the testator but what he does acquire is a vested right
to claim from the testator’s executors at
some future date delivery
of the legacy, i.e. after confirmation of the liquidation and
distribution account in the estate of the
testator. If, for
instance, immovable property is bequeathed to a legatee, he acquires
a vested right as at the death of the testator
but he does not
acquire the dominium in that property until it is transferred to him
by the executor. If that property has to
be sold in order to pay the
debts of the estate, the legatee may never acquire the dominium in
that property”
His right is not
attachable and is not enforceable until such time as the account has
lain for inspection
and has been confirmed by the Master. It only becomes enforceable at
that stage. It is still a use
ad
aquirendi
.
It is nothing more than a
spes
and the general principle is that a
spes
is not attachable and the authority for that are the cases of
McPhee
v McPhee
1989(2) SA 765 (N);
Mears
v Pretoria Estate and Market Co Ltd
1906 TS 661
;
Soja
(Pty) Ltd v Tuckers Land Development Corporation (Pty) Ltd and
Another
1981(2) SA 407 (W).
[13
] In
Mears
v Pretoria Estate and Market Co,
supra
,
INNES CJ stated as follows at 668:
“
It is not
necessary, it seems to me, to attempt to define exactly what
interests
and claims can be attached, nor to attempt to indicate the extent to
which, possibly, the machinery of interdict or garnishee order
might
be available to applicants in cases where they cannot attach
so-called rights. All we have to decide is whether a mere
expectation or
spes
can
be attached, in my opinion it cannot”
[14
] Mr
Dutton for the Respondent submitted that on the death of the deceased
the heirs acquire a right to their inheritance insofar
as that
inheritance eventually is found to have some value. He submits that
it is not accurate to refer to that right as
spes
.
The heirs have a right which is vested in them and they are entitled
to enforce that right. Mr Dutton seems to concede that
it is
essential for the garnishee order that what is attached must sound in
money. Mr. Dutton submitted that if one looks at the
garnishee order
itself, it seems to support the notion that the inheritance in this
case will have to sound in money, in other
words, the claim would
have to sound in money because the order made by the court
a
quo
reads as follows: “whereas it has made to appear to the
abovementioned Honourable Court that a debt at present or in future

owing or accruing to the Judgment Debtor from the garnishee, that the
said process in respect of benefit be attached for the amount

required as specified in paragraph 2 and that the garnishee pay the
Judgment Creditor’s Attorneys so much of the debt as maybe

sufficient to the judgment”. He conceded that the order purports
to attach an amount of money. He submitted that that situation
will
only be capable of being established once the accounts are laid for
inspection. In the present case one does not know at
this point
whether there is going to be a debt sounding in money or simply
property or both.
[15
] The
assets forming the basis of the inheritance in the
aliunde
account to the three heirs, there is a whole series of undivided
one-fifth shares in a great number of immovable properties. There
is
no indication in that
aliunde
account how they were going to be turned into money, whether they
were all going to be sold. There is reference to the movable

property and the household having been sold on auction and produced
about R13,195,00. The movables have been sold and they have
been
turned into money but there is no indication on that, that the
immovable property which constituted the bulk of the value
of the
estate had been auctioned or otherwise turned into money. They were
simply valued and that value was divided into three,
after deduction
of expenses. Those are the properties forming part of the inventory.
But, when they are all individually valued
and put together to form
the estate of the deceased in this case, Sorour, after deduction of
expenses the balance is divided into
three and one arrives at the
figure of R2,320,887.90 each. But, there is no indication that it is
cash because there is no recapitulation
statement attached to that.
What the Respondent here is going to receive from his father’s
estate is then one-third of one-fifth
of each of the individual
properties which on the value attributed to each would give him
R2,320,887.90 but he wont have that in
cash.
Mr Dutton conceded
that it was unknown at that point what was going to happen
ultimately. It might happen that he receives property.
