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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: 4307/2022
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED.
DATE: 0 6 MAY 2025
SIGNATURE
In the matter between:
OSZ TAYOB TRADING PIETERSBURG (PTY) LTD
t/a EH HASSIM APPLICANT
AND
PAULINA NTEBO RAMUSI FIRST RESPONDENT
PAULINA NTEBO RAMUSI N.O SECOND RESPONDENT
STANDARD BANK OF SOUTH AFRICA LIMITED THIRD RESPONDENT
REGISTRAR OF DEEDS, PRETORIA FOURTH RESPONDENT
CITY OF JOHANNESBURG METROPOLITAN
MUNICIPALITY FIFTH RESPONDENT
POLOKWANE LOCAL MUNICIPALITY SIXTH RESPONDENT
REGISTRAR OF DEEDS, POLOKWANE SEVENTH RESPONDENT
OAKFIELD BODY CORPORATE EIGHTH RESPONDENT
FIRSTR AND BANK LIMITED NINTH RESPONDENT
______________________________________________________________________
JUDGMENT
______________________________________________________________________
MANGENA AJ
[1] On the 09th June 2020, Applicant obtained monetary judgment of R2 059 872.37
plus interest against the first Respondent Ms Paulina Ntebo Ramusi both in her
personal capacity and in her capacity as the executrix of the estate late Isiah
Sekweng Ramusi. The sheriff executed a writ against the respondent’s movable
properties and same was not enough to liquidate the debt.
[2] The Applicant has now appro ached this court for an order to declare 2 immovable
properties registered in the names of both Ms. Paulina Ntebo Ramusi and Mr.
Isaiah Sekweng Ramusi . Consequential to the declaration of executability, the
Applicant prays for an order authorising a writ o f attachment and directing the sheriff
of the court to attach and take into execution the properties and to sell same by
public auction.
[3] The Respondent is opposing the application and has raised three distinct but
interrelated points, namely premature pr oceedings, non -joinder of the Master of the
High Court as well as three elderly children of the deceased who are the nominated
beneficiaries of the properties in terms of the Will of the late Isaiah Sekweng
Ramusi . The argument as I understand it is that t he execution of the two immovable
properties in fulfilment of the judgment granted by this court will be prejudicial to
those who stand to benefit from the estate of late Mr Ramusi. To protect their
interests, the applicant should have cited and joined the m in this proceedings as
according to the respondent they have a direct and substantial interest.
[4] In support of her contention, the respondent made available to the court a signed
copy of the Will of the late Isaiah Sekweng Ramusi . In the Will executed on the 04th
June 2019, the deceased bequeathed one immovable property to both his son and
his daughter and the other one to the other daughter. The beneficiaries were to be
liable for outstanding amounts (if any) to the funding banks. In paragraph 14 of the
answering affidavit she stated that “the beneficiaries have already taken over their
inheritance and will have the properties transferred to their names once they have
settled the outstanding balances with the banks”.
[5] At the hearing of this application, I requested both counsel for the applicant and the
respondent to file supplementary heads on the issue of non -joinder of the
beneficiaries and both of them have complied. I am indebted to them.
[6] In the supplementary heads, counsel for the respondent relie d further on Section 47
of the Administration of Estates Act 66 of 1965 which requires the written
consent/approval of the heirs before the executor can sell the property of the
deceased. If the heirs are unable to agree, the executor shall sell the proper ty
subject to the conditions and manner approved by the Master. In the absence of the
Master’s supervision and the consent by the heirs, so the argument went, the court
application is defective as the Master has authority over the administration of the
estate. If the court were to grant the orders prayed for by the applicant, this would
amount to the interference with the Master’s authority and the administration of the
estate.
[7] None of the grounds raised by the respondent in opposition of the relief sough t by
the applicant is good in law. Whilst it is true that a party with a direct and substantial
interest should be joined to the proceedings, the qualification for joinder is that the
interest must be a legal interest as opposed to a financial interest. It is also a further
requirement that joinder must be necessary as opposed to convenience. The mere
fact that a party may have an interest in the outcome of litigation does not warrant a
non-joinder plea. Judicial Services Commission and Another v Cape Bar
Council and Another, 2013 (1) SA 170 SCA @ para 12 .
[8] In the context of this case, the executor is responsible for the administration of the
estate and the law places a responsibility upon her to take control of the estate and
ensure that all assets of the d eceased are collected and the debts are paid. In Segal
and Another v Segal and Others, 1976 (2) SA 531(C) the court put the position as
follows: -
“In our law the executor is the person in whom, for administrative
purposes, the deceased’s estate vests”. It is his function to take all such
steps as may be necessary to ensure that the heirs in the estate to
which he is appointed receive what in law is d ue to them.”
