Banderker N.O and Others v Gangrakar N.O and Others (A359/06) [2008] ZAWCHC 10; 2008 (4) SA 269 (C) (22 February 2008)

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[2008] ZAWCHC 10
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Banderker N.O and Others v Gangrakar N.O and Others (A359/06) [2008] ZAWCHC 10; 2008 (4) SA 269 (C) (22 February 2008)

IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE
PROVINCIAL DIVISION)
REPORTABLE
CASE
NO: A359/06
In the matter between
JUBEIDA
KHATUN BANDERKER N.O
First
Appellant
FATIMA
DHANSAY N.O
Second
Appellant
JUBEIDA
KHATUN BANDERKER
Third
Appellant
FATIMA
DHANSAY
Fourth Appellant
MASTER
OF THE HIGH COURT
Fifth
Appellant
and
MOHAMMED
IQBAL GANGRAKAR N.O
First
Respondent
MOHAMMED
IQBAL GANGRAKAR
Second
Respondent
COURTENAY
DANIEL ULYATE N.O
Third
Respondent
JUDGMENT
DELIVERED ON 22 FEBRUARY 2008
ZONDI,
J
INTRODUCTION
[1] In
the Court
a quo
the respondents brought an application in which they sought an order,
inter alia
:
1. setting aside the
refusal by the Master to sustain objections by the respondents to the
amended liquidation and distribution account
in the estate of the
late Jameela Omar Dawood filed by the first and second appellants;
2. directing
the first and second appellants to effect transfer to the third
respondent of the 25% interest in Erven 988 and 1021
Simonstown in
the name of Jameela Omar Dawood.
[2]
In terms of his last will and testament dated 7 October 1942, the
late Omar Dawood, appointed his children as “the sole and universal
heirs in equal shares of all” of his estate. He had four children,
namely Dawood Omar Dawood, Sulaiman, Jameela and Kulsum. The
estate
of Omar Dawood comprised mainly the remaining extent of the property
called “Constantia”, known as Erf 988, Simonstown,
situate at 130
St. George’s Street, Simonstown, and Portion 1, Portion of Lot,
known as Erf 1021 Simonstown, situate at 128 St.
George’s Street,
Simonstown. These erven were duly registered in equal undivided
shares in the names of the late Omar Dawood’s
four children and
they remain so registered.
[3] Jameela
died on 6 December 1964 and was survived by her minor daughters
Jubeida, born on 10 July 1950, and Fatima, born on [day/month]
1956,
who are the appellants in the present appeal. In her will dated 26
March 1954, Jameela appointed Jubeida and Fatima as her
heiresses and
Sulaiman as their guardian and the executor of her estate. She gave
Sulaiman the right at any time, within three years
of her death, to
purchase any immovable property she might have at the municipal
valuation thereof.
[4] Sulaiman
was duly appointed as the executor of Jameela’s estate on 1
February 1965. As an executor of Jameela’s estate Sulaiman
duly
filed a liquidation and distribution account dated 22 May 1967.
[5] In the account, the
following statement appears:
“
In terms of the
Will of the deceased the brother Sulaiman Omar Dawood is given the
right to purchase and the said Sulaiman Omar Dawood
has now exercised
this right and will purchase the within immovable properties for the
amounts disclosed, namely at a quarter of
the municipal valuation”
He also annexed a
document to the liquidation and distribution account which reads:
“
I,
the undersigned, Sulaiman Omar Dawood hereby exercise the option
granted me by my sister the late J.O. Dawood, as set out in clause
three of her Will dated the 26
th
March, 1954”
[6] The only asset in the
account was Jameela’s 25% undivided share in the two erven and this
is what Sulaiman awarded to himself.
Sulaiman did not take transfer
of the said share as the properties were situated in an area which
had been proclaimed a white group
area. His attorneys then wrote to
the Master suggesting that the 25% undivided share remain registered
in the name of the estate
and that the matter be kept in abeyance.
The Master appeared to have accepted the suggestion and in the
circumstances Jameela’s
estate was not finally wound up.
