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IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION,
CAPE TOWN
CASE NUMBER: 5058/2024
In the matter between:
NEDBANK LIMITED Applicant
and
NOKWESHINI NOMSITHELO GLADYS MVULA Respondent
IDENTITY NUMBER: 5[...]
ESTATE NUMBER: 0[...]
JUDGMENT
______________________________________________________________________
ANDREWS, AJ
Introduction
[1] This is an opposed application in terms of which the Applicant seeks the
following relief inter alia:
1. That the Instalment Sale Agreement be rectified by amending the engine number
to reflect 2[...];
2. Confirmation of cancellation of the said Agreement;
3. Return of the vehicle referred to as:
2019 TOYOTA HILUX 2.4 GD-6 RB SRX A/T P/U S/C
Engine Number: 2[...]
Chassis Number: A[...]
4. The vehicle to be handed over to a duly authorised representative of the Plaintiff
or the Sheriff;
5. Authorising the Sheriff or the authorised representative of the Plaintiff may attach
and remove the asset wherever it may be found;
6. An order in terms of Section 30(b) of the Administration of Estates Act 66 of 1965
directing that the movable property may be sold in terms of Section 127 of the
National Credit Act, 34 of 2005;
7. Attorney and client costs;
8. In the alternative, return of the vehicle as re ferred to herein to be placed in the
Applicant’s approved storage facility until such time as the Estate has been
finalised or permission to sell granted or provided;
9. Further and/or alternative relief.
Factual Background
[2] On 26 August 2019, t he Appli cant entered into a written Instalment Sale
Agreement (the “Agreement”) with the late Sanjini Mvula , in respect of the sale of a
2019 Toyota Hilux (“the vehicle”). Sanjini Mvula (“the deceased”), died on 19 March
2023. The outstanding balance payable in terms of the Agreement as at 10 June 2024
is R315 971.93. The Respondent is the surviving spouse of the deceased and is
currently in possession of the vehicle. It is undisputed that payments were made
subsequent to the death of the deceased, but not consistently and in amounts less than
the monthly instalment in terms of the contract which is R9 467.37. The arrears as at 10
June 2024 amounted to R44 500.85.
[3] On 26 September 2023, Mr Gerhardus Martinus Mostert (“Mr Mostert”) was
appointed as the executor of the deceased estate. However, Mr Mostert filed a letter of
renouncement as executor on 26 January 2024. An application for the a ppointment of
the Respondent as the executrix of the deceased estate is currently pending before the
office of the Master of the High Court.
Principal submissions on behalf of the Applicant
[4] The Applicant approaches this court as the owner of the vehicle, by virtue of the
terms of the Agreement, namely:
‘3.3 You acknowledge that we are the owner of the Goods and will
remain so until all obligations and repayments to us have been
fulfilled by you, after which you will become the owner of the
Goods.’1(my emphasis)
[5] Ownership is therefore vested in the Applicant as is borne out by the NATIS
certificate of registration. 2 The Applicant averred that the deceased is in breach of the
Agreement in that the monthly instalment has not been maintained and there is no
comprehensive insurance on the vehicle. 3 The Applicant further alleges that the
Respondent is in unlawful possession of the vehicl e, as neither she nor the estate has
1 The Agreement, page 26.
2 Annexure “CT4”, page 90.
3 The Agreement, para 5 and 7, pages 26 – 27.
settled the full outstanding balance owing on the vehicle . The Respondent refuses to
surrender the vehicle. Additionally, it was submitted that the vehicle is the only form of
security that the Applicant holds in respect of the cla im against the deceased estate, as
the asset is a depreciating asset.
The grounds of opposition
[6] The Respondent raises a number of grounds in opposition to the re lief being
sought by the Applicant which includes inter alia:
(a) The non-joinder of the Master of the High Court;
(b) The non-joinder of the executor;
(c) Lack of cause of action and
(d) Misapplication of Sections 30 and 127.