[9] One further aspect which requires consideration is that heirs in the deceased estate
do not have an automatic right to inherit in the estate of the deceased. The right to
claim (which is personal) only arises after the liquidation and distrib ution account of
the estate has been confirmed and this right lies against the executor and no any
other person. See W v Williams -Ashman NO and Others v 2023 (4) SA 113 (SCA)
at paragraph 13. This position is supported by authors in Wille’s Principles of S outh
African Law, 9th edition where it is stated as follows: -
“However in the light of modern system of administrati on of estates that
replaced the common law system of universal succession, the right to
the beneficiaries to inherit is no longer absolute nor an assured one. If
the deceased estate, after confirmation of the liquidation and distribution
account, is found to be insolvent, none of the beneficiaries will obtain
any property or assets at all. In the case of a legacy, the legatee will only
obtain the property bequeathed to him if, first the property belonged to
the testator, for the Will of one person cannot co nfer a real right in favour
of another person over property belonging to a third person, and if
secondly, the assets of the deceased not left as legacies are sufficient to
pay his debts. In any event, an heir cannot vindicate from a third person
property w hich the heir alleges form part of the deceased estate, only
the executor has power. It follows from the above considerations that an
heir does not upon the death of the testator acquire the ownership of
the assets of the deceased, but merely has a vested claim against the
executor for payment, delivery or transfer of the property comprising the
inheritance, and this claim is enforceable only when the liquidation and
distribution account has been confirmed. The heir in fact becomes owner
of movable propert y only on the delivery of it, or of immovable property
upon registration……. The modern position is therefore that a
beneficiary has merely a personal right …………. against the
executor and does not acquire ownership by virtue of a Will ”.
[10] The respondent has not argued and/or presented any facts to prove that the
liquidation and distribution account has been approved by the Master and that
registration has taken place in the deeds office. In the absence of these two
requirements, the mere allegation in the ans wering affidavit that the beneficiaries
have already taken over their inheritance is insufficient to disturb the applicant’s
entitlement to the relief he seeks.
[11] Regarding the provisions of section 47 of the Administration of the Estate Act 66 of
1965, the short answer is that the section is irrelevant in that it applies to the sale of
immovable property by the executors and relates to the manner and conditions of
sale. In the event of disagreement with the heirs, the executor will approach the
Master for a pproval. This is not the case here. See Essack v Buchner No &
Others, 1987 (4) SA 53 N @ page 57. This was followed recently in Bester N.O v
Master of the High Court and Another, 2023 (6) SA 199 (WCC) @ para 26.
.
[12] With the preliminary points out of the way , I return to consider whether the applicant
has met the requirements set out in Rule 46A of the Uniform Rules of court. On the
papers before me, the applicant contends that there is a valid judgment obtained
against the respondents. A warrant of execution issued against the movable assets
of the respondents yielded insufficient amount to satisfy the debt. The respondents
are the owners of two immovable properties with a combined market value of
R7 400.000.00.
[13] Proper notices have been given to the entities listed on rule 46(5)(a) and only the
Oakfield Body Corporate has placed information before the court regarding the
outstanding balance owed for the levies in respect of Unit 2[...].
[14] In the view I take on this matter, the applicant has satisfied the requirem ents
stipulated in Rule 46A and having considered the relevant factors regarding the
properties including their market value I am satisfied that the applicant is entitled to
the order for the declaration of executability against the two immovable propertie s.
The respondent will not be rendered homeless by the sale of all or the property in
Limpopo as the proceeds realised out of the sale will be enough to settle the debt
and leave her with sufficient funds to find an alternative accommodation.
[15] In the circu mstances, it is ordered that: -
15.1. The first and second respondents, immovable property better known as Unit
2[...] Oaklands Sectional Title Scheme, scheme number 1/1991 in the
province of Gauteng and situated at 2[...] D[...] Road, Bucclench is hereby
declared specially executable.
15.2. The first and second respondents immovable property better known as Portion
230, Farm 915 Tweefontein, Registration Division LS Limpopo Province is
hereby declared specially executable.
15.3. The Applicant is authorise d to cause to be issued a writ of attachment against
the above properties and direct the respective sheriffs to attach and take
them into execution and sell them by public auction.
15.4. The sale in execution in respect of each of the properties shall be subject to the
reserve price as follows: -
15.4.1. Unit 2[...] Oaklands Sectional Title Scheme -R1 650 000.00.
15.4.2. Portion 230, Fram Tweefontein, Broadlands Polokwane R8
500.000.00.
15.5. The first and second respondent are ordered to pay costs of this applicat ion on
a party and party scale B of the High Court.
____________________________
M. MANGENA AJ
ACTING JUDGE OF THE HIGH COURT
LIMPOPO DIVISION, POLOKWANE
]
APPEARANCES
FOR APPLICANT : Adv. M Karolia
Shaheed Dollie Inc
FOR RESPONDENTS : Adv. N Tshingidimisa
Ramusi Attorneys
HEARD ON : 17 APRIL 2025
DELIVERED ON : 06 MAY 2025