[1
6] When
it was put to Mr Dutton that the order made by the Magistrate on 11
December 2007, ordered the executor to pay forthwith,
Mr Dutton
disagreed and submitted that what the order is postulating is that
the Magistrate has been satisfied that there is a
judgment debt
pressing and owing or in future owing or accruing. When it was
further put to him that in terms of this order if
the garnishee fails
to pay the judgment debt as aforesaid, he should appear before this
court on 29 January 2008 to show cause
why he should not pay the
same, Mr Dutton agreed and however stated that if he were to appear
on that day he would say that the
debt is not yet payable, the
accounts are still lying for inspection. But if one looks at the
Magistrates reasons, the Magistrate
has rejected that because part of
her reasons is that the Executor is holding in trust funds for the
debtor for the Respondent.
Mr Dutton submits that this is not a
situation where the Executor is now being ordered to pay the debt
which was found to be due.
All that has happened in terms of the
garnishee order is that the Magistrate has said: “I am satisfied
that there is a debt
in the now or in future is payable”. But
again this overlooks the fact that the Executor is called upon to
show cause a month
later why he has not paid. Mr Dutton submits that
if the Executor comes to court and says that he has not paid because
accounts
have not lain for inspection and therefore the debt is not
yet due, that is a perfect defence. Again, the Executor mentioned
this
in the affidavit in Court but the Magistrate in her reasons
rejected the submission by the Executor.
[1
7] The
following proposition was put to Mr Dutton by the Court:
“
T
he
Executor says:
There is nothing
due to the Respondent at this stage, because, I
am in the middle of proceeding with the Estate, I have done a draft L
and D account, it has gone to the Master, the Master has
got queries.
Until those queries have been sorted out, it is unclear what the
Respondent is going to get out of this Estate.
Yes, he is an heir,
there is a vested right, but the amount that is going to accrue to
him, and they don’t deal with this discretion
of property versus
cash that is going to accrue, but is inherent in what he says. I
don’t know what is going to accrue to him,
there is nothing due to
him at the moment. The Magistrate rejects all that. She says I know
you are holding money for the Respondent.
In other words, you are in
a debtor-creditor situation. Pay and if you have not paid after this
order, come and appear in court
on 29 January 2008, to come and show
cause why you should not pay. Now he has already shown cause
presumably he will be up for
contempt if he arrives and he gives the
same argument. The Magistrate says, but I have heard all that”.
[18
] In
this regard Mr Dutton submits that it is not necessarily so because
the effect of the Magistrate’s decision is that it is
common cause
that the account has not lain for inspection and therefore the
Executor is under no obligation at that point to pay.
It follows,
legally, it is not set out in her judgment, but the legal
consequences of that, is that he is under no obligation
to make
payment in fact he is under obligation not to make payment.
According to Mr Dutton, the effect of the order is simply
that when
it comes to the point that the Executor needs to make payment, he
must do so. According to him it can’t mean something
else. Mr
Dutton’s submission in this regard overlooks the fact that this was
all debated before the Magistrate, before the order
was made.
[19
] It
seems that the Magistrate was under an impression that it does not
matter whether the account has lain for inspection or not.
This is
clear from the Magistrate’s reasons, where she states that the
court chooses not to enter the arena as to whether the
inheritance is
vested or not, save to say that the beneficiary has a personal right
to claim from the Executor “when it falls
due”. The argument as
to when the First Respondent’s request became due is certainly one
that must be traversed. But she
does not traverse it. This is
clearly a misdirection on the part of the Magistrate.