[7] Perhaps
it is more apposite at this stage to deal briefly with the provisions
of the Group Areas Act 36 of 1966 and how they affected
the rights of
the beneficiaries to acquire their respective interest in the
relevant immovable properties.
[8] The
Group Areas Act, no 41 of 1950 repealed several portions of statutes
which had imposed restrictions on ownership or occupation
of land by
members of certain race groups. The Group Areas Act 41 of 1950 and
amendments to that Act were repealed by the Group Areas
Act 77 of
1957 which itself was repealed by the Group Areas Act 36 of 1966.
[9]
In terms of the Group Areas Act, 1966 the State President was vested
with the power to declare by Proclaimation in the Government
Gazette
that as from a specific date, a defined area was to be either an area
for occupation by members of a specific group; or an
area for
ownership by members of a specific group; or for both occupation and
ownership by members of a specific group. In terms
of the Group Areas
Act certain persons defined as “disqualified persons” were
prohibited from acquiring immovable property except
under the
authority of a permit.
[10] In
terms of Proclaimation no. 202 of 1967, published in the Government
Gazette dated 1 September 1967, the area in which the
immovable
properties under discussion were situate was declared in terms of
section 23 (1)(b) of the Group Areas Act to be a group
area for
ownership and occupation by members of the white group.
[11] The
effect of the Proclaimaion was to prohibit Sulaiman, being a
disqualified person as defined in section 1 of the Group Areas
Act,
from acquiring his share from the estate of Jameela, by registration
of the transfer thereof into his name, except under the
authority of
a permit issued to him in pursuance of the provisions of the Act. The
Group Areas Act was subsequently repealed by the
Abolition of
Racially Based Land Measures Act 108 of 1991.
[12] Sulaiman
and Dawood controlled the properties for themselves from the time of
Jameela’s death, maintaining them, paying levies
and charges in
respect thereof, letting portions thereof and collecting rentals in
respect thereof. On 1 July 1960 Sulaiman made
a will in which he
appointed Dawood Omar Dawood the sole heir and executor together with
one Ernest Harry Bloch, of his estate. Sulaiman
died on 28 October
1968.
[13]
At the time of his death Sulaiman was married in community of
property to Zaynab Hoosain Dawood with the result that Dawood
in fact
only inherited from him an undivided half share of the joint estate.
On 20 March 1974 Dawood and Zaynab concluded a redistribution
agreement in terms whereof all immovable properties in Sulaiman’s
estate were to be transferred to Dawood.
[14] Dawood’s
final liquidation and distribution account in Sulaiman’s estate
dated 15 August 1990 made provision for the transfer
to Dawood of
half of the undivided shares in the properties, being Sulaiman’s
25% undivided share and the 25% undivided share he
had purchased from
Jameela’s estate. It is common cause that Dawood did not apply for
a permit in terms of the Group Areas Act
to have the property
transferred to him. As the properties were still situated in an area
that had been proclaimed a white group
area and Dawood was a member
of the Asian group, the transfer could not be registered.
[15] Dawood
died intestate on 1 April 1998 and the second respondent is his heir.
[16]
It is clear from these facts that after the death of Sulaiman on 28
October 1968 there was no executor in Jameela’s estate
until 31
October 1980 when Dawood was appointed sole executor. There was again
a vacancy in the office of executorship in Jameela’s
estate after
the death of Dawood on 1 April 1998 until 12 March 2003, when the
first and second appellants were appointed.
[17] After
their appointment as executrixes of Jameela’s estate, Jubeida and
Fatima filed an amended liquidation and distribution
account in
Jameela’s estate, awarding Jameela’s 25% undivided share in the
relevant properties to themselves as heiresses.
[18] The
respondents objected to the amended liquidation and distribution
account filed with the Master on the ground that Sulaiman
had
purchased Jameela’s undivided share in the immovable properties in
terms of the option which Jameela had granted to him in
terms of her
Will dated 26 March 1954 but which he could not take transfer of as
he was prohibited to do in terms of the Group Areas
Act. The Master
did not sustain the objection and advised the applicants to bring the
dispute before the Court.