Non-joinder of the Master of the High Court
[7] The Respondent submitted that the joinder of the Master of the High Court in
matters involving a deceased estate is inherently necessary. The Applicant, however,
contended that same is not necessary as no relief is being sought against the Master. In
this regard, the Applicant submitted that a copy of the application was served on the
Master’s Office on 20 March 2024 in order to notify the Master of the institutio n of this
application. The Respondent argued that pending the appointment of an e xecutor or
interim curator, the Master of the High Court is enjoined to protect the interest of the
deceased heirs.
[8] It was submitted that Section 11 of the Administration of Estates Act4 (“the AEA”)
becomes relevant which stipulates that:
‘11 Temporary custody of property in deceased estates
(1) Any person who at or immediatel y after the death of any person has
the possession or custody of any property, book or document, which
belonged to or was in the possession or custody of such deceased person
at the time of his death-
(a) shall, immediately after the death, report the p articulars of such
property, book or document to the Master and may open any
such document which is closed for the purpose of ascertaining
whether it is or purports to be a will;
(b) shall, unless the Court or the Master otherwise directs, retain the
possession or custody of such property, book or document, other
than a document being or purporting to be a will, until an interim
curator or an executor of the estate has been appointed o r the
Master has directed any person to liquidate and distribute the
estate: Provided that the provisions of this paragraph shall not
prevent the disposal of any such property for the bona fide
purpose of providing a suitable funeral for the deceased or of
providing for the subsistence of his family or household or the
safe custody or preservation of any part of such property;
(c) shall, upon written demand by the interim curator, executor or
person directed to liquidate and distribute the estate, surrend er
any such property, book or document in his possession or
custody when the demand is made, into the custody or control of
4 Act 66 of 1965.
such executor, curator or person: Provided that the provisions of
this paragraph shall not affect the right of any person to remain
in possession of any such property, book or document under any
contract, right or retention or attachment.
(2) Any person who fails to comply with the provisions of paragraph (b) of
subsection (1) shall, apart from any penalty or other liability he may i ncur
thereby, be liable for any estate duties payable in respect of the property
concerned.’
[9] It is manifest that this provision envisages a situation whe re the assets of the
deceased, in whose posse ssion such asset s were at the time of the death of the
deceased, must be retained by that person until an interim curator or an executor of the
estate has been appointed or the Master has directed any person to liquidate and
distribute the estate. Until such time as an e xecutor has been appoin ted, the estate
cannot be wound up. It was furthermore mooted that the applicability of Section 11 is
intended to protect the interest of the deceased’s heirs pending the appointment of an
executor or a curator. The applicability of Section 11, in my view, is dependent upon
whether the vehicle in question is considered an asset under circumstances where the
ownership of the vehicle vests with the A pplicant and w here there is a considerable
amount outstanding which will ultimately be registered as a claim against the estate.
[10] In my view, the joinder of the Master to these proc eedings is not essential
in view of the relief being sought by the Applicant.
Non-joinder of executor
[11] It is trite that a n executor’s authority is anchored in their fiduciary duty to
administer the deceased’s estate in accordance with the terms of the Last Will and
Testament and the law. An executor’s primary responsibility is to identify and ensure the
safeguarding of assets, settling debts and distributing the estate to beneficiaries.
Although an executor enjoys a measure of discretion, there must be adherence to the
provisions of the A EA subject to the oversights of the Master of the High Court as aptly
distilled by Collins J in Labuschagne v Nel and Others 5 in reference to the writer D.
Meyerowitz, Administration of Estates and their Taxation, 2010:
‘the executor acts upon his own responsibility, but he is not free to deal
with the assets of the estate in a manner he pleases. His position is a
fiduciary one and therefore he must act not only in good faith but also
legally. He must act in terms of the law, which prescribes his duties and
the method of his administration and makes him subject to supervision of
the Master in regard to a number of matters.’
[12] The Respondent raised the argument regarding the non -joinder of t he
executor primarily because of the relief being sought by the Applicant insofar as it
relates to the cancellation of the Agreement. In this regard , it was argued that the relief
was premature and incompetent as the Respondent before the court was not a party to
the Agreement. The quest ion to be answered , therefore, is whether the Respondent,
who has not yet been appointed as the executor can be cited in her personal capacity in
circumstances where the relief being sought is the cancellation of the contractual
agreement.