[20
] Mr
Dutton submitted that what the garnishee order meant is that there is
a debt which is accruing in the sense that it will be
payable in the
future. It is an obligation which arises at present, payable at some
future date. Once the accounts have lain
for inspection, it would
then be payable. Mr Dutton’s submission in this regard cannot be
correct in that the order of the Magistrate
does not say pay in
future, it says pay when the Executor says at that stage of opposing
the garnishee order, there is nothing
owing because the estate is not
finalised, the Magistrate says that he is just delaying. It is
blatantly obvious that the delaying
tactics do not lie with the
Master. In fact, the Magistrate said the following in her reasons
for judgment:
“
The Master’s
queries pr
omptly
followed in October 2007. It is blatantly obvious that the dilatory
tactics do not lie with the Master but with the executors
and or
possibly with the legal representative. This is a further factor that
has sowed seeds of doubt in the mind of the court
as regards to bona
fides of the above mentioned. To add insult to injury some of the
queries raised by the Master are issues that
any Attorney qualified
to wind up the deceased’s estates should all too well be aware of.”
[21
] Mr
Dutton submitted that if the Magistrate’s order is to be read in
the manner suggested, that the Executors immediately applies
to make
payment of that full amount, then clearly that order is just
improperly worded. It simply cannot stand up to legal scrutiny.
He
submits that, that cannot be the meaning of that order. It may well
be that the order needs to be revisited. But it still
begs the
question as to whether an obligation is attachable. The obligation
which the Executor has towards the heir, is the right
which the heir
has towards his inheritance. He submits that he has that right and
that right is in fact attachable. He submits
that once that right is
attachable in the general sense then there is no reason whatsoever
why a garnishee order should not be
granted in respect of that right.
[22
] Mr
Dutton referred to the case of
Vrede
Ko-Operatiewe Landboumaatskappy v Lourens
1962(3) SA 952 (OFS) wherein an attachment was allowed of an heir’s
right where it had to vested but there was still uncertainty
as to
the amount. He referred to the footnote which reads as follows:
“
The court
granted the application of a judgment creditor, where he applied for
an order authorising him to attach the judgment debtor’s
interest
in a certain inheritance and where it appeared that the judgment
debtor has a vested right in certain property … although
the amount
of the sum was still uncertain”.
[23
] But
one does not have to quantify the value of a right for the purposes
of an attachment in Sale In Execution. The right that
is attached
and sold in execution does need to be a debt whereas the Garnishee
order in terms of section 72 of the Act seems to
deal with a debt.
One permits execution against the right that is not a debt as such
and does not have a said value. It might
not have any value or have
any value. Whereas the garnishee rights that you attach must sound
in money.
[24
] Mr
Dutton then referred to the case of
Seegers
v Retreat Motors
1953(4)
SA at 422C. Mr. Dutton dealt with the facts of this case and
submitted that what the Court was dealing with therein is
a question
of a contingent right and whether there was a contingent right or
not. In the context that the Judge made a remark
about not dealing
with the word
owing.
But where it is of assistance is that in that case the Industrial
Council had held monies on behalf of employees, just as
the Executor
holds monies on behalf of the heir and deals with them under certain
obligations. That case can clearly be distinguished
from the present
case in that the executor does not hold monies on behalf of the heir.
He holds the monies because both the assets
and liabilities in the
estate vest in the executor. In this case there is no creditor. The
executor is not a debtor of the heir
until liquidation and
distribution account has been approved and there becomes an
obligation upon him in terms of that to discharge
whatever money is
due to the heir.
[25] What is clear is that the heir
cannot institute an action against an executor for delivery of his
inheritance until the Liquidation
and Distribution account has been
approved. Only at that stage the heir acquires a personal right
against the executor for delivery.
The other difference between
Seeger’
s
case and the present case is that in
Seeger
’s
case the Court found that there is a debt within the ambit of section
72 of the Act because the Pension Fund Unemployment Commissioner

actually held money paid over by the employer. In the present case,
as Mr. Blomkamp submitted, there is no debtor/creditor relationship

and it is uncertain that an amount is going to become due for payment
in future but certainly does not arrive until the Liquidation
and
Distribution account has been approved. Unlike any attachment in
execution in terms of section 72 of the Act the right to
attach is
limited to a debt.
[26] In the final analysis I find that
Mr. Blomkamp’s submission that the Magistrate’s order is capable
of no other reading
than that she ordered that the executor must pay
that amount which she spelt out in the order together with interest
and costs
forthwith or by certain date in January 2008, is correct.