[19] It
is against this background that the respondents brought the
application to the Court
a
quo
. The matter came before
Motala, J who found in favour of the respondents. With the leave of
appeal having been granted by the Court
a
quo
on some of the issues
which it had decided in favour of the respondents, the appellants now
appeal to this Court. The appellants
attack the judgment of the Court
a quo
on
the following grounds:
“
13.1 Whether
the finding of extinctive prescription not running during the period
that the claimant to the share and the executor
of the estate being
the same person was correct;
13.2
That the Honourable Court having found that the option was validly
exercised, erred in not finding that it was imperative
for the
claimant and/or the executor of the estate (as the debtor) to have
immediately applied for a permit in terms of the Group
Areas Act in
order to enforce such right acquired;
13.3 That the
Honourable Court had erred in attaching no and/or insufficient weight
to the consequences relating to Sulaiman’s and/or
the executor of
his estate’s failure and/or omission to apply for a permit in terms
of the Group Areas Act and not to merely speculate
at the reasons of
the failure of the aforementioned persons to apply for a permit;
13.4 That
the Honourable Court had erred in not finding that on a balance of
probabilites the aforesaid Sulaiman Dawood and/or the
executor of his
estate could have acquired a permit under the Group Areas Act in
order to obtain transfer of Jameela’s shares in
the relevant
properties;
13.5
That the Honourable Court had erred in finding that even if Jameela’s
estate at all times had an executor not the same person
as the
claimant, the latter could not have successfully sued for
transfer-even if he had a Group Area’s permit;
13.6 That accordingly
the Honourable Court had erred in not finding that, in the
circumstances, the claimant’s right to claim transfer
had become
prescribed;
13.7 That the
Honourable Court had erred in not finding that at the time the option
was exercised, a conflict of interest arose in
that the said Sulaiman
Dawood was also the executor of Jameela’s estate and the guardian
of the respondents”.
Extinctive
Prescription
[20] In
the Court
a quo
the appellants had argued that Sulaiman’s claim for transfer of the
share in the properties had prescribed. The Court
a
quo
rejected the
appellants’ contention, finding that extinctive prescription did
not run during the period that the claimant and the
executor of the
estate were one and the same person. It is this finding which the
appellants are challenging on appeal.
[21]
Mr
Uijs
who together with
Mr
Banderker,
appeared for the
appellants, submitted that Sulaiman’s right to claim transfer of
Jameela’s 25% undivided share in the relevant
erven prescribed in
terms of the
Prescription Act, 68 of 1969
. He argued that the fact
that Sulaiman or his successor in title was both the executor and the
beneficiary in Jameela’s estate
did not interrupt the running of
prescription.
[22] He
submitted that the Court
a
quo
was wrong in relying
upon the English case of (
Binns
v Nichols
[1886] LR2 Eq.
256) which is authority for the proposition that prescription does
not run during the period that the person entitled
to receive a
legacy is also the personal representative who is liable to pay it.
He argued that the fact that Sulaiman was both an
executor and
beneficiary in Jameela’s estate did not prevent him from
instituting a claim against Jameela’s estate for the transfer
of
Jameela’s 25% undivided share in the properties. In
Mr
Uijs’
view Sulaiman could
have relinquished his position as an executor and thereafter
instituted a claim in his capacity as a creditor.
[23]
Mr
Smalberger
, who appeared
for the respondent, submitted that the Court
a quo
was correct in
following the
Binns v
Nichols
judgment as it
would be absurd to hold that prescription runs against a person in
one capacity and in favour of him in another capacity.
[24] It
is correct that there is no direct South African authority in point
on this issue and I was unable to find any reference to
Binns
v Nichols
in the reported
South African cases. However, in the United Kingdom it has been
followed in various cases (In re
Blachford
(Blachford v Worsley)
[1884] L.R 27
Ch.D 676. In re
Pardoe
(McLaughlin v Penny)
[ 1906] I Ch. 265 and In re
Welch
(Mitchell v Willders)
[1916] Ch. 375.
