IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case number: A66/2024
In the matter between:
A L COETZEE Appellant
and
ANNIE BOSMAN Respondent
In her capacity as Master’s Representative in the
Estate of the Late Hermanus Louw Bosman duly
authorised by Letters of Authority with
Estate No.1670/2020 issued by the Master of the
High Court at Cape Town on 10 August 2021
And
Case number: A67/2024
In the matter between:
MILLIE MAKERETA VAN AS Appellant
and
ANNIE BOSMAN Respondent
In her capacity as Master’s Representative in the
Estate of the Late Hermanus Louw Bosman duly
authorised by Letters of Authority with
Estate No.1670/2020 issued by the Master of the
High Court at Cape Town on 10 August 2021
Coram: KUSEVITSKY, J et SIDAKI, AJ
Heard on: 14 JUNE 2024
Delivered on: 02 SEPTEMBER 2024
JUDGMENT
SIDAKI, AJ
[1] In these matters , the app ellants seek to appeal against the following orders of
the Magistrate at Porterville Magistrate’s Court:
a. An order in case number 23 8/2021, dated 22 June 2022, dismissing the
claim for reason of a lack of jurisdiction.
b. An order in case number 239/2021 , dated 22 June 2022, dismissing the
claims for reason of a lack of jurisdiction.
[2] In each of these matters, t he appellants as plaintiffs had instituted action in the
Porterville Magistrate’s Court against the defendant in her capacity as the
Master’s representative in Estate Late Hermanus Louw Bosman (the defendant
was appointed by Letters of Authority in Estate No.1670/2020 issued by the
Master of the High Court at Cape Town on 10 August 2021).
[3] Case number 238/2021 was a claim, by way of a simple summons, for payment
of a sum of R6 400.00 in respect of goods and services rendered to the
deceased for motor spares and repairs . Case number 239/2021 was a
combined summons for two claims; first claim, in the amount of R52 664.10, for
the division of certain assets which the plaintiff and the deceased had jointly
held and, second claim , in the amount of R48 000.00, for reimbursement of
expenses incurred in respect to which the plaintiff and the deceased were said
to be jointly liable.
[4] Personal service was effected on the defendant in both matters.
[5] Following the defendant’s failure to enter an appearance to defend, each
plaintiff applied for default judgment, together with costs and interest.
[6] When considering the default judgment applications, the Magistrate raised
mero motu two queries which were addressed to the plaintiffs. First, whether
the claims had been submitted to the defendant within the requisite timeframe
and, second, whether that court had jurisdiction to adjudicate the claims.
[7] As regards the first query, the plaintiffs responded that the claims had been
submitted timeously. Regarding the second query, the respon se was that the
Magistrate’s Court indeed had jurisdiction to adjudicate the claims on the basis
that both plaintiffs and the deceased had resided within that magisterial district
and that the whole cause of action had arisen within that court’s jurisdiction.
[8] The Magistrate thereafter decided both matters on a similar basis. Although not
pertinently dealt with i n the judgments, the Magistrate seemed to accept that
the claims had indeed been submitted to the defendant within the requisite
timeframe. On jurisdiction, the judgment s deal with a different point which was
not raised in the Magistrate’s queries, namely, the Magistrate states in the
judgments that the claims brought by the plain tiffs were of a specific kind to be
dealt with only in accordance with the provisions of the Administration of
Estates Act 66 of 1965. On this basis alone, the claims were dismissed for a
lack of the court’s jurisdiction . The judgment s do not cite any auth ority to
support the Magistrate’s finding.
[9] In respect to c ase number 239/2021 , the Magistrate proceeded to make
certain obiter remarks which were critical of the merits of the claims.
[10] Notices of appeal were timeously filed, however there were delays thereafter
due to the appellants’ inability to afford legal representation to pursue the
appeals in the High Court . The applications for legal aid assistance came to
nothing. Ultimately, the appellants sought the services of pro bono counsel
through the Cape Bar which managed to assist the appellants.
[11] Mr Van Asw egen appeared in this court for both appellants on a pro bono
basis. The court commends him for the helpful written submissions and
argument before us. There was no appearance for the respondent.
[12] Condonation was sought for the delay in prosecuting the appeal s. We have
considered the reasons for the delay and are satisfied that a proper case has
been made out to grant condonation for the delays in pursuing the appeals.
There was no opposition to the condonation application, and we could not
find any prejudice to any party for granting condonation.
[13] The issue on appeal is whether it was a misdirection for the Magistrate to
find that the court lacked jurisdiction to entertain a claim brought in terms of
the common law instead of submitting such claim to the executrix under the
scheme for the liquidation of deceased estates provided in the Administration
of Estates Act.
[14] Mr Van Aswegen referred us to the judgment of the Supreme Court of Appeal
in Nedbank Limited v Steyn and Others [2015] ZASCA 30 (25 March 2015);
[2015] 2 All SA 671 (SCA); 2016 (2) SA 416 (SCA), in which it was considered
whether the provisions of the Administration of Estates Act preclude a creditor
from its common law right to institute action against a deceased estate for
payment in terms of a loan agreement.
[15] In that case , it was confirmed that the statutory scheme did not oust a
creditor’s right to pursue a claim against the estate under the common law.
This has been the standing legal position. It would appear that the Magistrate
did not have the benefit of considering the decision in Nedbank v Steyn.
[16] The Magistrate’s findings in both these matters were a misdirection on a point
of law.
[17] The appeals accordingly succeed.
In the result, I propose the following orders:
Case number 238/2021:
a. Condonation is granted for the delay in pursuing the appeal.
b. The appeal is upheld.
c. Paragraph 5 of the judgment and order of the court a quo is set aside and
substituted with an order in the following terms:
[i] “This court has jurisdiction to entertain the claim.”
[ii] “Default judgment is granted.”
d. There is no order as to costs.
Case number 239/2021
e. Condonation is granted for the delay in pursuing the appeal.
f. The appeal is upheld.
g. Paragraph 6 of the judgment and order of the court a quo is set aside and
substituted with an order in the following terms: “This court has jurisdiction
to entertain the claim.”
h. The default judgment application is remitted to the court a quo for
determination on the merits of the case before a different Magistrate.
i. There is no order as to costs.
______________________
SIDAKI, AJ
I agree and it is so ordered
______________________
KUSEVITSKY, J
Appearances:
Appellants’ counsel: AJ Van Aswegen
Appellants’ attorneys: Brand and Partners, Vredenburg
Mauritz Briers & Associates
Cape Town