[13] It was contended that the Respondent has no contractual obligation to
perform in terms of the Agreement if regard is had to the provisions of Section 13(1) of
the AEA which stipulates:
‘No person shall liquidate or distribute the estate of any deceased pe rson,
except under letters of executorship granted or signed and sealed under
this Act, or under an endorsement made under section fifteen, or in
pursuance of a direction by a Master.’
5 (319/2018) [2019] ZAGPPHC 68 (11 March 2019) at paras 13 – 14.
[14] Although the Respondent has not officially been appointed as the Master’s
representative or executor, she appears to have stepped into the shoes of the deceased
by virtue of her attempts to rehabilitate the account. This was however done, in her
personal capacity and not in her capacity as executrix in the execution of a fiduciary
responsibility. The Respondent submitted that the deceased’s obligatio ns do not die
with him or her but it is through the duly appointed executor, once appointed, who steps
into his or her shoes in consultation with the heirs, legatees and creditors to decide
whether or not to continue or terminate such agreements. The reality is that the re is no
executor appointed and therefore the obligations of an executor do not yet vest in the
Respondent.
[15] The Respondent, in these circumstances, claims to hold possession of the
vehicle in terms of Section 11(a) of the A EA and as such the relief being sought against
the Respondent, being cited in her personal capacity for t he cancel lation of the
Agreement is not competent as earlier stated. In this regard, the Respondent contended
that without the cancellation, the Applicant is not entitled to the return of the vehicle. It is
in this context that the Respondent argued that, even if the pleaded case of the
Applicant was that of an interdict, such application would still fail for the absence of a
right to take possession of the motor vehicle while the Agreement is still in existence.
[16] This argument is not sustainable as in my view, t he Applicant has
demonstrated a strong right to cancellation of the agreement as the Agreement
specifically stipulates:
‘7. DEFAULT AND BREACH
7.1 If you fail to make payment of any amounts due to us, we m ay
terminate this Agreement. The following will be events of default;
…
7.1.3 If you die or are sequestrated…’ (my emphasis)
[17] In my opinion , the Applicant has an automatic entitlement to cancel the
Agreement upon the death of the dece ased by virtue of this clause in the Agreement.
The clause essentially gives the Applicant the electi on to cancel the Agreement upon
death. The question however remains whether the Ap plicant could enforce this election
by way of relief against the Respondent in her personal capacity in this applica tion or
whether such election should be exercised when an executor or curator has been
appointed.
Lack of cause of action
[18] The Respondent contended that the deceased after death cannot be said
to have committed a breach of contract in circumstances where he could not have
performed. This argument further serves to reinforce the Respondent’s contention that
the Applicant’s relief for cancellation is not competent. In further augmentation, the
Respondent contended that a mere fail ure to pay month ly instalments does not
constitute a brea ch of contract, and in this instance, there is a legal justification in that
no executor has yet been appointed to liquidate and distribute th e assets in the
deceased estate, as prescribed by law. This process includes an obligation placed on
the executor in terms of Section 35(12) of the A EA, to pay creditors and distribute the
estate to the heirs only once a liquidation and distribution account has been confirmed
by the office of the Master, lain for inspection and no objection having been raised
against the liquidation and distribution account.
[19] The Respondent further submitted that the creditor’s claim only becomes
due and p ayable thereafter. In further amplification i t was contended that if there has
been no compliance with Section s 29 and 35(12) of the A EA, it cannot be said that the
Applicant’s debt against the deceased’s estate is due and payable, and that it cannot be
said that there is a failure to make payment when same was not due and payable in
terms of the procedures envisag ed by the A EA. In o ther words, according to the
Respondent, there is a factual and legal justification for asserting non-payment and in
terms of Section 29 of the A EA, the Applicant’s debt, being a contractual obligation
against the deceased estate, is onl y due and payable once a claim against the estate
has been submitted and only once the jurisdictional factors contemplated in Section
35(12) have been established.