[27] The Magistrate was also under an
erroneous impression that the executor was holding funds on behalf of
the respondent, P.J.
Sorour. The Magistrate was completely wrong and
she misdirected herself in this regard. In the present matter the
Executor is
not a debtor to the heir, until the Liquidation and
Distribution account has been approved and there becomes an
obligation upon
him then to discharge whatever monies are due to the
heir.
[28] The Magistrate ought to have
found at the very best that until the laying open of inspection
without objection of the Liquidation
and Distribution Accounts for
the prescribed periods there was no debt at present or future owing
or accruing to the First Respondent
by the Appellant, and that the
application in terms of section 72 of the Act was premature.
[29] The Magistrate ought to have
postponed the granting of a final order pending the finalisation of
the estate or dismiss the
application. She therefore erred in this
regard.
CESSION
[30] Mr Blomkamp submitted that there
was no basis for ignoring cession, this being a case that had to be
decided on the papers.
He submitted that the fact that the
inheritance had been ceded was not rebutted by the Applicant in the
Court
a quo.
The Magistrate should have
referred the matter to oral evidence. She ought not to have made a
finding as to whether or not there
was a cession simply on the basis
of the papers and disputed allegations on the papers. She should
either have sustained it or
if she was doubtful about it should have
referred the matter for oral evidence and if she was not going to
refer it for oral evidence
the approach laid down in the
Plascon-Evans
Paints Ltd v Van Riebeek
Paints Ltd
1984(3) SA 623
(A) at 634 F – H case should have been applied. There was
therefore no basis for the finding she made with regard
to cession.
[31] Mr Dutton submitted that one does
not know whether the cession is valid or not at this point, that is
something to be determined
in future, and the executor will look into
it. The account will lie for inspection, and ultimately, the
decision will be taken
at that time. He then submits that if the
cession is not valid then it seems that in all probability there will
be money ultimately
owing to the heir.
[32] As Mr Blomkamp has pointed out
correctly in my view that the fact that the inheritance had been
ceded was not rebutted by the
Applicant in the Court
a
quo
.
The matter should have been referred to oral evidence and if not she
should have followed the approach laid down in
Plascon-Evans
case
supra
and
sustained it. There was entirely no basis for the finding that the
inheritance had not been ceded. The Magistrate misdirected
herself
in this regard.
[33] Having considered all the
material placed before Court, I am satisfied that the appeal should
succeed in this matter.
[34] Mr Blomkamp submitted that the
appeal should be upheld and an order by the Magistrate be set aside
and the appellant should
be awarded the costs of the appeal and his
costs in the Court
a quo.
On the other hand Mr.
Dutton submitted that the appeal should be dismissed with costs.
In the result I make the following
order :
1. The appeal is upheld.
2. The order made by the Magistrate is
set aside and there is substituted therefore by an order, as
follows;
.
"
The
application is dismissed, with costs.
"
3. The Respondent (judgment creditor)
is ordered to pay the costs of the appeal
.
_____________________
SISHI, J.
VAN ZÿL, J. :
I have had
the opportunity of reading the judgement of my brother Sishi, J. and
I agree with the conclusions reached, as well
as the order proposed.
I would, however, like to add thereto a few remarks of my own in
regard to the matters in dispute in this
appeal.
At issue is whether the debtor
stands to inherit from the estate of his late father, herein
represented by the appellant as executor
thereof. If so, then the
further issue arising is whether the subject matter of the
inheritance or legacy is in law capable of
being attached under
garnishee order in terms of section 72 of the Magistrates Courts Act
32 of 1944 (“the Act”). I propose
to consider these issues
briefly below.
Section 61
of the Act defines
'debts'
as including any income, from whatever source, other than emoluments
and section 72(1) provides for the attachment, under
garnishee
order, of “
any
debt at present or in future owing or accruing to the judgment
debtor by or from any other person
”.