In these cases the Courts had to consider whether the
Statute of Limitations applied in a claim against the estate in
circumstances
where the executor and the creditor of the estate are
one and the same person. Following
Binns
v Nichols
it was held that
the Statue of Limitations did not apply. In particular Kekewich J in
McLaughlin v Penny
confirmed that
Binns v
Nichols
decision
was still the law.
[25] In
South Africa, the
Prescription Act deals
with prescription of debts.
Sections 10
and
11
of the
Prescription Act, 68 of 1969
provide for
the extinction of debts by prescription. They provide as follows:
“
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 payments of a
debt.
11.
Periods of prescription of debts –
The
period 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;
any debt in respect of
any taxation imposed or levied by or under any law;
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;
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);
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);
save where an Act of
Parliament provides otherwise three years in respect of any other
debt.
[26]
Section
10(1)
of the
Prescription Act makes
it clear that a debt is
extinguished after the lapse of the relevant prescriptive period.
Although the term “debt” is not defined
in the Act, the Courts
have held that it is has a wide and general meaning and includes an
obligation to do something or refraining
from doing something (
Desai
NO v Desai and Others
1996(1) SA 141 (A) at 146 I; and
Electricity
Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd
1981(3) SA 340(A)).
[27] It
was accordingly submitted on behalf of the appellants that the
exercise of the option as set forth in clause 3 of Jameela’s
Will
imposed, incontrovertibly, upon Sulaiman and his successor–in title
the obligation to procure transfer of the relevant share
and that his
failure to apply for a permit as envisaged by the provisions of the
Group Areas Act rendered the right acquired in terms
of the Will as
extinguished after the expiry of the relevant prescription period.
[28] At
the time Sulaiman exercised the option, the Prescription Act of 1943
was applicable to an obligation to procure transfer of
the relevant
shares. The Prescription Act of 1943 was repealed by the
Prescription
Act of 1969
which commenced on 1 December 1970. However, in terms of
section 16(2)(b)
of the
Prescription Act of 1969
the provisions of
any law which immediately before the commencement applied to the
prescription of a debt which arose before the
1969
Prescription Act
would
continue to apply to the prescription of the debt in all
respects as if the 1969
Prescription Act had
not come into operation.
[29] In
terms of section 3(2) of the Prescription Act, 1943 the period of
extinctive prescription was six years in respect of written
contracts. Section 7(1)(a) of the 1943 Act suspends the running of
extinctive prescription “so long as performance of an obligation
is
delayed by
vis major
or
the debtor is lawfully entitled to delay performance on any other
ground”.
[31] The
general rule of the common law is that prescription does not run
against any person who is not able to bring an action for
the
recovery of a debt. (
Louw v
Louw and Others
1933 (CPD)
163 at 168.)
[32] Turning
to the facts of the present case it is common cause that Jameela’s
estate had no executor during the following three
periods:
(a) between 6 December
1964 when she died and 1 February 1965 when Sulaiman was appointed;
(b) between
28 October 1968 when Sulaiman died and 31 October 1980, when Dawood
was appointed;
(c) between
1 April 1998, when Dawood died and 12 March 2003 when the appellants
were appointed.
[33] I
agree with the Court’s
a
quo
finding that neither
Sulaiman nor his successor in title could institute an action during
the period that there was no executor.
In the absence of an executor
he could not institute a claim and in my view that constituted an
impediment within the meaning of
the 1943 Act. Moreover prescription
could not run while Sulaiman or his successor in title was the
executor of Jameela’s estate
because he could not institute an
action against himself as an executor of Jameela’s estate for
transfer of Jameela’s 25% undivided
share in the properties. In the
circumstances I find, following
Binns
v Nichols,
that the
Prescription Act did not apply while Sulaiman or his successor in
title was an executor in Jameela’s estate and therefore
Sulaiman’s
rights to acquire Jameela’s 25% undivided share in the two relevant
erven did not prescribe.
[34] In
the light of the conclusion I have reached it then becomes
unnecessary to consider the rest of the submissions made on behalf
of
the appellants.
[35] In
the circumstances the appeal is dismissed with costs
__________________
ZONDI,
J
I
agree,
__________________
NC
ERASMUS, J
I
agree,
__________________
VELDHUIZEN,