[20] This argument can clearly not be sustained as the event of death is
identified under the de fault and breach clause in the A greement. Whilst the AEA sets
out the requirement for payment of claims against the estate, this process does not alter
the fact that the non-payment of the account has caused the account to be in arrears
which entitles the Applicant to pursue a claim against the estate and/or elect to recover
the asset as a means of security for the debt owing. This consideration must be viewed
against the Applicant’s application which is predicated on its right as the owner of the
vehicle.
Rei vindicatio
[21] It is trite that the legal requirements for rei vindicatio, the claimant has to
prove:
(a) that he or she is the owner of the thing,
(b) that the thing was in possession of the Defendant at the time the action was
commenced and
(c) that the thing which is vindicated is still in existence and clearly identifiable.6
[22] The Respondent does not challenge the Applicant’s ownership of the
vehicle. There is a dispute as to whether the Respondent is in law ful possession of the
vehicle if regard is had to the terms of Section 11 o f the A EA or whether ownership
6 Chetty V Naidoo 1974 (3) SA 13 (A) 20 B -C. ‘in order to succeed, it is incumbent on the claimant to
prove the following basic elements of the actio rei vindicatio, i) that he or she is the owner of the thing, ii)
that the thing was in possession of the Defendant at the time the action was commenced and iii) that the
thing which is vindicated is still in existence and clearly identifiable.’
triggers the actio rei vindicatio that is available to an owner who has been deprived of
their property without consent and who wishes to recover it from someone else who
retains possession.
[23] To reiterate, clause 11(1)(b) of the AEA, makes it peremptory for the
person to retain the possession or cus tody of such property, until an interim curator or
an executor of the estate has been appointed or the Master has directed any person to
liquidate and distribute the estate . It therefore begs the question whether this legislated
possession of the asset trumps the vindicatory common law right of the Applicant.
[24] The Respondent would have to show that she has some right that is
enforceable against the Applicant. The matter of Chetty v Naidoo 7 is instructive where
the following was stated:
‘It is inherent in the nature of ownership that possession of the res should
normally be with the owner, and it follows that no other person may
withhold it from the owner unless he is vested with some right enforceable
against the owner…The owner, in instituting a rei vindicatio, need,
therefore, do no more than allege and prove that he is the owner a nd the
defendant is holding the res – the onus being on the defendant to allege
and establish any right to continue to hold against the owner.’ (my
emphasis)
[25] In vindicatory proceedings, it is trite that the claimant need do no more
than to allege and prove that they are the owner of the property , that the other party is
holding the property, and that the property in question is still in existence and is clearly
identifiable. The Applicant averred that it makes no difference whether the possessor is
bona fide or mala fide.
7 1974 (3) SA 13 (A).
[26] It was furthermore contended that the onus is on the person in possession
of the vehicle to establish an enforceable right to remain in possession of the asset as
previously stated. The Applicant submitted that reliance on this contention is found in
the matter of Nedbank v Nonkululeko Bukweni N.O. in her capacity as Master’s
Representative in the Estate of the Late Mankuntswana Bukweni 8 where
Rugunanan J, stated:
‘The rei vindicatio postulates that once a claimant establishes ownership
in the thing in issue, and where the respondent is in possession at the
commencement of the action, the thing shall immediately be returnable.’
[27] The Respondent on the other hand, argued that reliance on Nedbank v
Nonkululeko Bukweni N.O. matter is misplaced in that the matter is clearly
distinguishable from the matter in casu for the following reasons:
(a) That matter was instituted against the appointed Master’s representative, not the
Section 11 custodian, which cemented the Respondent’s contention that legal
proceedings against the deceased estate can only be instituted against an
appointed Master’s representative or executor, not the Section 11 custodian. The
Master’s representative or execut or “steps into the shoes of the deceased” who
is required to perform any obligation of the deceased.
(b) The repossession of the property was a consequence of the cancellation of the
contract, not based on the rei vindicatio.
[28] It is trite that the Applicant in an application for an interim interdict must
establish:
(a) A prima facie right;
8 (Case number: 1970/2022) Eastern Cape Division, Makhanda High Court, para 13.
(b) A reasonable apprehension of irreparable harm and imminent harm to the right if
the interdict is not granted;
(c) The balance of convenience must favour the grant of the interdict; and
(d) The applicant must have no other available remedy.