In the
present matter it appears to be common cause that the judgment
debtor was one of the named beneficiarie
s
in the estate of the deceased and that, for whatever reason, the
liquidation and distribution account in the estate has not
yet lain
for inspection. It follows that
section 35
of the
Administration of
Estates Act 66 of 1965
has not been complied with. Until compliance
is achieved and the estate has become distributable within the
meaning of
section 35(13)
of the
Administration of Estates Act, any
vested rights which the beneficiaries may have acquired against the
executors of the estate (here the garnishee), are not enforceable

(see
:
Estate Smith v Estate Follett
1942 AD 364
at 383)
.
Indeed,
section 50
of the
Administration of Estates Act provides
that any executor making a distribution otherwise than in accordance
with
section 35
risks personal liability to make good any resultant
shortfall.
In
DuRand N.O. v Pienaar N.O. and Others
2000 (4) SA 869
(C), Comrie J
at 873 I-J
described the position, as follows;
“
An
inheritance or legacy vests in the heir or legatee on the death of
the testator. It is not the dominium which vests, but
a personal
right to claim the testamentary benefit from the executor in due
course.
”
In
Honey
& Blanckenburg v Law
1966 (2) SA 43
(SR)
it was held that rental payable for the unexpired portion of a lease
is money "
accruing
"
and thus capable of attachment by way of garnishee order. It was
there held at page 48A that -
"
An
accruing debt is therefore a debt not yet actually payable, but a
debt which is represented by an existing obligation.
"
;
and in
Seegers
v Retreat Motors
1953 (4) SA 422
(C), Herbstein J at 425H
referred
to the -
"
attachment
of an existing debt which is at present owing to a judgment debtor,
or which may in the future be owing to that judgment
debtor in the
sense that payment thereof is to be made in the future.
"
In my
respectful view, what is required is an existing obligation, the
payment in terms of which is not yet due, but which will
become due
at some future date. A mere contingent interest under a will is not
capable of attachment
(Vrede
Kooperatiewe andboumaatskappy Bpk v Lourens
1962 (3) SA 952
(O) at
953 D-F)
,
nor is a
spes
(
Mears
v Pretoria Estate & Market Co Ltd
1906 TS 661
).
Under the common law an attachment cannot be made of wages not yet
due (
Gouws
v Theologo & Ano
980 (2) SA 304
(W) at 306 B; Van der Merwe v
Uys
1957 (4) SA 574
(T)).
In
Vrede
Kooperatiewe Landboumaatskappy Bpk v Lourens (supra),
the benefit sum had been paid over to be held in the Guardian's
Fund pending determination of the identities of the members
of the
class of beneficiaries (i.e., the children of the testator's five
sons), of which the judgment debtor was one. Accordingly
the court
held at 953 F-G that -
"
ons hier nie te doen
het met 'n voorwaardelike reg, wat 'n onsekerheid mag skep of die
reg ooit in die begunstigde sal vestig
nie. In die onderhawige
geval is die respondent se reg tot die bedrag seker en die enigste
onsekerheid bestaan ten opsigte
van die omvang van die bedrag.
"
In the
present matter, whilst the judgment debtor's inheritance vested in
him upon th
e
death of his late father, he acquired no
dominium
therein but at best a personal right to claim the benefit from the
executor in due course, once provision has been made to settle
the
claims of creditors of the estate and the requirements of
section 35
of the
Administration of Estates Act have
been complied with.
Assuming there will be an eventual benefit, then even its form is
uncertain. It may take the form of transfer
of undivided shares in
fixed property and the heirs may even be required to contribute to
make up the envisaged cash shortfall
in the estate, so that heirs do
not receive any payment at all.
In my view it has not been
shown that the judgment debtor had in law acquired a right to
payment against the estate whilst the
actual payment thereof is not
yet due, but which will become due at some future date. In my
judgment no more than a mere contingent
interest in the estate has
been established, and that is not capable of attachment under
garnishee order.
But even if
I were wrong in my view, as expressed above and the right acquired
by the judgment debtor is sufficiently clear and
certain to be
capable of attachment, then a further difficulty arises. The
garnishee, in opposing the imposition of the garnishee
order before
the Magistrate, in addition claimed that the rights of the judgment
debtor to his inheritance from the estate
had been ceded as far
back as during April 2006, shortly after the death of the deceased.
It was asserted that such cession
was for value, in that the sum of
R240 000-00 was paid to the judgment debtor as consideration for
the cession. The Magistrate
in her reasons for judgment in terms of
Rule 51(1)
refers to the cession as "
the
supposed cession
".
The Magistrate further proceeds to doubt the existence of this
cession and even goes so far as to doubt, in the circumstances,
the
bona
fides
of both the executors in the estate, as well as that of their
attorneys. All this based upon the affidavits before the
Magistrate
in circumstances where the applicant for relief (the
judgment creditor) had not even delivered a replying affidavit.
Assuming,
in the absence of a replying affidavit placing the existence of the
alleged cession formally in dispute, that the cession
was disputed
before the Magistrate then, in my view, the Magistrate erred in
summarily deciding this factual conflict in favour
of the judgment
creditor on the papers before the court. The proper approach to
resolving factual conflicts on affidavit is
to take the
1
facts
as stated by the respondent, together with the facts alleged by the
applicant and which are admitted, or at least not disputed
by the
respondent. These facts, thus taken together, then form the factual
basis for deciding the application.
(
Die
Dros (Pty) Ltd and Ano v Telefon Beverages CC and Ors
2003 (4) SA
207
(C), Van Reenen J at 214B-E (paragraph 18).
On this approach the Magistrate should have upheld the existence of
the alleged cession.
12. The
Magistrate also criticised the garnishee because, so it was said, it
could be concluded in the circumstances that the omission
of
reference to the cession in the draft liquidation and distribution
account submitted to the Master was indicative of questionable
or
ulterior motives on his part. However, in
Byron
v Duke Inc
2002 (5) SA 483
(SCA), Zulman JA at 492B (in paragraph 8
)
held that -
"
…
where a
judgment creditor has ceded his rights it is not absolutely
necessary for the cessionary to obtain his substitution
on the
record before he may sue out a writ in the name of the cedent.
"
13.
In
my view there is nothing in the rules relevant to the attachment of a
debt by a garnishee which affects any prior cession, preference
or
right of retention, claimed by any third person in respect of the
debt concerned
.
(Van Winsen et al – Civil Practice of the Supreme Court of SA at
787, note 256).
If,
therefore, the inheritance rights of the judgment debtor were capable
of attachment they would, by parity of reasoning, also
have been
capable of cession. Whether they were actually and effectively ceded
before the garnishee proceedings were initiated,
appears to me to be
a factual dispute which is not capable of resolution on the papers
and should have been referred for decision
after the hearing of oral
evidence. The Magistrate does not appear to have appreciated this
difficulty and in my view misdirected
herself also in this regard.
14.
In
my view the order made by the Magistrate cannot stand and needs to be
set aside. In the absence of any request for the referral
of the
matter to oral evidence, the Magistrate ought to have dismissed the
application. There is no reason why costs should not
follow the
result, both in this court as well as in the court below. In the
circumstances and as indicated above, I agree with
the order set out
at the conclusion of the judgment by Sishi, J.
_____________________
VAN ZYL, J.
Date of hearing : 08 September 2008
Date of Judgment : 04 September
2009
Appellant’s
Attorneys : DWYER INC
c/o
Mason Inc
3
rd
Floor
Fedsure
House
Church
Street
PIETERMARITZBURG
Appellant’s Counsel : Mr. P.J.
Blomkamp
Respondent’s
Attorneys : GROBLER & MOORS
c/o
Stowell & Co
295
Pietermaritz Street
PIETERMARITZBURG
Respondent’s
Counsel : Mr. I.T. Dutton