[29] The Applicant contended that the purpose of an interim attachment order
is to protect the owner of the goods against deterioration and damage pending the
finalisation of the main proceedings between the parties. It is trite that i n matters where
the Applicant brings a vindicatory or quasi -vindicatory interdict, the harm is presumed
until proven otherwise. Erasmus points out that:
‘There are two exceptions to the rule that an applicant for an interlocutory
interdict must show the requisites outlined above. Th ese are applications
pending (i) vindicatory, and (ii) possessory (usually, but loosely described
as quasi -vindicatory) actions. A vindicatory action is one in which the
plaintiff claims delivery of specific property as owner or lawful possessor.
An action is said to be quasi-vindicatory when delivery of specific property
is claimed under some legal right to obtain possession. The most familiar
example of the latter is an action for delivery or transfer of property under
a contract of sale, which in certain circumstances supports a claim to an
interdict restraining the seller from dealing with the property pending the
action.’9
[30] In addition, t he Applicant contended that it has established that a prima
facie right which is predicated in substantive law for the restoration of the vehicle.
Furthermore, that the use of the vehicle on a daily basis causes rapid deterioration and
diminution thereof in value. It was submitted that the case is ultimately founded upon
9 DE van Loggerenberg & E Bertelsmann Erasmus: Superior Courts Practice (2019 – Revision Service 9)
at D6 – 22.
contentions regarding relative harm, convenience and the strength of the right in issue.
The Respondent contended that the Applicant’s entitlement to full payment of the
contractual amount is not a basis to assert apprehension of irreparable harm.
[31] A pivotal consideration is the prospects of success. This is to be weighed
against the degree of prejudice to either party in the event of an interim order being
refused. It is evident that the Applicant is desirous to ensure the preservation of the
asset at this stage. If regard is to be had to the delay in the appointment of the executor,
it is my view that the preservation of the vehicle warrants that interim protective r elief be
granted.
National Credit Act
[32] The Applicant argued that it is entitled to recover the vehicle in the
Respondent’s possession based on the provisions of the National Credit Act 10(“NCA”)
which permits interim attachment of goods pending the outcome of vindicatory or quas i-
vindicatory proceedings.
[33] The Respondent on the other hand contended that the Applicant’s reliance
on Section 30( b) of the A EA and Section 127 of the NCA , as a basis for seeking to
attach and sell the motor vehicle in question, is misplaced and finds no application for
the following reasons namely:
(a) Section 30 of the AEA deals with situations where there is a court order or writ
already in existence b efore or after the demise of the deceased. In the lat ter
instance, the execution creditor must not have known about the death of the
deceased.
(b) Section 127 of the NCA deals with voluntary surrender of goods at the instance
of or by a consumer, not the creditor or the court, otherwise it would not be a
10 Act 34 of 2005.
voluntary surrender of the motor vehicle in question. In this regard, the machinery
of section 127 of the NCA cannot be invoked by the Applicant or the court and
accordingly finds no application in this matter.
[34] It was submitted that an interim attachment order is not to enforce
remedies or obligations under the credit agreement, and the remedy is not integral to
the debt enforcement process under the NCA. It is trite that interim attachment of goods
pendent lite is well -established and in my view, does not have to be predicated on
Section 127 of the NCA which deals with the voluntary surrender of goods. I do,
however, agree with the Respondent that Section 30(b) of the AEA finds no application.
Discussion
[35] The Respondent contended that there is an alternative remedy for
contractual damages, and as such, even if the case was rooted in the interdictory relief,
such application would fail for want of the essential requirements of an interdict. The
question to be answered is whether the Applicant has made out a case for alternative
relief in the founding papers. It is trite that the Applicant cannot make out a new case in
its replying affidavit and heads of argument.
[36] The Respondent asserted that she enjoys possession of the vehicle under
the protection of Section 11 of the AEA. However, it is uncontroverted that the vehicle is
currently being utilised by the Respondent and is not in safe -custody or preservation as
envisaged in Section 11 of the Administration of Estates Act. Inasmuch as the
Respondent wishes this court to take cognisance of the provisions of Section 13 of the
AEA11, a fundamental consideration is overlooked, namely , that no person is allowed to
11 ‘Deceased estates not to be liquidated or distributed without letters of executorship or direction by
Master
13. (1) No person shall liquidate or distribute the estate of any deceased person, except under letters of
executorship granted or signed and sealed under this Act, or under an endorsement made under section
fifteen, or in pursuance of a direction by a Master.
(2) No letters of executorship shall be granted or signed and sealed and no endorsement under section
fifteen shall be made to or at the instan ce or in favour of any person who is by any law prohibited from
liquidating or distributing the estate of any deceased person.
liquidate or distribute the estate of any deceased person, except under letters of
executorship.
[37] Until such time as an executor to the estate has been appointed, the
estate assets and liabilities must remain undisturbed. The Applicant’s concerns
regarding the vehicle being its only security and the potential risk of loss, damage or
destruction cannot be ignored, es pecially in circumstances where there is no insurance
cover on the vehicle.
[38] The Applicant has set out the grounds upon which i ts application is
predicated with due regard to the applicable law for the relief it seeks in its founding
papers. It was only after the Respondent laid bare her defences in the answering
affidavit that the Applicant, responded thereto in reply. These defe nces, it was
submitted, were purely of a technical nature, as the Respondent has not in any way
demonstrated an entitlement to the vehicle save for shrouding it under the cover of
Section 11 of the AEA.
[39] The alternative relief sought is for the return of the vehicle which is to be
placed in the Applicant’s approved storage facility until such time as the estate has been
finalised or permission to sell granted or provided. In my view, this app ears to be a
sensible approach. In light of the conclusion to which I have come, I am satisfied that
the Applicant has made the essential averments necessary for relief sought in the
alternative. Even if such relief was not sought, same could in any event be considered,
in the exercise of this court’s discretion, under the prayer for further and/or alternative
relief, in the interest of justice.
Conclusion
(3) The provisions of sub -section (2) shall not apply to any person nominated as executor by the will of a
person who dies before the first day of July, 1966.’
[40] In my view, based on the unique facts of this matter, the legislated
possession of the asset in terms of Section 11 of the AEA , cannot trump the vindicatory
common law right of the Applicant. In any event, the Respondent has failed to show that
she has some right that is enforceable against the Applicant. I am therefore not
persuaded that the Respondent’s asserted entitlement to possession of the vehicle
under the veil of Section 11 of the AEA can be sustained, which requires the vehicle to
be kept in safe custody or preservation.
[41] It is unrefuted that the vehicle is being used by the Respondent to the
potential risk of the Applicant and the deceased estate as the vehicle is not insured.
Consequently, I am satisfied that the Applicant is entitled to cancel the agreement. The
relief for the amendment to the chassis number under these circumstances in my view
will not be prejudicial to the Applicant or the deceased estate. I am satisfied that the
Applicant has succeeded to discharge the onus for the alternative relief sought, which in
my view will not be to the prejudice of the deceased estate and serve as interim relief. In
the circumstances, the application succeeds.
Costs
[42] It is trite that costs follow the result.12 In the exercise of my discretion, I am
of the view that the Respondent should bear the costs of the application.
Order
[43] In the result, the following order is made:
1. Order granted as per attached order marked “X”.
12 Ferreira v Levin N.O. and Others; Vryenhoek and Others v Powell N.O. and Others 1996 (1) SA 984
(CC) at para 155 ‘…One of the general rules is that, although an award of costs is in the discretion of the
Court, successful parties should usually be awarded their costs and that this rule should be departed from
only where good grounds for doing so exists’.
__________________________
P ANDREWS, AJ
Acting Judge of the High Court
APPEARANCES:
Counsel for the Applicant: Advocate Michael Garces
Instructed by: Kemp & Associates
Counsel for the Respondent: Mr. Khanyisa Lingani
Instructed by: Lingani & Partners Inc.
CASE NUMBER: 5058/2024
Heard on: 13 August 2024
Delivered: 27 August 2024 – This judgment was handed down electronically by
circulation to the parties’ representatives by email.